Pearson, Alex v. Cooper, Keith ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1068 & 05-1241
ALEX PEARSON,
Plaintiff-Appellant,
Cross-Appellee,
v.
GEORGE C. WELBORN, Warden and
KRISTEN KWASNIEWSKI,
Defendants-Appellees,
Cross-Appellants.
____________
Appeals from the United States District
Court for the Southern District of Illinois.
No. 3:00 cv 827—Gerald B. Cohn, Magistrate Judge.
____________
ARGUED APRIL 14, 2006—DECIDED DECEMBER 8, 2006
____________
Before BAUER, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. Convicted murderer Alex
Pearson was just two days away from being transferred
out of Tamms Correctional Center, a maximum-security
prison in southern Illinois, when he received a disciplinary
ticket for sexual misconduct. That ticket set his transfer
from Tamms to a less restrictive prison back by more
than a year. Alleging that the ticket was trumped-up to
block his transfer from Tamms, Pearson sued Charles
Hinsley, who was then a warden at Tamms, Kristen
2 Nos. 05-1068 & 05-1241
Kwasniewski1, a social worker who wrote the ticket,
George Welborn, also a warden at Tamms, Eric Hallan, a
security supervisor at Tamms, and Keith Cooper, Deputy
Director of the Illinois Department of Corrections
(“IDOC”). The jury returned a verdict against Welborn
and Kwasniewski, finding that the ticket was issued to
retaliate against Pearson for complaining about condi-
tions at Tamms and for refusing to act as a confidential
informant against the Gangster Disciples once he left
Tamms. After trial, Welborn moved unsuccessfully to set
aside the verdict, see Fed. R. Civ. P. 50(b), and for a new
trial, see Fed. R. Civ. P. 59. Pearson also moved unsuccess-
fully for a declaratory judgment and attorney’s fees and
costs. Pearson now appeals from the court’s refusal to
award attorney’s fees and declaratory relief, and Welborn
and Kwasniewski cross-appeal.
I.
In 1998, seven years into a forty-five year sentence for
first-degree murder, Pearson was transferred to Tamms
as a “high security” inmate (while in prison Pearson had
received a conviction for assault). In contrast to inmates
in a typical “general population” prison, inmates in
Tamms have no contact with other inmates. Instead, they
are housed in single cells, which they leave for only an
hour each day for “individualized recreation” in a 30-foot
long, 15-foot wide partially-covered cement enclosure.
Inmates at Tamms do not hold prison jobs, do not inter-
act with other prisoners, and are allowed contact with
visitors, if at all, only through a glass partition while in
1
At the time this suit was filed, Kristen Kwasniewski’s name
was Kristen Terry. She has since married and is known as
Kristen Kwasniewski, and we refer to her accordingly.
Nos. 05-1068 & 05-1241 3
restraints. Prisoners at Tamms fall into two categories:
administrative detention (transferred to Tamms because
of administrative concerns, such as gang affiliation) and
disciplinary segregation (transferred after continuing to
cause problems at other lower-security institutions de-
spite being placed in disciplinary segregation). Both
classifications are subject to a “grade system.” Beginning
at a “C” grade, inmates progress to an “A” grade by
avoiding disciplinary reports. An inmate who maintains an
A grade for a year is eligible for transfer. In addition to
the grade system, the administrative detention prisoners
have a three-stage “level system” whereby they gain
privileges by progressing from Level 1 (fewest privileges)
to Level 3 (most privileges).
In 1999, IDOC also instituted a system-wide “renuncia-
tion” program, whereby prisoners could officially re-
nounce their gang affiliations. Although prisoners at all
of IDOC’s prisons could renounce gang affiliation, prison-
ers at Tamms were required to renounce gang affiliation to
be considered for transfer. This consisted of a videotaped
interview and a determination by prison staff that the
prisoner’s renunciation was sincere. Once renunciation
was complete, prisoners at Level 3 and Grade A were
considered eligible for the pre-transfer unit at Tamms,
known as “J-pod.”
The pre-transfer program on J-pod was just getting
started when Pearson successfully renounced his affilia-
tion with the Gangster Disciples. He and four other
inmates were the first in J-pod. The unit was intended to
prepare prisoners for transfer to a general population
prison in approximately four weeks. To that end, inmates
were celled in pairs, were allowed to eat meals with their
small group, and participated in group therapy. They
were not, however, allowed outdoors at all, so any exer-
cise had to be done in the central indoor area of J-pod
where they ate their meals.
4 Nos. 05-1068 & 05-1241
At trial, Pearson testified that he and other inmates
complained about aspects of the J-pod program. Pearson
denounced the lack of yard time (as a named plaintiff in
a previous suit over a lack of yard time, Pearson believed
he was legally guaranteed at least one hour a week
outdoors). He also complained about the fact that inmates
were shackled to one another around a small table for
group therapy. The two other inmates who testified at
trial, Edward Lee Swift and Larry Rodgers, also said
that they complained about the conditions in J-pod.
