Federal Civil Practice

Dist. Ct. did not err in denying on four occasions plaintiff-prisoner’s request for recruitment of pro bono counsel in plaintiff’s action, alleging that primer sold by defendant-manufacturer irritated plaintiff’s eyes when plaintiff was housed at prison facility and that defendant-prison doctor mistreated plaintiff’s eyes. Dist. Ct. could properly deny first three requests for recruitment of pro bono counsel, where said requests came too early in litigation, and where Dist. Ct made observation that plaintiff understood basis legal principles that applied to his claim and did not display any difficulty in reading, writing or understanding documents he received from defendants or court. With respect to fourth motion for recruitment of pro bono counsel that accompanied plaintiff’s response to defendant’s motion for summary judgment (which was eventually granted by Dist. Ct. on ground that plaintiff had failed to submit expert testimony to support his claim), Dist. Ct. could properly look to underlying merits of plaintiff’s claim to deny said recruitment motion. In this case, Dist. Ct. observed that plaintiff’s case did not warrant recruitment of pro bono counsel, where there was absence of evidence that defendant-doctor had provided negligent medical care or that defendant-manufacturer’s safety precautions were inadequate.

Dist. Ct. erred in granting defendant-prison employee’s motion for summary judgment in plaintiff-prison worker’s section 1983 action, alleging that defendant terminated him in violation of his First Amendment rights by refusing to let him attend religious services and then retaliating against him when he nevertheless went to said services. While Dist. Ct. agreed with defendant that dismissal was warranted under Prison Litigation Reform Act because plaintiff had not filed formal grievance focused on his termination prior to bringing instant action, Ct. of Appeals held that applicable written policy excepted plaintiff’s case from required administrative process. As such, plaintiff could proceed with his action.

Dist. Ct. did not err in dismissing plaintiff’s action seeking declaration that his rights were violated by defendant-Election Board that struck his name from 2019 Republican primary ballot, under circumstances where plaintiff had previously supported two independent candidates against two Republican candidates, and where, because plaintiff had done so, state chairman of Republican Party banned plaintiff from Republican Party for ten-year period. While plaintiff had met all statutory requirements for appearing on Republican Party primary ballot, defendant could properly remove plaintiff from Republican Party ballot, since: (1) decision to strike plaintiff from ballot imposed only minor restriction on his ballot access, where plaintiff had alternative means to access general election ballot as independent or write-in candidate; and (2) state has valid interest in protecting party’s right to determine its own membership and limit its candidates to those party members.

Dist. Ct. erred in denying plaintiff’s request for attorney’s fees and costs as prevailing party in Endangered Species Act (Act), arising out of defendants’ mistreatment of endangered and threatened animals at their zoo. Plaintiff was prevailing party pursuant to Dist. Ct.’s entry of default judgment against defendants and entry of permanent injunction that prohibited defendants from possessing or exhibiting animals. Moreover, Dist. Ct. could not deny request for attorney’s fees based on belief that: (1) there were questions as to plaintiff’s standing to bring instant action; (2) plaintiff did not contribute substantially to outcome of case where defendant closed zoo because of illness of one of its owners; (3) plaintiff’s case did not advance goal of Act; and (4) plaintiff was not dependent upon fee awards. As such, plaintiff was entitled to determination of fee award based on “lodestar” method that requires Dist. Ct. to calculate number of reasonable hours worked in case multiplied by reasonable hourly rate. Also, Dist. Ct. could not deny plaintiff’s request for costs, which are presumptively awarded under Rule 54(d). (Dissent filed.)

Dist. Ct. abused its discretion in awarding plaintiff attorney’s fees as prevailing party in Fair Debt Collection Practices Act (FDCPA) claim, under circumstances where plaintiff sought over $66,000 in attorney’s fees and costs, and where Dist. Ct. awarded less than $8,000 in fees and costs, based on fact that: (1) plaintiff had rejected defendant’s $500 oral offer to settle case at early stage of litigation; (2) plaintiff received only $500 statutory award; and (3) Dist. Ct. did not award plaintiff’s counsel any money for fees incurred after plaintiff had rejected oral settlement offer. While defendant’s $500 oral settlement offer was “substantial settlement offer” in light of fact that plaintiff only received $500 statutory damages award, Dist. Ct. could not treat said offer as if it were Rule 68 settlement offer, where defendant did not comply with all requirements of Rule 68. As such, Dist. Ct. could not deny all fees for post-offer attorney work. On remand, Dist. Ct. should determine fee award in light of goal of using fee awards as incentive to plaintiffs to bring action enforcing rights of public, where small nature of maximum statutory award, i.e., $1,000, in instant FDCPA claim should not be barrier to plaintiff receiving reasonable attorney’s fee.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiffs‘ Bivens action against defendants ATF agents, alleging that defendants violated their 4th and 5th Amendment rights when they executed search warrant at plaintiffs’ place of business and seized $21,000 worth of plaintiffs' inventory. Complaint was properly dismissed, where search pursuant to valid warrant is presumptively reasonable under 4th Amendment, and complaint failed to challenge either warrant’s validity or reasonableness of agent’s conduct during search. Dist. Ct. could also take judicial notice of search warrant, and Ct. of Appeals rejected plaintiffs’ claim that defendant violated their 4th Amendment rights by failing to give them Miranda warnings during search of their business. Complaint also did not allege valid 5th Amendment claim, where complaint failed to identify how any procedural or substantive due process right was violated.

