DeWalt, Anthony v. Carter, Lamark

In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2415

ANTHONY DEWALT,

Plaintiff-Appellant,

v.

LAMARK CARTER, CORRECTIONAL OFFICER YOUNG,
CAROL BIESTER, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 98 C 50059--Philip G. Reinhard, Judge.

Submitted July 14, 1999/*--Decided August 11, 2000

Before HARLINGTON WOOD, JR., COFFEY and RIPPLE, Circuit
Judges.

RIPPLE, Circuit Judge. Anthony DeWalt, an
Illinois prisoner proceeding pro se, seeks
compensatory and punitive damages under 42 U.S.C.
sec. 1983 against five individuals employed at
the Dixon Correctional Center ("Dixon") for
alleged violations of his First, Eighth, and
Fourteenth Amendment rights. Mr. DeWalt claims
that various defendants used racially insulting
and sexually explicit language when speaking to
him, engaged in a racially motivated and
retaliatory conspiracy to get him fired from his
prison job, retaliated against him in a variety
of other ways for filing a grievance against a
prison guard, used excessive force in illegally
punishing him, and ignored his complaints of
discrimination and retaliation. The district
court dismissed Mr. DeWalt’s complaint for
failure to state a claim. We affirm in part and
reverse in part.

I
BACKGROUND
Anthony DeWalt’s problems at Dixon began on
August 8, 1997, when Correctional Officer Young,
a prison guard, approached him while he was
working at his job cleaning the building that
houses the prison school./1 Officer Young made a
series of sexually suggestive and racially
derogatory comments to him regarding certain
female teachers at the prison school. Mr. DeWalt
filed a grievance against Officer Young based on
the incident. Mr. DeWalt’s decision to file the
grievance set off a wave of retaliation by the
defendants and other prison employees.

During the following week, Officer Young went to
Carol Biester, an administrator at the prison
school, and suggested to her that Mr. DeWalt was
trying to initiate an intimate relationship with
a teacher at the prison school. Ms. Biester, in
response, instructed Mr. DeWalt in an abrasive
and insulting manner not to enter the teacher’s
classroom.

Shortly thereafter, on August 14, Officer Young
ordered Mr. DeWalt to clean the teacher’s
classroom, and Mr. DeWalt did so. Officer Young,
however, submitted a disciplinary report charging
Mr. DeWalt with entering the classroom in
contravention of Ms. Biester’s orders. Based on
Officer Young’s disciplinary report, Ms. Biester
removed Mr. DeWalt from his job. Mr. DeWalt
challenged Officer Young’s disciplinary report
internally, but the prison’s Adjustment Committee
found Mr. DeWalt guilty of the disciplinary
violation on August 26, 1997. As a result, Mr.
DeWalt was permanently reassigned from his job at
the prison school.

At about the same time Mr. DeWalt lost his
prison job, Dan Murray, a prison administrator,
took him aside, informed him that he had heard
Officer Young’s allegations about Mr. DeWalt’s
interest in the teacher, and proceeded to berate
Mr. DeWalt in racially derogatory terms for
getting into trouble and for pursuing prison
teachers. Several weeks later, Mr. Murray refused
to reassign Mr. DeWalt to a new prison job,
despite the warden’s instructions to do so.

Over the next few weeks, Mr. DeWalt received two
more groundless disciplinary reports from other
prison staff members who are not defendants in
the present case. The prison guard who gave Mr.
DeWalt the second of these reports informed Mr.
DeWalt that Ms. Biester and Officer Young had
enlisted a number of prison staff members to give
Mr. DeWalt disciplinary reports whenever possible
because Mr. DeWalt had filed a grievance against
Officer Young.

Finally, in early November 1997, Correctional
Officer Smith, another prison guard, issued Mr.
DeWalt a disciplinary report. He informed Mr.
DeWalt that he was receiving the disciplinary
report because he had filed a grievance against
Officer Young and because correctional officers
"stick together." R.11. As Mr. DeWalt walked
away, he told Officer Smith that his actions were
unprofessional, whereupon Officer Smith jumped up
and shoved Mr. DeWalt toward the doorway and into
the door frame. Mr. DeWalt suffered bruising on
his back where he hit the door frame; the prison
medical staff, however, did not note any visible
injury and did not order X-rays.

Throughout this time period, Mr. DeWalt wrote
several letters to Dixon’s warden, Lamark Carter,
complaining about several of the incidents
described above. Mr. Carter offered Mr. DeWalt a
job in another part of the prison; however, it
appears that Mr. Carter took no other actions.

