Weekly Case Digests — Jan. 11-15, 2015

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7^th Circuit Court of Appeals

7^th Circuit Court of Appeals

Case Name: Michael Thompson v. William Holm

Case No.: 15-1928

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

Practice Area: 1^st Amendment – Freedom of Religion

Appellant presents evidence of impediment of 1^st amendment freedom of religion by prison staff.

“We next consider whether Thompson produced sufficient evidence that all the defendants were personally involved in imposing this burden. See Knight v. Wiseman, 590 F.3d 458, 462–63 (7th Cir. 2009). Once again, the answer is yes. We con‐ sider the defendants individually, beginning with Lashock. He was responsible for delivering the meal bags to all in‐ mates on the eligibility list. Yet he personally denied them to Thompson for two days even though, as one could infer from the evidence, Thompson remained on the list. As to Holm, Thompson swears that Bleich and Larson told him that Holm personally removed him from the list, thus over‐ riding the role of the chaplain. Moreover, a jury reasonably could infer from the conflicting grievance report investigations that Holm lied about whether he had removed Thompson from the meal list. Finally, as to Bleich and Larson, they also bear responsibility for depriving Thompson of his food. By (falsely) telling Thompson that Holm had removed him from the religious meal list, refusing to bring him any meals, and warning him to go to the cafeteria if he wanted to eat, a jury reasonably could infer that they were involved in a joint effort to pressure Thompson to break his fast. From this evidence, construed in Thompson’s favor, a jury could find that all the defendants were personally involved in intentionally denying Thompson the meal bags.”

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Vacated and Remanded

7^th Circuit Court of Appeals

Case Name:  August Bogina, III v. Midline Industries, Inc.

Case No.:15-1867

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

Practice Area: Fraud

Appellant allegations of fraud not based on sufficient information.

“Bogina’s complaint is not saved by its allegations that the fraud continues to the present day, because those allegations are “on information and belief.” As we explained in another false-claims bounty-hunting case, United States ex rel. Grenadyor v. Ukrainian Village Pharmacy, Inc., 772 F.3d 1102, 1105–08 (7th Cir. 2014), it is because a public accusation of fraud can do great damage to a firm before the firm is exonerated in litigation (should the accusation prove baseless) that Rule 9(b) of the Federal Rules of Civil Procedure requires that “in alleging fraud … a party must state with particularity the circumstances constituting fraud.” Allegations based on “information and belief” thus won’t do in a fraud case—for “on information and belief” can mean as little as “rumor has it that … .”

Affirmed

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7^th Circuit Court of Appeals

Case Name: EEOC v. Autozone Inc.

Case No.: 15-1753

Officials: BAUER, RIPPLE, and ROVNER, Circuit Judges

Practice Area: Discrimination – Termination

Appellant not qualified as an individual with a disability, therefore termination did not amount to discrimination.

“At trial, AutoZone presented testimony from former PSMs at the Cudahy, Wisconsin, location regarding the lifting requirements of a PSM. For example, Angel Maldonado (“Maldonado”) testified that the PSM job functions included lifting and moving the items at the store, as well as the items brought in by the customers, at least 30‐40 times per day. Maldonado agreed that lifting the products sold at the store was a “regular part” of the job, and that when he initially received the PSM position, he understood that it involved “heavy lifting.” Tabari Stewart (“Stewart”), another former PSM at the Cudahy, Wisconsin, location, testified that it was a regular aspect of customer assistance to retrieve an item from the store, hold it forthe customerto inspect, and even carry the item to the customer’s car. In addition, the testimony at trial establishedthatthe items atthe store could weigh substantially more than 15 pounds. For example, car batteries could weigh anywhere from 25 to 75 pounds. Cases of antifreeze and motor oil weighed around 30 pounds. AutoZone also established an itemized list of other products within the store that weighed over 15 pounds, such as brakes, rotors, brake drums, ready‐ mount struts, and radiators.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Iaad Hamad

Case No.:14-3813

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

Practice Area: Motion to Suppress

Appellant voluntarily given incriminating statements given after arrest are not suppressed. Ordinance sufficient to replace need for search warrant

“Hamad’s contention that the court should have also suppressed the incriminating statements he later made to the police was entirely dependent on his claim that the Ordinance was not an adequate substitute for a search warrant. Because we have determined that the district court did not plainly err in finding the Ordinance adequate, we must also conclude that the court did not err in allowing Hamad’s incriminating statements into evidence. We need not decide whether, in the alternative, the evidence could have been admitted under the inevitable discovery doctrine.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. J.B. Brown

Case No.: 14-3652

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

Practice Area: Juror Removal

Removal of two jurors based on rational and sincere justification – court did not err.

