Weekly Case Digests – October 14, 2019 – October 18, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Dennis Davis v. Francis Kayira

Case No.: 18-2456

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

Focus: 8^th Amendment – Deliberate Indifference

Dennis Davis is an Illinois prisoner suffering from kidney disease. After receiving dialysis on a Saturday morning, he told a prison nurse that his mind was fuzzy and his body was weak. Both complaints were similar to side effects he had experienced in the past after dialysis. The nurse called Dr. Francis Kayira, the prison’s medical director, who was on call. The doctor asked her whether Davis had asymmetrical grip strength, facial droop, or was drooling—all classic signs of a stroke. When she said “no,” Dr. Kayira determined that Davis was experiencing the same dialysis-related side effects as before rather than something more serious. He told the nurse to monitor the problem and call him if the symptoms got worse. Dr. Kayira didn’t hear anything else for the rest of the weekend, but on Monday morning he examined Davis and discovered that he had in fact suffered a stroke.

Davis later sued Dr. Kayira, alleging that he acted with deliberate indifference to his medical needs in violation of the Eighth Amendment. Davis also raised a state-law medical-malpractice claim. The district court entered summary judgment for Dr. Kayira on both claims. The judge ruled that the deliberate-indifference claim failed because there is no evidence that Dr. Kayira was aware of symptoms suggesting that Davis was suffering a stroke. And the statelaw claim failed because Davis lacked expert testimony about the appropriate standard of care. A magistrate judge had blocked Davis’s sole expert because he wasn’t disclosed in time, and Davis never objected to that ruling before the district court.

We affirm. Davis lacks evidence of deliberate indifference. And because he did not ask the district court to review the magistrate judge’s exclusion of his expert, his state-law claim fails as well.

Affirmed

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7^th Circuit Court of Appeals

Case Name: J.K.J. v. M.J.J. v. Polk County, et al.

Case No.: 18-1498; 18-1499; 18-2170; 18-2177

Officials: William M. Conley, Judge.

Focus: Petition for Rehearing

The petition for rehearing en banc is GRANTED. The opinion and judgment entered by the panel are VACATED. Oral argument will be heard on a date to be set by further order.

Petition granted. Opinion and judgment vacated.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Segal

Case No.: 17-2842; 17-3317

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Forfeiture Settlement Intervention

These two appeals present straightforward issues of contract law, but with some procedural complications. Appellant Michael Segal was convicted in 2004 of racketeering, mail and wire fraud, making false statements, embezzlement, and conspiring to interfere with operations of the Internal Revenue Service. The company he owned, Near North Insurance Brokerage (NNIB), was convicted of mail fraud, making false statements, and embezzlement. The history of Mr. Segal’s prosecution is detailed in United States v. Segal, 495 F.3d 826 (7th Cir. 2007) (affirming convictions and all aspects of sentence except forfeiture order); United States v. Segal, 644 F.3d 364 (7th Cir. 2011) (affirming in part and remanding for discretionary re-sentencing); and United States v. Segal, 811 F.3d 257 (7th Cir. 2016) (addressing several issues under settlement of forfeiture obligations).

After Mr. Segal served time in prison, see 811 F.3d at 259, and after further sentencing proceedings, see 644 F.3d at 366– 68, he was ordered to forfeit to the government $15 million and his entire interest in NNIB. The company itself was ordered to pay restitution and a fine. 495 F.3d at 830. The government initially restrained approximately $47 million worth of assets of both Segal and NNIB. Liquidation proceedings have continued well into the case’s second decade.

Mr. Segal’s forfeiture obligations have been disputed for years. See, e.g., 811 F.3d 257. In early 2013, on the eve of what promised to be a complex and contentious hearing over which assets should be forfeited and how much they were worth, Mr. Segal and the government agreed on a court-approved settlement that fulfilled Mr. Segal’s $15 million personal forfeiture obligation. Mr. Segal now seeks to rescind or modify that agreement. The district court denied his attempt, and he now appeals. The 2013 settlement, which Mr. Segal has succeeded in enforcing strictly against the government, see id. at 261–62, is the first of the two contracts we address here.

