Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests – January 17, 2022 – January 21, 2022

By: Derek Hawkins//January 21, 2022//

Weekly Case Digests – January 17, 2022 – January 21, 2022

By: Derek Hawkins//January 21, 2022//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Carl P. Palladinetti

Case No.: 20-2734

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

Focus: Sufficiency of Evidence

Carl P. Palladinetti participated in a scheme to defraud lenders into facilitating certain real estate transactions. He and his co-defendants were charged with many counts of bank fraud and making false statements. The district court held a bench trial on one of the bank fraud counts. The only issue was whether one of the banks Palladinetti defrauded was insured by the Federal Deposit Insurance Corporation (“FDIC”). The district court determined that it was and found him guilty. We affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Damon Turnage v. Thomas J. Dart, et al.,

Case No.: 20-3167

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Prisoner – ADA and Rehabilitation Act Violation

Damon Turnage contends that on September 21, 2016, he fell from an upper bunk at Cook County Jail and suffered a broken ankle plus other injuries. He seeks damages under §202 of the Americans with Disabilities Act, 42 U.S.C. §12132, and §504 of the Rehabilitation Act, 29 U.S.C. §794(a), on the ground that the Jail knew that he is subject to occasional seizures but failed to enforce his lower-bunk permit (which had been issued to reduce the risk of falling during a seizure).

Turnage is using the ADA and the Rehabilitation Act to pursue, in federal court, what is effectively a state-law tort claim. And there is no tort without injury. Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir. 1996). These statutes may be available to protest exposure to unjustified risks, but a prisoner or other litigant is free to wait until the risk comes to pass. Forget about §1997e(a) for a moment and suppose that Turnage had filed a common-law tort suit on September 10, 2018, more than two years after his placement into an upper bunk but less than two years after his fall and injury. (Two years is a normal limit for tort suits.) A court would deem that suit timely, because injury, coupled with knowledge of its cause, marks the claim’s accrual. See United States v. Kubrick, 444 U.S. 111 (1979). For the same reason, a grievance that is timely with respect to an injury satisfies §1997e(a) when the suit seeks damages for that injury.

Turnage has exhausted the administrative remedies available to him. The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and remanded

Full Text

7th Circuit Court of Appeals

Case Name: Jose Edin Pineda-Teruel v. Merrick B. Garland

Case No.: 20-3516

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

Focus: Immigration – Removal Proceedings

Jose Edin Pineda-Teruel illegally entered the United States in 2007. He was removed to Honduras in 2017. In 2019, he again attempted to enter the United States but was apprehended at the border. Facing enforcement of the prior removal order, Pineda-Teruel filed an application seeking withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture, claiming that he was the target of an extortion scheme in Honduras and risked death if he returned. Both an immigration judge and the Board of Immigration Appeals found that Pineda-Teruel failed to establish eligibility for withholding of removal under the Immigration and Nationality Act or protection under the Convention Against Torture. We find no error and therefore deny Pineda-Teruel’s application.

Petition denied

Full Text

7th Circuit Court of Appeals

Case Name: Melvin D. Reed v. PF of Milwaukee Midtown, LLC,

Case No.: 20-3057

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Frivolous Appeal and Attorney Fees

Melvin Reed applied for a job at Planet Fitness of Milwaukee. When it did not hire him, he filed with the EEOC a charge of age discrimination. After the agency found a lack of support for that charge, Reed sued under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34.

The clerk of court returned Reed’s complaint, unfiled. In 2012 the district court had issued a litigation-bar order based on Reed’s history of frivolous suits. Reed v. Lincare, Inc., No. 11-C-221 (E.D. Wis. Nov. 21, 2012). The judge concluded that Reed sent off many employment applications every year. If hired, he worked for a short time before giving the employer cause to fire him, then asserted discrimination. If not hired, he asserted that this, too, was discriminatory. After suing, Reed made settlement demands based on the cost to defendants of defending the suit rather than a plausible estimate of the likelihood that he would prevail. The judge directed Reed to pay a sanction of $5,000 and enforced it by preventing further litigation in federal court until the money had been paid. We affirmed both the order dismissing the suit and the sanction. Reed v. Lincare, Inc., No. 12-3782 (7th Cir. July 30, 2013) (nonprecedential disposition). An earlier decision of this court tallied at least 16 of Reed’s frivolous suits. Reed v. Ewald Automotive Group, Inc., No. 10-3186 (7th Cir. May 11, 2011) (nonprecedential disposition). Less-extensive records of abusive litigation have led to bar orders. See, e.g., Support Systems International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995).

