Federal Civil Practice

Dist. Ct. erred in failing to grant defendants-Indiana state officials’ motion to dismiss on abstention grounds, plaintiffs’ (ten minors who are or were subject to Indiana CHINS proceedings) action, alleging that defendants violated their due process rights and requesting issuance of injunction with respect to how state investigates child welfare matters prior to CHINS proceedings, when state may or must initiate CHINS proceedings, and what relief state may or must pursue in CHINS court. Dismissal on abstention grounds was required, where record showed that relief sought by plaintiffs currently in CHINS system could be provided in CHINS proceedings, and plaintiffs failed to identify what relief options are open to federal court, but closed to CHINS court. Moreover, it is improper for federal courts to issue injunction requiring state officials to comply with state law.

Dist. Ct. did not err in certifying for class action treatment under Rule 23 plaintiffs-prisoners’ section 1983 action against defendants-22 prison supervisors in various prison facilities, alleging that defendants generated plan in violation of 8th Amendment to conduct prison-wide shakedowns of prisoners, where plaintiffs asserted that planning and executing of plan was designed to inflict pain and humiliation on inmates. Both parties agreed that shakedowns occurred and were executed according to uniform plan under defendants' supervision, and Dist. Ct. could properly find that plaintiffs satisfied commonality factor for purposes of class action certification, where plaintiffs alleged that defendants acted pursuant to common policy and implemented same or similar procedures at each prison facility. Also, Dist. Ct. could properly determine that common issues of liability established predominance factor for purposes of class action certification. Ct. rejected defendants’ contention that cases against supervisors are poorly suited for class-wide resolution, where instant case is premised on constitutionality of procedures that were part of plan designed and implemented by defendants.

Dist. Ct. did not err in denying plaintiff’s Rule 27 petition seeking to depose member of parent entity of LLC under circumstances where plaintiff wanted to bring federal diversity claim against LLC, and where plaintiff sought to have member identify members of LLC for purpose of obtaining information about their citizenship so as to allow plaintiff to bring federal action. Dist. Ct. could properly find that plaintiff could not use Rule 27 to obtain said information, since: (1) Rule 27 requires showing at outset that plaintiff’s case would be cognizable in federal court, and plaintiff could not do so absence knowledge of citizenship of LLC members; and (2) plaintiff failed to show that deposition to elicit member’s testimony was necessary to prevent member’s testimony from being lost. Ct. further noted that purpose of Rule 27 is to perpetuate testimony, and plaintiff could not use Rule 27 to obtain jurisdictional discovery.

Ct. of Appeals dismissed petitioner’s petition for review of Board’s removal order, where petitioner failed to either pay docketing fee or file timely motion to proceed in forma pauperis that contained required affidavit pursuant to Rule 24(b). Record showed that: (1) petitioner’s appellate counsel failed to comply with series of Ct. of Appeal’s orders requiring counsel to pay docketing fee or file motion to proceed in forma pauperis; (2) counsel gave excuse as to his noncompliance by stating that his smart-phone failed to give him notifications of said orders, as well as need to file additional pleading in support of his motion for stay of removal order; (3) Ct. of Appeals rejected counsel’s excuse of smart-phone failure; (4) Ct. of Appeals denied motion for stay due to counsel’s lack of filing supplemental pleading, dismissed petition for review for failure to pay docketing fee or file compliant motion to proceed in forma pauperis and sanctioned appellate counsel $1,000 to due his failure to properly attend to needs of his client. Ct. of Appeals also observed that it had issued 24 rules to show cause against appellate counsel in 12 cases and issued another rule to show in this case that asked why appellate counsel should not be suspended or removed from bar pursuant to Rule 46(b) due to his pattern of non-compliance with court directives.

Dist. Ct. did not err in granting defendants-police officers and plaintiff’s neighbors’ motion for summary judgment in plaintiff’s section 1983 action, alleging that defendants subjected him to false arrest on disorderly conduct charge, after plaintiff had dispute with neighbors about branches that plaintiff had cut down from tree that was on border of plaintiff’s property. Dist. Ct. could properly dismiss false arrest claim, since police officers had probable cause to arrest him on disorderly conduct charge, where: (1) one officer heard from witnesses to disturbance that plaintiff had been causing disturbances that included plaintiff calling another individual “a coward,” and attempting to start fight; and (2) officer documented his assessment that plaintiff could pose risk to others. Ct. rejected plaintiff’s claim that officer made warrantless arrest through nonconsensual entry into plaintiff’s home, where Ct. noted that plaintiff had walked out of his home to his porch when arrest was made. Moreover, defendants-police officers could properly invoke qualified immunity on plaintiff’s claim that they had improperly threatened to arrest him on resisting arrest charge if he did not come out of house, where, at time of plaintiff’s arrest, case law was conflicting as to whether police could make such threats.

