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Weekly Case Digests — Jan. 9-13, 2017

By: WISCONSIN LAW JOURNAL STAFF//January 12, 2017//

Weekly Case Digests — Jan. 9-13, 2017

By: WISCONSIN LAW JOURNAL STAFF//January 12, 2017//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Nathaniel Jackson v. Lieutenant David Willis, et al

Case No.: 14-3226

Officials: WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

Focus: 8th Amendment Violation

Nathaniel Jackson, an inmate in the custody of the Illinois Department of Corrections, filed a complaint pursuant to 42 U.S.C. § 1983 alleging that his rights under the Eighth Amendment were violated by prison officials. He brought the lawsuit against David Willis, a Lieutenant a Logan Correctional Center, and Eddie J. Payne, a correctional officer at Pinckneyville Correctional Center, in connection with an incident that occurred at Logan on August 4, 2011, during his transfer from Dixon Correctional Center to Pinckneyville. Jackson alleged that he was unconstitutionally subjected to excessive force and also alleged a failure to protect by the refusal of his request to be placed in a prison in which he had no known enemies. The details surrounding the Eighth Amendment claim are of limited relevance to the issues in this appeal. In brief, Jackson was scheduled to be transferred from Logan to Pinckneyville, but when he arrived at Logan he refused to transfer to Pinckneyville stating that he had made enemies with correctional officers there. He asserted that he had a right to refuse a transfer. In support of that contention, he testified that he had witnessed other prisoners refuse transfers from Logan, and they were placed in segregation and issued a disciplinary ticket. He further asserted that in May 2007, he refused a transfer to Shawnee Correctional Center while he was at Logan because prison employees were his enemies there, and he was allowed to stay at Logan. In the August 4, 2011, incident, Jackson’s refusal to transfer met with a different reaction. He testified that a number of officers lifted him over their heads and threw him, head first, into the van, causing injury. The officers disputed his testimony as to the manner in which he was transported. They testified that he refused to walk to the van, and that they carried him there, but that he stepped inside of his own accord and was not thrown into it. They further asserted that once inside the van he never claimed any injury, nor did he request any medical treatment. Following a trial, a jury returned a verdict in favor of the defendants and against Jackson. On appeal, counsel for Jackson argues that he is entitled to a new trial because the court refused to grant a continuance when his attorney withdrew on the eve of trial, the court improperly admitted a 7‐year‐old disciplinary report without a limiting instruction or explanation, and the court abused its discretion in admitting a 12‐year‐ old burglary conviction as evidence of Jackson’s truthfulness. None of those alleged errors rendered the trial unfair and command a new trial.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael Allan Hancock

Case No.: 15-1956

Officials: POSNER, RIPPLE, and SYKES, Circuit Judges.

Focus: Probable Cause – Search Warrant – Franks Hearing

Michael Allan Hancock was indicted on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and on one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Before trial, Mr. Hancock challenged the search warrant that had led to his arrest by requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). In support of that motion, he maintained that critical evidence bearing on a confidential informant’s credibility had been omitted from the probable cause affidavit. Following the magistrate judge’s recommendation, the district court denied the motion.   Mr. Hancock also moved in limine to preclude the use of prior convictions as the basis for the § 922(g)(1) count. He maintained that the release document issued to him by the Colorado Department of Corrections lulled him into believing that all of his rights, including the right to possess a weapon, had been restored. The district court, assessing the release document within its four corners, held that the document did not communicate any restoration of rights to Mr. Hancock. A jury later convicted Mr. Hancock on both counts of the indictment. The court imposed concurrent sentences of 120 months on each count. Mr. Hancock now challenges both of these rulings. We conclude that, viewed in its totality, the probable cause affidavit amply supports the issued search warrant. We also agree with the district court that, on its face, the release document does not speak to the restoration of rights. We therefore affirm Mr. Hancock’s convictions.

Affirmed

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7th Circuit Court of Appeals

Case Name: Selective Insurance Company of South Carolina v. Target Corporation

Case No.: 16-1669

Officials: FLAUM and KANNE, Circuit Judges, and MAGNUSSTINSON, District Judge.