Liberally construed, see Hudson v. McHugh, 148
F.3d 859, 864 (7th Cir. 1998), Mr. DeWalt’s
complaint alleges the following claims: (1) that
Officer Young and Mr. Murray violated the Eighth
and Fourteenth Amendments by using racial
epithets and making racially derogatory and
sexually explicit statements when speaking to Mr.
DeWalt; (2) that Officer Young, acting alone and
in conspiracy with Ms. Biester, violated the
First and Fourteenth Amendments by taking various
actions to have Mr. DeWalt removed from his job
at the prison school because of his race and
because he had filed a grievance against Officer
Young; (3) that Officer Young, Ms. Biester, and
Officer Smith violated the First and Fourteenth
Amendments by retaliating against Mr. DeWalt for
complaining about Officer Young’s actions; (4)
that Officer Smith violated the Eighth Amendment
by using excessive force to impose illegal
punishment; (5) that Mr. Carter violated the
First, Eighth, and Fourteenth Amendments by
failing to remedy or prevent the allegedly
illegal actions taken by Officer Young, Ms.
Biester, and Mr. Murray; and (6) that Officer
Smith violated the Fourteenth Amendment by
fabricating disciplinary charges. The district
court, addressing some but not all these claims,
dismissed Mr. DeWalt’s complaint sua sponte in
its entirety under 28 U.S.C. sec.
1915(e)(2)(B)(ii) for failure to state a claim.
Mr. DeWalt now appeals./2

II
ANALYSIS
A. Standard of Review

This court has not yet identified the proper
standard of review for dismissals under 28 U.S.C.
sec. 1915(e)(2)(B)(ii), which provides that a
district court must dismiss the case of a
plaintiff proceeding in forma pauperis if the
action "fails to state a claim on which relief
may be granted." See Mathis v. New York Life Ins.
Co., 133 F.3d 546, 547 (7th Cir. 1998) (per
curiam) (noting that the question of the proper
standard of review is an open one in this
circuit). It is well-established, however, that
we review de novo dismissals for failure to state
a claim under Federal Rule of Civil Procedure
12(b)(6). We see no reason to treat dismissals
under sec. 1915(e)(2)(B)(ii) differently. Cf.
Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir.
1999) (reaching the same conclusion with respect
to dismissals for failure to state a claim under
28 U.S.C. sec. 1915A(b)(1)). Moreover, the
circuits that have addressed this issue agree
that de novo review is the proper standard of
review. See Perkins v. Kansas Dep’t of
Corrections, 165 F.3d 803, 806 (10th Cir. 1999);
Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (per curiam), cert. denied, 525 U.S.
1154 (1999); McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997); Mitchell v. Farcass,
112 F.3d 1483, 1486 (11th Cir. 1997).
Accordingly, we conclude that dismissals under
sec. 1915(e) (2)(B)(ii) will be reviewed de novo
in the same manner as dismissals under Rule
12(b)(6).

In evaluating whether a plaintiff’s complaint
fails to state a claim, a court must take the
plaintiff’s factual allegations as true and draw
all reasonable inferences in his favor. See
Strasburger v. Board of Educ., 143 F.3d 351, 359
(7th Cir. 1998), cert. denied, 525 U.S. 1069
(1999). A complaint should be dismissed for
failure to state a claim only if "no relief could
be granted ’under any set of facts that could be
proved consistent with the allegations.’" Nance
v. Vieregge, 147 F.3d 589, 590 (7th Cir.)
(quoting Hishon v. King & Spalding, 467 U.S. 69,
73 (1984)), cert. denied, 525 U.S. 973 (1998).
Accordingly, a plaintiff need not plead
particular legal theories or particular facts in
order to state a claim. See Bennett v. Schmidt,
153 F.3d 516, 518-19 (7th Cir. 1998); Nance, 147
F.3d at 590. All that is required is "a short and
plain statement of the claim that will give the
defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests."
Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163,
168 (1993) (citations and internal quotation
marks omitted); see Fed. R. Civ. P. 8(a)(2); Kyle
v. Morton High Sch., 144 F.3d 448, 454 (7th Cir.
1998).

B. Racist and Sexually Explicit
Statements

Although the district court did not address
specifically Mr. DeWalt’s allegations concerning
Officer Young’s and Mr. Murray’s use of sexually
explicit language, the district court did explain
its rejection of Mr. DeWalt’s claim regarding
their use of racially derogatory language. The
court reasoned that such language does not
deprive a person of any constitutionally
protected rights.

Precedent from this circuit as well as others
supports the district court’s conclusion. The use
of racially derogatory language, while
unprofessional and deplorable, does not violate
the Constitution. See Patton v. Przybylski, 822
F.2d 697, 700 (7th Cir. 1987); accord Williams v.
Bramer, 180 F.3d 699, 706 (5th Cir.), clarified
on rehearing, 186 F.3d 633 (5th Cir. 1999).
Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive
a prisoner of a protected liberty interest or
deny a prisoner equal protection of the laws./3
See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.
1987) (per curiam) (Eighth Amendment); Patton,
822 F.2d at 700 (due process); Williams, 180 F.3d
at 705-06 (equal protection). See generally
Shabazz v. Cole, 69 F. Supp. 2d 177, 199-201 (D.
Mass. 1999) (collecting cases). Accordingly, Mr.
DeWalt’s claims that Officer Young and Mr. Murray
violated his Eighth and Fourteenth Amendment
rights by directing racially derogatory and
sexually explicit language at him were properly
dismissed.

