Federal Civil Practice

Dist. Ct. erred in granting defendant-supervisor’s motion for summary judgment in plaintiff’s section 1983 action, alleging that defendant violated her First Amendment rights by terminating her participation in VISTA program in retaliation for plaintiff publishing book that recounted her experiences as phone-sex operator. Record showed that plaintiff suffered adverse act that was likely to deter protected speech, and that her protected speech was motivating factor in her termination from VISTA program. Moreover, plaintiff’s book qualified as protected speech under “NTEU,” 513 U.S. 454, where speech contained in instant book: (1) was made outside plaintiff’s workplace; (2) involved content unrelated to plaintiff’s govt. employment; and (3) addressed public audience. Fact that plaintiff had eventually identified herself as public employee who wrote book did not require different result. Also, balancing test under Pickering favored finding that book qualified as protected speech, rather than finding that defendant was justified in terminating plaintiff on grounds of fostering efficiencies of public services due to perception that book reflected unfavorably on National Guard. Dist. Ct., though, did not err in granting summary judgment in favor of other individual defendants and United States, where record showed either that said defendants did not play role in plaintiff’s termination or were unaware of contents of plaintiff’s book.

Dist. Ct. did not err in granting defendants-police officer’s and City’s motion for summary judgment in plaintiff’s section 1983 action, alleging that she was unlawfully arrested and prosecuted on intimidation charges stemming from incident, during which plaintiff yelled “bald motherf**ker” at defendant-officer while others were attempting to arrest known gang members, as well as wrote Facebook posts that officer believed were threatening to his children and his family. Record showed that officer made his complaint against plaintiff in his role as private citizen who was witness in plaintiff’s arrest and prosecution, and thus there was no evidence to support plaintiff’s claim that officer was acting under “color of law” necessary to support her section 1983 claim. Moreover, plaintiff waived her argument that City failed to adequately train and supervise its officers to deal with citizens using profanity in their presence, where plaintiff failed to raise said argument with Dist. Ct., and plaintiff otherwise failed to present evidence to support said argument.

Dist. Ct. did not err in denying defendant-police detective’s motion for summary judgment asserting that defendant was entitled to qualified immunity in plaintiff’s section 1983 action alleging that defendant denied plaintiff his equal protection rights under class-of-one theory by singling him out for unfavorable treatment that essentially prevented him from registering as sexual offender in different city and otherwise used his official position to harass him out of personal dislike. Record showed that defendant threatened to arrest plaintiff if plaintiff relocated to different city, took steps to prevent defendant’s record from transferring to new city based on defendant’s untrue claim that plaintiff had not relocated to different city and intervened to prevent plaintiff from registering as sexual offender in new city. As such, Dist. Ct. could properly find that there was sufficient evidence to support plaintiff’s allegation that defendant, as state actor, intentionally discriminated against him without any rational basis for said differential treatment by erecting extra-legal barriers designed to prevent plaintiff from complying with sexual offender registration requirements. Moreover, plaintiff was not required to find existence of similarly-situated person, where defendant’s animosity toward plaintiff was readily obvious. (Dissent filed.)

In action seeking to enjoin enforcement of Wisconsin abortion regulations, Dist. Ct. did not err in denying request by Wisconsin Legislature to intervene as matter of right in lawsuit under circumstances where Wisconsin was already represented by Wisconsin Attorney General. Rule 24 has preference for state to have only one legal representative, and Legislature failed to show that Attorney General was inadequate legal representative or otherwise was acting in bad faith or with gross negligence. Moreover, Dist. Ct. did not err in denying Legislature’s request for permissive intervention under Rule 24(b)(1), where Dist. Ct. could properly find that value that Legislature added to representation of Wisconsin was outweighed by practical complications associated with infusion of additional politics into politically-divisive area of law that would needlessly complicate case.

Dist. Ct. erred in denying defendants’ request for attorney fees under Lanham Act, where plaintiff had voluntarily dismissed its trademark infringement action after litigation had progressed for more than one year. While Dist. Ct. used standard that required defendants to show that plaintiff’s claim was “abuse of process” where plaintiff either used claim to extort or inflict disproportionate costs on defendants or brought frivolous claim to obtain external gain, Dist. Ct. should have evaluated fee request under “totality of circumstances” standard set forth in Octane Fitness, LLC, 572 U.S. 545 that looks to substantive strength of plaintiff’s litigation position or to unreasonable manner in which plaintiff’s claim was litigated. As such, remand was required for Dist. Ct. to consider fee request under Octane standard.

