Tompkins, Ludmyla v. Women's Community

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2006*
Decided November 1, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2164 Appeal from the United
States District Court for the
LUDMYLA SKORYCHENKO TOMPKINS, Western District of Wiscon-
Plaintiff-Appellant, sin.
v.
No. 06-C-0078-S
THE WOMEN’S COMMUNITY, INC., et al., John C. Shabaz, Judge.
Defendants-Appellees.
Order
Plaintiff’s complaint alleges that, when she sought shelter at The Women’s
Community, she was excluded because of her national origin. (She is from Ukraine.)
The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6), stating
that “[p]laintiff has not alleged facts that support her claim that the defendant was
acting under color of state law”. All state-law theories were dismissed without
prejudice under 28 U.S.C. §1367(c)(3).
The district court did not explain why a complaint must plead facts. The estab-
lished rule is that it need not. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002);
Bartholet v. Reishauer A.G., 953 F.2d 1073 (7th Cir. 1992). Only claims (which is to
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
No. 06-2164 Page 2
say, grievances) need be pleaded. Plaintiff’s grievance is comprehensible; defen-
dants have received notice. We have remarked more than once that “[a]ny decision
declaring ‘this complaint is deficient because it does not allege X’ is a candidate for
summary reversal, unless X is on the list in Rule 9(b).” Pratt v. Tarr, No. 05-4470
(7th Cir. Sept. 27, 2006), slip op. 3, quoting from Kolupa v. Roselle Park District,
438 F.3d 713, 715 (7th Cir. 2006). The question is not what the complaint alleges
but whether every essential fact could be established without contradicting any-
thing in the complaint.
As far as we can tell, however, proof of state action may be unnecessary. Com-
plaints need not plead law or the “elements” of a legal claim (that’s a holding of
Swierkiewicz). One potential legal theory suggested by the complaint’s narrative is
that defendants’ acts violated the Civil Rights Act of 1964. Title II of that statute
bars any place of public accommodation from discriminating on account of national
origin, 42 U.S.C. §2000a(a), and Title VI bars any recipient of federal funds from
engaging in national-origin discrimination. 42 U.S.C. §2000d. Whether The
Women’s Community, Inc., is either a “place of public accommodation” (and thus
covered by Title II) or a recipient of federal funds (and thus covered by Title VI) can
not be ascertained from the complaint; certainly Tompkins does not plead herself
out of court by negating these possibilities.
The district court is free to require particulars under Fed. R. Civ. P. 12(e) or in
response to a motion for summary judgment. But dismissal under Rule 12(b)(6) was
inappropriate while it remains possible for plaintiff to establish facts that would
support relief.
The judgment of the district court is vacated, and the case is remanded for fur-
ther proceedings consistent with this order.