author: EASTERBROOK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James G. WHEELER, Defendant-Appellant.
    No. 16-3435
    United States Court of Appeals, Seventh Circuit.
    Argued May 16, 2017
    Decided May 19, 2017

      Laura S. Kwaterski, Rebecca Taibleson, Jonathan H. Koenig, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
    Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judges.
   EASTERBROOK, Circuit Judge.

James Wheeler pleaded guilty to an attempt to obstruct interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and to using a gun (by shooting someone) during that crime, in violation of 18 U.S.C. § 924(e)(1)(A)(iii). The guilty plea did not reserve any issue for appeal under Fed. R. Crim. P. 11(a)(2). To the contrary, Wheeler acknowledged in the written plea agreement that he “acknowledges and understands that he surrenders any claims he may have raised in any pretrial motion.” The district court sentenced him to 108 months for the Hobbs Act offense and a consecutive 120 months for the firearms offense.

Section 924(c)(1)(A) requires a minimum 10-year penalty for anyone who discharges a firearm “during and in relation to any crime of violence”. Paragraph (c)(3) defines as a “crime of violence” any felony that “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Subparagraph (A) is known as an elements clause and subparagraph (B) as a residual clause. The indictment charged Wheeler with violating § 924(c)(1) because robbery, in violation of the Hobbs Act, is a “crime of violence” under the definition in § 924(c)(3).

Despite entering an unconditional guilty plea to the firearms charge, Wheeler now insists that he cannot be guilty because attempted robbery is not a “crime of violence”. It can’t be a crime of violence under the residual clause, he maintains, because that clause is unconstitutionally vague. (So we held in United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir. 2016). The Supreme Court may decide in Sessions v. Dimaya, No. 15-1498 (argued Jan. 17, 2017), whether that conclusion is correct.) And it can’t be a crime of violence under the elements clause, Wheeler contends, because an attempt to rob a retail establishment does not have the use of physical force “as an element” because it is possible to come close enough to success to be an “attempt” without committing one of the acts that would use or threaten violence for purposes of the completed crime.

The crime defined in the Hobbs Act requires either actual or threatened force as an element, see United States v. Anglin, 846 F.3d 954 (7th Cir. 2017), and the prosecutor contends that attempts should be classified with completed offenses. So we held in United States v. Armour, 840 F.3d 904, 907-09 (7th Cir. 2016), about attempted bank robbery, and the proseeu- ’ tor believes that by parallel to Armour an attempted retail-store robbery is a crime of violence. See also Morris v. United States, 827 F.3d 696, 698-99 (7th Cir. 2016) (concurring opinion) (concluding that attempt to commit a crime of violence is itself a crime of violence under § 924(e)).

We need not decide who is right about this, because Wheeler waived his position by pleading guilty—and to make the waiver doubly clear he acknowledged in writing that the plea surrendered any argument that could have been raised in a pretrial motion. Wheeler now contends that the indictment did not charge a § 924(c)(1) offense because attempted Hobbs Act robbery is not ever a “crime of violence”. Such an argument not only could have been presented by pretrial motion but also had to be so presented under Fed. R. Crim. P. 12(b)(3)(B)(v), which provides that “failure to state an offense” is the sort of contention that “must” ,be raised before trial.

That Cardena post-dates the guilty plea does not matter. Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holds that the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii), part of the Armed Career Criminal Act, is unconstitutionally vague. Cardena concludes that Johnson’s, rationale invalidates the two remaining residual clauses in the Criminal Code—one in 18 U.S.C. § 16(b) and the other in § 924(c)(3)(B)—despite the difference in the language between these residual clauses and the one in the ACCA. (Dimaya presents the question whether the difference is constitutionally significant.) Neither Cardena nor Johnson has anything to do with the elements clauses in § 924(c) and other statutes. For that reason and others we held in Davila v. United States, 843 F.3d 729 (7th Cir. 2016), that a person who pleads guilty to a § 924(c) charge cannot use Johnson and Cardena to reopen the subject and ask a court of appeals to upset the conviction.

At oral argument Wheeler’s lawyer allowed that Davila is on point but asked us to reconsider that decision in light of the Supreme Court’s grant of review in Class v. United States, — U.S. •-•, 137 S.Ct. 1065, 197 L.Ed.2d 175 (2017). The question presented in Class is whether an unconditional guilty plea waives a defendant’s right to contest the constitutionality of the statute of conviction. We do not see any need to wait for the Court’s decision in Class or to revisit the holding of Davila. Wheeler’s statute of conviction is § 924(c)(1), which penalizes using a firearm during or in relation to a crime of violence. Wheeler does not contend that § 924(c)(1) is invalid. Class maintains that he had a constitutional right not to be indicted; Wheeler does not make any argument of that kind. Wheeler attacks one component of the definition of “crime of violence” in § 924(c)(3) but does not contend that it is constitutionally impermissible for an indictment to charge that attempted Hobbs Act robbery is a crime of violence under the elements clause. In other words, Wheeler does not assert a constitutional immunity from prosecution. Whether attempted Hobbs Act robbery satisfies the elements clause in § 924(c) is a statutory issue. For the reasons given in Davila, an unconditional guilty plea waives any contention that an indictment fails to state an offense.

Wheeler presents a second contention: that he should be resentenced in light of Dean v. United States, — U.S.-, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017). The Supreme Court held that 18 U.S.C. § 924(c)(l)(D)(ii), which requires a sentence under § 924(c) to run consecutively to the sentence for the offense in which the firearm was used, does not implicitly forbid the district court to choose a term of imprisonment for the predicate offense so that the aggregate imprisonment comports with the sentencing criteria in 18 U.S.C. § 3553(a). Wheeler correctly observes that Dean supersedes United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), which had held that a district court must not reduce the sentence for the predicate crime in order to offset the consecutive § 924(c) sentence.

If there were some reason to think that the district court had felt compelled by Roberson to set Wheeler’s total sentence at 228 months rather than a shorter term, Wheeler would be entitled to a fresh sentencing. But the record does not so much as hint that the district judge felt constrained by Roberson. The judge did not mention Roberson or say that she would have preferred to give Wheeler a total sentence below 228 months. Instead the judge sentenced Wheeler to 108 months for the Hobbs Act crime, a sentence above the Guidelines range of 84 to 105 months for that offense. It is inconceivable that a judge who imposed a sentence above the Guidelines range for the predicate crime did so because of Roberson. Dean accordingly does not affect Wheeler’s sentence.

Affirmed


source: Caselaw Access Project

author: SYKES, Circuit Judge.

license: Public Domain

text:
    Chijioke B. BEN-YISRAYL, Petitioner-Appellant, v. Ron NEAL, Respondent-Appellee.
    No. 16-1013
    United States Court of Appeals, Seventh Circuit.
    Argued April 21, 2017
    Decided May 22, 2017

      Michael Ausbrook, Attorney, Blooming-ton, IN, for Petitioner-Appellant.
    Andrew A. Kobe, James Blaine Martin, Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent-Appel-lee.
    Before WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge.

       The Honorable Sharon Johnson Coleman of the Northern District of Illinois, sitting by designation.

   SYKES, Circuit Judge.

Chijioke Ben-Yisrayl is an Indiana prisoner serving a 60-year sentence for murder. He appeals from the district court’s denial of his petition for habeas relief under 28 U.S.C. § 2254. Although he raised multiple claims in his petition, his sole argument on appeal is that his resentenc-ing counsel was constitutionally ineffective for failing to introduce “a veritable mountain of mitigation evidence.” But he never raised this claim in his habeas petition, and his failure to do so is a waiver. We affirm the judgment.

