Joshua Howard v. David Clarke, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6491276-1] [6491276] [12-2740]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2013*
Decided June 5, 2013

Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge

No. 12-2740

Appeal from the United
States District Court for the
Eastern District of Wisconsin.

JOSHUA T. HOWARD,
Plaintiff-Appellant,
v.

No. 05-C-635
William E. Callahan, Jr.,
Magistrate Judge.

BYRON TERRY, et al.,
Defendants-Appellees.
Order

Joshua Howard, a Wisconsin inmate, brought this suit under 42 U.S.C. §1983, alleging violations of the First, Eighth, and Fourteenth Amendments, and state law. A magistrate judge, presiding by consent, see 28 U.S.C. §636(c), granted summary judgment
against Howard on most claims; only the Eighth Amendment claims against two defendants, Deputy Byron Terry and Sheriff David Clarke, went to trial. A jury found in
favor of Terry and Clarke.
After a court appearance in 2004, deputies Thomas McCormack and Terry escorted
Howard and three other inmates back to the Milwaukee County Jail. Terry handcuffed

*

After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).

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the inmates to a belly chain and told them not to speak in the hallways. Howard spoke
anyway, and Terry admonished him to remain silent, using force. The severity of that
force is disputed. Howard filed a grievance, and Nurse Myra Lathrop examined injuries
that Howard blamed on Terry. Lathrop thought that one bruise looked old, but Howard
insisted that it was fresh.
While waiting for action on this grievance, Howard submitted another, this time to
Deputy Brian Thelaner, complaining about what Howard deemed undue delay in ruling on the first grievance. The next day Thelaner and other guards searched Howard’s
cell, left it in disarray, and confined him to his cell for the next 23 hours. Thelaner explained that another inmate in Howard’s pod was reported to be hiding contraband
(ballpoint pens), so two sergeants and ten deputies searched all 28 cells in that pod, including Howard’s. After the search, Thelaner told Howard that a guard found matches
in Howard’s cell, leading to the 23-hour confinement. Howard denied having matches
and asked to see them. Thelaner responded that other deputies had taken them away
and added: “if you don’t like it, file another grievance.”
Howard challenges as a violation of the Eighth Amendment the force used at the
courthouse, suing Terry and Sheriff Clarke (the latter, for failing to recognize that Terry
was inclined to violence). He also challenges as a violation of the First Amendment his
23-hour confinement, arguing that Thelaner retaliated for the grievance against Terry.
The district court granted summary judgment to all defendants on all claims except the
excessive-force claims against Terry and Clarke.
Howard’s notice of appeal named only Terry and Clarke as appellees and identified
for review only post-trial orders. His appellate brief, however, asks us to upset the
awards of summary judgment to Terry, Clarke, and Thelaner. An appeal from a final
judgment presents all antecedent orders, so a challenge to the summary-judgment rulings is possible. See United States v. Segal, 432 F.3d 767, 772 (7th Cir. 2005); Bastian v.
Petren Resources Corp., 892 F.2d 680, 682 (7th Cir. 1990).
The omission of Thelaner’s name from the notice of appeal also does not affect the
availability of review. The Supreme Court in Torres v. Oakland Scavenger Co., 487 U.S.
312 (1988), construed Fed. R. App. P. 3(c) to require every appellant’s name to appear in
the notice of appeal. The Court did not hold that every appellee’s name also must be
listed. Rule 3(c) is limited to appellants, and after Torres we held that the Supreme
Court’s decision likewise is limited to naming appellants. House v. Belford, 956 F.2d 711,
717 (7th Cir. 1992). Accord, United Auto Workers Union v. United Screw & Bolt Corp., 941
F.2d 466, 471 (6th Cir. 1991); Longmire v. Guste, 921 F.2d 620, 622 (5th Cir. 1991); Battle v.
District of Columbia, 854 F.2d 1448, 1450 (D.C. Cir. 1988); Charles Alan Wright, Arthur R.
Miller, Edward T. Cooper & Catherine T. Struve, 16A Federal Practice & Procedure
§3949.4 at 140–41 (4th ed. 2008). Rule 3(c) says that the notice of appeal must identify
the judgment appealed from, not that it must identify the appellees. Howard identified
the final judgment in the case; no more is required.

