Federal Civil Practice

Dist. Ct. erred in granting defendant-prison medical official’s motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendant’s 3-week delay in sending plaintiff for follow-up visit to orthopedic surgeon violated plaintiff’s 8^th Amendment rights, where plaintiff alleged that said delay caused plaintiff’s wrist to heal at improper angle, which required plaintiff to endure two surgeries to repair said defect. While Dist. Ct. found that defendant’s decision to delay plaintiff’s return to orthopedic surgeon constituted mere difference in medical opinion which was not actionable in instant section 1983 action, reasonable jury could infer that defendant disregarded rather than disagreed with course of treatment directed by orthopedic surgeon, where: (1) instructions by orthopedic surgeon described risks posed to plaintiff from delay in obtaining follow-up treatment; and (2) plaintiff presented expert testimony, indicating that it was unreasonable for defendant, as general practitioner, to disagree with instructions given by specialist.

Dist. Ct. did not err in granting defendants-probation officials’ motion for summary judgment in section 1983 action alleging that defendants’ continued detention of plaintiff-convicted sex offender in county jail 54-weeks beyond his mandatory release date pursuant to Wisconsin Administrative Directive (AD) No. 02-10 until plaintiff could secure suitable housing violated plaintiff’s 8^th Amendment and due process rights. Under applicable supervision rules, all sex offenders were required to obtain approved housing and were not permitted to be homeless once released from prison, and AD 02-10 was promulgated based in part on Dept. of Corrections’ authority to detain sex offenders on supervised release to prevent possible violation of requirement that sex offenders live in approved housing. Moreover, defendants were entitled to qualified immunity, where it was not clearly established under either federal or Wisc. case law that AD 02-10 violated any constitutional rights of sex offenders, especially where plaintiff’s release on his mandatory release date at time when he had no approved housing would have generated probation violation that would have allowed for his continued detention. (Partial dissent filed.)

Dist. Ct. did not err in granting plaintiff’s motion to remand to state court instant breach of contract claim that had been removed to federal court, where contract between parties contained service of suit clause that allowed plaintiff absolute discretion to chose forum for litigating instant matter. Moreover, Ct. rejected defendant’s claim that its right to remove instant case was not waivable, or that presence of arbitration clause in contract rendered service of suit clause ambiguous and unenforceable.

Dist. Ct. did not err in granting defendant’s motion to dismiss plaintiff’s False Claims Act action alleging that defendant presented false/fraudulent claims for unnecessary medical services to U.S. govt. and State of Wisconsin, where basis for dismissal was Dist. Ct.’s belief that plaintiff had failed to sufficiently plead claim of fraud with particularity as required under Rule 9(b). Under heightened pleading requirements set forth in Rule 9(b), plaintiff must describe “who, what, when where and how” of alleged fraudulent conduct, and plaintiff’s allegations failed to meet said standard with respect to her claims regarding defendant’s evaluation process, mandatory drug screenings and policies on prescription refills and appointments, since she failed to allege any medical, technical or scientific context that would explain why defendant’s alleged actions amounted to unnecessary care. Plaintiff’s allegations also depended entirely on her personal estimation of fraudulent conduct that did not have sufficient foundation. However, plaintiff’s allegations were sufficient with respect to defendant’s alleged use of certain billing code for psychological services, where plaintiff alleged that defendant applied said code for services rendered by individuals whose job description did not include making psychological assessments. (Partial dissent filed.)

