Pearson, Alex v. Cooper, Keith

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 05-1068 & 05-1241

ALEX PEARSON,

Plaintiff-Appellant,

Cross-Appellee,

v.

GEORGE C. WELBORN, Warden and

KRISTEN KWASNIEWSKI,

Defendants-Appellees,

Cross-Appellants.

____________

Appeals from the United States District

Court for the Southern District of Illinois.

No. 3:00 cv 827—Gerald B. Cohn, Magistrate Judge.

____________

ARGUED APRIL 14, 2006—DECIDED DECEMBER 8, 2006

____________

Before BAUER, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. Convicted murderer Alex

Pearson was just two days away from being transferred

out of Tamms Correctional Center, a maximum-security

prison in southern Illinois, when he received a disciplinary

ticket for sexual misconduct. That ticket set his transfer

from Tamms to a less restrictive prison back by more

than a year. Alleging that the ticket was trumped-up to

block his transfer from Tamms, Pearson sued Charles

Hinsley, who was then a warden at Tamms, Kristen

2 Nos. 05-1068 & 05-1241

Kwasniewski1, a social worker who wrote the ticket,

George Welborn, also a warden at Tamms, Eric Hallan, a

security supervisor at Tamms, and Keith Cooper, Deputy

Director of the Illinois Department of Corrections

(“IDOC”). The jury returned a verdict against Welborn

and Kwasniewski, finding that the ticket was issued to

retaliate against Pearson for complaining about condi-

tions at Tamms and for refusing to act as a confidential

informant against the Gangster Disciples once he left

Tamms. After trial, Welborn moved unsuccessfully to set

aside the verdict, see Fed. R. Civ. P. 50(b), and for a new

trial, see Fed. R. Civ. P. 59. Pearson also moved unsuccess-

fully for a declaratory judgment and attorney’s fees and

costs. Pearson now appeals from the court’s refusal to

award attorney’s fees and declaratory relief, and Welborn

and Kwasniewski cross-appeal.

I.

In 1998, seven years into a forty-five year sentence for

first-degree murder, Pearson was transferred to Tamms

as a “high security” inmate (while in prison Pearson had

received a conviction for assault). In contrast to inmates

in a typical “general population” prison, inmates in

Tamms have no contact with other inmates. Instead, they

are housed in single cells, which they leave for only an

hour each day for “individualized recreation” in a 30-foot

long, 15-foot wide partially-covered cement enclosure.

Inmates at Tamms do not hold prison jobs, do not inter-

act with other prisoners, and are allowed contact with

visitors, if at all, only through a glass partition while in

1

At the time this suit was filed, Kristen Kwasniewski’s name

was Kristen Terry. She has since married and is known as

Kristen Kwasniewski, and we refer to her accordingly.

Nos. 05-1068 & 05-1241 3

restraints. Prisoners at Tamms fall into two categories:

administrative detention (transferred to Tamms because

of administrative concerns, such as gang affiliation) and

disciplinary segregation (transferred after continuing to

cause problems at other lower-security institutions de-

spite being placed in disciplinary segregation). Both

classifications are subject to a “grade system.” Beginning

at a “C” grade, inmates progress to an “A” grade by

avoiding disciplinary reports. An inmate who maintains an

A grade for a year is eligible for transfer. In addition to

the grade system, the administrative detention prisoners

have a three-stage “level system” whereby they gain

privileges by progressing from Level 1 (fewest privileges)

to Level 3 (most privileges).

In 1999, IDOC also instituted a system-wide “renuncia-

tion” program, whereby prisoners could officially re-

nounce their gang affiliations. Although prisoners at all

of IDOC’s prisons could renounce gang affiliation, prison-

ers at Tamms were required to renounce gang affiliation to

be considered for transfer. This consisted of a videotaped

interview and a determination by prison staff that the

prisoner’s renunciation was sincere. Once renunciation

was complete, prisoners at Level 3 and Grade A were

considered eligible for the pre-transfer unit at Tamms,

known as “J-pod.”

The pre-transfer program on J-pod was just getting

started when Pearson successfully renounced his affilia-

tion with the Gangster Disciples. He and four other

inmates were the first in J-pod. The unit was intended to

prepare prisoners for transfer to a general population

prison in approximately four weeks. To that end, inmates

were celled in pairs, were allowed to eat meals with their

small group, and participated in group therapy. They

were not, however, allowed outdoors at all, so any exer-

cise had to be done in the central indoor area of J-pod

where they ate their meals.

4 Nos. 05-1068 & 05-1241

At trial, Pearson testified that he and other inmates

complained about aspects of the J-pod program. Pearson

denounced the lack of yard time (as a named plaintiff in

a previous suit over a lack of yard time, Pearson believed

he was legally guaranteed at least one hour a week

outdoors). He also complained about the fact that inmates

were shackled to one another around a small table for

group therapy. The two other inmates who testified at

trial, Edward Lee Swift and Larry Rodgers, also said

that they complained about the conditions in J-pod.

