Federal Civil Practice

Dist. Ct. erred in granting defendant-telephone company’s motion for summary judgment in plaintiff’s False Claims Act action, alleging that defendant charged schools and libraries more than what was allowed under federal program that required that defendant charge schools/libraries telephone rates that were less or equal to rates defendant charged to similarly situated non-residential entities. While Dist. Ct. found that plaintiff failed to show existence of any customers that were charged lower rates and were similarly situated to schools and libraries that were charged higher rates, Ct. of Appeals found that plaintiff did provide specific evidence showing that certain school and libraries were charged more than certain non-residential customers, and that proposed comparable entities appeared to be similarly situated. Also, plaintiff’s evidence that defendant had no method or procedure in place to comply with federal program requirements during relevant period supported his claim that defendant had acted with reckless disregard for truth or falsity of claims it had submitted for federal reimbursement. Ct. rejected defendant’s contention that alleged falsity of claims was not sufficiently material, where government had continued paying said claims while it was aware of plaintiff’s allegations.

Dist. Ct. did not err in dismissing plaintiff’s action, seeking to set aside under Rule 41(g) civil forfeiture of $33,783 that government had seized from plaintiff, where DEA agent believed that said money was proceeds from illegal drug activity. DEA sent required notice of forfeiture that provided plaintiff with deadline to contest said seizure. Plaintiff’s attorney sent wrong from, i.e. petition for remission, prior to said deadline, but realized mistake only five months after deadline had expired. Plaintiff filed instant action after DEA refused to return money. However, plaintiff could not use Rule 41(g) to request return of seized money since Rule 41(g) applies only prior to initiation of forfeiture proceedings, and forfeiture proceedings had been initiated by time instant lawsuit had been filed. Also, section 983(e) of CAFRA is exclusive statutory remedy for seeking to set aside declaration of forfeiture, but plaintiff could not use CAFRA, where plaintiff did not challenge sufficiency of notice she received from DEA.

Dist. Ct. did not err in granting defendants’-police officials and case manager with Ind. Dept. of Child Services, in plaintiffs’-Doe (transgender male) and A.B. (Doe’s significant other female) section 1983 action, alleging that defendant-detective violated Doe’s 14th Amendment right to privacy in his sexual preference or gender identity, when detective disclosed to A.B. during investigation that Doe was transgender male and had female genitalia, under circumstances where A.B. claimed that she was unaware of said facts. Record showed that at time of said disclosure, detective was investigating claim made by A.B.’s 17-year-old son that for past month, he had been kicked out of home that he had shared with Doe and A.B. without being given any money and with A.B. providing food at place he was staying on only one occasion. Dist. Ct. could properly find that defendants were entitled to qualified immunity on plaintiffs’ 14th Amendment claim, where there is no clearly established right to privacy in one’s sexual preference or gender identity during criminal or child welfare investigation. Also, Dist. Ct. could properly find that plaintiffs could not proceed on 4th Amendment false arrest claim, where defendants had probable cause to arrest plaintiffs on state charges of neglect of dependent and nonsupport of dependent child, that were based on information obtained by detective during interview of A.B.’s child, where child claimed that: (1) Doe kicked him out of house, told him not to return and told him to stay at third-party’s home; and (2) neither Doe nor A.B. had given him any money over past month, and A.B. provided food at third-party’s house on only one occasion. Fact that at some point during this period A.B. told child that he could return to house under certain conditions did not defeat existence of probable cause.

Dist. Ct. did not err in granting defendants-medical providers for prison’s motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants were deliberately indifferent to his medical needs by delaying treatment on pain in his leg, failing to rule out compartment syndrome as cause of leg pain, failing to prescribe stronger medicine for his pain and using review system as means to deny him needed medical treatment for cost reasons. Plaintiff failed to present sufficient evidence to establish that he was actually suffering from compartment syndrome, or that defendants were deliberately indifferent in failing to rule out such condition. Also, plaintiff failed to show that 10-day gap between initial and subsequent medical treatment caused him any harm that could have been avoided had follow-up treatment been any sooner. Too, record showed that defendants prescribed series of drugs for plaintiff’s pain, which precluded any deliberate indifferent claim. Also, plaintiff failed to show that he was harmed by any of defendant’s internal policies, where he could not show that medical treatment for blood clot and for his leg pain was inadequate.

In action seeking to enjoin defendant-State Board of Elections from allowing mail-in ballots post-marked on Election Day to be counted in election if said ballots are received within 14 days of Election Day, Dist. Ct. did not err in denying Democratic Party of Illinois’s (DPI) motion to intervene in instant action either as matter of right or as permissive intervention. Under default rule associated with intervention as matter of right, DPI was required to show that representation by defendant-Board “may be” inadequate, and DPI failed in making required showing, where DPI could not point to any argument that it would make that Board had not already made and could not identify possible conflict between itself and Board. Also, with respect to DPI’s motion for permissive intervention, Dist. Ct.’s explanation for its denial, i.e., intervention would use court’s time and resources, as well as run counter to need to streamline and quickly decide instant election-law claim, was adequate to support denial.