Dist. Ct. did not err in granting defendants-prison officials and prison medical officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that his nearly 3-year placement in solitary confinement with no-yard privileges violated his 8th Amendment rights. Plaintiff also asserted that he was placed in unsanitary cell with poor ventilation and excessive heat and noise, and that defendants provided inadequate mental-health treatment. Plaintiff’s claim about placement in solitary confinement was waived due to his failure to raise issue in Dist. Ct. Moreover, record showed that lengthy withholding of yard privileges was sanction based on sheer volume of plaintiff’s misconduct, and defendants could properly impose consecutive 90-day periods of no-yard privileges based on separate misconduct violations, where said violations, which included beating guard, spitting on guard, setting fire to cell property and throwing bodily fluids at medical technicians, were not trivial. Also, plaintiff failed to provide evidence regarding frequency, severity or duration of unsanitary cell condition to support said claim, and plaintiff failed to show state-of-mind as to each defendant regarding each of complained about cell conditions. Too, record did not factually support plaintiff’s claim of deliberate indifference as to his mental-heath treatment, where defendants evaluated plaintiff’s mental condition, developed treatment plan for his mental illness, continuously monitored his condition and adjusted his medication as needed. (Partial dissent filed.)

Ct. of Appeals lacked jurisdiction to consider Dist. Ct.’s orders that denied plaintiff’s motion to appoint counsel and to seal case file, under circumstances where Dist. Ct. had also granted plaintiff’s motion to voluntarily dismiss instant case. Record showed that: (1) plaintiff filed instant case alleging that defendant-University violated Americans with Disabilities Act when it dismissed him from its law school; (2) plaintiff had previously filed unsuccessful similar state-court actions; (3) Dist. Ct. entered order that observed that claims in instant case were precluded by Rooker-Feldman doctrine and were untimely, where dismissal from law school occurred 16 years earlier; and (4) plaintiff took advantage of Dist. Ct.’s option to have him voluntarily dismiss case to avoid potential sanctions under Rule 11. Plaintiff’s voluntary dismissal did not result in adverse final judgment from which plaintiff could appeal instant interlocutory rulings he wished to challenge. Fact that Dist. Ct. had granted plaintiff’s motion “with prejudice” did not require different result.

Ct. of Appeals dismissed for lack of jurisdiction defendants-police officer’s appeal of Dist. Ct.’s order denying their summary judgment motion in plaintiff’'s section 1983 action, alleging that defendants used excessive force by shooting him three times in effort to apprehend him following high speed car chase through residential area. Dist. Ct. order did not qualify as final order for purposes of seeking appeal, and exception to final decision rule for appeals concerning denial of motion seeking dismissal on qualified immunity grounds did not apply, where Dist. Ct. rightly found existence of multiple questions of material fact on issue as to whether plaintiff was complying with defendant’s directives at time of shooting, and whether plaintiff was reaching for what appeared to be firearm in his waistband at time of shooting. Moreover, defendants’ arguments on appeal required Ct. to resolve said issues based only on defendants’ version of facts.

Dist. Ct. did not err in denying plaintiff’s motion to certify proposed class action in plaintiff’s Telephone Consumer Protection Act lawsuit, seeking statutory penalties for itself and on behalf of class of recipients of purportedly unsolicited facsimile advertisements sent by defendant. Dist. Ct. could properly find that plaintiff failed to carry its burden of demonstrating predominance, where there was no generalized proof that could be used to resolve issue of prior permission to send faxes on class-wide basis across various methods that defendant used to obtain fax numbers. This is so, Ct. of Appeals found, where defendant demonstrated that it had large variety of contracts, relationships and personal contacts with recipients of instant fax, and that entities such as plaintiff signed franchise contracts in which they agreed to use approved vendors like defendant to stock and furnish their hotels. Ct. rejected plaintiff’s contention that defendant was required to present evidence of permission given by significant percentage of proposed class to defeat class certification.

Dist. Ct. did not err in dismissing on forum non conveniens grounds plaintiff’s lawsuit alleging that defendant bribed Mexican government officials to sell unregistered medical products in Mexico. Record showed that Mexico was available alternative forum, where defendant consented to service of process and personal jurisdiction in Mexico, and where there was no risk that plaintiff would be wholly deprived of remedy by litigating case in Mexican courts. Moreover. Dist. Ct. could properly conclude as favoring dismissal of case in favor of litigating case in Mexico, fact that: (1) Mexico had relative ease of access to sources of proof; (2) availability of compulsory process and costs for attendance of witnesses favored Mexico, where relevant witnesses resided in Mexico; and (3) ease of enforcement of any judgment favored Mexico. Ct. further noted that: (1) purported contracts were executed in Mexico between Mexican parties; and (2) Mexican agents carried out alleged bribery scheme, and any injury occurred in Mexico. Ct. rejected plaintiff’s claim that instant lawsuit presented only local controversy in Indiana, which was defendant‘s home state, and that United Nations Convention Against Corruption treaty altered forum non conveniens analysis, where Ct. held that said treaty did not constitute binding federal law.