author: MANION, Circuit Judge.

text:
    Donald Lee MCDONALD, Plaintiff-Appellant, v. George ADAMSON, Chaplain, et al., Defendants-Appellees.
    No. 15-1305
    United States Court of Appeals, Seventh Circuit.
    Argued September 22, 2016
    Decided October 17, 2016

      Sarah O’Rourke Schrup, Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Chicago, IL, for Plaintiff-Appellant.
    Frank Henry Bieszczat, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees.
    Before BAUER, POSNER, and MANION, Circuit Judges.
   MANION, Circuit Judge.

In 2013, Illinois state prison inmate Donald McDonald filed what should have been a typical federal constitutional suit under 42 U.S.C. § 1983. McDonald alleged that Defendants Warden Marcus Hardy, Assistant Warden Daryl Edwards, and Chaplain George Adamson were denying his First Amendment free exercise rights as a practicing Muslim. He sought only injunctive relief in the district court.

McDonald’s case hit a procedural snag because three years earlier he had filed a claim for damages based on the same facts in the Illinois Court of Claims. More than two years later, when he had received no decision from the Court of Claims, he filed this case pro se in the district court. After the Court of Claims denied McDonald’s request for relief, the district -court dismissed his federal complaint as barred by res judicata.

On appeal, defendants concede that McDonald’s suit is not barred by res judicata. Therefore, we reverse the judgment of the district court and remand for proceedings in conformity with this opinion. We express no opinion regarding the merits of defendants’ remaining arguments on appeal, which are not properly before the court at this stage.

I. Background

Donald McDonald is an inmate at Stateville Correctional Center in Crest Hill, Illinois. On July 23, 2010,' he filed a complaint in the Illinois Court of Claims against the Illinois Department of Corrections for violation of his free exercise rights. In his complaint, McDonald alleged, inter alia, that Muslim inmates at State-ville are not permitted to attend prayer service each Friday, that prison officials regularly steal Arabic prayer cassette tapes and Muslim prayer rugs, and that Christians are permitted to have more volunteers enter the facility than are Muslims. He .sought a damages award of $5,000 and an order requiring the Department to cease violating his religious rights.

The Court of Claims held a hearing on McDonald’s claims, but it then failed to issue a decision for more than two years. While he was awaiting that decision, McDonald filed this case in the district court on March 14, 2013. His pro se complaint named Chaplain George Adamson, Warden Marcus Hardy, and Assistant Warden Daryl Edwards as defendants in their official capacities. It sought only injunctive relief. Although the factual allegations in the federal complaint differ in some small respects from the Court of Claims filing, McDonald clearly considered it part of the same case he had filed in 2010.

On July 24, 2013, the Court of Claims finally issued a decision in McDonald’s original case. The court rejected all of McDonald’s allegations in a terse two-page order. The order directly addressed only one of McDonald’s factual allegations, stating that evidence indicated that Muslim services occurred each Friday at Stateville unless the facility was on lock-down. Defendants then moved to dismiss the federal complaint, arguing that the Court of Claims order rendered McDonald’s federal complaint barred by res judicata. The district court ■ granted the motion, and McDonald timely appealed.

II. Discussion

We review the grant of a motion to dismiss under Rule 12(b)(6) de novo; we accept all facts pleaded as true and draw all reasonable inferences in McDonald’s favor. Thulin v. Shopko Stores Operating Co., 771 F.3d 994, 997 (7th Cir. 2014).

A. Res Judicata

The doctrine of res judicata, or claim preclusion, “protects the finality” of a judgment and “prevents parties from undermining it by attempting to relitigate the claim.” Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011). Where it applies, it prohibits relitigation not only of claims already decided in a prior proceeding, but also those that could have been litigated in that proceeding based on the same operative facts. Id. To determine whether McDonald’s federal claim is barred by the adverse judgment in the Court o.f Claims, we apply the preclusion law of Illinois. See CFE Grp., LLC v. Firstmerit Bank, N.A., 809 F.3d 346, 351 (7th Cir. 2015).

Defendants are correct to concede that McDonald’s § 1983 claim is not barred. Illinois law affords preclusive effect only to “a final judgment rendered by a court of competent jurisdiction.” Arlin-Golf, LLC v. Vill. of Arlington Heights, 631 F.3d 818, 821 (7th Cir. 2011) (quoting Nowak v. St. Rita High Sch., 197 Ill.2d 381, 258 Ill.Dec. 782, 757 N.E.2d 471, 477 (2001)). The Illinois Court of Claims “is not a ‘Court’ within the meaning of article VI of the Illinois Constitution of 1970.” Klopfer v. Court of Claims, 286 Ill.App.3d 499, 221 Ill.Dec. 876, 676 N.E.2d 679, 683 (1997). It lacks jurisdiction to consider claims based upon a federal statute or the federal or state constitutions. Michaelis v. Ill. Dep’t of Mental Health & Developemental Disabilities, 61 Ill.Ct.Cl. 270, 272 (2008). Therefore, it is not a “court of competent jurisdiction” under Illinois preclusion law. An adverse judgment in the Court of Claims does not bar a subsequent § 1983 claim in federal court based upon the same facts. The district court erred by dismissing McDonald’s complaint as barred by res judicata.

B. Collateral Estoppel

Although they concede that res judicata is inapplicable, defendants argue for the first time on appeal that collateral estop-pel, or issue preclusion, bars relitigation of three of McDonald’s factual allegations. Specifically, defendants contend that the Court of Claims conclusively resolved McDonald’s allegations regarding the lack of weekly Friday Muslim prayer services, stolen prayer rugs, and stolen cassette tapes. They concede that the remaining allegations in the federal complaint are not precluded and must be addressed on remand.

We decline to reach defendants’ collateral estoppel argument. Although they are related, res judicata and collateral estoppel are not the same. See Jones v. City of Alton, 757 F.2d 878, 884 (7th Cir. 1985). Collateral estoppel “refers to the effect of a judgment in foreclosing litigation in a subsequent action of an issue of law or fact that has been actually litigated and decided.” Meyer v. Rigdon, 36 F.3d 1375, 1378 n.l (7th Cir. 1994). Therefore, it is both broader and narrower than res judicata. Collateral estoppel is broader than res judicata because it bars relitigation of facts conclusively determined in a previous proceeding even if that court did not have jurisdiction over the later claim. See Grogan v. Garner, 498 U.S. 279, 284-85, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (explaining that a bankruptcy court in a dischargeability action would give preclu-sive effect to the facts underlying a fraud judgment even though only the bankruptcy court has jurisdiction over the discharge-ability action itself). It is also narrower because res judicata bars any suit involving the same operative facts, even if that specific cause of action was never litigated in the first court. Arlin Golf, 631 F.3d at 821. Thus, res judicata and collateral es-toppel are separate legal doctrines.

Because collateral estoppel is a distinct affirmative defense, defendants bore the burden to raise it in the district court and show that its application is clear on the face of McDonald’s complaint. Adair v. Sherman, 230 F.3d 890, 894 (7th Cir. 2000); see also Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015) (because plaintiffs need not anticipate an affirmative defense, a motion to dismiss on such a ground should fail “[a]s long as there is a conceivable set of facts, consistent with the complaint, that would defeat [the defense]”). By arguing only res judi-cata below, defendants did not attempt to carry this burden with respect to collateral estoppel. We will not affirm a judgment based on an affirmative defense raised for the first time' on appeal. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 327 (7th Cir. 2000).

III. Conclusion

Because the Illinois. Court of Claims lacked jurisdiction to decide McDonald’s federal constitutional claim, the judgment dismissing his complaint is reversed. We decline to address defendants’ collateral estoppel arguments raised for the first time on appeal. The case is remanded to the district court for proceedings consistent with this opinion. On remand, the district court is free to grant McDonald leave to amend his complaint, and defendants may then renew their motion to dismiss.

Reversed and Remanded.

      . Notwithstanding McDonald’s prayer for relief, the Court of Claims actually lacks jurisdiction "to issue injunctive relief that either forbids or compels actions by any State officer or agencies.” Knight v. State of Illinois, 65 Ill.Ct.Cl. 210, 215(2013).

      . McDonald stated in the federal complaint that he “originally filed these claims to the Illinois Court of Claims....”

      . We also leave defendants' mootness argument for resolution on remand. Defendants argue that McDonald's claim regarding lack of weekly Muslim prayer services is now moot. They submit a declaration from Chaplain Adamson stating that weekly services have been offered since January 11, 2016, and a thank you note from McDonald acknowledging the change. Because voluntary cessation of a challenged practice does not deprive the federal courts of jurisdiction to determine its legality, we need not address at this point whether this evidence is sufficient to moot McDonald's claim. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In the event that defendants renew their motion to dismiss, the district court can determine in the first instance whether they have met their “heavy burden” to persuade the court “that the challenged conduct cannot reasonably be expected to start up again." Id.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Becky HOLMAN, Defendant-Appellant.
    No. 15-3414
    United States Court of Appeals, Seventh Circuit.
    Argued September 21, 2016
    Decided October 18, 2016

      Rebecca Taibleson, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Plaintiff-Appel-lee.
    Brian P. Mullins, Attorney, BURKE & MULLINS, Milwaukee, WI, for Defendant-Appellant.
    Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
   FLAUM, Circuit Judge.

