McElroy, Donnie v. Lopac, Gary ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3257
DONNIE MCELROY,
Plaintiff-Appellant,
v.
GARY LOPAC, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Western Division.
No. 03 C 50207—Philip G. Reinhard, Judge.
____________
SUBMITTED MARCH 8, 2005*—DECIDED APRIL 7, 2005
____________
Before FAIRCHILD, KANNE, and EVANS, Circuit Judges.
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 exercis-
*
Appellees notified this court that they were never served with
process in the district court and would not be filing a brief or other-
wise participating in this appeal. After examining the appellant’s
brief and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the appellant’s
brief and the record. See Fed. R. App. P. 34(a)(2).
2 No. 03-3257
ing 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, McElroy did not “specify a specific event, chro-
nology, or reason for retaliation.” We affirm, but for differ-
ent 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 whether inmate workers would receive
“lay-in pay” while unemployed and waiting to be trans-
ferred 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 Lopac 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 initi-
ating 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 sen-
tences. 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
No. 03-3257 3
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 line.
Later that day, McElroy met with Officer Glover to ex-
plain 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,” “dis-
obeying 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 disci-
plinary board, continued the proceedings so that he could
interview Officers Lopac and Glover as well as other wit-
nesses. 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 pri-
vately 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
4 No. 03-3257
refused to reassign him to the optical glass shop. Other
prison officials, according to McElroy, shared culpability be-
cause 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, chronol-
ogy 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 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
Albierno v. City of Kankakee, 122 F.3d 417, 420 (7th Cir.
1998). We review the district court’s § 1915A dismissal de
novo. Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005)
(per curiam).
On appeal McElroy argues that the district court errone-
ously concluded that he failed to state a retaliation claim
when in fact his complaint adheres to the district court’s own
stated requirement that he plead a specific event, chro-
nology, or reason for the retaliation. Specifically, McElroy
alleges in his complaint that Officers Lopac and Glover fired
him, filed a “bogus” disciplinary report to insulate their
action, and then refused to accept the recommendation to
reassign him to the optical glass shop when the disciplinary
case was shown to be unfounded—all in retaliation for his
inquiries into Lopac’s refusal to grant lay-in pay for inmates
displaced from their jobs in the sewing shop. We agree with
McElroy that his complaint includes more than enough
detail to satisfy the pleading standard imposed by the
district court, but, more importantly, we note that the
No. 03-3257 5
district court required far too much of McElroy in the first
place. Our recent cases have rejected any requirement that
an inmate allege a chronology of events in order to state a
claim of retaliation because such a requirement is contrary
to the federal rule of notice pleading. See Fed. R. Civ. P. 8;
Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir.
2004); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Instead, a plaintiff must allege only enough to put the
defendants on notice and enable them to respond, and
McElroy met this requirement by setting forth in his com-
plaint the retaliatory conduct (taking away his job) and the
allegedly constitutionally protected activity (speaking out
about lay-in pay) that motivated the defendants. See
Hoskins, 395 F.3d at 375; see also DeWalt, 224 F.3d at 618
(“act taken in retaliation for the exercise of a constitution-
ally protected right violates the Constitution”).
Where McElroy runs into trouble, however, is that his
“inquiries” into lay-in pay were not protected speech as
would be necessary to satisfy a retaliation claim’s require-
ment of constitutionally protected activity. As in the public-
employee context, McElroy’s questions concerning Lopac’s
“personal policies” about lay-in pay must relate to a public
concern and not just a personal matter to receive First
Amendment protection. See Sasnett v. Litscher, 197 F.3d 290,
292 (7th Cir. 1999) (imputing to inmate free-speech claims
requirement of public-employee line of cases that protected
speech must be about a “public concern”); Brookins v. Kolb,
990 F.2d 308, 313 (7th Cir. 1993) (content of letter written
by inmate co-chair of legal assistance committee not pro-
tected speech because it related to personal matter, not pub-
lic concern); see also Thaddeus-X v. Blatter, 175 F.3d 378,
392 (6th Cir. 1999) (en banc) (“prisoner’s First Amendment
rights are not more extensive than those of a government
employee”). But McElroy’s “inquiries” about lay-in pay were
a matter of “purely individual economic importance” and
6 No. 03-3257
not of public concern. Balton v. City of Milwaukee, 133 F.3d
1036, 1040 (7th Cir. 1998); see Snider v. Belvidere Town-
ship, 216 F.3d 616, 620 (7th Cir. 2000) (comments about
perceived salary disparity vis-á-vis other employees is
personal issue, not public concern). McElroy’s speech was
not the type of protected activity under the First Amendment
that could support a retaliation claim.
We are not convinced otherwise by McElroy’s attempt on
appeal to recast his “inquiries” as preparation for grieving
his complaint about pay through the prison administrative
process, presumably to benefit from the constitutional pro-
tection afforded to filing grievances, see Thomson, 362 F.3d
at 970-71 (filing grievances is constitutionally protected
activity sufficient to support a retaliation claim); DeWalt,
224 F.3d at 618 (same). McElroy never presented this argu-
ment to the district court even when he asked the court
to reconsider the dismissal, and so it is waived. See
United States v. Arnold, 388 F.3d 237, 241 (7th Cir. 2004).
In any event, McElroy does not allege that Officer Lopac
was aware that McElroy planned to file a grievance (indeed,
he has never alleged that he actually filed a grievance about
not receiving lay-in pay); rather, his consistent position has
been that the retaliatory conduct was in direct reaction to
his unprotected inquiries about lay-in pay. See Stanley v.
Litscher, 213 F.3d 340, 343 (7th Cir. 2000).
AFFIRMED.
No. 03-3257 7
FAIRCHILD, Circuit Judge, dissenting. I agree that
McElroy’s complaint should not have been dismissed for
failure to describe the retaliatory conduct more particularly.
Respectfully, however, I do not agree that it should be
dismissed because the speech which allegedly caused the
retaliation was not a matter of public concern and therefore
not protected.
It seems clear that a group of prisoners, not just McElroy
individually, were left unemployed by the closing of the
sewing shop. All these would have an interest in receiving
lay-in pay while unemployed. McElroy’s question would
surely concern that “public” and the general public would be
concerned with the policy of compensating prisoners for
whom there is no work.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-05