Federal Civil Practice

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment on qualified immunity grounds in plaintiff’s section 1983 action, alleging that defendants violated her 4th Amendment rights by arresting her on disorderly conduct charge, under circumstances where defendants encountered plaintiff, who had exposed rifle with bolted bayonet and handgun, while seated in bleachers in public park. While Ct. of Appeals declined to rule on whether officers had probable cause to support their arrest of plaintiff on disorderly conduct charge, it held that officers were entitled to qualified immunity, where plaintiff had failed to identify any legal precedent that found existence of 4th Amendment violation under similar circumstances. Moreover, Ct. of Appeals further found that officers could have reasonably determined that plaintiff’s reported conduct was “otherwise disorderly” for purposes of satisfying Wisconsin disorderly conduct statute, under circumstances, where: (1) it was reported that plaintiff openly carried instant rifle and handgun in crowded park while watching families; and (2) officers had learned prior to her arrest that plaintiff had previously resisted arrest, had threatened police officers and had been subject of mental health proceedings.

Dist. Ct. did not err in granting defendants-County and Sewage District’s motion for summary judgment in plaintiff-property owner’s federal takings-clause action, alleging that defendants’ removal of dam on Milwaukee River, which led to four-foot drop in river’s previous high-water mark along his river front property amounted to taking of his riparian right to prior surface water level without prior compensation. Record showed that Wisconsin’s Dept. of Natural Resources authorized removal of dam, and Dist. Ct. could properly find that plaintiff had no property right to have river remain at prior, artificially created surface level. Moreover, plaintiff’s interest in river’s surface level was only privilege that must yield to government’s authority to regulate navigable waterways under public trust doctrine.

Dist. Ct. erred in dismissing plaintiff-prisoner’s action, alleging that defendants-prison officials violated his constitutional rights by subjecting him to physical and sexual abuse, excessive force, and mistreatment at hands of prison employees. Basis of Dist. Ct.’s dismissal was belief that exhaustion requirement applied because plaintiff had failed to exhaust prison grievance procedures by first attempting to resolve dispute informally prior to filing grievance. While record supported finding that plaintiff had failed to follow said requirement prior to filing his grievance, Ct. of Appeals, in reversing Dist. Ct., found that exhaustion requirement may not apply to plaintiff, because there was contested factual dispute as to whether said prison grievance process was available to plaintiff, where there was some evidence of his low IQ and lack of access to anyone during relevant period to assist him in understanding/complying with grievance process. Moreover, record showed that plaintiff had attempted to file 21 other grievances, and not once had plaintiff successfully navigated grievance through exhaustion. As such, Dist. Ct. should have conducted prior to any dismissal of plaintiff’s lawsuit Peavy hearing to resolve contested issues regarding whether administrative remedies were available to plaintiff.

Dist. Ct. erred in granting in remanded matter defendants’ motion for summary judgment in plaintiff-police chief’s section 1983 action, alleging that defendants terminated him from his position without affording him due process, when said termination occurred without notice or opportunity for hearing. During plaintiff’s prior appeal defendants conceded that plaintiff had protected property interest in his police chief position for purposes of his due process claim without making any effort to qualify or limit said concession or reserve their ability to dispute said issue in instant remand. However, record showed that defendants did subsequently dispute plaintiff’s claim that he had protected property interest in his police chief position, and Dist. Ct. based its summary judgment ruling on belief that plaintiff had no property interest in his police chief position. Ct of Appeals, though, in reversing Dist. Ct., found that defendants should be held to their concession that plaintiff had protected property interest in his police chief position, and that they could not contest that issue in instant remand. Moreover, it held that plaintiff was entitled to judgment on issue of liability with respect to his due process claim based on said concession and findings made in prior appeal. Ct. also remanded matter for determination as to whether defendant Mayor of Village was entitled to qualified immunity arising out of her role in termination decision.

Ct. of Appeals denied plaintiffs-appellants’ “Motion Requesting Judicial Notice” under Rule 201, where plaintiffs wanted to substitute current Indiana Secretary of State (Diego Morales) for prior Indiana Secretary of State, who was named party in instant case, and where plaintiffs sought judicial notice as to Morales’s position on enforcement of specific campaign finance laws. Plaintiffs’ request for judicial notice regarding substitution of Morales as party in case was not necessary as said substitution was governed by Fed. R. App. P. 43(c)(2) and happens automatically. Moreover, plaintiffs could not seek judicial notice with respect to Morales’s position on enforcement of specific campaign finance laws, since likelihood that Morales would enforce said laws was open to debate, and thus was not adjudicative fact that was not subject to reasonable dispute. Also, plaintiffs could not attempt to highlight any gap in evidentiary record via filing of instant motion, since record speaks for itself.

