Miracle Hurston v. Indiana Gaming Company Llc, d/b/a HOLLYWOOD CASINO LAWRENCEBURG

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2023 *
Decided November 22, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-1099
MIRACLE HURSTON,
Plaintiff-Appellant,
v.
INDIANA GAMING COMPANY LLC,
d/b/a HOLLYWOOD CASINO
LAWRENCEBURG,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:19-cv-04890-TWP-DLP
Tanya Walton Pratt,
Chief Judge.
O R D E R
Miracle Hurston sued Indiana Gaming Company LLC (“Indiana Gaming”), the
operator of the Hollywood Casino Lawrenceburg, alleging race discrimination, breach
of contract, and intentional infliction of emotional distress. The district court ruled
* We have agreed to decide the 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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against Hurston at summary judgment. Because Hurston failed to create a genuine
dispute of material fact on any claim, we affirm.
Background
Hurston, a Black man, was a frequent patron of Hollywood Casino (the “casino”)
in Lawrenceburg, Indiana, which is near the Cincinnati, Ohio, metropolitan area. He
had a history of involvement in disturbances that eventually led the casino to take
disciplinary action: a fight with another Black patron to which police were called (no
discipline for anyone); a verbal altercation with a white patron (same); a verbal
altercation with a waitress (Hurston ejected from casino, waitress suspended for three
days); a verbal altercation initiated by a white patron (both parties ejected from casino,
Hurston banned for thirty days); and an incident when Hurston cursed at an employee
because of a malfunctioning ATM (one-week ban). Attempting to mend the
relationship, Hurston spoke with the casino’s general manager, who apologized for
how Hurston was treated and promised to handle any future issues directly—a
conversation Hurston believed to create an oral contract. Nevertheless, tensions reached
a breaking point after Hurston admittedly used physical force against a white guest in
response to racially disparaging statements. In response to this last disruption, the
casino refused to book Hurston a hotel room while it investigated the incident, and it
eventually banned him and the other guest for a year.
Hurston sued Indiana Gaming for the casino’s actions. His fifth amended
complaint alleged unlawful discrimination under 42 U.S.C. § 1981 and state-law claims
of intentional infliction of emotional distress and breach of the purported oral contract.
While the lawsuit was pending, but after the one-year ban had expired, Hurston
returned to the casino in Lawrenceburg, which then banned him for life.
Litigation was contentious. During discovery, a dispute arose over whether
Indiana Gaming and its attorneys had misrepresented their ability to produce incident
reports from the casino’s security system. The district court ordered defense counsel to
show cause why she should not be sanctioned for knowingly making a false statement,
and it held several evidentiary hearings on the matter. The court ultimately concluded
that counsel had reasonably relied on misstatements from her client.
The parties then filed cross motions for summary judgment. Hurston also filed
motions for default judgment and to recover excess costs as sanctions for the discovery
violation. He also moved for leave to amend his complaint a sixth time to add claims
about the lifetime ban. Hurston had tried to bring these claims in a separate lawsuit

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nine months after the relevant incident, but the judge assigned to that case dismissed it
for improper claim splitting (Hurston did not appeal that decision).
The district court denied Hurston’s motions for default judgment and for leave to
amend. As to the former, it explained that default judgment was too harsh a sanction
for the misconduct. And in denying leave to amend, the court cited the late stage of the
proceedings and the fact that, twice after the casino banned him for life, Hurston had
amended his complaint without adding anything about the lifetime ban.
The court then entered summary judgment for Indiana Gaming, explaining that,
for purposes of the § 1981 claim, no reasonable jury could conclude that the casino
treated Hurston less favorably than any white patron. The court further determined that
Indiana Gaming had offered Hurston’s disruptive behavior as a legitimate,
nondiscriminatory reason for banning him from the casino, and Hurston’s evidence did
not call the sincerity of the reason into question. As to Hurston’s state-law claims, the
court held that no contract existed as a matter of Indiana law and that no reasonable
factfinder could determine Indiana Gaming’s conduct to be extreme and outrageous.
After entering judgment, the court granted Hurston’s motion for excess costs,
concluding that Indiana Gaming and its attorneys had unreasonably multiplied the
proceedings. They had made misstatements of fact and mischaracterized the show-
cause order, turning a discovery inquiry into a four-day evidentiary proceeding.
Analysis
On appeal, Hurston first challenges the merits of the judgment for Indiana
Gaming. We review the decision de novo and draw all reasonable inferences in favor of
Hurston. Schlaf v. Safeguard Prop., LLC, 899 F.3d 459, 465 (7th Cir. 2018). We begin with
the claim of racial discrimination under 42 U.S.C. § 1981.
Hurston’s claim that the casino denied him the right to contract when it refused
to book him a room and banned him from the casino for a year cannot withstand
summary judgment because he lacks sufficient evidence of racially discriminatory
intent. See Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 756–59 (7th Cir. 2006). Because he
proceeded under the burden-shifting method, Hurston needed evidence from which a
reasonable jury could find, among other things, that the casino treated him less