C. Removal of Mr. DeWalt from his Job
The district court rejected Mr. DeWalt’s claim
concerning the loss of his job at the prison
school on two grounds. First, the court noted
that Illinois prisoners have no right to hold a
particular prison job, or any job at all for that
matter. It concluded, therefore, that Mr. DeWalt
could not base a sec. 1983 claim on the loss of
his prison job. Alternatively, the district court
held that Mr. DeWalt could not pursue a sec. 1983
damages claim based on the loss of his prison job
because Edwards v. Balisok, 520 U.S. 641 (1997),
precludes damages actions challenging
disciplinary sanctions that have not been
overturned through some other means.

1.

In ruling that Mr. DeWalt could not base a sec.
1983 claim on the loss of a job to which he had
no entitlement, the district court collapsed an
important distinction between procedural due
process claims and other sorts of constitutional
claims. To establish a procedural due process
violation, a prisoner must demonstrate that the
state deprived him of a liberty or property
interest created either by state law or the Due
Process Clause itself. See Sandin v. Conner, 515
U.S. 472, 483-84 (1995) (summarizing Supreme
Court precedent on procedural due process claims
by prisoners); Vitek v. Jones, 445 U.S. 480, 491-
94 (1980) (recognizing liberty interest arising
directly from Due Process Clause); Wolff v.
McDonnell, 418 U.S. 539, 555-57 (1974)
(recognizing that prisoners might enjoy
procedural due process protections and that state
law could create protected liberty interests);
Board of Regents v. Roth, 408 U.S. 564, 576-77
(1972) (discussing the property interest
requirement for procedural due process claims).
As the district court recognized, this court, in
Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991)
(en banc), determined that neither Illinois law
nor the Due Process Clause itself affords
prisoners a liberty or property interest in their
jobs. Accordingly, to the extent that Mr. DeWalt
alleges a procedural due process claim, the
district court was correct to dismiss the claim.

Mr. DeWalt alleges more than a procedural due
process claim, however. He also alleges a
Fourteenth Amendment equal protection claim and a
First Amendment retaliation claim, to which the
liberty/property interest requirement for
procedural due process claims does not apply. See
Sandin, 515 U.S. at 487 n.11; Higgason v. Farley,
83 F.3d 807, 810 (7th Cir. 1996) (per curiam).
For example, if prison officials were to allocate
T.V. time, visitation privileges, prison jobs, or
any of the other privileges prisoners enjoy, on
an otherwise illegal or discriminatory basis,
their actions would be unconstitutional even
though such privileges do not constitute liberty
or property interests. See, e.g., Babcock v.
White, 102 F.3d 267, 274-75 (7th Cir. 1996)
(retaliatory transfer); Black v. Lane, 824 F.2d
561, 562 (7th Cir. 1987) (racial discrimination
with respect to prison job); Bentley v. Beck, 625
F.2d 70, 70-71 (5th Cir. Unit B 1980) (per
curiam) (same). Accordingly, the fact that Mr.
DeWalt does not have a liberty or property
interest in his former prison job does not
foreclose his equal protection and retaliation
claims arising from the loss of that job.

2.

Thus, we are faced squarely with the issue
whether Mr. DeWalt may bring his sec. 1983 action
(based on his equal protection and retaliation
claims) when the underlying disciplinary sanction
has not been overturned or invalidated. Today, we
join the Second Circuit and hold that a prisoner
may bring a sec. 1983 claim "challenging the
conditions of [his] confinement where [he] is
unable to challenge the conditions through a
petition for federal habeas corpus." Jenkins v.
Haubert, 179 F.3d 19, 21 (2d Cir. 1999).

a. Statutory framework
 Because Mr. DeWalt’s claim involves both sec.
1983 and the federal habeas statute, we begin our
analysis by looking at both statutes. Section
1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in any action at law, suit in
equity, or other proper proceeding for redress .
. . .

42 U.S.C. sec. 1983. By its terms, sec. 1983 does
not require a plaintiff to exhaust state remedies
before bringing a cause of action. This
requirement, however, was imposed statutorily for
prisoners in 1996, when Congress enacted the
Prison Litigation Reform Act ("PLRA"). That Act
prohibits a prisoner from bringing a sec. 1983
action "until such administrative remedies as are
available are exhausted." 42 U.S.C. sec.
1997e(a).

The federal habeas statute, 28 U.S.C. sec. 2254,
provides an avenue to challenge unconstitutional
confinement by state authorities. It states in
relevant part:

(a) The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United
States.

(b)(1) An application for a writ of habeas
corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be
granted unless it appears that--

(A) the applicant has exhausted the remedies
available in the courts of the State; or

(B)(i) there is an absence of available State
corrective process; or

(ii) circumstances exist that render such
process ineffective to protect the rights of the
applicant.

