Federal Civil Practice

Dist. Ct. did not err in granting defendant-prison doctor’s motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendant was deliberately indifferent to plaintiff’s medical needs by failing to treat stroke that occurred during weekend when defendant was on call. Record showed that defendant had previously undergone treatment for kidney dialysis and had reported symptoms of asymmetrical grip strength and facial droop that were both stroke symptoms and side effects of said dialysis. Moreover, defendant, after being told of said symptoms, was also told by prison nurse that plaintiff did not have stroke. Thereafter, defendant instructed nurse to inform him during weekend if plaintiff’s symptoms got worse, and record did not indicate that defendant was ever told of plaintiff’s deteriorating symptoms during weekend until defendant examined plaintiff on following Monday. As such, plaintiff could not prevail on instant 8^th Amendment claim, where there was no evidence that: (1) information relayed to defendant would have led minimally competent doctor to conclude that plaintiff was at risk of stroke, as opposed to side effects of dialysis; (2) defendant actually believed that plaintiff was victim of stroke when first told of his symptoms and then failed to take appropriate measures to address said belief.

Dist. Ct. did not err in denying defendant’s motion to modify his 2013 settlement agreement that served to satisfy forfeiture order that required defendant to pay govt. $15 million plus his entire interest in entity that was involved in racketeering and wire and mail fraud charges that formed basis of his conviction. Instant action was essentially civil in nature, where defendant sought injunctive relief via immediate transfer of property at issue in contract between himself and govt. However, defendant could not prevail on his claim that agreement was either procedurally or substantively unconscionable, where: (1) agreement was product of intensive negotiation between govt. and defendant; (2) agreement contained language indicating that defendant accepted terms of settlement’s property division in lieu of any prior claims to properties mentioned in agreement; and (3) defendant had previously obtained favorable ruling by seeking strict enforcement of language in agreement. Ct. similarly rejected defendant’s ex-wife’s appeal of denial of her motion to intervene in defendant’s action for purposes of asserting her own rights to properties at issue in defendant’s settlement agreement, where: (1) ex-wife had her own 2010 settlement agreement with govt. that awarded her $7.7 million arising out of said properties; and (2) terms of her own settlement precluded her from asserting rights to properties at issue in defendant’s settlement agreement until govt. had asserted no further interests in said properties, and record showed govt. was still asserting its interests in said properties at time of ex-wife’s motion to intervene.

Dist. Ct. did not err in dismissing for lack of personal jurisdiction, plaintiff’s primary insurance company’s action against defendants-two Taiwan insurance companies, where plaintiff sought indemnification for products-liability settlement that plaintiff paid on insured’s behalf for accident that occurred in Texas, where each defendant provided insured with “worldwide” products-liability coverage in agreements with insured. Dist. Ct. could properly find that neither defendant had purposely availed themselves of privilege of conducting business in Wisc., where: (1) neither defendant had solicited insured’s business or targeted Wisc. market; (2) defendants’ agreement were negotiated and drafted in Taiwan with Taiwanese companies; (3) said agreements required that disputes be resolved in Taiwan through use of Taiwan law; and (4) neither defendant visited Wisc. or contacted anyone residing there. Fact that defendants provided “worldwide coverage” or that defendants may be liable to insured did not require different result or establish sufficient contact with state of Wisc. to establish personal jurisdiction over defendants.

Dist. Ct. erred in granting defendants-police officials and prosecutors' motion for summary judgment in plaintiff’s section 1983 action alleging that defendants violated his 4^th Amendment rights by generating false statements in first of three probable cause affidavits that led to his arrest and retrial on murder charges for which plaintiff was eventually acquitted. Statements linking plaintiff to murders contained in first probable cause affidavit that were known to be false by certain defendants came from clearly unqualified forensic expert, and thus jury in instant case could properly conclude that said statements, which formed core of affidavit’s inculpatory information against plaintiff, were made intentionally or with reckless disregard for truth. Moreover, remaining evidence in affidavit was insufficient to establish probable cause against plaintiff. However, Dist. Ct. could properly grant defendants’ summary judgment motion with respect to second-and third probable cause affidavits at issue in subsequent retrial of murder charges, where: (1) other qualified experts had confirmed blood-splatter conclusion of expert in first affidavit; and (2) govt. produced other evidence in said affidavits linking plaintiff to murders. Also, plaintiff may proceed to trial on Brady claim that defendants withheld favorable evidence where record showed that: (1) defendants failed to inform plaintiff of lack of qualifications of first expert; and (2) defendants failed to inform plaintiff that it had failed to run DNA test that it had promised to do. Too, instant Brady claim was timely, where it was filed within two years of date that criminal proceedings had terminated in plaintiff’s favor.