Record contained sufficient evidence to support jury’s $970,000 verdict in favor of plaintiff in section 1983 action alleging that defendants-parents of plaintiff, sheriff, county prosecutor and private investigator conspired to deprive plaintiff of custody of her child. At time of plaintiff’s arrest on warrant for alleged issuing of bad check, plaintiff referred to defendant step-father as “fucking asshole” before step-father took plaintiff’s child out of plaintiff’s home so as to refute defendants' claim that she had not objected to placement of her child with her parents. Moreover, defendant-Sheriff barred plaintiff from designating custodian of her child as she had right to do. Also, record showed existence of conspiracy, where plaintiff’s parents conducted numerous meetings with law enforcement about plan to seize child and got officials to agree to execute warrant when plaintiff’s husband would not be at home. Also, Dist. Ct. did not err in barring testimony about plaintiff’s criminal history, her alleged neglect of her child or that her husband was dangerous, since said evidence as to why parents sought custody of plaintiff’s child (who was eventually returned to plaintiff through court order) was irrelevant on issue as to whether defendants had violated plaintiff’s due process rights.

Ct. of Appeals lacked jurisdiction to consider plaintiff’s interlocutory appeal of Dist. Ct. orders striking plaintiff’s defense that statute of limitations contained in 28 USC section 2462 applied to preclude govt. from imposing tax assessment and denying plaintiff’s motion for judgment on pleadings, even though Dist. Ct. had certified both orders for interlocutory review. Under 28 USC section 1292(b), plaintiff had ten days to seek permission from Ct. of Appeals to review said orders, and instant request was filed 13 days after Dist. Ct.’s certification. Moreover, Dist. Ct. could not enter second certification order for purposes of giving plaintiff another 10-day window to seek interlocutory review with Ct. of Appeals, because 10-day filing period in section 1292(b) is jurisdictional. Ct. overruled Nuclear Engineering, 660 F.2d 241, which had allowed Dist. Ct. to enter second certification order.

Ct. of Appeals dismissed instant appeal of Dist. Ct. order denying plaintiffs' request for preliminary injunction, which sought to prevent defendant from awarding state contracts for provision of case management services for individuals with developmental disabilities. Counsel for plaintiffs conceded at oral argument that it would be too disruptive for individuals receiving such services to reinstate original contracts held by plaintiffs at issue in preliminary injunction request, and thus only remedy was to remand case back to Dist. Ct. for consideration of merits of plaintiffs' underlying complaint.

Dist. Ct. did not err in granting defendants-hospital and police officials’ motion for summary judgment in plaintiff’s section 1983 claim, alleging that defendants-police and hospital officials violated his 4^th Amendment rights and violated HIPAA provisions when defendants-police officials requested and defendants-hospital official disclosed without plaintiff’s permission results of his blood-test results for presence of alcohol that ultimately led to plaintiff pleading guilty to charge of operating vehicle while intoxicated. Plaintiff could not proceed on any HIPAA claim, since HIPAA provides plaintiff with no private right of action. Moreover, defendants-police officers possessed qualified immunity with respect to plaintiff’s 4^th Amendment claim, where: (1) Indiana statute gave defendants ability to obtain blood-test results from medical personnel; and (2) police officials had no reason to believe via case law that 4^th Amendment barred police from seeking results of blood test that doctor had ordered for medical purposes.

Ct. of Appeals granted portion of petition for writ of mandamus filed by Community Futures Trading Commission seeking to preclude Dist. Ct. from requiring various members of Commission to appear before Dist. Ct. to explain their thinking behind language in press release regarding settlement of case that arguably conflicted with court order precluding parties from making public statements about terms of settlement. While hearing before Dist. Ct. was for purpose of determining whether any Commissioner was guilty of contempt, said Commissioners were not parties to instant settlement, and every member of Commission has right to publicly explain his or her vote. As such, instant consent decree seeking to silence members of Commission was ineffectual. Moreover, while Dist. Ct. was free to determine whether Commission itself was in civil contempt of consent decree, Dist. Ct. could only make such determination through examination of four corners of written statements and other documents, as opposed to summoning Commissioners for purposes of seeking their thoughts behind such statements.