In the United States Court of Appeals For the Seventh Circuit

Transcription

1 No In the United States Court of Appeals For the Seventh Circuit JEFFREY ALLEN ROWE, Plaintiff-Appellant, v. MONICA GIBSON, et al., Defendants-Appellees. Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division No. 1:11-cv SEB-DKL Hon. Judge Sarah Evans Barker, Presiding RESPONSE TO PETITION FOR REHEARING EN BANC Linda T. Coberly WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL (312) Attorney for Plaintiff-Appellant Jeffrey Allen Rowe

2 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: Short Caption: Jeffrey Allen Rowe v. Monica Gibson, et al. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P by completing the item #3): Jeffrey Allen Rowe (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Winston & Strawn LLP (3) If the party or amicus is a corporation: (i) Identify all its parent corporations, if any; and Not applicable (ii) List any publicly held company that own 10% or more of the party s or amicus stock: Not applicable Attorney s Signature: /s/ Linda T. Coberly Date: November 9, 2015 Attorney s Printed Name: Linda T. Coberly Please indicate if you are Counsel of Record for the above listed party pursuant to Circuit Rule 3(d). Yes Address: Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois Phone Number: (312) Fax Number: (312) Address: lcoberly@winston.com i

3 TABLE OF CONTENTS CIRCUIT RULE 26.1 DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii INTRODUCTION... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 8 I. The lead opinion s discussion and use of Internet research is far narrower than the Petition contends A. The lead opinion uses Internet research only to explain and underscore the dispute of fact shown in the record... 8 B. The lead opinion does not impose a requirement or an expectation that judges do independent factual research C. The lead opinion does not require judges to appoint experts for the benefit of pro se litigants II. The discussion of Internet research is neither precedential nor necessary to the decision CONCLUSION ii

4 TABLE OF AUTHORITIES CASES Page Berry v. Chicago Transit Authority, 618 F.3d 688 (7th Cir. 2010)... 9, 14 Carroll v. Yates, 362 F.3d 984 (7th Cir. 2004)... 9, 14 Catalan v. GMAC Mortg. Corp., 629 F.3d 676 (7th Cir. 2011)... 4 Cooper v. Casey, 97 F.3d 914 (7th Cir. 1996)... 9, 14 Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005)... 9 Gregg v. Georgia, 428 U.S. 153 (1976) Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008)... 9 Huang v. Gonzales, 403 F.3d 945 (7th Cir. 2005) Ledford v. Sullivan, 105 F.3d 354 (7th Cir. 1997) Marks v. United States, 430 U.S. 188 (1977)... 1,7,13 Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003)... 9, 14 Pickett v. Sheridan Health Care Center, 664 F.3d 632 (7th Cir. 2011) Stephens v. U.S. Airways Group, Inc., 644 F.3d 437 (D.C. Cir. 2011) Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653 (7th Cir. 2010)... 9, 14 iii

5 United States v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000) RULES AND STATUTES 28 U.S.C Fed. R. App. P. 35(a)... 2 Fed. R. Civ. P , 14 Fed. R. Evid iv

6 INTRODUCTION En banc review in this Circuit is exceptionally rare, and it should not be granted in this case. The panel s decision does not purport to resolve the questions on which the Petition seeks review (see Pet. 1), and it certainly does not do so in a way that would require this Court to rehear the matter en banc. Nor is the resolution of these questions necessary to this case s outcome. As both the lead and concurring opinions make clear, the panel held that the summary judgment record presented in the district court was sufficient to raise a genuine dispute of material fact for trial. Viewed in that light, the panel s decision to vacate the award of summary judgment is both correct and unremarkable. To be sure, the lead opinion and the dissent also engage in a lively debate about the extent to which judges may cite non-legal authorities and, specifically, authorities found on the Internet. But the lead opinion does not purport to make those authorities the basis of its decision. To the contrary, it cites them only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence. Slip Op. 14. And while the Petition complains that the lead opinion requires judges to perform Internet research and appoint experts, the lead opinion itself says otherwise. See id. at Moreover, to the extent the lead opinion calls for an examination of anything beyond the summary judgment record, it is not precedential. The concurring opinion by Judge Rovner contains the narrowest reasoning supporting the Court s judgment. As a result, under Marks v. United States, 430 U.S. 188 (1977), the con- 1

