Weekly Case Digests — Oct. 31-Nov. 4, 2016

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Jairo E. Ramos v. Gary Hamblin, et al

Case No.: 15-3052

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

Focus: Dismissal of Suit – Deliberate Indifference

“The complaint charges the defendants, who are supervisory personnel at Stanley, including its warden, with deliberate indifference to the danger of the plaintiff’s being sexually assaulted by DaSilva. All prisoners at Stanley have a cellmate, randomly assigned in the first instance, and the plaintiff claims that the defendants were aware of, but did nothing to eliminate, the danger of placing DaSilva in the same cell with him. Not only had DaSilva committed a previous sexual assault, albeit against a woman, but in addition the plaintiff claims to have been perceived as homosexual, which may have made him more likely to be assaulted, sexually or otherwise.

More broadly the plaintiff attacks the practice of random assignment of cellmates. Presumably his previous cellmate had been transferred to a different cell (or different prison, or had completed his prison term and been released), leaving a gap that the prison filled with a random assignment, namely of DaSilva. . . Had the plaintiff any fear of DaSilva, it behooved him to ask the prison staff to transfer him to another cell. If he either is a homosexual or, as he contends, felt vulnerable because he was believed by prison staff and prisoners to be one, it behooved him to complain to prison staff, consistently with the advice in the prison handbook. He didn’t do that.

He argues that random assignment of cellmates is deliberate indifference per se to prisoners’ safety. But the only alternative he suggests (for he does not argue that all prison inmates should be in solitary confinement or even that he should have been) is that sex offenders never be placed in cells with any inmate who for whatever reason is at a heightened risk of being sexually assaulted. Given the number of characteristics that could trigger such a heightened risk, sex offenders would probably have to be either placed in solitary confinement or given cellmates who were also sex offenders. The feasibility of such a solution can be questioned; but more important is the fact that the plaintiff presents no evidence that it would promote prison safety more than the handbook, which emphasizes a prisoner’s right to complain about danger posed to him by a cellmate. Apropos is our comment in Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788 (7th Cir. 1995), that if prison staff “place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent—even grossly negligent or even reckless in the tort sense—in failing to know.” We can’t even say that administrators of the Stanley Correctional Institution were negligent or reckless in erecting this policy. The line officers who assigned Ramos and DaSilva to the same cell may have been negligent or reckless, but he hasn’t sued them—just the administrators.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Central States, Southeast and Southwest Areas Health and Welfare Fund v. American International Group, Inc., et al.

Case No.: 15-2237

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

Focus: ERISA – Appropriate Equitable Relief

A self-funded ERISA plan has sued several independent health insurers seeking reimbursement for medical expenses it paid on behalf of beneficiaries who were covered under both the plan and the insurers’ policies. We’re asked to decide whether a lawsuit like this one—a “coordination of benefits” dispute—seeks “appropriate equitable relief” under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). Six circuits have held that section 502(a)(3) does not authorize suits of this type because the relief sought is legal, not equitable. We join this consensus and affirm the dismissal of the ERISA plan’s suit.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Sanford-Brown, Limited, et al

Case No.: 14-2506

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

Focus: False Presentment

This matter is before us on remand from the United States Supreme Court for reconsideration in light of its recent decision in Universal Health Services, Inc. v. United States, 136 S. Ct. 1989 (2016). See U.S. ex rel. Nelson v. Sanford-Brown, Ltd., 136 S. Ct. 2506 (2016). The only part of our previous opinion, United States v. Sanford-Brown, Ltd., 788 F.3d 696 (7th Cir. 2015), that is affected by the holding in Universal Health is part IV(B)(2), which addressed the plaintiff-relator’s false presentment claim under 31 U.S.C. § 3729(a)(1)(A) of the False Claims Act. We readdress that claim here in light of Universal Health and substitute the following discussion for part IV(B)(2) of our earlier opinion. The remainder of our previous opinion is reinstated, and we once again affirm the district court in all respects.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Matthew Elder

Case No.: 15-2584

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

Focus: Sentencing

Matthew Elder was convicted for conspiracy to distribute methamphetamine and sentenced to a mandatory term of life imprisonment. He now appeals his conviction and sentence. For the reasons that follow, we affirm Elder’s conviction but vacate his sentence and remand for resentencing.

