Federal Civil Practice

Dist. Ct. did not err in dismissing portion of plaintiff-prisoner’s section 1983 action alleging that decision made by prison’s disciplinary panel, i.e., to transfer him to segregation and to revoke one month good-time credit for making false accusation about prison’s auto mechanic instructor, violated plaintiff’s First Amendment rights. Under Heck, 512 U.S. 477, plaintiff could not proceed on instant action seeking only monetary damages arising out of said decision, where, as here, such relief necessarily implied invalidity of said decision, and where said decision had not been set aside on collateral review or executive clemency. Fact that plaintiff had waived any challenge to duration of his confinement was irrelevant to his ability to bring instant action. However, Dist. Ct. erred in granting defendant-warden’s motion for summary judgment on plaintiff’s 8^th Amendment claim, alleging that extreme cold conditions of his segregation cell over 4-day period during power outage were cruel and unusual, since: (1) plaintiff’s description of his cell conditions was sufficient to establish 8^th Amendment violation; and (2) plaintiff’s allegation that defendant had actual knowledge of his cell conditions, and yet took no steps to alleviate said conditions was sufficient to establish deliberate indifference on part of defendant. (Dissent filed on 8^th Amendment issue.)

Ct. of Appeals lacked jurisdiction to consider defendants-school officials’ interlocutory appeal of Dist. Ct.’s denial of their motion to dismiss plaintiff-transgender student’s action alleging that defendants discriminated against him on basis of sex by failing to allow him to use boys’ bathroom. Although Dist. Ct. initially certified question for immediate review under section 1292(b), record showed that Dist. Ct. subsequently vacated its certification prior to Ct. of Appeals granting defendants’ petition seeking interlocutory appeal. Fact that there was separate appeal concerning Dist. Ct.’s subsequent partial grant of motion for issuance of preliminary injunction in plaintiff’s case did not allow Ct. of Appeals to consider instant appeal under doctrine of pendent jurisdiction.

Dist. Ct. did not err in granting defendant-City’s motion to dismiss plaintiff’s section 1983 action alleging that defendant’s failure to issue plaintiff 25 percent rebate check on City property taxes constituted unlawful taking in violation of 5^th and 14^th Amendments, where defendant had previously enacted ordinance allowing plaintiff and others to receive instant rebate upon completion of application and approval by City Clerk. Record showed that defendant subsequently repealed ordinance allowing for said rebate, and Ct. rejected plaintiff’s claim that original ordinance bestowed her with “vested right” that could not be taken away by subsequent ordinance, where: (1) plaintiff could not show more than mere expectation based on anticipated continuance of existing law; (2) original ordinance was remedial statute incapable of conferring vested rights; and (3) instant rebate program was discretionary measure that defendant was free to nullify under Illinois law. Fact that defendant had offered rebate program in prior years was immaterial.

Dist. Ct. did not err in granting defendants-federal and state agencies’ motions for summary judgment in action by plaintiffs-subcontractors alleging that defendants’ programs that provide advantages in highway construction projects to disadvantaged business enterprises (DBEs) that are primarily owned by minorities and women violate plaintiffs’ equal protection rights, where said programs direct states that accept federal highway funds to establish participation goals for DBE subcontractors on projects having subcontracting possibilities that, according to plaintiffs, serve to prevent them from obtaining said contracts. Federal DBE program is facially constitutional, where said program serves compelling government interest in remedying history of discrimination in highway construction contracting. Moreover, federal DBE program requires use of race and gender-neutral measures before turning to race and gender-conscious measures. Also, state DBE programs satisfied strict scrutiny test, where record showed need to remedy past discrimination in Illinois markets, and where programs were narrowly tailored to serve said remedial purposes, did not unduly burden third-party, non-DBE subcontractors and allowed front-end waivers of said goals.

Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in section 1983 action alleging that defendants were deliberately indifferent to his security needs by placing him in cell with cell-mate, who had sexual assault of woman conviction, where said cell-mate subsequently sexually assaulted plaintiff. While plaintiff alleged that he was perceived as being homosexual (and thus was more likely to be victim of sexual assault in prison setting), and that defendant’s practice of random assignment created instant danger, plaintiff failed to present evidence that defendants’ staff was aware that he was perceived by other prisoners as homosexual or that there was such perception within prison. Moreover, cell-mate had no history of sexual assault within prison, and thus defendants, who were not responsible for actual assignments of cells within prison, could not be viewed as deliberately indifferent to possibility that plaintiff would be sexually assaulted.

Dist. Ct. did not err in granting defendant’s motion for summary judgment in False Claims Act action alleging that defendant’s student recruitment and retention practices resulted in transmission of thousands of false claims for federal subsidies under Title IV of Higher Education Act. With respect to plaintiff’s claim based on implied false certification, plaintiff failed under Universal Health, 136 S.Ct. 1989, to present evidence showing that defendant made any representation in connection with its claims for payment outside of plaintiff’s bare speculation that defendant made misleading representations. Plaintiff further failed to establish that any misrepresentation was material in sense that government’s decision would likely or actually been different had it known of any alleged noncompliance with Title IV regulations.

In section 1983 action alleging that defendants-police officials used excessive force during plaintiff's arrest on charges of aggravated assault and resisting arrest, Dist. Ct. did not err in instructing jury that due to fact that plaintiff had been found guilty of aggravated assaulting and resisting arrest in prior criminal proceeding, it was required to accept that plaintiff had swung at direction of police officer and missed, as state court had previously found. Instruction was consistent with holding in Gilbert, 512 F.3d 899, which found that jury must be told that it must take as true facts proved at earlier criminal proceeding, and Ct. rejected plaintiff’s contention that jury instruction was erroneous because it relied on state court’s factual findings instead of language in criminal complaint. However, Dist. Ct., in citing to instant jury instruction, erred in precluding plaintiff from impeaching govt. witness with respect to statement officer made at prior criminal proceeding, since plaintiff was entitled to impeach said witness for inconsistencies in his testimony. However error was harmless, where officer’s prior testimony at criminal trial was consistent with state court’s factual findings. Also, while prosecutor erred in commenting on plaintiff’s prior conviction and in vouching for credibility of govt. witnesses, Dist. Ct. did not err in denying plaintiff’s motion for new trial, where said comments were brief, and where Dist. Ct. gave curative instructions.

Dist. Ct. did not err in dismissing plaintiff’s action seeking under Freedom of Information Act identity of Tier III terrorist groups, where defendant argued that such information was exempt from disclosure under section 7(E) of Act, since disclosure would reveal techniques and procedures for law enforcement investigations or prosecutions. Ct. agreed with defendant that withholding of names of terrorist organizations from alien who is being questioned about same is technique of law enforcement investigation that is squarely within 7(E) exemption.

Dist. Ct. did not err in denying plaintiffs-non-residents’ motion for issuance of preliminary injunction in action alleging that Illinois Concealed Carry Act violated their Second Amendment rights by denying them ability to carry firearms in Illinois because, although they have concealed carry licenses from their home states, they are not residents of states that have firearm laws substantially similar to Illinois Concealed Carry Act as required by said Act. Plaintiffs failed to show any entitlement to preliminary injunction since, unlike applications from Illinois residents, plaintiffs failed to establish how Illinois state police would be able to verify information contained in their applications or how they would be able to obtain updated information about non-resident applicants in order to monitor them throughout five-year period of license. (Dissent filed.)

Dist. Ct. did not err in granting defendant-police officer’s motion for summary judgment in section 1983 action alleging that defendant violated plaintiff’s 4^th Amendment rights, when it arrested him on charges of obstruction and resisting arrest after plaintiff had been initially stopped for playing loud music in his car. Record contained sufficient probable cause to support defendant's stopping and arresting defendant for speeding, and thus any issue as to whether defendant had probable cause to stop plaintiff for playing loud music or for arresting plaintiff for obstruction and resisting arrest was irrelevant. Fact that defendant did not arrest plaintiff for speeding did not require different result.