Federal Civil Practice

In civil action by plaintiff-prisoner alleging that defendants-prison officials delayed date of plaintiff’s assignment from orderly to law clerk in retaliation for having lodged prior administrative grievances, Dist. Ct. did not err in denying plaintiff’s habeas petition requesting that he be brought to trial from his New Jersey prison and instead conducting trial with plaintiff participating via video teleconference. Govt. showed that transport of plaintiff to Indiana posed both expense to govt. as well as security risk in light of plaintiff’s history of assault behavior. Moreover, trial itself posed single, straight-forward issue that concerned potential damages of only $30, and Dist. Ct. had previously confirmed during pre-trial conference that video-conference would pose no logistical problem in terms of plaintiff’s ability to observe trial proceedings.

Dist. Ct. did not err in denying plaintiff’s request for issuance of $6,800 in sanctions against defendant due to defendant’s failure to attend court-ordered deposition. Record showed that defendant’s failure to attend deposition was inadvertent and irreproachable incident, where: (1) defendant was not present at court hearing when he was ordered to attend deposition; (2) defendant first became aware of court order approximately one hour after scheduled start of deposition and made offer to attend deposition at later time in same day; and (3) defendant made four unsuccessful attempts to reschedule deposition.

Dist. Ct. did not err in granting defendant-employer’s motion for summary judgment in section 1983 action alleging that plaintiff-police officer was terminated in retaliation for his protected speech arising out of incident in which plaintiff confronted protesters in front of abortion clinic. Record showed that defendant had received report that plaintiff used harsh and profane language when questioning protesters’ use of signs in front of clinic, and Ct. found that under Pickering test, none of his statements made during instant confrontation was protected under First Amendment, where his statements to protesters: (1) had potential to create problems in maintaining discipline in police force; (2) had potential for disruption within police force; (3) conflicted with plaintiff’s responsibility of fostering trust and respect with public; and (4) were unjustified in terms of manner in which they were uttered. Dist. Ct. erred, though, in granting defendant’s motion for summary judgment with respect to plaintiff’s claim for administrative review of his termination, where plaintiff had never been given opportunity to brief said claim.

Dist. Ct. did not err in granting defendant-School District’s motion for summary judgment in section 1983 action by plaintiff-student, alleging, among other things, that defendant singled him out for school residency investigations that served to render him ineligible to participate in high school basketball program for 10 days in retaliation for plaintiff’s mother lodging various complaints with School District. Plaintiff failed to present any evidence to counter defendant’s explanation that instant residency concerns were prompted by complaint from unrelated third-parties and not plaintiff’s mother. Moreover, Dist. Ct. could properly accept defendant’s proposed facts when ruling on instant summary judgment motion, where plaintiff’s failed to comply with local rule requiring him to make references to record when proposing alternative set of facts. Also, Ct. held that plaintiff had waived most of his appellate arguments regarding Dist. Ct.’s dismissal of other aspects of his section 1983 complaint due to his failure to comply with citation to record requirements set forth in Fed. R. App. Pro. 28(a).

Ct. of Appeals denied defendant-City’s petition for writ of mandamus seeking to have Ct. remove Dist. Ct. Judge from series of related lawsuits, alleging that defendant’s police officers conducted unconstitutional pedestrian stops and searches. While defendant asserted that Judge made five comments in prior lawsuits that indicated that he was not impartial or had predisposition to rule against defendant in future cases, none of five statements (four of which did not involve Judge’s reference to extrajudicial source) displayed deep-seated favoritism or antagonism that would make fair judgment impossible. Moreover, Judge’s observation in prior case that defendant’s Chief of Police was encouraging large amount of pedestrian stops did not indicate that Judge abandoned duty to decide each case fairly on its own merits. Record also showed that Dist. Ct. had made important rulings favorable to defendant in prior cases.

Dist. Ct. erred in finding that plaintiff’s e-filed complaint was untimely where, although plaintiff tendered said complaint by emailing same to Dist. Ct. Clerk within applicable statute of limitations period, plaintiff failed to successfully pay filing fee and upload complaint into CM/ECF system within applicable limitations period in accordance with local rule. Although filing process was not complete under local rule until complaint was uploaded, transmittal of complaint via email effectively delivered it to Clerk for purposes of Rule 5(d)(2). Accordingly, delay in uploading complaint was mere defect in form, which did not prevent instant complaint from tolling statute of limitations period when complaint was initially received by Clerk.

Dist. Ct. did not err in granting defendant-college’s motion for summary judgment in False Claims Act action by plaintiff-former employee of defendant, alleging that defendant’s student recruiting and retention practices resulted in transmission of thousands of false claims for receipt of federal subsidies under Title IV of Higher Education Act. Plaintiff failed to show that at time defendant entered into agreement with govt. that it intended to defraud govt. and then planned to use said agreement to submit false claims for payment. Moreover, any alleged failure by defendant to follow terms of agreement with govt. that took place after defendant’s good-faith intent to follow same, establishes, at most, defendant’s breach of contract, which is insufficient to establish liability under False Claims Act. Also, Dist. Ct. did not err in dismissing portion of plaintiff’s complaint that concerned defendant’s alleged conduct that occurred both before and after plaintiff’s employment with defendant, where plaintiff conceded that his allegations had been publicly disclosed, and where plaintiff failed to show that he was original source of said allegations.

Dist. Ct. did not err in denying defendant’s motion for summary judgment asserting qualified immunity in section 1983 action alleging that defendant violated plaintiff-parolee’s equal protection rights, when plaintiff complained that defendant’s subordinate-parole officer had sexually harassed him, (i.e., by propositioning him, making physical advances and offering to take him off ankle monitor in exchange for allowing subordinate to take nude pictures of him), when defendant, after being told of plaintiff’s complaint, failed to intervene or investigate and then threatened to retaliate by telling plaintiff that he would not get off ankle monitor due to his complaint. While defendant argued that she could not be liable in her supervisory role for only failing to intervene and stop her subordinate from sexually harassing plaintiff, defendant was not entitled to qualified immunity under instant record where reasonable jury could infer through defendant’s alleged failure to intervene and her alleged retaliatory threats that defendant was acting with intent to discriminate.

Dist. Ct. erred in denying without hearing defendants’ motion to vacate default judgment entered against them approximately one year prior to filing instant motion. Defendants included in their motion affidavits that disputed claims in two affidavits from process servers that they had been served with copies of the complaint alleging breach of contract and deceptive practices, and thus hearing was necessary to resolve said dispute. Ct. rejected plaintiff’s claim that affidavits from two service processors entitled it to presumption of truth on issue of whether complaint had been served on defendants, after noting that defendants’ contrary affidavits shifted burden back to plaintiff, as party asserting personal jurisdiction, to prove what it had alleged.

Dist. Ct. erred in severing one of plaintiff-prisoner’s claims in section 1983 action against defendants-prison officials, and in opening new case with severed claim, in assessing plaintiff second filing fee and then dismissing with prejudice severed claim after plaintiff had failed to pay second filing fee. Although plaintiff’s complaint included misjoined defendant that formed basis of severance order, Dist. Ct. should have offered plaintiff opportunity to amend complaint under Rule 15 to cure any misjoined claim rather than require that plaintiff dismiss said claim. Moreover, plaintiff had submitted to prison authorities for e-filing his motion to voluntarily dismiss instant severed claim within deadline set by Dist. Ct. As such, plaintiff’s motion was timely under prison mailbox rule, and thus Dist. Ct. should not have severed plaintiff’s claim or imposed second filing fee.