Calvin Merritte v. Stephanie Ingram
Filed Nonprecedential Disposition PER CURIAM. Accordingly, we DISMISS Merritte s appeal of the district court s costs award for lack of appellate jurisdiction. In all other respects we AFFIRM. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6826663-1]  [15-3330]
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 March 17, 2017 *
Decided March 17, 2017
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
CALVIN L. MERRITTE,
Appeal from the United States District
Court for the Southern District of Illinois.
Stephen C. Williams
Calvin Merritte sued Stephanie Ingram, a prison nurse whom he accused of
exhibiting deliberate indifference to his asthma and retaliating against him by filing a
false disciplinary ticket. A jury found for Ingram on both claims, and the district court
awarded her costs. Merritte now appeals, challenging the denial of his motions for
judgment as a matter of law and for a new trial, as well as the costs award. We dismiss
his challenge to the costs award for lack of appellate jurisdiction and affirm in all other
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
We recount the facts in the light most favorable to Ingram. See Venson v.
Altamirano, 749 F.3d 641, 646 (7th Cir. 2014). In June 2009, while Merritte was
incarcerated at the Stateville Correctional Center, a doctor gave him a 30-day
prescription for an asthma inhaler. Soon after the prescription expired, Merritte was
transferred to Centralia Correctional Center. The medical summary that was prepared
for the transfer did not mention any asthma diagnosis.
A week after the transfer, Merritte reported to the infirmary complaining about
an asthma attack. Diagnostic tests revealed restriction in Merritte’s airflow, so a nurse
administered a breathing treatment, which restored his airflow to a normal level.
The following week, when Ingram was the nurse on duty, Merritte visited the
infirmary to be tested for tuberculosis. While there he asked Ingram for an asthma
inhaler. Ingram told him that an inhaler would require a doctor’s prescription and that
he should put in a sick-call request.
Around 8:00 p.m. that night, Ingram received a call from a guard who asked
whether Merritte was currently prescribed an inhaler. Ingram checked Merritte’s
medical records and replied that he was not. About 30 minutes later, Merritte went to
the infirmary complaining that he had suffered an asthma attack while playing
basketball. Ingram twice measured his airflow and both times determined that it fell
well within the normal range and required no treatment. Ingram then wrote Merritte a
disciplinary ticket for falsely reporting an asthma attack and disobeying her order to
submit a sick-call request.
A physician examined Merritte three days later and prescribed an inhaler for
mild, exercise-induced asthma. Prison administrators later concluded that the
disciplinary ticket was unwarranted.
Merritte then brought suit under 42 U.S.C. § 1983 against Ingram and other
prison officials whom he accused of deliberate indifference and retaliation. After some
preliminary litigation, the district court denied the parties’ cross-motions for summary
judgment, 1 recruited counsel for Merritte, and allowed him to proceed to trial on two
Merritte now challenges the denial of his motion for summary judgment
against Ingram, but that denial is an interlocutory matter and—absent exceptions not
present here—it is not subject to appeal once the case proceeds to trial. See Ortiz v.
claims: (1) that Ingram was deliberately indifferent to his asthma attack in response to
the guard’s phone call, and (2) that Ingram retaliated against him by issuing a
disciplinary ticket after he threatened to file a grievance against her.
At trial the parties presented conflicting evidence about the accuracy of
Merritte’s medical records and specifically about whether he had a prescription for an
inhaler. Merritte insisted that he did have a prescription when he asked Ingram for an
inhaler and that he had been suffering an “acute” asthma attack when the guard called
Ingram. He also stated that Ingram wrote the disciplinary ticket against him after he
told her that he planned to file a grievance against her. Ingram testified, consistent with
Merritte’s medical records, that he did not have a prescription for an inhaler when she
examined him. She also stated that she did not believe Merritte needed an inhaler on an
emergency basis, that the guard whom she spoke with on the phone did not tell her
about Merritte’s asthma attack, and that she wrote the disciplinary ticket because she
believed Merritte had violated prison rules.
