Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Plaintiffs received letters from defendants that stated: Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of the judgment and mail you a copy of such judgment or verification. The Fair Debt Collection Practices Act, 15 U.S.C 1692g(a) requires the debt collector to include “a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector” and a “statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.” Plaintiffs claimed noncompliance because the notice omits the phrase “that the debt, or any portion thereof, is disputed.” One letter referred to “your just debt;” the recipient alleged that the phrase suggests that the debt’s validity has been confirmed. Four trial courts dismissed. The Seventh Circuit affirmed, stating that any written request for verification constitutes a dispute for purposes of the Act. The reference to “just debt” was mere puffery. View "Borucki v. Vision Fin. Corp." on Justia Law

The Aurora School District fired Green from his position as a teacher. His union refused his requests to pursue a grievance under a collective bargaining agreement and to represent him in a suit under the Illinois Teacher Tenure Act. Green sued, won, and was reinstated, then sued, claiming that his union abandoned him because of his race, violating the Civil Rights Act of 1964, 42 U.S.C. 2000e–2(c). Green, who is black, claims that the union has represented comparable white employees in grievance proceedings and litigation under the Tenure Act and that the union retaliated against him because he had opposed earlier discrimination. The district judge called Green’s evidence “conclusory;” concluded that the National Labor Relations Act does not apply to employees of state or local government, so the union did not have a duty of fair representation; and stated that Illinois law does not require teachers’ unions to represent teachers by filing grievances under a collective bargaining agreement or suits under the Tenure Act. The Seventh Circuit vacated and remanded, holding that neither 42 U.S.C. 2000e–2(c) nor 2000e–3(a) makes anything turn on the existence of a statutory or contractual duty violated by the act said to be discriminatory. View "Green v. AFT/IFT Local 604" on Justia Law

Off-duty Officer Macon argued with Richardson about Macon’s former girlfriend. Macon fired his gun at Richardson but missed. When on-duty officers arrived, Macon said that Richardson had struck him with a baseball bat. Richardson was arrested and charged with assault and battery. After the charges were dismissed, Richardson filed suit, with 39 claims under 42 U.S.C. 1983 and state law against Chicago, Macon, the arresting officers, and others. Chicago was dismissed before trial because municipalities are not vicariously liable under section 1983, and the district judge found that none of the city’s policies (including its training regimens) was constitutionally deficient. The jury rejected claims against the other defendants, but decided in Richardson’s favor on one claim, concerning the shot Macon fired, and awarded $1 in nominal damages plus $3,000 in punitive damages. Macon did not appeal, nor did Chicago, which under Illinois law must indemnify Macon for the $1 but not the punitive award. Pursuant to 42 U.S.C. 1988, Richardson sought more than $675,000 in fees. The district judge awarded $123,000, noting that the firm’s billing did not allow non‑compensable time to be separated out. The Seventh Circuit affirmed the award as “generous, considering Richardson’s recovery.” View "Richardson v. City of Chicago" on Justia Law

Foley was convicted of three counts of producing child pornography, one count of distributing child pornography, one count of taking a child across state lines for the purpose of a sex act, and one count of possessing child pornography. Foley appealed, arguing that government’s evidence failed to satisfy the commerce element of those charges (18 U.S.C. 2251(a)) and that the district court improperly admitted evidence of a prior sexual assault under Federal Rule of Evidence 413, causing unfair prejudice. The Seventh Circuit affirmed. Foley’s storage devices (hard drives manufactured in China and in Thailand) could be considered by a jury as material used in “production” sufficient to satisfy the commerce element. The disputed testimony was relevant to Foley’s propensity to commit sexual crimes against children, and to his intent and motive; given the overwhelming evidence of the sexual assault, there was little risk of prejudice. View "United States v. Foley" on Justia Law