Becky Holman pled guilty to conspiracy to distribute heroin and was initially sentenced to thirty-six months in prison. She appealed, and for reasons unrelated to this appeal, we vacated Holman’s sentence and remanded for resentencing. On remand, the district court sentenced Holman to thirty-three months’ imprisonment. Holman now appeals, arguing that the district court procedural^ erred at resentencing by lengthening her prison term to promote rehabilitation from her heroin addiction. For the reasons that follow, we affirm the district court’s sentence.

I. Background

Becky Holman began using heroin to manage pain associated with rheumatoid arthritis. She became addicted, and financed her addiction by dealing in a conspiracy that operated in rural central Wisconsin from 2011 to 2012.

In April 2012, Amalia Henschel died of a heroin overdose. In the course of investigating that death, Wisconsin law enforcement discovered Holman’s heroin distribution ring and found that one of Holman’s co-conspirators had provided Henschel with heroin on the day she died. Several members of the conspiracy identified Holman as a regular participant. On July 28, 2012, law-enforcement agents conducted a controlled purchase of heroin from Holman. Holman was arrested and charged with participating in a drug conspiracy involving one kilogram or more of a mixture containing heroin, which caused a death. See 21 U.SU. §§ 846, 841(a)(1), (b)(1)(A), (b)(1)(C). The government later dropped the causing-death element from § 841(b)(1)(A).

On February 19, 2014, Holman pled guilty to one count of conspiring to distribute heroin. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). At her first sentencing hearing on September 10, 2014, the district court accounted for downward adjustments under the “safety, valve” provision of U.S.S.G. § 5C1.2 and for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). The court then calculated Holman’s final Guidelines sentencing range as fifty-seven to seventy-one months. The district court considered probation inadequate, but found that the Guidelines range was higher than necessary, and sentenced Holman to thirty-six months’ imprisonment. The court stated, among other things, that “the critical thing in this case is the fact that this conspiracy is one that ultimately resulted in the death of someone. I should say someone who was taking heroin supplied by this conspiracy died....And so the Court sees your offense as serious.”

Holman appealed her sentence to this court, and while that appeal was pending, the district court conducted sentencing proceedings for the co-conspirator who had supplied Henschel with heroin on the day she died. In April 2016, at the conclusion of those proceedings, the district court found the government’s evidence insufficient to prove that the co-conspirator’s heroin actually caused Henschel’s overdose. As a result, on June 23, 2015, this Court vacated Holman’s judgment of conviction and remanded for resentencing, so that the district court could re-determine Holman’s sentence without consideration of the death.

At resentencing on October 14, 2015, the district court explained that it would not consider the death in determining Holman’s sentence. The government asked the district court to again impose a thirty-six-month sentence, and Holman asked for probation. Holman noted, among other things, that her addiction resulted from her attempts to alleviate “chronic pain,” and that she had entered a drug treatment program in September 2012 and had not relapsed since that time; She also stated that her incarceration thus far had been at a medical center that did not meet her needs, and asked that “if there’s any need for incarceration, ,.. that the Court indicate that she be housed at a grade-five facility which ,,. is more consistent with her illness.”

The district court considered in turn many of the factors in 18 U.S.C. § 3553(a). It explained that conspiring to distribute heroin is “undoubtedly ... a serious offense,” and that there remained “a need for general deterrence so that others involved in the crime of distributing heroin might think twice.” The court also considered “the needs of the public,” and the need to keep heroin “out of the hands of [potential users].” The court then addressed the defendant’s drug problem, stating:

At this stage, . [t]he Court is not satisfied that Ms. Holman has undergone sufficient treatment for her drug problem.
[Defense counsel] has noted that in his view the Bureau of Prisons by virtue of its placement of Ms. Holman in a level-four facility where little attention was given to her drug problem until sometime in August of this year, consequently, it would—it does seem to me prudent that Ms. Holman receive further treatment and/or counseling so that she can continue with her life unencumbered by a drug addiction. And certainly Ms. Holman needs the tools to cope with the potential of relapse after she is finished with her obligations in this case.

Finally, the district court considered the applicable Guidelines range—fifty-seven to seventy-one months’ imprisonment—and the sentences of Holman’s co-defendants, which ranged from time served to 124 months. The court also noted:

[A] small reduction in the-sentence that was previously imposed is warranted, in part, because Ms. Holman was eligible for safety valve consideration and is in criminal history category one.
Moreover, upon further reflection, more weight should be given to her level of cooperation and the trigger for her involvement in this case.

Consequently, the district court imposed a thirty-three-month prison sentence. It later underscored:

[T]here is a need for Ms. Holman to undergo monitoring of her potential to continue using drugs particularly in light of stressors that may occur. Pain is something that arises sometimes out of the blue, and stressful situations arise as well.
When a person has been addicted as Ms. Holman has been addicted, it is important that' there be counseling and treatment available.

The court asked whether there were any additional matters or arguments that the parties wished to raise, and Holman asked the court to recommend that she be “eligible for the residential drug treatment program. offered by the Bureau of Prisons.” The district court agreed, “inasmuch. as she does have an addiction that should continue to be treated; and it' would be useful in her rehab in preparation for release.”

Holman then objected to the thirty-three-month sentence “in general,” arguing that the distinct court ignored the requirement contained in 18 U.S.C. § 3553(a) that the court impose a sentence that is “sufficient but not greater than necessary,”- The district court responded that the sentence was, in its view, “no greater than necessary under the circumstance,” in light of the Sentencing Guidelines, in order to avoid a disparity with Holman’s code-fendants, and because Holman was responsible for conspiring to distribute one to three kilograms of heroin. The district court elaborated:

And so 'when I look at the distribution of heroin here and the conspiracy to which your client was involved, a sentence of 33 months given Ms. Holman’s addiction take into account her acceptance of responsibility, take into account her debriefing which resulted in her eligibility for the safety valve, and looking at her need for rehab and treatment.
I just cannot come to the conclusion that a probationary sentence such as you have, urged or a lesser sentence would be appropriate given all of the circumstances here.
And as I pointed out, heroin distribution is a serious offense particularly in view of the consequences that flow from using this drug. People need to be chilled from distributing this drug • and using this drug.

Holman objected again, noting that she had not used, drugs since her initial appearance in the case. The district court responded, “So are you suggesting that she not go to a drug facility so I can take that out?” Holman explained that ongoing drug treatment would be appropriate, but contended that her sentence should be shorter because, “as far as a danger to the community, she ha[d] taken a huge step in the right direction,” The district court clarified and concluded:

I’m not suggesting [that] she represents a clear and present danger to the community at this time. I did not suggest that. And if that was suggested by my remarks, I.do want to clarify what I said to make sure it is clear that, no, I’m not suggesting that she is currently a -danger because she represents the potential of going out and reselling.
What I was more concerned about and was trying to address is that the fact that she does-have-a potential of relapsing given her history and the need to make sure that she has the coping skills to handle her personal affairs when she leaves prison and when she goes back into the community where stressors do occur.

Holman responded, “I’m aware of that— I'"think [the] Court made that clear,” and raised no other objections, stating, “That will do it.” Before the hearing ended, Holman again sought the court’s “recommendation that she be admitted to a program,” and the court confirmed that “[t]he recommendation for admission to the 500 Hour Drug Program will be included.” This appeal followed. '

II. Discussion

Holmán claims that the district court improperly lengthened her prison term to promote rehabilitation from her heroin addiction. The Supreme Court in Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), interpreted § 3582(a) of the Sentencing Reform Act to prohibit a district court.from imposing or lengthening a prison sentence to promote an offender’s rehabilitation. 564 U.S. at 327, 333, 131 S.Ct. 2382. However, the Court also held that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs,” nor by “trying to get [a defendant] into an effective drug treatment program.” Id. at 334, 131 S.Ct. 2382.

A. Standard of Review

As an initial matter, the parties disagree on the appropriate standard of review. Holman contends that the district court procedurally erred by “lengthen[ing]” her prison sentence to promote rehabilitation, and de novo review should apply. See, e.g., United States v. Annoreno, 713 F.3d 352, 356 (7th Cir. 2013); United States v. Curly, 595 F.3d 794, 796 (7th Cir. 2010) (“Whether the district court followed proper sentencing procedure is a question of law we review de novo.”) (citation omitted). The government argues, however, that the “plain error” standard of Rule 52(b) applies because Holman lodged no Tapia objection at the time of resentencing. See Fed. R. Crim. P. 52(b); United States v. Seals, 813 F.3d 1038, 1044 (7th Cir. 2016) (explaining that, although “we [generally] review a district court’s application of the Sentencing Guidelines de novo... .[m]ore deference is due ... where an appellant failed to properly raise a claim below”); id. at 1045 (“[Forfeited [issues] are reviewed for plain error.”); United States v. Guajardo-Martinez, 635 F.3d 1056, 1058 (7th Cir. 2011) (“Because the appellant did not raise these objections during the sentencing hearing, we review the decisions for plain error.”) (citation omitted).

