Weekly Case Digests — September 17 – September 21, 2018

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: George A. Plessinger, II, v. Nancy A. Berryhill

Case No.: 18-1240

Officials: SYKES, HAMILTON, and BRENNAN, Circuit Judges.

Focus: ALJ Error – Disability

George Plessinger applied for disability insurance benefits under the Social Security Act based on his chronic back pain. An administrative law judge found that he was severely impaired by his lumbar degenerative disc disease and stenosis, thoracic degenerative disc disease, obesity, and systemic hypertension. Given the stringent standard for total disability under the Social Security Act, however, the ALJ found that these impairments were not disabling. The agency’s Appeals Council denied review, and the district court upheld the ALJ’s decision. We reverse and remand to the agency. In the face of the great weight of medical evidence supporting Plessinger’s claims of disabling impairments, the ALJ gave undue weight to the opinion of the testifying medical expert, who did not examine Plessinger and hedged his opinion in a critical way that was never resolved. The ALJ and the testifying medical expert each seemed to delegate to the other the job of evaluating the credibility of Plessinger’s complaints of pain. The ALJ’s decision to discount the credibility of those complaints was not supported by substantial evidence.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Timothy O’Brien, et al. v. Catepillar Inc.,

Case No.: 17-2956

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

Focus: Unemployment Benefits – Collective Bargaining Agreement

For more than half a century, Caterpillar Inc. paid unemployment benefits to laid-off employees at its manufacturing plant in Joliet, Illinois. This arrangement lasted until Caterpillar and the local union agreed to end the program in their 2012 collective-bargaining agreement. In exchange for the elimination of the benefits, Caterpillar distributed $7.8 million to certain employees who had participated in the plan. Retirement-eligible employees received a pro rata share if they agreed to retire. Those who were ineligible to retire received the same pro rata share of the fund but with no strings attached.

Timothy O’Brien and 47 other retirement-eligible employees who refused to retire brought this lawsuit, alleging that the liquidation plan violates the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. The district judge entered summary judgment for Caterpillar, and we affirm. Though the liquidation plan has a disparate impact on older workers, it was justified by several “reasonable factors other than age.” Id. § 623(f)(1). The plan achieved one of Caterpillar’s long-standing financial objectives—namely, the elimination of costly unemployment benefits. It also saved money by incentivizing early retirement and reducing administrative expenses, and contributed to labor peace between Caterpillar and the union.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Blanchard & Associates v. Lupin Pharmaceuticals, Inc., et al.

Case No.: 17-1903

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

Focus: Breach of Contract and Unjust Enrichment

In 2009 Blanchard & Associates, a Chicago law firm, provided legal services to an Indian pharmaceutical company, Lupin Ltd. (“Lupin India”), and its American subsidiary, Lupin Pharmaceuticals, Inc. (“Lupin USA”). The advice concerned the patentability of a generic birth‐control drug that Lupin India planned to launch in the United States through Lupin USA. When the Lupin companies initially sought Blanchard’s advice, the firm sent an engagement letter outlining its hourly fees and other terms. Neither Lupin India nor Lupin USA signed the letter, but Blanchard provided the requested legal services and the companies paid the firm for its work—at least at first. In October 2009 Blanchard sent its two final invoices but they went unpaid. Seven years later Blanchard sued the Lupin companies for breach of contract and unjust enrichment. A district judge dismissed both claims as untimely.

We agree that the unjust‐enrichment claim is untimely. It accrued in 2009 when Blanchard furnished the services and the Lupin companies did not pay, so the five‐year statute of limitations expired long before suit was commenced. But the contract claim is timely. Though the engagement letter is un‐ signed, it counts as a written contract under Illinois limitations law, and the claim for breach is therefore governed by a ten‐year statute of limitations. See 735 ILL. COMP. STAT. 5/13‐ 206. Blanchard filed suit within that time, so we reverse and remand for further proceedings on the contract claim.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Fredrick Walker v. Timothy Price, et al.

Case No.: 17-1345

Officials: MANION and BARRETT, Circuit Judges, and GETTLEMAN, District Judge.

Focus: Abuse of Discretion – 6^th Amendment Violation

A litigant in a civil case has neither a statutory nor a constitutional right to counsel. He can, however, ask the court to recruit counsel to represent him on a pro bono basis. When the court receives such a request from an indigent plaintiff, it must determine whether the plaintiff has made a reasonable attempt to obtain counsel on his own and whether, given the difficulty of the case, the plaintiff is competent to litigate it himself. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). If the answer to the first question is yes and the answer to the second is no, then the court must seek counsel to represent the plaintiff.

This case involves the district court’s assessment of the second question. Fredrick Walker, an inmate, brought a civil-rights suit against several prison officers. Over the course of the litigation, Walker asked the court six times to recruit a volunteer lawyer to represent him. The court acted within its discretion when it denied his initial motions. But it abused its discretion when it denied the sixth. At that point, Walker was facing not only a jury trial, but a jury trial by videoconference. That substantially increased the difficulty of his case, despite the simplicity of his claims. Moreover, the basic competence that Walker had demonstrated during the pretrial phase did not necessarily reflect his ability to handle a video trial entirely on his own. Trying a case requires additional skills, and Walker had managed the pretrial phase with the help of a jailhouse lawyer who had since been transferred to another prison. Because the landscape had changed at this late stage of the litigation, the court should have granted Walker’s motion to recruit counsel.

