Weekly Case Digests — September 11 to September 15, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Uche P. Mordi v. Todd Zeigler, et al.

Case No.: 15-3307

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

Focus: Fourth Amendment Violation

In the present appeal, with the assistance of appointed counsel, he argues only that the district court erred in rejecting his Fourth Amendment claims against Zeigler and Zerrusen.  , Mordi is not asking for any form of relief that would undermine his guilty plea or his conviction. He is raising a civil rights complaint, and he is raising the type of complaint that Wallace says accrues at the time of the stop and arrest. In addition, even if Mordi filed a complaint that included some Heck‐barred contentions and other cognizable arguments, we have held that the proper response is not to toss the entire complaint. Instead, the judge must carve off any Heck‐barred contentions and proceed with what remains. Evans, 603 F.3d at 364; Gilbert, 512 F.3d at 902.

The district court cut off this case at the screening stage, based on a finding that it could not properly proceed under section 1983. This was in error, and so we REVERSE and REMAND for further proceedings consistent with this opinion.

Reversed and Remanded

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7^th Circuit Court of Appeals

Case Name: Cook County Republican Party, et al v. Frances Sapone, et al.

Case No.: 16-3457

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

Focus: Court Error – Subject-matter Jurisdiction

Declaratory-judgment suits under 28 U.S.C. §2201 can complicate the ascertainment of subject-matter jurisdiction by casting a natural defendant as the plaintiff. That’s what happened here; the Party sued Sapone and Tenuta to defend its decision to exclude them, rather than waiting for them to assert a right to be seated on the central committee. The Supreme Court has told us that the best way to evaluate jurisdiction in a declaratory-judgment suit is to determine whether the mirror-image suit by the other side would be within federal jurisdiction. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 19 (1983). So let us try that exercise.

The district court should not have adjudicated the dispute among the Party, Sapone, and Tenuta. The declaratory judgment is vacated, and this aspect of the case is remanded with instructions to dismiss for lack of subject-matter jurisdiction

Vacated in part. Remanded in part.

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7^th Circuit Court of Appeals

Case Name: Mark Schloesser v. Nancy A. Berryhill

Case No.: 16-1862

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judges

Focus: Sufficiency of Evidence

Schloesser now appeals, arguing that the Appeals Council erred because: (1) it failed to apply SSR 83‐20 in its determination of his onset date; (2) its findings that he did not suffer from severe impairments of cervical radiculopathy, major joint dysfunction, and history of left shoulder surgery were not supported by substantial evidence; and (3) its finding that his residual functional capacity (“RFC”) did not include being off‐task up to 10% of the workday or needing unscheduled breaks was not supported by substantial evidence. We affirm the denial of benefits because we find that SSR 83‐20 was irrelevant to the Appeals Council’s determination and that its findings regarding his impairments and RFC are supported by substantial evidence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Robert Lance Wilson v. Illinois Department of Financial and Professional Regulation, et al.

Case No.: 16-1831

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

Focus: Statue of Limitations

Wilson’s appellate lawyer contends that the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), comes to his rescue. Heck holds that a prisoner cannot use §1983 to challenge the validity of his conviction or to obtain other relief that necessarily implies the conviction’s invalidity. Instead, the Court stated, any §1983 litigation must be deferred until the conviction has been set aside by appeal, collateral review, or pardon. The Court added that as long as the custody lasts, the statute of limitations does not run: “a §1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.” 512 U.S. at 489–90. Heck was extended to prison disciplinary proceedings in Edwards v. Balisok, 520 U.S. 641 (1997). Wilson contends that we should further extend Heck to professional disciplinary proceedings.

