DeWalt v. Carter

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation224 F.3d 607
Docket NumberNo. 98-2415,98-2415
Parties(7th Cir. 2000) ANTHONY DEWALT, Plaintiff-Appellant, v. LAMARK CARTER, CORRECTIONAL OFFICER YOUNG, CAROL BIESTER, et al., Defendants-Appellees
Decision Date14 July 1999

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


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

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...

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