McMillian v. Litscher

72 F. App'x 438
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 25, 2003
DocketNo. 99-3029
StatusPublished
Cited by3 cases

This text of 72 F. App'x 438 (McMillian v. Litscher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMillian v. Litscher, 72 F. App'x 438 (7th Cir. 2003).

Opinion

ORDER

Wisconsin inmate Oskar McMillian brought this suit, see 42 U.S.C. §§ 1983 and 1985, alleging that a policy enacted by Wisconsin prison officials prohibiting access to sexually explicit materials violated his First Amendment rights. He also alleged that then-Governor Tommy Thompson entered into a conspiracy with prison officials to violate Wisconsin prisoners’ constitutional rights. The district court sua sponte dismissed Mr. McMillian’s conspiracy claims, see 28 U.S.C. § 1915A(b), on the ground that his allegations were too vague and conclusory. It later dismissed his First Amendment claims without prejudice, including a request for injunctive relief to halt enforcement of the rule, for failure to exhaust his administrative remedies under the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a); Fed. R.Civ.P. 12(b)(6). Mr. McMillian appeals, but we affirm.

In 1998, the Wisconsin Department of Corrections revised Wisconsin Admin. Code § DOC 309 to strictly curtail prisoner access to potentially pornographic material. Before this amended rule went into effect, Mr. McMillian, then incarcerated at the Green Bay Correctional Institution, filed a complaint with the prison’s Institution Complaint Examiner (“ICE”) challenging its constitutionality. Mr. McMillian sought redress from the “[u]n-constitutional deprivation of DOC Prisoner’s receipt of Publications.” He claimed that banning the receipt of personal photo[440]*440graphs and publications that contain nudity violated his First Amendment rights. Four months later, the ICE recommended that Mr. McMillian’s complaint be dismissed, noting that the changes to § DOC 309 had been already approved and would be implemented. The Warden agreed with that recommendation and dismissed the complaint. Mr. McMillian appealed, but the DOC Secretary affirmed. Shortly thereafter, Mr. McMillian filed this action in federal district court, alleging among other things the denial of his First Amendment rights.

Meanwhile, as Mr. McMillian’s inmate complaint was working its way through the prison grievance system, amended § DOC 309 had gone into effect. Relying on the amended rule, prison officials on two occasions confiscated magazines, photographs, calendars, and letters belonging to Mr. McMillian and other inmates. After the first property seizure, the prison disciplined Mr. McMillian for violating § DOC 309. He then appealed unsuccessfully to the Warden, but took no further steps to appeal through the prison’s internal grievance system. Similarly, after the second seizure of his property, Mr. McMillian wrote a protest letter to the Warden, but he did not utilize the grievance system.

At the same time that Mr. McMillian’s complaint was pending in federal district court, the amended version of § DOC 309 was challenged on First Amendment grounds in a class action suit brought by other inmates. See Aiello v. Litscher, 104 F.Supp.2d 1068 (W.D.Wis.2000). Pursuant to a settlement reached in that case, § DOC 309 was again revised; it now has a different definition of “nudity,” and contains more specific guidelines regarding prohibited materials.

On appeal, Mr. McMillian first challenges the district court’s dismissal of his conspiracy claims under § 1915A. We agree that his claim under 42 U.S.C. § 1985(3) should be dismissed, though not because his allegations were too “vague” or “conclusory,” the reasons cited by the district court. Contrary to the court’s suggestion, Mr. McMillian did not have to plead facts. “The federal rules require ... only that the complaint state a claim, not that it plead the facts that if true would establish ... that the claim was valid.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002).

The problem with Mr. McMillian’s allegations is not that they are too vague, but that they negate his conspiracy claim. Under § 1985, Mr. McMillian was required to allege that the defendants’ actions were motivated by racial, or otherwise class-based, discriminatory animus. See Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002) . But he did not allege class-based animus; indeed, his complaint repeatedly acknowledges that the challenged policy applied to all inmates. By alleging facts that demonstrate that the policy was not targeted against a protected class, Mr. McMillian pleaded himself out of court. See Am. United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 928 (7th Cir. 2003) .1

[441]*441But Mr. McMillian’s conspiracy claims may not have been limited to § 1985(3). Although he alleged specifically that the defendants conspired under that provision, he may have meant to rely on 42 U.S.C. § 1983, which also authorizes civil conspiracy claims. See, e.g., Lewis v. Washington, 300 F.3d 829, 831 (7th Cir.2002). Indeed, plaintiffs who point to the wrong legal theory, particularly those proceeding pro se, may nevertheless state a cognizable cause of action. Kennedy v. Nat’l Juvenile Det. Ass’n, 187 F.3d 690, 695 (7th Cir.1999). In pleading a conspiracy under § 1983, Mr. McMiUian needed only to allege the parties involved, its general purpose, and the approximate date to provide the defendants with notice of what they were accused of. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir.2003); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Mr. McMillian’s complaint satisfies this requirement.

But as with his § 1985 claim, Mr. McMiUian pleaded himself out of court on a § 1983 claim. The complaint aUeged in general terms that there was a conspiracy to violate his First, Ninth, and Fourteenth Amendment rights. But the complaint also aUeged specific actions that contradicted his claim. It aUeged that former governor Thompson worked “in furtherance of his pohtieal Ul wiU towards state prisoners,” Compl. at 7, and lobbied for a pohcy to restrict inmate access to pornography. It further aUeged that the current and former DOC secretary and two wardens implemented the poücy “in execution of Governor Thompson’s pohtieal agenda of Ul wiU towards prisoners.” Id. at 10. In short, Mr.

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Bluebook (online)
72 F. App'x 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillian-v-litscher-ca7-2003.