Federal Civil Practice

Dist. Ct. did not err in granting defendants’ motion for summary judgment in plaintiff’s action, alleging malicious prosecution arising out of defendants’ initial filing and ultimate withdrawal of their state court actions, alleging that plaintiff breached contract and committed professional negligence in generating appraisal of property at $3.23 million, when said property was subsequently appraised at $200,000. While plaintiff claimed that defendants lacked probable cause to file underlying contract/professional negligence claim, Dist. Ct. could properly find that defendants had probable cause to file said action, where, prior to filing said action, defendants had consulted independent appraiser and others who opined that plaintiff had committed several errors when generating its appraisal. Moreover, plaintiff failed to point out existence of any error in report generated by one of defendants' experts that would discredit expert’s report to reasonably intelligent and prudent person. Dist. Ct. also did not err in denying defendants' request for attorney’s fees under Indiana frivolous litigation statute, even though it had prevailed in instant malicious prosecution action, since there was no evidence that plaintiff brought instant action to injure defendant, and since plaintiff made rational argument on merits of malicious prosecution claim.

Dist. Ct. did not err in denying plaintiffs’ Rule 60(b)(1) motion for reconsideration of Dist. Ct.’s dismissal of their MDL product liability claims, where: (1) plaintiffs’ counsel failed to abide by Dist. Ct.’s deadline for filing profile forms for plaintiffs that contained details regarding their cases; and (2) plaintiffs’ counsel waited until approximately 13 months to file instant motion. Counsel explained that he had failed to receive electronic docket notification of defendant’s motion to dismiss, and that delay in filing motion to reconsider was caused by problems with his email account. However, denial of plaintiffs’ motion to reconsider was appropriate, where counsel failed to comply with Rule 60(c)(1), which mandates that instant request for reconsideration that was predicated on claim of excusable neglect must be brought within one year of entry of judgment. Moreover, plaintiffs’ counsel could not rely on catch-all provisions contained in Rule 60(b)(6) to avoid time bar set forth in Rule 60(c)(1). Ct. further noted that had plaintiffs’ counsel taken steps outlined in Dist. Ct.’s order regarding filing of profile forms or monitored docket more closely, he could have avoided dismissal in first instance.

Dist. Ct. did not err in granting defendants-three correctional officers’ motion for summary judgment in plaintiff-pre-trial detainee’s section 1983 action, alleging that defendants failed to come to his aid when two other pre-trial detainees physically assaulted him in jail. Record showed that, at time of assault, one defendant, who had hearing loss and who had failed to wear hearing aid on day of attack, was patrolling jail, and plaintiff claimed that said officer’s failure to wear hearing aid precluded officer from hearing his cried for help. Plaintiff, though, failed to show that officer's hearing loss prevented him from hearing commotion without hearing aid. However, record showed that three other officers without hearing loss were standing near brawl and denied hearing any telltale noise. As such, plaintiff failed to show that officer’s failure to wear hearing aid caused plaintiff’s injuries. Moreover, plaintiff did not present any evidence showing that any defendant was put on notice that he was facing serious risk of harm from his fellow inmates. Also, plaintiff failed to establish that remaining two defendants, as supervisors, were liable for knowingly hiring and retaining hearing-impaired officer, where there was no evidence that: (1) another officer with no hearing impairment would have heard brawl and intervened earlier; and (2) supervisors knew that third officer was not wearing hearing aid.

Dist. Ct. did not err in granting defendants-prison medical officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants were deliberately indifferent to plaintiff’s painful abscesses associated with his Crohn’s Disease. While plaintiff asserted that defendant-doctor was deliberately indifferent by pursuing course of treatment known to be ineffective and by failing to make earlier referral to surgeon, record showed agreement between parties that doctor provided reasonable care when doctor first treated plaintiff and disagreement in medical opinion as to whether doctor should have made earlier referral to surgeon. As such, instant disagreement of medical opinion, without more, did establish any 8th Amendment violation. Also, reasonable jury could not find that defendant-nurse was deliberately indifferent to plaintiff’s care, where: (1) nurse provided care on two occasions, with first occasion coming immediately after plaintiff saw doctor, and where nurse provided treatment that was consistent with doctor’s orders; and (2) with respect to second treatment, nurse followed doctor’s orders and provided bandages and gauge to alleviate plaintiff’s immediate issues. Moreover, while plaintiff argued that defendant-prison health administrator ignored his sick call requests, record contained evidence that: (1) said requests did not reach medical personnel; (2) administrator testified that plaintiff’s method of making said requests had greater chance of requests being lost; and (3) plaintiff failed to present evidence that administrator was aware that frequency of lost requests was so high so as to make plaintiff’s method of submission of said requests unacceptable.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment in plaintiffs’ section 1983 action, alleging that defendants violated their constitutional rights when defendants executed search of their apartment by mistake. Record showed that search warrant was support by probable caused that was based on information supplied by confidential informant to warrant issuing judge. Moreover, Dist. Ct. properly applied “informer’s privilege” to preclude plaintiffs from obtaining identity of confidential informant. Also, plaintiffs failed to present sufficient evidence to support claim that defendants unnecessarily prolonged search after defendants had become aware that mistake was made, where plaintiff had failed to produce evidence as to when defendants had some knowledge that mistake had occurred.

