Federal Civil Practice

Dist. Ct. erred in dismissing plaintiff’s qui tam lawsuit under False Claims Act, alleging that plaintiff’s former employer fraudulently billed Medicare and Medicaid for services performed by its anesthesiologists, who, according to plaintiff, regularly billed government using code for “medically directed” services when their services qualified for payment only at lower rate for services that were “medically supervised.” While magistrate judge ultimately found that plaintiff failed to satisfy Rule 9(b)’s heightened pleading standards, Ct. of Appeals found that plaintiff had satisfied said standards, when ten examples of subject bills provided sufficient particularity about alleged fraudulent billing to survive dismissal. Fact that plaintiff lacked access to relevant billing records and was unable to identify specific false invoices was not fatal to plaintiff’s lawsuit, where: (1) plaintiff alleged that he had direct knowledge of entry of false coding procedures; and (2) plaintiff provided examples of fraudulent billing that identified procedures from specific doctors that should not have been billed at higher medically directed rates.

Dist. Ct. erred in granting defendants-City and one of its officer’s motion for summary judgment in plaintiff’s section 1983 action alleging that officer used excessive force that included grab of plaintiff’s handcuffed arm that caused plaintiff to fall on his face and fracture vertebra. Record contained disputes as to whether officer forcibly grabbed plaintiff’s arm and whether inebriated plaintiff was resisting arrest. Thus, Dist. Ct. improperly concluded that plaintiff was non-compliant, and that officer’s force was minimal. Moreover, because of instant factual disputes, no determination could be made as to whether qualified immunity applied.

Dist. Ct. did not err in dismissing plaintiff’s Federal Tort Claims Act (FTCA) action alleging that defendant-Department of Veterans Affairs was negligent in providing mental health treatment that began in 2011 and continued thereafter, which stemmed from 2011 breast reduction surgery that was performed on plaintiff, such that, according to plaintiff, she incurred permanent mental, emotional and physical injuries. Dist. Ct,. could properly find that plaintiff had improperly split her claim under circumstances, where: (1) plaintiff had previously filed medical negligence FTCA action arising out of same breast reduction surgery; and (2) both lawsuits rested on essentially same facts and concerned same alleged negligence and same transactions or series of related transactions. Ct. rejected plaintiffs contention that instant lawsuit addressed different conduct at different times, where first lawsuit was not confined to Department’s conduct in 2011 and 2012 regarding plaintiff’s breast surgery and was sufficiently aimed at plaintiff’s mental health treatment between 2011 and 2018 that was focus of instant lawsuit. As such, record showed that all requirements had been established for rule against claims splitting, which is subset of res judicata doctrine, where record showed existence of identity of parties and identity of causes of action between two instant lawsuits.

Record did not support jury’s verdict in favor of plaintiff in plaintiff-prisoner’s action, alleging that defendants-two prison doctors and entity employing said doctors violated his 8th Amendment rights by being deliberately indifferent to his medical needs by failing to act promptly when he presented symptoms of kidney cancer, such that by time plaintiff had surgery to remove said kidney seven months later, plaintiff’s cancer had spread to his liver. While plaintiff’s claim against entity was focused on entity’s use of its “collegial review” policy, which required entity’s corporate office to pre-approve offsite care except in certain circumstances, and was based on submission of two Lippert reports that contained negative assessment of collegial review policy, both reports contained only hearsay information. And although Dist. Ct. admitted both reports for non-hearsay purpose of showing that entity had prior notice of said experts’ negative assessment of entity’s collegial review policy, second report could not give entity notice of anything, since it was drafted after treatment given to plaintiff. Moreover, first report was insufficient to hold entity liable under Monell, since: (1) plaintiff could only establish single-incident case with respect to entity’s use of collegial review policy, while Monell required plaintiff to show pattern of similar constitutional violations arising out of use of said policy; and (2) plaintiff failed to produce evidence that entity had knowledge that its use of collegial review policy constituted 8th Amendment violation. Also, with respect to defendant’s 8th Amendment claims against both doctors, plaintiff could only show that one doctor’s action in ordering ultra-sound as opposed to CT scan was exercise in medical judgment and was, at best, act of mere negligence. Moreover, plaintiff could not establish causation with respect to other doctor, where plaintiff could not show that said doctor was responsible for any of challenged delays. Defendants, though, did not challenge jury’s verdict in favor of plaintiff on his medical malpractice claims. (Dissent filed.)

In underlying action seeking recovery by defendant-widow of individual who died after vessel owned by plaintiff capsized in Lake Superior, Dist. Ct. did not err in instant federal action by initially entering injunction that barred defendant from litigating her claim against plaintiff in any other forum, but then granting defendant’s motion pursuant to “Saving-to-Sailors Clause” in Limitation Act to allow defendant to pursue her claim in state court once defendant had agreed in instant action to limit plaintiff’s liability to $25,000, which plaintiff claimed was amount of its interest in capsized vessel. While plaintiff insisted that any action by defendant had to be litigated in federal court, there is nothing in section 30505(a) that entitles owner of vessel to have federal judge determine liability under instant circumstances, and court in Lewis, 531 U.S. 438, held that where, as here, there is only one claimant, whose claim arising out of capsized vessel does not exceed value of owner’s interest in said vessel, federal court may permit substantive claim to proceed in state court. Ct. further noted that defendant promised not to plead res judicata should plaintiff return to federal court to enforce liability limitation.