Pearson testified at trial that after several weeks in J-
Pod, security supervisor Captain Eric Hallan approached
him and told him that he would have to work as a confi-
dential informant once he reentered a general population
prison. Hallan explained that this requirement was part of
an ongoing attempt by prison administrators to “cripple”
Pearson’s former gang, the Gangster Disciples. Pearson
was surprised by this request, because he believed that he
had completed the renunciation process and did not have
to do anything further beyond completing the 30-day
program in J-pod. Pearson thus did not respond immedi-
ately to Hallan’s request. Several days later Kwasniewski
came to his cell and he discussed it with her. At that time
Pearson told her that he did not feel comfortable agreeing
to act as an informant because he had “disassociated”
himself with the Gangster Disciples and did not want to
put his life in danger. Kwasniewski responded that
informing was “a part of the requirements” and that if
Pearson wanted to leave Tamms he would “make the
right decision.” Next, Cooper approached Pearson in his
cell. With Warden Welborn, Kwasniewski, Hallan, and
Hinsley standing by, Cooper told Pearson that if he refused
to assist with the internal investigation against the
Gangster Disciples, he would not leave Tamms until he
either “die[d] or parole[d].”
Nos. 05-1068 & 05-1241 5
In the ensuing week, Warden Welborn, Hinsley, and
Kwasniewski each approached Pearson again to encourage
him to agree to be an informant. Welborn sought to assure
Pearson that the prison system would protect him. He
also reiterated to Pearson that he should take advantage
of the chance to get out of Tamms by cooperating. Pearson
testified that before Welborn left he asked Pearson about
the complaints he had been making about J-pod and also
asked about the earlier lawsuit of which Pearson had
been a part. Pearson told Welborn that he still had com-
plaints about J-pod and affirmed that he had previously
been a plaintiff in a lawsuit against the WDOC. Welborn
then left, telling Pearson that if he ever sued him he would
never leave Tamms.
Pearson also had a visit from Hinsley, who warned him
that the time for his transfer was approaching and that
his complaints were jeopardizing his chances of leaving
Tamms. Then, just over a week before Pearson would
have been transferred, Kwasniewski took him aside and
assured him that he would be safe acting as an informant.
She also encouraged him to make up his mind as to
whether he would cooperate.
Shortly thereafter, Pearson received the disciplinary
ticket that prevented his transfer—specifically, for mastur-
bating. According to Pearson, he was in his cell urinating
when Kwasniewski approached with a mental health
newsletter. Kwasniewski saw that Pearson was urinating
and stepped to the side of the cell while he finished. He
then stepped over to the door, and she handed the letter
through the slot in the door. Pearson requested some extra
newsletters and Kwasniewski said she would bring
some, but she never did. Instead, Mr. Eades, the “mental
health professional,” came back later with the extra
newsletters. Pearson’s cell mate, Larry Rodgers, testified
to essentially the same sequence of events.
6 Nos. 05-1068 & 05-1241
Kwasniewski, however, told a different story. She
testified that when she arrived at Pearson’s cell he was
sitting on his bench masturbating. She said “oh, excuse
me,” and stepped aside. Shortly thereafter, Pearson came
to the door, but when she went to hand him the newsletter,
he “kept touching himself.” Kwasniewski gave him
the newsletters and said she would return with the extras
he requested. She testified that when she did return
several minutes later, Pearson was back on his bench—
still masturbating—so she left. Later that day, she spoke
with her supervisor and wrote a disciplinary ticket for
sexual misconduct.
Pearson had a disciplinary hearing in the common area
of J-pod. After he explained his version of events, he was
found guilty and escorted away from J-pod and back to
his old cell, his opportunity to transfer extinguished. As
a sanction, he was demoted to a C grade and spent three
months in disciplinary segregation.
Pearson appealed the ticket through the internal griev-
ance process. The grievance officer recommended expung-
ing the report and reversing all sanctions. Warden
Welborn initially concurred with the grievance officer’s
recommendation, but later crossed out his decision and
ordered that the ticket remain intact. At trial, Welborn
testified that he could not recall why he changed his mind.
The final reviewing agency affirmed Welborn’s decision to
uphold the ticket. In addition to appealing the ticket
within the system, Pearson wrote Welborn to complain
that he had received a “bogus disciplinary report” because
he had not agreed to act as a confidential informant. He
also complained about the ticket to Cooper while Hinsley
and Kwasniewski were standing nearby, and Cooper
responded that he had warned Pearson that he should
cooperate. The disciplinary ticket had the effect of setting
Pearson’s release from Tamms back approximately a year-
and-a-half. Pearson had to work back up to an A grade,
Nos. 05-1068 & 05-1241 7
earn his way out of disciplinary segregation, and work
back from a Level 1 to a Level 3. The disciplinary ticket for
masturbating was the only ticket Pearson ever received
while at Tamms.