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Laith William Murad Bijan v. United States Citizenship & Immigration Services

Case No.: 17-3545

Officials: WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit Judges.

Focus: Immigration – Naturalization Denied

Five years after entering the United States, ostensibly as the unmarried son of a lawful permanent resident, Laith Bijan applied to become a naturalized citizen. United States Citizenship and Immigration Services (USCIS) denied his application, concluding that Bijan actually had been married when he entered the country and had thus misrepresented his eligibility for lawful permanent residence and citizenship. Bijan sought judicial review of that decision. Reviewing USCIS’s decision de novo, the district court concluded that Bijan had misrepresented his marital status and lied under oath during a naturalization interview when he denied giving “false or misleading information” while applying for an immigration benefit. We affirm on the alternate ground that Bijan previously had given the agency false information when he failed to disclose on his visa application that he had two children and later lied about that omission.

On appeal Bijan argues that genuine issues of fact exist regarding his marital status when he became a lawful permanent resident in 2004 and the truthfulness of the information that he gave the government. He is entitled to pursue these arguments because “Congress specifically calls for de novo re‐ view in naturalization cases.” O’Sullivan v. USCIS, 453 F.3d 809, 811–12 (7th Cir. 2006). They are thus not subject to the rules governing typical immigration cases, in which we are bound by an immigration judge’s factual and credibility determinations. Further, although it is Bijan’s burden to establish eligibility for naturalization, see Berenyi v. Dist. Dir., INS, 385 U.S. 630, 636–37 (1967), he needs only to raise a fact question to survive summary judgment. See Injeti v. USCIS, 737 F.3d 311, 315 (4th Cir. 2013).

The undisputed facts show that Bijan was aware of the misrepresentation on his visa application and thus that he intended to obtain an immigration benefit—naturalization—by denying that he had made it. See Kungys v. United States, 485 U.S. 759, 779–80 (1988). During oral argument, Bijan’s counsel questioned whether Bijan knew he had omitted his children from his visa application in 2003, given his limited English and the fact that someone else had filled out the application on his behalf. But what matters for purposes of Bijan’s naturalization application is his false testimony with USCIS in 2012. See 8 C.F.R. § 316.10(b)(2)(vi). Even if Bijan was unaware of the omission at the time it was made, he was certainly aware of it by the time USCIS brought it up—first, when the agency denied visas for his children in 2006, and second, when it initially denied his naturalization application in April 2012. By the time Bijan testified in November 2012 that he had “never given false or misleading information,” he had to have known his statement was false. Because of this, Bijan cannot meet his burden of establishing eligibility for naturalization.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Pedro Rivas-Pena v. Jefferson B. Sessions, III

Case No.: 18-1183

Officials: SYKES, HAMILTON, and BRENNAN, Circuit Judges.

Focus: Immigration – Removal Proceedings

Pedro Rivas-Pena has been a lawful permanent resident of the United States and is a citizen of Mexico. He faces removal to Mexico because of a state drug-trafficking conviction. He has applied for deferral of removal under the Convention Against Torture, alleging that he fears returning to Mexico because members of Los Zetas cartel consider him responsible for the loss of drugs and currency worth more than half a million dollars. An immigration judge dismissed as “speculative” Rivas-Pena’s fear of retribution from the cartel, denied his application for Convention Against Torture deferral, and ordered him removed to Mexico. The Board of Immigration Appeals upheld the judge’s decision, and Rivas-Pena petitions for review. Because neither the immigration judge nor the Board articulated any basis for disagreeing with an expert opinion that corroborates Rivas-Pena’s fear of torture, we grant the petition for review and remand for further proceedings

Granted and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Wayne Scott

Case No.: 17-2784

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

Focus: Sentencing Guidelines

In 2010, Wayne Scott was sentenced to 63 months of imprisonment and 36 months of supervised release after entering into a written plea agreement for engaging in two schemes to defraud investors and potential investors. After his release, Scott violated his supervised release conditions several times. At the revocation hearing for one of these violations, the district court found Scott violated one of his probation conditions and sentenced him to an additional 36 months of supervised release. Scott argues on appeal that the district court committed procedural errors at the revocation hearing in failing to calculate or discuss the advisory Sentencing Guidelines range and in failing to afford him an opportunity to allocute.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Betty Holcomb v. Freedman Anselmo Lindberg, LLC,

Case No.: 17-2532

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

Focus: FDCPA Violation

When Betty Holcomb ran up a credit-card bill and did not pay, the creditor hired the law firm of Freedman Anselmo Lindberg, LLC (“Freedman”), to collect it. Freedman sued Holcomb on the creditor’s behalf in Illinois state court. Holcomb initially appeared pro se but later retained Attorney Andrew Finko to represent her. When Freedman moved for default judgment, however, Finko had not yet filed a written appearance. So Freedman served the motion on both Holcomb and Finko.

