Federal Civil Practice

Dist. Ct. did not err in dismissing plaintiff-prisoner's section 1983 action, alleging that defendant-prison doctor was deliberately indifferent to plaintiff's serious medical needs, where plaintiff, who was transferred to different prison prior to resolution of his prison grievance regarding said matter, failed to submit grievance to Administrative Review Board (ARB) prior to filing instant action as required by operative regulations. Fact that plaintiff submitted grievance to ARB after he filed instant lawsuit did not require different result.

Dist. Ct. did not err in granting plaintiff's motion for default judgment and entry of damages,as well as injunction in plaintiff's Lanham Act claim, alleging trademark infringement, false advertising, dilution and unfair competition arising out of defendant's unauthorized and unlawful sale of plaintiff's products bearing Prevagen trademark. Ct. rejected defendant's claim that Dist. Ct. had failed to make requisite findings under Rule 52(a) to support instant judgment, since said Rule does not apply to rulings on motions for default judgment. Moreover, record supported Dist. Ct.'s entry of order enjoining defendant from selling stolen Prevagen products, since such fact was contained in complaint, and thus was established when default judgment had been entered. As such, no further comment or fact-finding on said issue by Dist. Ct. was required.

Dist. Ct. did not abuse its discretion in granting plaintiff's motion for 2-day extension of time to file notice of appeal, where: (1) plaintiff explained delay by stating that he was out of town on business trip, and that his mail had been re-routed due to recent move; (2) Dist. Ct. could look to lack of prejudice when resolving request; and (3) plaintiff provided plausible bases for granting his extension request. As to merits, Dist. Ct. could properly dismiss instant complaint on claim preclusion/res judicata grounds, where Dist. Ct. in 2017 had rejected identical lawsuit filed by plaintiff that asserted that Illinois's bigamy laws were unconstitutional under First Amendment and found that defendant lacked standing to challenge Illinois's adultery and fornication statutes, where such laws were no longer being enforced.

Dist. Ct. did not err in granting defendants-police officials' motion for summary judgment in plaintiff's section 1983 action, alleging that defendants violated his First Amendment rights by arresting him on traffic charges in retaliation for his news reporter activities and subjecting him to malicious prosecution on said charges, arising out of incident in which plaintiff, as reporter, took pictures and exposed identity of police officers during police prostitution sting that involved police chase of plaintiff from scene. Existence of probable cause defeats claim that plaintiff's arrest was in retaliation for speech protected by First Amendment, and defendants had probable cause to arrest plaintiff on charge of driving wrong way on one-way street. Moreover, plaintiff failed to show that defendants rarely made arrests for driving wrong way on one-way street so as to fit into exception to instant probable cause rule as set forth in Nieves, 139 S.Ct. 1715. Also, defendants were entitled to qualified immunity, where at time of plaintiff's arrest, U.S. Supreme Ct. had previously stated that it had never recognized First Amendment right to be free from retaliatory arrest that is supported by probable cause. Too, plaintiff could not proceed on his malicious prosecution claim, where plaintiff failed to demonstrate that nolle prosequi order dismissing his traffic charges was termination favorable to him, since mere entry of nolle prosequi order did not compel inference that there was lack of reasonable grounds to pursue criminal prosecution.

Court of Appeals dismissed objector's appeal of Dict. Ct.'s denial of her claim for attorney's fees and incentive award for raising objection to proposed class action in Telephone Consumer Protection Act claim. Dist. Ct. found that: (1) objector was not class member; and (2) because non-class members cannot be compensated in class action, plaintiff had no standing to object or receive fees for incentive award. Only parties to lawsuit and those that properly become parties may appeal adverse judgment, and Ct. of Appeals found that because objector did not challenge Dist. Ct.'s finding that she was not class member, she was not party in lawsuit, and thus lacked standing to appeal, where she did not otherwise ask to intervene for purposes of appealing any unwelcome rulings.

Dist. Ct. did not err in dismissing under government speech doctrine plaintiffs-taxpayers and unions’ section 1983 action, alleging that defendants-Village and Illinois Municipal League violated their 1st Amendment rights by subsidizing private speech advocated by League to create “right to work zones” as part of Governor Rauner’s “Turnaround Agenda” and by compelling plaintiffs to associate with League or support political activities of which it disagreed. Allegations in complaint indicated that speech at issue in complaint was ultimately controlled by Village and by other governmental members of League. Moreover, Village had right to speak favorably and to adopt local ordinance authorizing right to work zones, even though plaintiffs had disagreed with such zones, such that said speech could properly be characterized as government speech (as opposed to private speech) that was not subject to 1st Amendment scrutiny. Ct. rejected plaintiffs’ claim that League exceeded scope of its authority by engaging in political lobbying activity that urged its members to adopt said right to work zones. As such, plaintiffs pled themselves out of cause of action, where they asserted that Village did nothing more than join League with taxpayer dollars, and that League issued speech to its own members under Bylaws that gave League’s governmental members ultimate control over association’s message.

 Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants had failed to protect plaintiff from brutal attack by another inmate, where, according to plaintiff, defendants had been aware of hostility between plaintiff and his attacker shortly before said attack. Dist. Ct. could properly find that plaintiff had failed to exhaust his administrative remedies by failing to allege in his prison grievance that instant defendants-prison guards had been aware of threatening behavior by plaintiff’s attacker prior to assault, and that said guards had failed to take steps to protect plaintiff. Also, plaintiff could not proceed on alternative failure to protect/failure to break up fight claim, where substance of claim was against different guards that were not mentioned in instant complaint, and where plaintiff did not allege that instant defendants were at scene of attack.

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment in plaintiff’s section 1983 action, alleging that defendants violated plaintiff-decedent’s 4^th Amendment rights, where defendant police officer shot and killed decedent during encounter in which, according to defendants, decedent, who suffered from paranoid schizophrenia, ran at one officer with 10-inch knife when decedent was shot by another officer. Certain physical evidence, including placement of knife at scene and trajectory of bullet wound in decedent’s body, supported defendants’ version of encounter, and plaintiff could only speculate that defendants shot decedent without cause and planted knife on decedent’s body. Also, Dist. Ct. did not err in granting defendants’ motion for summary judgment with respect to plaintiff’s claim under Title II of Americans with Disabilities Act arising out of decedent’s shooting, where: (1) plaintiff was required to show that but for decedent’s disability, decedent would have been able to access services or benefits he desired; and (2) record showed that defendants had responded promptly to decedent’s request for assistance, and there was no evidence indicating that shooting of decedent would have been different if someone not suffering from mental illness also ran towards officer with large knife.

Dist. Ct. did not err in granting defendants-prison medical officials’ motion for summary judgment in plaintiff-pre-trial detainee’s section 1983 action, alleging that defendants violated his 14th Amendment rights by failing to ensure that he receive timely surgery on his broken nose. While record showed that plaintiff experienced series of cancellations for surgery on his nose at county hospital, plaintiff failed to present evidence that any of six individual defendants caused his surgery to be delayed. Moreover, record showed that said defendants did not have authority to schedule or perform relevant surgery, and each time said defendants encountered plaintiff, his surgery or another appointment was on plastic surgery schedule. Ct. rejected plaintiff’s claim that defendants failed to meet standard of care because they had failed to follow up with plastic surgery clinic to make sure that he had received his surgery. Also, plaintiff failed to present sufficient evidence to establish his claim against defendant-County, where evidence did not show that County’s policies caused plaintiff’s deprivations.