28 U.S.C. sec. 2254.

A tension between these two statutes arises when
a prisoner, one "in custody," challenges an
aspect of his confinement not through the tool of
habeas corpus, but through a sec. 1983 action,
either for injunctive relief or damages. Because
the statutes do not address their overlap and
resulting conflict, the task of discerning
congressional intent has fallen on the courts. We
turn now to that case law.

b. Supreme Court case law

The Supreme Court first considered whether sec.
1983 could be used to bring actions relating to a
plaintiff’s conviction or sentence in Preiser v.
Rodriguez, 411 U.S. 475 (1973). In Preiser,
several prisoners sought injunctive relief under
sec. 1983 to have restored good time credits that
they had lost as a result of a prison
disciplinary action. The Court concluded that
sec. 1983 could not be used to pursue such relief
because Congress had designated the federal
habeas statute as the exclusive federal remedy
for state prisoners who challenge the fact or
duration of their confinement and seek immediate
or speedier release. See id. at 489-90.
"Congress," it stated, "has determined that
habeas corpus is the appropriate remedy for state
prisoners attacking the validity of the fact or
length of their confinement, and that specific
determination must override the general terms of
sec. 1983." Id. at 490. The Court also clarified
when sec. 1983 relief would be available to
prisoners: "[A] sec. 1983 action is a proper
remedy for a state prisoner who is making a
constitutional challenge to the conditions of his
prison life, but not to the fact or length of his
custody." Id. at 499.

Just over twenty years later, in Heck v.
Humphrey, 512 U.S. 477 (1994), the Supreme Court
took up a question left unanswered by Preiser:
whether a plaintiff may bring a sec. 1983 claim
for damages that challenges the underlying
conviction or sentence. The Court analogized such
claims to malicious prosecution actions and
opined that a sec. 1983 action should not be
available to challenge a conviction or sentence
unless the conviction or sentence already has
been invalidated. See id. at 484-87. Accordingly,
the Court held:

[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or
for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, a sec. 1983 plaintiff must
prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal
authorized to make such determination, or called
into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. sec. 2254. A
claim for damages bearing that relationship to a
conviction or sentence that has not been so
invalidated is not cognizable under sec. 1983.

Id. at 486-87 (footnote omitted).

In his concurring opinion, Justice Souter noted
the difficulty presented by such a broad reading
of Heck. However, he concluded that the Court’s
opinion could be read "as saying nothing more
than that now, after enactment of the habeas
statute and because of it, prison inmates seeking
sec. 1983 damages in federal court for
unconstitutional conviction or confinement must
satisfy a requirement analogous to the malicious-
prosecution tort’s favorable-termination
requirement." 512 U.S. at 500. "That," continued
Justice Souter,

would be a sensible way to read the opinion, in
part because the alternative would needlessly
place at risk the rights of those outside the
intersection of sec. 1983 and the habeas statute,
individuals not "in custody" for habeas purposes.
If these individuals . . . were required to show
the prior invalidation of their convictions or
sentences in order to obtain sec. 1983 damages
for unconstitutional conviction or imprisonment,
the result would be to deny any federal forum for
claiming a deprivation of federal rights to those
who cannot first obtain a favorable state ruling.
The reason, of course, is that individuals not
"in custody" cannot invoke federal habeas
jurisdiction, the only statutory mechanism
besides sec. 1983 by which individuals may sue
state officials in federal court for violating
federal rights. That would be an untoward result.

Id./4

Edwards v. Balisok, 520 U.S. 641 (1997),
extended the Heck rule to sec. 1983 damages
claims challenging the loss of good time credits
in prison disciplinary actions (when the fact or
duration of confinement was implicated). Making
no distinction between claims challenging a
conviction or sentence and claims challenging
prison disciplinary decisions, the Court
concluded that a state prisoner’s claim for
damages based on allegations that necessarily
implied the invalidity of the punishment imposed
(i.e., loss of good time credits) was not
cognizable under sec. 1983 because the prison
disciplinary decision had not been invalidated.
See id. at 648.

Spencer v. Kemna, 523 U.S. 1 (1998), is the
Supreme Court’s most recent pronouncement in this
arena. In that case, the Court ruled that the
expiration of a habeas petitioner’s sentence
rendered moot a challenge to the revocation of
his parole since the action no longer presented
an Article III case or controversy. Concerned
with the fact that, as a consequence of the
Court’s ruling, the petitioner may have lacked a
remedy for any unconstitutional actions taken in
revoking his parole, the concurring and
dissenting Justices in Spencer took the
opportunity to clarify their positions regarding
the scope of the Heck rule. Justice Souter,
joined by Justices O’Connor, Ginsburg, and
Breyer, wrote: "The better view, then, is that a
former prisoner, no longer ’in custody,’ may
bring a sec. 1983 action establishing the
unconstitutionality of a conviction or
confinement without being bound to satisfy a
favorable-termination requirement that it would
be impossible as a matter of law for him to
satisfy." Id. at 990 (Souter, J., concurring).
Justice Ginsburg reiterated her agreement in her
separate concurrence: "I have come to agree with
Justice Souter’s reasoning: Individuals without
recourse to the habeas statute because they are
not ’in custody’ (people merely fined or whose
sentences have been fully served, for example)
fit within sec. 1983’s ’broad reach.’" Id.
(Ginsburg, J., concurring). Justice Stevens also
accepted Justice Souter’s position: "Given the
Court’s holding that petitioner does not have a
remedy under the habeas statute, it is perfectly
clear, as Justice Souter explains, that he may
bring an action under sec. 1983." Id. at 992 n.8
(Stevens, J., dissenting).