This lawsuit followed. Holcomb alleges that Freedman violated § 1692c(a)(2) of the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” from “a court of competent jurisdiction.” 15 U.S.C. § 1692c(a)(2). On cross-motions for summary judgment, Freedman argued that an Illinois court rule gave it “express permission” to serve the default motion on Holcomb directly. Rule 11 of the Illinois Supreme Court Rules requires service of court papers on a party’s “attorney of record,” if there is one, but “[o]therwise service shall be made upon the party.” ILL. SUP. CT. R. 11(a). Because Finko had not yet filed a written appearance, Freedman argued that he was not yet Holcomb’s “attorney of record” for purposes of Rule 11. That, in turn, required service on Holcomb directly. The district judge rejected this argument as “hyper-technical” and entered judgment for Holcomb.

We reverse. Illinois precedent is clear that an attorney becomes a party’s “attorney of record” for Rule 11 purposes only by filing a written appearance or other pleading with the court. Finko had done neither, so Rule 11 not only permitted, but required, Freedman to serve the default motion on Holcomb directly.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Emirat AG v. WS Packaging Group, Inc.

Case No.: 17-1893

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

Focus: Contract Validity – Personal Guaranty

Sabafon, a telephone company based in Yemen, wanted to buy cards that would provide its customers with prepaid minutes of phone use. To make these cards more attractive, Sabafon wanted to add a game of chance. Both the number that would supply phone time and the symbols representing prizes were to be covered by a scratch-off coating. (An opaque coating prevents the numbers and symbols from being discovered before the cards are sold, and it also prevents buyers from knowing in advance which parts of the card contain the winning boxes.) Emirat, a German firm in the risk-management business, promised to supply Sabafon with 25 million high-security scratch-off cards. Emirat contracted with High Point Printing LLC of Ohio to print the cards, and High Point in turn engaged WS Packaging of Wisconsin to do the work.

Emirat paid High Point about $700,000, and in this suit under Wisconsin law it demands that much in damages— not from High Point, which is defunct, but from WS Packaging. Emirat did not have a contract with WS Packaging, whose deal was with High Point. Still, Emirat contends that a settlement agreement it reached directly with WS Packaging after an initial run of cards was not shipped in numerical order, 500 pieces to a tray, subjects WS Packaging to all terms of the contract between Emirat and High Point. The district court thought otherwise and granted summary judgment to WS Packaging. 248 F. Supp. 3d 911 (E.D. Wis. 2017). To simplify this decision, we assume that WS Packaging is indeed obliged to perform up to the standards that High Point promised Emirat. But what are those standards?

Because this record does not contain evidence from which a reasonable jury could conclude that WS Packaging promised to supply cards more secure than the World Lottery Association’s norm, and because Emirat’s own expert witnesses conceded that these cards could not be candled in less than five minutes, the judgment of the district court is affirmed.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: W.G.A. v. Jefferson B. Sessions III

Case No.: 16-4193

Officials: SYKES and HAMILTON, Circuit Judges, and LEE, District Judge.

Focus: Immigration – Removal Proceedings

In 2015, tattooed members of the Mara 18 gang held a gun to petitioner W.G.A.’s head and threatened to kill him. The Mara 18—also known as the “Calle 18,” “Barrio 18,” or “Eighteenth Street” gang—is one of the two main gangs operating in El Salvador. Together with their rivals, MS‐13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes. The gangs have orchestrated labor strikes, brokered a now‐defunct truce with the government, and plotted to bomb government buildings. They brag about influencing elections and controlling political campaigns within their territories. They extort millions of dollars from local businesses through threats of violence, and they are largely responsible for El Salvador’s homicide rate—one of the highest in the world. Two days after the Mara 18 threatened W.G.A., he fled to the United States.

The Department of Homeland Security apprehended W.G.A. for illegally entering the United States and began removal proceedings against him. W.G.A. applied for asylum statutory withholding of removal, and deferral of removal under Article 3 of the Convention Against Torture, arguing that the Mara 18 gang would kill him if he returned to El Salvador. The immigration judge denied his applications and ordered removal. The Board of Immigration Appeals dismissed W.G.A.’s appeal, and he petitions this court for review. We grant W.G.A.’s petition for review and remand to the Board for further proceedings consistent with this opinion.

Petition Granted and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Donald E. Beard, Jr. v. Wexford Health Sources, Inc.

Case No.: 16-1763

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

Focus: 14^th Amendment Violation – Damage Award

Wexford Health Sources provides medical care to inmates in Illinois’s prisons. Donald Beard, Jr., an inmate, experiences chronic ankle pain. In December 2010 he consulted with his prison’s doctors about managing his condition. Beard wanted surgery, but the doctors ordered conservative treatment. When Beard’s pain persisted, the doctors considered referring Beard for surgical evaluation, a step that requires Wexford’s approval. It rejected the doctors’ requests for surgical evaluation, though it authorized Beard to see a podiatrist in September 2012 and an orthopedist in January 2015.

Beard filed a pro se complaint in September 2011. He alleged that members of the prison’s medical staff and administrative team were deliberately indifferent to his serious medical need in violation of the Eighth Amendment (applied to the states through the Fourteenth), and he sought damages plus injunctive relief. The district court recruited counsel, who added Wexford as a defendant and stipulated to the dismissal of the individual defendants. Beard presented his case against Wexford to a jury, which awarded him $10,000 in compensatory damages and $500,000 in punitive damages. Wexford persuaded the judge that the punitive-damages award violates the Fourteenth Amendment’s prohibition on excessive or arbitrary punishment. The judge reduced punitive damages to $50,000. Initially he offered Beard a choice between retrying the issue of punitive damages and accepting the reduced award but later withdrew the option and entered a judgment that awarded only $50,000 in punitive damages (plus the jury’s compensatory award).

