Jurijus Kadamovas v. Michael Stevens, et al

Filing

Filed opinion of the court by Judge Posner. REVERSED and REMANDED. Richard A. Posner, Circuit Judge; Diane P. Wood, Circuit Judge and Diane S. Sykes, Circuit Judge. [6462451-1] [6462451] [12-2669]

Case: 12-2669

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In the

United States Court of Appeals
For the Seventh Circuit
No. 12-2669
JURIJUS K ADAMOVAS,
Plaintiff-Appellant,
v.
M ICHAEL S TEVENS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:11-cv-258-WTL-WGH—William T. Lawrence, Judge.

S UBMITTED JANUARY 14, 2013—D ECIDED F EBRUARY 7, 2013

Before P OSNER, W OOD , and S YKES, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate of a
federal prison, filed a Bivens suit against seven named
members of the prison’s staff plus several “John Does”
(unnamed defendants—how many is unclear), complaining of varied mistreatment amounting to cruel and
unusual punishment and in one respect to infringement
of religious liberty. The district judge dismissed the
complaint before an answer or other responsive
pleading was filed (no defendants have as yet made an

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appearance in the case), on the ground that the “99-page
complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the
requirement of Fed. R. Civ. P. 8(a)(2) that a pleading
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The judge
granted leave to file an amended complaint and when
the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal.
Length and unintelligibility, as grounds for dismissal
of a complaint, need to be distinguished. District judges
are busy, and therefore have a right to dismiss a complaint that is so long that it imposes an undue burden
on the judge, to the prejudice of other litigants seeking
the judge’s attention. Often, it is true, “surplusage can
and should be ignored,” United States ex rel. Garst v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003),
but “length may make a complaint unintelligible, by
scattering and concealing in a morass of irrelevancies
the few allegations that matter,” id. (said of a complaint
of 400 paragraphs sprawling across 155 pages). See also
Mann v. Boatright, 477 F.3d 1140, 1147-48 (10th Cir. 2007);
In re Westinghouse Securities Litigation, 90 F.3d 696, 70203 (3d Cir. 1996) (600 paragraphs in 240 pages); Michaelis
v. Nebraska State Bar Ass’n, 717 F.2d 437, 439 (8th Cir.
1983) (per curiam). But a complaint may be long not
because the draftsman is incompetent or is seeking to
obfuscate (“serving up a muddle” to the judge, as such
complaints are sometimes described), but because it
contains a large number of distinct charges. That is the
present case; the complaint charges that in retaliation

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for the plaintiff’s going on hunger strikes, the defendants
used excessive force to force feed him and extract
blood samples from him, placed him in a cell infested
with feces, denied him minimal recreational opportunities, refused to allow him to have a Bible, refused
to allow him to file grievances, and tried to block his
access to the federal courts.
One doesn’t need 99 pages to make these allegations,
but the complaint isn’t in fact 99 pages long, as the district
judge thought. It’s 28 pages long, the last 71 pages being
an appendix, which the judge could have stricken
without bothering to read. This 28-page complaint is not
excessively long given the number of separate claims
that the plaintiff is advancing. The word “short” in
Rule 8(a)(2) is a relative term. Brevity must be calibrated
to the number of claims and also to their character,
since some require more explanation than others
to establish their plausibility—and the Supreme Court
requires that a complaint establish the plausibility of its
claims. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); see also
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011); Atkins v. City of Chicago, 631 F.3d 823, 831-32 (7th
Cir. 2011).
That is not to say that the judge is free to question the
complaint’s factual allegations; provided they’re not
legal assertions disguised as facts, he is not. Ashcroft v.
Iqbal, supra, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly,
supra, 550 U.S. at 555-56; McCauley v. City of Chicago, supra,
671 F.3d at 616. There is a further exception, for utterly