Ct. of Appeals dismissed as untimely plaintiff’s appeal of Dist. Ct.’s order granting defendants’ motion for summary judgment in plaintiff’s ADA and Title VII action, where plaintiff sought and received 51-day extension of time to file notice of appeal, and where said extension of time exceeded allowable 30-day extension of time for filing notice of appeal set forth in Rule 4(a)(5). Ct. rejected plaintiff’s contention that 30-day limitation set forth in Rule 4(a)(5) did not apply because Dist. Ct. did not consider it when granting instant extension, or that defendants waived any timeliness argument by failing to initially raise it.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiff’s action alleging that defendant’s implementation of car impoundment-related ordinances following arrest of one plaintiff on charge of possession of controlled substance violated plaintiffs’ 4^th Amendment rights. Record showed that: (1) plaintiff-owner of car challenged instant impoundment two days after arrest of other plaintiff; (2) ALJ determined that probable cause existed to impound vehicle because it contained unlawful drugs; and (3) owner was required to pay $2,000 penalty plus $180 in storage and towing fees due to her violation of city ordinance (section 7-24-225). Ct. rejected that plaintiffs’ contention that said ordinances were invalid in all circumstances under 4^th Amendment even though said ordinances allowed warrantless seizures of vehicles and allowed non-judicial officer to determine existence of probable cause. Ct. further noted that: (1) there was no difference in instant warrantless seizures allowed under section 7-24-225 and those authorized under White, 525 US 559, since warrantless seizure is not unreasonable, where officer has probable cause to believe that vehicle was used in some sort of violation of law; and (2) plaintiff’s complaint regarding use of non-judicial officer for probable cause determination concerns post-seizure procedures that do not implicate 4^th Amendment.

In section 1983 action alleging that defendants violated plaintiff-Christian daycare’s due process rights, when they revoked plaintiff’s registration due to alleged violations of various statutes and regulations without providing opportunity to be heard on issue, Dist. Ct. erred in dismissing plaintiff’s individual capacity claims against defendants, after finding that defendants were entitled to qualified immunity. While Dist. Ct. found that defendants were entitled to qualified immunity because applicable state procedures did not provide for administrative appeals, and thus defendants did not act contrary to established law for refusing to give plaintiffs any hearing on said violations, Ct. of Appeals found that defendants were not entitled to qualified immunity because law was clear that due process required that plaintiff be given pre-deprivation hearing, where plaintiff had property interest in registration as child care ministry. Fact that administrative scheme did not provide for some sort of pre-deprivation hearing did not require different result, where defendants could have arranged for such hearing, and plaintiff's opportunity to remedy any alleged violations before losing its registration was not same as giving plaintiff opportunity to contest said violations.

 Dist. Ct. erred in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendants violated plaintiff’s 8^th Amendment rights by ordering him to walk down prison staircase that was littered with spilled milk and garbage while plaintiff was handcuffed, where plaintiff subsequently fell on stairs and was knocked unconscious. While

Ct. of Appeals denied plaintiff’s request for initial en banc review of Dist. Ct.’s order directing defendant-State of Wisconsin to permit voters without qualifying photo ID to vote in November 2016 election, as long as voter signs affidavit stating that obtaining photo ID was unreasonably difficult. While plaintiffs argued that initial review of Dist. Ct.’s order was essential due to need to resolve appeals in order to have sufficient time to put Ct.’s decision into effect for November 2016 election, defendants provided assurance that free temporary credentials would be provided to all qualified voters who make one-time visit to Department of Motor Vehicle facility, even though said voters lacked birth certificate or other proper document. As such, initial en banc hearing was not required.

Dist. Ct. did not err in granting defendant-Village’s motion for summary judgment in plaintiff-slaughterhouse’s section 1983 action alleging that defendant’s actions in increasing enforcement of Village’s regulations regarding plaintiff’s operation of slaughterhouse, as well as its direction to defendant to propose relocation its slaughterhouse and its threat to bring future nuisance abatement lawsuit against plaintiff violated plaintiff’s procedural due process and equal protection rights, where plaintiff’s threat of future lawsuit resulted in plaintiff losing critical financing and having to close its operations. Defendant’s action in giving notice of future lawsuit did not constitute deprivation of due process, since: (1) defendant’s actions did not actually forbid plaintiff from performing slaughterhouse operations; and (2) plaintiff would still have opportunity to be heard on its dispute with defendant at future nuisance abatement lawsuit. Moreover, plaintiff had received notice and opportunity to be heard at several public hearings conducted by defendant to discuss plaintiff’s slaughterhouse operations, as well as complaints about plaintiff‘s operations from its neighbors. Also, with respect to plaintiff’s equal protection claim, plaintiff failed to present evidence of suitable comparative business who received more favorable treatment.