Federal Civil Practice

Dist. Ct. erred in granting defendants-police officials’ motion for summary judgment in section 1983 action alleging that defendants used excessive force when apprehending plaintiff, following chase of plaintiff from crime scene, where one defendant used police dog to bite plaintiff while plaintiff was located in swimming pool, and where another defendant, according to plaintiff, kicked, punched and stomped him after he had been removed from pool and was lying face down during pat down search. Dist. Ct. improperly made credibility determinations when holding that alleged use of force was not excessive, especially where plaintiff alleged that he was standing still with arms raised when one defendant arrived on scene with police dog, and that plaintiff had immediately complied with said defendant’s directives. Moreover, issue as to whether other defendant’s use of force during pat down search was reasonable was matter for jury. Fact that plaintiff lacked physical signs of injury from pat down search did not mandate finding that alleged use of force during said search was not excessive.

Dist. Ct. did not err in granting defendants’ motion for summary judgment in section 1983 action alleging that defendants violated plaintiff-dentist’s First Amendment rights by retaliating against him in 2004 when issuing cease and desist order with respect to treating patient for medical, as opposed to dental condition, and when initiating 2004 administrative complaint seeking to revoke his dental license after plaintiff had engaged in 1988 conversations with Deputy Governor about alleged mistreatment of plaintiff by defendants’ co-worker within Dept. of Finance and Professional Regulation. Plaintiff’s 2010 action was not timely in that it was filed more than 2 years from date of alleged retaliatory acts. Moreover, plaintiff failed to produce any evidence linking 1988 conversations to 2004 alleged retaliatory acts or showing that defendants’ explanations for issuing cease and desist order or for initiating administrative complaint were false.

Dist. Ct. did not err in dismissing plaintiff’s False Claims Act claim against defendant, alleging that defendant misreported transit data to Federal Transit Administration in order to secure inflated federal grant allocations, where basis for dismissal was finding that instant case fell within public disclosure bar under section 3730(e)(4) of False Claims Act. Record showed that plaintiff’s allegations had been publicly disclosed in Technical and Audit reports that had been previously tendered to govt., that instant action was based on information disclosed in said reports, and that plaintiff could not establish that it was original source of fraud allegations contained in said reports. Fact that complaint contained two additional claims did not require different result, where one claim was based on inference drawn from facts contained in reports and other claim pertained to same fraudulent conduct as publicly disclosed information.

Dist. Ct. erred in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging excessive force and deliberate indifference claims, where Dist. Ct. found that plaintiff had failed to exhaust internal administrative remedies prior to filing instant lawsuit as required under Prison Litigation Reform Act. While plaintiff failed to file written grievance within 15 days of his claim that defendants improperly shackled him to his hospital bed, record showed that defendants had failed to inform plaintiff of applicable grievance process while plaintiff was hospitalized, and thus exhaustion requirement did not apply to said claim. Moreover, while plaintiff was aware of grievance process with respect to his claim that defendants refused to help him transport himself from his wheelchair to his bed, record showed that plaintiff had filed his grievance within applicable time period prior to filing instant lawsuit, and thus plaintiff had exhausted any internal grievance procedure.

Dist. Ct. did not err in granting defendants' motion for summary judgment in plaintiff-police officer’s section 1983 action alleging that defendants’ requirement that he take voice stress/lie detector test as part of investigation into alleged police misconduct or face potential termination violated his right against self-incrimination. Public employees may be compelled to answer questions during investigation into allegations of misconduct as long as state does not use said responses in any subsequent criminal proceeding, and record showed that defendants had previously informed plaintiff that any statement he made during voice stress test would not be used against him in any criminal proceeding. As such, defendants were free to compel plaintiff to answer any questions, including incriminating ones.