7 curring opinion must be understood to be the holding of the Court. That holding does not call for en banc review in any respect. Ironically, the Petition itself reflects an inappropriate emphasis on citations to the Internet. After the panel issued its decision, a number of bloggers in the legal blogosphere seized upon the disagreement between the lead opinion and the dissent and wrote blog posts highlighting the debate. The Petition cites those posts prominently. Pet But this Court s evaluation of whether to rehear a case en banc should rest not on what others have said about the decision but on what the panel actually held and on whether that holding presents a question of exceptional importance or conflicts with prior decisions of this Court. See Fed. R. App. P. 35(a). The panel s holding in this case does not. To the extent this Court wishes to engage in a broader assessment of the issue of Internet research in judicial decisions, it should wait for a case where that issue makes a difference. STATEMENT Plaintiff Jeffrey Allen Rowe an inmate in the Indiana prison system suffers from reflux esophagitis, a painful digestive condition. Without proper treatment, he experiences severe pain after eating. The symptoms of this condition can be managed safely and effectively with a drug called ranitidine. For nearly two years, prison physicians provided Mr. Rowe with a prescription for ranitidine, in its over-the-counter strength of 150 mg (sold under the trade name Zantac). When that prescription ran out, however, a prison nurse refused to refill it, instructing Mr. Rowe to buy it from the prison commissary instead. Because Mr. Rowe is indigent, 2

8 he could not afford to buy what he needed, so he continued to pursue the necessary treatment from medical staff. Ultimately, prison physician and defendant Dr. Wolfe agreed to refill the prescription. Nevertheless, prison officials and medical staff denied Mr. Rowe the ability to take his medication when he needed it at mealtimes. During the relevant period, his meals were provided each day at (incredibly) 4:00 am and 4:00 pm, but his medication was delivered at 9:30 am and 9:30 pm many hours after mealtimes, and too late to prevent the onset of symptoms. Mr. Rowe filed a grievance on that basis, reporting that when he was not able to take the medication with his meals, he experienced severe pain. The medical staff could have remedied this easily by providing each dose of the medication to Mr. Rowe in advance, to keep in his cell and take with his next meal as needed. Yet prison officials would not permit Mr. Rowe to have the prescribed medication in his cell, nor would they deliver it with meals. Acting pro se, Mr. Rowe brought suit against prison officials and medical staff under 42 U.S.C Among other things, he claimed that their insistence on providing the medication on a schedule that made it ineffective to treat his condition reflected a deliberate indifference to a serious medical need and thus violated his constitutional rights. 1 As the panel s decision reflects, Mr. Rowe s complaint and declarations showed that he suffers severe pain from his condition, not just [o]ccasional ongoing heartburn, as Defendants now contend. E.g., Pet Rowe also brought a second deliberate indifference claim and a retaliation claim, but the Petition only addresses the Court s decision on his claim relating to the timing of Mr. Rowe s doses of Zantac between January to July 2011 and after August Pet. 4. 3