Ct. of Appeals found that plaintiff-prisoner had waived his issue on appeal regarding propriety of Dist. Ct.'s grant of defendants-prison officials’ motion for summary judgment on plaintiff’s Religious Land Use and Institutionalized Persons Act (RLUIPA) claim, where plaintiff asserted that defendants improperly forced him to cut his dreadlocks, where plaintiff informed defendant that his Rastafarian religion precluded him from cutting his hair. Plaintiff conceded that his proposed injunctive relief under RLUIPA was moot, and informed Dist. Ct. in footnote in his response to summary judgment motion that he was no longer pursuing RLUIPA claim because the Act does not give him a monetary remedy. As such, Ct. of Appeals found that defendant had waived any RLUIPA claim on appeal. Fact that Dist. Ct. had previously dismissed monetary claim under RLUIPA prior to plaintiff’s response to motion for summary judgment does not require different result, since plaintiff could have raised RLUIPA claim on appeal had he not expressly waived it in his response and did nothing to preserve said issue or qualify his waiver statement.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiff-police officer’s section 1983 action, alleging that defendant-Police Chief violated his First Amendment rights by retaliating against him after he criticized defendant’s leadership skills to local Police and Fire Commission. Plaintiff gave criticisms during closed session of Commission, which otherwise had disciplinary authority over defendant, and during said session plaintiff accused defendant of instilling fear in officers on police force, lacking professionalism when dealing with public, ordering police officers to turn off body cameras, verbally abusing suspects, and changing radio talk procedures in ways that threatened officer safety. Dist. Ct. could properly find that plaintiff’s speech was not protected under First Amendment under Garcetti, 547 U.S. 410, since his statements to Commission were pursuant to his official duties as police officer, and not in his role as private citizen.

Plaintiffs-civil detainees under Illinois Sexually Dangerous Persons Act at Big Muddy Correctional Center filed section 1983 action, alleging that their continued detention violated their Due Process rights, since treatment plan offered by defendants that was used to determine whether they were sufficiently rehabbed from their disorders so as to allow for their release was constitutionally deficient. Record showed that defendants offered one-hour core group therapy session one time per week, while expert testified that minimum core therapy group sessions should be five hours per week. Moreover, while defendant offered offense-specific and didactic therapy groups, said groups were on hold at time of lawsuit. While Dist. Ct. entered permanent injunction requiring defendants to provide 7.5 hours of core group therapy per week, to reinstate all offense-specific and didactic therapy groups pn weekly basis, and to employ different independent evaluator of detainees’ progress on plan, Ct. of Appeals found that remand was required, since instant injunction was overbroad under Prison Litigation Review Act, where injunction required defendants to provide more services than was constitutionally required. This is so, because: (1) expert testimony indicated that five hours per week for core group therapy was constitutional minimum of what was required to be provided; (2) injunction did not provide defendants with flexibility to determine which offense-specific or didactic therapy sessions should be offered on weekly basis; and (3) record did not support requirement that defendants employ different independent evaluator.

Dist. Ct. did not err in dismissing for failure to state valid claim in plaintiff’s action, alleging that two unsolicited faxes sent by defendants violated Telephone Consumer Protection Act (TCPA). Instant faxes, which invited plaintiff’s veterinarians and owner to RSVP for two free dinner programs, were titled “Canine and Feline Disease Prevention Hot Topics” and “Rethinking Management of Osteoarthritis” and indicated that both programs had been approved for continuing education credits. Dist. Ct. could properly find that neither fax constituted unsolicited advertisement as required under TCPA, since faxes did not indicate either directly or indirectly to reasonable recipient that defendants were promoting or selling some good, service or product. Ct. rejected plaintiff’s claim that said faxes were actionable under TCPA, because free dinner programs were used to market or sell defendants’ animal health goods and services, since Ct. found that texts of faxes did not allude to commercial availability or quality of defendants’ products. Ct. also declined to follow FCC’s guidance on TCPA, which advised that free seminars served in many instances as pretext to advertise commercial products or services.

Dist. Ct. did not err in dismissing for failure to state cause of action, plaintiff’s action, alleging that act of defendant-lender of money to other defendants (producers of broiler chickens), in urging said defendants to cut production of broiler chickens, constituted violation of section 1 of Sherman Act. Section 1 of Sherman Act requires allegation that defendants had agreed with each other to perform anti-trust act, and instant allegations fell short of alleging existence of actual agreement between defendant and other defendants to do anything, where plaintiffs only alleged that defendant set out to protect its own interests through unilateral action. Moreover, instant amended complaint, which added defendant to plaintiffs’ existing anti-trust action against other defendants, did not allege that defendant facilitated any agreement with other defendants or helped with enforcement of any such agreement; and (2) various communications between defendant and other defendants did nothing more than remind other defendants of basic rule of economics.