Henderson v. Wilcoxen

• Decision Date: 05 October 2015
• Docket Number: No. 15–2029.,15–2029.
• Citation: 802 F.3d 930
• Parties: Willie HENDERSON, Plaintiff–Appellant, v. Krista WILCOXEN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

802 F.3d 930

Willie HENDERSON, Plaintiff–Appellant

v.Krista WILCOXEN, et al., Defendants–Appellees.

No. 15–2029.

United States Court of Appeals, Seventh Circuit.

Submitted Sept. 2, 2015.

Decided Oct. 5, 2015.

Willie Henderson, Rushville, IL, pro se.

Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

Opinion

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 Commitment Act, 725 ILCS 207, a civil, not a criminal, commitment statute.

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 disciplinary 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 appeal brief, filed with us, did he attach copies of the grievances that he'd filed with the Facility's administrators before suing (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 peremptorily, saying only that “the Plaintiff has simply repeated the 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 characterization of the plaintiff's remarks at the hearing.

The qualification “in writing in any event” in the preceding 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 complaint—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 telephone. So far as we are able to determine, either no aural recording 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 inquisitorial hearing. We don't mean it was modeled on procedures employed by the Inquisition. In modern usage an inquisitorial hearing is a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, as in our legal system, which is adversarial 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 being 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 rejected the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim.

We didn't mince words. We called the practice “unlawful.” 731 F.3d at 733. We said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not “contemplate[ ] an oral examination of a party by the judge designed 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 procedures that govern trials....” Id. (citations omitted).

We expect that when this court declares a procedure employed 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 resolving material factual disputes on the...