Pearson testified at trial that after several weeks in J-

Pod, security supervisor Captain Eric Hallan approached

him and told him that he would have to work as a confi-

dential informant once he reentered a general population

prison. Hallan explained that this requirement was part of

an ongoing attempt by prison administrators to “cripple”

Pearson’s former gang, the Gangster Disciples. Pearson

was surprised by this request, because he believed that he

had completed the renunciation process and did not have

to do anything further beyond completing the 30-day

program in J-pod. Pearson thus did not respond immedi-

ately to Hallan’s request. Several days later Kwasniewski

came to his cell and he discussed it with her. At that time

Pearson told her that he did not feel comfortable agreeing

to act as an informant because he had “disassociated”

himself with the Gangster Disciples and did not want to

put his life in danger. Kwasniewski responded that

informing was “a part of the requirements” and that if

Pearson wanted to leave Tamms he would “make the

right decision.” Next, Cooper approached Pearson in his

cell. With Warden Welborn, Kwasniewski, Hallan, and

Hinsley standing by, Cooper told Pearson that if he refused

to assist with the internal investigation against the

Gangster Disciples, he would not leave Tamms until he

either “die[d] or parole[d].”

Nos. 05-1068 & 05-1241 5

In the ensuing week, Warden Welborn, Hinsley, and

Kwasniewski each approached Pearson again to encourage

him to agree to be an informant. Welborn sought to assure

Pearson that the prison system would protect him. He

also reiterated to Pearson that he should take advantage

of the chance to get out of Tamms by cooperating. Pearson

testified that before Welborn left he asked Pearson about

the complaints he had been making about J-pod and also

asked about the earlier lawsuit of which Pearson had

been a part. Pearson told Welborn that he still had com-

plaints about J-pod and affirmed that he had previously

been a plaintiff in a lawsuit against the WDOC. Welborn

then left, telling Pearson that if he ever sued him he would

never leave Tamms.

Pearson also had a visit from Hinsley, who warned him

that the time for his transfer was approaching and that

his complaints were jeopardizing his chances of leaving

Tamms. Then, just over a week before Pearson would

have been transferred, Kwasniewski took him aside and

assured him that he would be safe acting as an informant.

She also encouraged him to make up his mind as to

whether he would cooperate.

Shortly thereafter, Pearson received the disciplinary

ticket that prevented his transfer—specifically, for mastur-

bating. According to Pearson, he was in his cell urinating

when Kwasniewski approached with a mental health

newsletter. Kwasniewski saw that Pearson was urinating

and stepped to the side of the cell while he finished. He

then stepped over to the door, and she handed the letter

through the slot in the door. Pearson requested some extra

newsletters and Kwasniewski said she would bring

some, but she never did. Instead, Mr. Eades, the “mental

health professional,” came back later with the extra

newsletters. Pearson’s cell mate, Larry Rodgers, testified

to essentially the same sequence of events.

6 Nos. 05-1068 & 05-1241

Kwasniewski, however, told a different story. She

testified that when she arrived at Pearson’s cell he was

sitting on his bench masturbating. She said “oh, excuse

me,” and stepped aside. Shortly thereafter, Pearson came

to the door, but when she went to hand him the newsletter,

he “kept touching himself.” Kwasniewski gave him

the newsletters and said she would return with the extras

he requested. She testified that when she did return

several minutes later, Pearson was back on his bench—

still masturbating—so she left. Later that day, she spoke

with her supervisor and wrote a disciplinary ticket for

sexual misconduct.

Pearson had a disciplinary hearing in the common area

of J-pod. After he explained his version of events, he was

found guilty and escorted away from J-pod and back to

his old cell, his opportunity to transfer extinguished. As

a sanction, he was demoted to a C grade and spent three

months in disciplinary segregation.

Pearson appealed the ticket through the internal griev-

ance process. The grievance officer recommended expung-

ing the report and reversing all sanctions. Warden

Welborn initially concurred with the grievance officer’s

recommendation, but later crossed out his decision and

ordered that the ticket remain intact. At trial, Welborn

testified that he could not recall why he changed his mind.

The final reviewing agency affirmed Welborn’s decision to

uphold the ticket. In addition to appealing the ticket

within the system, Pearson wrote Welborn to complain

that he had received a “bogus disciplinary report” because

he had not agreed to act as a confidential informant. He

also complained about the ticket to Cooper while Hinsley

and Kwasniewski were standing nearby, and Cooper

responded that he had warned Pearson that he should

cooperate. The disciplinary ticket had the effect of setting

Pearson’s release from Tamms back approximately a year-

and-a-half. Pearson had to work back up to an A grade,

Nos. 05-1068 & 05-1241 7

earn his way out of disciplinary segregation, and work

back from a Level 1 to a Level 3. The disciplinary ticket for

masturbating was the only ticket Pearson ever received

while at Tamms.

