Joshua Howard v. Lynn Koeller

NONPRECEDENTIAL DISPOSITION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 December 7, 2018 *

Decided December 10, 2018

Before

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 16-3705

JOSHUA HOWARD, Appeal from the United States

Plaintiff-Appellant, District Court for the Eastern District

of Wisconsin.

v.

No. 14-CV-667

LYNN KOELLER,

and Nancy Joseph,

JOHN O’DONOVAN, Magistrate Judge.

Defendants-Appellees.

ORDER

Joshua Howard, a Wisconsin inmate, was labeled a “snitch” after word got out

that he gave up another inmate’s name to a correctional officer in connection with a

disciplinary infraction. He sued the correctional officer for intentional infliction of

emotional distress and First Amendment retaliation, alleging that she lied in her report.

*

We have agreed to decide this 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. FED. R. APP. P. 34(a)(2)(C).

No. 16-3705 Page 2

He also sued the hearing officer who found him guilty, claiming he retaliated against

him and violated the Equal Protection Clause. A magistrate judge, presiding by consent,

entered summary judgment for the defendants on all counts. We vacate the judgment

with respect to both claims against the correctional officer and otherwise affirm.

In Howard’s recounting of the facts, an inmate whom Howard knew only as

“Trigger” asked Howard, a known “jailhouse lawyer,” to review a lawsuit that

Trigger’s former cellmate intended to file. Howard agreed. Later, Howard, on his way

to the prison library, saw Trigger walking toward him with a manila envelope. Trigger

gave the envelope to Howard. This unauthorized transfer violated prison rules.

Correctional Officer Lynn Koeller received a call from another officer who

reported that she observed from a tower the exchange between Howard and inmate

Edward Malave (a.k.a. “Trigger”). Koeller approached Howard in the library, and he

immediately surrendered the envelope. Koeller and a librarian inspected the paperwork

inside and discovered that it related to a deliberate-indifference complaint by inmate

Anderson DaSilva.

The parties dispute the conversation that followed. In Koeller’s account, she

asked Howard “where he got the envelope,” and Howard told her to “look inside.”

When Koeller saw documents belonging to both Malave and DaSilva, she asked

Howard “which one he got it from,” and Howard replied, “Malave.” Howard, on the

other hand, attests that Koeller asked him “who the papers belong to,” not who handed

them off. Howard swears that he did not know Trigger’s real name, and that because

Trigger gave Howard the papers on someone else’s behalf, he did not know to whom

they belonged. He told Koeller she could find the owner’s name on the paperwork.

Koeller then issued conduct reports charging both Howard and Malave with

unauthorized transfer of property and Howard with possession of contraband. In

Howard’s conduct report, Koeller stated that she asked Howard “who gave you the

papers?” and he replied “Malave.” In Malave’s report, Koeller wrote: “Howard

admitted to getting the envelope from Malave.” The following day, Howard confronted

Koeller and protested that he never told her that Malave gave him the envelope; he also

said he had overcome similar charges before. According to Howard, Koeller said that it

did not matter whether he “beat” the charge “because it would not change what was in

the report.” Howard then asked, “So you admit you put that in there on purpose?”

Koeller retorted that Howard “should expect to get tickets” if he continued to help other

prisoners sue the Department of Corrections. Koeller had been generally aware, for

about 10 years, that Howard regularly assisted other inmates with legal work.

No. 16-3705 Page 3

Disciplinary hearings followed. Captain John O’Donovan served as the hearing

officer at Howard’s and Malave’s hearings. O’Donovan found Howard guilty of

unauthorized transfer of property, but not guilty of possession of contraband. He found

Malave not guilty of unauthorized transfer of property, noting that he believed Malave

was unaware of the property-transfer rule and gave Howard the materials only when

Howard indicated that he should. O’Donovan ordered the legal papers destroyed.

As Howard’s official discipline ended, his unofficial discipline began. Malave

called Howard a “snitch” and distributed copies of his conduct report so that others

would see what Howard did and shun him. Howard was transferred to a segregation

unit that housed inmates with behavioral and mental health issues. The inmates placed

him on “no-talk” and “no-sleep” statuses: they screamed and hit their doors, walls, and

toilets whenever Howard tried to speak or sleep. After several days, Howard wrote to

the Psychological Services Unit complaining that he was unable to sleep because of the

harassment. Howard maintains that ever since he has lived in total isolation and that he

has been threatened, stolen from, and disrespected too many times to count.