In Wisconsin, Register of Deeds is an elected position. If a vacancy occurs mid-term, the governor may appoint an interim Register for any unexpired portion of the term. The Marinette County Register announced her mid-term retirement. Chasensky, then employed as Chief Deputy Register of Deeds, sought the interim appointment. Chasensky was interviewed by Esser, Walker’s appointments official, who informed Chasensky that he would forward her application to Governor Walker for appointment to the position. Esser subsequently learned that Chasensky was involved in a personal bankruptcy proceeding. Esser informed Chasensky that Walker would not appoint her as interim Register. Chasensky claims that Werwie, Walker’s official spokesperson, publically broadcast that she was not appointed because she was in a bankruptcy proceeding and that “[d]erogatory comments and innuendo regarding [her] bankruptcy, personal financial matters and character which impugned and harmed [her] professional and personal reputation were intentionally publically disclosed by Governor Walker and Mr. Werwie” when Governor Walker spoke on the FOX television network. Werwie publically announced that Walker had planned to appoint her until he learned of her bankruptcy. In her suit alleging violation of privacy rights, employment rights, and of 11 U.S.C. 525(a) (bankruptcy discrimination), the district court held that the defendants waived qualified immunity by failing to raise it before their motion to dismiss the amended complaint. The Seventh Circuit reversed; the defendants are entitled to qualified immunity from Chasensky’s privacy and equal protection claims. View "Chasensky v. Walker" on Justia Law

From 2002–2003, Cheek sold marijuana and crack cocaine to a drug dealer, Eason. While Cheek was in prison in 2004, his associate supplied the drugs. After his release, Cheek went back to selling drugs. He was incarcerated again in 2008, but informed Eason and others that he would resume selling drugs. Law enforcement persuaded Eason to perform controlled buys and record his interactions with Cheek. With court authorization, law enforcement intercepted more than 20,000 phone and text conversations from Cheek. Cheek was convicted of conspiring to possess and distribute more than 280 grams of crack cocaine and more than 100 kilograms of marijuana from 2001 to 2011; intending to distribute more than 28 grams of crack cocaine in August, 2010; intending to distribute marijuana on March 23, 2011; and using a telephone on February 11 and 23, 2011, to facilitate the drug conspiracy. Before trial, the government indicated, pursuant to 21 U.S.C. 851, intent to seek an enhanced sentence based on seven prior felony drug convictions. The Seventh Circuit affirmed the conviction and sentence of 576 months, rejecting challenges to testimony about the meaning of drug code words. The court also rejected challenges to the sentence: that the court failed to comply with section 851(b); violated constitutional rights, by enhancing Cheek’s sentence beyond the 480-month statutory maximum, because the jury did not find beyond a reasonable doubt that Cheek was convicted of the prior felonies supporting the enhancement; that the court erred in imposing the obstruction of justice enhancement and failed to meaningfully consider mitigation arguments. View "United States v. Cheek" on Justia Law

Drain sold a rifle, stolen from an FBI vehicle and engraved “Law Enforcement Use Only,” to a government informant. Police went to Drain’s home to arrest him on charges of dealing cocaine. They observed drug paraphernalia, obtained a warrant, and recovered a loaded pistol with an obliterated serial number. Drain’s fingerprints were on bullets in the gun. The officers found injured, malnourished pit bulls in squalid conditions at the residence. Drain confessed that he had fired the stolen rifle, but insisted that he was hiding it for an acquaintance. Drain denied that he possessed any guns, but changed his story and said he was holding the pistol for an acquaintance. After the fingerprint analysis, Drain admitted loading the pistol and bragged that his fingerprints probably are on every gun in Indiana. He pled guilty to unlawful possession of a firearm by a felon, 18 U.S.C. 922(g)(1). The probation officer calculated a guidelines imprisonment range of 33 to 41 months. Drain’s score did not reflect three juvenile offenses, six of 10 adult convictions, a pending drug case, or 17 unadjudicated arrests, so the officer suggested that an upward departure under U.S.S.G. 4A1.3(a)(1). At allocution, the judge questioned him about his extensive criminal history at age 33 and about the role of drugs in his life. The judge imposed a sentence of 57 months. Drain’s lawyer stated that he did not needadditional explanation of the reasons. The Seventh Circuit affirmed. The judge did not violate Drain’s due process rights by considering his arrest history as part the sentencing factors under 18 U.S.C. 3553(a).View "United States v. Drain" on Justia Law