In October 2000, while still at Tamms, Pearson sued

Kristen Kwasniewski, Donald Snyder Jr., Keith Cooper,

Charles Hinsley, George Welborn, and Eric Hallan. The

defendants removed the suit to federal court. In his three-

count amended complaint, Pearson alleged that the

defendants violated the First Amendment by retaliat-

ing against him for his complaints and his refusal to act

as a confidential informant (Count One), violated his

right to Due Process by knowingly issuing a false dis-

ciplinary report (Count Two), and unlawfully imposed

discipline without sufficient evidence (Count Three). He

requested compensatory damages, a declaratory judgment

that the punishment was illegal, and a transfer from

Tamms. Shortly after Pearson filed his complaint, he was

transferred.

The court granted the defendants’ motions to dismiss

Counts Two and Three of the complaint, but allowed

Pearson to proceed to trial on his retaliation claim (Count

One). At the close of all the evidence, the court denied the

defendants’ motion for judgment as a matter of law. It did,

however limit Pearson’s recovery to nominal damages,

reasoning that he had not demonstrated that he suffered

“physical injury” as required by the Prison Litigation

Reform Act (“PLRA”). See 42 U.S.C. § 1997e(e) (no recovery

for mental and emotional distress without prior showing of

physical injury). Although the court expressed “reserva-

tions” about whether Pearson had an underlying First

Amendment right to refuse to act as a confidential infor-

mant, it nonetheless submitted the case to the jury. The

jury returned a verdict against Welborn and Kwasniewski,

and awarded Pearson nominal damages of $1.

8 Nos. 05-1068 & 05-1241

II.

On appeal, Pearson argues that the district court erred

by denying his requests for a declaratory judgment and

attorney’s fees. Alternatively, he argues that he should

have been allowed to present his claim for money dam-

ages to the jury. Welborn and Kwasniewski each cross-

appeal, arguing that the judgment against them should

be set aside. If Welborn and Kwasniewski are correct

that they are entitled to judgment as a matter of law, it

is unnecessary to reach Pearson’s arguments. We thus

begin with their cross-appeals. Both Kwasniewski and

Welborn break Pearson’s First Amendment retaliation

claim into two components: first, his complaints regard-

ing the conditions on J-pod, and second, his refusal to act

as a confidential informant. Kwasniewski argues that

there is insufficient evidence that Pearson’s complaints

about J-pod motivated any retaliation, and that the refusal

to act as an informant cannot support his claim because

Pearson has no underlying First Amendment right to

refuse such a request. Welborn, for his part, maintains

that Pearson has no underlying First Amendment right

in either his complaints or his refusal to act as an infor-

mant. Alternatively, he argues that he is entitled to

qualified immunity because there was no clearly estab-

lished law prohibiting retaliating on either ground. We

consider these arguments in turn.

We review the district court’s denial of a motion for

judgment as a matter of law de novo, viewing the evidence

in the light most favorable to Pearson, the non-movant.

E.g., Waubanascum v. Shawano County, 416 F.3d 658, 664

(7th Cir. 2005). Because the jury returned a verdict in

Pearson’s favor, we are limited to deciding whether the

evidence presented at trial, when viewed in the light most

favorable to Pearson and combined with all reasonable

inferences drawn therefrom, is sufficient to support the

verdict. See Gower v. Verclear, 377 F.3d 661, 666 (7th Cir.

Nos. 05-1068 & 05-1241 9

2004) (citations omitted). We will not reweigh the evidence,

or substitute our credibility assessments for that of the

jury. Indeed, we are limited to determining whether any

“reasonable juror” could have returned a verdict for

Pearson. See Naeem v. McKesson Drug Co., 444 F.3d 593,

605 (7th Cir. 2006) (internal quotations omitted). Despite

this liberal standard, “a mere scintilla of supporting

evidence will not suffice.” Davis v. Wis. Dep’t of Corr., 445

F.3d 971, 975 (7th Cir. 2006) (citations and internal

quotations omitted).