Dist. Ct. erred in granting defendant-police officer’s motion for summary judgment in section 1983 action, alleging that said officer violated plaintiff’s constitutional rights by obtaining warrant that contained inaccurate address of plaintiff’s apartment, where confidential informant told said officer that plaintiff had handgun that plaintiff could not lawfully possess. Record showed that said officer and others broke into apartment that turned out to be plaintiff’s apartment, but was not apartment that informant had stated that plaintiff possessed gun. Franks violation occurred, where officer told warrant issuing judge that he knew plaintiff’s address when he did not, and where officer told judge that there was probable cause to believe that drugs would be found in apartment, when in fact there was not. As such, plaintiff was entitled to summary judgment on claim that officer had procured warrant by misrepresentation. Plaintiff was also entitled to summary judgment on claim that officer executed search of plaintiff’s apartment in bad faith reliance on warrant, since officer was either dishonest or reckless in preparing warrant affidavit, even though said officer eventually led search team to correct apartment. Dist. Ct. did not err in granting all defendants’ motion for summary judgment based on existence of qualified immunity, where there was arguable probable cause to arrest plaintiff based on discovery of different gun in apartment, based on concept of constructive possession of said gun. (Partial dissent filed.)

Dist. Ct. did not err in dismissing plaintiff-prisoner’s complaint alleging that defendant prison correctional guard violated his First Amendment rights by retaliating against him for filing grievances against defendant for alleged misconduct. Plaintiff’s complaint contained only threadbare allegations and did not clarify what speech caused defendant to allegedly retaliate against plaintiff. However, Dist. Ct. erred in failing to give plaintiff opportunity to file amended complaint, where: (1) case law states that Dist. Ct. should deny leave to amend only if it is certain that any amendment would be futile; and (2) record did not indicate that defects in plaintiff’s complaint could not be cured.

Dist. Ct. erred in dismissing plaintiff-prisoner’s lawsuit alleging that defendants-prison officials were deliberately indifferent to his mental health needs as sanction for, according to Dist. Ct., making unfounded allegations that his continued confinement in solitary confinement and other actions presented him with danger of serious physical injury/self harm so as to support his request to avoid having to prepay filing fees, where plaintiff already had “three strikes” under Prison Litigation Reform Act. While Dist. Ct. held belief that plaintiff had committed “fraud” when making said allegations, Ct. of Appeals, in reversing Dist. Ct., noted record contained 100 pages of mental health notes that supported plaintiff’s claim of attempted suicides and otherwise did not refute plaintiff’s claims of being in potential danger of serious personal injury so as to allow him to proceed without prepaying filing fee. Alternatively, Ct. of Appeals held that even if medical records did not support plaintiff’s claims, it was still error to conclude that plaintiff’s inaccurate claims constituted sanctionable lie, where Dist. Ct. did not make any finding that plaintiff had acted intentionally or in bad faith when making his claims. Moreover, due to plaintiff’s pro se status, Dist. Ct. was required to hold plaintiff to less stringent pleading standards, and Dist. Ct. further erred in failing to consider any lesser sanction.

Dist. Ct. erred in granting plaintiffs-adult entertainment businesses’ request for issuance of preliminary injunction in their action, alleging that defendant-Small Business Administration violated their First Amendment rights by improperly denying them from seeking second round of loans under Paycheck Protection Plan enacted to address economic disruption caused by COVID-19 pandemic. Defendant did so based on statutory exclusion set forth in 25 USC section 636(a)(37)(A)(iv)(III)(aa) that excluded plaintiffs’ category of business from obtaining said loans. Ct. of Appeals found that defendant showed strong likelihood of success on merits, where Congress had simply chosen not to subsidize adult entertainment businesses, rather than attempting to regulate or suppress adult entertainment. Moreover, Ct. noted that: (1) government is not required to subsidize activity simply because said activity is protected by First Amendment; and (2) exclusion of entire category of prurient live performances from government subsidy program does not amount to viewpoint discrimination and does not violate Free Speech Clause.