Focus: Duty to Defend – Indemnification

Plaintiff-Appellant Selective Insurance Company of South Carolina (“Selective”) filed a declaratory judgment action, asking the district court to declare that it owed no duty to defend or indemnify Defendant-Appellee Target Corporation (“Target”) in a lawsuit initiated by customer Angela Brown, who sued Target after a fitting room door fell on her. The district court granted summary judgment in favor of Target, finding that Target was an additional insured on a commercial general liability insurance policy (the “Policy”) that the door supplier, Harbor Industries, Inc. (“Harbor”), had with Selective. The district court further held that Selective had both a duty to defend and indemnify Target for the entire cost Target incurred settling the Brown litigation. Selective appealed the district court’s decision and, for the reasons that follow, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Federal Trade Commission v. Kevin Trudeau

Case No.: 15-3472

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Focus: Contempt Judgment – FTC

This decision marks the end of litigation about Kevin Trudeau’s frauds—or so we hope. Earlier decisions affirmed his criminal conviction and sentence and his adjudication in civil contempt after he refused to surrender the profits made from violating orders of the Federal Trade Commission. See United States v. Trudeau, 812 F.3d 578 (7th Cir. 2016); FTC v. Trudeau, 662 F.3d 947 (7th Cir. 2011). The contempt judgment is approximately $38 million, and Trudeau claims to be destitute. Believing that this is just another of his lies, the FTC demanded that firms it thought to be affiliated with Trudeau turn over business records. Website Solutions, one of these entities, hired Hogan Marren Babbo & Rose, Ltd., and Faruki Ireland & Cox, P.L.L. (collectively the Law Firms) to represent it in responding to the FTC’s demand. After considering some of the documents ultimately revealed, the district judge concluded that Website Solutions is under Trudeau’s control and that all of its assets are available to satisfy his obligations. The judge appointed a receiver to marshal the assets of Website Solutions and Trudeau’s other entities. The receiver collected a net of approximately $8 million, which the FTC wants to distribute to Trudeau’s defrauded customers. In October 2015 the district court approved the receiver’s plan; this order also rejected the Law Firms’ request for compensation from funds in the receiver’s custody. In November the judge authorized the receiver to send $4 million to the FTC; in December the judge approved the receiver’s compensation; in February 2016 the judge accepted the receiver’s final report and authorized the receiver to send all remaining funds to the FTC. That order closed the receivership estate. The Law Firms have appealed—but from the October 2015 order rather than any of the later orders. This led us to question whether the order is appealable, because as of October 2015 all $8 million remained in the receiver’s control. The Law Firms could have waited until the estate-closing order without jeopardizing their claim to reimbursement. At oral argument we directed the parties to file supplemental memoranda addressing appellate jurisdiction. After receiving these submissions, we conclude that the October 2015 order functioned as approval of the receiver’s proposed plan of distribution. If this were a bankruptcy proceeding rather than a receivership, the October 2015 order would have been labeled a plan of reorganization (or perhaps a plan of liquidation). And in bankruptcy the confirmation of such a plan is appealable as a “final decision” even though funds remain in the estate. See Bullard v. Blue Hills Bank, 135 S. Ct. 1686 (2015) (recognizing that an order confirming a plan of reorganization is appealable, while holding that an order declining to approve such a plan is not). So we conclude that the October 2015 order is “final” under 28 U.S.C. §1291 and move to the merits.

Affirmed

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7th Circuit Court of Appeals

Case Name: Armando Ramirez v. T&H Lemont, Inc.

Case No.: 16-1753

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

Focus: Witness Tampering

Upon finding that plaintiff Armando Ramirez had offered a witness money in exchange for his favorable testimony, the district court dismissed Ramirez’s suit with prejudice. Ramirez appeals, contending that the district court erred in finding that he engaged in witness tampering and that it abused its discretion in dismissing the case with prejudice as a sanction. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jose I. Chavarria-Reyes v. Loretta E. Lynch

Case No.: 15-3730

Officials: BAUER, POSNER, and EASTERBROOK, Circuit Judges.