c. Court of Appeals case law

In Jenkins v. Haubert, 179 F.3d. 19 (2d Cir.
1999), the Second Circuit faced the task of
applying Preiser and its progeny to a prisoner’s
challenge to conditions of his confinement, but
not its fact or duration. The prisoner in Jenkins
claimed violations of his constitutional rights
with respect to prison disciplinary hearings. As
a result of the hearings, Jenkins was sentenced
to thirty days "keeplock," a type of
administrative detention in which the prisoner is
confined to his cell. Jenkins then filed a sec.
1983 action challenging his hearings. The
district court held that Jenkins’ sec. 1983
action was not cognizable under the Supreme
Court’s decision in Edwards because the
disciplinary penalty had not been overturned. The
Second Circuit reversed. After carefully
reviewing both the statutes and the Supreme Court
case law, the Second Circuit concluded that
"nothing in Supreme Court precedent requires that
the Heck rule be applied to a challenge by a
prisoner to a term of disciplinary segregation.
Moreover, we find that to apply the Heck rule in
such circumstances would contravene the
pronouncement of five Justices that some federal
remedy--either habeas corpus or sec. 1983-- must
be available." Id. at 27.

d. Application

We believe the Second Circuit appropriately
reconciled the statutory schemes and therefore
adopt the reasoning of the Second Circuit as it
applies to Mr. DeWalt’s claims regarding his
conditions of confinement. First, we agree that
the Supreme Court never has addressed whether
Heck’s favorable-termination requirement bars a
prisoner’s challenge under sec. 1983 to an
administrative sanction that does not affect the
length of confinement. In Preiser, the Court
clearly limited its holding to actions involving
the "heart" of habeas--the fact or duration of
imprisonment. The Court in Heck characterized the
case as lying at "the intersection" of sec. 2254
and sec. 1983, and held that "[e]ven a prisoner
who has fully exhausted available state remedies"
could not bring a cause of action under sec. 1983
"unless . . . the conviction or sentence is . . .
invalidated . . . by the grant of a writ of
habeas corpus." Id. at 489. The court in Edwards
simply extended Heck to administrative
proceedings that affect the length of confinement
and, therefore, for which habeas is available.
Finally, Spencer speaks only to the effect of
subsequent release on a habeas petition; the
discussion of sec. 1983 is limited to dictum and
the concurring opinions. The Court simply never
has "announced that the Heck rule bars a
prisoner’s challenge under sec. 1983 to an
administrative or disciplinary sanction that does
not affect the overall length of confinement."
Jenkins, 179 F.3d at 27.

Furthermore, we, like the Second Circuit in
Jenkins, are hesitant to apply the Heck rule in
such a way as would contravene the pronouncement
of five sitting Justices. See id. The concurring
and dissenting opinions in Spencer reveal that
five justices now hold the view that a sec. 1983
action must be available to challenge
constitutional wrongs where federal habeas is not
available. Although this perspective originally
had been a minority view, it is not after
Spencer. Justice Ginsburg has "come to agree with
Justice Souter’s reasoning: Individuals without
recourse to the habeas statute because they are
not ’in custody’ (people merely fined or whose
sentences have been fully served, for example)
fit within sec. 1983’s ’broad reach.’" Spencer,
523 U.S. at 21 (Ginsburg, J., concurring)./5

In the absence of binding Supreme Court
precedent, and in light of the guidance offered
by the concurrences in Heck and Spencer, we turn
to Mr. DeWalt’s claims. Unlike the plaintiffs in
Preiser, Heck, and Edwards, Mr. DeWalt’s case
does not "lie at the intersection" of sections
2254 and 1983. Mr. DeWalt does not challenge the
fact or duration of his confinement, but only a
condition of his confinement--the loss of his
prison job. Consequently, under our precedent,
Mr. DeWalt may not pursue a habeas action. See
Pischke v. Litsher, 178 F.3d 497, 500 (7th Cir.)
(holding that habeas is the proper vehicle for
presenting a claim "if but only if the prisoner
is seeking to ’get out’ of custody in some
meaningful sense"), cert. denied, 120 S. Ct. 380
(1999); Graham v. Broglin, 922 F.2d 379, 381 (7th
Cir. 1991) (stating that if a prisoner is
challenging "merely the conditions of his
confinement his proper remedy is under the civil
rights law"). Because federal habeas relief is
not available to Mr. DeWalt, the language of sec.
1983 and the Court’s decision in Preiser dictate
that he be able to proceed on his sec. 1983
action. In Preiser, the Court held that the more
specific federal habeas statute must necessarily
supersede the more general sec. 1983 statute to
effectuate "explicit congressional intent." 411
U.S. at 489; see also Heck, 512 U.S. at 497-98
(Souter, J., concurring). In this case, where
habeas is not applicable, the requirements of the
habeas statute do not supersede the explicit
right to proceed under sec. 1983. Consequently,
Mr. DeWalt may proceed with his sec. 1983 action
without first seeking to invalidate the state
court action through habeas.