Affirmed in part

Vacated and remanded in part

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7^th Circuit Court of Appeals

Case Name: United States of America v. Oscar Rash

Case No.: 16-1672

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

Focus: False Testimony – Obstruction

Oscar Rash, who was convicted of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), challenges the district court’s decision to apply a two-level upward adjustment for obstruction of justice. At his trial Rash had conceded to possessing the gun, but the district court found at sentencing that he had also deceptively downplayed his involvement with the gun. Rash argues that, because he conceded possession, his false testimony about his connection to the gun was immaterial to his conviction. But because the district court reasonably concluded that Rash’s lie could have misled the jury to acquit him, the lie was material and the adjustment for obstruction was proper. Therefore we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Chance T. Kelham

Case No.: 16-1544

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

Focus: Employee Injury – Negligence

The plaintiff, Chance Kelham, a railroad engineer, sued the railroad that employed him, accusing it of having negligently caused him to be injured, for which he seeks compensation under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. The case was tried to a jury, which exonerated the railroad, precipitating this appeal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Charles Haney

Case No.: 16-1513

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

Focus: Sentencing

Charles Haney pled guilty to possessing a gun as a felon. See 18 U.S.C. § 922(g)(1). The district court found that Haney had at least three prior convictions that qualified as “violent felonies” under the Armed Career Criminal Act and sentenced him to the mandatory minimum of fifteen years’ imprisonment. See id. § 924(e)(1). On appeal Haney argues that, in light of recent decisions by this court and the Supreme Court, his prior convictions for burglary in Illinois are not appropriate predicates under the ACCA. We agree, vacate the district court’s judgment, and remand for resentencing.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Jacquelyn M. Carlson v. Christian Brothers Services

Case No.: 15-3807

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

Focus: Americans with Disabilities Act

The plaintiff filed this suit against her former employer, defendant Christian Brothers Services (the parties refer to it as CBS), charging disability discrimination. CBS is a religious organization headquartered near Chicago that provides health and a number of other services to the Roman Catholic community in Illinois, other parts of the United States, and Canada. See Christian Brothers Services, www.cbservices.org (visited Oct. 26, 2016, as were the other websites cited in this opinion). The plaintiff, a senior customer service representative of the defendant, was in an automobile accident in March 2011 as a result of which she had to use a cane, and limped, and she was fired on February 1, 2012, because (she contends) of a perceived disability (mobility impairment) caused by the accident that had required her to take time off from work and to use her health insurance to pay the costs she’d incurred as a result of the accident. She argues that in these circumstances her employer’s firing her violated the Americans with Disabilities Act.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Pawel W. Wrobel, et al

Case No.: 15-2511; 15-3106

Officials: BAUER, POSNER, and EASTERBROOK, Circuit Judges

Focus: HOBBS Act – Procedural Error – Sufficiency of Evidence

Evidence was more than sufficient to show nexus between offense conducted by the appellants and interstate conduct to satisfy the HOBBS act violation charges.

“Wrobel and Stanislawczyk’s reliance on Mattson is misplaced. They believe that Mattson precludes us from finding that the government satisfied the interstate commerce element because Reichman, like the victim in Mattson, is an individual not engaged in interstate commerce. This argument overlooks a crucial distinction based on well-established law. Unlike the extortion conviction reversed in Mattson, Wrobel and Stanislawczyk’s convictions were for an attempted Hobbs Act robbery. Factual impossibility and mistake of fact are not defenses to an attempt crime. Mitov, 460 F.3d at 908 (citing Bailey, 227 F.3d at 797); Muratovic, 719 F.3d at 814 (noting that the “inability to complete the crime ‘does not diminish the sincerity of any efforts to accomplish that end’” (quoting United States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994))). It does not matter whether or not Reichman was actually a diamond merchant engaged in interstate commerce. What matters is that the evidence demonstrated that Wrobel and Stanislawczyk acted with the specific intent to rob a diamond merchant and took a substantial step toward robbing diamonds from someone whom they believed to be a diamond merchant. The government presented sufficient evidence to establish the required nexus between the offense and interstate commerce”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ronald Marion Carpenter, Jr. v. Timothy Douma