Focus: Petition to Review – Immigration – Removal Proceedings

An immigration judge ordered Jose Chavarria‐Reyes removed to Mexico after concluding that he lacks permission to be here and is ineligible for discretionary relief because he has committed a crime of moral turpitude. He does not contest either conclusion but contends nonetheless that the IJ erred by failing to alert him to the possibility of voluntary departure under §240B(a) of the Immigration and Nationality Act, 8 U.S.C. §1229c(a). Voluntary departure usually depends on a showing of good moral character, a showing that Chavarria‐Reyes can‐ not make: he has at least three convictions, for domestic battery, retail theft, and home‐repair fraud. But voluntary departure under §240B(a) is available without regard to the alien’s character, provided he claims this privilege at the outset of the proceedings and forswears all other arguments. An alien who departs voluntarily has more opportunity to re‐ turn in later years than does an alien removed involuntarily. The Board of Immigration Appeals rejected his argument that the IJ had violated the Due Process Clause of the Fifth Amendment, and Chavarria‐Reyes has filed a petition for review of that order

Petition to review denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael Davis

Case No.: 15-3671

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges.

Focus: Sentencing – Reversible Error

In June 2012, defendant Michael “Mickey” Davis made a $300,000 start-up loan to Ideal Motors, Inc., a car dealership in Melrose Park, Illinois, owned by R.J. Serpico and his father Joseph Serpico. Within a matter of months, Joseph had gambled the money away and Ideal Motors had fallen deep in arrears. The following summer, a man named “Mickey” conspired to have R.J. Serpico’s legs broken. Though the scheme was never carried out, defendant Davis was eventually convicted at trial of attempted extortion and using extortionate means to collect a loan. Davis has appealed, raising five issues. The first is whether the district court erred by admitting against Davis the out-of-court statements by several people involved in the conspiracy to hurt Serpico. The second is whether the district court abused its discretion in allowing the prosecutors to impeach the testimony of a key prosecution witness with his prior inconsistent statements to government agents. Those two issues are substantial, but we find no reversible error. Davis raises three other issues concerning witness immunity, the scope of cross-examination, and the government’s closing argument. Those issues also provide no grounds for setting aside the convictions. We affirm Davis’s convictions and sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Yumin Xiang v. Loretta E. Lynch

Case No.: 16-2189

Officials: BAUER and FLAUM, Circuit Judges, and SHADID, Chief District Judge

Focus: Asylum

Yumin Xiang is a 46-year-old female citizen of the People’s Republic of China petitioning for review of an order upholding the denial of her application for asylum and withholding of removal. Her request for asylum was denied both initially by the Immigration Judge (“IJ”) and on appeal to the Board of Immigration Appeals (“BIA”) based on the IJ’s finding that Xiang’s written request and oral testimony contained inconsistencies. Xiang now seeks review of the BIA’s decision.

Remanded to further review

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7th Circuit Court of Appeals

Case Name: Patriotic Veterans, Inc., v. Greg Zoeller

Case No.: 16-2059

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges

Focus: Constitutionality

Plaintiff, a veterans’ group, contends that an anti-robocall statute, Ind. Code §24-5-14-5, violates the First Amendment to the Constitution, applied to the states by the Fourteenth Amendment. The Telephone Consumer Protection Act, 47 U.S.C. §227, which contains a similar limit, has been sustained by two circuits. See Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), affirmed on other grounds, 136 S. Ct. 663 (2016); Van Bergen v. Minne sota, 59 F.3d 1541, 1549–56 (8th Cir. 1995); Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). The same circuits have approved state laws as well. See Van Bergen (sustaining a Minnesota law in addition to §227); Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (California law). But relying on Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015), which found South Carolina’s antirobocall law to be unconstitutional, plaintiff maintains that Reed v. Gilbert, 135 S. Ct. 2218 (2015), made these decisions obsolete and dooms both state and federal anti-robocall statutes as instances of content discrimination. We disagree with that contention and conclude that Indiana’s law is valid.

Affirmed

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7th Circuit Court of Appeals

Case Name: Dee Frye et al v. Auto-Owners Insurance Co.

Case No.: 16-1677

Officials: FLAUM, KANNE, and WILLIAMS, Circuit Judges.