9 Ultimately, Defendants moved for summary judgment, arguing (among other things) that the administration of Zantac at 9:30 am and 9:30 pm was sufficient to meet the standard of care. In support of this motion, one of the defendants prison physician Dr. Wolfe opined that Zantac is fully effective for 12 hours and need not be taken with meals. Although Mr. Rowe moved for the appointment of an expert of his own, the district court denied that motion. Dist. Ct. Dkt. 36, 75. The district court accepted and relied on Dr. Wolfe s opinion about Zantac, stating (as an established fact) that Zantac is fully effective for twelve-hour increments and does not have to be taken before or with a meal to be fully effective. Dist. Ct. Dkt. 149, at 5. On that basis, the court granted summary judgment for Defendants on the relevant claim. Id. at 6; Dist. Ct. Dkt. 108, at 4 5. Again appearing pro se, Mr. Rowe appealed to this Court, which ruled 2-1 that the judgment should be vacated and remanded for further proceedings. A majority of the panel concluded that the summary judgment record was sufficient on its own to raise a genuine issue of material fact. Slip Op. 10; id. at 27 (Rovner, J., concurring). As Judge Rovner explained in her concurring opinion, Rowe has consistently maintained that he experiences hours of severe pain if he does not take Zantac with his meals, and at this stage of the proceedings his assertions of extreme pain must be credited. Id. (citing Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011)); accord id. at 10 (lead opinion, Posner, J.) (concluding that the district court should have credited Rowe s repeated attestation in his verified federal complaint and his declarations that he experienced pain for [five and a half 4

10 hours after eating] when he was not allowed to take Zantac with or shortly before his meals ). Further, both the lead opinion and the concurrence conclude that the off-the-cuff medical opinion in Dr. Wolfe s affidavit was insufficient to support summary judgment, as this opinion was presented by a defendant in the case, was inconsistent with that defendant s prior conduct, did not disclose its basis, and did not reflect any particular expertise in gastroenterology. Id.; see also id. at 27 (Rovner, J., concurring). This analysis was and is sufficient to support an order vacating the district court s judgment. In the course of its reasoning, the lead opinion also cites and relies on various medical texts and Internet sources, including the Mayo Clinic s definitions of reflux esophagitis, its discussion of possible treatments, an online directory s account of the qualifications and expertise of Dr. Wolfe, and the instructions for over-thecounter Zantac as published by the drug s manufacturer. E.g., Slip Op. 2 3, 6 8. This is not particularly unusual; indeed, Internet sources also appear in the underlying decisions by the district court. See, e.g., Dist. Ct. Dkt. 159, at 3 nn. 3, 5 (citing the online version of the American Heritage Stedman s Medical Dictionary, as well as the Mayo Clinic s definition of esophagitis). For some of these materials specifically, the contents of the instructions published by Zantac s manufacturer the Court would be entitled to take judicial notice. See Slip Op The other materials are all from reputable sources and served to corroborate the evidence that Mr. Rowe had already presented. 5

11 The lead opinion explains that it cites these materials for a limited purpose: only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely Rowe s reported pain. Slip Op. 14; accord id. at 16 ( The web sites give credence to Rowe s assertion[,]... [b]ut the information gleaned from them did not create a dispute of fact that was not already in the record. ) (emphasis in original). Still, dissenting Judge Hamilton took issue with the citation of Internet research and expressed several concerns about that approach. The lead opinion addresses those concerns further in a separate Appendix. It is that debate between the lead opinion and the dissent ancillary to the core reasoning and result in this case that has drawn the attention of various bloggers (Pet. 2 3) and is the focus of the current Petition. SUMMARY OF THE ARGUMENT This Court should deny Petitioners request for rehearing en banc. The Petition overstates the lead opinion s reliance on Internet research and mischaracterizes its holding, all in an effort to conjure up problems concerning the operation of federal courts. Pet. 1. Additionally, Petitioners argument that the lead opinion conflicts with prior decisions of this Court overlooks the opinion s explicit statements about how it is (and is not) using that research. To be sure, the lead opinion discusses information gathered from medical and pharmaceutical websites. But it does not hold that judges must conduct independent research, nor does it say that they must appoint experts for the benefit of pro se litigants. To the contrary, the lead opinion specifically explains that it is citing Internet research here only to underscore an issue of material fact already demon- 6