By asking the district judge to dismiss the first suit—and thus to set a potential trap for Wilson under the statute of limitations— the defendants brought into play a second doctrine: equitable estoppel. But we need not decide whether the defendants’ motion to dismiss Wilson’s first suit estops them from pleading the statute of limitations once federal litigation resumed. It is enough to conclude that Wilson did not have a complete federal claim under §1983 until May 2014, when proceedings in state court ended, so as a matter of federal law his federal claim did not accrue until then. The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and Remanded

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7^th Circuit Court of Appeals

Case Name: Douglas G. Hicks v. Randall Hepp

Case No.: 15-3865

Officials: WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge. *

Focus: Ineffective Assistance of Counsel

Hicks was sentenced to 25 years’ imprisonment. After a failed collateral challenge to his conviction in state court, he filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 in federal court. The district court denied relief, and Hicks now appeals. On appeal he contends that the state court erred when it found that his counsel’s failure to move to suppress the recorded conversations, in which he confessed to the crime, did not constitute ineffective assistance of counsel. While we find that the state court unreasonably determined that Hicks’s trial counsel was credible when he testified that Hicks told him that he did not feel threatened during the call, we nonetheless find that Hicks did not suffer prejudice from the tape’s admission, because the other evidence of his guilt was sufficient to sustain his conviction.

Hicks also alleges that it was unreasonable for the state court to conclude that his counsel’s decision not to object during rebuttal was a strategic trial decision. We agree with Hicks that these statements were improper, and are very troubled by the state court’s finding on the issue. Nonetheless, because Hicks did not fairly present this claim to the Wisconsin Supreme Court in his petition for review, we find that he has procedurally defaulted on this claim for relief. As a consequence, we cannot reach the merits of this claim and affirm the district court’s denial of habeas relief.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Daniel Houlihan, et al. v. City of Chicago, et al.

Case No.: 16-2949

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

Focus: Jury Instructions and Improper Summary Judgment

On appeal, the plaintiffs raise three issues. First, they argue that the district court misadjudicated their patronage claims. Second, they contend that the court committed reversible error in the equal protection trial when excluding evidence of past racial discrimination and when instructing the jury. And third, they claim that summary judgment as to Nolan, Olson, and Roman was improper. We address each issue in turn.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Aldo Brown

Case No.: 16-1603

Officials: FLAUM, ROVNER, and SYKES, Circuit Judges

Focus: Abuse of Discretion

The jury found Brown guilty. He challenges his conviction, arguing that the judge wrongly excluded his expert witness. We reject this argument and affirm. Expert testimony about police standards may appropriately assist the jury in resolving some excessive-force questions, but sometimes evidence of this type is unhelpful and thus irrelevant, particularly when no specialized knowledge is needed to determine whether the officer’s conduct was objectively unreasonable. The misconduct alleged here was easily within the grasp of a lay jury, so the judge did not abuse her discretion in excluding the expert.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Charles Lamar, Jr.

Case No.: 2016AP1121

Officials: Kessler, Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel and Judicial Bias

In this appeal, Lamar first argues that he is not procedurally barred from raising the issues he now advances because the no-merit procedures were not followed. The other issues he raises are: (1) that his right to confront the victim in this case was violated when he was precluded from questioning the victim about his motive to testify; (2) that his trial counsel was ineffective when he failed to introduce into evidence the transcript of the victim’s testimony at his own suppression motion hearing, which is related to Lamar’s argument regarding the victim’s motive for testifying; and (3) that there was judicial bias on the part of the trial court

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeremy Ezekiel Hollis

Case No.: 2016AP1564-CR

Officials: Brennan, P.J., Kessler and Brash, JJ.

Focus: Motion to Suppress Evidence Denied

Jeremy Ezekiel Hollis appeals a judgment convicting him of possession of designer drugs with intent to deliver, possession of cocaine with intent to deliver, both as a party to a crime, felon in possession of a firearm, and misdemeanor disorderly conduct. Hollis argues that the circuit court should have granted his motion to suppress evidence found in his home because it was obtained during a warrantless police search, rather than during a valid probationary search as claimed by the State. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Lamonte Alton Ealy