To succeed on his retaliation claim, it was necessary

for Pearson to demonstrate that prison officials retaliated

against him for exercising a constitutionally protected

right. Morfin v. City of East Chicago, 349 F.3d 989, 1005

(7th Cir. 2003). Kwasniewski maintains that all of the

evidence of retaliation presented by Pearson related to his

refusal to act as a confidential informant, behavior she

argues is unprotected by the First Amendment. She

points out that the trial testimony established that

Pearson’s complaints about J-pod were no different than

the other inmates’; thus it is unlikely that any retalia-

tion would be on that basis. Specifically, Kwasniewski

highlights Edward Swift’s testimony that all of the in-

mates in J-pod complained about conditions such as the

lack of yard time. And Pearson himself testified that his

complaints were about “the same issues that everybody

else had.” In fact, when asked how his complaints differed

from those made by other J-pod inmates, Pearson said,

“I didn’t complain differently than anybody else.” Thus,

Kwasniewski argues, Pearson’s retaliation claim against

her must hinge on his refusal to act as a confidential

informant, because that is the only issue that differenti-

ates him from the other J-pod inmates who experienced no

retaliation. Pearson responds that he complained about

being asked to act as an informant and the conditions in

J-pod, and that all of the complaints taken together

triggered the retaliatory conduct report.

10 Nos. 05-1068 & 05-1241

There is, however, a more fundamental problem with

Kwasniewski’s argument. Although Welborn renewed his

motion for judgment as a matter of law after the verdict,

Kwasniewski did not.2 Nor did she file a motion under

Rule 59 for a new trial. Pearson’s jurisdictional state-

ment represents that, “Defendant Kwasniewski filed no

post trial motions,” and Kwasniewski’s jurisdictional

statement states that, “Defendant Welborn filed a timely

Post-Trial Motion pursuant [to] Rules 50(b) and 59 of the

Federal Rules of Civil Procedure.” (emphasis added). By

failing to file any postverdict motions, Kwasniewski

forfeited her opportunity to have us review the sufficiency

of the evidence and direct the district court to enter

judgment in her favor. See Unitherm Food Sys., Inc. v.

Swift-Eckrich, Inc., 126 S. Ct. 980, 985 (2006) (recounting

situations where “a party’s failure to file a Rule 50(b)

motion deprives the appellate court of the power to order

the entry of judgment in favor of that party”); Fuesting v.

Zimmer, Inc., 448 F.3d 936, 938 (7th Cir. 2006) (“[T]he

Supreme Court has now indicated that a court of appeals

may not award judgment due to insufficiency of the

evidence where no Rule 50(b) motion was filed after the

verdict.”). In Unitherm the Supreme Court made clear

that a party’s failure to comply with Rule 50(b) by re-

newing a motion for judgment as a matter of law after

the verdict forecloses challenges to the sufficiency of the

evidence on appeal. Unitherm, 126 S. Ct. at 987

(“[R]espondent’s failure to comply with Rule 50(b) fore-

closes its challenge to the sufficiency of the evidence[.]”).

Thus, we cannot reach Kwasniewski’s contention that

insufficient evidence supports the jury’s conclusion that

she retaliated against Pearson on the basis of his com-

plaints about the conditions of J-pod. Id.

2

Welborn and Kwasniewski have been represented by separate

counsel throughout this litigation.

Nos. 05-1068 & 05-1241 11

Alternatively, Kwasniewski argues that the district

court erred by denying the motion for a new trial because

the verdicts were inconsistent. Specifically, she claims

that the jury’s verdict imposing liability on her and

Welborn, but not Cooper, Hinsley, and Hallan, cannot be

reconciled. As mentioned above, however, Kwasniewski

did not move for a new trial, only Welborn did. This failure

likely dooms Kwasniewski’s claim. Cf. Deloughery v. City

of Chicago, 422 F.3d 611, 615-16 (7th Cir. 2005) (recount-

ing defendant’s motion in the district court for a new

trial premised on its claim of an inconsistent verdict).

Moreover, it does not appear from the record that

Kwasniewski made a contemporaneous objection to the

alleged inconsistency of the verdict at the time it was

rendered. In many circuits, such a failure amounts to

waiver of the argument. See, e.g., Kosmynka v. Polaris

Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“It is well

established that a party waives its objection to any incon-

sistency in a jury verdict if it fails to object to the verdict

prior to the excusing of the jury.”) (collecting cases).

Whether or not that is the case in this circuit, see Carter

v. Chicago Police Officers, 165 F.3d 1071, 1079-80 (7th

Cir. 1998) (acknowledging rule but declining to decide

whether failure to contemporaneously object “constitutes

a definitive waiver”), Kwasniewski’s argument is merit-

less.

“A party claiming that inconsistent verdicts have been

returned is not entitled to a new trial ‘unless no rational

jury could have brought back’ the verdicts that were

returned.” Deloughery, 422 F.3d at 617 (citation omitted).

Here, a jury could have rationally concluded that

Kwasniewski’s decision to write the disciplinary ticket

(and Welborn’s decision to uphold it) amounted to retalia-

tion. The jury may have disbelieved Pearson’s account of

his exchanges with Cooper, Hinsley, and Hallan but

believed the conversations with Kwasniewski occurred.