Reed must understand that continued frivolous suits and contentions will lead to a new bar order. In the meantime, we conclude that his history of frivolous litigation—including frivolous arguments in this very suit—justifies an order that he prepay all fees to file new suits in the district court and appeals to this court. In other words, by a sustained course of conduct, Reed has forfeited the privilege of litigating in forma pauperis under 28 U.S.C. §1915.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Yves Mabuneza v. Merrick B. Garland

Case No.: 20-1799; 20-2998

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

Focus: Immigration – Removal Proceedings

In March 2017, the Department of Homeland Security commenced removal proceedings against Yves Mabuneza. He requested deferral of removal because he feared that he would be tortured if he were deported to the Democratic Republic of the Congo (“DRC”). The immigration judge (“IJ”) denied the request for deferral, and the Board of Immigration Appeals dismissed Mabuneza’s appeal of that decision. Mabuneza then filed a motion to reconsider the dismissal, which the Board denied. Because the IJ’s decision was supported by substantial evidence, we deny the petition for review of the denial of Mabuneza’s request for deferral of removal. And because the Board did not commit a legal or factual error in its analysis, we deny the petition for review of the denial of the motion to reconsider.

Petition denied

Full Text

7th Circuit Court of Appeals

Case Name: Danny Wilber v. Randall Hepp, Warden

Case No.: 20-2614; 20-2703

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

Focus: Due Process Violation

A jury convicted Danny Wilber of murder in Wisconsin state court, and he was sentenced to a life term in prison. After unsuccessfully challenging his conviction in state court, Wilber sought relief in federal court pursuant to 28 U.S.C. § 2254, arguing among other things that he was deprived of his right to due process under the Fourteenth Amendment when he was visibly shackled before the jury during closing arguments. The district court issued a writ of habeas corpus on that claim, concluding that the Wisconsin Court of Appeals decision sustaining the shackling order amounted to an unreasonable application of the United States Supreme Court’s decision in Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007 (2005). Because neither the trial judge nor the state appellate court ever articulated a reason why Wilber had to be visibly restrained in the jury’s presence, we agree with the district court that the shackling decision ran afoul of Deck. And because Wilber was visibly restrained at a key phase of the trial, when the State highlighted evidence that, in the moments leading up to the murder, Wilber’s behavior was “wild,” “crazy,” “possessed,” and “out of control,” we also agree with the district court that Wilber was prejudiced by the shackling error. The restraints would have suggested to the jury that the court itself perceived Wilber to be incapable of self-control and to pose such a danger that he must be manacled in order to protect others in the courtroom, including the jurors. We therefore affirm the district court’s decision to grant a writ of habeas corpus.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jesse Rogalla

Case No.: 2019AP1486-CR

Officials: HRUZ, J.

Focus: Warrantless Search – Suppression of Evidence

Jesse Rogalla appeals a judgment convicting him of disorderly conduct, as an act of domestic abuse. Rogalla argues that the circuit court erred by denying his motion to suppress evidence obtained after police entered his home without a warrant.  The court concluded that the police entry was permissible under the exigent circumstances exception to the warrant requirement because “there was a very real and significant threat to the physical safety” of a woman within Rogalla’s home. We agree and therefore affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Frank K. Miles, Jr.,

Case No.: 2020AP96-CR

Officials: Brash, C.J., Donald, P.J., and Dugan, J.