I. Background

Ben-Yisrayl is well acquainted with the judicial system. In 1984 he was convicted in Indiana state court of capital murder, rape, criminal confinement, and burglary. The jury was unable to reach a decision in the penalty phase of trial, so the judge imposed a sentence of death. In case that sentence did not hold up on appeal, the judge imposed an alternative sentence of 60 years. On the remaining counts, the judge imposed an aggregate term of 90 years.

The case bounced back and forth for many years in the state trial and appellate courts as the death sentence and other issues were litigated on direct review and in post-conviction proceedings. Prosecutors eventually withdrew their request for the death penalty and settled for the alternative 60-year sentence on the murder conviction. Ben-Yisrayl won a reversal of that sentence as well. On resentencing the trial judge reimposed the 60-year sentence, and this time it was affirmed. Post-conviction' proceedings on other issues continued.

In the meantime, Ben-Yisrayl pursued habeas relief in federal court under § 2254. Because he had yet to complete state post-conviction review, the district judge stayed the proceedings. When the state courts finally finished with the ease, the judge lifted the stay and ordered the state to respond to the petition. Indiana did so. Ben-Yisrayl failed to file his reply within the allotted time, so the case proceeded to decision without a reply brief from him.

The judge denied relief on all grounds without an evidentiary hearing. She also denied Ben-Yisrayl’s motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. This appeal followed.

II. Analysis

Although Ben-Yisrayl originally sought habeas relief on six grounds, he later abandoned four of his claims and litigated only two on the merits before the district court. He argued that (1) the prosecution team intentionally destroyed exculpatory evidence; and (2) his counsel at resentencing was constitutionally ineffective for submitting a meager two-page sentencing memorandum and for failing to challenge the prosecution’s destruction of evidence. Notably, Ben-Yisrayl never mentioned the sole claim he now advances on appeal, which is an attack on his counsel’s alleged failure to introduce a “mountain”' of mitigation evidence at resentencing. Indeed, a reference to mitigation evidence first pops up in Ben-Yisrayl’s Rule 59(e) motion, and even then it appears only in passing in a sentence about the district court’s denial of an evidentiary hearing: “Without an evi-dentiary hearing, [Ben-Yisrayl] cannot show what mitigation evidence his trial lawyers failed to present or why they failed to present it.”

Ben-Yisrayl’s omission of this claim from his habeas petition is a waiver. It is well settled that waiver rules- apply in the habeas context: “Claims not made in the district court in a habeas petition are deemed waived and cannot be raised for the first time on appeal.” Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009). The fleeting reference to this claim in Ben-Yisrayl’s Rule 59(e) motion cannot save it for appellate review; it is equally well settled that a Rule 59(e) motion is not an appropriate vehicle for advancing “arguments qr theories that could and should have been made before the district court rendered a judgment.” County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (quoting LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)).

Indiana also invokes procedural default, but we have no need to address that argument. Waiver resolves this entire appeal. Because Ben-Yisrayl’s habeas petition never raised a claim based on his counsel’s failure to introduce mitigation evidence at resentencing, the claim is waived. The judgment of the district court is Affirmed.

      . At that time Ben-Yisrayl was known as Greagree Davis.


author: POSNER, Circuit Judge. KANNE, Circuit Judge,

text:
    Michael DAVIS, Plaintiff-Appellant, v. Donald MORONEY, Defendant-Appellee.
    No. 16-2471
    United States Court of Appeals, Seventh Circuit.
    Argued April 25, 2017
    Decided May 22, 2017
    Michael Meneghini, Stephen Victor D’Amore, Attorneys, WINSTON & STRAWN LLP, Chicago, IL, for Plaintiff-Appellant.
    Sarah A. Hunger, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL, for Defendant-Appellee.
    Before POSNER, KANNE, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

Michael Davis, an inmate at Illinois Pontiac Correctional Center, sued a guard, Donald Moroney, for allegedly using excessive force against him, but the district court dismissed the suit for failure to prosecute. Davis now challenges the denial of a subsequent motion for relief from judgment under Federal Rule of Civil Procedure 60(b). He argues that exceptional circumstances warrant relief from the judgment, principally because mental impairments prevented him from prosecuting the case without the aid of counsel.

Davis filed this suit under 42 U.S.C. § 1983 in 2013 against guard Moroney along with the prison’s warden and other prison officials responsible for the prison’s grievance process. In his complaint Davis alleged that while speaking with another inmate he accidentally bumped into Moro-ney, apologized, but Moroney responded by hitting Davis in the jaw, throat, and chest, twisting his arm behind his back, slamming his head against a wall, and handcuffing him. Davis charges that the other defendants, in an effort to cover up Morone/s assault, conspired to deny him access to the prison’s grievance procedure by failing to process and return his grievances.

Davis asked the district court to recruit counsel for him, stating that he “had to obtain complete assistance” in order to be able to prosecute his suit. He had tried to secure counsel on his own, he added, and referred to a letter from a law firm corroborating his attempt to obtain representation; but no letter was attached to his motion.

The district court screened Davis’s complaint, see 28 U.S.C. § 1915A, and allowed him to proceed on his excessive-force claim against Moroney. But the court dismissed the conspiracy claim against the other defendants on the ground that Davis had no federal constitutional right to a grievance procedure and therefore could not “present a meritorious claim.” The court also denied Davis’s motion for counsel, on the ground that he’d failed to demonstrate that he’d made a reasonable attempt to obtain counsel.

Discovery ensued, but Davis failed to respond to interrogatories propounded by Moroney concerning Davis’s attempts to exhaust his administrative remedies.

Two months later Davis repeated his request for recruitment of counsel, stating that he had a mental illness and was unable to aid the inmate who was preparing his court filings. Davis attached to his motion an affidavit from the assisting inmate, Claude McGee, who asserted that “it is almost common knowledge that Mr. Davis has a mental illness” and that Davis’s “judgment is substantially impaired, along with his perceptions of reality, all of which rendered it essentially impractical to effectively communicate with Mr. Davis to meet deadlines, [or to] fully and fairly participate in the discovery process.” Two months later the district court denied Davis’s request for counsel on the ground that he’d failed to demonstrate that he had tried to secure counsel on his own and because his claim was “not unduly complex and relies largely on information of his personal knowledge.”

The court allowed Davis 21 more days to respond to Moroney’s interrogatories. On the twenty-first day Davis renewed his motion for recruitment of counsel, asserting that the case was difficult for him because he reads at a 6th-grade reading level, lacks communication skills, and has a “paranoid delusional disorder.” He also attached his “legal mail card,” which cataloged his incoming and outgoing mail to a number of law firms. And he asked the court to order the prison to turn over his medical records. Moroney, having still received no response to his interrogatories, filed another motion to compel Davis to respond.

The district judge took no further action for nine months, then issued a scheduling order stating that “there are no pending issues requiring discussion.” The order directed Moroney to provide Davis with, among other things, Davis’s “relevant medical records” and “relevant grievances and all responses to those grievances.”

Without it appears responding to the court’s directive, a month later Moroney filed a motion to dismiss Davis’s suit under Fed. R. Civ. P. 41(b) for lack of prosecution because Davis still had not answered the interrogatories. The district judge responded with two orders: the first denied Davis’s renewed motion for recruitment of counsel becáuse his “claim is not unduly complex and relies largely on information within his personal knowledge,” and instructed Davis to request his medical records through his institution—whatever that means. The judge’s second order warned Davis that his case would be dismissed unless he filed answers to Moro-ney’s interrogatories within 14 days. Twenty days later Davis filed a motion to reconsider the denial of his motion for recruitment of counsel but did not respond to the interrogatories. The district court then granted Moroney’s motion to dismiss Davis’s suit, explaining that Davis had failed to comply with the judge’s orders directing him to respond to the interrogatories. The judge denied Davis’s motion to reconsider the denial of his motion for recruitment of counsel as moot.