Alternatively, it could have believed all of Pearson’s

12 Nos. 05-1068 & 05-1241

testimony, but concluded that the comments by Cooper,

Hinsley, and Hallan were insufficient to demonstrate

that they were personally involved in the retaliatory act

of issuing the ticket. Either way, Kwasniewski has not

demonstrated that the jury’s verdict is irreconcilable

with the evidence presented at trial. See id. at 617 (“If

possible, this court must reconcile apparently inconsistent

verdicts, rather than overturn them.”); Freeman v. Chicago

Park Dist., 189 F.3d 613, 615 (7th Cir. 1999) (“[J]ury

verdicts must be interpreted so as to avoid inconsistency

whenever possible.”).

We thus turn to Welborn’s arguments, which were

properly preserved by his filing of postverdict Rule 50 and

59 motions. Welborn argues that neither the refusal to

act as an informant nor Pearson’s complaints about the

conditions in J-pod are protected under the First Amend-

ment, and thus he is entitled to judgment as a matter of

law. The jury was instructed that Pearson bore the bur-

den of proving that “retaliation for plaintiff ’s complaints

regarding conditions at Tamms Correctional Center and

refusal to act as a confidential informant was a motivat-

ing factor in the defendant’s decision to act in the man-

ner claimed.” (emphasis added). Thus, the jury’s verdict

against Welborn represents its belief that both Pearson’s

complaints about J-pod and his refusal to act as an

informant motivated Welborn to retaliate. Regardless

whether Pearson’s refusal to act as an informant is

constitutionally protected, his complaints about the

conditions in J-pod are, and there is evidence in the re-

cord to support the jury’s conclusion that those com-

plaints motivated Welborn to retaliate.3

3

In particular, Pearson recounted that Welborn approached

him and said, “what about them [sic] complaints you have with

the yard and the chains, shackled up, things of that nature?” It

(continued...)

Nos. 05-1068 & 05-1241 13

Welborn’s argument is essentially that a prisoner has

no generalized right to complain, and that Pearson’s

complaints about J-pod amount to nothing more than

personal complaints undeserving of First Amendment

protection. Although Welborn acknowledges as a general

proposition that a prisoner’s grievances about prison

conditions are protected, e.g., Walker v. Thompson, 288

F.3d 1005, 1007, 1009 (7th Cir. 2002), he claims the right

does not extend to oral complaints about prison conditions.

Welborn first cites Brookins v. Kolb, 990 F.2d 308 (7th

Cir. 1993) for the proposition that a prisoner may not

make a retaliation claim without first demonstrating that

his speech was sufficiently “important” to warrant First

Amendment protection. In Brookins an inmate on a pris-

oners’ paralegal committee wrote a number of high-

ranking prison officials on behalf of an inmate facing

several disciplinary reports. The letter requested poly-

graph tests for the prisoner and other parties involved

in the disciplinary reports and represented that the

paralegal committee would pay for the tests. Brookins (the

plaintiff) sent the letter in violation of the committee rules,

which required advance approval of both correspondence

and disbursement of funds. Brookins sued after he was

transferred as a result of the letter. We upheld the dis-

trict court’s grant of summary judgment for the defen-

dants, reasoning that the speech in Brookins’ letter did

not warrant constitutional protection: it did not “high-

light a problem with the way the prison handled its

disciplinary proceedings, or urge a change of any prison

policy precluding the use of lie detector tests in disciplin-

ary proceedings against inmates.” Id. at 313.

3

(...continued)

was during that same conversation that Welborn warned Pearson

that he would “never get out of Tamms” if he ever thought

about filing a lawsuit against him.

14 Nos. 05-1068 & 05-1241

Welborn attempts to analogize Pearson’s complaints

about the conditions in J-pod to Brookins’ unprotected

letter requesting the lie detector test, a request unrelated

to any prison policy whatsoever. On the contrary,

Pearson’s complaints about the use of shackles in group

therapy and the denial of yard time related to matters

of concern to all J-pod prisoners. These complaints fall

squarely within the description Welborn himself, quoting

Brookins, offers as an example of what would be de-

serving of First Amendment protection: statements to

administrators on matters of “public concern” designed to

“ ‘urge a change of any prison policy.’ ” (Welborn Br. at 32

(quoting Brookins, 990 F.2d at 313)). Welborn’s character-

ization of Pearson’s complaints as personal gripes about

unimportant matters is simply unconvincing. Unlike the

inmate’s isolated request to administrators for a lie

detector test in a prison disciplinary proceeding, Pearson’s

complaints related to issues affecting all J-pod prisoners

and were, when viewing the evidence in the light most

favorable to Pearson, designed to effect a change in prison

policy.