Beard’s first argument on appeal is that the district court improperly prevented him from presenting an additional theory of liability. Beard convinced the jury to find Wexford directly liable; he contends that he should have been allowed to argue that Wexford also is vicariously liable for its doctors’ violations of his constitutional rights. Beard maintains that Iskander v. Forest Park, 690 F.2d 126 (7th Cir. 1982), which stopped him from pursuing vicarious liability, should be overruled.

Beard also contends that the district court erred in reducing the jury’s award of punitive damages without offering him a new trial. Punitive damages punish blameworthy behavior and deter defendants from committing future bad acts—the more reprehensible a defendant’s conduct and the more easily a defendant can conceal violations, the higher the punitive damages. See, e.g., Zazú Designs v. L’Oréal, S.A., 979 F.2d 499, 508 (7th Cir. 1992). But excessive punitive damages awards violate the Due Process Clause. See, e.g., State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). The Justices have instructed courts to review whether an award of punitive damages exceeds the Due Process Clause’s bounds by considering the reprehensibility of the defendant’s conduct, the ratio between punitive and compensatory damages, and any civil penalties that punish similar behavior. See, e.g., BMW of North America, 517 U.S. at

We need not choose which of these options is best. We raise the subject only to call attention to it so that statutory decisions precede constitutional adjudication. Both legal and factual issues are open on remand. Because we vacate the judgment and remand for the district court to offer Beard the choice between a reduced punitive-damages award and a new trial limited to damages, we also vacate the award of attorney’s fees and costs. Until we know whether Beard prefers to take his chances on a new trial (and, if he does, the measure of his success), saying anything about fees would be premature. See Hensley v. Eckerhart, 461 U.S. 424 (1983). Still, we remind the district court that any award of attorney’s fees must comply with Murphy v. Smith, 138 S. Ct. 784 (2018).

Vacated and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Wendy B. Dolin v. GlaxoSmithKline LLC

Case No.: 17-3030

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

Focus: Negligence Claim – Prescription Drug Label

Defendant GlaxoSmithKline LLC (GSK) appeals from a jury verdict awarding $3 million to plaintiff Wendy Dolin for the death of her husband, Stewart Dolin. Mrs. Dolin alleges that GSK’s negligent omissions in the drug label for Paxil caused her husband’s death. Stewart did not actually take Paxil. In 2010, a doctor prescribed Paxil, the brand‐name version of paroxetine, to treat Stewart’s depression and anxiety. But his prescription was filled with generic paroxetine manufactured by another company (one that is no longer a defendant). Six days later, Stewart committed suicide. Blood tests showed that paroxetine was in his system. He was 57 years old.

At the time of Stewart’s death, GSK manufactured brand‐ name Paxil and was responsible under federal law for the content of the drug’s label. When Stewart died, the labels for paroxetine and similar antidepressant drugs warned that they were associated with suicide in patients under the age of 24. The labels did not warn about any association between the drugs and an increased risk of suicide in older adults.

In this appeal, GSK challenges the district court’s conclusions about liability under Illinois law and preemption. GSK also argues that the evidence at trial did not support the jury’s verdict. We agree with GSK that federal law prevented GSK from adding a warning about the alleged association between paroxetine and suicides in adults. On that basis of federal preemption, we reverse the judgment. The case must be dismissed.

Reversed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Nicholas P. Marrocco, et al.

Case No.: 16-3238

Officials: FLAUM, MANION, AND HAMILTON, Circuit Judges

Focus: Civil Forfeiture

In December 2002, law enforcement seized $100,120 in United States currency from a passenger on an Amtrak train. The federal government initiated a civil forfeiture proceeding against the currency. The passenger and the owner of the funds, neither of whom were ever charged with committing any crime related to the funds, joined the suit as claimants. After fourteen years and two appeals, the case went to a jury. The jury found the currency was substantially connected to a drug transaction and entered a verdict for the government. The claimants filed multiple post-trial motions, all of which the district court denied. The case now comes to us for the third time. We affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Barbara Lyons, et al. v. Thomas J. Dart, et al.

Case No.: 17-3170

Officials: Bauer, Easterbrook, and Manion, Circuit Judges.

Focus: 1^st Amendment Violation

During 2013, While Gregory Koger was serving a 300-day sentence in Cook County Jail, Barbara Lyons sent him at least ten books, plus some magazines and newspapers. Lyons and Koger contend in this suit under 42 U.S.C. §1983 that the Jail violated the First Amendment (applied to the states by the Fourteenth) by limiting inmates to three pieces of reading matter (plus religious material) at a time–a policy that, according to plaintiffs, led to the confiscation of more than 30 “excess” books that guards found in Koger’s cell. A magistrate judge, serving by consent under 28 U.S.C. §636(c), did not reach the merits but concluded that neither Lyons nor Koger has a justiciable grievance about the Jail’s policy. 2017 U.S. Dist. LEXIS 160607 (N.D.I11.Sept. 29, 2017).

