Federal Civil Practice

Dist. Ct. did not err in granting defendant-police officer’s motion for summary judgment in section 1983 action alleging that defendant violated plaintiff’s substantive due process rights by rendering plaintiff more vulnerable to blow to face by third-party under circumstances where plaintiff obeyed defendant’s order to lie down on ground during incident involving alleged assault of plaintiff by three individuals, and where defendant failed to intervene when one individual disobeyed defendant’s order and hit plaintiff in face. Plaintiff failed to present evidence that defendant had deliberate intent to harm plaintiff by allowing individual to hit him, and that plaintiff presented at most evidence of negligent conduct on part of defendant. Ct. further found that defendant’s efforts to safely stop all participants in incident were reasonable.

Dist. Ct. did not err in finding after bench trial that plaintiff failed to establish necessary causal connection between adverse act and plaintiff’s protected speech in plaintiff’s section 1983 action alleging that his suspension and severe verbal counseling violated his First Amendment rights because they were imposed due to fact that he had previously spoken out on behalf of his fellow union members concerning their complaints about forced overtime. While plaintiff’s protests constituted protected speech because they were made in his role as union vice-president, plaintiff failed to show that his suspension was related to said protests since record showed that suspension was based upon unrelated incident involving plaintiff’s use of Dept. memo book. Moreover, verbal counseling was related to separate incident in which plaintiff was deemed to be insubordinate to his supervisor.

Plaintiff-decedent’s estate was entitled to new trial in section 1983 action, alleging that defendants-prison officials denied decedent-pre-trial detainee appropriate medical treatment when defendants rapidly tapered off his psychotropic medication, which resulted in his death, where Dist. Ct. denied plaintiff’s request for jury instruction that described applicable standard of conduct in instant 4th Amendment claim as “objective reasonableness” rather than “deliberate indifference” standard that plaintiff had advocated up until six weeks prior to trial. Plaintiff’s proposed instruction constituted correct statement of law, and Dist. Ct. erred in using deliberative indifference standard under misguided belief that plaintiff had “waived” right to use correct standard because she had failed to promptly notify Dist. Ct. and defendant of applicable standard of conduct. Moreover, plaintiff’s late shift to correct standard of conduct would not have been prejudicial to defendant’s preparation for trial.

Dist. Ct. did not err in awarding attorney fees and costs to plaintiff-mortgage lender, where defendant had no objective basis for removing instant state-court foreclosure action, where said removal occurred four years after filing of state-court action and just prior to hearing on summary judgment motion, and where defendant’s rationale for said removal, i.e., that federal jurisdiction existed under 28 USC section 1349 because Freddie Mac was real party in interest, was wholly without merit given that: (1) defendant’s notice of removal conceded that Freddie Mac neither owned nor held applicable note and mortgage; and (2) jurisdiction under section 1349 can only be invoked where Freddie Mac was named party, and Freddie Mac was not named party in instant foreclosure action. Ct. of Appeals also directed attorney for defendant to respond to rule to show cause as to why she should not be further sanctioned for filing frivolous appeal of Dist. Ct.’s order.

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment in section 1983 action alleging that defendants lacked probable cause to support their demand that plaintiff submit to breathalyzer test or to arrest him on charge of possessing open container of alcohol in vehicle after said test revealed no alcohol on his breath. Defendants had reasonable grounds to believe that defendant had been drinking while driving his car where three credible witnesses told them that they saw defendant drink from what looked to be vodka bottle while driving his car, and where defendants observed what looked to be bottle containing alcohol in front seat of defendant's car. Fact that defendant passed field sobriety test did not require different result, and case law was conflicting at time of instant breathalyzer test as to whether defendants needed search warrant to conduct said test. Moreover, Dist. Ct. did not err in granting defendants’ motion for summary judgment with respect to plaintiff’s malicious prosecution claim on open-container charge where: (1) bottle in front seat of plaintiff’s car looked like opened liquor bottle that contained clear liquid; and (2) defendants did not know that said bottle did not contain alcohol until one month after issuance of citation.