Howard sued under 42 U.S.C. § 1983, and his lawsuit was eventually whittled

down to four claims. First, he brought a “class of one” equal-protection claim against

O’Donovan, alleging that O’Donovan discriminated against him when he found

Howard, but not Malave, guilty of unauthorized transfer of property based on the same

evidence. Next, he brought a claim of intentional infliction of emotional distress, under

Wisconsin law, against Koeller, alleging that she lied on the conduct report intending to

endanger him within the prison population. He also brought a First Amendment

retaliation claim against both O’Donovan and Koeller, alleging that they disciplined

him for helping other inmates file lawsuits. Ultimately, the magistrate judge entered

summary judgment for the defendants on all claims.

As a preliminary matter, Howard argues that the summary-judgment decision is

void because O’Donovan did not consent to the jurisdiction of the magistrate judge.

See 28 U.S.C. § 636(c). We disagree. Consent may be implicit. Coleman v. Labor & Indus.

Review Comm'n, 860 F.3d 461, 470 (7th Cir. 2017), cert. denied, 138 S. Ct. 739 (2018) (citing

Roell v. Withrow, 538 U.S. 580, 586–91 (2003)). And when a general consent form has

been filed for other defendants in “exactly the same position”—as is the case here—

consent is implied. See DaSilva v. Rymarkiewicz, 888 F.3d 321, 323 (7th Cir. 2018).

As to Howard’s claims against O’Donovan, we conclude, first, that Howard

waived his argument that O’Donovan retaliated against him by failing to develop it on

appeal. See Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 648 (7th Cir. 2014). Second, we

conclude that, as the magistrate judge determined, the “class of one” equal-protection

No. 16-3705 Page 4

claim fails because it challenges discretionary decision making. See Engquist v. Or. Dep’t

of Agric., 553 U.S. 591, 603 (2008); Abcarian v. McDonald, 617 F.3d 931, 939 (7th Cir. 2010).

Howard argues that O’Donovan had no discretion because both conduct reports

involved the same transfer between Malave and Howard, and thus O’Donovan had to

find both or neither of them guilty. But that is not true. When evaluating a conduct

report, a hearing officer must weigh mitigating factors and defenses. See WIS. ADMIN.

CODE § DOC 303.80(5)–(6). That is inherently discretionary.

We disagree, though, with the district court’s disposition on Howard’s claims

against Koeller, starting with his retaliation claim. To prevail on a First Amendment

retaliation claim, Howard must show that he engaged in activity protected by the First

Amendment, that he suffered a deprivation that would likely deter such activity in the

future, and that the protected activity was at least a motivating factor in the alleged

retaliation. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). For summary-judgment

purposes, Koeller conceded that Howard engaged in protected activity. The district

court ruled, however, that Howard could not establish that Koeller engaged in conduct

that would likely deter future protected activity or that she had a retaliatory motive.

But in reaching this conclusion, the court impermissibly resolved a disputed

issue of material fact. Although it acknowledged that “[t]he parties dispute whether

Howard told Koeller … that Malave gave him the envelope,” it said that “the facts do

not support a finding that [Koeller] fabricated a statement in the conduct report.” These

statements are inconsistent: If Howard did not tell Koeller that Malave gave him the

envelope, then Koeller did lie in the conduct report. When ruling on a motion for

summary judgment, the court must rely upon only undisputed facts and can resolve

disputes only in the non-movant’s favor. See Hess v. Bd. of Trustees, 839 F.3d 668, 673

(7th Cir. 2016). Koeller does not point to any evidence that would preclude a reasonable

jury from crediting Howard’s sworn account that Koeller asked him who owned the

papers and that he did not know, and further that Howard did not even know

“Trigger’s” real name. From these facts, a jury could infer that Koeller intentionally

fabricated her statements in the reports; therefore, the fact could not be resolved against

Howard.

Further, if Koeller lied, a reasonable jury could find that her conduct would deter

“a person of ordinary firmness” from engaging in future First-Amendment activity. The

alleged untruth subjected Howard to constant threats and harassment. It is widely

acknowledged that being branded a “snitch” in prison presents grave risks to an

inmate’s safety. See, e.g., Dale v. Poston, 548 F.3d 563, 570 (7th Cir. 2008) (“[I]t's common

knowledge that snitches face unique risks in prison.”). There is no dispute about

No. 16-3705 Page 5

whether Howard was punished in the prison population for being an informant; the

only question is whether Koeller accurately reported that he was one. That is a factual

dispute that precludes summary judgment.

