James Hoskins v. John Poelstra

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2814
J AMES H OSKINS ,
Plaintiff-Appellant,
v.
J OHN P OELSTRA , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-C-0581—C.N. Clevert, Judge.
____________
S UBMITTED F EBRUARY 11, 2003—D ECIDED F EBRUARY 28, 2003
____________
Before E ASTERBROOK , R OVNER , and E VANS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. According to the com-
plaint that James Hoskins filed pro se, employees of
Milwaukee entered his land, demolished his dog house,
and ripped up his flower bed. Building Inspector Michael
Pitts told Hoskins that this had been done because the dog
house and flower bed were on the City’s land; Hoskins
believes that they were on his side of the property line
and that the searches and seizures are attributable to
city officials’ efforts to abet a private land-acquisition
scheme. Moreover, Hoskins contends, the City demolished
his property 27 days after giving him 30 days to act on his

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2 No. 02-2814
own (or, presumably, to protest to higher officials), thus
violating his right to due process of law.
The complaint is well written, and Hoskins’s grievance
is easy to understand. At about 2H single-spaced pages, it
meets the description of Fed. R. Civ. P. 8. The legal
theories are well established; Hoskins is entitled to relief
if he can prove what he alleges, so the complaint sur-
vives a test under Fed. R. Civ. P. 12(b)(6). Nonetheless,
the district judge dismissed the complaint—and without
waiting for the defendants to request this step. District
judges have ample authority to dismiss frivolous or trans-
parently defective suits spontaneously, and thus save
everyone time and legal expense. This is so even when the
plaintiff has paid all fees for filing and service (as Hoskins
did). See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999).
But when exercising discretion to review complaints, judges
must take care that initial impressions, and the lack of
an adversarial presentation, not lead to precipitate ac-
tion that backfires and increases the duration and cost
of the case.
The district judge’s eye was caught by the complaint’s
allegation that John Poelstra (a private citizen) conspired
with the state actors to violate Hoskins’s rights. The
judge wrote that “[a] complaint must contain factual al-
legations suggesting that the defendants reached a meet-
ing of the minds. . . . While Hoskins invoked the term
‘conspiracy’ numerous times in his complaint, allegations
of a conspiracy are vague and ill-defined, and far short
of meeting the requirement that a claim of conspiracy
be pleaded with specificity.” (Citations omitted.) The dis-
trict judge then dismissed the complaint “for failure to
state a claim.” The order states that dismissal is without
prejudice. When a court dismisses without prejudice only
the complaint, and thus invites refiling, it is inappropri-
ate to enter a judgment—but in this case the court did
so, in the form prescribed by Fed. R. Civ. P. 58, dismiss-

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No. 02-2814 3
ing the “case” without any suggestion that Hoskins was
entitled to plead again. Understandably perplexed about
what he was supposed to do next, Hoskins appealed.
An order dismissing a complaint without prejudice is
not final, and thus not appealable under 28 U.S.C. §1291,
because the plaintiff is free to amend his pleading and
continue the litigation. See, e.g., Strong v. David, 297 F.3d
646, 648 (7th Cir. 2002); Furnace v. Southern Illinois
University, 218 F.3d 666, 669 (7th Cir. 2000). But if an
amendment would be unavailing, then the case is dead in
the district court and may proceed to the next tier. See, e.g.,
Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002); Larkin
v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001); United
States v. Milwaukee, 144 F.3d 524, 528 n.7 (7th Cir. 1998).
The district judge sent inconsistent signals: on the one
hand his order stated that the “complaint” was dismissed
“without prejudice”; on the other hand, the order stated
that the dismissal was for “failure to state a claim” (which
unlike a pleading gaffe usually is a terminal problem) and
a Rule 58 judgment dismissing the “case” was entered
in defendants’ favor. It seems best to take the judgment
on its own terms, see Furnace, 218 F.3d at 669, which
means that the decision is final. Appellate jurisdiction
ought to be determined mechanically, without guessing
at the district judge’s expectations. See Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 202-03 (1988). When
the district court’s resolution looks both ways, the only
safe route is to treat it as final: the alternative lays a trap
for unwary (or even wary) litigants, who may forego ap-
peal in reliance on the “without prejudice” language only
to learn later, and to their sorrow, that the original order
was appealable and the time for appellate review has
lapsed. District judges can avoid problems by distinguish-
ing consistently between dismissing a pleading and dis-
missing the suit; when they do both simultaneously,
however, an immediate appeal is proper.

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4 No. 02-2814
This complaint should not have been dismissed. The
fundamental allegations—unreasonable searches and
seizures, denial of notice and an opportunity to be heard,
and an attempt to take property for private use—rely
on established legal theories, which, unfortunately, the
district judge did not mention when dismissing the suit.
The complaint does not contain all of the facts that will
be necessary to prevail, but a filing under Rule 8 is not
supposed to do that; it should be “short and plain”
and suffices if it notifies the defendant of the principal
events, as this document does. Rule 8 does not require—
or permit district judges to require—fact pleading. So
the Supreme Court forcefully held in Swierkiewicz v.
Sorema N . A ., 534 U.S. 506 (2002). See also, e.g., Walker v.
Thompson, 288 F.3d 1005 (7th Cir. 2002); Bennett v.
Schmidt, 153 F.3d 516 (7th Cir. 1998). Federal practice uses
a notice-pleading system, not a code-pleading system. See
Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073 (7th
Cir. 1992).
This goes for allegations of conspiracy too. (Conspiracy
matters only with respect to Poelstra; the other defen-
dants are state actors, and thus amenable to suit under
42 U.S.C. §1983, by virtue of their offices.) Rule 9(b) has
a short list of matters (such as fraud) that must be
pleaded with particularity; conspiracy is not among
them. “[I]t is enough in pleading a conspiracy merely to
indicate the parties, general purpose, and approximate
date, so that the defendant has notice of what he is
charged with.” Walker, 288 F.3d at 1007. In ruling, to the
contrary, that “a claim of conspiracy [must] be pleaded
with specificity”, the district court relied on Ryan v. Mary
Immaculate Queen Center, 188 F.3d 857, 859-60 (7th Cir.
1999). But, as we explained in Walker, an opinion re-
leased more than two months before the district court
dismissed Hoskins’s complaint, Ryan was exceptional
because the complaint “did not so much as hint at what

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No. 02-2814 5
role” the defendant had played in the supposed joint
undertaking. Ryan did not demand that every plaintiff
plead a meeting of minds in detail—something that
may need to be inferred even after an opportunity for
discovery, for conspirators rarely sign contracts (the body
of law from which the phrase “meeting of the minds”
comes). Walker added that any of our older opinions
requiring more than notice of the time, scope, and parties
cannot be squared with Swierkiewicz and conspiracy’s
absence from the list in Rule 9(b). See 288 F.3d at 1008.
District judges have many tools to require additional
specificity: for example, Rule 12(e) permits the judge to
call for a more definite statement, and still more detail
may be essential when the time comes to make or oppose
a motion for summary judgment. Complaints just launch
the case. Hoskins’s complaint served that purpose. It
alleges that Poelstra set the events in motion, using his
“contacts and influence within the City of Milwaukee
Department of Neighborhood Services . . . to acquire
properties he desires” after the Department makes life
miserable for the owner. Hoskins may be unable to
prove that Poelstra pulls the strings at the Department,
but he is entitled to try.
R EVERSED AND R EMANDED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-28-03

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