Dist. Ct. did not err in granting defendant’s motion for summary judgment in plaintiff’s section 1983 action alleging that defendant-prison medical provider’s failure to implement particular Indiana Dept. of Correction’s Health Care Service Directive violated plaintiff-prisoner’s Eighth Amendment rights. Record showed that plaintiff died in prison from complications arising out of his laryngeal cancer, and although plaintiff claimed that defendant’s failure to adopt said Directive played role in his death, plaintiff could not establish any Monell claim against defendant where, although plaintiff may have presented some evidence that defendant’s employees were deliberately indifferent to his medical needs, plaintiff failed to present any evidence of defendant’s medical treatment with respect to any other inmate, so as to establish that defendant’s lack of policy caused any constitutional violation. (Dissent filed.)

Dist. Ct. erred in granting motion for summary judgment by certain defendants-prison officials in section 1983 action alleging that defendants were deliberately indifferent while plaintiff-prisoner was suffering from heart attack, where said defendants directed plaintiff to wait over four hours before allowing plaintiff to go to prison infirmary where others realized that plaintiff had serious cardiac problem. Dist. Ct. should not have credited defendant-prison doctor’s opinion that such delay did not cause damage to plaintiff’s heart, where said doctor was not expert in field of cardiology. Moreover, while Dist. Ct. properly granted summary judgment to defendant-prison guard who first encountered plaintiff (because said individual had no medical training and promptly reported plaintiff’s condition to others) and to defendant-prison doctor (since said individual was unaware of plaintiff’s condition until after delay had occurred), it could not properly award summary judgment to defendant-prison nurse and to defendant-prison lieutenant, where both individuals actually believed that plaintiff was having heart attack and yet failed to call 911.

Dist. Ct. did not err in dismissing for failure to state viable claim plaintiff’s action alleging that defendant violated Fair Debt Collection Practices Act (FDCPA) by writing letter to plaintiff, but sending said letter to plaintiff’s attorney that demanded payment of two debts that plaintiff claimed had been extinguished in prior settlement. While section 1692c of FDCPA prohibits contact with consumer regarding debts once consumer notified debt collector he is represented by counsel and prohibits debt collector from continuing to communicate with consumer once consumer has refused to pay, section 1692c did not apply, where section 1692c permits debt collector to freely communicate with plaintiff’s attorney. Fact that instant letter was actually addressed to plaintiff, but sent to plaintiff’s attorney, or that alleged debts had actually been discharged did not require different result. Moreover, instant letter was not impermissibly deceptive, since plaintiff’s attorney would be able to determine true status of any alleged debt.

Dist. Ct. did not err in finding that it lacked personal jurisdiction over defendants-Mexican hotel and Spanish corporation in action by plaintiff-Illinois decedent alleging that defendants’ actions caused decedent’s death in accident involving all-terrain vehicle while decedent was visiting Mexican hotel. Record showed that neither defendant conducted business in Illinois, and that neither defendant was subject to Illinois’ general jurisdiction. Fact that decedent booked her trip to Mexico through Orbitz’s website and paid for said trip through use of computer located in Illinois did not require different result, since activity that, according to plaintiff, formed basis of personal jurisdiction was done by decedent and not by either defendant.

Dist. Ct. erred in finding as unconstitutional Wisconsin statute that required plaintiff to wear GPS monitoring ankle bracelet upon his release from civil commitment that was imposed after completion of his sentences on two sexual assault of child convictions. While Dist. Ct. found that statute, which subjected plaintiff to 24-hour monitoring, violated 4^th Amendment as unreasonable invasion of plaintiff’s privacy, Ct. of Appeals found that instant monitoring of plaintiff was reasonable, where expert indicated that plaintiff had between 8 and 16 percent chance of committing another sexual assault of child, and where plaintiff was pedophile who was predisposed to committing sexually violent acts. Fact that plaintiff was no longer on any form of probation or supervised release at time ankle bracelet was attached, or that he was 73 years old did not render instant monitoring unreasonable. Moreover, fact that public could occasionally view plaintiff wearing ankle bracelet constituted only slight increase in loss of plaintiff’s privacy, which otherwise had been appropriately curtailed as result of his convictions. Ct. also rejected plaintiff’s claim that statute, which was enacted after he had been civilly committed, violated ex post facto clause, where Ct. found that statute did not impose “punishment” on plaintiff.