Focus: Insurance Coverage – Insurance Payments

Dee Frye was injured in a car accident caused by an underinsured driver. Frye sued his insurance company for coverage, and the parties reached a partial settlement, but Frye thought he was entitled to additional payments under the policy. The district court disagreed, and awarded summary judgment to the insurer. Frye appeals, and for the reasons that follow, we reverse the decision of the district court.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Ning Wang v. Loretta E. Lynch

Case No.: 16-1526

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: Asylum – Removal Proceedings – Frivolous application

Ning Wang, a 25‐year‐old Chinese citizen (from Shenyang, the capital of the northeastern province of Liaoning), petitions for review of the denial of his applications for asylum and withholding of removal based on his fear of religious persecution for attending unsanctioned Christian gatherings. Wang also challenges the Immigration Judge’s finding that his application was frivolous—a consequential finding that bars him from obtaining any future immigration benefits. We deny the petition with regard to the denial of his applications for immigration relief, but grant the petition with regard to the finding of frivolousness.

Petition denied

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7th Circuit Court of Appeals

Case Name: Germill D. Murdock v. Stephanie Dorethy

Case No.: 15-1660

Officials: BAUER, MANION, and HAMILTON, Circuit Judges.

Focus: Motion to Suppress – Writ of Habeas Corpus

In 2003, Petitioner Germill Murdock was convicted in Illinois state court of first degree murder and aggravated battery with a firearm. In the context of his postconviction claim of ineffective assistance of counsel, a suppression hearing was held to determine whether statements Petitioner made to the police were voluntary, given that Petitioner was 16 years old and gave the statements without an attorney or other adult present. The trial court held that his statements were voluntary and denied the motion to suppress. Both the Illinois Appellate Court and the Illinois Supreme Court affirmed that judgment. Petitioner then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition, finding that the Illinois Supreme Court’s decision was not unreasonable. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Duane E. Turner v. Richard Brown

Case No.: 15-1592

Officials: FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.

Focus: Ineffective Assistance of Counsel

Duane E. Turner has filed a petition for a writ of habeas corpus in federal court raising claims of ineffective assistance of counsel in challenging his sentence for murder. The district court denied his petition as untimely, concluding that the last day on which Turner could have filed his federal habeas petition was September 23, 1998, one year after his murder conviction and sentence became final. We granted a certificate of appealability, asking the parties to ad‐ dress whether Turner’s petition was timely filed under Jimenez v. Quarterman, 555 U.S. 113 (2009). For the reasons that follow, we affirm the district court’s denial of the petition as untimely.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Christopher R. Gates

Case No.: 16-2193

Officials: POSNER, KANNE, and SYKES, Circuit Judges

Focus: Sentencing Guidelines – Enhancement

The defendant pleaded guilty to being a felon in possession of a firearm, namely a Glock 22 .40 caliber pistol with a capacity of more than 15 rounds; such possession is a felony, see 18 U.S.C. § 922(g)(1), punishable by a fine and also by imprisonment for a maximum of 10 years (there is no minimum term of imprisonment). 18 U.S.C. § 924(a)(2). The judge increased the defendant’s guidelines range by four levels, pursuant to U.S.S.G § 2K2.1(b)(6)(B), for possessing the firearm in connection with another felony offense, namely the distribution of an illegal drug. The result was a guideline range of 57 to 71 months. But the judge sentenced the defendant to only 36 months, which was within the guideline range only if the four-level enhancement and the gun’s high-capacity magazine were ignored; the judge thought the shorter sentence appropriate. We don’t think the judge was correct to rule that the defendant had possessed the gun in connection with two other alleged felony offenses, both being drug transactions. The first transaction involved a person who, being short of cash to pay for the synthetic marijuana that he’d just bought from the defendant, pawned his Glock (the Glock we mentioned earlier) to the defendant pending payment for the marijuana. It’s not known when Gates expected to be paid. What we do know is that a few days after the transaction he sold the gun, to someone who happened to be a confidential informant, for $300, allegedly with his marijuana customer’s consent to that method of clearing the customer’s debt; the $300 adequately compensated Gates for the marijuana that he had sold the customer.

Judgment Vacated

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7th Circuit Court of Appeals

Case Name: Stacy L. Childress v. Carolyn W. Colvin

Case No.: 16-1601

Officials: POSNER, KANNE, and SYKES, Circuit Judges.