“Even assuming arguendo that the government’s failure to ask Juror 74 follow-up questions did constitute evidence of pretext, Brown presented this exact same argument to the district court. Yet, the court credited the government’s race-neutral explanation over Brown’s argument. In particular, the court read Juror 74’s responses and found “that [the response] does not require any clarification.” And the court concluded that the government’s justification was sincere. Brown has not offered any reason for us to second guess the district court’s credibility finding on appeal. See Yarrington, 640 F.3d at 780. Thus, the district court did not clearly err.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Benard McKinley v. Kim Butler

Case No.: 14-1944

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

Practice Area: Pleas & Sentencing – Cruel & Unusual Punishment

Judge’s imposition of life sentence for 16 yr old defendant warrants further consideration.

“Murder is of course one of the most serious crimes, but murders vary in their gravity and in the information they reveal concerning the likelihood of recidivism by the murderer. In the case of a 16-year-old kid handed a gun by another kid and told to shoot a designated person with it, it is difficult to predict the likelihood of recidivism upon his release from prison or to assess the deterrent effect of imposing a long sentence on him, without additional information. A competent judicial analysis would require expert psychological analysis of the murderer and also of his milieu. Does he inhabit a community, a culture, in which murder is routine? Are other potential murderers likely to be warned off murder upon learning that a 16-year-old kid has been sentenced to life in prison, or are they more likely to think it a fluke? Is the length of a sentence a major factor in deterrence? Given that criminals tend to have high discount rates, meaning that they weight future events very lightly, does it matter greatly, so far as deterrence is concerned, whether a murderer such as McKinley is sentenced to 20 years in prison or 100 years? And here is where Miller plays a role. It does not forbid, but it expresses great skepticism concerning, life sentences for juvenile murderers. Its categorical ban is limited to life sentences made mandatory by legislatures, but its concern that courts should consider in sentencing that “children are different” extends to discretionary life sentences and de facto life sentences, as in this case. A straw in the wind is that the Supreme Court vacated, for further consideration in light of Miller, three decisions upholding as an exercise of sentencing discretion juveniles’ sentences to life in prison with no possibility of parole: Blackwell v. California, 133 S. Ct. 837 (2013); Mauricio v. California, 133 S. Ct. 524 (2013); Guillen v. California, 133 S. Ct. 69 (2012).”

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Lance Slizewski

Case No.: 15-2397

Officials: MANION, KANNE, and WILLIAMS, Circuit Judges

Practice Area: Motion to Suppress – Search Warrant

Omissions and misrepresentations in search warrant were immaterial and unintentional.

“Slizewski next addresses the cars. He contends that Peterson misled the state judge by suggesting that Slizewski’s car resembles cars seen in the two robberies, but omitting that Slizewski’s is an Impala and the car in the surveillance video of the third robbery was a Malibu. But those two cars are similar—both are black, four‐door Chevy sedans with similar body shapes and taillights. True, they are not identical—the license plates hang slightly differently and one car has five‐spoke wheels while the other has six spokes. But negligence in not noticing those slight differences does not justify a Franks hearing. See Johnson, 580 F.3d at 671. In any event, a witness to the second robbery said that the suspect used a black sedan “similar” to a Malibu. And as the magistrate judge noted, “the Malibu is the Impala’s little brother.” Thus Slizewski has not shown that Peterson made an intentional misstatement about the cars’ similarity”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tracy Williams v. Brandon Brooks

Case No.:15-1763

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

Practice Area: Summary Judgment

Probable cause existed for police stop and actions taken by officer were reasonable given the circumstances.

“Williams’s argument misstates the law. “Evidence of acquittal in a criminal action is generally irrelevant and inadmissible in a civil case involving the same incident since it constitutes a negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.” Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir. 2005) (citation and internal quotation marks omitted). Therefore, the district court correctly decided that it was not bound by the state court’s findings. Additionally, even if the district court adopted the state court’s finding that Williams did not resist law enforcement, it would be irrelevant to his unlawful arrest claim. As explained above, a reasonable jury must find that since Officer Brooks had probable cause for the traffic stop, he could ar rest Williams—for the traffic infraction or for resisting law enforcement—without violating the Fourth Amendment”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Matthew Poulin

Case No.:14-2458

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

Practice Area: Pleas & Sentencing – Conditions of Supervised Release

Conditions of supervised release without reason call for resentencing.

“Nevertheless, this condition is problematic for the same reason we observed in Kappes: The meaning of “other family responsibilities” is not apparent. 782 F.3d at 852. We must conclude that the district court procedurally erred in imposing this condition. On remand, the district court should make explicit the extent to which this condition requires financial, as opposed to other forms, of support and take into account Poulin’s ability to pay. See id. (“The meaning of the phrase, ‘other family responsibilities,’ is not apparent … . To the extent the condition requires only financial support, the condition should make that explicit and should include a limitation which takes into account the defendant’s ability to pay.”).”

Vacated and Remanded ( as to conditions of supervised release)

Affirmed otherwise.

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7^th Circuit Court of Appeals

Case Name: Holli Hammarquist, et al v. United Continental Holdings, Inc.