In October 2000, while still at Tamms, Pearson sued
Kristen Kwasniewski, Donald Snyder Jr., Keith Cooper,
Charles Hinsley, George Welborn, and Eric Hallan. The
defendants removed the suit to federal court. In his three-
count amended complaint, Pearson alleged that the
defendants violated the First Amendment by retaliat-
ing against him for his complaints and his refusal to act
as a confidential informant (Count One), violated his
right to Due Process by knowingly issuing a false dis-
ciplinary report (Count Two), and unlawfully imposed
discipline without sufficient evidence (Count Three). He
requested compensatory damages, a declaratory judgment
that the punishment was illegal, and a transfer from
Tamms. Shortly after Pearson filed his complaint, he was
transferred.
The court granted the defendants’ motions to dismiss
Counts Two and Three of the complaint, but allowed
Pearson to proceed to trial on his retaliation claim (Count
One). At the close of all the evidence, the court denied the
defendants’ motion for judgment as a matter of law. It did,
however limit Pearson’s recovery to nominal damages,
reasoning that he had not demonstrated that he suffered
“physical injury” as required by the Prison Litigation
Reform Act (“PLRA”). See 42 U.S.C. § 1997e(e) (no recovery
for mental and emotional distress without prior showing of
physical injury). Although the court expressed “reserva-
tions” about whether Pearson had an underlying First
Amendment right to refuse to act as a confidential infor-
mant, it nonetheless submitted the case to the jury. The
jury returned a verdict against Welborn and Kwasniewski,
and awarded Pearson nominal damages of $1.
8 Nos. 05-1068 & 05-1241
II.
On appeal, Pearson argues that the district court erred
by denying his requests for a declaratory judgment and
attorney’s fees. Alternatively, he argues that he should
have been allowed to present his claim for money dam-
ages to the jury. Welborn and Kwasniewski each cross-
appeal, arguing that the judgment against them should
be set aside. If Welborn and Kwasniewski are correct
that they are entitled to judgment as a matter of law, it
is unnecessary to reach Pearson’s arguments. We thus
begin with their cross-appeals. Both Kwasniewski and
Welborn break Pearson’s First Amendment retaliation
claim into two components: first, his complaints regard-
ing the conditions on J-pod, and second, his refusal to act
as a confidential informant. Kwasniewski argues that
there is insufficient evidence that Pearson’s complaints
about J-pod motivated any retaliation, and that the refusal
to act as an informant cannot support his claim because
Pearson has no underlying First Amendment right to
refuse such a request. Welborn, for his part, maintains
that Pearson has no underlying First Amendment right
in either his complaints or his refusal to act as an infor-
mant. Alternatively, he argues that he is entitled to
qualified immunity because there was no clearly estab-
lished law prohibiting retaliating on either ground. We
consider these arguments in turn.
We review the district court’s denial of a motion for
judgment as a matter of law de novo, viewing the evidence
in the light most favorable to Pearson, the non-movant.
E.g., Waubanascum v. Shawano County, 416 F.3d 658, 664
(7th Cir. 2005). Because the jury returned a verdict in
Pearson’s favor, we are limited to deciding whether the
evidence presented at trial, when viewed in the light most
favorable to Pearson and combined with all reasonable
inferences drawn therefrom, is sufficient to support the
verdict. See Gower v. Verclear, 377 F.3d 661, 666 (7th Cir.
Nos. 05-1068 & 05-1241 9
2004) (citations omitted). We will not reweigh the evidence,
or substitute our credibility assessments for that of the
jury. Indeed, we are limited to determining whether any
“reasonable juror” could have returned a verdict for
Pearson. See Naeem v. McKesson Drug Co., 444 F.3d 593,
605 (7th Cir. 2006) (internal quotations omitted). Despite
this liberal standard, “a mere scintilla of supporting
evidence will not suffice.” Davis v. Wis. Dep’t of Corr., 445
F.3d 971, 975 (7th Cir. 2006) (citations and internal
quotations omitted).