12 strated by the summary judgment record. Further, the lead opinion specifically ties its use of Internet research to the circumstances of this case where the plaintiff lacked access to counsel or to an expert witness of his own to rebut an expert on the defense side, thus impairing the usual function of the adversary process. Slip Op. 15. This is neither extraordinary nor concerning, and it does not require reconsideration by this Court en banc. In any event, the discussion of Internet research in the lead opinion was not and is not necessary to the outcome of this case. Indeed, it is not even precedential. As the Supreme Court explained in Marks v. United States, 430 U.S. 188 (1977), the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. Id. at 193 (citation and internal quotation marks omitted). Even if the lead opinion had actually found the material obtained through Internet research to be an additional reason to rule in Mr. Rowe s favor, the concurrence did not. The concurrence thus contains the narrowest grounds for supporting the judgment and, therefore, represents the holding of the Court. Id. That holding does not raise questions of exceptional importance, nor does it create a precedent that conflicts with this Circuit s case law. This too provides this Court with ample reason to deny rehearing en banc. 7

13 ARGUMENT I. The lead opinion s discussion and use of Internet research is far narrower than the Petition contends. The Petition rests on an overreading of the lead opinion. As discussed below, the lead opinion uses Internet research for a limited purpose: to underscore and explain the issue of fact that Mr. Rowe raised in the summary judgment record, using conventional evidence. The lead opinion does not purport to resolve any party s rights based on evidence that the party has not had an opportunity to crossexamine. Nor does it require judges in pro se cases to conduct independent research on the Internet or otherwise or to appoint experts for pro se plaintiffs. In short, the lead opinion is far narrower than the Petition suggests. A. The lead opinion uses Internet research only to explain and underscore the dispute of fact shown in the record. As the lead opinion explains, this case presented an unusual circumstance. As a pro se litigant, Mr. Rowe was faced with the prospect of challenging an expert opinion presented by one of the defendants an opinion that had significant vulnerability. Slip Op. 5 6, 14 16, 18, 24. Under the circumstances, he was at an extreme disadvantage in trying to challenge the affidavit of a hostile medical doctor (in this case really hostile since [he was] a defendant in the plaintiff s suit). Id. at 17 (emphasis in original). Nevertheless, Mr. Rowe was able to mount such a challenge using his own allegations and declarations, which attested that he suffered extreme pain when he was not allowed to take Zantac with or shortly before his meals. Id. at 10. As the lead opinion explains, [f]or purposes of summary judgment his attestations of extreme pain must be credited. Id. (citing 28 U.S.C. 8

14 1746; Fed. R. Civ. P. 56(c)); see Cooper v. Casey, 97 F.3d 914, (7th Cir. 1996) (a person s reports of pain are uniquely subjective and raise an issue for the jury). Accord Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) ( a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts ); see also Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010) (to survive summary judgment, a non-moving party does not need to provide corroboration of her firsthand observation ); Trinity Homes LLC v. Ohio Cas. Ins. Co., 629 F.3d 653, 660 (7th Cir. 2010) (a self-serving affidavit based on personal knowledge and providing factual details may establish a genuine issue of material fact); Carroll v. Yates, 362 F.3d 984, 985 (7th Cir. 2004) (inmate s selfserving affidavit stating that he had no notice of a hearing was evidence controverting defendant s assertion that plaintiff refused to attend the hearing); cf. Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008) (to notify medical staff of a serious medical need, an inmate need not corroborate his statement that he is in pain with objective medical evidence); Greeno v. Daley, 414 F.3d 645, (7th Cir. 2005) (same). Based on the evidence of record, the lead opinion identifies an issue of fact: whether over-the-counter-strength Zantac was a sufficiently effective treatment for Mr. Rowe s condition when it was administered many hours after mealtime. The Internet research underscores this conclusion, confirming that the issue of fact raised by Mr. Rowe s affidavit was a genuine one. E.g., Slip Op. 14 (citing Internet research only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely 9