At the close of the evidence, Merritte moved for judgment as a matter of law, but
the district court denied his motion. The jury then returned a verdict for Ingram on both
claims. Merritte immediately moved for a new trial, arguing that he should have been
permitted to testify about what he had learned from the guard with respect to the
guard’s conversation with Ingram. The district court denied the motion, reiterating a
pre-trial ruling that the proposed testimony amounted to inadmissible hearsay.
After trial Merritte’s counsel withdrew and Merrite renewed his motions for
judgment as a matter of law and for a new trial. See FED. R. CIV. P. 50, 59. The district
court again denied the motions, and Merritte appealed. The district court, over
Merritte’s objections, later awarded Ingram $2,200 for copying and transcription costs.
See FED. R. CIV. P. 54(d)(1). Merritte did not separately appeal the costs award.
In this court Merritte again argues that he is entitled to judgment as a matter of
law because, he says, the undisputed evidence shows that Ingram was deliberately
indifferent to his asthma and retaliated against him. We review de novo the denial of a
motion for judgment as a matter of law, and will affirm so long as “a reasonable jury
would have a legally sufficient evidentiary basis to find for prevailing party.” Gracia v.
SigmaTron Int'l, Inc., 842 F.3d 1010, 1018–19 (7th Cir. 2016).
Jordan, 131 S. Ct. 884, 888–89 (2011); Empress Casino Joliet Corp. v. Balmoral Racing Club,
Inc., 831 F.3d 815, 823–24 (7th Cir. 2016).
A reasonable jury could find for Ingram on Merritte’s deliberate indifference
claim. Although Merritte characterizes asthma as a “life-threatening” medical
condition, he ignores that his asthma was mild and did not require treatment when
Ingram examined him. Ingram also testified that she did not know that the guard’s call
was prompted by an asthma attack. Moreover, Merritte’s dissatisfaction with having to
wait a few days to receive an inhaler is not a basis for concluding that he is entitled to
judgment as a matter of law. See McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016)
(recognizing that “an inmate claiming a violation of the Eighth Amendment must do
more than show negligence, medical malpractice, or disagreement with a prescribed
course of treatment”).
As for Merritte’s retaliation claim, a reasonable jury also could find for Ingram.
Although prison administrators eventually threw out the disciplinary ticket against
Merritte, a jury could believe Ingram’s testimony that she only ticketed him because she
thought he violated prison rules.
Merritte also identifies various reasons why he believes the district court should
have granted his motion for a new trial. First he asserts that the verdict is against the
manifest weight of the evidence. But, as detailed above, Merritte has fallen far short of
showing that “no rational jury” could have found in Ingram’s favor on the two claims.
See Saathoff v. Davis, 826 F.3d 925, 933 (7th Cir. 2016) (quoting EEOC v. AutoZone, Inc.,
809 F.3d 916, 919 (7th Cir. 2016)). Merritte next argues that the district court should have
allowed him to testify about what the guard relayed to him about his phone
conversation with Ingram. But as the district court properly found, that proposed
testimony amounted to inadmissible “double hearsay.” See Swearnigen-El v. Cook Cty.
Sheriff’s Dep’t, 602 F.3d 852, 864 (7th Cir. 2010) (recognizing that prisoner’s statements
about what other prisoners allegedly heard a guard say were “double hearsay”).
Merritte also asserts that the fairness of his trial was undermined by various evidentiary
rulings, the jury instructions, and comments by defense counsel. But he forfeited each of
these challenges by failing to raise objections at the appropriate time in the proceedings.
See Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 924 (7th Cir. 2015); Soltys v.
Costello, 520 F.3d 737, 745 (7th Cir. 2008).
Finally, Merritte challenges the district court’s costs award on grounds that he is
indigent and the district court lacked authority to award costs after he filed his notice of
appeal. But Merritte’s failure to file a second notice of appeal to challenge the costs
award strips us of appellate jurisdiction to consider this challenge. See Ackerman v. Nw.
Mut. Life Ins. Co., 172 F.3d 467, 468–69 (7th Cir. 1999); York Ctr. Park Dist. v. Krilich,
40 F.3d 205, 207 (7th Cir. 1994).
Accordingly, we DISMISS Merritte’s appeal of the district court’s costs award
for lack of appellate jurisdiction. In all other respects we AFFIRM.
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