We are aware that our decisions in Anderson v.
County of Montgomery, 111 F.3d 494 (7th Cir.
1997), and Stone-Bey v. Barnes, 120 F.3d 718 (7th
Cir. 1997), precluded plaintiffs from pursuing
sec. 1983 actions when federal habeas was not
available or when the prisoner had not first
availed himself of that option. However, we note
that both of these cases preceded Spencer.
Indeed, our more recent cases have questioned the
viability of Anderson and Stone-Bey in light of
the Justices’ reluctance to apply the Heck rule
to situations in which habeas relief is not
available. See Hoard v. Reddy, 175 F.3d 531, 533
(7th Cir.) ("[T]here is probably an exception to
the rule of Heck for cases in which no route
other than a damages action under section 1983 is
open to the person to challenge his
conviction."), cert. denied, 120 S. Ct. 411
(1999); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th
Cir. 1999) ("With Carr unable to get the
disciplinary sanction reversed, five Justices
would not consider the sanction a bar to a
section 1983 suit even though that suit calls
into question the validity of the sanction.");
Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.
1998) (questioning whether Heck would preclude a
sec. 1983 action to review placement in
segregation given that "few states afford
collateral review of prison disciplinary
hearings"). Our decision today necessitates that
we overrule Anderson and Stone-Bey to the extent
they take the contrary position./6

To summarize, we hold today that the
unavailability of federal habeas relief does not
preclude a prisoner from bringing a sec. 1983
action to challenge a condition of his
confinement that results from a prison
disciplinary action.

3.

Having determined that a dismissal is not
justified on either of the grounds the district
court gave for dismissing Mr. DeWalt’s claims
regarding the loss of his prison job, we turn to
whether Mr. DeWalt’s allegations state a claim on
which relief can be granted. As noted above, Mr.
DeWalt alleges that Officer Young, with help from
Ms. Biester, worked to remove him from his prison
job because of his race and because he filed a
grievance against Officer Young.

We consider Mr. DeWalt’s allegations of racial
discrimination first. Unless it is narrowly
tailored to serve a compelling state interest,
racial discrimination by state actors violates
the Equal Protection Clause of the Fourteenth
Amendment. See City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 493-94 (1989). A plaintiff
asserting an equal protection violation must
establish that a state actor has treated him
differently than persons of a different race and
that the state actor did so purposefully. See
Washington v. Davis, 426 U.S. 229, 239-42 (1976);
Indianapolis Minority Contractors Ass’n, Inc. v.
Wiley, 187 F.3d 743, 752 (7th Cir. 1999).

Although his complaint is less than pellucid,
Mr. DeWalt certainly alleges that he was
discriminated against because of his race, and
nothing in his complaint negates the possibility
that he could establish an equal protection
violation. We conclude that Mr. DeWalt’s
allegation that he was removed from his job
because of his race states a claim on which
relief can be granted.

We come to the same conclusion with regard to
Mr. DeWalt’s allegations of retaliation. An act
taken in retaliation for the exercise of a
constitutionally protected right violates the
Constitution. See Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977);
Matzker v. Herr, 748 F.2d 1142, 1150 (7th Cir.
1984), limited on other grounds, Salazar v. City
of Chicago, 940 F.2d 233, 240-41 (7th Cir. 1991).
Prisoners have a constitutional right of access
to the courts that, by necessity, includes the
right to pursue the administrative remedies that
must be exhausted before a prisoner can seek
relief in court. See Preiser, 411 U.S. at 493.
Thus, a prison official may not retaliate against
a prisoner because that prisoner filed a
grievance. See Babcock, 102 F.3d at 274-75;
Black, 22 F.3d at 1402-03; see also Higgason, 83
F.3d at 810 (retaliation for filing lawsuit);
Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir.
1987) (per curiam) (same). This is so even if the
adverse action does not independently violate the
Constitution. See Babcock, 102 F.3d at 275. "To
state a cause of action for retaliatory
treatment, a complaint need only allege a
chronology of events from which retaliation may
be inferred." Black, 22 F.3d at 1399 (citations
and internal quotation marks omitted).

The allegations made in Mr. DeWalt’s complaint
certainly present a chronology from which
retaliation can be inferred. According to Mr.
DeWalt, it was only shortly after he filed a
grievance against Officer Young that Officer
Young and Ms. Biester acted to have him removed
from his prison job. Moreover, Mr. DeWalt can
point to statements by two other prison staff
members admitting that there was a concerted
effort by certain prison staff, including Officer
Young and Ms. Biester, to retaliate against Mr.
DeWalt. Thus, we conclude that Mr. DeWalt’s
allegation that he was removed from his job in
retaliation for filing a grievance states a claim
on which relief can be granted.