15 Rowe s reported pain ). For example, the instructions provided by Zantac s manufacturer confirm that the 150-mg version of Zantac should be taken 30 to 60 minutes before eating food or drinking beverages that cause heartburn. Id. at 6 7 (quoting Zantac website). But while references like this may give credence to Rowe s assertion[,] the lead opinion states that the information gleaned from them did not create a dispute of fact that was not already in the record. Id. at 16 (emphasis in original); accord id. at 28 (Rovner, J., concurring). Similarly, the Internet resources cited by the lead opinion were not used to resolve any party s claim or defense. They were simply used to illustrate why it was inappropriate to deny relief on Mr. Rowe s claims as a matter of law, based on the current summary judgment record. This case is thus markedly different from Pickett v. Sheridan Health Care Center, 664 F.3d 632, (7th Cir. 2011), cited at Pet. 2, 13, where the district court actually resolved and quantified a claim based on materials drawn from Internet research without giving either party the opportunity to be heard about the merits of those materials. Accord Huang v. Gonzales, 403 F.3d 945, (7th Cir. 2005), cited at Pet. 2, 13. Here, before any damages are awarded or liability imposed, Defendants will have a full and fair opportunity to present their case and challenge any evidence presented against them. Defendants complaint that they must now rebut[] the Internet is overblown. See Pet. 7. Their position on remand will be no different than when they were briefing summary judgment in the first place; they must rebut whatever evidence Mr. Rowe presents, including his declaration that a dose of 150-mg Zantac 10

16 more than five hours after each meal was inadequate to control his pain. And they must do so with more than simply an off-the-cuff medical opinion that lacks any proper basis or proper expert qualifications. The very same well-developed rules and methodologies governing opinion evidence that Petitioners now cite (Pet. 8) should have led the district court to discount the suspect opinion evidence proffered by their Dr. Wolfe on summary judgment (see Slip Op. 10; id. at 27 (Rovner, J., concurring)). Given that their opponent was pro se throughout the proceedings below and may well be so again, Defendants are hardly in a position to complain that they are at an unfair disadvantage. B. The lead opinion does not impose a requirement or an expectation that judges do independent factual research. Petitioners also overread the lead opinion when they claim that it finds that trial judges should perform factual research on behalf of pro se parties. Pet. 7. In fact, it says no such thing. The lead opinion could not have been more explicit about this. See Slip Op. 22 ( The [dissent s] statement that the majority opinion holds in essence that the district judge erred by not doing such independent factual research is mistaken. There is no such holding or suggestion in the opinion. ) (emphasis in original); id. at 23 ( [T]he dissent repeats its contention that the majority is insisting that district judges conduct Internet research.... No. ); id. at 24 ( The parade of horribles on this and other pages of the dissent... is based on a belief that the majority is ordering that the district judge on remand do her own Internet research. Not so. ); id. at 25 ( The dissent again states that we are requiring judges to conduct their own factual research. No. ). The lead opinion explains that the Internet re- 11

17 search was simply to assure the existence of a genuine issue of material fact (id. at 14), and that the district judge did not need to do outside research but instead should have recognized the factual dispute about Zantac s effectiveness (id. at 23). In other words, the lead opinion explicitly does not and cannot be reasonably interpreted to require judges to do their own factual research. Petitioners therefore cannot seek rehearing en banc on that basis. C. The lead opinion does not require judges to appoint experts for the benefit of pro se litigants. The lead opinion also does not mandate that district judges appoint experts to help pro se litigants. See Pet In fact, it is not even clear that the lead opinion necessarily requires the appointment of an expert in this case. Although it urge[d] that the district judge give serious consideration to appointing an expert on remand (Slip Op. 19), the panel did not evaluate whether the denial of an expert would or did represent an abuse of discretion. Further, as Petitioners point out, the lead opinion makes no change in the requirements set forth in Rule 706 and Ledford v. Sullivan, 105 F.3d 354 (7th Cir. 1997). See Pet. 10. Accordingly, it does not create a conflict in this Circuit s case law. At most, the lead opinion s reasoning might suggest that in pro se cases where the defendants intend to rely on expert opinions to defeat summary judgment, it would be appropriate to ask the defendants to pay for an expert for their pro se opponent as well. But that is far from a blanket rule requiring the appointment of experts in every case where the plaintiff is proceeding pro se. 12

