Joshua Howard v. Lynn Koeller, and JOHN O’DONOVAN

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,
Plaintiff-Appellant,
v.
LYNN KOELLER,
and
JOHN O’DONOVAN,
Defendants-Appellees.
Appeal from the United States
District Court for the Eastern District
of Wisconsin.
No. 14-CV-667
Nancy Joseph,
Magistrate Judge.
O R D E R
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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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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.

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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

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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. A DMIN .
C ODE § 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

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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

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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.

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