We are equally unpersuaded by Welborn’s citation to

McElroy v. Lopac, 403 F.3d 855 (7th Cir. 2005) (per

curiam). In McElroy a divided panel of this court con-

cluded that a prisoner’s inquiry about pay for a prison

job was unprotected. Id. at 858-59. The plaintiff in

McElroy was an inmate who worked in the prison sewing

shop. Id. at 857. When it was announced that the sewing

shop would be closing, McElroy inquired whether inmates

awaiting another job would receive “lay-in” pay. Id. at 856-

57. McElroy alleged that his supervisor in the sewing

shop branded him a “trouble-maker” for his inquiry and

retaliated against him by firing him. Id. The panel con-

cluded that McElroy’s inquiry related to a “personal

matter,” id. at 858, and was thus not the type of pro-

tected activity necessary to support a First Amendment

Nos. 05-1068 & 05-1241 15

retaliation claim, id. 858-59. Unlike McElroy’s inquiry

about whether he would get paid, Pearson’s complaints

related to matters of public concern, namely, how the

prison operated the fledgling program designed to transi-

tion prisoners from the restrictive conditions at maximum-

security Tamms to a standard general population prison.

We are also unconvinced that the form of expres-

sion—i.e., written or oral—dictates whether constitu-

tional protection attaches. Welborn acknowledges that a

prison grievance is protected as “speech that is necessary

to inform prison officials of prisoner needs and to protect

a prisoner’s right to later petition the courts,” and even

goes so far as to admit that Pearson’s complaints would

likely have been protected if he had reduced them to

writing on an official grievance form. But we decline to

hold that legitimate complaints lose their protected

status simply because they are spoken. Nothing in the

First Amendment itself suggests that the right to peti-

tion for redress of grievances only attaches when the

petitioning takes a specific form. And although certain

types of “petitioning” would be obviously inconsistent

with imprisonment (marches or group protests, for exam-

ple), Pearson’s oral complaints do not fall into that cate-

gory.

Pearson testified that when the five pre-transfer in-

mates arrived on J-pod, Captain Hallan told them to let

him or Kwasniewski know if they had “any problems,

complaints, or suggestions.” Given that trial testimony, it

is possible that J-pod prisoners eschewed the formal

grievance process precisely because prison staff wel-

comed direct complaints. To then hold that those staff

have a free pass to retaliate on the basis of such

complaints—which would be protected if reduced to

writing—makes no sense. We thus reject Welborn’s

argument that Pearson’s complaints about the prison

conditions on J-pod—conditions that affected all of the

16 Nos. 05-1068 & 05-1241

prisoners housed there and related to the way the prison

administration implemented its new program—were

unprotected by the First Amendment.

Nor can we accept Welborn’s argument for qualified

immunity. Governmental officials performing discretionary

functions are entitled to qualified immunity when their

conduct “does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). As we stated when rejecting a similar argu-

ment for qualified immunity in Babcock v. White, “federal

courts have long recognized a prisoner’s right to seek

administrative or judicial remedy of conditions of con-

finement.” 102 F.3d 267, 276 (7th Cir. 1996). In light of

that recognition, we think a reasonable public official in

Welborn’s position would understand that retaliating

against a prisoner on the basis of his complaints about

prison conditions is unlawful. See Anderson v. Creighton,

483 U.S. 635, 640 (1987) (relevant inquiry is not wheth-

er “very action in question has previously been held

unlawful” but whether unlawfulness would be apparent

in light of pre-existing law). Pearson’s complaints, made

pursuant to the administration’s encouragement that

inmates voice their concerns, fall under the umbrella of

the right to seek administrative remedy for conditions of

confinement. Thus Welborn is liable for retaliating

against Pearson on that basis.

That leaves Pearson’s claim for attorney’s fees. In his

amended complaint, Pearson requested that the district

court enter a declaratory judgment that the punish-

ment was illegal, order him transferred from Tamms, and

award compensatory damages, attorney’s fees, and costs.

Shortly thereafter, Pearson was transferred from Tamms.

The district court barred Pearson from presenting his

damages claim to the jury; thus, Pearson received $1 in

nominal damages. Pearson then moved for $87,453 in

Nos. 05-1068 & 05-1241 17

attorney’s fees, $814 in costs, and a declaratory judgment.

The court concluded that Pearson was not entitled to a

declaratory judgment and that the PLRA’s fee cap provi-

sion, see 42 U.S.C. § 1997e(d)(2), applied, limiting Pear-

son’s attorney’s fees to 150% of his recovery, or $1.50.

On appeal, Pearson reasserts his entitlement to a

declaratory judgment, which he says would make the

fee cap inapplicable since it limits recovery when mone-

tary damages are the only relief secured. The relevant

provision of the PLRA provides that: “Whenever a mone-

tary judgment is awarded in an action [in which fees

are authorized under § 1988] a portion of the judgment

(not to exceed 25 percent) shall be applied to satisfy the

amount of attorney’s fees awarded against the defendant.