Focus: Disability Benefits – Credibility & Experts

The plaintiff‐appellant, Mr. Childress, applied to the Social Security Administration for disability benefits in 2008, when he was 35. Turned down in 2010 after a hearing before an administrative law judge, he appealed to the district court, which initially remanded the case to the Social Security Administration for reevaluation of the medical opinions in the record and reconsideration of the plaintiff’s credibility. The upshot was a second hearing, held in 2013, before the same administrative law judge, who again ruled that Childress was not disabled; and this time the district court affirmed, precipitating his appeal to us. He complains that the administrative law judge again failed to give sufficient weight to the opinions of his treating physicians and did not accurately assess his credibility or his capacity to work.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: M.G. Skinner and Associates Insurance Agency, Inc., et al v. Norman-Spencer Agency, Inc.

Case No.: 15-2290

Officials: FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.

Focus: Insurance – Fraud – Duty

This case arises out of a complex insurance transaction that ended badly because the supposed insurance turned out to be a complete fraud. Despite the complexities of the broader transaction and the litigation that it spawned, this appeal presents, essentially, a single question: whether Norman‐Spencer Agency, Inc., an Ohio insurance agency, owed a duty to M.G. Skinner and Associates Insurance Agency, Inc. and Western Consolidated Premium Properties, Inc., two entities that had engaged a chain of sub‐brokers to procure insurance for a vast collection of real property.   M.G. Skinner and Associates and Western Consolidated Premium Properties, plaintiffs‐appellants here, contend that defendant‐appellee Norman‐Spencer Agency was one of the sub‐brokers in the chain, and thus it owed them a duty of reasonable care in procuring the insurance, which Norman‐ Spencer Agency breached by failing to point out obvious signs that the ultimate provider of the insurance was dishonest. But according to Norman‐Spencer Agency, it was never asked and it never agreed to procure insurance for plaintiffs‐appellants, and thus it owed them no duty. The district court agreed with Norman‐Spencer Agency, and in separate orders, granted summary judgment in its favor, against each plaintiff‐appellant. We agree with the district court and affirm both orders.

Affirmed

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7th Circuit Court of Appeals

Case Name: Tri-State Water Treatment, Inc. et al v. Home Depot U.S.A., Inc.,

Case No.: 16-3938

Officials: WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges

Focus: Removal – Class Action

In First Bank v. DJL Properties, LLC, 598 F.3d 915 (7th Cir. 2010), we held that a counterclaim-defendant is not entitled to remove a case from state court to federal court under the provisions of the Class Action Fairness Act (CAFA), 28 U.S.C. § 1453(b). Today’s case presents a related question: whether, even though the original counterclaim-defendant is barred from removing, an additional counterclaim defendant may nevertheless do so. We conclude that the statute does not support treating an original counterclaim-defendant differently from a new one, and so we affirm the district court’s order remanding this case to state court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Nassuma Fomba Jabateh v. Loretta E. Lynch

Case No.: 16-1112

Officials: BAUER, KANNE, and HAMILTON, Circuit Judges.

Focus: Removal Proceedings – Asylum

Petitioner Nassuma Fomba Jabateh, a native and citizen of Liberia, filed a petition with this Court seeking to vacate an order from the Board of Immigration Appeals that denied his applications for asylum and withholding of removal under 8 U.S.C. § 1231(b)(3) and the Convention Against Torture, 8 C.F.R. § 1208.16(c). Petitioner’s applications were denied on the basis that he had provided material support to the Tier III terrorist organization Liberians United for Reconciliation and Democracy, and thus was rendered ineligible for any form of relief. Alternatively, the BIA also denied his applications on the merits. Further, the BIA denied Petitioner’s request for deferral of removal under CAT, because he failed to show that it was more likely than not he would be tortured if returned to Liberia, and Petitioner challenges that conclusion. Last, Petitioner seeks review of the BIA’s conclusion that it was jurisdictionally barred from reviewing his application for an adjustment of status. For the reasons that follow, we affirm the BIA’s decision.

Petition denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Thomas Cureton

Case No.: 15-3575; 15-3581

Officials: EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.