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On the merits, we start with Howard’s argument that the court should not have
granted summary judgment to Thelaner. To create a triable case of retaliation, a plaintiff
needs evidence that a protected activity—such as filing grievances—was “at least a motivating factor” in adverse action. See Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir.
2012); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Howard presented no evidence
that anyone but Thelaner knew about his grievance, so the judge properly dismissed the
retaliation claim against all of the other deputies. And although Thelaner knew about
the grievance, a reasonable jury could not infer that it motivated his actions.
If Thelaner had set out to discourage grievances, he could hardly expect to accomplish his end by increasing, by a few hours in a single day, the time a prisoner spends in
his cell. Confining a prisoner for 23 hours in his cell on a single day is the equivalent of
sending a high school student to study hall for running in the corridors. An adjustment
in the number of cell-bound hours for a single day affects neither liberty nor property;
indeed, it is difficult to see how this trivial act could support an award of damages. A
jury might sensibly infer that Thelaner did not like prisoners who filed grievances, but
the record could not support an inference of retaliation. Howard has tried to make a
mountain out of a molehill. He might as well complain that Thelaner sneered at him
while passing in the corridor.
Howard next argues that the magistrate judge erred by dismissing at summary
judgment his state-law claim against Terry for intentional infliction of emotional distress. We agree with the judge that Howard failed to create a genuine dispute on the
question whether Terry intended to cause him emotional distress, an element of the tort
in Wisconsin. See Rabideau v. City of Racine, 627 N.W.2d 795, 802–03 (Wis. 2001); Alsteen
v. Gehl, 124 N.W.2d 312, 318 (Wis. 1963). Howard asserts that Terry “was fully aware”
that his method of ending Howard’s disobedience (pushing him up against a wall, perhaps violently) would hurt and humiliate him, but awareness alone is insufficient:
Howard needed to submit evidence that “the conduct was engaged in for the purpose
of causing emotional distress.” Rabideau, 627 N.W.2d at 803. He did not.
That brings us to the trial. Howard begins by contending that the judge made two
evidentiary errors. First, Howard argues that the judge should not have allowed Terry
to impeach Howard with his 17 prior felony convictions, all older than 10 years. Fed. R.
Evid. 609 generally excludes convictions “if more than 10 years have passed since the
witness’s conviction or release from confinement for it, whichever is later.” The judge
properly relied on the “whichever is later” clause: Howard is still serving his sentences
for these 17 convictions. Howard contradicted Terry’s account of the incident, so his
credibility was at issue, and the judge did not abuse his discretion by allowing his impeachment. See United States v. Gant, 396 F.3d 906, 910 (7th Cir. 2005); United States v.
Smith, 131 F.3d 685, 687 (7th Cir. 1997). The judge allowed the jury to learn only the
number of felony convictions; he kept the jurors from learning their nature—including
first-degree sexual assault of a child and solicitation of a child for prostitution. Howard
has no legitimate complaint about these rulings

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Second, Howard contends that he should have been permitted to impeach Terry by
questioning him about the hit-and-run charge in 1999 and his false report that his car
had been stolen. Rule 608(b) bars extrinsic evidence of conduct bearing on a witness’s
character for truthfulness but allows judges, subject to Rule 403, to permit crossexamination about it. See Hollins v. City of Milwaukee, 574 F.3d 822, 828–29 (7th Cir.
2009); United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007). Terry was acquitted of the
hit-and-run charge, so the magistrate judge reasonably concluded that the limited probative value of questioning him about the incident was outweighed by the danger of
unfair prejudice. See Hollins, 574 F.3d at 829 (concluding that court was within its discretion to bar questioning about allegations of wrongdoing that were unproven).
Howard next raises two challenges to Terry’s closing argument: He argues that
counsel (1) falsely stated that Howard did not have medical records to substantiate his
allegations of physical and psychological injuries, and (2) argued facts not in evidence
by linking Howard’s bruises to an alleged basketball injury, even though Howard testified that he does not play basketball and denied telling Nurse Lathrop otherwise. But
Howard forfeited these points by failing to object when counsel made his argument. See
Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008); Soltys v. Costello, 520 F.3d 737, 745
(7th Cir. 2008).
Finally Howard contends that the verdict in favor of Terry is against the manifest
weight of the evidence. The testimony at trial required the jury to choose between two
stories. Terry testified that he warned Howard at least three times to stop talking in the
courthouse hallway, and that only after Howard continued to disobey did he move
Howard to the wall, never using force that could cause injuries. Howard, on the other
hand, testified that he was “slammed” against the wall and severely injured. The jury
weighed the conflicting testimony and believed Terry’s version of the events. See Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012); United States v. Hassebrock, 663 F.3d 906,
920 (7th Cir. 2011). Live testimony by a participant in the events is quite enough to support the verdict.
AFFIRMED