If the award of attorney’s fees is not greater than 150% of

the judgment, the excess shall be paid by the defendant.”

42 U.S.C. § 1997e(d)(2). We have interpreted this provi-

sion to limit attorney’s fees in cases where prisoners

obtain monetary relief to 150% of the damages award. See

Johnson v. Daley, 339 F.3d 582, 583 (7th Cir. 2003).

Although we have never addressed the precise question of

the cap’s applicability to an award of nominal damages,

several other circuits have. The First and Eighth Circuits

have both concluded that the fee cap applies to nominal

damage awards. See Boivin v. Black, 225 F.3d 36, 40-41

(1st Cir. 2000) (nominal damage award is “a monetary

judgment” under § 1997e(d) and fee cap applies); Foulk v.

Charrier, 262 F.3d 687, 703-04 (8th Cir. 2001) (same); see

also Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001)

(limiting attorney’s fees to 150% of money judgment that

included nominal and punitive damages).

Pearson, however, maintains that the fee cap is inappli-

cable in his case because he never solely sought monetary

damages. He claims that his “primary purpose” in this

litigation has been securing a transfer from Tamms and

obtaining a judgment to clear his name. As such, he

18 Nos. 05-1068 & 05-1241

argues that he is entitled to declaratory relief in addition

to nominal damages and so his recovery is not a “monetary

judgment” subject to the fee cap. Those circuits holding

that the fee cap applies to nominal damages have uni-

formly recognized that it would be inapplicable if the

plaintiff secured non-monetary relief in addition to

nominal damages. See Boivin, 225 F.3d at 41 n.4 (“In a

case in which the court orders non-monetary redress

(say, an injunction) along with a monetary judgment, the

fee cap . . . would not restrict the total amount of attor-

neys’ fees that the court could award.”); Walker 257 F.3d

at 667 n.2 (“[I]f non-monetary relief is obtained, either

with or without money damages, § 1997e(d)(2) would not

apply.”); Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th

Cir. 2003) (“[F]ees incurred to obtain injunctive relief,

whether or not monetary relief was also obtained as a

result of those fees, are not limited” by § 1997e(d)(2).).

The problem with Pearson’s argument is that, as things

now stand, the only relief Pearson has secured is the

nominal damages award. As recounted above, in Count

One of his amended complaint (the only count at issue)

Pearson sought a declaratory judgment that the punish-

ment was illegal, a transfer from Tamms, compensatory

damages, and attorney’s fees and costs. Before trial,

Pearson was transferred from Tamms, thus mooting, at

the very least, his request for injunctive relief. Welborn

argues that his transfer also mooted the request for

declaratory relief, which Welborn maintains was always

linked to Pearson’s request for the injunctive relief of a

transfer. We agree that once Pearson was transferred, his

prayer for declaratory relief largely dropped out of the

picture. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.

1996) (per curiam) (because prisoner claiming retaliatory

transfer had been transferred yet again, claims for injunc-

tive relief were moot and so were claims for declaratory

Nos. 05-1068 & 05-1241 19

relief); see also Samuels v. Mackell, 401 U.S. 66 (1971)

(equating remedies of injunctive and declaratory relief ).

Moreover, by entering a declaratory judgment in

Pearson’s favor, the district court would be doing nothing

more than reiterating the jury’s conclusion that Welborn

and Kwasniewski retaliated against Pearson. We are thus

hard-pressed to see how such a “declaratory judgment”

would constitute “other relief ” distinct from the nominal

damage award entered by the jury.4 A declaratory judg-

ment “will constitute relief, for purposes of § 1988, if, and

only if, it affects the behavior of the defendant towards the

plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per

curiam). Because Pearson has already been transferred, a

declaratory judgment would not affect Welborn’s behavior

towards Pearson. See City of Los Angeles v. Lyons, 461 U.S.

95, 103-04 (1983) (threat that plaintiff would be subjected

to illegal chokehold by police again “does not create the

actual controversy that must exist for a declaratory

judgment to be entered”); Davis v. District of Columbia,

158 F.3d 1342, 1348 (D.C. Cir. 1998) (entitlement to

declaratory relief depends on plaintiff ’s ability to demon-

strate real threat that the alleged wrong will recur). As

such, granting Pearson’s request for declaratory relief

would serve no purpose—except perhaps opening the

door on his request for attorney’s fees. Cf. Bontkowski v.

Smith, 305 F.3d 757, 761 (7th Cir. 2002) (reiterating

that declaratory relief cannot be “sought simply as a

predicate for a subsequent damages claim”); see also

Benton v. Or. Student Assistance Comm’n, 421 F.3d 901,

4

We do not by this opinion suggest that attorney’s fees would

be improper in the situation where the plaintiff has in fact

secured a declaratory judgment. We hold only that in these

particular circumstances, where Pearson has not attempted to

invalidate any official or unofficial prison policy, a declaratory

judgment would be largely duplicative of the jury’s verdict.