Focus: Crime of Violence – Plain Error

Thomas Cureton appeals his conviction for using a firearm during a crime of violence. He con‐ tends that the crime of making a ransom demand in violation of 18 U.S.C. § 875(a) does not qualify as a “crime of violence” under 18 U.S.C. § 924(c). Because Cureton did not raise this challenge in the district court, we examine it through the demanding lens of plain‐error review. We see no plain error in interpreting the federal crime of demanding ransom as necessarily including at least an implied threat of physical force. Because a crime that includes a threat of physical force as an element qualifies as a crime of violence, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Nancy J. Pinno v. Patti Wachtendorf; Travis Seaton v. Judy P. Smith

Case No.: 15-3375; 15-3375

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Focus: 6th Amendment Violation

In Presley v. Georgia, 558 U.S. 209 (2010), the Supreme Court held that the right of a criminal defendant to a public trial, a right conferred by the Sixth Amendment, extends to the voir dire. Id. at 213–14. In the present case both petitioner‐appellants argue that this right was violated by the decision of the state trial judge (the same judge in both cases) to forbid members of the public to attend the voir dire phase of the petitioners’ trials in a Wisconsin state court that ended in their being convicted. After the Wisconsin Supreme Court, rejecting the petitioners’ Sixth Amendment argument, affirmed their convictions and sentences, they asked the local federal district court for habeas corpus. Both argued that they were entitled to a new trial because their Sixth Amendment rights had been violated. The district judge (the same judge in both habeas corpus proceedings) rejected their claims, awarding judgment for the respondents, who are the wardens of the prisons in which the petitioners are serving the sentences imposed on them by the state judiciary.

Affirmed

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7th Circuit Court of Appeals

Case Name: Demiko McCaster et al v. Darden Restaurants, Inc., et al

Case No.: 15-3258

Officials: WOOD, Chief Judge, KANNE and SYKES, Circuit Judges.

Focus: Class Certification

From roughly 2004 to 2012, Demiko McCaster and Jennifer Clark worked on and off at two Illinois eateries owned by Darden Restaurants. After quitting for good, they brought this proposed class action alleging that Darden failed to pay them pro rata vacation pay upon separation in violation of the Illinois Wage Payment and Collection Act (“IWPCA” or “the Act”), 820 ILL. COMP. STAT. 115/1-15. The district judge declined to certify their proposed class and granted summary judgment for Darden on Clark’s individual claim. McMaster then settled his claim with Darden but reserved the right to appeal the denial of class certification. We affirm. The judge was right to deny class certification. The plaintiffs’ proposed class definition described an impermissible “fail safe” class, and their proposed alternative did not satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. And Clark’s individual claim fails. The IWPCA doesn’t mandate paid time off. It merely prohibits the forfeiture of accrued earned vacation pay upon separation if the employee is otherwise eligible for paid vacation under the employer’s employment policy. During the relevant time period, Darden’s policy on paid vacation covered only full-time employees. Clark was ineligible because she worked part-time.

Affirm

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7th Circuit Court of Appeals

Case Name: Rahim McWilliams v. Cook County, Illinois, et al

Case No.: 15-1729

Officials: KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

Focus: Negligence

Rahim McWilliams, who is now incarcerated in the Illinois Department of Corrections, broke a bone in his right hand after slipping and falling on a wet floor while detained at the Cook County jail in Chicago. In this action under 42 U.S.C. § 1983 and Illinois law, McWilliams claims that employees at both the county jail and the state Department of Corrections deliberately ignored his injury until after it was too late to prevent permanent disfigurement and pain. McWilliams also claims that his fall resulted from staff negligence at the county jail. His operative complaint identifies the intended defendants to include Cook County and unnamed physicians and guards, but the lawsuit never proceeded because the district court, after twice denying an application from McWilliams to proceed in forma pauperis (“IFP”), dismissed the action for failure to pay the filing fee. We authorized McWilliams to proceed with this appeal IFP, and we agree with him that the district court abused its discretion in denying leave to proceed IFP.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Reginald Hart v. Amazon.com, Inc.,

Case No.: 16-2793

Officials: WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.

