Donnie McElroy v. Gary Lopac

403 F.3d 855, 61 Fed. R. Serv. 3d 315, 2005 U.S. App. LEXIS 5611, 2005 WL 774921
Court of Appeals for the Seventh Circuit·Decided April 7, 2005·No. 03-3257·Published·Cited by 45 cases

Opinions

PER CURIAM.

Pro se state prisoner Donnie McElroy sued several prison officials under 42 U.S.C. § 1983, claiming that they falsely charged him with a disciplinary violation and fired him from his prison job in retaliation for exercising his First Amendment right to free speech. Screening the case under 28 U.S.C. § 1915A, the district court dismissed the complaint for failure to state a claim because, in the court’s view, McEl-roy did not “specify a specific event, chronology, or reason for retaliation.” We affirm, but for different reasons.

Accepting McElroy’s allegations as true, see DeWalt v. Carter, 224 F.3d 607, 610 n. 1 (7th Cir.2000), we recount the events of McElroy’s firing. Correctional Officer Gary Lopac, the “Superintendent of Industries,” supervised McElroy at his job in the sewing shop. Lopac announced on July 22, 2002, that he was forced to terminate the inmate workers because the sewing shop would be closing in about two weeks. Lopac explained that some of the inmate workers would “immediately” be transferred to the optical glass shop. Those who were not immediately transferred would be placed according to seniority on a wait list for available positions there. McElroy asked [857] whether inmate workers would receive “lay-in pay” while unemployed and waiting to be transferred to the optical glass shop. The inquiry upset Lopac, who responded that McElroy “was trying to be some type of ‘trouble-maker.’ ” According to McElroy, “it is widely known” that Lo-pac will try to “unjustly ‘fire’ ” an inmate he deems “a ‘trouble-maker’ or one who questions his personal policies.” Several days after the announcement, Lopac issued a memo announcing that no lay-in pay would be granted and initiating an additional hiring criteria precluding inmates losing their sewing jobs from transferring to the optical shop if they did not have four to seven years remaining on their sentences. This requirement excluded McElroy.

On August 1, 2002, before the sewing shop had ceased operations, McElroy chose not to attend the 6:30 a.m. breakfast for inmates assigned to jobs, electing instead to go directly from his housing unit to the sewing shop for his 7:00 a.m. shift. Even though the prison usually permitted inmates to skip breakfast, Correctional Officer Considine made McElroy wait to leave for his job until his unit’s “breakfast line was dismissed.” The line was held up and not dismissed until 7:20 a.m., and consequently McElroy arrived late to work. Correctional Officer Glover, who is apparently a supervisor at the sewing shop, ordered that McElroy be sent back to his unit and directed that he not “report back to work anymore.” Glover did not fire another inmate who was similarly delayed by the late dismissal of the unit’s breakfast fine.

Later that day, McElroy met with Officer Glover to explain why he was late for work. Glover explained that Officer Lopac had ordered him to fire McElroy and to write him up in a disciplinary report for “unauthorized movement,” “disobeying a direct order,” and “failure to report.” According to Glover, Lopac disliked McElroy because of the inquiry about lay-in pay and thus “did not want to hear any excuses” for McElroy’s tardiness.

In a hearing on the disciplinary charges, McElroy argued that Officer Lopac had ordered the disciplinary report in retaliation for questioning Lopac’s policy on lay-in pay. Lieutenant John Jennings, who presided over the disciplinary board, continued the proceedings so that he could interview Officers Lopac and Glover as well as other witnesses. After that investigation the board found McElroy not guilty and recommended that he be allowed to resume working but he was not reassigned to the optical glass'shop'ostensibly because he did not meet the criteria put 'in place by Lopac. According to McElroy, Lieutenant .Jennings privately told him that Officers Lopac and Glover admitted to firing McElroy because he made himself a “trouble-maker” by inquiring into Lopac’s “personal policies.”

After exhausting his administrative remedies, McElroy filed suit claiming that, in retaliation for inquiring about lay-in pay, Officers Lopac and Glover falsely charged him with disciplinary violations, fired him from his job, and refused to reassign him to the optical glass shop. Other’ prison officials, according to McElroy, shared culpability because they withheld Lieutenant Jennings’s written account of the two officers’ admissions.

The district court dismissed McElroy’s complaint without prejudice, giving him one month to amend. Reasoning that McElroy did not sufficiently allege a “specific event, chronology or reason for the retaliation,” the district court concluded that McElroy failed to state a claim of retaliation. When McElroy protested that his complaint already was sufficient, the district court responded by giving him one more month as a “final” deadline to file an [858] amended complaint. Choosing instead to stand on his original complaint and waive the invitation to amend it, see Alejo v. Heller, 328 F.3d 930, 935 (7th Cir.2003), McElroy filed a notice of appeal that became effective when the district court dismissed his case with prejudice after the deadline for amending had passed, see Albiero v. City of Kankakee, 122 F.3d 417, 420 (7th Cir.1997). We review the district court’s § 1915A dismissal de novo. Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.2005) (per curiam).

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Donnie McElroy v. Gary Lopac, 403 F.3d 855, 61 Fed. R. Serv. 3d 315, 2005 U.S. App. LEXIS 5611, 2005 WL 774921 (7th Cir. 2005).

403 F.3d 855 (Donnie McElroy v. Gary Lopac) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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