Federal Civil Practice

Magistrate Judge did not err in finding that defendant-Clerk of Cook County violated two Shakman consent decrees entered in 1972 and 1991 that concerned defendant's hiring practices and in refusing defendant's request to vacate said decrees. Both decrees were designed to curtail practices that conditioned government employment on political patronage, and record supported plaintiffs' claims that defendant unilaterally changed list of political positions that were exempt from hiring oversight, hired new employees for non-exempt positions without publicly posting said positions and punished independent employees by assigning disfavored job assignment rotations, all of which were prohibited under said decrees. Also, Magistrate Judge did not abuse his discretion in denying defendant's motion to vacate 1972 and 1991 consent decrees under Rule 60(b)(5), even though defendant argued that said decrees involved political questions that were not fit for resolution by federal courts, where: (1) consent decrees addressed freedom of association rights protected by First Amendment; (2) legal rights and applicable standard are evident and judicially manageable; and (3) Magistrate Judge could properly find that defendant made no effort to conform her conduct to directives contained in consent decrees. Also, Ct. of Appeals lacked jurisdiction to consider defendant's appeal of order appointing special master to monitor defendant's future compliance with consent decrees, since said order was not final and appealable, and did not otherwise constitute modification of substance of consent decrees.

Ct. of Appeals dismissed as moot respondent-employer's appeal of Dist. Ct.'s order that granted petitioner's request for temporary injunction under section 10(j) of National Labor Relations Act (NLRA) that required respondent to cease and desist from certain unfair labor practices. Record showed that after petitioner had filed request for temporary injunction, administrative law judge had issued recommended order, concluding that respondent had violated sections 8(a)(1), (3) and (5) of NLRA. Moreover, while respondent's appeal was under advisement, Board issued its decision on ALJ's recommended order. Thereafter, Ct. of Appeals granted NLRB Director's motion to dismiss as moot instant appeal of issuance of temporary injunction, since Board's resolution of unfair practices charge mooted appeal of issuance of temporary injunction that pertained to issues that had been fully resolved by Board. Fact that Board had severed one issue from case and retained it for further consideration did not require different result, since severed issue was not one that had been presented to Dist. Ct. as part of temporary injunction. As such, remand was required for Dist. Ct. to vacate its judgment that granted petition for issuance of temporary injunction and to dismiss said petition as moot.

Dist. Ct. did not err in granting defendants-police officials' motion for summary judgment in section 1983 action' alleging that defendant-officer used excessive force when apprehending plaintiff during incident in which officer shot plaintiff after plaintiff had shot twice at bystanders in street and turned toward officer while waving gun. Record showed that, after plaintiff was shot, associate of plaintiff picked up plaintiff's gun and shot at officer, and officer thereafter used plaintiff as human shield and pointed gun at plaintiff's head during standoff with associate until associate fled scene. Officer was entitled to qualified immunity, since his actions were objectively reasonable, where plaintiff posed imminent threat to safety of officer and bystanders, and since there was no Supreme Court precedent that clearly established that officer's split-second decision to shoot plaintiff was unlawful. Similarly, no Supreme Ct. case law showed that officer's subsequent conduct in using plaintiff as human shield and pointing gun at plaintiff's head to deter associate from shooting anyone violated clearly established law, especially where plaintiff repeatedly attempted to swat at officer's gun. Fact that, in hindsight, there was reasonable chance that plaintiff was about to get in his car and leave scene right when officer shot him does not require different result.

Dist. Ct. did not err in granting defendant-Governor's motion for summary judgment in section 1983 action, alleging that defendant violated their First Amendment rights by denying them access to invitation-only press briefing held by Governor's office. Governor's office denied plaintiffs' access based on fact that plaintiffs' organization was not primarily news organization, and that plaintiffs' practices ran afoul of neutral factors contained in criteria established by Governor's office. Because plaintiffs wanted access to non-public forum, defendant's decision to limit access needs only to be reasonable, and criteria established by Governor's office are reasonably related to viewpoint-neutral goal of increasing journalistic impact of Governor's messages by inviting only media who had primary focus in news dissemination and had some longevity in journalism business, as well as possessed ability to craft newsworthy stories. Instant criteria also prioritized access to media journalists, whose reporting would reach wider audiences and disfavored media that engaged in advocacy or lobbying. In instant case, plaintiffs failed to produce evidence to support their claim that generation of instant criteria was ideologically motivated by their conservative viewpoint. Ct. also observed that First Amendment does not guarantee press constitutional right of special access to information not available to public generally.