Case No.: 15-1688

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

Focus: Untimely Petition

A jury convicted Ronald Marion Carpenter, Jr. of kidnapping, false imprisonment, and several counts of sexual assault. Carpenter challenged his conviction on both direct and collateral review in Wisconsin state court. His conviction was affirmed, and his state petition for a writ of habeas corpus was denied. Carpenter then filed a petition for a writ of habeas corpus in the Eastern District of Wisconsin. By the time he filed this federal petition, however, the one‐year statutory limitation period had already passed. The district court dismissed Carpenter’s petition as untimely. Carpenter does not dispute that his petition was untimely; instead, he argues that his delay should be equitably tolled and that we should hear the merits of his case. Because Carpenter has not met the standard for equitable tolling, we agree with the district court. We hold that Carpenter’s petition is untimely and thus was properly denied.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Federal Trade Commission et al v. Advocate Health Care Network, et al

Case No.: 16-2492

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

Focus: Preliminary Injunciton – Clayton Act

Court erred in denying preliminary injunction preventing merger by failing to properly analyze the relevant geographic market.

“The hospitals correctly point out that, strictly speaking, that reasoning is not the same as the silent majority fallacy. The silent majority fallacy treats present travel as a proxy for post-merger travel, while diversion ratios predict likely postmerger travel more directly. But the district court’s reasoning and the silent majority fallacy share a critical flaw: they focus on the patients who leave a proposed market instead of on hospitals’ market power over the patients who remain, which means that the hospitals have market power over the insurers who need them to offer commercially viable products to customers who are reluctant to travel farther for general acute hospital care. That flaw runs through the district court’s decision. The court focused on identifying hospitals that compete with those in the Commission’s proposed market. But the relevant geographic market does not include every competitor. It is the “area of effective competition,” E. I. du Pont, 353 U.S. at 593 (emphasis added) (citation omitted), the place where the “effect of the merger on competition will be direct and immediate,” Philadelphia National Bank, 374 U.S. at 357. It includes the competitors that discipline the merging hospitals’ prices. AD/SAT, 181 F.3d at 228; Rebel Oil, 51 F.3d at 1434. The geographic market question asks in essence, how many hospitals can insurers convince most customers to drive past to save a few percent on their health insurance premiums? We should not be surprised if that number is very small. Plaintiffs have made a strong case that it is. “

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Michael Koziara v. BNSF Railway Co.,

Case No.: 16-1577

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

Focus: Railroad Safety Act Violations

The Federal Railroad Safety Act forbids a railroad to discharge or otherwise discriminate against an employee for conduct protected by the Act, including notifying the railroad that he has suffered a work‐ related injury. 49 U.S.C. § 20109(a), (a)(4). The plaintiff in this case was employed by BNSF Railway Company, the second‐ largest North American freight railroad, and brought this suit against the railroad for violating the provisions of the Railroad Safety Act that we just cited. A jury returned a verdict in favor of the plaintiff and awarded him damages, and the defendant, having failed to persuade the district judge to award judgment to it despite the jury’s verdict, has appealed.

Reversed with instructions to dismiss the suit

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Margaret Gagliano et al v. Aurora Health Care Metro

Case No.: 2015AP611

Officials: Kessler, Brennan and Brash, JJ.