We agree that Holman did not raise a Tapia objection before the district court. “To preserve an issue for appellate review, a party must make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection.” United States v. Fluker, 698 F.3d 988, 997 (7th Cir. 2012) (citation and internal quotation marks omitted). Otherwise, “the party is deemed to have waived the issue on appeal.” Id. (citation omitted). At resentencing, Holman asked the court to recommend that she be “eligible for the residential drag treatment program offered by the Bureau of Prisons,” and the court agreed. She then objected “in general” to the sentence as “ignoring] the [§ ] 3553 caveat[] that the sentence shall be sufficient but not greater than necessary,” but did not specify a possible Tapia violation by name or in substance. When Holman noted that she had “been drug-free since before she made her initial appearance ... in this case,” the district court understood her to be referencing her access to a drug treatment program while incarcerated, not the length of her sentence. After Holman clarified that she did need treatment but that she had made progress with respect to not being “a danger to the community,” the district court explained that Holman’s addiction had come up during the hearing not because she posed a danger to the community (as Holman seemed to think), but because Holman could benefit from the drug treatment program. At no point did Holman suggest that the district court was lengthening or imposing her sentence in order to rehabilitate her. Instead, Holman expressed satisfaction with the district court’s explanation, stating, “That will do it.” Holman’s general objection that her sentence was “greater than necessary” thus did not properly preserve an objection under Tapia.

In the alternative, Holman argues that we should consider the alleged Tapia violation to be an “exception” to the district court’s order, which Holman need not have raised below to preserve de novo appellate review. See Fed. R. Crim. P. 51(a) (“Exceptions to rulings or orders of the court are unnecessary.”). “Where the district court has already made a decision and said definitively that it is imposing [a sentence], a defendant need not take an ‘exception’ to preserve the issue for appeal.” United States v. Gabriel, 831 F.3d 811, 814 (7th Cir.2016) (citation omitted); see also United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009) (“[A] litigant [need not] complain about a judicial choice after it has been made. Such a complaint is properly called, not an objection, but an exception.”). “But a district court can announce a tentative decision or view and invite objections. A failure to object in those circumstances can amount to waiver.” Gabriel, 831 F.3d at 814 (citation omitted).

The district court here, after announcing its thirty-three-month sentence, explicitly told Holman, “[I]f you believe that this Court has imposed an illegal sentence or that there are some issues or matters the Court has failed to take into account, you through your counsel may be heard before the Court completes its sentencing hearing.” The district court then asked whether there were “additional matters or arguments that the parties believe the Court has not taken into account fully.” The sentence was not yet definitive, and Holman still had an opportunity to object and potentially affect her ultimate sentence. She did not do so with respect to a possible Tapia violation, and we thus review for plain error.

B. References to Holman’s addiction and rehabilitation

To establish plain error, the defendant must show: “(1) an error; (2) that is plain; (3) that affected his substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Guajardo-Martinez, 635 F.3d at 1059 (quoting United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004)). The government contends that “Holman’s argument fails at the first step, because there is no ‘error’ here.” Holman points to three comments during her resentencing that she argues reveal a Tapia violation.

1. Comment One

First, Holman objects to the following statement by the district court:

In the case of someone such as Ms. Holman, the Court had in the first instance, and still feels in this particular instance, a need to address the defendant’s drug problem. At this stage, . .■. [t]he Court is not satisfied that Ms. Holman has undergone sufficient treatment for her drug problem.
[Defense counsel] has noted that in his view the Bureau of Prisons by virtue of its placement of Ms. Holman in a level-four- facility where little attention was given to her drug problem until sometime in August of this year, consequently, it would—it does seem to me prudent that Ms. Holman receive further treatment and/or counseling so that she can continue 'with her life unencumbered by a drug addiction. And certainly Ms. Holman needs the tools to cope with the potential of relapse after she is finished with her obligations in this case.

Holman claims that this language arose in the context of the district court’s explanation of why a prison sentence was necessary, after the district court considered the Guidelines range and recognized the need for general deterrence and to avoid unwarranted sentencing disparities with similarly situated defendants.. Thus, Holman argues, the district court took Holman’s need for rehabilitation, into account in imposing the thirty-three-month prison sentence.

In context, however, it- is clear that the district court’s comment acknowledges Holman’s earlier request that “she be housed at a grade-five facility which ... is more consistent with her illness.” Immediately before the comment at issue, the court had referenced “the needs of the public and potential users of illicit drugs,” and the “need to keep heroin out of the hands of individuals who might ... prolong their addiction.” The district court then logically moved to considering the defendant’s own addiction and the opportunity for treatment while incarcerated. It revisited the issue later on, noting that “[w]hen a person has been addicted as Ms. Holman has been, addicted, it is important that there be counseling and treatment available.” The Supreme Court explicitly stated in Tapia that it did “not disapprove [of courts],... discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” 564 U.S. at 334, 131 S.Ct. 2382. That is exactly what the district court did at sentencing. It referred to defense counsel’s position that Holman ought to be placed somewhere with an effective drug treatment program, without discussing the length of time that one needs to qualify for or complete the program. See United States v. Lucas, 670 F.3d 784, 795 (7th Cir. 2012).

2. Comment Ttvo

Second, Holman objects to the district’s court explanation of why the thirty-three-month sentence was “appropriate .given all of the circumstances here,” which it provided after Holman objected to the sentence under § 3553(a). The court said:

And so when I look at the distribution of heroin here and the conspiracy to which your client was involved, a sentence of 33 months given Ms. Holman’s addiction take into account her acceptance of responsibility, take into account her debriefing which resulted in her eligibility for the safety valve, and looking at her need for rehab and treatment.

Holman argues that the district court thus improperly considered “her need for rehab and treatment” as an aggravating factor in its decision to impose a prison sentence, rather than granting her request for probation.

In fact, the resentencing record shows that the district court considered Holman’s “need for rehab and treatment” as one of the mitigating factors in her case, along with her “acceptance of responsibility,” and the “debriefing” that resulted in her “eligibility for the safety valve.” This is consistent with Holman’s own statement earlier in the proceeding that her addiction resulted from attempts to alleviate chronic pain, as well as the district court’s prior explanation that Holman’s eligibility for the safety valve, low criminal history category of one, level of cooperation, and “the trigger for her involvement in this case” (that is, her addiction to heroin as a painkiller) together warranted a sentence shorter than thirty-six months.

S. Comment Three

Third, Holman objects to the following portion of the district court’s response to her § 3553(a) objection:

What I was more concerned about and was trying to address is the fact that she does have a potential of relapsing given her history and the need to make sure that she has the coping skills to handle her personal affairs when she leaves prison and when she goes back into the community where stressors do occur.

For the reasons already discussed, the district court’s statement merely explains that Holman’s addiction had come up during the hearing because Holman could benefit from the drug treatment program, which the district court had just referenced a moment earlier. Whereas the sentencing court in Tapia had stated that .the defendant needed to be “in long enough” to get drug treatment, 564 U.S. at 322, 131 S.Ct. 2382, here, the district court’s language does not suggest that it lengthened or imposed Holman’s sentence in order to ensure that Holman qualified for or, completed a treatment program.

In sum, read in context, none of these comments alone or together indicate that the district court lengthened or imposed Holman’s sentence to facilitate her rehabilitation. The court’s references to Holman’s addiction either explained the opportunities and benefits of Holman serving her sentence at a facility with effective addiction treatment, see Lucas, 670 F.3d at 795, or considered her addiction as a mitigating factor, neither of which is prohibited under Tapia. Moreover, any ambiguity with respect to the district court’s statements is debatable at most and thus does not rise to level of plain error. See United States v. Ramirez, 783 F.3d 687, 694 (7th Cir. 2015) (“[Plain error] cannot be subtle, arcane, debatable, or factually complicated.”) (citation omitted); United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005) (“Under a plain error standard, an error must be clear or obvious ....”) (citation omitted).

III. Conclusion

For the foregoing reasons, we Affirm the judgment and sentence of the district court.


author: BLAKEY, District Judge.

text:
    Kathleen A. WAGNER, Plaintiff-Appellant, v. TEVA PHARMACEUTICALS USA, INC., et al., Defendants-Appellees.
    No. 15-2294
    United States Court of Appeals, Seventh Circuit.
    Argued February 12, 2016
    Decided October 18, 2016

      Kathleen A. Wagner, Attorney, Wagner Law Offices, S.C., Madison, WT, for Plaintiff-Appellant.
    Jeffrey F. Peck, Linda E. Maichl, Joseph P. Thomas, Attorneys, Ulmer & Berne LLP, Cincinnati, OH, Bruce Arthur Schultz, Attorney, Coyne, Schultz, Becker & Bauer, S.C., Madison, WI, Devin S. Anderson, Attorney, Kirkland & Ellis LLP, Washington, DC, Jay P. Lefkowitz, Steven J. Menashi, Attorneys, Kirkland & Ellis LLP, New York, NY, for Defendants-Appellees.
    Before WOOD, Chief Judge, ROVNER, Circuit Judge, and BLAKEY, District Judge.

       Of the Northern District of Illinois, sitting by designation.

   BLAKEY, District Judge.

Appellant Kathleen Wagner appeals the decision of the district court granting judgment on the pleadings in favor of Appel-lees Teva Pharmaceuticals USA, Barr Pharmaceuticals and Barr Laboratories. For the reasons explained below, the decision of the district court is affirmed.

I. Background & Procedural History

Appellant Kathleen Wagner, who is a licensed attorney proceeding pro se, took both brand-name and generic hormone therapy drugs as prescribed by her gynecologist to treat her post-menopausal en-dometrial hyperplasia. After taking the drugs, Wagner developed breast cancer. Wagner sued multiple pharmaceutical companies that designed, manufactured, promoted and distributed the drugs she took. Appellees Teva Pharmaceuticals USA, Barr Pharmaceuticals and Barr Laboratories are the only pharmaceutical companies that manufactured the generic form of the hormone therapy drugs.