Defendants observe that the Supreme Court has held that prisons may limit the nature and amount of reading in cells. See Beard v. Banks, 548 U.S. 521 (2006); see also Tarpley v. Allen County, 312 F.3d 895 (7^th Cir. 2002). Kroger’s objection to the three-book policy thus may well fail. Bit it would be premature for us to address the merits while it remains unclear just what policy the Jail has adopted for dealing with confiscated reading matter. It is also possible that Koger’s allegations are false and that no substantive issue needs resolution: the guards deny removing any of his reading matter. It is best to return all merits-related questions to the district court, which can determine exactly what policy the Jail is employing, how (if at all) it affected Koger, and if necessary consider the validity of that policy and whether Koger is entitled to damages.

The judgment is affirmed with respect to Lyons, but with respect to Koger’s claim for damages it is vacated, and the case is remanded for further proceedings.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Michael Beley, et al. v. City of Chicago

Case No.: 17-1449

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

Focus: Due Process Claim

Michael Beley and Douglas Montgomery represent a class of sex offenders who allege that the City of Chicago refused to register them under the Illinois Sex Offender Registration Act (SORA) because they could not produce proof of address. If true, that might have violated SORA, because the Act provides a mechanism for registering the homeless. Yet Beley and Montgomery contend that it violated their right to procedural due process—according to the plaintiffs, the City used constitutionally inadequate procedures to determine whether they had satisfied SORA’s registration requirements.

But the Fourteenth Amendment guarantees due process only when the State deprives someone of life, liberty, or property. Beley and Montgomery insist that the City deprived them of liberty: they assert a right to register under SORA. For reasons we explain below, however, this is not a cognizable liberty interest. And without a cognizable liberty interest, the plaintiffs have no due process claim.

We affirm the district court, though on a different ground. The City argues before us, as it did below, that the ability to register under SORA is not a cognizable liberty interest. We agree.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Donald Charles Wilson v. Lori Adams, et al.

Case No.: 16-1889

Officials: RIPPLE, MANION, and KANNE, Circuit Judges.

Focus: 8^th Amendment Violation

Since entering the custody of the Wisconsin Department of Corrections in 2009, Donald Wilson has sought medical treatment for dementia and Alzheimer’s disease, neck and throat pain, and difficulty breathing and swallowing. He alleges that medical staff at Oshkosh Correctional Institution were deliberately indifferent in their treatment of these ailments in violation of his Eighth Amendment rights. The district court, however, found that no reasonable jury could find that the doctors were deliberately indifferent. We agree and affirm the grant of summary judgment in favor of the defendants.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Linda Rowlands, et al. v. United Parcel Service – Fort Wayne

Case No.: 17-3281

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

Focus: ADA Violation – Retaliation Claim

Linda Rowlands claims that United Parcel Service (“UPS”) discriminated against her because she had a disability, failed to accommodate her disability, and retaliated against her when she requested accommodations, all in violation of the Americans with Disabilities Act, 14 U.S.C. § 12111 et seq. (“ADA”). The district court granted UPS’ motion for summary judgment on all of Rowlands’ claims, finding that she did not have a disability, had waived her failure to accommodate claim, and failed to establish a prima facie case for retaliation. Rowlands appeals only her failure to accommodate and retaliation claims. Because there are genuine disputes of fact that are material to Rowlands’ failure to accommodate and retaliation claims, neither of which were waived, we reverse and remand.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Jimmy L. Thompson

Case No.: 17-2985

Officials: MANION, and KANNE, Circuit Judges

Focus: Sentencing Guidelines

Jimmy Thompson was charged by indictment and pled guilty to being a felon in possession of a firearm, 18 U.S.C § 922(g)(1). He admitted he possessed the firearm and initially conceded he was a felon based on his prior conviction of aggravated unlawful use of a weapon (“AUUW”), an Illinois state‐law offense. Later, however, he moved to set aside his plea on the basis that the AUUW conviction was invalid and thus, Thompson argued, he should not have been considered a felon. Indeed, this court and the Illinois Supreme Court ruled the AUUW statute unconstitutional before Thompson was charged in this case, Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar, 2 N.E.3d 321 (2013), though Thompson never moved to have the conviction vacated or expunged. The district court, relying on the Supreme Court’s decision in Lewis v. United States, 445 U.S. 55 (1980), rejected Thompson’s argument, denied his motion, and sentenced him to sixteen months’ imprisonment.

Thompson reasserts this same argument on appeal—that a conviction for violating a state statute later ruled unconstitutional and void ab initio cannot serve as a predicate offense for purposes of the federal felon in possession statute. In so doing, Thompson is asking us to overturn our decision in United States v. Lee, 72 F.3d 55 (7th Cir. 1995). We decline to do so.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Eric Curtis

Case No.: 17-1833

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

Focus: Court Error – Exclusion of Evidence

Eric Curtis led a crew that robbed five cell-phone stores located in suburban Chicago. He was arrested following the last of the heists and eventually stood trial on ten criminal charges: four counts for robbery, four counts for aiding in the brandishing of a firearm in relation to a crime of violence, a count for conspiracy, and a count for being a felon in possession of a firearm. A jury convicted him on all counts save two: one for robbery and one for aiding in the brandishing of a firearm. Each acquittal was on a charge related to a robbery of a store in Joliet.