Dist. Ct. did not err in dismissing as untimely plaintiff’s ADEA action, alleging that defendant failed to hire him on account of his age, under circumstances where: (1) clerk of court returned plaintiff’s timely-tendered complaint, because Dist. Ct. had issued to plaintiff in 2012 litigation bar based on plaintiff’s history of frivolous lawsuits; (2) litigation bar required plaintiff to pay $5,000 sanction, prevented plaintiff from filing further lawsuits until sanction had been paid, but allowed plaintiff to file motion to lift bar after two years; (3) on 46th day of applicable 90-day EEOC period to file instant lawsuit, defendant asked Dist. Ct. to vacate bar based on frivolous claim that Dist. Ct. Judge who had issued litigation bar was biased; (4) Dist. Ct. denied motion to vacate, but plaintiff did not receive order until 30 days later and nine days after expiration of applicable 90-day period; and (5) two days later, plaintiff filed affidavit of indigence, and Dist. Ct. vacated litigation bar, but then denied plaintiff’s request for equitable tolling and dismissed plaintiff’s lawsuit as untimely. Dist. Ct. could properly find that equitable tolling did not apply, because plaintiff was not diligent in seeking to vacate litigation bar. Fact that clerk’s use of outdated address for plaintiff did not require different result, where plaintiff had otherwise frittered away 90-day period by initially ignoring litigation bar and initially seeking vacatur through frivolous argument of judicial bias. As such, plaintiff had responsibility to act diligently throughout limitations period to avoid risk of clerical error. Ct. further held that plaintiff’s history of filing frivolous actions justified order that he prepay all fees to file new lawsuits in Dist. Ct. and new appeals in Ct. of Appeals.

Dist. Ct. erred in dismissing for failure to exhaust administrative remedies plaintiff-prisoner’s action under Americans with Disabilities Act and section 504 of Rehabilitation Act, where: (1) plaintiff fell from upper-bunk in jail cell and incurred broken ankle and other injuries under circumstances, where, according to plaintiff, defendants-jail personnel knew that plaintiff suffered from occasional seizures, but failed to enforce plaintiff’s lower-bunk permit; and (2) plaintiff failed to file grievance within 15 days of his placement in cell that forced him to sleep in upper-bunk. Plaintiff exhausted his administrative remedies, where record showed that plaintiff had filed prison grievance within 15 days of his injuries, and instant prison rules allowed plaintiff to file grievance within 15 days of “incident,” which included occasion when plaintiff incurred his injuries. Ct. rejected Dist. Ct.’s rationale that plaintiff’s failure to file grievance within 15 days of risk of injury that occurred on day of his placement in cell blocked any complaint about his actual injuries that occurred 28 days later. Moreover, defendants failed to cite to any decision that held that when two events could be subject of intra-prison grievance, grievance filed only after second event always is untimely. As such, plaintiff actually did sufficiently exhaust his administrative remedies prior to filing instant lawsuit.

Dist. Ct. did not err in denying defendants-State Public Service Commissioners’ motion to dismiss on sovereign immunity grounds plaintiffs’ action that challenged construction of $500 million, 100-mile power line, where instant action, which sought to enjoin enforcement of permit to allow said construction, sued defendants in their official capacities. While sovereign immunity would normally apply, Ct. of Appeals found that Ex parte Young exception to application of sovereign immunity applied, since: (1) instant case sought only prospective relief in form of declaration that two out of three Commissioners who issued permit had labored under conflict of interest; and (2) instant case pertained to alleged ongoing violation of federal law. However, Dist. Ct. erred in denying defendants' request for abstention under Colorado River, 424 U.S. 800, which allows Dist. Ct. to await outcome of plaintiffs’ parallel state litigation, where there is substantial likelihood that state case would resolve federal claim. This is so, Ct. reasoned, since: (1) plaintiffs raised materially identical due-process recusal claims in both state and federal court; (2) instant case implicates serious state interests regarding operation of Wisconsin administrative law and judicial review of state-agency proceedings; and (3) state case had already advanced toward resolution of due-process claim.

Dist. Ct. did nor err in granting defendants-federal agencies’ motion for summary judgment in plaintiff-prisoner’s action under Freedom of Information Act (FOIA), alleging that defendants released certain documents too slowly and had failed to reveal existence of other records altogether. Gist of plaintiff’s hundreds of FOIA requests lied in conspiracy theory that white-supremacist movement plaintiff had joined was really elaborate sting operation by government. Defendant-FBI, which had located almost 100,000 pages of potentially responsive records, could properly release only 500 pages per month due to finite resources that must be reasonably apportioned among different requesters. Moreover, FBI could properly furnish “Glomar” responses with respect to requests concerning specific individuals, which essentially state that agency would neither confirm nor deny existence of said records, if disclosure would threaten individuals’ privacy by connecting individuals to FBI, where plaintiff failed to provide either written waiver from said individuals, proof of their death, or showing that public interest in disclosing instant alleged conspiracy outweighed privacy interest of said individuals. Also, while defendant-Marshall’s Office delayed by 2 years in sending 1,500 pages of documents pertaining to plaintiff, Dist. Ct. could properly not sanction Marshall’s Office for said delay, where Marshall’s Office explained that delay was caused by staff turnover and staff errors.