In the
United States Court of Appeals
For the Seventh Circuit
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No. 15-2029
WILLIE HENDERSON,
Plaintiff-Appellant,
v.
KRISTA WILCOXEN, et al.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Central District of Illinois.
No. 3:14-cv-03327-CSB — Harold A. Baker, Judge.
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SUBMITTED SEPTEMBER 2, 2015— DECIDED OCTOBER 5, 2015
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Before WOOD, Chief Judge, and POSNER and ROVNER, Cir-
cuit Judges.
POSNER, Circuit Judge. After serving a term in an Illinois
state prison for a sex crime, the plaintiff was committed to
the Rushville (Illinois) Treatment and Detention Facility,
pursuant to the state’s Sexually Violent Persons Commit-
ment Act, 725 ILCS 207, a civil, not a criminal, commitment
statute.
2 No. 15-2029
The plaintiff had a job in the Facility’s dietary services
department. He alleges, in this suit under 42 U.S.C. § 1983
against four members of the department’s staff, that he was
fired in retaliation for having filed previous lawsuits against
members of the staff. The firing was formally based on dis-
ciplinary charges against him, but he alleges that they were
trumped-up charges. As required by 28 U.S.C. § 1915(e)(2),
the district judge screened the complaint at the outset of the
case to determine whether it “fail[ed] to state a claim upon
which relief may be granted” by a federal court.
§ 1915(e)(2)(B)(ii). He ruled that the complaint did fail to
state a claim, and dismissed the suit with prejudice.
He announced the dismissal in an order captioned
“MERIT REVIEW AND CASE MANAGEMENT ORDER,” in
which he said that he had dismissed Henderson’s initial
complaint because it “contained only conclusory allegations.
… When asked during the status hearing why the Plaintiff
thought retaliation was the motive for his firing, the Plaintiff
simply stated he had filed previous lawsuits and assumed
people knew about it.” Yet later in his order the judge noted
that the plaintiff had said he’d filed “many lawsuits” against
the members of the Facility’s staff, though not until his ap-
peal brief, filed with us, did he attach copies of the grievanc-
es that he’d filed with the Facility’s administrators before su-
ing (grievances that contain a good deal of detail about his
firing) or attempt to explain—in writing in any event—the
hardship that he contends the loss of his job in the dietary
services department had caused him.
The judge granted leave to file an amended complaint,
which the plaintiff did, but the judge dismissed it perempto-
rily, saying only that “the Plaintiff has simply repeated the
No. 15-2029 3
allegations he made both in his first complaint and during
the status [i.e., merit-review] hearing”—the hearing of
which, as we’re about to see, there is no record, and so no
basis for assessing the accuracy of the judge’s characteriza-
tion of the plaintiff’s remarks at the hearing.
The qualification “in writing in any event” in the preced-
ing paragraph flags the key problem with the district judge’s
handling of the case. As his reference to “merit review” in
the caption of his order hints, the judge screened the com-
plaint—that is, made an effort to determine at the outset of
the litigation whether it stated a claim within the meaning of
28 U.S.C. § 1915(e)(2)—by interviewing the plaintiff by tele-
phone. So far as we are able to determine, either no aural re-
cording or written transcript of the telephonic interview was
made, or if made retained, and the judge and the plaintiff
were the only parties to the call. It was, in short, an inquisi-
torial hearing. We don’t mean it was modeled on procedures
employed by the Inquisition. In modern usage an inquisito-
rial hearing is a hearing in open court in which the judge ex-
amines the parties to the suit rather than leaving examina-
tion to the lawyers, as in our legal system, which is adversar-
ial rather than inquisitorial. But what the district judge did
in this case went beyond the inquisitorial in its modern
sense, for it involved examining a party in secret, secrecy be-
ing secured by the absence of a transcript, or even a judge’s
or reporter’s notes. Modern inquisitorial proceedings in
countries such as France and Germany are not conducted in
camera. The merit-review hearing in this case was.