In her 12-count First Amended Complaint, Wagner asserted numerous Wisconsin state law tort claims, all based upon allegations that Appellees sold dangerous products and failed to-adequately warn of their risks.

After answering the Amended Complaint, Appellees moved for Rule 12(c) judgment on the pleadings, arguing that federal law preempted Wagner’s claims. In response, Wagner asserted, for the first time, that Appellees delayed updating their generic brand labels to match the updated, stricter labels on the brand-name drug.

The District Judge granted the motion for judgment on the pleadings, finding that the Food, Drug, and Cosmetics Act (FDCA), 21 U.S.C. § 301 et seq., preempted Appellant’s state law claims. Wagner appealed.

II. Discussion

We review de novo a district court’s Rule 12(c) decision. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir. 2014). To survive a motion for judgment on the pleadings, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In assessing a motion for judgment on the pleadings, we draw all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014).

On appeal, Wagner raises two challenges. First, she argues that, given the passage of the Food and Drug Administration Amendments Act of 2007 (FDAAA), her claims are not preempted. Wagner also argues that her claims are not preempted to the extent they are based upon Appellees’ failure to update their generic drug labels to match the updated label on the brand name drug. We address both issues in turn.

A. Preemption and the FDAAA

The district court found that the FDCA preempted Wagner’s state law claims. In support, the district court relied upon two Supreme Court cases: PLIVA, Inc. v. Mensing, 564 U.S. 604, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), and Mutual Pharmaceutical Co. Inc. v. Bartlett, — U.S. -, 133 S.Ct. 2466, 186 L.Ed.2d 607 (2013). These cases, as the district court correctly explained, impose a “duty of sameness” on generic drug manufacturers that requires “generic drug labels be the same at all times as the corresponding brand-name labels.” Mensing, 564 U.S. at 618, 131 S.Ct. 2567. Flowing from that duty, federal law preempts state tort laws when the generic drug manufacturer could not have abided by this duty without: (1) changing the drug’s formula; (2) changing the drug’s label; or (3) withdrawing the generic drug from the market altogether.

By way of background, in Mensing, the Supreme Court held that the FDCA preempts any state law that requires companies to improve generic drug labels. Id. at 616-20, 131 S.Ct. 2567. The Court reasoned that it would be impossible for companies to change both the generic drug label and maintain sameness with the corresponding brand-name drug label. Id. In Bartlett, the Court extended the principles in Mensing to" cover state defective-design laws. 133 S.Ct. at 2470. To comply with the defective-design tort law, the Court determined that generic drug companies would have to either change the drug’s formula or change its label. Id. at 2474. Alternatively, generic drug companies could choose to stop selling the generic drug altogether. Id. at 2477. The first two options were impossible because of the FDCA and the last option (withdrawal of the product from the market) was unreasonable. Id. at 2470.

Although Mensing and Bartlett dealt with- failure to warn and design defect claims, respectively, federal courts have extended their rationale to similar state law claims. E.g., Brinkley v. Pfizer, Inc., 772 F.3d 1133, 1139-40 (8th Cir. 2014) (preempting breach of implied warranty cases); Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 613-14 (5th Cir. 2014) (preempting express warranty claim); Lashley v. Pfizer, Inc., 750 F.3d 470, 475-76 (5th Cir. 2014) (per curiam) (preempting strict liability and breach of warranty claims). Such cases do not stand alone, and for good reason. As the Fifth Circuit explained in Lashley, these types of claims still rely upon the same essential grounds: “the generic manufacturer’s failure to provide adequate information.” By extension, federal law preempts Wagner’s claims, regardless of how they are styled in her complaint.

Wagner claims that Mensing and Bartlett are outdated in light of the FDAAA, which the Supreme Court did not consider. Other courts have rejected this argument. E.g., In re Fosamax (Alendronate Sodium) Prod. Liab. Litig. (No. II), No. CIV. 08-008 GEB-LHG, 2011 WL 5903623, at *7 (D.N.J. Nov. 21, 2011); Whitener v. PLIVA, Inc., No. CIV.A. 10-1552, 2011 WL 6056546, at *3 (E.D. La. Dec. 6, 2011) (citing In re Fosamax). We reject it as well, as we did in Houston v. United States, 638 Fed.Appx. 508, 513-514 (7th Cir. 2016). The FDAAA imposed certain obligations on generic drug manufacturers when they'propose labeling changes. But the FDAAA did not remove the prohibition against doing so unilaterally. As we noted in Houston, “the amendments still forbid a generic-drug maker from violating the duty of sameness without FDA permission.” Id. at 514.

B. Wagner’s Failure to Update Theory

Wagner, in the alternative, argues that she can still proceed on her claims against Appellees to the extent they are based upon Appellees’ failure to update the generic drug label to match the updated label on the brand name drug. The district court denied this claim for two reasons.

First, Wagner failed to raise this theory in her complaint. Having reviewed the First Amended Complaint, we agree with the district court’s assessment. Wagner fails to effectively respond to this fact on appeal, and instead makes an untimely request of this Court for leave to file a Second Amended Complaint. Wagner never sought leave to amend her complaint in the proceedings below, and the factual assertions regarding her failure to update theory appeared for the first time in her opposition to the Rule 12(c) motion. This attempt comes far too late. Clearly, the district court did not abuse its discretion by.failing to order, sua sponte, an amendment to the First Amended Complaint that Wagner never requested.

Second, as an alternate basis for its ruling, the district court found that, even if Wagner were given leave to amend, any amendment would have been legally and factually futile. While acknowledging a split in authority as to whether federal law preempts state law failure-to-update claims, and noting that the question remains open in this circuit, the district court found persuasive the Fifth Circuit’s decision in Morris v. PLIVA, Inc., 713 F.3d 774, 777 (5th Cir. 2013) (finding federal law preempts failure-to-update claims) (per cu-riam). Factually, the district court found Wagner’s theory of causation insufficient because she asserted that both the generic drug manufacturers’ labels and the updated brand label were deficient.

In light of the undeveloped record here, we need not answer the open question of preemption of state failure-to-update claims; the factual deficiencies in Wagner’s complaint alone preclude reversal of the district court. At various times in the proceedings, Wagner has made conflicting assertions undermining any causation of her failure-to-update claim. Even in her reply brief to this Court, Wagner characterizes both the brand-name and generic labels as deficient. Yet, at oral argument, Wagner maintained that the brand name label was adequate, and that her claim really arose because Appellees failed to bring their labels in line with the brand-name drug in 2007. Putting aside whether Wagner—who began taking the brand-name drug in 1993 and the generic drug in 2000—could establish causation based upon a failure to update in 2007, Wagner never alleged such a claim in her complaint. As a result, she waived the right to press the claim here. See, e.g., Darif v. Holder, 739 F.3d 329, 336-37 (7th Cir. 2014) (arguments raised for the first time in a reply brief are waived); Central States, Southeast and Southwest Areas Pension Fund, 181 F.3d 799, 808 (7th Cir. 1999) (arguments not developed in any meaningful way are waived).

III. Conclusion

Because Wagner’s complaint in the proceedings below lacked the requisite factual allegations to support a failure to update theory, any further consideration of the legal merits of that issue is unnecessary. For the purposes of this appeal, it is enough to note that federal law preempts Wagner’s Wisconsin state-law claims, and that the operative complaint lacks the factual allegations necessary to support any failure to update theory.

For these reasons, the judgment of the district court is AFFIRMED.

      . The Sixth Circuit, by contrast, disagrees, finding that such claims may be viable. Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 583-85 (6th Cir. 2013). In Brinkley v. Pfizer, Inc., 772 F.3d 1133, 1137-39 (8th Cir. 2014), the Eighth Circuit noted the circuit split and proceeded to address a failure to update theory on its merits. This ruling suggests, though not conclusively, that the Eighth Circuit would follow the Sixth Circuit. See also Teva Pharmaceuticals USA, Inc. v. Superior Court, 217 Cal.App.4th 96, 108-09, 110 n.3, 115, 158 Cal.Rptr.3d 150 (2013) (after collecting and summarizing federal district court and state court cases reaching the same decision as the Sixth Circuit, California Court of Appeals expressly stated its disagreement with the Fifth Circuit). On January 20, 2015, the Supreme Court denied a petition of certiorari in Teva Pharmaceuticals. — U.S. -, 135 S.Ct. 1152, 1153, 190 L.Ed.2d 911 (2015).


author: POSNER, Circuit Judge.

text:
    CBEYOND COMMUNICATIONS, LLC, Plaintiff-Appellant, v. Brien J. SHEAHAN, et al., in their official capacities as Commissioners of the Illinois Commerce Commission, Defendants-Appellees, and Illinois Bell Telephone Company d/b/a AT & T Illinois, Intervenor Defendant/Appellee.
    No. 16-1237
    United States Court of Appeals, Seventh Circuit.
    Argued September 14, 2016
    Decided October 18, 2016

      Roderick S. Coy, Leland Rosier, Attorneys, Clark Hill PLC, Lansing, MI, for Plaintiff-Appellant.
    Thomas R. Stanton, Attorney, Illinois Commerce Commission, Chicago, IL, for Defendants-Appellees.
    Hans Germann, Michael T. Sullivan,’ Attorneys, Mayer Brown LLP, Chicago, IL, for IntervenOr-Appellee.
    Before POSNER, EASTERBROOK, . and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, Cbeyond, provides telephone and broadband telecommunications service to small and medium-sized business customers in Illinois. It endeavors to send data through telephone lines with maximum efficiency. The principal defendant, a local exchange carrier that the parties mainly refer to as AT & T Illinois, provides telecommunications service similar to Cbeyond’s but on a much larger scale. The two firms’ networks are interconnected; federal law entitles a new entrant (Cbeyond entered the Illinois market in 2005) to connect with existing local exchange carriers on terms favorable to the entrant so that it can serve more customers without having to create its own network. See 47 U.S.C. § 251; Sprintcom, Inc. v. Commissioners of Illinois Commerce Commission, 790 F.3d 751, 753-54 (7th Cir. 2015); MCI Telecommunications Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 328 (7th Cir. 2000). Those terms are in the first instance negotiated by the local exchange carrier and the new entrant, see 47 U.S.C. § 252(a)(1), but if the parties are unable to agree on terms the issue is referred to arbitration. 47 U.S.C. § 252(b). Whatever agreement emerges either from voluntary negotiations or from arbitration must be submitted to a state commission (in this case the Illinois Commerce Commission) for approval. § 252(e).