In 2011 Whitlow pled guilty to two counts of distribution of five or more grams of cocaine base, in violation of 21 U.S.C. 841(a)(1), crimes he committed before the effective date of the Fair Sentencing Act of 2010, 124 Stat. 2372. The district court sentenced him to 262 months’ imprisonment, rejecting a request that he be sentenced under the Act. After the Supreme Court issued its 2012 opinion, Dorsey v. United States, the Seventh Circuit vacated and remanded for resentencing under the Act. On remand, the government opposed action by the court to credit Whitlow’s time in pretrial custody and noted that this was Whitlow’s eighth felony drug conviction and that he also had a robbery conviction, justifying a career offender sentence. The district court declined to address the BOP’s error concerning pretrial custody, commented indirectly on defense arguments concerning incremental sentencing and career offender status, and expressly granted an 18-month reduction from the bottom of the guidelines range for exceptional efforts at rehabilitation. The court sentenced Whitlow to 170 months’ imprisonment. The Seventh Circuit again vacated and remanded, noting that the government conceded that the district court may have misapprehended its sentencing discretion to adjust the sentence for pretrial custody. View "United States v. Whitlow" on Justia Law

About 150 property owners in a village near the Mississippi River claim that defendants’ refinery leaked benzene and other contaminants into the groundwater. They sued, alleging nuisance and related torts. The district court certified the class. The Seventh Circuit reversed. The court first rejected an argument that most class members had suffered no injury. How many class members have a valid claim is determined after certification. Predominance of issues common to all class members, like other certification requirements, goes to the efficiency of a class action as an alternative to individual suits. In this case, the alleged contamination occurred over a 90‐year period and involved different levels of contamination, caused by different polluters. Not every class member has experienced the same diminution in property value even if everyone had the same level of contamination. Plaintiff’s hydrogeologist, intended to measure contamination by the benzene levels in the groundwater beneath the plaintiffs’ properties, even though their water does not come from groundwater, but from an uncontaminated aquifer. It cannot be assumed that a decline in the value of property in the village is the result of proximity to a refinery. The district judge did not explore any of these issues, but treated predominance as a pleading requirement. View "Shell Oil Co. v. Parko" on Justia Law

Nash pleaded no contest to sexual assault of a child. He and his attorney signed and filed a form, acknowledging the 20-day period for filing a notice of intent to pursue post-conviction relief, which allows a defendant to challenge trial counsel’s performance with new appointed counsel before pursing direct appeal. After several months, Nash sought relief pro se. The circuit court denied the motion, informing Nash of the procedure for reinstating post-conviction and appeal rights. Instead of following that procedure, Nash appealed, arguing ineffective assistance. The court of appeals declined to appoint counsel and affirmed denial. The Wisconsin Supreme Court denied review. Nash sought habeas relief under 28 U.S.C. 2254, claiming ineffective assistance. The district court denied Nash’s petition, concluding that he had procedurally defaulted his claim by failing to present it in state court. Nash did not appeal, but nine months later unsuccessfully moved for relief from judgment under FRCP 60(b). The Seventh Circuit denied a certificate of appealability. Later, the Supreme Court held that ineffective assistance of state post-conviction counsel can excuse procedural default if counsel caused the default by abandoning the petitioner without notice. The district court denied a second motion, explaining that Nash caused his own procedural default by failing to adequately present his claims in his pro se attack. Before Nash appealed, the Supreme Court held that ineffective assistance of post-conviction counsel can also excuse procedural default if state law requires raising a claim of ineffective assistance of trial counsel in collateral proceedings rather than by direct appeal. The Seventh Circuit affirmed, noting that the state court advised Nash how he could correct counsel’s procedural error, but he did not do so.View "Nash v. Hepp" on Justia Law