To succeed on his retaliation claim, it was necessary
for Pearson to demonstrate that prison officials retaliated
against him for exercising a constitutionally protected
right. Morfin v. City of East Chicago, 349 F.3d 989, 1005
(7th Cir. 2003). Kwasniewski maintains that all of the
evidence of retaliation presented by Pearson related to his
refusal to act as a confidential informant, behavior she
argues is unprotected by the First Amendment. She
points out that the trial testimony established that
Pearson’s complaints about J-pod were no different than
the other inmates’; thus it is unlikely that any retalia-
tion would be on that basis. Specifically, Kwasniewski
highlights Edward Swift’s testimony that all of the in-
mates in J-pod complained about conditions such as the
lack of yard time. And Pearson himself testified that his
complaints were about “the same issues that everybody
else had.” In fact, when asked how his complaints differed
from those made by other J-pod inmates, Pearson said,
“I didn’t complain differently than anybody else.” Thus,
Kwasniewski argues, Pearson’s retaliation claim against
her must hinge on his refusal to act as a confidential
informant, because that is the only issue that differenti-
ates him from the other J-pod inmates who experienced no
retaliation. Pearson responds that he complained about
being asked to act as an informant and the conditions in
J-pod, and that all of the complaints taken together
triggered the retaliatory conduct report.
10 Nos. 05-1068 & 05-1241
There is, however, a more fundamental problem with
Kwasniewski’s argument. Although Welborn renewed his
motion for judgment as a matter of law after the verdict,
Kwasniewski did not.2 Nor did she file a motion under
Rule 59 for a new trial. Pearson’s jurisdictional state-
ment represents that, “Defendant Kwasniewski filed no
post trial motions,” and Kwasniewski’s jurisdictional
statement states that, “Defendant Welborn filed a timely
Post-Trial Motion pursuant [to] Rules 50(b) and 59 of the
Federal Rules of Civil Procedure.” (emphasis added). By
failing to file any postverdict motions, Kwasniewski
forfeited her opportunity to have us review the sufficiency
of the evidence and direct the district court to enter
judgment in her favor. See Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 126 S. Ct. 980, 985 (2006) (recounting
situations where “a party’s failure to file a Rule 50(b)
motion deprives the appellate court of the power to order
the entry of judgment in favor of that party”); Fuesting v.
Zimmer, Inc., 448 F.3d 936, 938 (7th Cir. 2006) (“[T]he
Supreme Court has now indicated that a court of appeals
may not award judgment due to insufficiency of the
evidence where no Rule 50(b) motion was filed after the
verdict.”). In Unitherm the Supreme Court made clear
that a party’s failure to comply with Rule 50(b) by re-
newing a motion for judgment as a matter of law after
the verdict forecloses challenges to the sufficiency of the
evidence on appeal. Unitherm, 126 S. Ct. at 987(“[R]espondent’s failure to comply with Rule 50(b) fore-
closes its challenge to the sufficiency of the evidence[.]”).
Thus, we cannot reach Kwasniewski’s contention that
insufficient evidence supports the jury’s conclusion that
she retaliated against Pearson on the basis of his com-
plaints about the conditions of J-pod. Id.2
Welborn and Kwasniewski have been represented by separate
counsel throughout this litigation.
Nos. 05-1068 & 05-1241 11
Alternatively, Kwasniewski argues that the district
court erred by denying the motion for a new trial because
the verdicts were inconsistent. Specifically, she claims
that the jury’s verdict imposing liability on her and
Welborn, but not Cooper, Hinsley, and Hallan, cannot be
reconciled. As mentioned above, however, Kwasniewski
did not move for a new trial, only Welborn did. This failure
likely dooms Kwasniewski’s claim. Cf. Deloughery v. City
of Chicago, 422 F.3d 611, 615-16 (7th Cir. 2005) (recount-
ing defendant’s motion in the district court for a new
trial premised on its claim of an inconsistent verdict).
Moreover, it does not appear from the record that
Kwasniewski made a contemporaneous objection to the
alleged inconsistency of the verdict at the time it was
rendered. In many circuits, such a failure amounts to
waiver of the argument. See, e.g., Kosmynka v. Polaris
Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“It is well
established that a party waives its objection to any incon-
sistency in a jury verdict if it fails to object to the verdict
prior to the excusing of the jury.”) (collecting cases).
Whether or not that is the case in this circuit, see Carter
v. Chicago Police Officers, 165 F.3d 1071, 1079-80 (7th
Cir. 1998) (acknowledging rule but declining to decide
whether failure to contemporaneously object “constitutes
a definitive waiver”), Kwasniewski’s argument is merit-
less.
“A party claiming that inconsistent verdicts have been
returned is not entitled to a new trial ‘unless no rational
jury could have brought back’ the verdicts that were
returned.” Deloughery, 422 F.3d at 617 (citation omitted).
Here, a jury could have rationally concluded that
Kwasniewski’s decision to write the disciplinary ticket
(and Welborn’s decision to uphold it) amounted to retalia-
tion. The jury may have disbelieved Pearson’s account of
his exchanges with Cooper, Hinsley, and Hallan but
believed the conversations with Kwasniewski occurred.