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fantastic factual allegations. Atkins v. City of Chicago, supra,
631 F.3d at 831-32. It predates Twombly and Iqbal and is
illustrated by Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000),
where the complaint alleged a conspiracy between the
United States and China to “bio-chemically and biotechnologically infect and invade” the plaintiff with a
mind-reading and mental-torture device. Fantasy is
not a problem in this case. But even when the factual
allegations in a complaint may be true and therefore
have to be treated as true at the pleading stage, they
may not state a plausible claim for legal relief. Thus in
Twombly the Court held that in an antitrust conspiracy
case “an allegation of parallel conduct . . . gets the complaint close to stating a claim” but “without some
further factual enhancement it stops short of the line
between possibility and plausibility of ‘entitle[ment] to
relief.’” 559 U.S. at 557. A complaint must cross that line
to warrant putting the defendant to the bother and
expense of responding to discovery demands. “[T]he
fact that the allegations undergirding a plaintiff’s
claim could be true is no longer enough to save
it. . . . [T]he complaint taken as a whole must establish
a nonnegligible probability that the claim is valid, though
it need not be so great a probability as such terms as
‘preponderance of the evidence’ connote.” Atkins v. City
of Chicago, supra, 631 F.3d at 831-32.
Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than
before Twombly and Iqbal. And anyway long before
those decisions judges and lawyers had abandoned any
effort to keep complaints in federal cases short

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and plain. Typically complaints are long and complicated.
One-hundred page complaints that survive a motion to
dismiss are not rarities. The Forms Appendix to the
civil rules, with its beautifully brief model complaints, is
a fossil remnant of the era of reform that produced the
civil rules in 1938. Three quarters of a century later a 28page complaint pleading seven distinct wrongs is not
excessively long. District judges could do more to require that complaints be cut down to size, but it is not
apparent what more would be necessary in this case.
Unintelligibility is distinct from length, and often
unrelated to it. A one-sentence complaint could be unintelligible. Far from being unintelligible, the complaint in
this case, which the plaintiff says he wrote with the
assistance of another prisoner (the plaintiff is Lithuanian
and claims to be illiterate in English), is not only entirely
intelligible; it is clear. We’re not going to quote it all,
but here in its entirety, chosen at random, is his claim
of violation of his religious liberty:
Throughout Kadamovas’s segregation several week
confinement the defendants denied him not only all
personal and legal materials (with exception of
those legal materials that were received through the
mail during his segregation confinement), they as
well denied him all religious materials, including a
bible and as well the right to celebrate ‘Easter’ which
is central to his fundamental christian beliefs. As
Kadamovas did with all the other issues dealing
with the conditions of his segregation confinement
he addressed the denial of his religious materials

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with both Warden Lockett and Unit Manager Stevens
[both are named as defendants] who again reiterated throughout his segregation confinement that
they were not required to provide Kadamovas with
Religious materials, or for that matter personal and/or
legal materials in his ‘dry cell status confinement’.
In an act of futility Kadamovas, almost in a begging
manner pleaded with the defendants to at minimun
[sic] allow him to have access to his bible over the
Easter Holiday, April 22nd thr[ough] April 24th,
2011 to celebrate Easter. In mocking fashion Warden
Lockett during one of his periodic rounds in the
segregation unit told Kadamovas that, ‘it is literally
amazing how inmates want to come to prison to
find religion.’ He denied Kadamovas so much as
to have access to his bible during Easter.

The other claims are pleaded similarly. In short the
complaint does not violate any principle of federal pleading. The judgment dismissing it for “unintelligibility”
must be reversed. But we deny as premature the
plaintiff’s further claims that he should have the
assistance of counsel in this litigation and that the case
should be reassigned to another district judge on the
ground that Judge Lawrence is prejudiced against the
plaintiff. There has been no showing of prejudice. And
until the defendants respond to the complaint, the plaintiff’s need for assistance of counsel (a need asserted for
the first time in this appeal) cannot be gauged.
Since the case is being remanded, we remind the
district judge that if the assertion of different charges

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against different prison officials in the same complaint
is confusing, he can require the plaintiff “to file separate
complaints, each confined to one group of injuries and
defendants.” Wheeler v. Wexford Health Sources, Inc., 689
F.3d 680, 683 (7th Cir. 2012). (Granted, Wheeler was a
more extreme case than this one, as the prisoner’s complaint named 36 defendants.) The joinder of defendants
is limited by Fed. R. Civ. P. 20(a)(2).
These are matters for consideration on remand.
R EVERSED AND R EMANDED.

2-7-13