Dist Ct. did not err in dismissing plaintiff’s motion for return of forfeited property under Rule 41(g). Record showed that DEA agents seized $146,000 in cash found in plaintiff’s car, which agents deemed to be drug proceeds, and subsequently filed action to administratively forfeit said funds under 21 USC section 881(a)(6), Instead of filing “claim” with DEA to contest forfeiture, plaintiff’s counsel filed petition for remission. After deadline for filing claim had elapsed, DEA issued declaration of forfeiture, which precipitated plaintiff’s motion to return forfeited property. While Dist. Ct. found that it lacked jurisdiction to consider plaintiff’s motion, Ct. of Appeals held that Dist. Ct. had jurisdiction to consider said motion under 28 USC section 1355. However, plaintiff’s motion failed on merits, where: (1) Rule 41(g) is not proper vehicle for challenging administrative forfeiture; and (2) counsel’s mistake in filing wrong pleading was not sufficient circumstance that would allow courts to exercise their equitable powers to override instant statutory requirement for filing timely claim. Also, 18 USC section 983(e) , which allows individuals to file motion to set aside declaration of forfeiture only if individual never received notice of government intent to forfeit property, did not apply to plaintiff’s circumstances.

Dist. Ct. erred in denying plaintiff’s motion for new trial, where said motion was based on claim that Dist. Ct. erred in excluding from jury, opinion of plaintiff’s expert that defendant’s forklift, from which plaintiff fell, was negligently designed because it failed to include as standard feature door to enclose operating compartment. While Dist. Ct. held that plaintiff’s expert opinion about absence of door was inadmissible because it did not satisfy Rule 702 or satisfy test set forth in Daubert, 509 U.S. 579, Ct. of Appeals found that expert’s opinion was admissible, where: (1) expert had extensive training and experience in failure analysis; and (2) expert’s methodology in visiting accident site and reviewing forklift data was scientifically valid. Fact that expert’s opinion had been rejected in other cases did not require different result.

Dist. Ct. granted plaintiff-Chinese entity’s motion for summary judgment against defendant-U.S. citizen in action seeking enforcement of Chinese court’s entry of default judgment in contract claim filed by plaintiff against defendant. Ct. of Appeals, though, remanded matter back to Dist. Ct. for new determination of its diversity jurisdiction in matter, where record failed to contain competent proof regarding plaintiff’s citizenship and citizenship of one of plaintiff’s partners. Specifically, while employee of plaintiff generated declaration that plaintiff was domiciled in Chinese province, said declaration was insufficient to establish diversity jurisdiction, since partnerships do not have domiciles for purposes of diversity jurisdiction. Moreover, there was no evidence in record that established citizenship of each of plaintiff’s four Chinese LLC partners. Also, remand was required to provide more detailed evidence to: (1) support plaintiff’s contention that all four of instant Chinese LLCs should be treated as corporations for purposes of obtaining diversity jurisdiction; and (2) clarify whether one LLC could qualify as “foreign state” due to its partial ownership by Chinese state-owned entity.

Dist. Ct. did not err in dismissing lawsuit filed by plaintiff-owner of “drop-in auto sear” device in action seeking declaration that plaintiff was entitled to possess and keep said device that he currently possesses. Record showed that plaintiff purchased said device, which can make firearms fully automatic, at time when he could lawfully purchase and possess said device. However, in 1981 defendant-Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) generated regulation that required owners of said device to register said device, and in 1986 Gun Control Act imposed ban in individuals transferring or possessing instant unregistered device. In instant action, plaintiff sought as remedy either order directing ATF to exempt his device from any registration requirement, or, in alternative, to create amnesty period during which plaintiff and others could register pre-1981 devices. Ct. of Appeals, though, found that neither proposed remedy was possible, and thus, where plaintiff lacked valid claim for compensation and lacked properly stated claim, instant lawsuit must be dismissed with prejudice for failure to state valid claim. Ct. also noted that while it was not making ruling as to whether plaintiff could properly file instant lawsuit under pseudonym (in order to remain anonymous to prevent any future criminal prosecution), plaintiff was still required to comply with Circuit Rule 26.1, which mandates that anonymous litigants reveal true name on disclosure statement and file said statement under seal.

Dist. Ct. erred in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that certain prison guards violated his constitutional rights while responding to his altercation with another prison guard, where basis for ruling was Dist. Ct.’s belief that plaintiff had failed to exhaust his administrative remedies prior to filing instant lawsuit. Applicable rule required that plaintiff submit grievance to Ill. Department of Corrections’ Administrative Board. While record showed that plaintiff’s attorney timely mailed said grievance to Board, Board returned grievance, after noting that only plaintiff himself was permitted to submit his grievance. Ct. of Appeals, in vacating Dist. Ct.’s order, found that applicable rule did not prohibit prisoner from submitting grievance through his attorney. As such, plaintiff had timely complied with applicable rule, where record showed that his attorney timely mailed grievance to Board, and that Board had actually received grievance.