Alternatively, it could have believed all of Pearson’s
12 Nos. 05-1068 & 05-1241
testimony, but concluded that the comments by Cooper,
Hinsley, and Hallan were insufficient to demonstrate
that they were personally involved in the retaliatory act
of issuing the ticket. Either way, Kwasniewski has not
demonstrated that the jury’s verdict is irreconcilable
with the evidence presented at trial. See id. at 617 (“If
possible, this court must reconcile apparently inconsistent
verdicts, rather than overturn them.”); Freeman v. Chicago
Park Dist., 189 F.3d 613, 615 (7th Cir. 1999) (“[J]ury
verdicts must be interpreted so as to avoid inconsistency
whenever possible.”).
We thus turn to Welborn’s arguments, which were
properly preserved by his filing of postverdict Rule 50 and
59 motions. Welborn argues that neither the refusal to
act as an informant nor Pearson’s complaints about the
conditions in J-pod are protected under the First Amend-
ment, and thus he is entitled to judgment as a matter of
law. The jury was instructed that Pearson bore the bur-
den of proving that “retaliation for plaintiff ’s complaints
regarding conditions at Tamms Correctional Center and
refusal to act as a confidential informant was a motivat-
ing factor in the defendant’s decision to act in the man-
ner claimed.” (emphasis added). Thus, the jury’s verdict
against Welborn represents its belief that both Pearson’s
complaints about J-pod and his refusal to act as an
informant motivated Welborn to retaliate. Regardless
whether Pearson’s refusal to act as an informant is
constitutionally protected, his complaints about the
conditions in J-pod are, and there is evidence in the re-
cord to support the jury’s conclusion that those com-
plaints motivated Welborn to retaliate.3
3
In particular, Pearson recounted that Welborn approached
him and said, “what about them [sic] complaints you have with
the yard and the chains, shackled up, things of that nature?” It
(continued...)
Nos. 05-1068 & 05-1241 13
Welborn’s argument is essentially that a prisoner has
no generalized right to complain, and that Pearson’s
complaints about J-pod amount to nothing more than
personal complaints undeserving of First Amendment
protection. Although Welborn acknowledges as a general
proposition that a prisoner’s grievances about prison
conditions are protected, e.g., Walker v. Thompson, 288
F.3d 1005, 1007, 1009 (7th Cir. 2002), he claims the right
does not extend to oral complaints about prison conditions.
Welborn first cites Brookins v. Kolb, 990 F.2d 308 (7th
Cir. 1993) for the proposition that a prisoner may not
make a retaliation claim without first demonstrating that
his speech was sufficiently “important” to warrant First
Amendment protection. In Brookins an inmate on a pris-
oners’ paralegal committee wrote a number of high-
ranking prison officials on behalf of an inmate facing
several disciplinary reports. The letter requested poly-
graph tests for the prisoner and other parties involved
in the disciplinary reports and represented that the
paralegal committee would pay for the tests. Brookins (the
plaintiff) sent the letter in violation of the committee rules,
which required advance approval of both correspondence
and disbursement of funds. Brookins sued after he was
transferred as a result of the letter. We upheld the dis-
trict court’s grant of summary judgment for the defen-
dants, reasoning that the speech in Brookins’ letter did
not warrant constitutional protection: it did not “high-
light a problem with the way the prison handled its
disciplinary proceedings, or urge a change of any prison
policy precluding the use of lie detector tests in disciplin-
ary proceedings against inmates.” Id. at 313.
3
(...continued)
was during that same conversation that Welborn warned Pearson
that he would “never get out of Tamms” if he ever thought
about filing a lawsuit against him.
14 Nos. 05-1068 & 05-1241
Welborn attempts to analogize Pearson’s complaints
about the conditions in J-pod to Brookins’ unprotected
letter requesting the lie detector test, a request unrelated
to any prison policy whatsoever. On the contrary,
Pearson’s complaints about the use of shackles in group
therapy and the denial of yard time related to matters
of concern to all J-pod prisoners. These complaints fall
squarely within the description Welborn himself, quoting
Brookins, offers as an example of what would be de-
serving of First Amendment protection: statements to
administrators on matters of “public concern” designed to
“ ‘urge a change of any prison policy.’ ” (Welborn Br. at 32
(quoting Brookins, 990 F.2d at 313)). Welborn’s character-
ization of Pearson’s complaints as personal gripes about
unimportant matters is simply unconvincing. Unlike the
inmate’s isolated request to administrators for a lie
detector test in a prison disciplinary proceeding, Pearson’s
complaints related to issues affecting all J-pod prisoners
and were, when viewing the evidence in the light most
favorable to Pearson, designed to effect a change in prison
policy.
