Civil Procedure — dismissal

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — dismissal

“Merit-review hearings” in pro se prisoner civil rights suits are not allowed.

“It is time to end the practice. It is unlawful. But we need to distinguish between the judge’s resolving material factual disputes on the basis of his interrogation of the plaintiff, and, as in Whiteside, his simply trying to determine what the plaintiff is alleging. Many prisoners can explain themselves orally but not in writing. They may be illiterate in English, or they may simply be such poor writers that they can’t convey their thoughts other than orally. So we can understand a judge’s wanting to clarify an unclear pro se complaint by interviewing the plaintiff. But the judge must be careful not to allow so innocent an oral examination to molt into a judicial cross-examination designed to elicit admissions (as in: ‘Plaintiff admitted that the assault came without warning’). When the complaint is unclear rather than patently without merit, an alternative to the oral examination is to dismiss the complaint with leave to amend, though in doing so the judge should explain, for the guidance of the pro se prisoner, what exactly needs to be clarified. Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555–56 (7th Cir. 1996); Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); Stewart v. Wisconsin, 2013 WL 149342, at *2–3 (E.D. Wis. Jan. 14, 2013); cf. James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001).”

Reversed and Remanded.

12-1886 Williams v. Wahner

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Posner, J.