Dist. Ct. did not err in granting defendant-police officials' motion for summary judgment in plaintiffs' section 1983 action, after finding that defendants were entitled to qualified immunity, even though plaintiffs asserted that defendants falsely arrested plaintiff-father and used excessive force by handcuffing him, taking him to ground and applying pressure to father's head when attempting to place him in squad car. Record showed that: (1) plaintiffs' daughter had called police to make welfare check on plaintiffs because they were extremely intoxicated and were indicating that they would be driving their car; and (2) defendants had probable cause to arrest plaintiff-father on disorderly conduct and resisting officer charges, where father admitted in deposition that his conduct amounted to active resistance to police directives under circumstances where police used several techniques to try to keep father from hurting himself on street. Moreover, qualified immunity was appropriate because plaintiffs admitted that they could not identify any case law that clearly prohibited level of force used by instant defendants, especially where case law indicated that police are not required to simply walk away and permit possibly intoxicated individual to potentially harm himself and others.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiff-police officer's 3^rd amended complaint, alleging that defendant-City and others violated her substantive and procedural due process rights when plaintiff's supervisor: (1) failed to intervene after dispatcher ignored calls plaintiff made for backup during plaintiff's response to armed robbery;  and (2) edited plaintiff's report of said incident by removing plaintiff's complaints about failure to respond to her calls for backup. Substantive due process protects only those fundamental rights and liberties which are objectively rooted deeply in history and tradition, and plaintiff failed to pinpoint what fundamental interest she sought to vindicate. Moreover, while plaintiff contended that she had property interest in her job, public employment is not fundamental right, and plaintiff's claim that her supervisor acted apathetically in listening to dispatcher did not shock conscious so as to support substantive due process claim. Also, plaintiff reference to state-created-doctrine was inapt, where plaintiff had agreed to do dangerous work, and where armed robber, as opposed to government, created instant danger. Too, editing of plaintiff's report did not rise to conduct that shocked conscious. Plaintiff's procedural due process claim also failed, where: (1) plaintiff was not denied any notice of intentional deprivation of her job or opportunity to be heard; and (2) plaintiff never tied her supervisor's actions to policy or custom of police department so as to render City liable under Monell.

Dist. Ct. erred in dismissing plaintiff's section 1938 claims against defendants-police officers under circumstances, where: (1) defendants filed Rule 12(b)(6) motion to dismiss; (2) plaintiff filed response that failed to contain signature in violation of Rule 11(a); Dist Ct. gave plaintiff six days to provide signature; (4) plaintiff failed to do so within said timeframe; and (5) Dist. Ct. thereafter struck plaintiff's response and granted defendants' motion to dismiss on sole basis that it was unopposed. While Ct. of Appeals rejected plaintiff's argument that signature requirement under Rule 11(a) was not mandatory, it also found that Rule 12(b)(6) prevented Dist. Ct. from granting unopposed motion to dismiss under said Rule solely because there was no response. As such, remand was required for ruling on merits of motion without benefit of plaintiff's response, since Dist. Ct. did not err in striking said response.

Dist. Ct. did not err in dismissing plaintiffs' legal malpractice action against defendant-attorney, where complaint alleged that: (1) defendant was plaintiff-company's former chief legal adviser; (2) in his role as chief legal advisor, defendant advised company and plaintiff-company's founder to enter into supplemental agreement with defendant and others that called for payment of back wages through identified source of future funds, as well as other unspecified sources of funds; (3) after defendant left company, he demanded arbitration of his claim for unpaid wages; (4) arbitrator found that defendant's wages had been illegally withheld throughout his employment and held plaintiffs liable for defendant's unpaid wages and penalties totaling $864,976; and (5) plaintiffs filed instant action, alleging that defendant's own legal malpractice caused them to take actions that triggered their liability to defendant under arbitration award. Dist. Ct. could properly find that plaintiff failed to adequately plead that defendant's legal advice proximately caused them to enter into defendant's supplemental agreement or to refuse independent counsel or forego any D & O insurance. Moreover, Ct. rejected plaintiff's contention that they need not allege such causation where instant supplemental agreement was illegal act, since arbitrator did not find that supplemental agreement was tantamount to illegal deferred compensation agreement, where entry into agreement did not aggravate or add to company's failure to pay defendant in timely manner. Moreover, plaintiffs needed to allege facts showing that if defendant had not recommended entering into his supplemental agreement, plaintiffs would have taken different course of action that would have avoided their liability such as timely paying defendant's wages.

Dist. Ct. erred in granting defendant-prison doctor's motion for summary judgment in plaintiff-prisoner's section 1983 action, alleging that defendants-prison doctor and others violated his 8^th Amendment rights by delaying medical treatment of his broken hand. Plaintiff presented evidence that defendant did not respond for 6 and 10 months to his requests for low-bunk permit to accommodate pain he experienced in broken hand, and defendant only began to process said request until after he saw plaintiff on unrelated medical matter. Also, material question of fact existed as to whether defendant acted with deliberate indifference by delaying plaintiff's referral to orthopedic specialist, which, in turn, caused plaintiff to experience nerve damage and prolonged pain. However, Dist. Ct. properly granted summary judgment to two other defendants (second prison doctor and entity employing prison doctors), where: (1) record showed that said doctor promptly renewed plaintiff's request for low-bunk permit and continued prescriptions for plaintiff's prostate condition; and (2) plaintiff failed to present evidence that said entity had custom or policy to explain either instant delays in treatment or lack of coordinated care.

Dist. Ct. did not err in awarding plaintiffs-prisoners $52,357.50 in attorney's fees and $1,741.35 in costs incurred in seeking to enforce settlement with defendant-Dept. of  Corrections in class action lawsuit alleging that defendant unlawfully denied hard-of-hearing inmates assistance they needed to communicate and participate effectively in prison programs and services. Settlement required defendant to screen inmates and refer them to licensed audiologists, and defendant admitted to incorrectly sending 700 inmates to hearing-aid salesmen instead of audiologists. As such, Dist. Ct. could properly find that defendant was in substantial non-compliance with settlement agreement so as support instant fee award, where agreement allowed fee award for "any work" expended by plaintiffs' counsel in litigating any noncompliance with settlement terms. Dist. Ct. erred, though, in finding that defendant must ensure that audiologist evaluations be completed within specific timeframe, where no such obligation was contained in agreement. Ct. rejected plaintiffs' argument that deadline could be implied where no deadline was specified in agreement, and fact that there was no timeframe in agreement did not render agreement absurd, where plaintiffs eventually will receive their evaluations, and where plaintiffs received other benefits under agreement.