Mitchell G. Zimmerman v. Glenn Bornick

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1837
M ITCHELL G. Z IMMERMAN ,
Plaintiff-Appellant,
v.
GLENN BORNICK,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:21-cv-00209-BHL — Brett H. Ludwig, Judge.
____________________
S UBMITTED∗ JANUARY 5, 2022 — DECIDED F EBRUARY 2, 2022
____________________
Before EASTERBROOK, S CUDDER , and S T. EVE, Circuit Judges.
SCUDDER , Circuit Judge. Prison litigation is common, and
many prisoners experience challenges preparing federal
*We have agreed to decide this case without oral argu-
ment because the brief and record adequately present the
facts and legal arguments, and oral argument would not sig-
nificantly aid the court. See F ED. R. A PP . P. 34(a)(2)(C).

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2 No. 21-1837
complaints. That is not because pleading standards are overly
taxing—to the contrary, the rules require only a short and
plain statement of the grounds supplying a plausible basis for
relief—but more often is because of educational and resource
limitations. The law understands this and, absent a clear indi-
cation of futility or some extraordinary circumstance, affords
litigants—including prisoners—the opportunity to try again
by filing an amended complaint. Wisconsin inmate Mitchell
Zimmerman was not the beneficiary of a second chance, but
should have been. The district court may have held Zimmer-
man to a pleading standard beyond that required by the Fed-
eral Rules and, regardless, should have given him a second
try. So we vacate and remand.
I
Zimmerman’s complaint invoked 42 U.S.C. § 1983 and ad-
vanced a First Amendment claim on the basis of Glenn
Bornick, a correctional officer at Fox Lake Correctional Insti-
tution, allegedly retaliating against him for complaining.
Though far from clear and very abbreviated, Zimmerman
seemed to contend that Officer Bornick had it out for him be-
cause of grievances he had filed complaining of misconduct
by Bornick. Zimmerman also seemed to allege that he had re-
ceived some sort of undeserved warning from Officer
Bornick. In retaliation for all of this, Zimmerman contended,
Officer Bornick confiscated about $100 worth of his property
and issued a conduct report that led to sixteen days of disci-
plinary confinement.
Fulfilling the screening obligation imposed by 28 U.S.C.
§ 1915A(b)(1), the district court determined that Zimmerman
failed to state a claim. Zimmerman’s complaint, the court rea-
soned, did not establish a causal relationship between Officer

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No. 21-1837 3
Bornick’s actions and any protected speech. Deciding that any
amendment to the complaint would be futile because Zim-
merman’s allegations were thorough, the district court dis-
missed it with prejudice. The court later denied two motions
for reconsideration.
II
A
Having taken our own fresh look at Zimmerman’s com-
plaint, we cannot say the district court was wrong to dismiss
it. His allegations were threadbare and did not clarify what
speech he believes caused Officer Bornick to retaliate against
him—his oral complaints about Bornick’s warning or the for-
mal grievances. Nor did Zimmerman specify the content, tim-
ing, or number of those grievances. The complaint was too
sparing to see a plausible connection between Officer
Bornick’s alleged overstepping and Zimmerman’s protected
speech. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Herron v.
Meyer, 820 F.3d 860, 863 (7th Cir. 2016).
While we have no difficulty reaching this conclusion, we
do have concern with the pleading burden the district court
seemed to hold Zimmerman to. To be sure, the district court
identified the appropriate standards—those supplied by Fed-
eral Rule of Civil Procedure 8(a) and the Supreme Court’s de-
cisions in Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). In its analysis of Zimmerman’s complaint, however,
the district court suggested that Zimmerman’s allegations
had to correspond neatly with the elements of a retaliation
claim. The court also may have drifted beyond reviewing the
legal sufficiency of Zimmerman’s allegations into a fact-find-
ing role. At one point, for example, the district court observed