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favorably than its white patrons. 1 See Dunlevy v. Lanfelder, 52 F.4th 349, 353 (7th Cir.
2022); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 272–73 (7th Cir. 2004). The best
evidence Hurston produces of disparate treatment is that the casino punished him for
fighting with a white patron, but not a Black patron. But each time, the other combatant
received the same treatment he did. Hurston disputes this by asserting that the white
patron voluntarily stopped going to the casino. But what matters is that the casino
treated the man outside the protected class the same as Hurston after this fight.
Further, Indiana Gaming provided a legitimate, nondiscriminatory reason for the
casino’s refusal to contract with Hurston. See Dunlevy, 52 F.4th at 353. The casino has a
written policy to eject anyone who uses offensive or threatening language or commits
an act of violence, regardless of whether the person is also a victim. Citing the six
different altercations involving Hurston, Indiana Gaming asserts that the one-year ban
responded to increasingly aggressive and disruptive behavior. And Hurston adduced
no evidence that the stated reason is pretextual; he admits to each act that led to
discipline. See id. Indiana Gaming’s justifications are not “unworthy of credence” even
if, as Hurston has attested, someone else instigated the scuffles he participated in.
de Lima Silva v. Dep’t of Corr., 917 F.3d 546, 561 (7th Cir. 2019).
That brings us to the state-law claims. The parties apparently agree that Indiana
law applies to the claims, and in any event, when no party raises a choice-of-law issue,
the federal court may simply apply the substantive law of the forum state. McCoy v.
Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014).
The district court ruled for Indiana Gaming on the claim for intentional infliction
of emotional distress because, based on the evidence in the record, no reasonable
factfinder could conclude that the casino’s conduct was extreme and outrageous or that
it caused Hurston’s distress. See Wilson-Trattner v. Campbell, 863 F.3d 589, 596–97 (7th
Cir. 2017) (applying Indiana law). We agree that it was not beyond all bounds of
decency for the casino to ban someone who was involved in six altercations that
violated its policies, regardless of who was at fault. Compare McCollough v. Noblesville
Schs., 63 N.E.3d 334, 342 (Ind. Ct. App. 2016) (allegedly shoddy investigation into
employee misconduct which led to discipline not extreme and outrageous) with State v.
Alvarez ex rel. Alvarez, 150 N.E.3d 206, 219 (Ind. Ct. App. 2020) (state’s knowing failure
1 We have not articulated the elements of a prima facie case of discrimination in § 1981 claims relating to
a retail or service contract (as opposed to an employment contract). But neither party asks us to adopt the
Sixth Circuit’s extra elements, see Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001), nor
disputes the standard articulated by the district court.

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to warn residents they lived and went to school on a lead-contaminated superfund site
would be extreme and outrageous conduct). Hurston also lacked evidence that the ban
from Hollywood Casino caused his emotional distress—which he describes as
withdrawal symptoms resulting from his gambling addiction. He submitted no
evidence that he could not have gambled elsewhere.
Hurston also challenges the decisions about Indiana Gaming’s discovery
violation. He first argues that default judgment was the appropriate sanction, but the
district court did not abuse its discretion when it awarded him only excess costs.
See Equal Emp. Opportunity Comm’n v. Wal-Mart Stores E., L.P., 46 F.4th 587, 599 (7th Cir.
2022). Default judgment is a drastic sanction that is appropriate under FED. R. C IV. P.
37(b)(2)(A) or the court’s inherent authority only if a party’s discovery misconduct
resulted from willfulness, bad faith, or fault; mere mistake or inadvertence is
insufficient. Id.; e360 Insight, Inc. v. Spamhous Project, 658 F.3d 637, 642–43 (7th Cir. 2011).
Although the district court concluded that the actions of one casino employee
“demonstrate[d] a willfulness to mislead the [c]ourt,” we cannot say that its decision to
impose only a monetary penalty was beyond all reason. See Wal-Mart Stores E., L.P.,
46 F.4th at 599. The court’s ruling compensated Hurston for the multiplied proceedings,
and the violation did not prejudice him—it only partially impeded one of his three
claims and did not affect the outcome of the case. Restraint was also warranted because
the court was exercising, in part, its inherent power to levy sanctions. Greyer v. Ill. Dep’t
of Corr., 933 F.3d 871, 877 (7th Cir. 2019).
Hurston also argues that the district court erred by entering final judgment
before issuing sanctions. But contrary to Hurston’s assertions, sanctions are a collateral
matter, which courts generally can resolve after a judgment is rendered. Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 395–96 (1990). And here, the distinction hardly matters,
because the court issued the sanctions order on the heels of the judgment, before
Hurston even filed his notice of appeal. To the extent that Hurston contends that the
court’s findings on sanctions would have made a difference in how it resolved the
summary judgment motions, he is wrong. The court learned nothing new between the
time it ruled on the summary judgment motions and when it issued the sanctions order.
The evidentiary hearings occurred months earlier, and the court had all relevant
information about the discovery violation when it considered the cross-motions for
summary judgment. Waiting to issue a decision on sanctions until it could assess the
effect of the evidentiary dispute on the summary judgment motions seems a prudent
act of case management.

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Finally, the district court did not abuse its discretion by denying Hurston leave to
amend his complaint a sixth time. See Liebhart v. SPX Corp., 917 F.3d 952, 964 (7th Cir.
2019). Hurston could have raised the lifetime ban in two of his prior motions for leave
to amend that the court granted. Allowing Hurston to amend his complaint after the
parties had moved for summary judgment would have unduly prejudiced Indiana
Gaming by requiring it to re-open discovery after nearly three years of litigation.
See id. at 965–66; Johnson v. Cypress Hill, 641 F.3d 867, 872–73 (7th Cir. 2011). The district
court was not required to accommodate this undue delay. And if Hurston wanted to
proceed with claims about the lifetime ban in his separate case, he had the option of
appealing the dismissal of that action.
Hurston has not developed any other argument—including about his claim that
Indiana Gaming breached an oral contract—enough to warrant discussion. See Shipley v.
Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1062–63 (7th Cir. 2020).
AFFIRMED

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