Federal Civil Practice

Dist. Ct. did not err in dismissing without prejudice for lack of subject-matter jurisdiction plaintiffs-securities firms’ action seeking to recover fees that defendants-national securities exchanges charged under their “payment for order flow” (PFOF) programs, after defendants had removed instant case to federal court, where dismissal was based on plaintiffs’ failure to exhaust administrative remedies. While plaintiffs alleged that defendants improperly charged PFOF fees on millions of stock option orders that should not have been subjected to said fees, final rulings by security exchanges are subject to administrative review by SEC under Exchange Act, and plaintiffs failed to show that they had no meaningful administrative remedy prior to filing instant lawsuit. Ct. rejected plaintiffs’ arguments that there was no need for administrative review because: (1) defendants had acted outside their regulatory function and had acted solely in their private capacity when assessing said fees; and (2) SEC could not provide adequate remedy.

Dist. Ct. erred in dismissing plaintiff-civilly-committed prisoner’s section 1983 action against defendants (employees of facility housing plaintiff) alleging that defendants abused him on account of his homosexuality by uttering homophobic slurs and encouraging other inmates to sexually abuse plaintiff and retaliated against plaintiff for complaining about said mistreatment by suspending him from his vocational training program. While Dist. Ct. found that plaintiff failed to state viable due process claim because prisoners do not have protectable interest in prison jobs, Ct. of Appeals found that plaintiff stated viable 8^th Amendment claim, where instant alleged verbal abuse had increased potential for plaintiff becoming victim of sexual assaults. Moreover, plaintiff’s allegations of retaliation for complaining about abuse adequately supported his First Amendment claim, and plaintiff’s suspension from vocational program could be viewed as substantial departure from accepted professional treatment.

Dist. Ct. did not err in denying plaintiffs’ request for preliminary injunction in their section 1983 action alleging that defendants violated their First Amendment rights by amending certain zoning ordinances that precluded plaintiffs from operating adult-entertainment business from location of their recently-purchased restaurant. Plaintiffs attacked 750-foot residence buffer-zone requirement contained in one ordinance, and record showed that plaintiffs were unlikely to prevail on merits of case, since: (1) plaintiffs failed to present any evidence to contest defendants’ evidence that subject ordinances were designed to reduce negative secondary effects of adult entertainment establishments; and (2) defendants identified several other land parcels where adult-entertainment businesses could operate under amended ordinances.

Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in action alleging that defendants’ interception of plaintiff-prisoner’s pornographic magazines violated plaintiff’s First Amendment rights. Instant magazines contained pictures of naked or scantily clad women, as well as pictures of sexual acts, and plaintiff failed to present any evidence to counter opinion of former warden that instant magazines posed danger to prison because: (1) inmates would engage in black-market trading of pornography; (2) inmates would engage in more inmate-on-inmate violence; (3) female employees at prison would be objectified by inmates more often; and (4) inmates would engage in masturbation more frequently. Ct. observed, though, that defendants should have supported former warden’s opinions with data, and that other data existed that would dispute some claims made by warden.

Dist. Ct. did not err in granting defendants-police official and County’s motion for summary judgment in section 1983 action alleging that defendant-officer subjected him false arrest and false imprisonment stemming from plaintiff’s arrest on charge of sexual assault of 11-year-old girl, which officer learned was false only after plaintiff had been arrested. While plaintiff argued that officer lacked probable cause to make warrantless arrest in his home, record showed that officer had consent to enter defendant’s home and had arguable probable cause to arrest him, for purposes of obtaining qualified immunity to instant lawsuit, where: (1) alleged victim repeated same detailed accusations to various individuals; (2) information given by alleged victim’s parents generally corroborated alleged victim’s story; (3) alleged victim’s picture of scene of assault generally matched plaintiff’s property; and (4) car trip in which plaintiff drove alleged victim to her home took over one hour longer than it should have taken. Moreover, while information gained by officer from MapQuest did not support alleged victim’s story, officer actually believed that various routes that she mapped on MapQuest supported alleged victim’s story. Also, officer was not required to wait until she received GPS data before arresting plaintiff, since law enforcement is not required to discover more information to undermine probable cause once it has been established. (Dissent filed.)