18 Moreover, even if an independent expert would help Mr. Rowe, he does not necessarily need an expert to survive summary judgment or to win at trial. Slip Op. 24 ( The dissent states: Without an expert witness qualified to present the facts and opinions the majority finds persuasive, that information does not come into evidence. This implies that without an expert witness, a party cannot defeat a motion for summary judgment. That isn t true. If a jury believed Rowe, he would win. ). In this respect too, therefore, there is no basis for en banc review. II. The discussion of Internet research is neither precedential nor necessary to the decision. Even if the lead opinion here had reached farther than it did, there would still be no reason to grant en banc review, as the opinion is not precedential. Judge Rovner s concurrence contains the narrowest basis for the panel s resolution of this case, and therefore her opinion states the Court s holding. See Marks v. United States, 430 U.S. 188, 193 (1977) ( When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)); United States v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (applying Marks to interpret an en banc decision of this Court); Stephens v. U.S. Airways Group, Inc., 644 F.3d 437, 442 n.1 (D.C. Cir. 2011) (applying Marks to interpret a decision of a threejudge panel). 13

19 Judge Rovner s concurrence relies entirely upon the record to vacate the district court s summary judgment decision. See Slip Op. 27 ( To be clear, I do not believe that the resolution of this case requires any departure from the record.... ) (emphasis in original); id. at 28 ( That the manufacturer s website and other reputable medical web sites support the plausibility of his testimony merely illuminates the factual dispute that exists within the record as we received it; they are not necessary to the outcome. ). Her opinion concludes that Rowe s own assertions about his pain are sufficient to counter Dr. Wolfe s statement that Zantac is effective if administered twice a day. This is an unremarkable application of Rule 56, particularly in light of this Court s precedent holding that a self-serving affidavit is sufficient to defeat summary judgment if it is based on personal knowledge and sets forth specific facts showing there is a genuine issue for trial. E.g., Payne, 337 F.3d at 773; Berry, 618 F.3d at 691; Trinity Homes, 629 F.3d at 660; Carroll, 362 F.3d at 985; see also Cooper, 97 F.3d at Here, Rowe s assertion that he experienced more pain when he took Zantac five and half hours after eating than when he took Zantac with his meals was based on his own personal knowledge and experience and contradicted Dr. Wolfe s statement that Zantac is equally effective no matter what time it is taken. Under this Court s cases, that assertion should have been credited and was enough by itself to defeat summary judgment. As the holding of the Court under Marks, Judge Rovner s concurrence represents a straightforward and uncontroversial application of Rule 56 and this 14

20 Court s precedents with respect to summary judgment. For this reason too, rehearing en banc should be denied. CONCLUSION Petitioners overread the lead opinion and overstate its implications for the federal courts. Because Mr. Rowe had limited resources and the defense s evidence was highly vulnerable, Slip Op. 10, the lead opinion looks to medical and pharmacological references on the Internet to better understand and reaffirm the genuineness of an issue of fact already evident in the record. The lead opinion does not require judges to conduct independent factual research, nor does it require judges to appoint experts to help pro se litigants. And in any event, Judge Rovner s opinion, which states the narrowest grounds for the decision, does not consider any materials outside the record and is sufficient on its own to support the judgment. Internet debates aside, this is not one of those rare cases that warrant consideration by this Court en banc. Respectfully submitted. /s/ Linda T. Coberly Linda T. Coberly WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL (312) Attorney for Plaintiff-Appellant Jeffrey Allen Rowe NOVEMBER 9,

21 CERTIFICATE OF SERVICE I hereby certify that, on November 9, 2015, I caused the foregoing RESPONSE TO PETITION FOR REHEARING EN BANC to be electronically filed with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. All participants in the case are registered CM/ECF users and will be served by the CM/ECF system. DATED: NOVEMBER 9, 2015 /s/ Linda T. Coberly LINDA T. COBERLY i