Dist. Ct. did not err in dismissing plaintiff-deputy marshall’s action under Federal Tort Claims Act (FTCA), alleging that U.S. Marshall’s directive to plaintiff’s co-workers not to speak with defendant without prior approval during plaintiff’s attempts to gather evidence in support of his defense on charges of witness tampering and use of excessive force in violation of third-party’s civil rights, where Dist Ct. found that said action was precluded under FTCA. Plaintiff accused govt. of malicious prosecution with respect to instant charges that were eventually dismissed. However, Dist. Ct. could properly find that plaintiff’s claim was precluded under discretionary-function exemption of section 2680(a) of FTCA, where: (1) U.S. Marshall’s directive to plaintiff’s co-workers not to speak with defendant entailed element of judgment or choice; and (2) said directive was based on considerations of public policy. Ct. further observed that while plaintiff argued that instant directive violated Constitution, he still could not prevail under FTCA, since FTCA is inapplicable to constitutional torts.

Dist. Ct. did not err in granting defendants-medical personnel’s motion for summary judgment in section 1983 action filed by plaintiff-patient in County medical facility, where plaintiff alleged that defendants violated his substantive due process rights by providing constitutionally inadequate medical care, including taking him off 1 to 1 observation that had been in place to control his severe mental problems, and by placing scissors in his room that allowed him to self-mutilate himself. Record showed that removing plaintiff from 1 to 1 observation was matter of professional judgment that was supported by other medical personnel and was insufficient to establish viable section 1983 action. Moreover, although Constitution imposes on State affirmative duty of care and protection to certain individuals, plaintiff failed to show that medical decisions made by defendants were substantial departures from accepted professional judgment, especially where plaintiff underwent frequent mental assessments, and where defendants had perception that plaintiff’s mental state had improved at time of removal of 1 to 1 observation. Also, plaintiff failed to establish who had left scissors in his hospital room.

Dist. Ct. did not err in dismissing plaintiff’s complaint alleging that defendant-County’s ban on assault rifles and large-capacity magazines violated plaintiffs’ 2^nd Amendment rights. Ct. noted that plaintiffs’ lawsuit was materially indistinguishable from 2^nd Amendment challenge contained in ordinance at issue in Friedman, 784 F.3d 406, in which Ct. had upheld similar ban on assault rifles, and plaintiff failed to articulate compelling reason to revisit outcome in Friedman, where: (1) reducing dangerousness of crime and making public feel safer were substantial interests that justified instant ban; and (2) instant ban did not leave residents without other means of self-defense. Ct. rejected plaintiff’s claim that there were material distinctions between Highland Park residents in Friedman and Cook County residents in instant case so as to justify different outcome than in Friedman.

Dist. Ct. erred in granting defendant’s motion for summary judgment in plaintiff-prisoner’s negligence action, where Dist. Ct. found that instant lawsuit was untimely because, although plaintiff tendered complaint to prison official prior to expiration of limitations period, court clerk did not receive complaint until after expiration of limitations period. Under Indiana’s prison mail box rule, court filing is timely if pro se prisoner litigant submits filing to prison official for mailing on or before its due date and prisoner provides verifiable documentation supporting claim that document was timely submitted to prison official for mailing. Plaintiff satisfied said rule by submitting affidavit from prison counselor, who stated that plaintiff submitted complaint to him six days before limitations period had expired, and that he notarized and delivered it to mail room on same day.

In prosecution on section 1983 action, alleging that defendants-police officers used excessive force by shooting plaintiff during his apprehension in parking lot incident in which defendants claimed that plaintiff had aimed gun at them, Dist. Ct. did not err in giving jury Gilbert (512 F.3d 899) instruction that informed jurors that plaintiff was bound by prior finding of guilt in probation revocation proceeding, during which court found that plaintiff had gun during instant parking lot incident. Record showed that Dist. Ct. read such instruction each time plaintiff or his witnesses testified that plaintiff did not have handgun during said incident. Gilbert instruction is essentially issue-preclusion instruction that properly served to preclude plaintiff from disputing fact that he possessed gun during parking lot due to prior finding that he had gun during said incident. Similarly, Dist. Ct. did not err in barring testimony of lab technician, where said testimony was proffered to bolster plaintiff’s claim that he had no gun during incident.

Dist. Ct. did not err in granting defendants-prison nurses’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendants were deliberately indifferent to his serious medical needs associated with his sickle cell disease, where defendants did not continue to prescribe oxycodone and hydrocodone, as prescribed by outside physicians and prescribed instead milder Tylenol #3 for plaintiff’s pain complaints. Prisoner generally cannot prevail on claim that prison medical staff had preference for one medication over another, unless there was evidence of substantial departure from acceptable professional judgment. Moreover, one defendant used such medical judgment in treating plaintiff’s pain via Tylenol #3, given risks associated with opiod use and high amount of oxycodone prescribed for plaintiff. Also, plaintiff failed to exhaust administrative remedies with respect to his claim that second defendant failed to treat his pain, where, although plaintiff contended that he had filed internal appeal with prison authorities, record suggested that he had not filed such appeal, and plaintiff failed to make inquiry of prison officials as to why he had not received receipt indicating that he had filed said appeal.