20 Nos. 05-1068 & 05-1241

908 (9th Cir. 2005) (“[T]he finding that plaintiff ’s rights

were violated and the accompanying judgment cannot be

the ‘something more’ required for an award of attorney’s

fees and costs.”). We add that Pearson did not argue that

the fee cap does not apply if only nominal damages are

awarded. Instead, he argued solely that the cap was

inapplicable because he was entitled to declaratory relief,

and so we need not decide today whether the fee cap

invariably applies when only nominal damages are

awarded. Because we reject Pearson’s request for declara-

tory relief, we affirm the district court’s award of $1.50 for

attorney’s fees, which represents 150% of Pearson’s $1.00

monetary award.

Alternatively, Pearson argues that the district court

erred by removing his damages claim from the jury under

42 U.S.C. § 1997e(e). That section provides that “No

Federal action may be brought by a prisoner . . . for mental

or emotional injury suffered in custody without a prior

showing of physical injury.” Pearson first reasserts the

argument rejected by the district court—that during the

extra year at Tamms he suffered physical injury. To

support this claim Pearson relies on his own testimony

that as a result of the extra year he was “mentally and

physically depressed” and “lost at least 50 pounds at the

time.” We agree with the district court that this

unelaborated claim is insufficient to support Pearson’s

assertion that he suffered “physical injury” as that term is

commonly understood. Indeed, Pearson himself fails to

cite a single case to support his contention that he suffi-

ciently proved physical injury. Cf. Davis v. District of

Columbia, 158 F.3d 1342, 1349 (D.C. 1998) (prisoner’s

weight loss, appetite loss, and insomnia after alleged

constitutional violation not “physical injury” as required by

§ 1997e(e)); Herman v. Holiday, 238 F.3d 660, 665-66 (5th

Cir. 2001) (recovery barred under § 1997e(e) for prisoner’s

Nos. 05-1068 & 05-1241 21

alleged “grave emotional and mental depression” as a

result of exposure to asbestos in prison).

Likewise, we are unpersuaded by Pearson’s assertion

that he was entitled to present a claim for lost economic

damages to the jury. For this he relies on his testimony

that at some unspecified time before transferring to

Tamms, he had held a prison job that paid “probably $15

a month.” Thus, he reasons, he presented evidence that

he lost 52 weeks worth of wages, or $780.00 ($15 a week

for 52 weeks) by spending an extra year at Tamms.

Pearson failed, however, to present any evidence that he

was guaranteed a prison job outside of Tamms. Without

such evidence, we think his claim for lost wages is too

speculative to warrant submitting it to the jury. See

Haslund v. Simon Prop. Group, Inc., 378 F.3d 653, 658

(7th Cir. 2004) (“A ‘plaintiff has the burden of proving

damages to a reasonable degree of certainty.’ ”) (citation

omitted).

Finally, we reject Pearson’s claim that he is entitled to

damages for the more onerous conditions he endured at

Tamms during his extra year of confinement. To support

his claim, Pearson cites a single pre-PLRA case noting

that lost amenities within prison are recoverable as

damages. See Ustrak v. Fairman, 781 F.2d 573, 578 (7th

Cir. 1986). Although Ustrak recognized the possibility of

such damages, it rejected awarding them in that case,

which dealt with a prisoner’s claim that he was denied

transfer to a less-onerous prison environment in retalia-

tion for letters he sent to the warden complaining about

racial discrimination. Id. at 577-78. Instead, in Ustrak

we concluded that the prisoner had failed to present

sufficiently specific proof of the improved conditions in the

facility to which he would have been transferred. Id. at

578. Pearson asserts that he did present such proof, but

he fails to convincingly explain how damages to compen-

sate him for the difference in conditions would be anything

22 Nos. 05-1068 & 05-1241

but recovery for “mental or emotional injury” now barred

by the PLRA. Indeed, in Ustrak we contrasted the plain-

tiff ’s failure of proof to several cases where damage

awards had been warranted in light of a plaintiff ’s specific

proof of poor conditions and “mental and emotional dis-

tress resulting therefrom.” Id. at 579; see also Herman, 238

F.3d at 666 (PLRA barred recovery for mental and emo-

tional injuries caused by “cold showers, cold food, unsani-

tary dishes, insect problems, a lack of adequate clothing,

and the presence of an open “cesspool” near the housing

unit” at prison) (emphasis added). Accordingly, we de-

cline to disturb the district court’s decision to limit

Pearson’s recovery to nominal damages.

III.

For the foregoing reasons we AFFIRM the judgment of the

district court denying Welborn’s postverdict motions, and

we also AFFIRM the district court’s award of $1.50 in

attorney’s fees.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-8-06