Focus: Discretionary Reversal

Margaret and Charles Gagliano and their insurer (“the Gaglianos”) appeal from a judgment entered on a jury verdict dismissing all claims against defendant Aurora Health Care Metro, Inc. and its insurer (“Aurora”). The Gaglianos seek discretionary reversal pursuant to WIS. STAT. § 752.35 (2013-14). For the reasons that follow, we conclude that they have not established that they are entitled to discretionary reversal. We affirm

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WI Court of Appeals – District III

Case Name: Enbridge Energy, Limited Partnership, et al v. Jeremy D. Engelking, et al

Case No.: 2015AP1346

Officials: Kessler, Brennan and Brash, JJ

Focus: Land Use

The Engelkings appeal the portion of the judgment and order concerning the right to clear and use land outside the right of way, as well as other rulings on arbitration, trial evidence, remedies and costs. Enbridge cross-appeals the determination that the width of the right of way is fifty feet, arguing instead that the law requires a finding that the easement gives Enbridge a right of way with a width of 154 feet, spanning the six pipelines laid between 1949 and 2009 and workspace on either side. The case was tried and appealed once before; this court affirmed in part and, as relevant here, reversed the first trial court’s determination that the right of way covered the entirety of the property. On remand, the trial court was directed to determine the location of the right of way. The second trial court adopted an advisory jury’s verdicts and made its own findings and conclusions. We affirm on all nine issues (which we have organized into five sections, some with multiple subparts) because the trial court followed the proper law and reached reasonable conclusions of law on each issue, supported by findings of fact that were not clearly erroneous. See Spencer v. Kosir, 2007 WI App 135, ¶13, 301 Wis. 2d 521, 733 N.W.2d 921.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Eddie D. Walker

Case No.: 2015AP1748-CR; 2015AP1749-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Admission of Evidence – Court Discretion

Eddie D. Walker appeals from a judgment of conviction entered after a jury found him guilty of two counts of first-degree sexual assault and from an order denying postconviction relief. Walker’s convictions arise from two separate incidents involving different females, C.H. and J.N. Walker challenges the circuit court’s admission of evidence that he sexually assaulted a third female, B.V., on a different occasion. We conclude that the circuit court properly exercised its discretion in admitting the other acts evidence. We affirm.

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WI Court of Appeals – District II

Case Name: County of Fond Du Lac v. Stuart D. Muche

Case No.: 2015AP2223

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Ordinance Interpretation & Conformity

This appeal addresses whether Fond du Lac County’s social host ordinance is in strict conformity with WIS. STAT. § 125.07(1) (2013-14), which establishes restrictions relating to alcohol and underage persons. We hold that it is not. We reverse and remand for dismissal of the forfeiture imposed upon Stuart D. Muche.

Recommended for publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joseph J. Dull

Case No.: 2015AP2251-CR

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Sufficiency of Evidence

Joseph J. Dull appeals pro se from an order denying his motion for postconviction relief. He contends that the circuit court erred in denying his motion because he showed that there was insufficient evidence to support one of his convictions. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel White

Case No.: 2015AP2381-CR

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Motion For New Trial

A jury found Daniel White guilty of battery to a law enforcement officer; resisting an officer, causing a soft-tissue injury; and disorderly conduct. We affirm the judgments of conviction and the order denying White’s postconviction motion for a new trial.

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WI Court of Appeals – District II

Case Name: County of Fond Du Lac v. Blade N. Ramthun

Case No.: 2016AP825

Officials: Neubauer, C.J.

Focus: OWI – Suppression of Evidence

Blade N. Ramthun appeals from a judgment entered after a stipulated trial finding him guilty of operating a motor vehicle while under the influence of an intoxicant (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as first offenses. Ramthun contends that the circuit court should have suppressed evidence recovered during an illegal detention. Specifically, he argues that when a deputy sheriff transported him from the scene of the traffic stop to a gas station three or four miles away in order to administer field sobriety tests, the temporary seizure was transformed into an illegal arrest. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: County of Sheboygan v. Lee F. Kleinhans

Case No.: 2016AP836

Officials: Gundrum, J.