Case No.:15-1836 & 15-1845

Officials: POSNER, MANION, and HAMILTON, Circuit Judge

Practice Area: Breach of Contract

Amendment of rewards program does not amount to breach were alterations to rewards program allowed under contract.

“Yet the evidence all pointed in the opposite direction: the Million‐Mile Flyer Program was simply a component of MileagePlus, not a free‐standing contract for Million‐Mile Flyer benefits. Id. at 1127. In particular: (1) only members of MileagePlus were eligible to receive Million‐Mile Flyer status; (2) information about the Million‐Mile Flyer Program was situated “under the umbrella” of MileagePlus on United’s website; and (3) a member’s Million‐Mile Flyer status was indicated on his ordinary MileagePlus membership card. Id. In light of these facts, the plaintiff failed to establish the existence of a separate agreement for benefits apart from the agreement governed by the MileagePlus Program Rules. Because those rules expressly allowed United to change the program benefits at any time, we concluded that United did not breach a contract by altering the benefits associated with the Million‐Mile Flyer status level of MileagePlus. Id.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Dawkins v. United States of America

Case No.: 15-3667

Officials: POSNER, FLAUM, and RIPPLE, Circuit Judges

Practice Area: Pleas & Sentencing – Constitutionality – Residual Clause

Reliance on prior convictions of appellant as consideration in sentencing was proper, reliance on residual clause of Armed Criminal Act was not necessary. Court did not err.

“Consider the following example: A thief picks the front‐ door lock of a house, enters, and steals property that he finds in the house. He does no damage to the lock. He “breaks” nothing. But obviously he is a burglar. He has used force to enter a house for an unlawful purpose, albeit without destroying anything. Suppose instead he breaks a small windowpane in the door, reaches in, and unlocks the door from the inside, then enters and steals. He is more of a burglar because he broke something? Is breakage a condition of bur‐ glary? Would the reader of this opinion feel more comfortable knowing that the burglar who stole the wallet on his dresser had picked the lock of his front door rather than forcing the door open by pushing on it? The important point is that the entry is unlawful, which is to say without authorization—the practical equivalent of the older term “breaking and entering.”

Motion Denied

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7^th Circuit Court of Appeals

Case Name: Frederick Grede v. Bank of New York

Case No.:15-1039

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

Practice Area: Bankruptcy

Bank remains as creditor, but will be an unsecured creditor due to it being put on inquiry notice of assets.

“Section 550(d), the basis of the bank’s second defense, limits a trustee in bankruptcy to a single satisfaction of a debt owed the bankrupt estate. The district judge thought that granting the trustee the requested relief would result in “a windfall recovery of the millions loaned to Sentinel by BNYM plus the entire collateral that secured these loans,” because the trustee would have both the value of the loans that remained and the collateral (the customers’ assets that Sentinel pledged to the bank). No. The bank is still owed Sentinel’s debt to it. It has just lost its security interest. This does not give the trustee a double recovery. See In re Skywalkers, Inc., 49 F.3d 546, 549 (9th Cir. 1995). The bank remains a creditor in the bankruptcy proceeding, but is an unsecured creditor because it was on inquiry notice that the assets that Sentinel had used to secure the bank’s loans had been fraudulently conveyed to the bank.”

Affirmed in part and reversed in part. Remanded

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Wisconsin Supreme Court

WI Supreme Court

Case Name: Winnebago County v. Christopher S.

Case No.: 2014AP1048

Practice Area: Ch. 51 Commitments

Appellant argues that Ch. 51 violate substantive due process and is unconstitutional, to no avail.

“This distinction is important because “a valid criminal conviction and a prison sentence extinguish a defendant’s right to freedom from confinement.” Vitek, 445 U.S. at 493 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1980) (“But the conviction, with all its procedural safeguards, has extinguished that liberty right: ‘[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.'” (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976) (“But given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system . . . .”)))); see also Johnson v. California, 543 U.S. 499, 510 (2005) (“This is because certain privileges and rights must necessarily be limited in the prison context.”); In re Commitment of West, 2011 WI 83, ¶85, 336 Wis. 2d 578, 800 N.W.2d 929 (holding that a liberty interest in freedom from confinement is not absolute). “Such a conviction and sentence sufficiently extinguish a defendant’s liberty ‘to empower the State to confine him in any of its prisons.'”21 Vitek, 445 U.S. at 493 (quoting Meachum, 427 U.S. at 224). To be clear, we are not suggesting that an inmate loses all, or even most, of his or her constitutional rights while he or she is serving his or her sentence. Rather, a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Turner v. Safley, 482 U.S. 78, 95 (1987) (alteration in original) (internal quotation marks omitted) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).”

Affirmed

ABRAHAMSON, A.W.BRADLEY, J.J., concur and dissent. (Opinion Filed)

R.G. BRADLEY, did not participate.

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