Curtis raises two issues on appeal. First, he argues that the district court should have excluded evidence of his cell-site location information (“CSLI”), which he alleges was obtained in violation of the Fourth Amendment. Second, he complains that the district court prohibited him from cross-examining witnesses about a potential source of bias, and thereby violated the Sixth Amendment’s Confrontation Clause. Neither of these alleged errors is enough to disturb the judgment against him, which we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Mark Scott

Case No.: 17-1666

Officials: BAUER, EASTERBROOK, and KANNE, Circuit Judges

Focus: Motion to Suppress – Great Deference

Mark Scott, who pleaded guilty to possessing child pornography, reserved the right to appeal from the district court’s order denying his motion to suppress the evidence that police found at his home when they executed a search warrant. Officials in Wisconsin obtained the warrant, from a state judge, after arresting Scott for attempting to have sexual relations with a boy who Scott (age 58 at the time) believed was 14 years old. Actually the “boy” was an agent of the state’s Department of Justice, who had impersonated a teenager in response to an ad that Scott placed on Craigslist. Scott and “Kyle” (the officer’s alias) had an extensive electronic exchange. Scott sent Kyle both sexually explicit emails and sexually graphic photos; one was of a man, on a bedspread, with an object in his rectum. Scott asked Kyle to reciprocate with “a pic of you in your compression shorts, with a hardon if you can”.

The affidavit in support of the request for a search warrant told the state judge about the ad on Craigslist, the sexual photos and messages sent by computer, Scott’s request that Kyle send a picture of himself with an erection, Scott’s offer to “host” the sexual encounter, and assurance by an investigating agent that in his “training and experience” pedophiles collect child pornography. The state judge issued a warrant authorizing a search of Scott’s home, including his computers, for child pornography. Executing the warrant, officers found plenty. The federal district judge denied the motion to suppress, concluding that the warrant is supported by probable cause. He sentenced Scott to 178 months in prison, to go with an 11-year sentence imposed by a state judge.

Scott assumes that on appeal we will make an independent (de novo) assessment of probable cause, ignoring the state judge’s finding. We will not. The decision of the judge who issued the warrant receives “great deference”. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576, 577–79 (7th Cir. 2008). With the benefit of “great deference,” this warrant is valid.

Scott also contends that there is no reason to think that pedophiles create or acquire child pornography. Yet Scott asked Kyle to send a picture of himself with an erection. Scott insists that such a picture would have been child erotica (because he asked Kyle to wear compression shorts) rather than child pornography. Maybe so; the line between the two is hazy. But we have held that the collection of pictures focused on children’s genitalia supplies reason to believe that the collector had child pornography. United States v. Lowe, 516 F.3d 580, 586 (7th Cir. 2008). The state judge did not exceed the bounds of “great deference” in drawing the same inference.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Kasey Burton v. City of Zion, Lake County, Illinois, et al.

Case No.: 17-1557

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

Focus: Court Error – Exclusion of Evidence

On March 13, 2014, Kasey Burton was driving to pick up her roommate’s niece for a barbeque. Unbeknownst to her, her license was suspended. Officer Jonathan Meyers, a City of Zion police officer, however, had learned the news in that day’s “hot sheets” (a list of items of current interest to police). After he spotted her driving, he verified by radio that the police had an active warrant for her arrest for driving on a suspended license, and then pulled behind Burton’s van and activated his squad car’s emergency lights. Burton saw the flashing lights and heard the siren and knew that an officer wanted to pull her over, but according to her testimony at trial, Burton was afraid to pull over because of her experience with a Zion police officer five and a half years earlier, in 2008. During that earlier incident, Zion police officer Joseph Richardt pulled Burton over for operating a vehicle with sound amplification. By the end of that stop, Officer Richardt had handcuffed Burton and then, while she was handcuffed, used a taser to stun her. Burton filed a citizen’s complaint against Officer Richardt and, after an internal investigation, the Zion Police Department sustained the allegations of unnecessary force. Burton filed a federal lawsuit against the City of Zion, Officer Richardt, and other officers and eventually reached a settlement with the City.

Prior to trial, each party filed motions in limine, including the one at issue here, in which the City of Zion asked that any evidence regarding Burton’s 2008 encounter with Officer Richardt be omitted from evidence. The district court granted the defendants’ motion, thus removing any evidence of the 2008 encounter from the jury’s consideration. In other words, the jury heard testimony about and saw video of the 2014 stop, including Burton’s failure to stop, her slow drive home, and the arrest itself, but nothing about her prior experience with Officer Richardt. Burton filed a motion for reconsideration, but that too was denied. R. 118. After a three day trial, the jury found in favor of the defendant officers and City of Zion. Burton now appeals, arguing that the district court erred in its order on the motion in limine by disallowing the evidence of her 2008 encounter with Officer Richardt.

The fact that Burton had been subjected to excessive force by the police on a prior occasion was not propensity evidence and could not be excluded under Federal Rule of Evidence 404. On remand, the district court will have to weigh the probative value against the potential prejudice keeping in mind the ways in which any prejudice can be mitigated. We REVERSE the district court’s ruling on the motion in limine and REMAND for further proceedings consistent with this decision.