Focus: Traffic Violation

Lee Kleinhans appeals pro se from an order finding him guilty of failing to obey an official traffic sign, in violation of WIS. STAT. § 346.04(2). We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Thomas D. Dowling

Case No.: 2016AP838-CR

Officials: Gundrum, J.

Focus: Ineffective Assistance of Counsel

Thomas Dowling appeals from a judgment of conviction for disorderly conduct as well as the circuit court’s order denying his postconviction motion. Dowling argued his trial counsel performed ineffectively by failing to seek suppression of evidence based on his withdrawal of his wife’s consent for police officers to enter their apartment. We conclude the court did not err, and we affirm.

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WI Court of Appeals – District II

Case Name: Kevin Roberts v. Stevens Construction Corporation, et al

Case No.: 2015AP2441

Officials: Lundsten, Sherman and Blanchard, JJ.

Focus: Failure to Rehire

Kevin Roberts appeals a circuit court order that affirmed the decision of the Labor and Industry Review Commission (LIRC) dismissing Roberts’ claim that Roberts’ former employer unreasonably refused to rehire Roberts following a workplace injury. For the reasons discussed below, we affirm.

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WI Court of Appeals – District IV

Case Name: Adam Thompson, et al. v. Mueller Tax and Accounting, Inc.,

Case No.: 2016AP77

Officials: Kloppenburg, P.J, Sherman, and Blanchard, JJ.

Focus: Claim Preclusion

Adam Thompson, doing business as Thompson Investments, and A & M Plumbing, Inc. (collectively, “Thompson”) appeals a judgment dismissing Thompson’s accounting negligence action, filed in Juneau County, against Mueller Tax and Accounting Inc. (“Mueller”). This Juneau County action (“the instant action”) was preceded by a related, previously resolved action between the same parties in Waushara County (“the first action”). The circuit court dismissed the instant action, based on the nature of the first action, both under the doctrine of claim preclusion and because the instant action is a compulsory counterclaim arising out of the same transaction as the first action. On appeal, Thompson challenges only the determination regarding claim preclusion and not any separate aspect of the compulsory counterclaim determination. For the following reasons we affirm.

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WI Supreme Court

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Craig E. Vance

Case No.: 2015AP655-D

Focus:  Disciplinary Proceedings

Attorney license suspended for 9 months

“In March 2012, Attorney Vance filed a lawsuit on Z.A.’s behalf without informing Z.A. that he had filed the lawsuit. He later failed to notify Z.A. of a settlement offer from the defendant. He failed to respond to requests for admission from the defendant, resulting in the circuit court deeming the requests to be admitted. He failed to respond to the defendant’s warning that it would seek costs associated with filing a summary judgment motion based on the deemed admissions unless he dismissed the case. He also failed to inform Z.A. of the defendant’s warning. He failed to respond to the defendant’s ensuing summary judgment motion, and he failed to appear at the summary judgment hearing, resulting in the circuit court granting summary judgment against Z.A. He failed to respond to Z.A.’s phone call regarding his failure to attend the summary judgment hearing.”

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US Supreme Court Digests

United States Supreme Court

Case Name: Bosse V. Oklahoma

Case No.: 15-9173

Focus: Validity of Victim Impact Evidence

State court erred in concluding that opinions from victim’s family members about the defendant’s sentence were allowed where Booth v. Maryland makes it clear that the 8^th amendment prohibits a capital sentencing jury from considering victim impact evidence that does not directly related to the circumstances of the crime.

“The Oklahoma Court of Criminal Appeals has held that Payne “implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence.” Conover v. State, 933 P. 2d 904, 920 (1997) (emphasis added); see also Ledbetter v. State, 933 P. 2d 880, 890–891 (Okla. Crim. App. 1997). The decision below presents a straightforward application of that interpretation of Payne. A jury convicted petitioner Shaun Michael Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals. “[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P. 2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).”

Reversed and Remanded

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