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4 No. 21-1837
that Officer Bornick did no more than monitor Zimmerman
within the Fox Lake facility. Yet the complaint advances an
altogether different account—one of Officer Bornick losing his
cool, overstepping, and harassing Zimmerman through retal-
iatory acts.
We say all of this only to sound a soft reminder. Rule 8(a)
does not require plaintiffs to “pin” their claim for relief to any
particular legal theory at the pleading stage. Skinner v. Switzer,
562 U.S. 521, 530 (2011); see Johnson v. City of Shelby, 574 U.S.
10, 11 (2014); Lovelace v. Gibson, 21 F.4th 481, 487–88 (7th Cir.
2021); Koger v. Dart, 950 F.3d 971, 974 (7th Cir. 2020) (“Com-
plaints plead grievances, not legal theories.”) (emphasis in
original); Beaton v. SpeedyPC Software, 907 F.3d 1018, 1023 (7th
Cir. 2018) (“As the Supreme Court and this court constantly
remind litigants, plaintiffs do not need to plead legal theo-
ries.”).
Put another way, federal pleading standards do not “de-
mand that complaints contain all legal elements (or factors)
plus facts corresponding to each.” Chapman v. Yellow Cab
Coop., 875 F.3d 846, 848 (7th Cir. 2017). The cornerstone at the
motion to dismiss stage remains for district courts to treat all
allegations as true and to draw all reasonable inferences in the
plaintiff’s favor. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007);
see also Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).
Another point warrants mention from our review of the
district court’s order. In the course of its analysis, the district
court observed that Zimmerman’s confrontations and argu-
ments with Officer Bornick were “not protected” by the First
Amendment and therefore “cannot form the basis of a retali-
ation claim.” Maybe, but maybe not. Our case law has not re-
solved where the First Amendment draws the line for

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No. 21-1837 5
prisoners between protected and unprotected speech. Com-
pare Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010) (con-
cluding that a prisoner’s complaints were unprotected when
disruptive to legitimate penological interests), with Herron,
820 F.3d at 863–64 (observing that the line drawing around
protected and unprotected prisoner speech remains unre-
solved and worthy of attention in light of the boundaries the
Supreme Court has recognized with grievances and com-
plaints expressed by public workers about the conditions of
their employment).
This case does not require us to categorize Zimmerman’s
various complaints. Protected speech or not, we agree with
the district court’s bottom-line conclusion that Zimmerman
failed to state a claim.
B
What most concerns us is the district court’s failure not to
afford Zimmerman an opportunity to try again by filing an
amended complaint. The law is clear that a court should deny
leave to amend only if it is certain that amendment would be
futile or otherwise unwarranted. See Foman v. Davis, 371 U.S.
178, 182 (1962); Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015). By way
of example, that occurs when a proposed amendment is un-
timely, see Sound of Music Co. v. Minnesota Mining & Mfg. Co.,
477 F.3d 910, 923 (7th Cir. 2007), the plaintiff has already had
multiple chances to cure deficiencies, see Lee v. Ne. Ill. Reg'l
Commuter R.R. Corp., 912 F.3d 1049, 1053 (7th Cir. 2019), or
amendment would cause substantial delay and prejudice, see
Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d
663, 667 (7th Cir. 2007). See also 6 Charles Alan Wright &

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6 No. 21-1837
Arthur R. Miller, Federal Practice and Procedure § 1487 (3d
ed. 2021) (articulating these same principles).
No doubt district courts have broad discretion to prohibit
amendment in these kinds of circumstances. Loja v. Main St.
Acquisition Corp., 906 F.3d 680, 684–85 (7th Cir. 2018). But
those instances are the clear exception; the norm remains af-
fording a plaintiff at least one opportunity to amend his com-
plaint. Id. at 685; see Glover v. Carr, 949 F.3d 364, 367–69 (7th
Cir. 2020).
Although Zimmerman’s initial complaint may have been
insufficient, we cannot say for certain that it suffered from
such obviously incurable defects that he should not have had
that chance. We therefore VACATE the district court’s judg-
ment and REMAND with instructions to afford Zimmerman
a chance to amend his complaint.

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