Reversed and Remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Leoncio Elizarri, et al. v. Sheriff of Cook County, Illinois, et al.

Case No.: 17-1522

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

Focus: Court Error – Jury Instructions

The theme of this constitutional suit under 42 U.S.C. §1983 is that the Sheriff of Cook County, Illinois, did not do enough to prevent guards and other public employees from stealing or losing the belongings of inmates at the Cook County Jail. New arrivals must surrender their possessions. There is no doubt that theft of these belongings is a crime and a tort (conversion) under state law, and a violation of the Due Process Clause (depriving prisoners of property with no process at all), but plaintiffs (a certified class) do not contend that the Sheriff personally stole anything or even tolerated a known thief—and none of the guards is a defendant.

Failure to prosecute thieves does not violate the Constitution. See Castle Rock v. Gonzales, 545 U.S. 748 (2005). Likewise a guard’s negligent loss of belongings, while potentially tortious under state law, does not violate the Constitution. See Daniels v. Williams, 474 U.S. 327 (1986) (negligent loss of prisoners’ property is not a constitutional wrong). Still, plaintiffs insist, the Constitution imposes on the Sheriff a duty to do something about excessive rates of loss. The theory must be that keeping careless (or worse) employees on the staff, without implementing an adequate system of quality control, violates the Constitution whether or not any of those employees has violated the Constitution. We need not decide whether this is a viable theory of liability.

Plaintiffs now contend that part 3(b) was incorrect because it set up an argument by counsel for the Sheriff that liability was appropriate only if the Sheriff “purposely took no action” in response to a known risk. Plaintiffs say that this argument misstated the law, because “unreasonable” action is culpable along with “no” action and because conscious disregard is not quite the same thing as purpose. See Farmer v. Brennan, 511 U.S. 825 (1994).

Because counsel’s argument was wrong, plaintiffs insist, the instruction must be wrong too. That’s a curious inference. The instructions themselves tell the jury what’s what. If a lawyer misstates an instruction—as plaintiffs say the defense lawyer did—then opposing counsel can correct the error by pointing to the instruction. Judges routinely tell jurors that the arguments of counsel cannot contravene the instructions or supplement the evidence. This is why plaintiffs need to (and do) attack the instructions themselves, not just what opposing counsel made of those instructions. Plaintiffs add that because the Fourth Amendment (applied to the states by the Fourteenth) can continue to apply during pretrial custody, see Manuel v. Joliet, 137 S. Ct. 911 (2017), the instruction should have told the jury to use an objective standard rather than any species of disregard or indifference.

The district judge found the evidence insufficient to show that any other database had existed and been destroyed, let alone that it had been destroyed in bad faith for the purpose of concealing evidence, a finding essential to a spoliation instruction. See, e.g., Rummery v. Illinois Bell Telephone Co., 250 F.3d 553, 558 (7th Cir. 2001). But the judge allowed plaintiffs’ lawyer to argue to the jury—despite the paucity of evidence—that the Sheriff had concealed or destroyed inculpatory records. If there was an error, it favored plaintiffs. The district judge did not abuse her discretion by declining to put the court’s thumb on the scale in plaintiffs’ favor.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Richard M. Arnold v. Michael A. Dittmann, Warden, Columbia Correctional Institution

Case No.: 16-3392

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges

Focus: Time-barred – Writ of Habeas Corpus

Richard M. Arnold appeals the district court’s order dismissing as untimely his petition for a writ of habeas corpus. There is no dispute that Arnold’s petition was filed beyond the one‐year deadline established by 28 U.S.C. § 2244(d)(1), but Arnold alleges that his actual innocence of the crime for which he was convicted—repeated sexual assault of a child—supports an equitable exception to the time limit and allows his late petition. See McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924 (2013). He relies on the recantation affidavit of the key prosecution witness against him—his son—as proof of his innocence. In view of the state court’s finding that his son’s recantation was cumulative of evidence that was put before the jury that convicted him, the district court concluded that Arnold could not meet the standard for actual innocence set forth in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851 (1995). For the reasons that follow, we vacate the district court’s judgment and remand for an evidentiary hearing on Arnold’s claim of actual innocence.

Vacated and Remanded
Full Text

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jerry R. Hubbard

Case No.: 2017AP1433-CR

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

Focus: Sentence Modification

Jerry R. Hubbard appeals a judgment of conviction entered after he pled guilty to first-degree reckless homicide and first-degree recklessly endangering safety by use of a dangerous weapon. He also appeals a circuit court order denying modification of the thirty-year term of initial confinement imposed for the homicide. He contends that sentence modification is warranted based on an alleged new factor, namely, a report by a defense expert regarding the cause of the homicide victim’s death. Further, he claims that he is entitled to sentencing relief because his trial counsel was ineffective at sentencing for failing to present the expert’s report. The circuit court rejected his claims, and we affirm.

Full Text

WI Court of Appeals – District III

Case Name: James Klatt, et al. v. Penske Truck Leasing Co., LP, et al.

Case No.: 2017AP2064

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Insurance – Breach of Duty to Defend

This insurance coverage dispute is before us for the second time. In a previous appeal, we concluded Great West Casualty Company had a duty to defend Penske Truck Leasing Company against a lawsuit filed by James and Carol Klatt. We further concluded factual disputes precluded summary judgment on the issue of whether Great West had a duty to indemnify Penske. We therefore reversed the circuit court’s grant of summary judgment to Great West.