Almost a month later Davis filed a “Motion to Reconsider/Reinstate Cause” and argued that the court had disregarded his “possible mental impairments” that prevented him from effectively litigating his case. He also asked the court to give him more time to find an attorney. The court did not find Davis’s arguments “persuasive” and so denied the motion. Nine days later Davis filed a Rule 59(e) motion to alter or amend the judgment, stating that he was “extremely slow mentally,” that he lacked the ability “to produce any form of effort to pursue this cause,” and that the circumstances were exceptional because he had “insufficient knowledge of any complexity of the case” and could not represent himself. The motion also alleged that prison staff had retaliated against the inmates who had prepared Davis’s filings for him. The court denied this motion the next day as untimely, pointing out that Davis had missed the 28-day deadline for making a “genuine” motion under Fed. R. Civ. P. 59(e).

Five months later Davis filed still another motion for recruitment of counsel (his fourth) based on his mental deficiencies. He stated that his I.Q. was under 73 and that he could not understand Moroney’s filings. The court denied this motion, presumably because the case had been dismissed, but noted that it was not clear whether Davis intended to request counsel to assist him with an appeal.

Two months later Davis moved for relief from judgment under Fed. R. Civ. P. 60(b)(1) and (b)(6), again mentioning his mental shortcomings. He stated that he has an I.Q. of only 66 and the “mind of a child,” is barely literate, and could not meet the court’s deadlines without aid or supervision. In light of these difficulties (as well as his inability to understand Moro-ney’s interrogatories), he added, the court should have recruited counsel for him.

In May 2016 the district court denied his motion for relief from the judgment, noting that Davis had not responded to Moro-ney’s interrogatories despite two orders directing him to do so, and adding that Moroney’s defense had been prejudiced by Davis’s failure to respond.

The only issue in this appeal, as agreed by the parties, concerns the denial of Davis’s Rule 60(b) motion. Assisted by counsel that this court recruited, Davis argues that the district judge decided that motion incorrectly because she didn’t account for his exceptional circumstances— namely his mental impairments. He also contends that like the plaintiff in Donald v. Cook County Sheriff’s Department, 95 F.3d 548 (7th Cir. 1996), his difficulty in litigating this case has stemmed from the district court’s handling of it—notably the judge’s nine-month delay in responding both to Moroney’s second motion to compel a response to his interrogatories and to Davis’s renewed motion for recruitment of counsel.

The controlling issue is whether Davis has established a basis for relief under Fed. R. Civ. P. 60(b), which so far as relates to this case allows a court to relieve a party from a final judgment on grounds of “excusable neglect” (Rule 60(b)(1)), or “any other reason that justifies relief’ (Rule 60(b)(6)). While relief under that rule has been described as “an extraordinary remedy ... granted only in exceptional circumstances,” Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009), the circumstances of this case are extraordinary—notably Davis’s intellectual limitations.

Davis also argues that the district court did not properly consider his impairments and lack of resources in its denials of his motions for counsel, and also that the court erred by not considering his motion to reconsider the entry of judgment as a motion under Rule 59(e). He contends that the district court did not evaluate that motion under the proper standard and that as a result he (Davis) may not have understood that he should have filed an appeal. But as Moroney points out, this court lacks jurisdiction to consider the district court’s denial of this motion because Davis did not file a timely notice of appeal.

Although Moroney and the district judge made points that would be compelling in another setting, involving a different type of grievant, they are outweighed by the equities in favor of Davis that stem from his severe intellectual limitations, coupled with his lack of legal assistance; and while review of a district court’s denial of a Rule 60(b) motion is deferential, if the judge is “very far off base ... or omitted to consider some important relevant factor,” the denial cannot stand. Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986). Davis’s intellectual limitations, asserted in his and McGee’s affidavits, are not contradicted by Moroney, who did not dispute the assertions in the affidavits submitted by Davis and McGee. Nor had the district judge been given any reason to doubt that Davis was intellectually disabled.

Furthermore the judge attached far too much weight to Davis’s failure to respond to Moroney’s interrogatories—for they were little better than a ploy aimed at a person incapable of responding intelligently. The information sought included “the number of grievances you wrote related to the issues in your complaint, ... the date on which you wrote each grievance^] the date(s) of submission of each grievance to your counselor; the date(s) of submission of each grievance to the Grievance Officer; the date(s) of submission of each grievance to the Administrative Review Board; whether you submitted the grievance(s) to anyone else; the manner in which you submitted the grievance(s) at each level; the name of any person to whom you gave the grievance(s) at each level of the process; the date(s) of response(s) at any level; the date(s) of final determination(s) by the Administrative Reyiew Board; and whether you are in possession of any grievance(s) or grievance response(s) related to this lawsuit. If you are not, state why you are not.” Not only did most of these questions exceed Davis’s capacity to answer them, but almost all the information requested from Davis resided in the files of the prison and were thus immediately accessible by Moroney. While Davis was unlikely to have retained the dates demanded by Mo-roney, copies of the grievances he had submitted, or the names of most of the persons to whom he had submitted his grievances, or to understand “each level of the process,” Moroney, as a member of the prison’s staff and in cahoots with the other defendants, had access to everything Davis had filed with the prison administration and so had no need to seek information from Davis. The Prison Litigation Reform Act provides that “no action shall be brought [under federal law] with respect to prison conditions ... by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Moroney was therefore entitled to argue as a defense that Davis had failed to exhaust his administrative remedies'—had failed to timely submit a grievance to the prison’s Administrative Review Board. But in the particular circumstances of this ease the insistence on a response amounted to cruel harassment of a mental defective.

To cast some additional light on whether Davis, given his mental handicaps,' could have been expected to understand most of the orders he received from the district judge and Moroney, we conducted an experiment using the Flesch Reading Ease Readability Formula. Downloadable free of charge from the Internet (see, e.g., Readability Formulas, “The Flesch Reading Ease Readability Formula,” www. readabilityformulas.com/flesch-reading-ease-readability-formula.php, visited May 22, 2017), Flesch is a test used to estimate the difficulty for given readers of understanding a given text. The formula is simple: it measures the ratio of syllables to words, and words to sentences, in the text; the higher those ratios, the more difficult the text is to understand. Of course other qualities of a text contribute to how difficult it is to understand, but the Flesch formula is a helpful heuristic that correlates well with difficulty—for example, the average ratios of random samples of the Harvard Law Review are higher than the average ratios of random samples of Time magazine; the Harvard Law Review is more difficult to read than Time. See Rudolf Flesch, How to Write Plain English 26 (1979). Having determined how difficult the text is, the Flesch test translates that score into a prediction of what educational level a reader would have to have attained in order to be able to understand the text.

Applied to Moroney’s interrogatories, the Flesch test reveals that their comprehension requires a reading ability consistent with having completed 8th, maybe 9th, grade in school. The most optimistic assessment of Davis’s reading ability is that he can read at a 6th-grade level—two or three levels below the reading ability required for an understanding of the interrogatories.