Case No.: 2016AP1893-CR; 2016AP1894-CR; 2016AP1895-CR

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

Focus: Sufficiency of Evidence and Sentencing Guidelines

Lamonte Alton Ealy appeals judgments of conviction from three circuit court cases and an order denying his motion for postconviction relief. We affirm the judgments and order. Ealy first contends the evidence at trial was insufficient to prove attempted intimidation of a witness. “In a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict.” Ealy next asserts that joinder of the sex-offense and attempted intimidation cases was improper under WIS. STAT. § 971.12(1). He also argues that joinder was unduly prejudicial, as the jury could interpret his letters and phone calls as consciousness of guilt of the principal offense. We disagree. Finally, Ealy asserts that the sentencing decision reflects an erroneous exercise of discretion, claiming it was inadequately explained and is unduly harsh and excessive. We disagree, and decline to remand for resentencing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. C.L.H.

Case No.: 2017AP1278; 2017AP1279; 2017AP1280

Officials: BRASH, J.

Focus: Termination of Parental Rights

C.L.H. appeals from orders terminating her parental rights for three of her biological children, A.L.H., H.H., and M.J.H. She asserts that the trial court did not appropriately exercise its discretion in its determination that it was not in the best interests of the children to place them with their maternal grandfather, and seeks to vacate the termination of parental rights orders for all three children. We affirm.

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WI Court of Appeals – District IV

Case Name: Hailey Seitz, et al. v. Denise Barrett

Case No.: 2016AP1497

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

Focus: Negligence – Immunity

Hailey Seitz was injured by a vehicle while attempting to ride her bicycle through a crosswalk. Hailey and her parents, Roger and Sara Seitz (Seitz), filed a lawsuit against the City of Prairie du Chien alleging that the City was negligent in maintaining the crosswalk. The City appeals the order denying its motion for summary judgment.

The City argues that it is entitled to immunity because, as a matter of law, crosswalk maintenance is a discretionary function. We agree. Seitz does not point to any statute, code, ordinance, rule, or policy that creates an absolute, certain, and imperative duty on the City to maintain its crosswalks in such a manner that nothing remains for the City’s judgment or discretion. As the summary judgment papers established, the City uses its judgment to determine whether and when to repaint lines on city streets.

We further conclude that, as a matter of law, the crosswalk did not satisfy the known danger exception to immunity. The known danger exception applies when “the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act.” C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988). For the exception to apply, the existing danger must be “compelling enough that a self-evident, particularized, and non-discretionary municipal action is required.” Lodl, 253 Wis. 2d 323, ¶40. The danger of harm must be more than a possibility. See C.L., 143 Wis. 2d at 722-23.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Randi L. Rupnow

Case No.: 2016AP1572-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Sufficiency of Evidence and Jury Instructions

Randi Rupnow appeals an amended judgment convicting her of homicide by negligent operation of a vehicle. She challenges the sufficiency of the evidence and a jury instruction. We affirm for the reasons discussed below.

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WI Court of Appeals – District IV

Case Name: John Karsten v. Terra Engineering & Construction Corporation, et al.

Case No.: 2016AP2025

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

Focus: Application of Statute and Noncompete Clauses

The dispute on appeal is limited to whether Terra may enforce noncompete clauses, otherwise known as restrictive covenants, in a contract between Terra and Karsten, a former Terra employee. According to Terra, Karsten diverted business from Terra to one or more Midwest defendants in violation of that contract.

Terra argues that the circuit court erred in granting summary judgment against Terra and in favor of the Midwest defendants after the court concluded that the restrictive covenants are unreasonable and, thus, unenforceable. More specifically, Terra argues that, based on our decision in Selmer Company v. Rinn, 2010 WI App 106, 328 Wis. 2d 263, 789 N.W.2d 621, we should conclude that the statute that ordinarily governs restrictive covenants does not apply here or, at a minimum, that there is a factual dispute as to whether the statute applies. Terra further argues that, even if the statute applies, the restrictive covenants are reasonable and, thus, enforceable. We reject both arguments and therefore affirm.

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