We are equally unpersuaded by Welborn’s citation to
McElroy v. Lopac, 403 F.3d 855 (7th Cir. 2005) (per
curiam). In McElroy a divided panel of this court con-
cluded that a prisoner’s inquiry about pay for a prison
job was unprotected. Id. at 858-59. The plaintiff in
McElroy was an inmate who worked in the prison sewing
shop. Id. at 857. When it was announced that the sewing
shop would be closing, McElroy inquired whether inmates
awaiting another job would receive “lay-in” pay. Id. at 856-
57. McElroy alleged that his supervisor in the sewing
shop branded him a “trouble-maker” for his inquiry and
retaliated against him by firing him. Id. The panel con-
cluded that McElroy’s inquiry related to a “personal
matter,” id. at 858, and was thus not the type of pro-
tected activity necessary to support a First Amendment
Nos. 05-1068 & 05-1241 15
retaliation claim, id. 858-59. Unlike McElroy’s inquiry
about whether he would get paid, Pearson’s complaints
related to matters of public concern, namely, how the
prison operated the fledgling program designed to transi-
tion prisoners from the restrictive conditions at maximum-
security Tamms to a standard general population prison.
We are also unconvinced that the form of expres-
sion—i.e., written or oral—dictates whether constitu-
tional protection attaches. Welborn acknowledges that a
prison grievance is protected as “speech that is necessary
to inform prison officials of prisoner needs and to protect
a prisoner’s right to later petition the courts,” and even
goes so far as to admit that Pearson’s complaints would
likely have been protected if he had reduced them to
writing on an official grievance form. But we decline to
hold that legitimate complaints lose their protected
status simply because they are spoken. Nothing in the
First Amendment itself suggests that the right to peti-
tion for redress of grievances only attaches when the
petitioning takes a specific form. And although certain
types of “petitioning” would be obviously inconsistent
with imprisonment (marches or group protests, for exam-
ple), Pearson’s oral complaints do not fall into that cate-
gory.
Pearson testified that when the five pre-transfer in-
mates arrived on J-pod, Captain Hallan told them to let
him or Kwasniewski know if they had “any problems,
complaints, or suggestions.” Given that trial testimony, it
is possible that J-pod prisoners eschewed the formal
grievance process precisely because prison staff wel-
comed direct complaints. To then hold that those staff
have a free pass to retaliate on the basis of such
complaints—which would be protected if reduced to
writing—makes no sense. We thus reject Welborn’s
argument that Pearson’s complaints about the prison
conditions on J-pod—conditions that affected all of the
16 Nos. 05-1068 & 05-1241
prisoners housed there and related to the way the prison
administration implemented its new program—were
unprotected by the First Amendment.
Nor can we accept Welborn’s argument for qualified
immunity. Governmental officials performing discretionary
functions are entitled to qualified immunity when their
conduct “does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). As we stated when rejecting a similar argu-
ment for qualified immunity in Babcock v. White, “federal
courts have long recognized a prisoner’s right to seek
administrative or judicial remedy of conditions of con-
finement.” 102 F.3d 267, 276 (7th Cir. 1996). In light of
that recognition, we think a reasonable public official in
Welborn’s position would understand that retaliating
against a prisoner on the basis of his complaints about
prison conditions is unlawful. See Anderson v. Creighton,
483 U.S. 635, 640 (1987) (relevant inquiry is not wheth-
er “very action in question has previously been held
unlawful” but whether unlawfulness would be apparent
in light of pre-existing law). Pearson’s complaints, made
pursuant to the administration’s encouragement that
inmates voice their concerns, fall under the umbrella of
the right to seek administrative remedy for conditions of
confinement. Thus Welborn is liable for retaliating
against Pearson on that basis.
That leaves Pearson’s claim for attorney’s fees. In his
amended complaint, Pearson requested that the district
court enter a declaratory judgment that the punish-
ment was illegal, order him transferred from Tamms, and
award compensatory damages, attorney’s fees, and costs.
Shortly thereafter, Pearson was transferred from Tamms.
The district court barred Pearson from presenting his
damages claim to the jury; thus, Pearson received $1 in
nominal damages. Pearson then moved for $87,453 in
Nos. 05-1068 & 05-1241 17
attorney’s fees, $814 in costs, and a declaratory judgment.
The court concluded that Pearson was not entitled to a
declaratory judgment and that the PLRA’s fee cap provi-
sion, see 42 U.S.C. § 1997e(d)(2), applied, limiting Pear-
son’s attorney’s fees to 150% of his recovery, or $1.50.
On appeal, Pearson reasserts his entitlement to a
declaratory judgment, which he says would make the
fee cap inapplicable since it limits recovery when mone-
tary damages are the only relief secured. The relevant
provision of the PLRA provides that: “Whenever a mone-
tary judgment is awarded in an action [in which fees
are authorized under § 1988] a portion of the judgment
(not to exceed 25 percent) shall be applied to satisfy the
amount of attorney’s fees awarded against the defendant.