Davis needs help—needs it bad—needs a lawyer desperately. He did not have a fair opportunity to prosecute his case. As in Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 554 (1996), “the plaintiffs difficulties are traceable in considerable part to the way the matter was handled by the district court.” The district judge, although purporting to apply the standard for deciding whether to recruit pro bono counsel set forth in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), overlooked our emphasis in that case on the need to consider whether the particular plaintiff is competent to litigate his own claims, as by being able to “prepar[e] and respond[ ] to motions and other court filings” himself. Id. at 655. In combination, Davis’s severe intellectual handicaps, his apparently diligent efforts to pursue his case despite those handicaps, his potentially meritorious claim, and the irregularities of the district court’s handling of the case, amount to “extraordinary circumstances” justifying relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure from the final judgment in this case. See Ramirez v. United States, 799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s motion for relief from final judgment is therefore reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

KANNE, Circuit Judge,

concurring.

I join in the majority’s reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand for further proceedings. I write separately to briefly discuss certain factors.

When reviewing a district court’s denial of an indigent prisoner plaintiffs motion to recruit counsel for him, we make three inquiries: “(1) has the indigent plaintiff made reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not, would the presence of counsel have made a difference in the outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc) (internal citations and quotations marks omitted).

Here, the district court erred at the mandatory first step by not crediting Davis for following existing precedent in attempting to obtain a lawyer to represent him. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). In fact, the defendant does not contest that Davis had contacted several lawyers seeking representation in this litigation.

Moreover, the long extended give-and-take between the district judge and the parties failed to get to the heart of the matter: whether the district court should have tried to appoint counsel for Davis. The court could have addressed this issue by appointing a magistrate judge to conduct a hearing at the prison. The magistrate judge could have considered both Davis’s efforts to obtain counsel and the difficulty Davis experienced in dealing with the case. In addition, but less satisfactorily, the district judge could have held a hearing by telephone to achieve the same end.

With counsel, Davis likely would not have missed the deadlines for written discovery. Thus, the outcome of the case in the district court would have been different.

I agree that, in this case, the district court should have tried to obtain counsel for Davis because of the totality of extraordinary circumstances. However, the use of Davis’s unverified (albeit undisputed) IQ score as a metric to determine his reading ability—and therefore, the need for legal representation—is problematic. Davis first claimed that his IQ score was under 73, and later that his IQ was only 66. Initially, as noted, the validity of Davis’s IQ is not supported by any proper validation. Furthermore, his claimed 6th-grade reading level and lack of communication skills were only unverified allegations.

In the general scheme of recruiting pro bono counsel, it is extremely significant that the number of inmates in prison with low IQs is substantial. See generally Brie Diamond, Robert G. Morris & J.C. Barnes, Individual and Group IQ Predict Inmate Violence, 40:2 Intelligence 115 (2012) (“[T]he literature suggests that IQ—at the individual and macro-level—is negatively correlated with crime....”).

If, therefore, an IQ score is routinely used to establish reading ability and thus a need for counsel, it should be based on valid testing. Indeed, the use of an IQ level will certainly result in a much larger number of prisoner cases being added to the dockets of district courts. Such an outcome would be contrary to the intent of Congress exhibited by enacting the Prison Litigation Reform Act, 42 U.S.C. § 1997e. See Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (noting that Congress enacted the Prison Litigation Reform Act to reduce the quantity of the ever-increasing number of prisoner lawsuits).

Nevertheless, given the totality of applicable extraordinary circumstances, and specifically, because the district court did not credit Davis’s attempts to obtain legal representation, I agree that the final judgment must be reversed and the case remanded.


author: POSNER, Circuit Judge.

text:
    Alexis VELJKOVIC and Nicholas Dimic, Plaintiffs-Appellants, v. CARLSON HOTELS, INC. and Rezidor Hotel Group AB, Defendants-Appellees.
    No. 16-3723
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 2017
    Decided May 23, 2017
    Robert James Pavich, Attorney, PA-VICH LAW GROUP P.C., Chicago, IL, David Michael Cialkowski, Charles S. Zimmerman, Attorneys, ZIMMERMAN REED LLP, Minneapolis, MN, for Plaintiffs-Appellants.
    Moxila A. Upadhyaya, J. Douglas Bal-dridge, Katherine M. Wright, Attorneys, VENABLE LLP, Washington, DC, Kir-stin Beth Ives, Attorney, FALKENBERG FIEWEGER & IVES LLP, Chicago, IL, for Defendant-Appellee Carlson Hotels, Inc.
    William Michael, Jr., Christopher Com-stock, J. Gregory Deis, Attorneys, MAYER BROWN LLP, Chicago, IL, for Defendant-Appellee Rezidor Hotel Group AB.
    Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
   POSNER, Circuit Judge.

This suit is about a historic building in Belgrade, the capital of Serbia, called the Old Mill, and its architectural renovation and expansion in 2013 to become a Radis-son Blu hotel. The lead plaintiff, Alexis Veljkovie, is a U.S. citizen of Serbian extraction who lives in Illinois. His co-plaintiff, Nicholas Dimic, is a Canadian at present living in Paris because he’s a member of the Canadian diplomatic mission to France. The defendants are Carlson Hotels, Inc., a Minnesota company, and Rezi-dor Hotel Group AB, a Swedish company whose principal place of business is Brussels. Rezidor is owned by Carlson Hotels, however—the two companies do business together under the name Carlson Rezidor Hotel Group; and so we’ll treat both defendants as one and call it Carlson.

Although Carlson owns a hotel in Chicago, the entire subject of this suit is a property in Belgrade known as the “Old Mill” property. Built in 1902, the Old Mill is a historic steam mill that the plaintiffs claim belonged to their ancestors. It was confiscated by Tito shortly after he became the ruler of Yugoslavia (which contained Serbia, now an independent country, as are the other former Yugoslavian states—Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Kosovo, and Slovenia) in 1945. No compensation was paid the owners of the Old Mill when the government confiscated it. Indeed, Tito’s government declared the plaintiffs ancestors enemies of the state for having produced beer for the occupying Nazis during World War II and helped terrorists elude capture (accusations disputed by the ancestors), and the new government sentenced those of the ancestors who were still living to hard labor.

The nationalized Old Mill remained in government possession until, during the rule of Slobodan Milosevic (president of Serbia from 1989 to 1997 and of Yugoslavia from 1997 to 2000), corrupt government bureaucrats 'sold the Old Mill to private land developers. Through various transfers, it ended up being owned by a firm in Belgrade named Prigan Holding.

In or around 2011, the plaintiffs allege, Carlson began planning with Prigan Holding to retrofit the Old Mill property for a hotel. As a result of the retrofitting, the Old Mill became the site of a four-star, multi-million-dollar Radisson Blu Hotel complex that adds many modern elements to the Old Mill’s industrial frame. See Graft, “Old Mill Hotel Belgrade,” http:// graftlab.com/portfolio_page/old-mill-hotel-belgrade/ (visited May 12, 2017). Carlson doesn’t own the hotel or the property it sits on—Prigan Holding does—but Carlson is the licensor of the Radisson Blu brand, and a subsidiary of Carlson participates in the management of the hotel.

Since about 2000—ten years before the construction of the new hotel—the plaintiffs’ families have been frantically endeavoring to recover their rights over the Old Mill.' In 2009 the family secured a major victory when a Serbian court annulled the declaration of the Veljkovie family to have been enemies of the state, ruling that the convictions of the family members had been the result of “staged trials” designed to deprive them of their property. (We don’t know whether members of the Dimic family, the co-plaintiff, have been similarly rehabilitated.)

The plaintiffs claim to be entitled not only to rights over the Old Mill but also to damages for the use of the property by Carlson and Prigan. The plaintiffs sued Carlson in federal district court in Illinois (basing jurisdiction on diversity of citizenship), charging Carlson with trespass, conversion, conspiracy, unjust enrichment, constructive trust, and violation of the Minnesota Deceptive Trade Practices Act, Minn. Stat. Ann. § 325D.44.

