Carl Gallo, Jr. v. Lorna Stokes

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2017 *
Decided April 24, 2017
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 16-2875
CARL GALLO, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 13-1476
LORNA STOKES, Joe Billy McDade,
Defendant-Appellee. Judge.
ORDER
Carl Gallo, Jr., an inmate at Hill Correctional Center in Galesburg, Illinois, sued
the prison nurse, Lorna Stokes, and nine other staff members and administrators under
42 U.S.C. § 1983, alleging that Stokes had twice punished him for exercising his consti-
tutional right to file grievances and that the other defendants were complicit by failing
to “investigate or resolve” his complaints about Stokes. The district court dismissed the
other defendants from the case at screening, 28 U.S.C. § 1915A, but allowed a pair of
*
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. See FED. R. APP. P. 34(a)(2)(C).
No. 16-2875 Page 2
First Amendment claims against Stokes to proceed. Only one of those claims survived
summary judgment, and after the court had denied his requests to recruit counsel, Gallo
went to trial on the remaining claim and lost. On appeal Gallo challenges the denials of
his requests for counsel, the grant of summary judgment to Stokes, and the dismissal of
the other defendants.
In November 2011 Gallo had submitted an emergency grievance about Stokes,
complaining that she had threatened him during a medical visit a week earlier—that
she had “got[ten] mad” when he disagreed with her about the proper dosage of
Metamucil (a fiber supplement) and had said to him “Listen Gallo don’t argue with me,
I’m not going to discuss it with you, and next time you write a grievance on me, I’m go-
ing to write you a ticket, do you understand me Mr. Gallo, now zip it.” Gallo’s counse-
lor sent the grievance to the healthcare administrator, who responded that Stokes had
been “following policies and procedures” and that Gallo’s “continued harassment” and
“continuous false grievances” were “inappropriate.” The grievance was denied.
A week after Gallo filed the grievance Stokes reported him for violating prison
rules by being belligerent and harassing her on several occasions. For example, he had
shouted from his cell that Stokes had better provide medical treatment “or else,” and he
had yelled, “You are not the doctor and cannot prescribe my medications.” After a hear-
ing, Gallo was found guilty of insolence and given a verbal reprimand.
Over the next month, Gallo submitted two more grievances concerning Stokes.
The first repeated his allegation that Stokes had threatened him at the earlier medical
visit, and so was denied as duplicative. The second recounted a disagreement he’d had
with Stokes about his medication, and accused her of preventing him from seeing a doc-
tor. That grievance, too, was denied.
While the second grievance was pending, Gallo submitted a sick-call request say-
ing he hadn’t gotten his medication. Yet that same day, guards searched his cell and
found several medications, including some that Gallo said he hadn’t received. Some of
them having expired (hydrocortisone cream, eye drops, and nasal spray), a guard
phoned the infirmary about them. Stokes answered—and then cited Gallo for pos-
sessing expired medication, not taking his medication, and lying about not receiving his
medication. She also repeated that Gallo was “belligerent and argumentative” in her
presence—raising his voice and demanding the doctor. She added that he’d refuse to
leave the exam room and instead sit in a chair staring at her. A hearing committee
found Gallo guilty of insolence and possessing “drugs and drug paraphernalia.” He
was denied contact visits for six months and demoted to “C grade” for one month, re-
sulting in restricted commissary and telephone privileges.
Gallo alleges in his suit that Stokes had fabricated the two disciplinary reports in
order to punish him for complaining that she had threatened him. The other defend-
No. 16-2875 Page 3
ants, he said, participated with Stokes by rejecting his grievances and thus condoning
her actions. After allowing the case to proceed against Stokes alone, the district court
denied Gallo’s request for assistance in recruiting counsel because Gallo had not tried to
find a lawyer himself.
The court carved Gallo’s allegations into separate First Amendment claims, one
for each disciplinary report that Stokes had written. Since the first report had resulted
only in a reprimand, the court granted summary judgment in favor of Stokes on that
claim, reasoning that the penalty wasn’t sufficiently adverse to deter protected speech.
But because the second disciplinary report had led to a loss of privileges, the court al-
lowed that claim to proceed to trial.
Gallo again asked the district court to recruit counsel for him, explaining that he
lacked experience with trial, had been relying on jailhouse lawyers for assistance, and
was hindered by limited education and a learning disability. The court denied the mo-
tion, reasoning that the claim was “simple” and Gallo competent to litigate it—his
“comprehensible and organized” filings demonstrated that he understood the elements
of the First Amendment claim and what he must show to prove it. Even if Gallo had
been receiving help from jailhouse lawyers, the court continued, he had demonstrated
during the pretrial conference that he understood the issues and could represent him-
self. And in fact at the trial Gallo presented witnesses and exhibits, cross-examined
Stokes and her witnesses, and testified himself. Still, the jury found for Stokes, who de-
nied threatening Gallo or issuing disciplinary reports because of his grievances.
On appeal Gallo argues that the district court abused its discretion in not recruit-
ing counsel. Gallo repeats the reasons he gave the district court—his pretrial submis-
sions exaggerate his competence because they were written by jailhouse lawyers, he has
only a high school education, and he has a learning disability. He also recounts instanc-
es at trial that, he says, show his need for an attorney—for example, at times he experi-
enced difficulty presenting evidence and failed to object to hearsay. But the district
judge properly considered both the complexity of the case and Gallo’s ability to litigate
it himself. See Olson v. Morgan, 750 F.3d 708, 711–12 (7th Cir. 2014); Pruitt v. Mote,
503 F.3d 647, 655 (7th Cir. 2007) (en banc). The judge evaluated Gallo’s written submis-
sions and performance during the pretrial conference, in which Gallo presented witness
and exhibit lists, explained his witnesses’ expected testimony and its relevance to his
claim, and acknowledged that he understood the facts, law, and proceedings.
Gallo also challenges the grant of summary judgment on his claim that he was
punished with a reprimand for filing a grievance against Stokes. But he had to show
that the punishment was severe enough to deter future protected speech. Fairley v. An-
drews, 578 F.3d 518, 525 (7th Cir. 2009). The reprimand he received does not satisfy this
threshold. As we said in Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982), it “would trivi-
No. 16-2875 Page 4
alize the First Amendment to hold that harassment for exercising the right of free
speech was always actionable no matter how unlikely to deter a person of ordinary
firmness from that exercise.”
Gallo further argues that the district court erred in dismissing the other defend-
ants at screening. But as the judge explained, prison administrators who handle inmate
grievances are not liable simply because they deny some of the grievances. Burks v.
Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). And as Gallo’s theory was that the other de-
fendants shared responsibility for First Amendment violations committed by Stokes by
not stopping her alleged misconduct, her exoneration defeats his derivative contention
against the defendants. Teague v. Mayo, 553 F.3d 1068, 1072–73 (7th Cir. 2009).
Finally Gallo contends that the district judge abused his discretion by preventing
him from describing all his exhibits and presenting all of them to the jury. The district
court did not allow Gallo to call all his proposed witnesses, and regularly intervened to
limit irrelevant or repetitive questions, but Gallo has not pointed to any error in the
these rulings. The judgment is therefore
AFFIRMED.