Dist. Ct. erred in granting defendants-state child welfare officials’ motion for summary judgment on ground that defendants were entitled to qualified immunity on plaintiffs-parents’ section 1983 action, alleging that defendants violated plaintiffs’ daughter’s 4th Amendment rights and plaintiffs’ due process rights to make medical decisions on behalf of daughter by coercing them to take daughter to hospital for purposes of testing daughter’s blood for existence of anti-seizure drug that had been prescribed by doctors to treat daughter’s epilepsy. While Dist. Ct. found that defendants were entitled to qualified immunity because plaintiffs failed to identify case law that would have put defendants’ case worker on notice that her conduct in procuring consent to draw blood by threats was problematic, Ct. of Appeals found that case law existed to support plaintiffs’ contention that defendants could not use threats to obtain instant consent. Moreover, Ct. found that: (1) plaintiffs could have reasonably believed that case worker used coercion to obtain blood draw, where: (1) case worker told plaintiffs that daughter would become Child in Need of Services (CHINS) that would result in losing their right to make medical decisions on behalf of their daughter if they failed to take daughter to get blood draw; (2) plaintiffs did not understand CHINS proceedings or their rights; and (3) plaintiffs had no real choice but to take daughter to obtain blood draw and had no time to seek legal counsel. Moreover, Ct. noted that: (1) any failure to obtain valid consent meant that search or seizure pursuant to child welfare investigation would be reasonable only if defendant could show existence of either court order, probable cause or exigent circumstances; (2) defendant argued only that it had obtained valid consent; and (3) without showing of valid consent, plaintiffs had created jury question as to whether defendants violated their and their daughter’s rights.

Dist. Ct. did not err in granting defendants-jail officials and County’s motion to dismiss plaintiff-deceased prisoner’s section 1983 action, alleging that defendants violated his rights by: (1) maintaining official jail policy, which required that defendants accept all prisoners who could not obtain pre-trial release without regard of ability of jail to accommodate prisoner’s serious medical needs; (2) defendants knew that jail could not accommodate decedent’s medical needs and ignored them; and (3) decedent died two months after he was transferred to different facility. Plaintiff could not proceed against defendant-Sheriff, where plaintiff failed to allege that Sheriff had knowledge of plaintiff’s detention or his medical condition, and where there was no allegation that jail personnel did not promptly respond to plaintiff’s medical incidents throughout his incarceration. Also, plaintiff could not pursue his Monell claim against defendant-County, where: (1) plaintiff failed to allege existence of Sheriff’s Department policy, since courts, and not Sheriff, make pre-trial detention decisions; and (2) Sheriff Department had no option but to detain decedent in its jail and had no policymaking authority over purported policy alleged by plaintiff. Moreover, Ct. noted that decedent always had option to petition court for release based on extraordinary medical grounds.

Dist. Ct. erred in fully granting defendant-prison doctor’s Rule 54(d) motion for costs totaling $4,047.59, where defendant was prevailing party in plaintiff’s section 1983 action, alleging that defendant was indifferent to plaintiff’s medical needs. Out of the requested amount, defendant sought $2,750 fee for witness who provided medical testimony on behalf of defendant. However, 20 USC section 1821 caps witness fees at $40, and thus defendant was entitled to only $40 as costs for said witness. Ct. rejected defendant’s claim that full $2,750 fee was recoverable as expert witness fee under Rule 26, since instant witness was defendant’s own expert, and fees for party’s own expert are generally not recoverable as costs.

Dist. Ct. did not err in dismissing relator’s amended qui tam action, alleging that defendant-County violated False Claims Act (FCA) by misusing federal grant money. Dist. Ct. could properly find with respect to claims of presenting false statements for payment and for use of false statements that relator failed to adequately plead any particular false statement or claim. Dist. Ct. also could properly dismiss plaintiff’s conversion and claim for reverse false claims, where plaintiff had failed to contain sufficient facts indicating that defendant had retained any funds that properly belonged to federal government. Ct. further noted that claims under FCA are subject to heightened pleading standard under Rule 9(b) that required plaintiff to provide facts demonstrating “who, what, when, where and how” fraud was perpetrated. Plaintiff’s general allegations that defendant profited from reimbursements of false claims and was reimbursed despite falsity of underlying claim were insufficient under Rule 9(b). Ct. further observed that plaintiff had failed to link any false expense report to any government payment.