Focus: Case Without Merit

A very unusual case, this. The plaintiff, unrepresented by counsel (the district judge had recruited counsel initially, who, however, upon discovering that the suit was groundless, requested and was allowed to withdraw from the case, leaving the plaintiff to proceed pro se), has sued Amazon, claiming that it permitted third parties to advertise on its website six counterfeit copies of books called Vagabond Natural and Vagabond Spiritual that the plaintiff had written and self‐published (that is, published himself rather than handed to a publisher). According to his complaint he had written and published these books in order “to raise money and bring an end to vagabondage” by detailing his experiences as a vagabond (a homeless man). After self‐ publishing Vagabond Spiritual, however, he had decided not to release it to the public, yet it too had been advertised on Amazon.

Affirmed

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7th Circuit Court of Appeals

Case Name: Donna Geiger v. Aetna Life Insurance Company

Case No.: 16-2790

Officials: WOOD, Chief Judge, EASTERBROOK, Circuit Judge, and SHADID, District Judge

Focus: Insurance – Reinstatement

Plaintiff-appellant Donna Geiger’s long term disability insurance benefits were terminated after Aetna Life Insurance Company (“Aetna”), the insurer and administrator of her employee welfare benefit plan (“the Plan”), found that she no longer met the Plan’s definition of total disability from any gainful occupation. After unsuccessfully appealing the termination decision, Geiger brought an action seeking reinstatement of her benefits in the United States District Court for the Northern District of Illinois. The district court denied Geiger’s request to conduct limited discovery and ultimately granted summary judgment in favor of Aetna and against Geiger, holding that Aetna’s decision was not arbitrary and capricious or a product of a conflict of interest warranting discovery. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ryan L. Gibbs

Case No.: 16-1747

Officials: POSNER, KANNE, and SYKES, Circuit Judges.

Focus: Sentencing Guidelines

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence (i.e., 18 years, compared to the 15 and two‐thirds years that would be the length in years of a sentence of 188 months, the top of the guideline range), and that was the sentence that the district judge imposed and that the defendant’s appeal challenges.

Affirmed

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7th Circuit Court of Appeals

Case Name: Diane Parker v. Four Seasons Hotels, Limited

Case No.: 16-1244

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges

Focus: Punitive Damages – Sufficiency of Evidence

Diane Parker was injured when a sliding glass door in the bathroom of her Four Seasons Hotel room shattered. The hotel admitted negligence and a jury awarded Parker $20,000 in compensatory damages, which was reduced to $12,000 after a motion for set-off was granted. The district court declined Parker’s request to put the question of punitive damages to the jury, finding her evidence insufficient as a matter of law. We reverse and remand for further proceedings on the question of punitive damages.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: Tracy L. Wink v. Miller Compressing Company

Case No.: 16-2336, 16-2339

Officials: POSNER, RIPPLE, and ROVNER, Circuit Judges.

Focus: Attorney Fees

In this suit by the plaintiff, Wink, against her former employer, Miller Compressing Company, a three-day jury trial ended with a verdict in favor of Wink on three of her claims: retaliation in violation of the Family and Medical Leave Act (FMLA), violation of Wis. Stat. § 109.03 (a wages statute), and breach of contract. But the jury returned a verdict for Miller on Wink’s fourth claim, which was that Miller had interfered with her rights under the FMLA. Miller moved for judgment as a matter of law on the ground that no reasonable jury could have found enough evidence to justify its verdict. The district judge denied the motion, precipitating this appeal by Miller. Wink has crossappealed, seeking a higher award of attorneys’ fees for her successful suit.

Affirmed in part

Remanded in part

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7th Circuit Court of Appeals

Case Name: Rodney Clemons v. Randy Pfister

Case No.: 14-3797

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2005 an Illinois jury convicted Rodney Clemons of murdering Doris Smith, his former girlfriend and mother of his infant son. After an unsuccessful appeal and postconviction proceedings in state court, Clemons sought federal habeas review under 28 U.S.C. § 2254. He raised several claims, but only one is relevant here. Clemons argues that his trial attorney was constitutionally ineffective in violation of the rule of Strickland v Washington, 466 U.S. 668 (1984), for failing to call an alibi witness. The Illinois Appellate Court declined to consider this claim because Clemons raised it only in a pro se reply brief, which the court refused to accept because he was represented by counsel. The district judge concluded that the claim was procedurally defaulted. But she also addressed the merits of the Strickland claim and denied it. We affirm on the first ground. Procedural default precludes federal merits review of Clemons’s Strickland claim.

Affirmed

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