D. Retaliation Against Mr. DeWalt for
Reporting Misconduct

Mr. DeWalt also alleges that Officer Young, Ms.
Biester, and Officer Smith took various other
actions (filing false disciplinary reports,
encouraging others to do the same, attempting to
have Mr. DeWalt transferred to another prison) in
retaliation for his filing of a grievance against
Officer Young. The district court, however, did
not specifically consider these allegations. Our
review of the allegations persuades us that Mr.
DeWalt has stated sufficiently a claim for
retaliation.

Again, Mr. DeWalt’s allegations adequately set
forth a chronology of events from which
retaliation may be inferred. See Black, 22 F.3d
at 1399. To begin with, the alleged retaliatory
actions began almost immediately after Mr. DeWalt
filed the grievance against Officer Young,
suggesting a causal relationship. Likewise, Mr.
DeWalt’s claim that a prison guard informed him
that several staff members, including Officer
Young and Ms. Biester, were plotting to report
him for disciplinary violations whenever possible
also supports his claim. The same is true of Mr.
DeWalt’s allegation that, on several occasions in
the weeks and months after he filed the grievance
against Officer Young, he received unjustified
disciplinary reports from other staff members,
culminating in the incident involving Officer
Smith in November. That incident, too, suggests
Mr. DeWalt was the subject of retaliation in that
Officer Smith allegedly told Mr. DeWalt that he
was giving him a disciplinary report precisely
because Mr. DeWalt had filed a grievance against
Officer Young. Accordingly, we conclude that it
would be improper to dismiss Mr. DeWalt’s
retaliation claims for failure to state a claim.

E. Officer Smith’s Use of Force

The district court dismissed Mr. DeWalt’s
excessive force claim because Mr. DeWalt’s
complaint did not establish that Officer Smith’s
use of force (shoving Mr. DeWalt into a door
frame) was motivated by something other than a
good faith effort to maintain or restore
discipline. Accordingly, the court reasoned, Mr.
DeWalt had failed to show that the force Officer
Smith employed was excessive. We agree that Mr.
DeWalt’s excessive force claim must be dismissed,
though for slightly different reasons than those
articulated by the district court.

The Cruel and Unusual Punishments Clause of the
Eighth Amendment prohibits the "unnecessary and
wanton infliction of pain" on prisoners. See
Hudson v. McMillian, 503 U.S. 1, 5 (1992);
Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).
What constitutes an "unnecessary and wanton
infliction of pain," however, "varies according
to the nature of the alleged constitutional
violation." Hudson, 503 U.S. at 5. In excessive
force cases, "the core judicial inquiry" is
"whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously
and sadistically to cause harm." Id. at 6-7. A
court should examine a variety of factors in
conducting this inquiry, including the need for
an application of force, the relationship between
that need and the force applied, the threat
reasonably perceived by the responsible officers,
the efforts made to temper the severity of the
force employed, and the extent of the injury
suffered by the prisoner. See id. at 7. With
regard to the last of these factors, while
significant injury is not required, a claim
ordinarily cannot be predicated upon a de minimis
use of physical force. See id. at 9-10. Thus, not
every push or shove by a prison guard violates a
prisoner’s constitutional rights. See id. at 9
(citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)).

Officer Smith’s simple act of shoving Mr. DeWalt
qualifies as the kind of de minimis use of force
that does not constitute cruel and unusual
punishment. Compare Lunsford v. Bennett, 17 F.3d
1574, 1582 (7th Cir. 1994) (pouring a bucket of
water on prisoner and causing the bucket to hit
him in the head characterized as de minimis),
with Thomas v. Stalter, 20 F.3d 298, 301-02 (7th
Cir. 1994) (punching a prisoner with a closed
fist, while held down by other officers,
qualified as more than de minimis). The shove was
a single and isolated act, unaccompanied by
further uses of force. Moreover, the bruising Mr.
DeWalt allegedly suffered does not appear to have
been particularly serious. Although we certainly
do not condone the unjustified use of force by
prison guards, Mr. DeWalt’s allegations regarding
Officer Smith’s use of force against him fall
short of what is required to state a claim for
excessive force under the Eighth Amendment.
Accordingly, the district court did not err in
dismissing Mr. DeWalt’s excessive force claim.

F. Warden Lamark Carter

The district court did not specifically address
Mr. DeWalt’s claim against Mr. Carter, but it is
clear that his claim against Mr. Carter was
properly dismissed. Mr. DeWalt’s claim, that Mr.
Carter failed to remedy or prevent the illegal
actions taken by Officer Young, Ms. Biester, and
Mr. Murray, is, at bottom, a claim that Mr.
Carter failed to protect Mr. DeWalt from, and
therefore condoned, the discrimination and
retaliation he allegedly experienced. See Gentry
v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995);
see also Bohen v. City of East Chicago, Ind., 799
F.2d 1180, 1189-92 (7th Cir. 1986) (Posner, J.,
concurring)./7