In Williams v. Wahner, 731 F.3d 731 (7th Cir. 2013), we re-
jected the use of ex parte telephonic interrogation as a meth-
od of screening complaints to determine whether they state a
4 No. 15-2029
claim. We didn’t mince words. We called the practice “un-
lawful.” 731 F.3d at 733. We said that 28 U.S.C. § 1915A(a), a
screening provision similar to § 1915(e)(2), does not “con-
template[] an oral examination of a party by the judge de-
signed to elicit answers that will enable the judge to resolve
contestable factual issues. If the validity of a claim depends
on the accuracy of the plaintiff's factual allegations, … and
their accuracy can’t be resolved without an oral hearing, it is
a matter to be resolved at trial, in conformity with the pro-
cedures that govern trials … .” Id. (citations omitted).
We expect that when this court declares a procedure em-
ployed by a district judge, or district judges, of this circuit
unlawful, the procedure will be abandoned. Regrettably, not
all the district judges have abandoned it.
We acknowledge possible confusion resulting from the
distinction we drew in Williams “between the judge’s resolv-
ing material factual disputes on the basis of his interrogation
of the plaintiff, and … his simply trying to determine what
the plaintiff is alleging. Many prisoners can explain them-
selves orally but not in writing. They may be illiterate in
English, or they may simply be such poor writers that they
can’t convey their thoughts other than orally. So we can un-
derstand a judge’s wanting to clarify an unclear pro se com-
plaint by interviewing the plaintiff. But the judge must be
careful not to allow so innocent an oral examination to molt
into a judicial cross-examination designed to elicit admis-
sions … .” Id. at 733–34. (The judge should however give se-
rious consideration to the alternative possibility, if he thinks
there is a glimmer of possible merit in a largely unintelligible
pro se complaint, of recruiting counsel for the limited pur-
pose of helping the prisoner express his complaint intelligi-
No. 15-2029 5
bly. Such limited-purpose appointments are not nearly so
burdensome for the lawyers concerned as a full-blown ap-
pointment; Counsel may even be able to accomplish the task
of clarifying the prisoner’s complaint without traveling, or
without traveling more than once or twice, to the prison or
the court.)
That was a fine line we drew in Williams, but a necessary
one, and one the judge in this case crossed in the wrong di-
rection. For there was no doubt about what the plaintiff was
alleging: that he had been retaliated against—fired on the
basis of trumped-up disciplinary charges—for having
brought civil-rights suits against members of the Facility’s
staff. The normal next step in the present case would have
been the filing by the defendants of an answer to the com-
plaint, followed either by further pleading or by discovery,
leading eventually to summary judgment proceedings or to
a trial. True, the complaint was barebones—maybe so thin
that it could have been dismissed without further ado. Cf.
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). We doubt
that, however, because in claiming to have been retaliated
against for filing repeated lawsuits against members of the
staff of the unit that he worked in he was making a plausible
claim, and further proceedings would be required to deter-
mine its validity. The judge is not to be criticized for giving
the plaintiff, unrepresented by counsel and unschooled in
legal procedure, an opportunity to amplify his complaint
orally, which might provide guidance for the next steps in
the lawsuit.
So far, so good. But without any record, no meaningful
appellate review of a decision based on a telephonic hearing
is possible. Cf. Budd v. Motley, 711 F.3d 840, 841–42 (7th Cir.
6 No. 15-2029
2013) (per curiam). It’s permissible for the judge to interview
a pro se detainee plaintiff in order to determine not whether
the plaintiff’s case is meritorious but simply what that case
is. But the judge must ensure that a transcript or recording of
the interview be made, lest an interview initially designed
just to clarify the allegations of the complaint have molted
into a merits hearing because the judge asked the plaintiff
not only what he was charging but also what evidence he
had to support the charge.
In dismissing Henderson’s complaint the judge also re-
lied on an outdated pleading standard for claims of retalia-
tion. He noted that Henderson had failed to allege that “his
protected activity was a ‘substantial and motivating factor’
in any of the adverse actions taken by the defendants.” For
support he cited Benson v. Cady, 761 F.2d 335, 342 (7th Cir.
1985), which states that “alleging merely the ultimate fact of
retaliation is insufficient.” But that standard was implicitly
rejected in Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002),
and explicitly in Walker v. Thompson, 288 F.3d 1005, 1008–09
(7th Cir. 2002), as being inconsistent with notice pleading.
REVERSED AND REMANDED