On remand, Penske moved for summary judgment, arguing Great West had breached its duty to defend Penske by failing to provide a defense for Penske during a period when no stay of the underlying proceedings on liability was in place. As damages for the breach, Penske asked the circuit court to award Penske its defense costs and the amount of a settlement it had paid the Klatts while the prior appeal was pending. Great West, in turn, moved for a bench trial on the issue of its duty to indemnify Penske. The circuit court denied Penske’s summary judgment motion and held a bench trial on Great West’s duty to indemnify. The court ultimately concluded Great West had no duty to indemnify Penske and entered judgment in favor of Great West.

In the present appeal, Penske argues the circuit court erred because Great West breached its duty to defend Penske. Penske therefore argues it is entitled to recover from Great West the amount of the settlement it paid the Klatts, as well as its defense costs related to both liability and coverage. In response, Great West argues it did not breach its duty to defend Penske because the circuit court never lifted the stay of the underlying proceedings on liability. In the alternative, Great West argues Penske forfeited its right to argue that Great West breached its duty to defend by failing to raise that argument prior to or during Penske’s previous appeal.

We agree with Penske that the stay of the underlying proceedings on liability was implicitly lifted on June 10, 2014, when the circuit court entered a scheduling order setting deadlines for the completion of discovery on the Klatts’ claims. Nonetheless, we agree with Great West that Penske forfeited its right to argue that Great West breached its duty to defend by failing to raise that argument before or during Penske’s prior appeal. We therefore affirm the circuit court’s judgment in favor of Great West.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. T.W.

Case No.: 2018AP967; 2018AP968

Officials: KESSLER, P.J.

Focus: Termination of Parental Rights

T.W. appeals from the orders of the circuit court terminating her parental rights to her children, C.O.J.-W. and X.L.J.-W. She also appeals the order denying her post-disposition motions. T.W. contends that she received ineffective assistance of counsel because counsel did not object to statements made during the guardian ad litem’s (GAL) closing arguments regarding the best interests of the children. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brenda L. Moritz

Case No.: 2017AP925-CR

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Sentencing

Brenda L. Moritz appeals from a judgment of conviction, entered after sentencing following the revocation of her probation, and from an order denying her postconviction motion seeking resentencing before a new judge. We conclude that Moritz has not shown that the circuit court was objectively biased. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Village of Pleasant Prairie v. Brian Lucas

Case No.: 2017AP2131

Officials: GUNDRUM, J.

Focus: OWI – 1^st Offense

Brian Lucas appeals pro se from an order of the circuit court finding him guilty of operating a motor vehicle while under the influence of an intoxicant (OWI). We affirm.

WI Court of Appeals – District II

Case Name: Sheboygan County Department of Health & Human Services, v. K.N.L.

Case No.: 2017AP2413

Officials: GUNDRUM, J.

Focus: Termination of Parental Rights

K.N.L. appeals from an order terminating her parental rights to J.B.L. following a jury trial. She argues the circuit court erred in declining to strike a challenged prospective juror for cause because the prospective juror was biased. She also appeals from an order denying her claim that her trial counsel performed ineffectively in relation to how counsel handled the striking of the prospective juror. Because we agree with the circuit court that the prospective juror was not biased, we conclude the court did not err in declining to strike her for cause. Even if the court did err, however, because the prospective juror never made it on to the jury, we conclude any alleged error was harmless. We also conclude counsel did not perform ineffectively. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: Unifund CCR Partners v. David R. Olofson

Case No.: 2018AP185

Officials: GUNDRUM, J.

Focus: Court Error – Garnishment Order

David R. Olofson appeals pro se from a judgment for garnishment. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Peter N. Anderson v. WEA Trust

Case No.: 2017AP2386

Officials: KLOPPENBURG, J.

Focus: Breach of Contract

The circuit court granted summary judgment in favor of WEA Trust, dismissing Peter Anderson’s claim that WEA Trust breached its implied contractual duty of good faith and fair dealing. Anderson alleged that WEA Trust committed the breach by failing to inform Anderson that WEA Trust had denied primary coverage for medical expenses Anderson incurred between April and October 2015. On appeal, Anderson argues that there is a genuine issue of material fact as to whether the monthly statements that WEA Trust sent Anderson during that period adequately informed him that WEA Trust had denied primary coverage for the medical expenses listed in those statements. The circuit court ruled that the monthly statements unambiguously stated that WEA Trust had denied primary coverage for the listed medical expenses. I agree and, therefore, I affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Monroe County Department of Human Services v. J.N.D.

Case No.: 2018AP177

Officials: SHERMAN, J.

Focus: Termination of Parental Rights

J.D. appeals an order involuntarily terminating her parental rights to G.S. on the ground that G.S. is a child in continuing need of protection and services (continuing CHIPS). See WIS. STAT. § 48.415(2). J.D. contends that she is entitled to a new trial on the issue of whether continuing CHIPS had been proven at trial because the real controversy was not fully tried. See WIS. STAT. § 752.35. For the reasons explained below, I affirm.

Full Text