695 Fed.Appx. 151 (7th Cir. 2017), 15-3325, Wheeler v. Talbot

Docket Nº:15-3325
Citation:695 Fed.Appx. 151
Party Name:ANTHONY WHEELER, Plaintiff-Appellant, v. PAUL A. TALBOT, KEITH ANGLIN, and YOLANDE JOHNSON, Defendants-Appellees
Judge Panel:Before WILLIAM J. BAUER, Circuit Judge, FRANK H. EASTERBROOK, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge.
Case Date:June 05, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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695 Fed.Appx. 151 (7th Cir. 2017)

ANTHONY WHEELER, Plaintiff-Appellant,



No. 15-3325

United States Court of Appeals, Seventh Circuit

June 5, 2017

Submitted March 8, 2017.[*]

Editorial Note:

NONPRECEDENTIAL DISPOSITION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Central District of Illinois. No. 12-2281. David G. Bernthal, Magistrate Judge.

Wheeler v. Talbot, (C.D. Ill., Jan. 25, 2013)

Before WILLIAM J. BAUER, Circuit Judge, FRANK H. EASTERBROOK, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge.

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In this action under 42 U.S.C. § 1983, Anthony Wheeler contends that two defendants violated the First Amendment by threatening to punish him if he continued to file grievances and mail letters about " some of the day-to-day activity" at the prison, and that a third violated the Eighth Amendment by refusing to treat his keloids. The claims are unrelated and were improperly joined; the district court should have severed them or dismissed one claim. See Fed.R.Civ.P. 18; George v. Smith, 507 F.3d 605 (7th Cir. 2007). Instead of doing that, the court (acting through a magistrate judge on the parties' consent, see 28 U.S.C. § 636(c)) granted summary judgment to both sets of defendants. Resolving both claims in a single suit did not prejudice anyone other than the United States Treasury, which has been deprived of an extra filing fee, and is not a jurisdictional problem, so we turn to the merits.

We start with the claim under the First Amendment. After arriving at Danville Correctional Center, Wheeler began filing intra-prison grievances and writing letters to state and federal officials. He related that he complained about the food, which he says led to swelling, pain, dizziness, and vomiting. Construed in the light favorable to him, evidence shows that Keith Anglin (the prison's warden) and Yolande Johnson (deputy director for the Department of Corrections' central district) summoned Wheeler to a meeting and threatened to punish him or confiscate his typewriter if he continued filing grievances and writing to public officials. After this meeting, Wheeler filed a grievance against both Anglin and Johnson. Wheeler tells us that he has continued to file grievances and send letters and that, so far, Anglin and Johnson have not carried out their threats. Wheeler contends that, despite the lack of action, the threats cause him emotional

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distress, for which he seeks damages.

In the world outside of prison, threats to penalize speech are usually understood as attempts by the government to exercise prior restraint, a classic violation of the First Amendment. See, e.g., Surita v. Hyde, 665 F.3d 860, 878 (7th Cir. 2011); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). But prisoners' rights to speak are subject to restrictions to promote legitimate public interests. See, e.g., Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. 2009) (en banc). The propriety of some limitations on prisoners' speech also means that damages are unavailable unless caselaw clearly establishes that particular limitations have become excessive. See, e.g., White v. Pauly, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (describing qualified-immunity doctrine). Wheeler's narration implies that Anglin and Johnson were more concerned by the volume of Wheeler's grievances than by their contents. Wardens and other administrators may try to conserve their time by cutting down the flux of repetitious complaints in order to focus on new and potentially serious ones.

Wheeler does not try to show how it has become clearly established that prison officials are forbidden to try to prevent prisoners from bombarding the grievance system and public officials with repetitious protests. Indeed, even though Anglin and Johnson invoke the doctrine of qualified immunity, Wheeler did not mention it in his opening brief and did not file a reply brief. But we need not pursue that subject, because he has not established an entitlement to damages. It is not simply that the threats failed to deter him and were never carried out. It is that he seeks damages for mental distress, which runs smack into 42 U.S.C. § 1997e(e). This statute provides that " [n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury" . Wheeler does not say that Anglin's or Johnson's threats caused him physical injury, so he cannot recover compensatory damages for emotional injury.

We held in Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003), that despite the opening clause of § 1997e(e)--" [n]o Federal civil action may be brought" --the statute does not block the filing of actions and permits the physical injury to be shown while the suit is under way. Moreover, because the statute does not make physical injury a precondition to the award of punitive damages, it cannot...

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