Early in the district court proceeding the defendants told the judge that they’d submit to the jurisdiction of the Serbian Restitution Agency (SRA), which they said was empowered by a 2011 Serbian law called the “Law on Property Restitution and Compensation” (Restitution Act for short) to determine the plaintiffs’ rights in the Old Mill property, including improvements, notably the hotel. The district judge, concluding that Serbia was a more appropriate site for the litigation than Chicago, dismissed the suit on the ground of forum non conveniens. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). He noted that Carlson had consented to the SRA’s exercising jurisdiction over its dispute with the plaintiffs and had even agreed not to challenge any determination by the SRA that might be adverse to Carlson. The judge further noted that given the location of the hotel at issue in the case (Belgrade), Serbian law was bound to play a large (indeed the dominant) role in the adjudication and is not a body of law with which American lawyers and judges are familiar.

The plaintiffs appeal, arguing that their “family interest” in the Old Mill entitles them to sue for damages to or restoration of the property. And it’s true that then-ancestors were treated unjustly by the governments of Tito and Milosevic. But the plaintiffs have produced no documentary evidence that they have inherited the land, and as we said in In re African-American Slave Descendants Litigation, 471 F.3d 754, 759 (7th Cir. 2006), “When a person is wronged he can seek redress, and if he wins, his descendants may benefit, but the wrong to the ancestor is not a wrong to the descendants. For if it were, ... a person whose ancestor had been wronged a thousand years ago could sue on the ground that it was a continuing wrong and he is one of the victims.”

The plaintiffs are not seeking damages for old wrongs against their ancestors, however, but just for wrongs done to them, the plaintiffs, after 2009, the date of the Serbian court judgment that rehabilitated Veljkovic’s ancestors. They allege that Carlson, knowing the family was on the brink of recovering the Old Mill, colluded with Prigan Holding to frustrate their efforts. But this is a dispute more appropriately addressed by the Serbian Restitution Agency than by the federal district court in Chicago. Although one plaintiff, Veljko-vic, is an American citizen and a resident of Illinois (the other being a citizen of Canada but a resident of Paris), no aspect of the plaintiffs’ dispute with the defendants has any relation to Illinois. Carlson is a Minnesota resident that maintains hotels in Illinois (one in Chicago, as we noted earlier) but nothing connected to this lawsuit, and its subsidiary Rezidor, the other defendant, is a Swedish company that also has no presence in Illinois. See Daimler AG v. Bauman, — U.S.-, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014).

As for the alternative decider of the dispute between the parties—the SRA— it’s true it’s not a court; but nonjudicial modes of dispute resolution are common, and proper if adequate, as they often are, see, e.g., Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001), and no reason has been given us to doubt the adequacy of the SRA—an agency created to make reparations to persons (and their successors) whose land had been confiscated by Tito. The plaintiffs argue that the SRA lacks jurisdiction over Carlson, but the Restitution Act defines a party as anyone “with a legal interest.” They further complain that the SRA’s remedies are so meager as to amount to “no remedy at all,” but the Act authorizes the SRA to give money reparations in the form of Serbian bonds, to return commercial buildings, or to supervise profit-sharing arrangements as appropriate. Those are substantial remedies.

The judgment of the district court is

Affirmed.


text:
    Ricardo SANCHEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
    No. 17-1673
    United States Court of Appeals, Seventh Circuit.
    Submitted May 5, 2017
    Decided May 24, 2017
    Tiffany Danielle Lipscomb-Jackson, Attorney, Jones Day, Columbus, OH, for Petitioner.

      Joseph A. O’Connell, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
    Before BAUER, POSNER, and FLAUM, Circuit Judges.
   POSNER, Circuit Judge.

Before us is a petition for review of the refusal of the Board of Immigration Appeals to reopen its order removing (i.e., deporting) the petitioner, Ricardo Sanchez, and a motion by the petitioner to stay his removal pending a definitive ruling on his petition, and finally a statement by the Department of Justice opposing both the petition and the motion.

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal for nonpermanent residents. See 8 U.S.C. § 1229b(b). To obtain that relief he had to show that he had been physically present in the United States for at least 10 years and that during that period he was a person of good moral character. Id. He also had to establish that his removal would result in “exceptional and extremely unusual hardship” to his U.S.-citizen children. Id. (He has three children, ages eight years, six years, and fifteen months, and lives with them and his wife, who also lacks legal-resident status.)

He testified that he was the primary breadwinner for his family, having worked at the same pizza restaurant for the past eighteen years, and that he feared that his removal would wreak extreme hardship on his children because he wouldn’t be able to provide for his family with the wages that he would earn in Mexico. He admitted having been convicted four times in the past sixteen years of driving under the influence, and that he had twice violated conditions of his bond.

The immigration judge concluded that because of the DUI convictions Sanchez had failed to demonstrate good moral character. The immigration judge also concluded that Sanchez had failed to establish that his removal would result in exceptional and extremely unusual hardship for his children, because he was unable to answer questions about whether his family would follow him to Mexico. And so the immigration judge denied the application for cancellation of removal.

Sanchez appealed to the Board of Immigration Appeals, which, agreeing with the immigration judge, dismissed the appeal. Sanchez filed a timely motion with the Board to reopen his appeal; represented by new counsel, he argued that his original counsel had failed to prepare him for his hearing before the immigration judge. As a result he had failed to testify that his two older children are native English speakers whp speak little Spanish; that his third child, who had not yet been born at the time of the removal hearing, has been diagnosed with delayed motor development, requiring three months of weekly physical therapy; and that he had filed tax returns for the preceding several years. Again the Board rejected his appeal, precipitating the petition and motion now before us for resolution.

There is a threshold question whether this court has jurisdiction to review the denial of Sanchez’s motion to reopen, given that we would not have jurisdiction over the underlying request for relief—cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But we do have jurisdiction to review questions of law. 8 U.S.C. § 1252(a)(2)(D). And in Mata v. Lynch, — U.S. -, 135 S.Ct. 2150, 2155, 192 L.Ed.2d 225 (2015), the Supreme Court said that “whenever the Board [of Immigration Appeals] denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision.” And the First Circuit, citing Mata, has asserted jurisdiction over a motion to reopen in a case where the petitioner, as in the present case, was seeking a form of discretionary relief (a waiver under 8 U.S.C. § 1182(h)) from removal that would not otherwise be reviewable by the court. Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015). The government has not responded to Sanchez’s invocation of Mata in the present case.

Assuming as we do that we have jurisdiction to review the Board’s denial of Sanchez’s motion to reopen, we shall exercise it, and order Sanchez’s removal stayed pending our review of the Board’s denial of his motion for reconsideration. The Board noted that Sanchez had attached to his motion new evidence in support of his ineffective-assistance-of-counsel claim, including affidavits from Sanchez and others, information about his U.S.-citizen children, and records pertaining to his criminal history. The Board concluded, but without explanation, that none of the evidence “would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.” Although the Board is not required “to write an exegesis on every contention” of an alien fighting removal, a blanket rejection of all the alien’s evidence precludes meaningful review of its decision. Ji Cheng Ni v. Holder, 715 F.3d 620, 625-30 (7th Cir. 2013).

The government also failed to respond to Sanchez’s argument that he and his family will suffer irreparable harm if he is removed to Mexico before his petition to reopen the removal proceeding is resolved. See Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). He is his family’s primary breadwinner, supporting his wife and their three young children. Sanchez expresses concern that he won’t be able to support his family, who are expected to remain in Ohio, with whatever wage he can make in Mexico, and that his youngest son will be unable to continue with the therapy he needs if Sanchez’s wife is forced to go back to work to support the family. He further argues that his removal should not be a priority for the Department of Homeland Security because the decision to remove him was not based on his criminal convictions.