The second contract is a related settlement between Mr. Segal’s ex-wife, Joy Segal, and the United States government. The Segals divorced in June 2005, after Mr. Segal’s conviction. In February 2006, Ms. Segal filed a third-party claim under 18 U.S.C. § 1963(l) to intervene in Mr. Segal’s forfeiture proceedings. In November 2010, Ms. Segal, too, settled her claims with the government. Under that deal, the government released to her about $7.7 million in restrained assets. In exchange, she relinquished all further claims—save one contingent future interest, at issue here. She now seeks to intervene in the ongoing liquidation proceedings that the district court is administering pursuant to Mr. Segal’s forfeiture settlement. The district court denied her attempt at intervention because her contingent future interest is not yet ripe. She also appeals.

We have jurisdiction over both appeals, and we affirm in all respects the district court’s challenged orders.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Victoria Weiland, et al. v. Shawn Loomis

Case No.: 18-2054

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

Focus: Qualified Immunity

Tywon Salters, a pretrial detainee in Kane County, Illinois, swallowed some cleaning fluid, apparently in an effort to commit suicide. He was taken to Delnor Community Hospital for treatment. Guards were instructed to keep him shackled. Shawn Loomis, one of those guards, disobeyed that order when Salters claimed that he needed to use the bathroom. Salters grabbed Loomis’s gun and escaped. While Salters terrorized the Hospital’s staff, patients, and visitors, Loomis ran away and hid. Salters took nurses hostage at gunpoint and assaulted two of them. After three hours a SWAT team cornered Salters and killed him. This appeal arises from claims under 42 U.S.C. §1983 by two persons at the Hospital who were frightened but not physically injured. (Other claims have been settled.)

The defendants in the suit include Loomis, Kane County (which employed Loomis as a correctional officer), Delnor Hospital, and Apex3 Security, LLC, which the Hospital hired to provide security for its premises. The appeal, however, concerns only Loomis, who moved to dismiss the complaint on the ground of qualified immunity. A public employee is entitled to immunity in §1983 litigation unless, at the time of the events in question, “clearly established” law would have made apparent to any public employee that his or her acts violated the Constitution. See, e.g., Escondido v. Emmons, 139 S. Ct. 500 (2019). Loomis argued that it had not been (and still is not) clearly established that permitting a prisoner to escape violates the Constitution. He relied principally on DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), which holds that the Constitution, as a charter of negative liberties, does not require the government to protect the public from private predators—and it was Salters, not Loomis, who inflicted plaintiffs’ injuries.

It is enough to say that even if Loomis is civilly and criminally liable as a matter of Illinois law, he is entitled to qualified immunity from a claim based on the federal Constitution, so the district court’s decision is reversed.

Reversed

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7^th Circuit Court of Appeals

Case Name: Karma International, LLC, v. Indianapolis Motor Speedway, LLC,

Case No.: 18-2583; 18-3487

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

Focus: Summary Judgment – Damages

The Indianapolis 500 race has been a fixture of American life since 1911, interrupted only by world war. So when its 100th running arrived in 2016, organizers wanted to shift the race-weekend entertainment into high gear. They engaged Karma International, LLC, an event-planning company, to host a ticketed party.

Unlike the Indianapolis 500 itself—which sold out for the first time in history—the Karma party was a disappointment. Poor ticket sales prevented Karma from covering its expenses. Karma sued the racetrack for breach of contract, accusing it of failing to adequately promote the party. The racetrack counterclaimed, alleging that Karma ignored its own advertising obligations. The district judge rejected Karma’s claim at summary judgment, ruling that the damages theory rested on speculation. A jury found Karma liable on the counterclaim, awarding $75,000 in damages. Karma appeals, seeking review of the summary-judgment ruling and the denial of its posttrial motions for judgment as a matter of law or a new trial.

