Federal Civil Practice

Dist. Ct. did not err in granting defendant-State Police official’s motion for summary judgment in section 1983 action alleging that year delay in returning plaintiff’s firearms violated his Second Amendment rights, where firearms were initially taken from plaintiff after his FOID card was summarily revoked on perception that plaintiff had dangerous mental condition arising out of his threats to third parties. Plaintiff sued wrong person, since although defendant played role in initial revocation of plaintiff’s FOID card, he played no role in decision to restore plaintiff's FOID card and then to return plaintiff's firearms. Fact that defendant requested that plaintiff obtain three character references and favorable psychologist report as part of plaintiff’s application to restore his FOID card did not require different result.

In actions seeking reversal of Bd.’s denials of plaintiffs’ applications for concealed-carry gun permits, Dist. Ct. did not err in directing plaintiffs to reapply for said permits under new rules established by defendant subsequent to decisions made on plaintiffs’ applications. Old rules were deficient because they did not require defendant to disclose basis for denial of plaintiffs' applications, and new/current rules require defendant to set forth basis for denial and give plaintiffs opportunity to file additional information in response to original objection to issuance of permit. While plaintiffs contended that defendant would still fail to give enough information regarding reason for any future denial of their applications, plaintiffs’ concern was premature. Moreover, Ct. rejected plaintiffs’ argument that: (1) instant requirement that they obtain any concealed-carry permit violated Second Amendment; or (2) instant permit must be issued unless state proves existence of disqualifying condition by clear and convincing evidence, where Ct. found that plaintiffs actually had burden to establish entitlement to permit by preponderance of evidence.

Dist. Ct. did not err in denying plaintiff’s motion to set aside default judgment on defendant’s counterclaim, where: (1) said judgment was entered after plaintiff’s counsel’s pro hac vice status had been revoked and plaintiff had not obtained substitute counsel during subsequent seven-month period; and (2) plaintiff’s counsel’s status was restored on appeal of Dist. Ct.’s contempt order. Dist. Ct. could properly find that plaintiff had failed to demonstrate good cause to correct default judgment, where plaintiff had contacted, at most, 14 counsel during said period. Moreover, because corporations cannot proceed pro se, Dist. Ct. could properly enter default judgment after plaintiff had failed to secure replacement counsel and after plaintiff had failed to file response to counterclaim in five months. Also, Dist. Ct. could discredit testimony of plaintiff’s representative regarding efforts to obtain substitute counsel even though defendant had failed to present any contrary evidence on said issue, since court may find that witness is incredible based on lack of specific details, implausibility, internal inconsistencies and contrary evidence. Fact that plaintiff’s counsel had been improperly removed did not mandate that motion to set aside resulting default judgment be granted.

Dist. Ct. did not err in finding that defendant was entitled to attorney fees as “prevailing party” in instant copyright infringement action, where Dist. Ct. granted plaintiff’s motion to voluntarily dismiss with prejudice his claim against defendant after plaintiff had confirmed through responses to interrogatories that defendant had not infringed on his copyright. Moreover, Ct. rejected plaintiff’s claim that defense counsel had duty to mitigate instant fee request, and that defendant breached said duty by failing to seek dismissal of plaintiff’s claim at earlier stage of proceedings. However, remand was required, since Dist. Ct. erred in basing said award on defense counsel’s alleged hourly rate of $410, where plaintiff presented significant evidence that defense counsel’s actual rate was $250 per hour, which included engagement letter indicating that defense counsel agreed to charge defendant $250 per hour, as well as actual invoices to defendant indicating fees at $250 per hour.