Focus: Unlawful-stop Claim – Reasonable Suspicion – Suppression of Evidence

Frank K. Miles, Jr., appeals from a judgment, entered on his guilty pleas, convicting him of possession of a firearm by a felon and fifth offense operating while intoxicated (OWI). Miles contends the circuit court erroneously denied his suppression motion, which was premised on a claim that Miles was illegally seized and searched. We conclude that the circuit court did not err, so we affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. S.T.,

Case No.: 2021AP1278; 2021AP1279; 2021AP1280

Officials: BRASH, C.J.

Focus: Termination of Parental Rights

S.T. appeals the orders of the trial court terminating her parental rights to P.G., Jr., and twins J.G. and J.G. She argues that the trial court erred in admitting evidence regarding the termination of her parental rights to two of her other children, which occurred prior to the birth of the three children involved in this matter. Upon review, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: Brandon Winzer v. Dr. Hartmann, et al.,

Case No.: 2019AP1540

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that corrections were made to paragraph 1, adding footnote 1, in the above-captioned opinion which was released on September 29, 2021. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

Full Text

WI Court of Appeals – District II

Case Name: Cheri Mastel v. School District of Elmbrook

Case No.: 2020AP1781

Officials: Gundrum, P.J., Neubauer and Grogan, JJ.

Focus: Writ of Mandamus – Public Records

Cheri Mastel appeals from an order of the circuit court denying her petition for a writ of mandamus that sought to compel the School District of Elmbrook (District) to provide her with (1) the applications of three applicants who were not “final candidates” for a vacant school board position; (2) the e-mail addresses, phone numbers, addresses, and other personal information of the seven applicants who ultimately were not chosen for the position; (3) the professional contact information of the one applicant who was chosen for the position; and (4) the “Declarations of Eligibility” for all eight applicants. We affirm in part, reverse in part, and remand for further proceedings.

Recommended for Publication
Full Text

WI Court of Appeals – District II

Case Name: Town of Brookfield v. Martin M. Gonzalez

Case No.: 2021AP218

Officials: GUNDRUM, P.J.

Focus: 1st Amendment Violation

Martin M. Gonzalez appeals the circuit court’s judgment convicting him of municipal disorderly conduct following a jury trial. He contends he was unconstitutionally convicted for social media posts he made, claiming those posts did not constitute a “true threat” and thus are protected by the First Amendment. We agree with Gonzalez and reverse and remand to the circuit court to vacate his conviction.

Full Text

WI Court of Appeals – District IV

Case Name: Mark B. Pattinson, et al., v. Richard H. Ubersox, et al.,

Case No.: 2019AP1866

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

Focus: Abuse of Discretion – Jury Instructions

Mark B. Pattinson appeals a final judgment, entered on a jury verdict, dismissing his personal injury suit against Richard H. Ubersox. At trial, each party argued that the other was negligent in causing a vehicular accident, with Ubersox presenting evidence that Pattinson’s driving reaction time was delayed because of alcohol impairment. On appeal, Pattinson argues that the circuit court erroneously exercised its discretion by: (1) giving a jury instruction setting forth the presumptive effect of chemical tests for intoxication resulting from alcohol consumption; (2) admitting the testimony of Ubersox’s toxicologist expert witness, who relied on the results of Ubersox’s hospital blood test; and (3) prohibiting Pattinson from claiming future medical expenses. We affirm, concluding that Pattinson has not demonstrated error in connection with the jury instruction and that he has forfeited his challenge to the admissibility of Ubersox’s expert witness testimony. Because we uphold the judgment dismissing all claims against Ubersox, we do not reach Pattinson’s argument regarding medical expenses.

Full Text

WI Court of Appeals – District IV

Case Name: Audrey Tuohy v. Artisan and Truckers Casualty Company

Case No.: 2020AP1793

Officials: Kloppenburg, Fitzpatrick, and Nashold, JJ.