Given the irreparable harm that Sanchez’s removal could inflict on his minor U.S.-citizen children, we have decided to stay the order of removal until we rule on his petition for review of the decision of the Board of Immigration Appeals denying his motion to reopen.

So ordered.


author: GRUENDER, Circuit Judge.

text:
    Shawn ROYAL; Regina Royal, Plaintiffs-Appellants v. MISSOURI & NORTHERN ARKANSAS RAILROAD COMPANY, INC.; RailAmerica, Inc.; Genesee & Wyoming, Inc., Defendants-Appellees
    No. 16-3687
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 6, 2017
    Filed: May 22, 2017

      Counsel who represented the appellant was Chester Harris Lauck of Little Rock, AR.
    Counsel who represented the appellee was Joseph P. McKay, of Little Rock, AR., Martin Aaron Kasten of Little Rock, AR.
    Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
   GRUENDER, Circuit Judge.

Shawn Royal, a North American Railway Services (“NARS”) employee, and his wife, Regina Royal, sued Missouri & Northern Arkansas Railroad Company (“MNA”) for injuries he sustained while working on MNA’s railroad tracks. They sought relief pursuant to the Federal Employers’ Liability Act (“FELA”) and under Arkansas negligence law. The district court granted MNA’s motion for summary judgment, and the Royals appealed. For the reasons discussed below, we affirm.

In February 2012, NARS entered into a Master Service Agreement with RailAmer-ica Transportation Corporation (“RailAm-erica”) to provide track-related services to RailAmeriea’s affiliated and subsidiary railroads. At the time, MNA was a wholly owned subsidiary of RailAmerica. The Agreement stipulated that NARS “is not an agent, representative, or employee of [RailAmerica] or any of its Railroads, but rather is an independent contractor.” The Agreement also stated that NARS “shall be responsible for all actions of its employees, subcontractors, agents and representatives” while working at the railroad sites and that RailAmerica and its subsidiaries had the right to inspect and test NARS’s work and direct NARS to make corrections as needed.

NARS employed Shawn Royal to operate a ballast regulator and sent him to perform maintenance work at several different railroad locations. NARS provided Royal with safety training and equipment instruction, furnished his personal protective and service equipment, and was responsible for all of his compensation. Pursuant to his employment with NARS, Royal did maintenance work on MNA’s railroad tracks, which involved operating a machine that picked up and spread ballast, the stone or material placed around railroad tracks that provides structural support, drainage, and erosion protection. While working as a NARS employee on MNA’s railroad tracks, Royal was required to abide by RailAmerica-MNA safety guidelines. For example, the safety guidelines directed NARS employees to refrain from drug or alcohol use while on the job. Furthermore, for certain forms of railroad maintenance work, the safety guidelines mandated job briefings with MNA employees or for an MNA employee to be present. An MNA employee would also coordinate locations and schedules for work assignments. Nonetheless, Royal’s chain of command consisted only of NARS employees, and NARS maintained sole authority to discipline or fire Royal. While Royal testified that MNA often told him to “hurry up,” he also stated that MNA did not rush him on the day of the incident and never directed or controlled how he was to perform his work.

On September 25, 2012, Royal was operating his ballast regulator on MNA’s railroad tracks when his machine picked up and struck a piece of “rip-rap,” a large rock mixed in with the smaller ballast. In certain areas around railroad tracks, rip-rap is commonly placed for structural integrity. However, rip-rap can also be dangerous because if it is pulled onto the railroad tracks, a ballast regulator may run over it, abruptly stopping the machine and injuring the driver. Royal often en- ■ countered rip-rap while working on his ballast regulator; was trained to spot it; and had struck a piece three weeks prior, bringing his machine to a sudden stop. This time, Royal struck the rip-rap and was thrown forward, causing back injuries.

The Royals sued MNA claiming that MNA supervised and controlled Shawn Royal’s work, and as such, he was MNA’s employee and entitled to hold MNA liable under FELA. Additionally, the Royals alleged that MNA was liable for negligently placing rip-rap in the ballast section near its railroad tracks. The district court granted MNA’s motion for summary judgment, and the Royals now appeal.

We review a district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party and giving the non-moving party the benefit of reasonable inferences evident from the record. Francisco v. Burlington N. R.R. Co., 204 F.3d 787, 789 (8th Cir. 2000). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Royals challenge the district court’s grant of summary judgment on both the FELA and Arkansas negligence claims.

FELA allows employees of interstate railroads to recover against railroads for injuries sustained in the course of employment. Cowden v. BNSF Ry. Co., 690 F.3d 884, 889-90 (8th Cir. 2012). FELA states that “[ejvery common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” 45 U.S.C. § 51. Thus, in order to maintain a FELA action against MNA, the Royals must demonstrate that Royal was employed by MNA.

While the Royals concede that Royal was formally an employee of NARS, not MNA, they are correct that our inquiry does not end there. In Kelley v. Southern Pacific Co., the Supreme Court noted that for FELA purposes, “employment” describes a master-servant relationship “determined by reference to common-law principles.” 419 U.S. 318, 323, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974). Under the common law, a plaintiff can establish employment with a railroad carrier even while nominally employed by another if he can show he is (1) a borrowed servant, (2) a dual servant, or (3) a subservant. Id. at 324, 95 S.Ct. 472. Determining whether a plaintiff constitutes a borrowed servant, dual servant, or subservant turns on whether the railroad controlled or had the right to control the plaintiffs performance of his job. Vanskike v. ACF Indus., Inc., 665 F.2d 188, 198-99 (8th Cir. 1981) (citing Kelley, 419 U.S. at 322-26, 95 S.Ct. 472).

Royal does not qualify as MNA’s employee because the evidence shows that NARS was the sole entity that had the right to control his work. Royal’s chain of command consisted only of NARS employees. NARS hired him, trained him, and sent him to do maintenance work on railroads. NARS was responsible for all of Royal’s compensation and maintained sole authority to discipline or fire him. Furthermore, NARS provided all safety training and equipment instruction to Royal and furnished all his personal protective and service equipment. Royal responds that MNA nonetheless controlled or had the right to control his work because MNA employees often told him. to “hurry up,” he was required to abide by RailAmerica-MNA safety guidelines, MNA employees inspected his work, and an onsite MNA employee coordinated locations and schedules for work assignments. These facts, however, are immaterial because they would not allow a reasonable jury to find that MNA controlled or had the right to control Royal’s work.

First, Royal’s testimony that MNA employees told him to hurry up is not a material fact when examined against the backdrop of his entire testimony. Elsewhere, Royal testified that nobody rushed him on the day of the incident and that MNA never directed him on how to operate his ballast regulator. Thus, Royal’s lone reference to being hurried is not enough to allow a reasonable jury to find that MNA controlled or had the right to control Royal’s work. See Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (“A mere ‘scintilla of evidence’ is insufficient to defeat summary judgment.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))).

Second, the mere existence of safety guidelines does not suggest that MNA had the right to control Royal’s work. The obligation to conform to safety requirements was a “mutually agreed upon practice[ ] that merely insured worker and premises safety.” Campbell v. BNSF Ry. Co., 600 F.3d 667, 669, 674 (6th Cir. 2010) (holding that adherence to a railroad’s safety protocols is not enough to show a contractor’s employees were railroad employees). The agreement to abide by certain safety regulations is a reasonable request necessary to safeguard against dangerous work and does not constitute control or supervision. See id. at 674.