In section 1983 and state law actions alleging that defendants-prison officials and private medical providers failed to provide plaintiff-pretrial detainee with adequate medical treatment that resulted in plaintiff’s death from diabetic ketoacidosis, Dist. Ct. did not err in dismissing plaintiffs’ state law medical malpractice claim where plaintiff failed to submit affidavit from medical professional that was required under section 2-622 of Ill. Code of Civil Procedure. Ct rejected plaintiff’s claim that said affidavit was not required in instant federal proceeding based on diversity jurisdiction. Dist. Ct. erred, though, in making said dismissal with prejudice since: (1) dismissals under section 2-622 are normally without prejudice to allow plaintiff to amend her compliant by supplying requisite affidavit; and (2) Dist. Ct. did not make specific finding that failure to include affidavit was done in bad faith or that defendants would be prejudiced by allowing said amendment. Dist. Ct. did not err, though, in granting defendants’ motion for summary judgment with respect to plaintiff’s section 1983 action where plaintiff failed to present evidence of series of similar incidents involving diabetic ketoacidosis to support her claim that defendants’ lack of policies regarding appropriate treatment of diabetic prisoners who refuse insulin and/or blood sugar tests constituted deliberate indifference to plaintiff’s medical condition.

Dist. Ct. erred in dismissing as untimely plaintiff-prisoner’s FTCA lawsuit alleging that defendant-federal govt. caused plaintiff to lose eyesight when fellow inmate attacked him under circumstances where defendant allowed instant prison to become overcrowded and failed to protect plaintiff from violence caused by said overcrowding. Plaintiff requested that applicable 6-month limitation period be tolled due to his lack of eye-sight and his difficulties in establishing residency once he left prison, and Dist. Ct. gave only cursory explanation for refusing to allow instant filing of lawsuit that was otherwise filed 19 months after expiration of limitations period. Moreover, record did not show that govt. had been prejudiced by said delay, and thus remand was required for new determination of equitable tolling issue.

In section 1983 action alleging that defendants-police officers arrested plaintiff on firearm charges without probable cause, Dist. Ct. did not abuse its discretion by denying plaintiff’s motion to excuse juror for cause, even though said juror held erroneous belief that her son’s parole prohibited anyone from possessing firearm in home. Said juror’s alleged bias was immaterial, since it had no bearing on constructive possession issue in plaintiff’s case. Moreover, juror gave unequivocal assurance that she could perform her jury duties impartially. Dist. Ct. also did not abuse its discretion in denying plaintiff’s motion to set aside parties’ agreement regarding process to select jury so as to increase likelihood of African-American sitting on instant jury, since plaintiff could not ask Dist. Ct. to be “race conscious” in jury selection.

Ct. of Appeals lacked jurisdiction to consider Dist. Ct.’s order remanding to state court, plaintiff’s state-court wrongful death action, after Dist. Ct. had granted plaintiff’s motion to add two non-diverse employees of defendant as defendants, which served to destroy diversity jurisdiction that formed basis of initial removal of case to federal court. Under section 1447(d), such remand orders are not reviewable, and Ct. of Appeals lacked jurisdiction to review order that added two new non-diverse defendants since said order was not final and appealable. Moreover, defendant was not entitled to mandamus relief, where propriety of order granting plaintiff’s motion to add non-diverse defendants could be reviewed in state court.

Dist. Ct. erred in granting defendant-police officer’s motion for summary judgment in section 1983 action alleging that said officer used excessive force when arresting plaintiff, under circumstances where, according to plaintiff, he was lying on ground in spread eagle fashion when defendant broke plaintiff’s jaw by jumping off top of fence and deliberately landing on his jaw. While Dist. Ct. believed that said officer’s actions were accidental, Dist. Ct. was required to accept plaintiff’s version of facts. However, Dist. Ct. did not err in granting other defendant-officer’s motion for summary judgment on plaintiff’s claim that said defendant should have protected him from other officer landing on his jaw since said defendant could not have anticipated actions of other officer. (Partial dissent filed.)