The district court’s finding that Koeller did not lie on the report also tainted its

conclusion that Howard’s jailhouse lawyering was not a motivating factor in her

conduct; that element was beside the point once the district court concluded that the

retaliatory conduct did not occur. At summary judgment, the plaintiff must produce

evidence supporting an inference that his speech was at least a motivating factor in the

alleged retaliation; then, the burden shifts to the defendant to rebut the causal inference.

Kidwell v. Eisenhauer, 679 F.3d 957, 965–66 (7th Cir. 2012). In addition to the close

temporal proximity of Koeller’s alleged fabrication to her review of legal materials

Howard intended to work on, Howard testified to two statements that could suggest a

retaliatory motive. First, Koeller said that he should expect disciplinary action so long

as he continued to help other prisoners file lawsuits. Second, she told him that it did not

matter whether he “beat” the conduct report because the intended damage was done. If

a jury believed Howard, it could reasonably conclude that his protected activity and the

false conduct report are “not wholly unrelated.” Id. at 966 (citations omitted).

Koeller argues, and the district court agreed, that she was aware of Howard’s

jailhouse lawyering for ten years—implying, apparently, that if Koeller wanted to

retaliate, she would have done so a long time ago. This speculation alone does not rebut

the evidence of causation. The district court also noted—presumably to further support

its conclusion that Koeller had no reason to lie—that another officer witnessed the

envelope exchange, so Malave’s identity “was not new or previously unknown

information.” But Howard does not dispute the identification of Malave—only that he

was the source of that identification.

Qualified immunity does not shield Koeller. Citing Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011), she argues that “there are no analogous cases that would give [her]

notice ‘beyond debate’ that the First Amendment prohibits [her] from reporting that an

inmate provided the name of another inmate within a conduct report.” But that is not

an accurate characterization of what Howard alleges. As the Supreme Court repeatedly

has admonished, the right at issue when qualified immunity is invoked must be

specifically tailored to the alleged conduct at issue, not defined at a high level of

generality. See Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018). Howard alleges that Koeller

made deliberate misrepresentations in disciplinary reports with the intent to trigger a

punitive response from other inmates. Koeller does not argue that a reasonable prison

No. 16-3705 Page 6

official would be unaware that this deliberate misconduct violated Howard’s

constitutional rights, so qualified immunity does not protect her.

Lastly, we conclude that it remains possible that a reasonable jury might find in

Howard’s favor on his intentional infliction of emotional distress claim. In concluding

that Koeller did not engage in “extreme or outrageous” conduct or intend to cause

emotional distress, the district court primarily relied upon its factual determination that

Koeller did not intentionally lie on the conduct reports. Without this factual premise,

the tort claim looks different.

To be sure, the task of proving intentional infliction of emotional distress under

Wisconsin law is an onerous one. Howard must ultimately show that Koeller’s conduct

was so extreme and outrageous that “an average member of the community” would

find her behavior “a complete denial of [Howard’s] dignity as a person.” See Nelson

v. Monroe Reg'l Med. Ctr., 925 F.2d 1555, 1559–60 (7th Cir. 1991). Conduct that is merely

unreasonable is insufficient. Alsteen v. Gehl, 124 N.W.2d 312, 318 (Wis. 1963). But, “[i]f

one person treats another as an object to be deliberately manipulated, humiliated, and

scorned, he ought to be compelled to compensate that person for any disabling

emotional response caused by his conduct.” Id. at 317. Koeller does not argue that

Howard cannot meet that standard as a matter of law; she argues only that “telling the

truth … is neither extreme nor outrageous.” As noted, however, a jury must decide

whether she told the truth. Howard will also have to prove that he suffered extreme

and disabling harm as a result of Koeller’s conduct; again, this is a high bar. But if we

draw reasonable inferences in Howard’s favor, his description of his total isolation and

the constant threat he lives under is more than “temporary discomfort,” and we cannot

say that no reasonable jury could find in his favor. See id. at 318 (“The plaintiff must

demonstrate that he was unable to function in his other relationships because of the

emotional distress caused by defendant's conduct.”).

The judgment of the district court in Koeller’s favor on the First Amendment

retaliation and intentional infliction of emotional distress claims is VACATED and

REMANDED for proceedings consistent with this order. In all other respects, the

judgment is AFFIRMED.