We affirm. Karma’s evidence of damages is indeed speculative, so its claim fails under Indiana law. And we see no reason to second-guess the jury’s determination that Karma breached the parties’ contract by failing to fulfill its promises to advertise the event online.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Victoria Weiland, et al. v. Shawn Loomis

Case No.: 18-2054

Officials: FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge.

Focus: Order Correcting Opinion

The opinion of this court issued on September 18, 2019, is amended as follows: Page 4, “Mullenix v. Luna, 136 S. Ct. 305, 308 (2005);” should be “Mullenix v. Luna, 136 S. Ct. 305, 308 (2015);”.

Amended

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7^th Circuit Court of Appeals

Case Name: Donald Wayne Bush, et al. v. United States America

Case No.: 16-3244

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

Focus: Abuse of Discretion – Bankruptcy 

This appeal presents the question whether a bankruptcy court can determine the amount of a debtor’s tax obligations, when the debtor is unlikely to pay them. Bankruptcy Judge Carr answered yes and scheduled a trial on the merits, 2015 Bankr. LEXIS 4494 (Bankr. S.D. Ind. July 7, 2015), but a district judge disagreed. 2016 U.S. Dist. LEXIS 106671 (S.D. Ind. Aug. 12, 2016). The interlocutory appeal to the district judge was authorized by 28 U.S.C. §158(a)(3). Because the district judge blocked further proceedings in the bankruptcy court, his decision is final and appealable to us under 28 U.S.C. §1291, for, outside of bankruptcy, tax obligations are stand-alone mahers independently appealable. See Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015). See also In re Anderson, 917 F.3d 566 (7th Cir. 2019).

Although the bankruptcy judge was right to hold that he had authority to resolve the tax dispute while the Bushes’ bankruptcy was ongoing, the exercise of that authority is no longer appropriate. We vacate the district judge’s decision, based as it was on an erroneous jurisdictional view, and remand with instructions to remand to the bankruptcy judge for the entry of an order under §1334(c)(1), which will mark the final step in the Bushes’ bankruptcy proceeding.

Vacated and remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Larry C. Lokken

Case No.: 2017AP2087-CR

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

Focus: Sentencing Guidelines

Larry Lokken appeals a judgment convicting him of three counts of misconduct in office and five counts of theft in a business setting, as a party to the crime, each of an amount greater than $10,000. He also appeals an order denying his motion for postconviction relief. Lokken argues that the circuit court unlawfully sentenced him on one of the theft counts and that he is therefore entitled to resentencing on all counts before a different judge. Specifically, Lokken asserts the court: (1) imposed a sentence unauthorized by statute; (2) ordered an unreasonable amount of restitution as a condition of his probation; and (3) inadequately explained how its sentence met the minimum custody standard.

We reject Lokken’s arguments, with one exception. Namely, we agree with Lokken that the circuit court exceeded its authority by ordering that a stay on an imposed and stayed sentence is “to be lifted” if Lokken fails to satisfy a condition of his probation. We therefore affirm in part, reverse in part, and remand for the court to amend the judgment of conviction to conform to this decision.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Shane T. Robbins

Case No.: 2018AP31; 2018AP232-CR

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

Focus: Consolidated Appeal

In these two consolidated cases, Shane Robbins, pro se, appeals a judgment of conviction for thirteen felonies and two postconviction orders. He raises thirty issues. We conclude that Robbins is procedurally barred from obtaining the relief he seeks in the first consolidated case, and that none of the issues he raises in the second consolidated case have merit.