In 2004 the commission approved the agreement that Cbeyond and AT & T Illinois had worked out. Any party who wishes to dispute or enforce its interconnection agreement may file a petition with the state commission and if it loses there may sue in federal district court to determine whether the commission’s approval is consistent with the rules that 47 U.S.C. §§ 251(b) and (c) impose on local exchange carriers, such as AT & T Illinois. And that is what Cbeyond did eight years later: file a complaint with the Illinois Commerce Commission (actually part of a complaint that it had filed the previous year, a detail we can ignore) against AT & T Illinois, complaining that' when Cbeyond leases new circuits from AT & T Illinois that are called digital signal level 1 (“DS1”) loops, AT & T Illinois overcharges it by charging a separate price for the “Clear' Channel Capability” (“CCC”) built into the loops.

Invented in 1980, CCC is a method of coding the electrical pulses in a transmission line to make the streaming of data through the line more efficient. See P. A. Johnson & D. R. Walker, “A Standard for Clear Channel .Capacity,” 90 Telephone Engineer & Management 112, 112 (August 15,1986). Cbeyond argues that the price of new DS1 loops should cover CCC because there’s no extra work involved in setting it up once AT & T Illinois has agreed to send a crew out to provision a new line. “Provisioning” in telecom-speak refers to all the measures that a carrier like AT & T Illinois must take to activate a service, and thus might include sending a crew to a customer’s premises to install or repair or replace terminal equipment there, making hardware changes on the utility pole or at the transport office where all the telephone lines in an area code are bundled, or software changes, or whateyer other changes are needed to make sure that everything is running smoothly.

But the only activities of AT & T Illinois that Cbeyond mentioned to the Illinois Commerce Commission were software updates, tests, and administrative changes, none of which contradicted or undermined, let alone invalidated, the interconnection agreement between AT & T Illinois and Cbeyond. And that agreement designates CCC as an “optional feature” available to Cbeyond from AT & T Illinois only “at an additional cost” specified in the agreement’s pricing schedule. It was that additional cost that AT & T Illinois charged Cbeyond for CCC.

Cbeyond claims that CCC should have been available to Cbeyond at no cost beyond that of provisioning the loops, because the cost of CCC is built into the cost of that provisioning. But CCC was deemed optional rather than integral to the loops that Cbeyond bought from AT & T Illinois, and indeed some of the loops didn’t have CCC built into them, suggesting that the price of the loops did not include the full price of CCC. More to the point, the interconnection' agreement was explicit that there would be “an additional cost” if the purchaser of loops from AT & T Illinois wanted CCC, even if the price of the loops included that. cost. That was the deal.

Cbeyond goes on to complain that some of AT & T Illinois’ other customers were charged less than Cbeyond for CCC—even nothing—for a predecessor of CCC called Alternate Mark Inversion (“AMI”). But as CCC is a more advanced product, it’s not surprising that it should command a higher price; nor has Cbeyond shown that it’s the only purchaser of CCC that pays the optional charge.

It doesn’t help Cbeyond’s case that its briefs are virtually devoid of facts. We are not told what the price of the DS1 loops is with and without the CCC add-on, how the prices differ.from those paid AT & T Illinois by other telecommunications companies that buy such loops with or without CCC, how the capabilities of CCC differ from those of AMI, or why Cbéyond agreed to the contractual terms that have precipitated this litigation. All we know is that Cbeyond made a contract with AT & T Illinois that it later regretted and has resorted to litigation in an effort to squirm out of the contract.

Cbeyond may be right that AT & T’s charges are inconsistent with the well-known federal pricing standard called “TELRIC,” see 47 C.F.R. § 51.505, which constrains incumbent carriers to lease network elements to newcomers (even just relative newcomers) like Cbeyond (which dates back to 2005) at a price just a bit higher than the incumbent’s marginal cost. As far as we know, by 2016 Cbeyond’s orders for CCC required no new hardware, or other embellishments of the product, and if so that would drive the marginal cost of CCC to zero; yet AT & T Illinois continued charging Cbeyond for CCC. But 47 U.S.C. § 252(a)(1) allows a new entrant and an incumbent to contract around TEL-RIC pricing, provided they create a “detailed schedule of itemized charges,” and Cbeyond and AT & T Illinois did that. The Pricing Schedule in the agreement includes a charge for CCC that as far as we can tell was never amended or deleted.

So we can’t find a violation of federal law by the Illinois Commerce Commission or AT & T Illinois. All we discern is a' dispute over a price term in a contract, and the resolution of such a dispute, as of Cbeyond’s other state-law claims, is a matter for state rather than federal law. Illinois Bell Telephone Co., Inc. v. Global NAPs Illinois, Inc., 551 F.3d 587, 591 (7th Cir. 2008); Illinois Bell Telephone Co. v. Worldcom Technologies, Inc., 179 F.3d 566, 572, 574 (7th Cir. 1999). Although a federal district court can resolve state-law disputes under , its supplemental jurisdiction if (as in this case) it has original jurisdiction (in this case because of Cbey-ond’s claims), see 28 U-S.C. § 1367, exercising supplemental jurisdiction over the state-law. claims in this case would require us first to decide that the state (Illinois) cannot invoke its sovereign immunity—a doubtful proposition in light of MCI Telecommunications Corp. v. Illinois Commerce Commission, 168 F.3d 315, 320 (7th Cir. 1999), where we said that it was “clear that ... federal courts, may review; a state commission’s actions with respect to an agreement only for compliance with the requirements of § 251 and § 252 of the Telecommunications Act, and not for compliance with state law” (emphasis added). And state sovereign immunity to one side, Cbeyond has imposed an excessive and unnecessary burden on the district court by bringing this sloppy lawsuit, and should not be permitted to impose further on the district court or our court.

Affirmed


author: BAUER, Circuit Judge.

text:
    Eric T. ALSTON, Petitioner-Appellant, v. Judy P. SMITH, Respondent-Appellee.
    No. 16-1308
    United States Court of Appeals, Seventh Circuit.
    Argued September 22, 2016
    Decided October 18, 2016

      Joshua Samuel Stillman, Attorney, Jones Day, New York, NY, for Petitioner-Appellant.
    Daniel J. O’Brien, Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
    Before BAUER, POSNER, and MANION, Circuit Judges.
   BAUER, Circuit Judge.

Petitioner-appellant, Eric Alston, challenged the revocation of his probation by an administrative law judge (ALJ), claiming that certain information the ALJ learned prior to his revocation hearing created a risk of bias in violation of his due process rights. Alston’s appeal was denied by the Administrator of the Wisconsin Division of Hearings and Appeals, the Dane County Circuit Court, and finally the Wisconsin Court of Appeals. After the Wisconsin Supreme Court declined to review the case, Alston filed a petition for a writ of habeas corpus in federal district court. The district court denied the petition, holding that the Wisconsin Court of Appeals was not unreasonable in concluding that there was no impermissibly high risk of bias. We affirm.

I. BACKGROUND

On June 28, 2010, Alston was placed on probation by the Dane County Circuit Court after his conviction on five criminal charges. Shortly thereafter, Dane County law enforcement agencies established a “Special Investigation Unit” (SIU) to monitor and offer resources to ten probationers whom they identified as “serious, assaultive offenders.” In November 2011, Alston was identified for participation in the SIU program through which he was offered community resources aimed at deterring him from reoffending. Alston’s participation, however, also came with the admonition that any probation violation would result in the Department of Corrections vigorously seeking full revocation of probation.

Alston was arrested on December 6, 2011, for violating his probation. On April 24, 2012, a revocation hearing was held before Beth Whitaker, an ALJ for the Wisconsin Division of Hearings and Appeals. Alston’s participation in the SIU was discussed at the hearing, after which ALJ Whitaker informed the parties that she had previously attended a presentation about the program given by law enforcement members of the SIU. In explaining the presentation, ALJ Whitaker stated:

It was two law enforcement officers, if I remember correctly, and they gave us an informational presentation. And it may have been at the request of our agency, and it may have been initiated by someone else. I don’t know, I just went along with the other [hearing examiners] in my office and we were given information about this program right around the time that it came out in the newspaper. And the summary of it as I remember it is we were told about the vast resources that were being provided to these folks that were at high risk, and that the program was intended as a last chance, and that violations should be treated as sort of a last straw. And in the case of supervision that it would be expected that.they wouldn’t be given another chance. In other words, [they] would be revoked, and in the case of a criminal ease they would be prosecuted. What I didn’t hear is that we’re expected, that they expected us to revoke people when the violations weren’t proven, so I think to that extent, I mean I don’t think at any point that they suggested that we revoke people that hadn’t done anything. So there’s part of my decision making that’s not relevant to what their program is about, part of it that I guess you could say is [relevant].

Alston then requested a suspension of the proceedings to allow for the substitution of. a “neutral party” who had not attended this presentation. His request was denied.

ALJ Whitaker issued a written order revoking Alston’s probation, and Alston appealed to the Administrator of the Division on Hearings and Appeals. The Administrator affirmed the revocation and found that ALJ Whitaker’s attendance at the SIU training was not problematic.. After the Circuit Court of Dane County also affirmed the order, Alston appealed to the Wisconsin Court of Appeals.

• The Wisconsin Court of Appeals rejected Alston’s argument that ALJ Whitaker’s attendance at the SIU training created a risk of bias that violated his due process rights. First, the court found that ALJ Whitaker was not biased in fact, citing the explanation of the SIU meeting she provided at Alston’s hearing. The court then concluded that her attendance at the meeting did not create an impermissibly high risk of bias. It explained that members of the legal profession, including the judiciary, regularly attend trainings, seminars, and meetings regarding developments in legal policy and law enforcement tactics. The law enforcement officials at the SIU training did not discuss any specifics of Alston’s case and provided only general information about the workings and goals of the program. The court held, therefore, that ALJ Whitaker’s attendance did not create an impermissibly high risk of bias in violation of Alston’s due process rights.

After the Wisconsin Supreme Court denied Alston’s petition for review, he sought federal habeas relief. The district court found that the Wisconsin Court of Appeals’ decision did not involve an unreasonable application of federal law nor an unreasonable determination of the facts. It held that because fair minded jurists could agree with the conclusion that ALJ Whitaker’s attendance at the SIU training did not give rise to an impermissibly high risk of bias against Alston, he was not entitled to habeas relief.

II. DISCUSSION

We review a district court’s denial of a habeas petition de novo. Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir. 2009) (citation omitted), The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that a federal court may only grant, habeas relief if the adjudication of petitioner’s claim by a state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or if the adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We apply this analysis to the decision of the Wisconsin Court of Appeals, as that was the last state court that substantively adjudicated Alston’s claim. Gonzales, 565 F.3d at 379 (citation omitted).

Alston seeks relief under all three of § 2254(d)’s exceptions. He argues that (1) the Wisconsin Court of Appeals’ decision was contrary to established federal law governing his due process right to an impartial adjudicator; (2) the decision involved an unreasonable application of that body of law; and (3) the decision was based on an unreasonable determination of the relevant facts. We address each argument individually below, but first, it is important to set forth the established law governing the due process right to an unbiased adjudicator.

A fair hearing before a fair and unbiased adjudicator is a basic requirement of due process under the Fourteenth Amendment. Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (citation omitted). This principle applies to administrative tribunals, id. (citation omitted), and proceedings involving the revocation of probation. See Gagnon v. Scarpelli, 411 U.S. 778, 782-86, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Due process is violated not only where an adjudicator is biased in fact, but also where a situation presents a particularly high probability of bias. Withrow, 421 U.S. at 47, 95 S.Ct. 1456. The inquiry as to whether such a probability exists is an objective one. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). The question is “whether the average judge in [this] position is ‘likely’ to be neutral, or whether there is in unconstitutional ‘potential for bias.’” Id. The facts showing a probability of bias must be strong enough to “overcome a presumption of honesty and integrity in those serving as adjudicators.” Withrow, 421 U.S. at 47, 95 S.Ct. 1456.

A. § 2254(d)(1) Exception for Decision “Contrary to” Clearly Established Federal Law

Alston first argues that the Wisconsin Court of Appeals’ decision was “contrary to” clearly established Supreme Court precedent. Under § 2254(d)(1), a decision is “contrary to” clearly established Federal law if the state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This exception to AEDPA applies only if the state court decision is “diametrically different,” “opposite in character or nature,” or “mutually opposed” to clearly established precedent. Id. at 405-06, 120 S.Ct. 1495.

Alston contends that the Wisconsin Court of Appeals’ decision was contrary to rules established by two specific Supreme Court cases. First, he argues that the decision was contrary to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, in that the decision did not specifically address the potential for bias as to each individual component of the revocation decision. In Gagnon, the Supreme Court confirmed that probationers are entitled to minimum due process rights at revocation hearings. Id. at 786, 93 S.Ct. 1756 (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and extending its holdings to the probation context). In the context of determining the scope of a probationer’s right to counsel at those hearings, the Court also recognized that a revocation decision has “two analytically distinct components:” (1) the determination as to whether the probationer violated a condition of probation; and (2) the determination as to whether to revoke probation or find another alternative. Id. at 784, 93 S.Ct. 1756 (citing Morrissey, 408 U.S. at 479-80, 92 S.Ct. 2593). Alston mistakenly relies on this recognition to argue that the state court was required, but failed to make specific and separate findings that ALJ Whitaker was not biased when deciding each of those two components. However, Gagnon imposes no such duty on a reviewing court and Alston cites no other authority to support that contention. The Wisconsin Court of Appeals made clear that it found no bias, nor an unconstitutional potential for bias, at any juncture of Alston’s revocation hearing. That conclusion is not “diametrically different” or “mutually opposed” to any clearly established Supreme Court precedent.

Alston then argues that the Wisconsin Court of Appeals’ decision was contrary to the rule from Caperton, 556 U.S. at 881, 129 S.Ct. 2252, that the probability of bias is to be determined objectively. Alston claims that the court primarily, and improperly, focused on “actual bias.” That argument is without merit. While the court did make a finding that ALJ Whitaker was not biased in fact, it also concluded “that the hearing examiner’s attendance [at the SIU meeting] did not create an impermis-sibly high risk of bias in violation of the due process clause.” As support for that conclusion, the court cited the frequency with which members of the judiciary attend educational seminars on legal policy and the fact that the SIU meeting presented only general information. It found, objectively, that no impermissible risk of bias was presented by attendance at such a meeting. That the court found no actual bias, in addition to no objective risk of impermissible bias, does not render its decision contrary to clearly established federal law.

B. § 2254(d)(1) Exception for “Unreasonable Application” of Clearly Established Federal Law

Alston also argues that the Wisconsin Court of Appeals’ decision “involved an unreasonable application” of federal law governing his due process right to an impartial adjudicator. Under § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S.Ct. 1495. It is not enough that a state court simply may have applied the law erroneously or incorrectly. Id. at 411, 120 S.Ct. 1495. It must also be unreasonable, “which means something like lying well outside the boundaries of permissible differences of opinion.” Jackson v. Frank, 348 F.3d 658, 662 (7th Cir. 2003) (internal quotation and citation omitted). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

On this point, Alston takes issue with three elements of the Wisconsin Court of Appeals’ decision. First, he argues that the court mischaracterized the SIU meeting as simply an “educational seminar,” rather than a prejudicial encounter that created an impermissible risk of bias against him. Second, he argues that it was unreasonable for the court to rely on the fact that the specifics of his case were not discussed at the meeting. Finally, he argues that the court should not have relied on ALJ Whitaker’s explanation that she would decide Alston’s case impartially because her subjective assessment of her own potential bias is irrelevant.

None of these arguments is persuasive. As the Wisconsin Court of Appeals noted, members of the judiciary and other administrative adjudicators regularly attend informational programs on developments in the law and initiatives in law enforcement. The SIU meeting presented general information about a new probation initiative. Despite Alston’s argument to the contrary, it -was proper for the court to rely on the fact that the officers at the meeting neither identified Alston nor offered any details of his case. Because she learned nothing specific about Alston or his case, ALJ Whitaker was no more disqualified by attending that meeting than if she had learned about the SIU from a news article or bulletin. As to ALJ Whitaker’s explanation at the hearing, it may be true that her own belief is not wholly instructive on the potential for bias. As was just discussed, however, the court had ample support, aside from that, statement, for its conclusion - that there was no unconstitutional risk of bias created by her attendance at the SIU meeting. The courts application of the law in reaching that conclusion was neither incorrect nor unreasonable. Certainly, its reasoning and holding do not lie “well outside the boundaries of permissible differences of opinion,” such that habeas relief is warranted. Jackson, 348 F.3d at 662.

C. § 2254(d)(2) Exception for Unreasonable Determination of Facts

Finally, Alston argues that, under § 2254(d)(2), the Wisconsin Court of Appeals’ decision relied on an unreasonable determination of the facts. Under this section, habeas relief may be granted only if the state court decision “rests upon fact-finding that ignores the clear and convincing weight of the evidence.” McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015) (citation omitted). The decision must be “so inadequately supported by the record as to be arbitrary and therefore objectively unreasonable.” Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2008) (internal citation omitted).

Alston takes issue with the Wisconsin Court of Appeals’ finding that ALJ Whitaker’s explanation of the SIU meeting confirmed that she would decide Alston’s case like any other. In Alston’s view, ALJ Whitaker directly contradicted that assessment, when she said, “there’s part of my decision making that’s not relevant to what their program is about, part of it that I guess you could say is [relevant].” Therefore, he argues, it was unreasonable for the court to find that she was not biased in fact.

This argument fails to overcome the deference we must afford the state court. Even if ALJ Whitaker considered some of the information she learned about the SIU as relevant to her decision, it was not objectively unreasonable for the court to find that she was not biased. No specifics about Alston or his case were presented at the meeting and there was no evidence of prejudgment on ALJ Whitaker’s part. Based on the record before the court, we cannot say that its interpretation of ALJ Whitaker’s statement was arbitrary or that it ignored the clear and convincing weight of the evidence.

III. CONCLUSION

The Wisconsin Court of Appeals’ decision was consistent with, and did not involve an unreasonable application of the relevant Supreme Court precedents, nor did it rely on an unreasonable determination of the facts before it. Therefore, we AFFIRM the district court’s judgment.


author: KANNE, Circuit Judge.

text:
    Eric TAPLEY, Plaintiff-Appellant, v. Andrew CHAMBERS, Officer, et al., Defendants-Appellees.
    No. 15-3013
    United. States Court of Appeals, Seventh Circuit.
    Argued September 21, 2016
    Decided October 19, 2016

      Jonathan R. Ksiazek, Ed Fox & Associates, Chicago, IL, for Plaintiff-Appellant,
    Peter R. Jennetten, Christina E. Cul-lom, Quinn, Johnston, Henderson & Preto-rius, Peoria, IL, for Defendants-Appellees.
    Before FLAUM, KANNE, and ■WILLIAMS, Circuit Judges.
   KANNE, Circuit Judge.

Plaintiff-appellant Eric Tapley, along with William Hosea and Clifford Pugh, request that we review the district court’s decisions in two different cases, one from 2012 (numbered 12-cv-1339) and the other from 2015 (numbered 15-cv-1051). Yet they failed to provide the record from the 2012 case on appeal. For that reason, we dismiss the appeal of that case. We address the merits of the 2015 case only— and we affirm.

I. BACKGROUND

The record before us leaves much to the imagination. Although Tapley asks us to review two cases, we have the record for only one of them. To outline the history of these two cases, we rely on the procedural facts provided in the parties’ briefs. We assume the truth of these facts for that limited purpose. But that’s as far as we’ll go.

Without the required record, we are unable to address the material facts of the 2012 case. We do have the record from the 2015 case, and thus will discuss the facts necessary to decide the merits of that appeal.

A. Procedural History

This all began with the 2012 case. There, plaintiffs Tapley, Hosea, and Pugh sued the City of Bloomington and Officers Andrew Chambers, Jeff Engle, Michael Gray, John Heinlein, Sara Mayer, Scott Sikora, James Smith, and Brice Stanfield. The plaintiffs brought Fourth Amendment, equal-protection, and Monell claims under 42 U.S.C. § 1983. In addition, Tapley brought a malicious-prosecution claim under Illinois law. Tapley’s claims arose from several incidents occurring between 2011 and 2012. Hosea’s and Pugh’s claims involved a single incident occurring on May 24, 2011. The incidents that gave rise to Tapley’s claims are unrelated to the incident that brought about Hosea’s and Pugh’s claims.

The defendants moved for summary judgment on all of these claims. The district court granted that motion in part, dismissing every claim except for Tapley’s illegal-seizure claims arising from two traffic stops: one occurring in May 2011 and the other on September 15, 2011. Tapley voluntarily dismissed those two claims, causing the district court to terminate the case under Federal Rule of Civil Procedure 41(a)(1). The plaintiffs then appealed to this court.

Because Tapley voluntarily dismissed his surviving claims without prejudice, we questioned whether we had appellate jurisdiction. Indeed, a dismissal without prejudice typically does not result in a final and appealable order because the plaintiff is free to refile his claim. Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001). We invited the plaintiffs to brief the jurisdictional issue. They instead dismissed their appeal on December 9, 2014.

Tapley then filed the 2015 case against Officers Chambers, Heinlein, Sikora, Stan-field, and Mayer. There, Tapley reasserted his illegal-seizure claim arising from the September 15, 2011 incident—one of the claims that he voluntarily dismissed in the 2012 ease. Hé did not refile his other voluntarily dismissed claim from the 2012 ease.

Once again, the defendants moved for summary judgment. This time around, the district court granted their motion and dismissed Tapley’s claim. Tapley timely appealed that judgment.

B. Factual Background for the 2015 Case

The events giving rise to Tapley’s claim in the 2015 case occurred on September 15, 2011. The Bloomington Police Department’s Street Crimes Unit was surveilling for loud-music violations near the intersection, of Clinton and Locust streets. Officer Sikora was parked to the south of that intersection when he observed Tapley driving northbound in a red GMC truck. Siko-ra radioed his fellow officers to inform them that Tapley was playing loud music and to inquire whether anyone wanted to initiate a stop. Officer Stanfield replied that he would try to make the stop. At that time, Stanfield was parked at the Clinton-Locust intersection, across the street from a Price Rite store.

Tapley turned into the Price Rite parking lot, and Stanfield followed him. Tapley went into the store for a brief time before returning to his truck. Stanfield testified that he heard Tapley’s music emanating fi*om the truck as Tapley was preparing to drive away. The parties agree that Tap-ley’s music was loud, but dispute whether it was so loud that Stanfield could hear it from over 75 feet away.

Tapley left the parking lot and turned northbound onto Clinton. Stanfield testified that he had difficulty following Tapley because Tapley was driving “at a very high rate of speed.” (R. 16-5 at 43-44.) Moreover, Stanfield could hear Tapley’s engine rev as Tapley drove away. Stanfield acknowledged that he did not know Tapley’s exact speed, but claimed that it was well over Clinton’s 30-mile-per-hour limit— somewhere in the 40- to 50-mile-per-hour range. Stanfield testified that he had to drive about 40 miles per hour to catch Tapley.

Stanfield caught up to Tapley at the intersection of Main Street and Empire. When Tapley saw Stanfield’s unmarked cruiser behind him, he turned his music down. Stanfield then stopped Tapley, explaining to him that the stop was for loud music. The two also discussed Tapley’s excessive speed.

Soon after, Officers Sikora, Chambers, and Heinlein arrived. Chambers told Tap-ley to get out of the truck. The parties disagree about what happened next.

Tapley claims that he responded to Chambers by saying, “Well, yes, I can get out of my truck, but why am I getting out of my truck?” (R. 16-1 at 16.) When Chambers explained that the officers had a K9 unit and that they wanted to do a free-air sniff around the truck, Tapley replied, “I understand that, but why are you doing a free air search?” (Id.) To that, Chambers replied, “This is what we do,” and told Sikora to “[g]et him.” (Id.) Sikora opened the passenger-side door and placed a Ta-ser on Tapley’s temple. Tapley then jumped out of the ear with his hands up.

The officers’ version of the story is a little bit different. According to them, when Chambers asked Tapley to exit the vehicle, Tapley responded, “[F]uck that.” (R. 16-2 at 28); (R. 16-5 at 48). And when Chambers. repeated his request, Tapley “just sat there,” talking on his cell phone. (R. 16-2 at 28.) Chambers then opened the driver-side door and grabbed Tapley’s arm, which Tapley pulled away. Only then did Sikora tell Tapley that, “if [Tapley] didn’t get out, he’d get tased.”,(R. 16-4 at 19.) The officers deny ever pointing a Ta-ser at Tapley.

The officers arrested Tapley for obstruction of justice and resisting arrest. Stan-field performed a search incident to arrest on Tapley while the other officers searched the truck. The government tried Tapley for obstruction, and a jury acquitted him,

II. Analysis

We first explain why we decline to review the merits of the 2012 case. We then turn to the merits of the 2015 case.

A. Tapley’s, Hosea’s, and Pugh’s Appeal of the 2012 Case

Plaintiffs Tapley, Hosea, and Pugh seek to appeal the district court’s 2012 judgment dismissing Tapley’s malicious-prosecution claim and Hosea’s and Pugh’s Fourth Amendment claim on summary judgment. Plaintiffs did not directly appeal the 2012 case; instead, they seek to bootstrap that case onto Tapley’s appeal of the 2015 case, claiming that Tapley’s appeal was sufficient to appeal both cases. The defendants disagree and contest our jurisdiction to review the 2012 case. We need not decide whether Tapley’s appeal of the 2015 case also gives us jurisdiction over the 2012 case. We instead dismiss the appeal of the 2012 case for the simple reason that we have no record to review it.

The Federal Rules of Appellate Procedure require an appellant who is challenging a district court’s finding or conclusion as unsupported by the evidence to “include in the record a transcript of all evidence relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2). It is apparent from the record—or, more aptly, the lack thereof—that plaintiffs have not satisfied this requirement. Our review of the appellate docket confirms that we do not have the 2012 record. Plaintiffs conceded as much in both their briefing and at oral argument. Even so, they ask us to review the district court’s dismissal of their claims without the 2012 record. They do not explain how we can do that without access to the evidence contained in that record.

True enough, plaintiffs did include some documents from the 2012 case in the appendix, including the second amended complaint and the district court’s order on summary judgment. Even if we were to consider these documents, they would not help us. Although the district court’s order summarizes the type of evidence presented, we cannot evaluate whether the court properly granted summary judgment without copies of the exhibits supporting the parties’ summary-judgment briefing and the transcripts from oral argument. See Stookey v. Teller Training Distribs., Inc., 9 F.3d 631, 635 (7th Cir. 1993).

Under these circumstances, wé have two options. First, we can order plaintiffs to provide the 2012 record. Fed. R. App. P. 10(e); LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir. 1995). Or second, we can dismiss the appeal. Fed. R. App. P. 3(a)(2); Stookey, 9 F.3d at 635 (7th Cir. 1993). We choose the latter option.

Dismissal is appropriate when a deficient record precludes meaningful appellate review. LaFollette, 63 F.3d at 544; Stookey, 9 F.3d at 635-36. Dismissal is especially appropriate when, as here, plaintiffs have had ample opportunity to correct this deficiency but have failed to do so. LaFollette, 63 F.3d at 545; RK Co. v. See, 622 F.3d 846, 853 (7th Cir. 2010). Indeed, plaintiffs have known of this problem at least since receiving defendants’ response brief, which requests that we dismiss the appeal because of the incomplete record. See RK Co., 622 F.3d at 853.

Plaintiffs’ reply acknowledges that we do not have the 2012 record. Plaintiffs claim, however, that they “orally requested” the district court to send that record to us. (Appellant’s Reply Br. at 8.) During oral argument, plaintiffs’ counsel clarified that he actually made this request to the district court clerk via telephone.

Even accepting that plaintiffs made that call, nothing in the record before us suggests that plaintiffs filed a motion with the district court to correct or modify the record under Appellate Rule 10(e), as our Circuit Rules require. See Circuit Rule 10(b). Had plaintiffs so moved, perhaps the district court would have forwarded the 2012 record to us. Instead, 22 days after plaintiffs filed their reply brief acknowledging the record deficiency, the district court forwarded the long record from the 2015 case only. Since then, plaintiffs have taken no steps to provide us with the 2012 record.

Plaintiffs must convince us that the district court reached the wrong conclusion. They cannot do so without supporting evidence. Because we do not have the 2012 record, we dismiss the appeal of the 2012 case.

B. Tapley’s Appeal of the 2015 Case

We now turn to the merits of the 2015 case. As noted, Tapley brought a § 1988 claim against Officers Chambers, Heinlein, Sikora, and Stanfield, alleging that they violated his Fourth Amendment rights when they seized him on September 15, 2011. The district court dismissed Tapley’s claim on summary judgment.

We review this decision de novo, drawing our own legal and factual conclusions from the record. Beischel v. Stone Bank Sch. Dist., 362 F.3d 430, 434 (7th Cir. 2004). In our review, we construe all facts and reasonable inferences in Tapley’s favor. Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772 (7th Cir. 2012). We grant summary judgment only when “the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014).

As the summary-judgment mov-ants, the officers must establish that there are no genuine issues of fact. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010). They can discharge this burden by (1) negating an essential element of Tapley’s claim with affirmative evidence or (2) demonstrating that Tapley’s claim lacks supporting evidence. Hummel v. St. Joseph Cnty. Bd. of Comm’rs, 817 F.3d 1010, 1016 (7th Cir. 2016). The burden then shifts to Tapley to offer specific evidence showing a genuine issue for trial. Bank of Commerce v. Hoffman, 829 F.3d 542, 546 (7th Cir. 2016).

Our analysis begins with the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures—” U.S. Const, amend. IV. This protection extends to everyday traffic stops, which are “seizures” under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). As such, they must be reasonable. And they are reasonable so long as “the police have probable cause to believe that a traffic violation has occurred.” Id. at 810, 116 S.Ct. 1769.

To succeed on his § 1983 claim, Tapley must show that his seizure was treasonable—that is, that the officers had no probable cause to stop and arrest him. Bielanski v. Cnty. of Kane, 550 F.3d 632, 637 (7th Cir. 2008); Kelley v. Myler, 149 F.3d 641, 646 (7th Cir. 1998). Based on the undisputed facts in the record, we conclude that Tapley cannot make this showing.

We begin with the initial stop, which Stanfield admitted was for loud music. It is debatable whether there was probable cause to stop Tapley for that reason. Even so, the facts in the record show that there was probable cause to stop Tapley for speeding.

“When a police officer reasonably believes that a driver has committed even a minor traffic offense, probable cause supports the stop.” United States v. Garcia-Garcia, 633 F.3d 608, 613 (7th Cir. 2011). To determine whether this belief is reasonable, we consider “the facts and circumstances within the officer’s knowledge,” and determine whether they “are sufficient to warrant a prudent person in believing the suspect has committed or is committing an offense.” United States v. Sawyer, 224 F.3d 676, 678-79 (7th Cir. 2000). This determination “involves examining the totality of the circumstances in a common sense manner.” United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003).

In light of the facts known to Stanfield at the time of the stop, and under the totality of the circumstances, it was reasonable for Stanfield to believe that Tapley was speeding. At his deposition, Stanfield testified that he saw Tapley driving northbound on Clinton “at a very high rate of speed.” (R. 16-5 at 43-44.) He further testified that he could hear Tapley’s engine rev as Tapley drove away. Although Stan-field admitted that he did not know Tap-ley’s exact speed, he estimated it to be in the 40- to 50-mile-per-hour range. In any event, Stanfield noted that he had difficulty catching Tapley, and had to drive about 10 miles per hour over the limit to do so. When Stanfield finally stopped Tapley, the two discussed Tapley’s excessive speed.

Through this evidence, the officers carried their summary-judgment burden to produce evidence showing that Tapley was speeding. This evidence is undisputed. Tapley now tries to concoct a dispute by pointing out that “[Stanfield] admitted in his deposition that he did not know how fast Tapley was going.” (R. 18 at 10-11.) But cherry picking statements from Stan-field’s deposition testimony and saying what we already know doesn’t create a dispute. The context of Stanfield’s testimony clearly shows that he believed that Tapley was speeding, even though he didn’t know Tapley’s exact speed. To survive summary judgment, Tapley should have denied that he was speeding through deposition testimony, an affidavit, or some other means. Tapley never denied this. And his failure to make this denial constitutes a failure to deny the existence of probable cause. The evidence in the record thus shows that there was probable cause to stop Tapley for speeding.

And because there was probable cause to stop Tapley for this reason, Tapley’s entire illegal-seizure claim fails. This is true, even though the officers arguably had no probable cause to stop Tapley for loud music or arrest him for obstruction and resisting arrest. Indeed, we do not consider an officer’s subjective intentions when determining whether he had probable cause to make a stop. Whren, 517 U.S. at 813, 116 S.Ct. 1769. As long as the officer had probable cause to believe that the driver committed a traffic violation, the stop is constitutionally permissible, even if the officer’s real reasons for the stop lack probable cause. Valance v. Wisel, 110 F.3d 1269, 1275 (7th Cir. 1997); see Huff v. Reichert, 744 F,3d 999, 1004 (7th Cir. 2014) (“The Fourth Amendment permits pretex-tual traffic stops as long as they are based on an observed violation of a traffic law.”).

This rule equally applies to arrests: If there is probable cause to believe that a person has committed a crime, it is constitutionally irrelevant whether the officer arrested the person on charges for which there was no probable cause. See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007) (“[P]robable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was arrested on additional or different charges for which there was no probable cause.... ”); Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“[An officer’s] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause”). Because there was probable cause to believe that Tapley was speeding, the officers did not violate Tapíeos Fourth Amendment rights when they stopped him for loud music and arrested him for obstruction and resisting arrest.

Although arresting someone for speeding might be outside the norm, it is constitutionally acceptable. As long as there is probable cause to stop someone for a crime—even a minor one like a traffic offense—the Fourth Amendment permits an arrest. Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); United States v. Childs, 277 F.3d 947, 953 (7th Cir. 2002) (en banc).

Speeding is a crime in Illinois. 625 ILCS 5/11—601. The officers had probable cause to stop and arrest Tapley for this crime. For that reason, Tapley’s illegal-seizure claim fails. Accordingly, the district court properly dismissed that claim on summary judgment.

III. Conclusion ■

For the reasons above, we DISMISS Tapley’s appeal of the 2012 case (12-cv-1339), and AFFIRM the district court’s grant of summary judgment in the 2015 case (15-CV-1051).

      . On summary judgment, the district court dismissed Tapley’s claims against Officer Mayer, whom Tapley conceded was not involved in the September IS, 2011 incident. Nothing in Tapley’s briefs or oral argument suggests that Tapley seeks to appeal this ruling. None of the other parties or claims from the 2012 case was involved in the 2015 case.

      , Both Illinois law and a Bloomington ordinance prohibit playing music that is audible outside of a vehicle from 75 feet or more while the vehicle is operating on a highway. 625 ILCS 5/12-611; City of Bloomington, 11. Code ch. 29, art. XI, § 83(b).

      . Neither Sikora nor Heinlein saw Tapley pull his arm away.

      .In the 2012 case, Tapley brought an illegal-search claim, which the district court dismissed on summary judgment. Tapley is no longer pursuing that claim and concedes that it is not at issue on appeal.

      . Although Hosea and Pugh are not named parties to this appeal, we refer to Tapley, Hosea, and Pugh as “plaintiffs” for purposes of this discussion.

      . The issue of whether those documents’ inclusion in the appendix is appropriate given their absence from the 2015 record is another story. See United States v. Raymond, 228 F.3d 804, 809 n.5 (7th Cir. 2000) (granting motion to strike from the appendix documents absent from the record before the district court), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013).

      . Tapley notes that the district court denied summary judgment on his claim in the 2012 case. He argues that this denial necessarily creates a genuine issue for trial. Not so. The district court denied summary judgment in the 2012 case because there were disputes about probable cause for loud music, obstruction, and resisting arrest. But in the 2015 case, the officers argued'for the first time that there was probable cause for speeding. The district court granted summary judgment for that reason. We take no issue with the divergent rulings in the two cases.