Finally, MNA’s inspection of NARS’s and Royal’s work and its coordination of locations and schedules for work assignments are likewise insufficient to indicate that MNA had the right to control Royal’s work. “[MJinimum cooperation necessary to carry out a coordinated undertaking ... cannot amount to control or supervision,” Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1, 6, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963) (citation omitted), because evidence of contacts between a railroad’s employees and a contractor’s employees “may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation,” Kelley, 419 U.S. at 329, 95 S.Ct. 472. As a result, “[t]he mere fact that a railroad reserves the right to assure performance in accordance with the specifications of the contract does not render [the] contractor a railroad employee.” Morris v. Gulf Coast Rail Grp., Inc., 829 F.Supp.2d 418, 424 (E.D. La. 2010). Accordingly, we conclude that no reasonable jury could find that MNA controlled or had the right to control Royal’s work and therefore affirm the district court’s grant of summary judgment on the Royals’ FELA claim.

The Royals next assert that the district court erred in dismissing their claim that MNA negligently placed rip-rap in the ballast section near its railroad tracks. We apply Arkansas law and “are bound by decisions of the Arkansas Supreme Court.” See Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014) (quotation omitted). In order to establish a prima facie case of negligence under Arkansas law, “a plaintiff must show that damages were sustained, that the defendant breached the standard of care, and that the defendant’s actions were the proximate cause of the damages.” Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658, 661 (1997). “The issue of whether a duty exists is always a question of law, not to be decided by a trier of fact. If no duty of care is owed, summary judgment is appropriate.” Lacy v. Flake & Kelley Mgmt., Inc., 366 Ark. 365, 235 S.W.3d 894, 896 (2006) (citations omitted).

“[A]n employer of an independent contractor owes a common law duty to the contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions.” Jackson v. Petit Jean Elec. Co-op., 270 Ark. 506, 606 S.W.2d 66, 68 (1980). This duty, however, “does not contemplate a duty to warn of obvious dangers which are an integral part of the work the contractor was hired to perform.” D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254, 262 (2002). The Royals do not disagree with these statements of law or even MNA’s contention that rip-rap is an obvious danger in this line of work. The Royals do claim, however, that the dangers posed by rip-rap in this case are not obvious because MNA negligently placed rip-rap in a section of the tracks where it did not belong. We are not persuaded by their argument.

In Chew v. American Greetings Corp., we applied an Arkansas Supreme Court case, D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002), and found that an employer of independent-contractor electrical workers owed no duty to warn of the danger in approaching a transformer with improper equipment because the work necessarily implicated these obvious hazards. 754 F.3d at 639. The plaintiffs argued that the defendant failed to warn them of the “unique nature of its transformers, [which] caused [the plaintiffs] incorrect assumptions about the [transformer’s voltage].” Id. at 635. We held that “though some details about [the] transformers may have been hidden, ... the ultimate hazard the transformer posed was obvious, and the contractors retained the ultimate responsibility to assess these risks.” Id. at 639 (“[The] duty to warn of latent or hidden dangers .... does not encompass an obligation to warn of the latent characteristics of an obvious hazard that arises because of the nature of the contractor’s work”).

This logic applies here with equal force. The dangers posed by rip-rap were obvious. Royal testified that he was trained to operate his machine in an area with rip-rap, that he had noticed there was rip-rap along the railroad in the area where he was operating, that it was a common occurrence to pull rip-rap from outside the rails to inside the rails, and that he had previously struck a piece of rip-rap on this same MNA railroad line. Thus, “[t]hough some details about [the rip-rap] may have been hidden, ... the ultimate hazard [the rip-rap] posed was obvious, and [Royal] retained the ultimate responsibility to assess these risks.” See id. at 639. We determine that MNA did not owe Royal a duty to warn of the well-known dangers of rip-rap and that the Royals’ negligence claim therefore fails as a matter of law.

Accordingly, we affirm the district court’s grant of summary judgment.

      . The Honorable Susan O. Hickey, United States District Judge for the Western District of Arkansas.


author: MURPHY, Circuit Judge.

text:
    Donna WILLIAMS, Plaintiff Linda Jenkins, Plaintiff-Appellee v. Frederick P. TUCKER, Judge, in his Official Capacity and in his Individual Personal Capacity, Defendant-Appellant Kevin Shoemaker, Sheriff, in his Individual Personal Capacity, Defendant
    No. 15-3676
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 11, 2017
    Filed: May 23, 2017

      Counsel who appeared on the brief and presented argument on behalf of the appellant was H. Anthony Relys, AAG, of Saint Louis, MO.
    Counsel who appeared on the brief and presented argument on behalf of the ap-pellee was Robert Herman, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Edward Wells, of Saint Louis, MO.
    Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
   MURPHY, Circuit Judge.

Linda Jenkins was reduced to part time employment as the bailiff in a county courthouse shortly after the election of Frederick Tucker as presiding circuit judge. Jenkins sued Tucker and the county sheriff, alleging that she had been unlawfully retaliated against for supporting the losing candidate for presiding judge. The district court granted summary judgment to the sheriff but denied it to Tucker, who filed this interlocutory appeal. We affirm.

I.

Linda Jenkins began working as a deputy sheriff in Macon County, Missouri in 1998. Within a year she was working two part time positions: both as a road deputy patrolling the county and as a bailiff providing security in the Macon County courthouse located in Missouri’s 41st judicial district. Jenkins began working full time as a bailiff in 2008, while remaining a commissioned deputy sheriff. The presiding circuit judge arranged for her salary to move from the sheriff’s budget to the court budget “to ensure that she would be available for courtroom security at all times as the Courts ... were in session.”

This presiding circuit judge retired in early 2011, and the governor appointed Frederick Tucker to fill the vacancy. Tucker ran for reelection in 2012 against associate circuit judge Philip Prewitt. Jenkins supported Prewitt in the election and had his campaign sign placed on her property. Tucker won the November 2012 election, however, and reportedly told Jenkins, who was still working full time as the court’s bailiff, that he “wantfed] somebody that supports [him]” working for him.

As presiding circuit judge, Tucker was responsible for approving the budgets for the court and the sheriff. When he transmitted the budgets to the county commis-sionérs for approval shortly after the election, he moved Jenkins’ salary from the court budget and placed it back into the sheriffs budget without notifying Jenkins. The county commissioners then decreased the sheriffs personnel budget by $18,869.59, an amount slightly less than Jenkins’ annual salary.

No minutes from the county commissioner meeting indicated any discussion of the bailiff position or its potential impact on the requested budgets. The newly elected sheriff, Kevin Shoemaker, said that the commissioners had explained to him that Jenkins should be included in his budget and could work as either a part time bailiff or a full time road deputy. Sheriff Shoemaker then gave Jenkins the option of taking one of those two positions or retiring, and Jenkins chose to work as a bailiff part time. This change in her employment status resulted in Jenkins losing her health insurance coverage as well as her social security and retirement benefits.

Jenkins brought this action under 42 U.S.C. § 1983 against Tucker and Shoemaker in their individual and official capacities for retaliating against her for having supported associate judge Prewitt in the election. The defendants moved for summary judgment on the basis of qualified immunity. The district court granted Shoemaker summary judgment after concluding that Jenkins had failed to present evidence that Shoemaker knew she had supported Prewitt or taken any retaliatory action against her. The district court denied Tucker summary judgment after concluding that Tucker’s statement that he “wants somebody who supports [him]” provided direct evidence of retaliatory motive. The court also concluded that whether the budget transfer caused an adverse employment action presented a material issue of fact. Tucker appeals the denial of qualified immunity.