Dist. Ct. erred in denying plaintiff’s motion for preliminary injunction seeking to have defendant cease his efforts at coercing credit card companies to prohibit their customers from using companies’ credit cards to purchase advertisements on plaintiff’s website, that included advertisements for “adult” services related to male, female and transsexual escorts, strippers and strip clubs and other jobs related to services offered in other adult categories. Record showed that: (1) defendant, while using his title as Cook County Sheriff, sent letter to credit card companies and requested that said companies “immediately cease and desist” from allowing individuals to use companies’ credit cards to place advertisements on plaintiff’s website; (2) defendant, while citing to federal money laundering statute, intimated that said credit card companies might be criminal accomplices to industry that victimizes women and girls; and (3) credit card companies agreed with defendant to stop allowing such use of their credits cards shortly after receiving defendant’s letter. As such, Ct. of Appeals found that preliminary injunction should have been entered against defendant where: (1) credit card companies were victims of govt. coercion that was aimed at shutting down plaintiff’s adult section on its website; and (2) defendant improperly employed threats of prosecution/sanctions for future speech, which was tantamount to unlawful prior restraint. Ct. further observed that although defendant as private citizen could denounce plaintiff’s actions in maintaining its website, he could not use his govt. title to make legal threats in effort to shut down website.

Dist. Ct. did not err in granting plaintiffs’ motion for preliminary injunction to bar defendants-Tribal Entities from proceeding against plaintiffs in tribal court action seeking declaration that bonds sold by defendants to plaintiffs were invalid under Indian Gaming Regulatory Act (IGRA) as well as tribal law. Dist. Ct. could properly find that: (1) plaintiffs were not required to litigate bond dispute before tribal court prior to seeking redress in federal courts, where defendants had executed certain bond documents selecting non-tribal forum to resolve instant contractual dispute; and (2) defendants had waived sovereign immunity pursuant to waiver clauses in bond documents, even though defendants had claimed that entire bond transaction was product of fraudulent inducement. Ct. also rejected defendants’ claim that instant bond documents were void under IGRA as unapproved management contracts based on finding in prior lawsuit that other bonds documents had violated IGRA, where: (1) instant bond documents were only collateral to bond documents that had been viewed as unlawful management contract between parties; and (2) unlike bond documents in prior action, instant bond documents did not purport to reserve oversight over defendants’ casino operations. Also, under Montana, 450 US 544, tribal court lacked jurisdiction over plaintiffs, who were non-members of defendants’ tribe, where instant tribal action did not pertain to tribal self-government or control over tribe’s internal relations and did not seek redress for any of plaintiffs’ consensual activities on tribal land.

Dist. Ct. lacked jurisdiction over plaintiff’s qui tam action alleging that defendant-plaintiff’s former employer violated False Claims Act by improperly contracting services through subsidiary corporation and then falsely claiming that they satisfied all requirements necessary to receive federal funds. Record showed that any improprieties by defendant were previously revealed in audit of defendant, which counts as prior “public disclosure” under False Claims Act that precluded plaintiff from bringing instant action. Moreover, plaintiff failed to establish that she was original source of information that formed basis of audit finding.

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment in section 1983 action alleging that defendants subjected plaintiff to false arrest on charge of criminal trespass during contractual dispute that plaintiff had with landowner over whether plaintiff could remove trees that were arguably subject of instant contract. Defendants were entitled to qualified immunity, where plaintiff failed to identify any factually similar case that would have alerted defendants that they lacked probable cause to arrest plaintiff for trespass. Moreover, plaintiff failed to identify case establishing relative legal rights of property owner and possessor of timber deed. Also, under Ill. law, individual can be guilty of criminal trespass, even if initial entry on land was lawful, where, as here, individual refuses to leave property after receiving notice to depart.

Dist. Ct. erred in granting motion for summary judgment filed by defendants-prison dentist and guard in section 1983 action alleging that defendants were deliberately indifferent to plaintiff-prisoner’s medical needs by waiting 16 days to treat plaintiff’s abscessed tooth that eventually resulted in removal of said tooth. Medical professional cannot merely fail to take action, where said professional had knowledge of both instant serious condition that had potential deadly consequence if left untreated, as well as plaintiff's complaints of pain. Moreover, defendant-guard, who was also aware of plaintiff’s condition, had duty to assist plaintiff in obtaining treatment in light of knowledge that no medical professional was actually treating plaintiff for his serious medical condition. Also, defendant-dentist failed to provide any reason to support instant 16-day delay in treating plaintiff.