Dist. Ct. did not err in entering judgment in defendant-Milwaukee alderman’s favor in section 1983 action by plaintiff-non-profit corporation offering low-income housing to disabled individuals, alleging that defendant’s harsh criticism and press releases critical of plaintiff’s operations constituted form of interference with its contracts with third-parties and violated Fair Housing Act, Rehabilitation Act and Americans with Disabilities Act (ADA). Plaintiff could not base section 1983 action on alleged violations of Rehabilitation Act or ADA, since: (1) plaintiff would not be able to sue defendant under either statute because defendant was not within category of individuals being liable under either statute; and (2) plaintiff could not use section 1983 action to essentially alter/expand categories of persons potentially liable in private actions under either statute. Moreover, under Noerr-Pennington doctrine, defendant’s First Amendment rights covering his political speech precluded plaintiff from basing instant 1983 action on any alleged violation of Fair Housing Act.

Dist. Ct. did not err in granting defendant’s motion to dismiss plaintiff’s action that challenged on First Amendment grounds Indiana statute that prohibited plaintiffs (elected office holders to municipal offices) from also being employed by same municipality to which plaintiffs held their elected offices. Instant statute was subject only to rational test, and instant statute otherwise fell squarely within bounds of Clements, 457 US 957, that upheld law requiring municipal candidates to resign from their employment positions prior to running for elected office in same municipality. Ct. rejected plaintiffs’ argument that instant statute implicated fundamental rights that deserved heightened scrutiny and further found that Indiana had compelling interest in avoiding corruption and self-dealing, where plaintiffs, as elected officials as elected officials, might have authority to set their own compensation for their employment positions.

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment in plaintiff’s section 1983 action alleging that defendants arrested him on charge of home invasion without probable cause. Defendants had probable cause to arrest plaintiff, since two individuals identified defendant as culprit. Fact that defendants did not investigate plaintiff’s alibi claim prior to his arrest was immaterial, since police may arrest and let judicial process determine whether defendant’s alibi defense applied. Ct. further rejected for lack of factual basis plaintiff’s contention that defendants searched his home without search warrant or that defendants directed plaintiff’s jailers to mistreat him. Also, plaintiff could not establish claim that police denied him fair trial by withholding exculpatory evidence, where plaintiff’s trial resulted in acquittal.

Dist. Ct. did not err in granting defendant-school board’s motion for summary judgment in section 1983 action alleging that defendant suspended plaintiff-teacher in violation of his First Amendment rights, where suspension followed incident in which plaintiff held discussion with his students about why term “nigger” should not be used in school. Under Garcetti, 574 US 410, plaintiff’s discussion with his students was not protected speech since plaintiff was performing his role as teacher (as opposed to his role as “citizen”) at time he made his statements. Fact that plaintiff’s discussion was impromptu or was attempt to quell student misbehavior did not require different result. Dist. Ct. also did not err in granting defendant’s summary judgment motion with respect to plaintiff’s due process claim, since: (1) plaintiff did not raise any procedural due process claim as he was aware of charges against him and was aware of defendant’s policy prohibiting teacher’s use of racial epithets in front of students; and (2) fact that said policy did not distinguish between educational use of “nigger” term and use of said term as racial slur directed toward student did not make instant policy unconstitutionally vague. Fact that students heard said term under few circumstances indicating school’s tacit approval, such as in activities involving literature and movies did not require different result.

Dist. Ct. did not err in denying plaintiff’s habeas petition challenging his civil commitment as sexually dangerous person, even though plaintiff argued that his due process rights were violated because govt. introduced into evidence his detailed, first-person accounts of his prior sex crimes. While Dist. Ct.’s dismissal was based on its finding that plaintiff had failed to exhaust his remedies in state judicial system, Ct. of Appeals found that plaintiff had satisfied exception to exhaustion requirement, where plaintiff alleged that there was no basis for his civil commitment at time it occurred. However, Ct. found no error in admission of said first-person accounts, where said accounts: (1) illustrated plaintiff’s psychiatric traits that allowed jury to evaluate whether his predisposition to commit sexual offenses had changed in 20 years; and (2) aided jury in resolution of necessarily uncertain issue as to whether plaintiff would re-offend even with sex-offender treatment.