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01-2361 Walker v. Thompson, et al.

By: dmc-admin//May 6, 2002//

01-2361 Walker v. Thompson, et al.

By: dmc-admin//May 6, 2002//

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“Of course, if it became apparent in the course of the litigation that there was no overt act, the plaintiff’s suit would have to be dismissed; but a failure of proof is not a failure to state a claim. The plaintiff attached to his brief in this court a document claiming that there was indeed an overt act, namely a refusal to release him when his prison term expired. The document had not been submitted to the district court, but that is of no moment, in view of another rule repeatedly reaffirmed by this court – that an appellant complaining about the dismissal of his suit for failure to state a claim may hypothesize any set of facts consistent with the complaint that show that the complaint states a claim.”

Affirmed in part, and reversed in part, and remanded.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.

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