If the award of attorney’s fees is not greater than 150% of
the judgment, the excess shall be paid by the defendant.”
42 U.S.C. § 1997e(d)(2). We have interpreted this provi-
sion to limit attorney’s fees in cases where prisoners
obtain monetary relief to 150% of the damages award. See
Johnson v. Daley, 339 F.3d 582, 583 (7th Cir. 2003).
Although we have never addressed the precise question of
the cap’s applicability to an award of nominal damages,
several other circuits have. The First and Eighth Circuits
have both concluded that the fee cap applies to nominal
damage awards. See Boivin v. Black, 225 F.3d 36, 40-41
(1st Cir. 2000) (nominal damage award is “a monetary
judgment” under § 1997e(d) and fee cap applies); Foulk v.
Charrier, 262 F.3d 687, 703-04 (8th Cir. 2001) (same); see
also Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001)
(limiting attorney’s fees to 150% of money judgment that
included nominal and punitive damages).
Pearson, however, maintains that the fee cap is inappli-
cable in his case because he never solely sought monetary
damages. He claims that his “primary purpose” in this
litigation has been securing a transfer from Tamms and
obtaining a judgment to clear his name. As such, he
18 Nos. 05-1068 & 05-1241
argues that he is entitled to declaratory relief in addition
to nominal damages and so his recovery is not a “monetary
judgment” subject to the fee cap. Those circuits holding
that the fee cap applies to nominal damages have uni-
formly recognized that it would be inapplicable if the
plaintiff secured non-monetary relief in addition to
nominal damages. See Boivin, 225 F.3d at 41 n.4 (“In a
case in which the court orders non-monetary redress
(say, an injunction) along with a monetary judgment, the
fee cap . . . would not restrict the total amount of attor-
neys’ fees that the court could award.”); Walker 257 F.3d
at 667 n.2 (“[I]f non-monetary relief is obtained, either
with or without money damages, § 1997e(d)(2) would not
apply.”); Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th
Cir. 2003) (“[F]ees incurred to obtain injunctive relief,
whether or not monetary relief was also obtained as a
result of those fees, are not limited” by § 1997e(d)(2).).
The problem with Pearson’s argument is that, as things
now stand, the only relief Pearson has secured is the
nominal damages award. As recounted above, in Count
One of his amended complaint (the only count at issue)
Pearson sought a declaratory judgment that the punish-
ment was illegal, a transfer from Tamms, compensatory
damages, and attorney’s fees and costs. Before trial,
Pearson was transferred from Tamms, thus mooting, at
the very least, his request for injunctive relief. Welborn
argues that his transfer also mooted the request for
declaratory relief, which Welborn maintains was always
linked to Pearson’s request for the injunctive relief of a
transfer. We agree that once Pearson was transferred, his
prayer for declaratory relief largely dropped out of the
picture. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.
1996) (per curiam) (because prisoner claiming retaliatory
transfer had been transferred yet again, claims for injunc-
tive relief were moot and so were claims for declaratory
Nos. 05-1068 & 05-1241 19
relief); see also Samuels v. Mackell, 401 U.S. 66 (1971)
(equating remedies of injunctive and declaratory relief ).
Moreover, by entering a declaratory judgment in
Pearson’s favor, the district court would be doing nothing
more than reiterating the jury’s conclusion that Welborn
and Kwasniewski retaliated against Pearson. We are thus
hard-pressed to see how such a “declaratory judgment”
would constitute “other relief ” distinct from the nominal
damage award entered by the jury.4 A declaratory judg-
ment “will constitute relief, for purposes of § 1988, if, and
only if, it affects the behavior of the defendant towards the
plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per
curiam). Because Pearson has already been transferred, a
declaratory judgment would not affect Welborn’s behavior
towards Pearson. See City of Los Angeles v. Lyons, 461 U.S.
95, 103-04 (1983) (threat that plaintiff would be subjected
to illegal chokehold by police again “does not create the
actual controversy that must exist for a declaratory
judgment to be entered”); Davis v. District of Columbia,
158 F.3d 1342, 1348 (D.C. Cir. 1998) (entitlement to
declaratory relief depends on plaintiff ’s ability to demon-
strate real threat that the alleged wrong will recur). As
such, granting Pearson’s request for declaratory relief
would serve no purpose—except perhaps opening the
door on his request for attorney’s fees. Cf. Bontkowski v.
Smith, 305 F.3d 757, 761 (7th Cir. 2002) (reiterating
that declaratory relief cannot be “sought simply as a
predicate for a subsequent damages claim”); see also
Benton v. Or. Student Assistance Comm’n, 421 F.3d 901,
4
We do not by this opinion suggest that attorney’s fees would
be improper in the situation where the plaintiff has in fact
secured a declaratory judgment. We hold only that in these
particular circumstances, where Pearson has not attempted to
invalidate any official or unofficial prison policy, a declaratory
judgment would be largely duplicative of the jury’s verdict.