II.

We review “the denial of summary judgment based on qualified immunity de novo, viewing all evidence in a light favorable to the non moving parties.” Shockency v. Ramsey Cty., 493 F.3d 941, 948 (8th Cir. 2007). A state official is entitled to summary judgment on the basis of qualified immunity unless (1) the “facts taken in the light favoring the nonmoving party show that the official’s action violated a constitutional right” and (2) that right “was clearly established” at the time of the violation. Id. at 947. On such an interlocutory appeal, our review is limited to determining purely legal issues such as “whether a reasonable fact-finder could find a violation of plaintiff’s] rights” and “whether the law establishing the violation was clearly established at the time in question.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). We lack jurisdiction to review issues such as “which facts a party may, or may not, be able to prove at trial.” Id. at 339 (quoting Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).

A.

Jenkins alleges that she was unlawfully retaliated against for supporting associate circuit judge Prewitt for the presiding circuit judge. To avoid summary judgment on that retaliation claim, she must present “direct evidence” of retaliation or follow “the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 964-65 (8th Cir. 2006). Under the burden shifting framework, a plaintiff must “set forth a prima facie case in order to shift the burden of producing a legitimate, [nonretaliatory] reason for the employment decision to the employer.” Id. If the employer provides a nonretaliatory reason, “then the employee must prove that the reason is a pretext for the [retaliation].” Id. at 965. Here, we need not determine whether Jenkins has provided “direct evidence” of retaliation because she has put forward a claim by means of the burden shifting analysis.

To establish a prima facie case of retaliation, a plaintiff must show that “she participated in a protected activity, that an adverse employment action was taken against her, and that there was a causal connection between the protected activity and the adverse employment action.” Graning v. Sherburne Cty., 172 F.3d 611, 615 (8th Cir. 1999). In this case the parties agree that Jenkins has shown that she engaged in protected speech by supporting associate judge Prewitt in the election. They disagree, however, as to whether she has shown that she suffered an adverse employment action retaliating for her protected speech.

To show an adverse employment action, a plaintiff must establish that she experienced “a material change in the terms ... [of] employment” or “a tangible change in duties or working conditions that constitute a material disadvantage.” Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002) (citations omitted). Here, Tucker reacted to Jenkins’ support of a rival candidate by moving her salary from the court budget to the sheriffs budget. After that adjustment the county commissioners decreased the sheriffs personnel budget by a little less than Jenkins’ salary. Jenkins was then given the option of retiring, working part time as a bailiff, or working full time as a road deputy. She chose part time employment, and thereafter lost her health insurance coverage as well as her social security and retirement benefits. The loss of all these benefits amounted to material changes in the terms of her employment. See Meyers v. Starke, 420 F.3d 738, 744 (8th Cir. 2005) (stating that changes in “salary, benefits, or responsibilities” exemplify adverse employment actions).

Tucker argues that Jenkins could have accepted the road deputy position and not experienced an adverse employment action. Although “a purely lateral transfer, that is a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action,” there is a factual dispute in this case as to whether serving as a road deputy would amount to a lateral transfer or a demotion. See Jones, 285 F.3d at 714 (quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)). If the record is construed in the light most favorable to Jenkins, the road deputy position involved major changes in working conditions. It was held by many more deputy sheriffs and was less prestigious. Such factors may show that the transfer was a demotion and thereby an adverse employment action. See Tadlock v. Powell, 291 F.3d 541, 546-47 (8th Cir. 2002). Whether Jenkins would have remained working part time as a bailiff or full time as a road deputy, either change could have amounted to an adverse employment action.

Jenkins has also provided evidence from which a reasonable fact finder could infer that Tucker was causally connected to that adverse employment action. Often “the issue of causal connection is ... fact-intensive” and best left for the ultimate fact finder. See Lyons v. Vaught, 781 F.3d 958, 963 (8th Cir. 2015). That is the case here. Tucker admitted that he knew there was a Prewitt campaign sign on Jenkins’ property, and the adverse employment action occurred within one month after his allegedly telling Jenkins that he wanted an employee who had supported him. The “timing of [Jenkins’] reassignment coupled with evidence of [Tucker’s] statements” near the time of the reassignment could give rise to an inference of unlawful retaliation. See Meyers v. Neb. Health & Human Servs., 324 F.3d 655, 659 (8th Cir. 2003).

Tucker argues that if Jenkins experienced any adverse employment action, it was because the county commissioners had independently decided to reduce the sheriffs budget. Jenkins has, however, provided circumstantial evidence that Tucker was involved in the county commissioners’ decision to reduce the sheriffs budget. Our review of Tucker’s involvement in that decision is “constrained by the version of the facts that the district court assumed or likely assumed in reaching its decision.” Thompson v. Murray, 800 F.3d 979, 983 (8th Cir. 2015). Here, the district court did not explicitly state how Tucker was involved in the budget reduction beyond that his decision to transfer Jenkins’ salary “started th[e] ball rolling.” The question of the extent of his involvement is therefore determined “by viewing the record in the light most favorable” to Jenkins. See Thompson, 800 F.3d at 983.

In its oral decision, the district court made two comments immediately following its statement that the transfer “started th[e] ball rolling” which, viewing the record in the light most favorable to Jenkins, could support a conclusion that Tucker was involved in the budget reduction decision. First, the court noted that the commissioners and sheriff “mysteriously determined they only needed a part-time bailiff.” From this, the court likely assumed that it was unlikely that the sheriff and county eom-missioners would determine off the record that they needed only a part time bailiff when that decision would most intimately impact the circuit judges. Second, the court noted that the circuit judges were “by statute in charge of the sheriffs hiring and paying of deputies,” further suggesting that Tucker would have been involved in any discussion about a reduction in Jenkins’ bailiff duties. See Mo. Rev. Stat. § 57.230; Gaines v. Grimm, 555 S.W.2d 11, 12-13 (Mo. 1977). Based on these facts, the district court likely assumed for purposes of deciding the motion that Tucker was involved in the decision to change the terms of Jenkins’ employment.

Taking the facts stated and likely assumed by the district court as given, see Johnson, 515 U.S. at 313, 115 S.Ct. 2151, Jenkins has provided evidence of a prima facie case of retaliation and a pretextual explanation for the adverse employment action. Based on those assumed facts, we conclude that Jenkins has provided sufficient evidence for a reasonable fact finder to conclude that Tucker violated Jenkins’ right to support an electoral candidate of her choice.

B.

Tucker argues that even if he violated Jenkins’ First Amendment right to support an electoral candidate, the contours of that right were not clearly established at the time of any such violation. Tucker frames the right at issue as the right to remain a full time court employee, but the issue is properly characterized as whether Tucker impermissibly retaliated against Jenkins by causing her to become a part time employee. It is clearly established “that a government employer cannot take adverse employment actions agamst its employees for exercising their First Amendment rights” by participating in electoral activities. Shockency, 493 F.3d at 948. This right was clearly established at the time of the alleged violation.

III.

For these reasons we conclude that the district court did not err in denying Tucker summary judgment on the basis of qualified immunity.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.

      . We note that our court recently clarified the standard under which such claims should be analyzed. See Thompson v. Shock, 852 F.3d 786, 792 (8th Cir. 2017). Because the parties did not dispute whether Jenkins engaged in protected activity before the district court or on appeal, we see no need to remand for further consideration in light of our decision in Thompson.

      . Given our conclusion that Tucker is not entitled to summary judgment on the basis of qualified immunity, “we need not consider [his] 'inextricably intertwined' argument” regarding the official capacity claim. Shocken-cy, 493 F.3d at 952.