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WI Court of Appeals – District III

Case Name: Timothy Pflieger v. Lara Bush-Pensy

Case No.: 2018AP1794

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

Focus: Abuse of Discretion – Injunction

Lara Bush-Pensy appeals from an order denying her motion for relief from a harassment injunction entered in favor of Timothy Pflieger. Bush-Pensy contends: (1) evidence that Bush-Pensy had violated a stipulation upon which the injunction action had previously been dismissed was insufficient to support the issuance of the injunction because there was no showing the violation was intentional and the stipulation was itself illegal and against public policy; (2) the judge issuing the injunction failed to disclose contacts he had with Pflieger’s family in violation of WIS. STAT. § 757.19(3) (2017-18); and (3) the injunction is overbroad because it prohibits conduct broader than the claimed harassment. We affirm on the grounds that Bush-Pensy has failed to develop any argument showing the circuit court erroneously exercised its discretion when it refused to grant relief from the injunction.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jeffrey Edward Olson

Case No.: 2018AP1987

Officials: BRASH, P.J.

Focus: Subject-mattter Jurisdiction

Jeffrey Edward Olson, pro se, appeals the trial court’s order denying his postconviction motion for plea withdrawal. Olson pled guilty to a charge of misdemeanor battery in 1994, and received a probation sentence which was completed in 1997. He alleges his probation was extended without his knowledge, and that the Department of Corrections (DOC) is attempting to collect “supervision fees” from him for a time period when he was no longer on probation.

Wisconsin law clearly states that postconviction relief is available to defendants only while they are still confined under the sentence they are attacking; thereafter, the courts no longer have subject matter jurisdiction to hear such motions. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Taurus Donnell Renfro

Case No.: 2019AP193-CR

Officials: KESSLER, J.

Focus: Motion to Vacate – Constitutionality

Taurus Donnell Renfro appeals a judgment of conviction, following a jury trial, of one count of carrying a concealed weapon. Renfro also appeals the postconviction order denying his motion to vacate his conviction.  Renfro argues that under Hamdan and the Wisconsin Constitution, WIS. STAT. § 941.23 is unconstitutional as applied to him because article I, section 25 of the Wisconsin Constitution specifically states: “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”  Under the test established in Hamdan, to sustain an as applied challenge to WIS. STAT. § 941.23, a defendant must show that: (1) the defendant’s need to conceal the weapon substantially outweighed the State’s interest in enforcing the concealed weapons statute, and (2) the defendant lacked any other reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms. Hamdan, 264 Wis. 2d 433, ¶86. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Troy K. Kettlewell

Case No.: 2018AP926-CR

Officials: NEUBAUER, C.J.

Focus: Warrantless Search – Community Caretaker

Troy K. Kettlewell appeals from a judgment of conviction for operating a motor vehicle while under the influence (OWI), fourth offense. Kettlewell argues the circuit court erred in denying his motion to suppress evidence obtained when police officers conducted a warrantless search of his home. The State contends the warrantless entry was justified on the ground that the police were functioning under the community caretaker exception to the warrant requirement. We disagree. We reverse and remand for further proceedings.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daniel J. Deroo

Case No.: 2018AP1246

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

Focus: Sentence Modification

Daniel J. Deroo appeals from a judgment convicting him of ten counts of possession of child pornography and from an order denying his postconviction motion for sentence modification. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21 (2017-18). We affirm.

WI Court of Appeals – District II

Case Name: Paul R. Ponfil Trust v. Charmoli Holdings, LLC,

Case No.: 2018AP1321

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

Focus: Settlement Agreement – Enforceability 

This case addresses the enforceability of a purported settlement agreement entered into by the parties at the end of mediation, in which the parties agreed to sign a separate “substantive agreement” that would address “such things” as liability and indemnity in “usual form.” The circuit court found that the agreement was binding, while acknowledging that the additional terms remained to be agreed upon. The settlement agreement is unenforceable as it lacks agreement on material terms. We reverse and remand.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Tyler J. Yost

Case No.: 2018AP2251-CR

Officials: GUNDRUM, J.

Focus: Exclusion of Evidence – Testimony 

Tyler Yost appeals from a judgment of conviction and an order denying his postconviction motion. Yost argues the circuit court erred in precluding him from presenting at trial certain testimony from a witness on the ground that the testimony was inadmissible hearsay. We agree the court erred in concluding that the challenged testimony was hearsay, but because the error was harmless, we affirm.

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