20 Nos. 05-1068 & 05-1241
908 (9th Cir. 2005) (“[T]he finding that plaintiff ’s rights
were violated and the accompanying judgment cannot be
the ‘something more’ required for an award of attorney’s
fees and costs.”). We add that Pearson did not argue that
the fee cap does not apply if only nominal damages are
awarded. Instead, he argued solely that the cap was
inapplicable because he was entitled to declaratory relief,
and so we need not decide today whether the fee cap
invariably applies when only nominal damages are
awarded. Because we reject Pearson’s request for declara-
tory relief, we affirm the district court’s award of $1.50 for
attorney’s fees, which represents 150% of Pearson’s $1.00
monetary award.
Alternatively, Pearson argues that the district court
erred by removing his damages claim from the jury under
42 U.S.C. § 1997e(e). That section provides that “No
Federal action may be brought by a prisoner . . . for mental
or emotional injury suffered in custody without a prior
showing of physical injury.” Pearson first reasserts the
argument rejected by the district court—that during the
extra year at Tamms he suffered physical injury. To
support this claim Pearson relies on his own testimony
that as a result of the extra year he was “mentally and
physically depressed” and “lost at least 50 pounds at the
time.” We agree with the district court that this
unelaborated claim is insufficient to support Pearson’s
assertion that he suffered “physical injury” as that term is
commonly understood. Indeed, Pearson himself fails to
cite a single case to support his contention that he suffi-
ciently proved physical injury. Cf. Davis v. District of
Columbia, 158 F.3d 1342, 1349 (D.C. 1998) (prisoner’s
weight loss, appetite loss, and insomnia after alleged
constitutional violation not “physical injury” as required by
§ 1997e(e)); Herman v. Holiday, 238 F.3d 660, 665-66 (5th
Cir. 2001) (recovery barred under § 1997e(e) for prisoner’s
Nos. 05-1068 & 05-1241 21
alleged “grave emotional and mental depression” as a
result of exposure to asbestos in prison).
Likewise, we are unpersuaded by Pearson’s assertion
that he was entitled to present a claim for lost economic
damages to the jury. For this he relies on his testimony
that at some unspecified time before transferring to
Tamms, he had held a prison job that paid “probably $15
a month.” Thus, he reasons, he presented evidence that
he lost 52 weeks worth of wages, or $780.00 ($15 a week
for 52 weeks) by spending an extra year at Tamms.
Pearson failed, however, to present any evidence that he
was guaranteed a prison job outside of Tamms. Without
such evidence, we think his claim for lost wages is too
speculative to warrant submitting it to the jury. See
Haslund v. Simon Prop. Group, Inc., 378 F.3d 653, 658
(7th Cir. 2004) (“A ‘plaintiff has the burden of proving
damages to a reasonable degree of certainty.’ ”) (citation
omitted).
Finally, we reject Pearson’s claim that he is entitled to
damages for the more onerous conditions he endured at
Tamms during his extra year of confinement. To support
his claim, Pearson cites a single pre-PLRA case noting
that lost amenities within prison are recoverable as
damages. See Ustrak v. Fairman, 781 F.2d 573, 578 (7th
Cir. 1986). Although Ustrak recognized the possibility of
such damages, it rejected awarding them in that case,
which dealt with a prisoner’s claim that he was denied
transfer to a less-onerous prison environment in retalia-
tion for letters he sent to the warden complaining about
racial discrimination. Id. at 577-78. Instead, in Ustrak
we concluded that the prisoner had failed to present
sufficiently specific proof of the improved conditions in the
facility to which he would have been transferred. Id. at
578. Pearson asserts that he did present such proof, but
he fails to convincingly explain how damages to compen-
sate him for the difference in conditions would be anything
22 Nos. 05-1068 & 05-1241
but recovery for “mental or emotional injury” now barred
by the PLRA. Indeed, in Ustrak we contrasted the plain-
tiff ’s failure of proof to several cases where damage
awards had been warranted in light of a plaintiff ’s specific
proof of poor conditions and “mental and emotional dis-
tress resulting therefrom.” Id. at 579; see also Herman, 238
F.3d at 666 (PLRA barred recovery for mental and emo-
tional injuries caused by “cold showers, cold food, unsani-
tary dishes, insect problems, a lack of adequate clothing,
and the presence of an open “cesspool” near the housing
unit” at prison) (emphasis added). Accordingly, we de-
cline to disturb the district court’s decision to limit
Pearson’s recovery to nominal damages.
III.
For the foregoing reasons we AFFIRM the judgment of the
district court denying Welborn’s postverdict motions, and
we also AFFIRM the district court’s award of $1.50 in
attorney’s fees.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-06