Federal Civil Practice

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.

Dist. Ct. did not err in granting defendant’s motion to dismiss plaintiff’s conversion and deception actions, which alleged that defendant had refused to return reusable shipping materials involved in shipment of defendant’s eggs to plaintiff. Record showed that: (1) defendant had prevailed against plaintiff in prior breach of contract action, in which contract called for plaintiff to provide said shipment materials to defendant, but made no mention of defendant returning said material to plaintiff; and (2) prior to filing prior contract action, plaintiff had formally demanded return of said materials and made second demand for said materials one day after filing contract action. As such, Dist. Ct. could properly conclude that: (1) plaintiff was aware at time of filing of contract action that ownership of shipping materials was part of its contract dispute with defendant; and (2) instant tort action arose out of same transaction at issue in prior contract action, such that claim-splitting ban under Indiana law precluded plaintiff from filing instant action.

Dist. Ct. did not err in granting defendants' motion for summary judgment in plaintiffs' action under Illinois Consumer Fraud and Deceptive Practices Act, alleging that labels for defendants’ aloe vera gel products were deceptive, because: (1) defendants’ products could not be called “aloe vera gel,” since they only had low concentrations of acemannan, which, plaintiffs maintained, was important therapeutic substance for treatment of dry, sunburned skin; (2) defendants’ products did not provide therapeutic effects that one would expect from product marketed as aloe vera gel; and (3) defendants’ labels falsely indicated that product was “100% Pure Aloe Vera Gel,” where fine print indicated that two percent of content was devoted to preservatives. Plaintiffs failed to present evidence to show outside of their own allegations that defendants’ labels were likely to mislead consumers about nature or quality of product or that some minimum amount of acemannan was necessary to render product effective. Ct. rejected plaintiffs' contention that burden was on defendants to prove that their products were effective. Also, defendants' label of “100% Pure Aloe Vera Gel” was not deceptive, since plaintiffs conceded that presence of preservatives in small amounts was acceptable and something that they had expected.

Dist. Ct. abused its discretion in certifying two classes composed of prisoners alleging that defendants-prison medical personnel were deliberately indifferent to their hepatitis C conditions by using protocols that essentially delayed treatment for their conditions, and in granting preliminary injunctive relief that directed defendant to begin HCV therapy for class members having fibroscan greater than two and APRI greater than .7 unless treatment was contraindicated. Certification of two classes was improper, where: (1) there was no identity of class representative for either class or evidence that any potential class representative had received treatment under protocols that resulted in sustained viral response; and (2) because there no identified class representative, there was no way to compare any representative's claims with claims of proposed unnamed class members. Also, Dist. Ct. erred in entering preliminary injunction, where Dist. Ct. found only that substantial risk of liver damage “could,” as opposed to "was likely,” to arise out of treatment under defendant’s existing protocols.

Dist. Ct. did not err in finding that defendant could properly invoke Exemption 5 in refusing to provide plaintiff with documents relating to 11 certified immigration cases, where plaintiff requested under Freedom of Information Act all communications between Attorney General, Office of Attorney General and any lawyer in Dept.’s Office of Immigration Litigation or Office of the Solicitor General. Defendant could properly withhold said documents on basis of deliberative process privilege, where: (1) plaintiff conceded that withheld documents contained deliberative communications: and (2) documents at issue pertained to discussions regarding different lines of reasoning that would support particular decisional paths and offered suggestions on draft opinions. Ct. rejected plaintiff’s claim that documents could be disclosed because they also contained ex parte communications, since at time documents were generated, there was no litigation pending in any federal court, and attorneys making statements in documents were not advising or assisting Attorney General adverse to noncitizen.