To succeed on his claims, Mr. DeWalt must prove
that Mr. Carter acted intentionally, or at least
with deliberate indifference. See Babcock, 102
F.3d at 275; Nabozny, 92 F.3d at 453-54. In his
complaint, however, Mr. DeWalt specifically
alleges that Mr. Carter acted negligently.
Negligence, even gross negligence, does not rise
to the level of deliberate indifference, see
Nabozny, 92 F.3d at 454, and therefore does not
satisfy the state of mind requirement for either
of the constitutional violations Mr. DeWalt
alleges. Cf. Farmer v. Brennan, 511 U.S. 825,
833-38 (1994) (discussing deliberate indifference
in the Eighth Amendment context). In fact, an
allegation of negligence is inconsistent with the
claims Mr. DeWalt pursues and will support a
dismissal for failure to state a claim. Cf.
Antonelli v. Sheahan, 81 F.3d 1422, 1429 (7th
Cir. 1996). Accordingly, because Mr. DeWalt
alleges Mr. Carter acted negligently, Mr.
DeWalt’s claim against Mr. Carter was properly
dismissed./8
Conclusion

For the foregoing reasons, we affirm in part and
reverse and remand in part the judgment of the
district court.

AFFIRMED in part, REVERSED and REMANDED in part

/* After an examination of the briefs and the
record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the
briefs and the record. See Fed. R. App. P.
34(a)(2). Only the appellant has filed a brief
because this court previously had granted a
motion for an order of non-involvement based upon
lack of service in the trial court. The
defendants-appellees further declined our
invitation to submit a brief.

/1 The facts here and throughout the opinion are
taken from Mr. DeWalt’s complaint and materials
attached to it. We accept them as true and
construe them in the light most favorable to Mr.
DeWalt. See Hentosh v. Herman M. Finch Univ. of
Health Sciences/ The Chicago Med. Sch., 167 F.3d
1170, 1173 (7th Cir. 1999).

/2 Mr. DeWalt has abandoned his claim that Officer
Smith fabricated a disciplinary report because he
failed to address it in his appellate brief. See
Duncan v. State of Wisconsin Dep’t of Health &
Family Servs., 166 F.3d 930, 934 (7th Cir. 1999).
We also decline to review an Eighth Amendment
claim Mr. DeWalt raises for the first time on
appeal regarding the alleged failure of Officer
Smith and another officer to provide him with
medical care after Officer Smith shoved him. See
Weigel v. Target Stores, 122 F.3d 461, 464 (7th
Cir. 1997).

/3 This does not mean, however, that the use of
racially derogatory language is without legal
significance. Such language is strong evidence of
racial animus, an essential element of any equal
protection claim. See Williams, 180 F.3d at 706;
Bell v. City of Milwaukee, 746 F.2d 1205, 1259
(7th Cir. 1984). Thus, although the use of
racially derogatory language, by itself, does not
violate the Constitution, it can be quite
important evidence of a constitutional violation.
/4 Justice Scalia responded to Justice Souter by
stating that "the principle barring collateral
attacks--a longstanding and deeply rooted feature
of both the common law and our own jurisprudence-
-is not rendered inapplicable by the fortuity
that a convicted criminal is no longer
incarcerated." Id. at 490 n.10. However, "the
fortuity" of release was not at issue in Heck.

/5 We note that the Supreme Court has expressly
disapproved of the practice of relying on
statements in separate opinions to determine
whether a case has been overruled. See Agostini
v. Felton, 521 U.S. 203, 217 (1997); cf. State
Oil v. Khan, 522 U.S. 3, 20 (approving this
court’s decision not to treat a case as overruled
despite the weakening of its foundation). Here,
however, we rely on separate opinions not to
overrule precedent, but to help guide us in
deciding an open question.

/6 This opinion has been circulated to all judges in
active service under the provisions of Circuit
Rule 40(e). No judge in active service favored a
rehearing en banc.

/7 Mr. DeWalt’s claim encompasses two distinct
constitutional violations. On the one hand, to
the extent Mr. Carter failed to protect Mr.
DeWalt from discrimination, Mr. DeWalt’s claim is
an equal protection claim requiring him to show
that Mr. Carter purposefully discriminated
against him based on his membership in a
definable class, namely, based on his race. See
Indianapolis Minority Contractors, 187 F.3d at
752; Nabozny v. Podlesny, 92 F.3d 446, 453-54
(7th Cir. 1996). On the other hand, to the extent
Mr. Carter failed to protect Mr. DeWalt from
retaliation, Mr. DeWalt’s claim is a retaliation
claim requiring him to prove that Mr. Carter
purposefully retaliated against him because he
exercised a constitutionally protected right,
namely, because he filed grievances complaining
of his mistreatment. See Mt. Healthy, 429 U.S. at
287; Babcock, 102 F.3d at 275.

/8 Mr. DeWalt also suggests that Mr. Carter failed
to remedy or protect him from certain Eighth
Amendment violations by Officer Young, Ms.
Biester, and Mr. Murray. Because Mr. DeWalt
cannot state an Eighth Amendment claim against
any of these defendants, however, we will not
address this possible claim. In any event, such a
claim would fail for the same reason his other
claims against Mr. Carter fail. See Farmer, 511
U.S. at 833-38 (negligence insufficient to state
Eighth Amendment claim).