Focus: Insurance – Uninsured Motorist Coverage

This appeal concerns WIS. STAT. § 632.32(5)(i) (2019-20), which permits an insurer to offset underinsured motorist (UIM) or uninsured motorist (UM) coverage limits to account for payments from other sources. The question is whether § 632.32(5)(i) allows an insurer to twice offset a single payment from the UIM tortfeasor’s insurer, by applying that reduction to both UIM and UM coverage limits. We conclude that § 632.32(5)(i) does not permit this type of double reduction. Accordingly, we affirm the judgment awarding Audrey Tuohy, the injured insured, the disputed portion of her UM payment. We further conclude that this appeal is not frivolous and therefore deny Audrey’s motion for costs and fees under WIS. STAT. RULE 809.25(3).

Full Text

WI Court of Appeals – District IV

Case Name: Heartland Credit Union v. Chocolaterian LLC, et al.,

Case No.: 2020AP2154

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

Focus: Foreclosure – Junior Lienholder

Heartland Credit Union brought a mortgage foreclosure action against Chocolaterian LLC in the Dane County Circuit Court. Heartland appeals an order of the circuit court which granted the motion of Duane Beckett, a junior lienholder, to confirm a sheriff’s sale of real property belonging to Chocolaterian (“the property”). Chocolaterian borrowed money from Beckett, and a mortgage to secure that loan was recorded. Later, Chocolaterian executed a promissory note with Heartland (“Note 1”), and a mortgage to secure that debt was recorded. Beckett agreed to subordinate his mortgage to Heartland’s mortgage for Note 1. A few months later, Chocolaterian executed a second promissory note with Heartland (“Note 2”).

Chocolaterian failed to pay its debts to Heartland. Heartland filed a complaint against Chocolaterian requesting a foreclosure judgment. The complaint also requested a money judgment against Chocolaterian for the amounts due under Note 1 and Note 2. Beckett was named as a defendant in that action because of his status as a lienholder. The circuit court entered a judgment of foreclosure on Heartland’s mortgage. The circuit court also entered judgment against Chocolaterian for the amounts due under Note 1 and Note 2. At a sheriff’s sale of the property, Heartland made a “credit bid” of $499,000,1 an amount greater than the amount due to Heartland under Note 1, but less than the amount due under Note 1 and Note 2 combined. Heartland moved to confirm the sale, but the circuit court concluded that Heartland was not entitled to credit bid more than the amount due under Note 1. The court allowed Heartland to withdraw its confirmation motion so that a second sheriff’s sale could be held. Before a second sheriff’s sale could be conducted, Beckett moved to confirm the sheriff’s sale based on the credit bid made by Heartland at the prior sale. The circuit court granted Beckett’s motion, but did not confirm the sale based on Heartland’s credit bid of $499,000. Rather, at Beckett’s request, the circuit court allowed Heartland to have a credit bid in the amount of $451,774.29 (the amount due to Heartland under Note 1) but required Heartland to pay Beckett $47,225.71 in satisfaction of his junior lien (the difference between Heartland’s credit bid on Note 1 and the $499,000 credit bid of Heartland at the sale). Heartland appeals.

We conclude that the circuit court correctly ruled that Heartland was not entitled to credit bid more than the amount due to Heartland under Note 1. However, we also conclude that the court erred in granting Beckett’s confirmation motion regarding the sheriff’s sale that was held because Beckett lacked statutory authority as a junior lienholder to move for confirmation of the sale based on Heartland’s $499,000 credit bid. Our decision necessarily requires reversal of the circuit court’s order that required Heartland to pay $47,225.71 to Beckett to satisfy Beckett’s junior lien. We therefore remand for the circuit court to order a second sheriff’s sale of the property.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Randy L. Bolstad

Case No.: 2021AP49-CR

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

Focus: Abuse of Discretion – Sentencing Guidelines

The circuit court sentenced Randy Bolstad, after revocation of his probation, to five years of initial confinement and two years of extended supervision for attempted robbery with threat of force. Bolstad argues that the circuit court erroneously exercised its discretion at sentencing by failing to consider the gravity of the underlying offense for which he received the probation disposition. We agree and, therefore, reverse and remand to the circuit court for resentencing.

Recommended for Publication

Full Text

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests