NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1


# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 8 , 201 7 * Decided June 5, 2017



### Before

W ILLIAM J. B AUER , Circuit Judge

F RANK H. E ASTERBROOK , Circuit Judge

I LANA D IAMOND R OVNER , Circuit Judge

No. 15

- 3325

A NTHONY W HEELER , Plaintiff

- Appellant

,

v

.

P AUL A. T ALBOT , K EITH A NGLIN , and Y OLANDE J OHNSON , Defendant s

- Appellee s

. Appeal from the United States District Court for the Central District of Illinois

.

No. 12

- 2281 David G. Bernthal

, Magistrate J udge

.

Order

In this action under 42 U.S.C. §1983, Anthony Wheeler contends that two defendants violated the First Amendment by threatening to punish him if he continued to file grievances and mail letters about “some of the day

- to

- day activity” at the prison, and that a third violated the Eighth Amendment by refusing to treat his keloids . The claims

* We have concluded that the briefs and record adequately present the issues and that oral argument is unnecessary. See Fed. R. App. P. 34(a)(2)(C).No. 15

- 3325 Page 2

are unrelated and were improperly joined ; the district court should have se vered them or dismissed one claim . See Fed. R. Civ. P. 18; George v. Smith , 507 F.3d 605 (7th Cir. 2007). Instead of doing that, the court (acting through a magistrate judge on the parties’ consent, see 28 U.S.C. §636(c)) granted summary judgment to both sets of defendants.
Re solving both claims in a single suit did not prejudice anyone other than the United States Treasury, which has been deprived of an extra filing fee

, and is not a jurisdictio nal problem, so we turn to the merits.

We start with the claim under the First Amendment. A fter arriving at Danville Co rrectional Center

, Wheeler began filing intra

- prison grievances and writing letters to state and federal offic ials. He related that he complained about the food , which he says led to swelling, pain, dizziness, and vomiting. Construed in the light favorable to him, evidence shows that Keith Anglin (the prison’s warden) and Yolande Johnson (deputy director for the D epartment of Corrections’ central district) summoned Wheeler to a meeting and threatened to pun ish him or confiscate his type writer if he continued filing grievances and writing to public officials. After this meeting, Wheeler filed a grievance against bot h Anglin and Johnson. Wheeler tells us that he has continued to file grie vances and send letters and that, so far, Anglin and Johnson have not carried out their threats. Wheeler contends that, despite the lack of action, the threats cause him em otional dis tress, for which he seeks damages.

In the world outside of prison, threats to penalize speech are usually understood as attempts by the government to exercise prior restraint, a classic violation of the First Amendment. See, e.g., Surita v. Hyde , 665 F.3d 860, 878 (7th Cir. 2011); Fairley v. Andrews

, 578 F.3d 518, 525 (7th Cir. 2009). But prisoners’ rights to speak are subject to restrictions to promote legitimate public interests. See, e.g., Saxbe v. Washington Post Co ., 417 U.S. 843 (1974); Hammer v. Ash croft , 570 F.3d 798 (7th Cir. 2009) (en banc). The propriety of some limitations on prisoners’ speech also means that damages are unavailable unless caselaw clearly establishes that particular limitations have become excessive. See, e.g., White v. Paul y , 1 37 S. Ct. 548 (2017) (describing qualified

- immunity doctrine). Wheeler ’s narration implies that Anglin and Johnson were more concerned by the volume of Wheeler’s grievances than by their con tents . Wardens and other administrators may try to conserve their time by cutting down the flux of repetitious complaints in order to f ocus on new and potentially serious ones.

Wheeler does not try to show how it has become clearly established that prison off icials are forbidden to try to prevent prisoners from bombardi ng the grievance system and public officials with repetitious protests. Indeed, even though Anglin and Johnson invoke the doctrine of qualified immunity, Wheeler did not mention it in his opening brief and did not file a reply brief. But w e need not pursue that subject , because he hasNo. 15

- 3325 Page 3

not established an entitlement to damages. It is not simply that the threats failed to d eter him and were never carried out. It is that he seeks damages for mental distress, which runs smack into 42 U.S.C. §1997e(e). This stat ute provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional faci lity, for mental or emotional injury suffered while in custody without a prior showing of physical injury”. Wheeler does not say that Anglin’s or Johnson’s threats caused him physical injury, so he cannot recover compensatory damages for emotional injury.

We held in Calhoun v. DeTella , 319 F.3d 936, 940 (7th Cir. 2003), that despite the ope ning clause of §1997e(e)

— “[n]o Federal ci vil action may be brought”

— the statute does not block the filing of actions and permits the physical injury to be shown while the suit is under way . Moreover, because the statute does not make physical injury a precond ition to the award of punitive damages , it cannot logically be understood as forbidding the initiation of suit until physical injury has been demonstrated. But Wheeler has never tried to show physical injury and could not plausibly claim punitive damages, given the authority of wardens and oth er administrators to impose reasonable limits on prisoners’ speech. See, e.g., Thornburgh v. Abbott , 490 U.S. 401, 409

– 14 (1989); Turner v. Safley , 482 U.S. 78, 91 (1987). Nor has Wheeler established an entitlement to other relief, such as an injunction. H is complaint seeks equitable relief but his appellate brief does not mention that remedy, which forfeits the issue. Indeed, his appellate treatment of the First Amendment

— about two

- thirds of a single page

— is so superficial that it effectively fo rfeits the claim. Because §1997e(e) prevents an award of damages for the First Amen dment claim in this case, we need not discuss the merits of Wheeler’s theory.

Now for the Eighth Amendment claim. Wheeler contends that the prison ’s medical director, Dr. Paul Talbot, refused to remove his keloids surgically. (A keloid is an area of irregular fibrous tissue formed at the site of a scar or injury. ) Wheeler spoke to Talbot four times between December 2011 and October 2013 about itching, oozing, tende rness, and pain in hi s keloids. Before each of these visits, nurses provided Wheeler with oral and topical treatments to relieve any pain from the keloids.

The subject first arose during a hemorrhoid ex am, and Talbot did nothing then. The second time, Wheeler asked to have a two

- year

- old kel oid removed from his chest. Ta lbot gave the keloid a “cursory glance” and found intact skin and no signs of infection, distress, o r drainage. The third time, Talbot evaluated Wheeler’s keloids and found no open wounds or evidence of rubbing ; he concluded that the keloids were cosmetic blemishes that posed no risk of harm. The fi nal time, Talbot found that all of Wheeler’s keloids were small and had intact skin without redness. He again concluded (and told Wheeler) that they were purely cosme tic blemishes.No. 15

- 3325 Page 4

In this litigation Talbot attested without contradiction that surgical removal of Wheeler’s keloids was not advisable because of the “high risk” of their recurrence and be cause they appeared smooth and without signs of trauma , discoloration , or in fection.

We agree with the district court that no rational jury could co nclude that Wheeler’s keloid condition was a serious medical problem to which Wheeler was deliberately i ndifferent . See Farmer v. Brennan , 511 U.S. 825, 837 (1994); Petties v. Carter , 836 F.3d 722,
728 (7th Cir. 2016) (en banc). Talbot examined the keloids several times and found no signs of infection, oozing, bleeding, or trauma. Although Wheeler says that the keloids bled and oozed at other times, he does not contra dict Talbot ’s statements that they were intact during the several exams. Because those exams reason ably suggested to Talbot that the keloids were cosmetic problems only , Wheeler could not per suade a rational jury that surgery was medically advisable , let alone that a serious condition had been ignored . See Petties , 836 F.3d at 733; Pyles v. Fahim , 771 F.3d 403, 409 (7th Cir. 2014). Wheeler’s pain did require treatment, see Conley v. Birch , 796 F.3d 742, 747 (7th Cir. 2015); Greeno v. Daley , 414 F.3d 645, 655 (7th Cir. 2005), but he received that. Although Wheeler contends that surgery would have been more efficacious than the medicine the nurses provided , nothing in the record supports that con tention.

Before closing we must discuss Wheeler’s litigation history. He ha s bombarded the feder al courts as wel l as prison administrators . Wheeler filed and lost at least 14 federal suits before this one (which itself is two suits improperly joined) . The district court r equired Wheeler to list all of his previous suits and discl ose whether any of them is a “strike” for the purpose of 28 U.S.C. §1915(g), which requires prisoners to prepay the full docket fees if they have filed and lost three or more frivolous suits. Wheeler did not

answer correctly. He disclosed only 10 of his ea rlier suits and failed to notify the district court that in 3 of the 14 the district judge had stated expressly that the suit qualified as a strike. See Wheeler v. Walker , No. 05 C 4403 (N.D. Ill.) ( suit listed but strike not di sclosed); Wheeler v. Montes

, No. 08

- 3035 (C.D. Ill. ) ( suit not listed; strike not disclosed); Wheeler v. Merchant , 09

- C

- 114 (S.D. Ill.) ( suit listed but strike not disclosed). “ A litigant who knows that he has accumulated three or more frivolous suits or appeals must alert the court to that fact.” Ammons v. Gerlinger , 547 F.3d 724, 725 (7th Cir. 2008). Wheeler did not do so, and as a result both the district court and this court allowed him to lit igate in forma pauperis

.

H ad he provided the required information, Wheeler might have co ntended that the strike assessed by the district judge in Merchant was improper. A suit can be deemed frivolous under the statute only when the judge dismisses the entire suit on that ground

,
see Turley v. Graetz , 625 F.3d 1005, 1012 (7th Cir. 2010), which did not happen in Me rchant . But by keeping the di strict judge in the dark , Wheeler thwarted the sort of inquiryNo. 15

- 3325 Page 5

that would have revealed whether he is entitled to proceed without prepayment of the required fees. A litigant must present issues candidly to the judge and may not presume that, because (in the litigant’s view) a judge should rule in his favor, he is entitled to keep the judge in ignorance

.
Wheeler’s dishonesty has frustrated the administration of §1915 in both the district court and this court

. Wheeler was allowed to litigate this suit, in cluding the appeal, without pre payment of filing fees, but those fees are nonetheless due. He must now pay the fees due in both courts. Until he does so, he may not litigate in forma pauperis in any court of t his circuit. And Wheeler must understand

— and report to the courts in any f uture litigation

— that he has at least two statutory strikes, and that litigation in forma pa uperis will be curtailed by §1915(g) if he acquires a third. He may already have a third: a frivolous appeal, no less than a frivolous suit, qualifies as a strike. See Coleman v. Tollefson , 135 S. Ct. 1759 (2015) (discussing the operation of §1915(g)). We have not an alyzed the appeals in all 14 of Wheeler’s suits, but perhaps one or more of the m counts as a strike. Wheeler must make full disclosure about both his suits and his appeals in any future litigation.

A FFIRMED