Federal Civil Practice

Dist. Ct. did not err in denying motion by police union to intervene in action alleging that Chicago Police Department’s use-of-force policies and practices violated federal constitution and Illinois law, where parties engaged in efforts to craft consent decree. Instant motion was untimely, since union waited nine months after its knowledge of lawsuit to file instant motion, where at time lawsuit was filed, union publicly opposed any consent decree that parties to lawsuit might enter into, and where union expressed at that time that consent decree could threaten union’s collective bargaining agreement (CBA) rights. Ct. rejected union’s contention that timeliness inquiry should run from time it determined that plaintiff-State was not protecting its interests, despite State’s assurances that it would do so, since union knew at outset of lawsuit that its interests were adverse to parties and that consent decree would address issues under purview of CBA. Also, union did not establish prejudice arising out of instant denial, where carve out language in consent decree indicated that decree was not meant to usurp rights under CBA, and union otherwise had remedies under CBA to address any claim that consent decree violated CBA. Moreover, record showed that instant delay in requesting intervention would prejudice parties who expended time and effort in settling case.

Record contained sufficient evidence to support ALJ’s ultimate finding that claimant qualified for black lung disease benefits, where claimant established rebuttable presumption in favor of obtaining said benefits, since record showed that claimant, who suffers from breathing problems, spent at least 15 years working at coal mine, and that he suffered from totally disabling respiratory or pulmonary impairment. Moreover, while employer submitted opinions from two physicians indicating that claimant’s disability was related to other factors, ALJ could properly reject said opinions, where: (1) said physicians did not explain how they eliminated claimants’ 30 years of coal mine dust exposure as potential cause of his pulmonary impairment; (2) said physicians did not explain how claimant did not have chronic obstructive pulmonary disease given claimant’s years of treatment for said condition; and (3) opinion of third physician, who diagnosed claimant with clinical pneumoconiosis and ruled out heart disease as source of claimant’s disability, was supported by record. Ct. rejected employer’s contention that ALJ necessarily credited opinion that claimant’s drop in oxygen levels was not pulmonary related, or that Bd. erred in remanding ALJ’s initial decision that claimant could not invoke 15-year rebuttable presumption.

Dist. Ct. erred in denying defendants-police officers’ motion for summary judgment asserting that they were entitled to qualified immunity in plaintiff’s section 1983 action alleging that defendants used excessive force by using Taser four times on him while he was being fingerprinted after his arrest on trespass and criminal damage to property charges. Ct. of Appeals had jurisdiction to consider defendants’ interlocutory appeal, where: (1) entire incident was captured on videotape; and (2) instant issue on appeal was purely legal question as to whether use of Taser was objectively reasonable under circumstances of case. Moreover, Ct. of Appeals found that first use of Taser was objectively reasonable, where video showed that plaintiff was uncooperative when defendants attempted to handcuff him at police station during their attempt to fingerprint plaintiff, and plaintiff twice escaped their grasp. Also, remaining three Taser usages were objectively reasonable, where video showed that within two seconds of first Taser use, plaintiff flipped over, maintained his combative demeanor, kicked his foot at one defendant, sat up and pulled Taser prong out of his arm and ignored defendants’ instructions to lie down.

Dist. Ct. did not err in granting defendant-City’s motion for summary judgment in plaintiff’s section 1983 action alleging that defendant’s policies and practices concerning supervision of detainees in its lockup caused plaintiff’s death from suicide in his holding cell. Record showed that defendant’s personnel conducted screening questionnaire when plaintiff first arrived at jail, that plaintiff did not exhibit any behavior indicating suicide risk at that time, and that someone at jail visually inspected plaintiff in his cell every 15 minutes either in person or on video monitor until plaintiff was observed hanging himself in his cell. While plaintiff’s estate asserted that five of defendant’s policies demonstrated that it was deliberately indifferent towards risks of suicide and were moving force behind plaintiff’s death, plaintiff’s estate failed to support said claim with reliable statistics indicating that suicide rates at jail increased because of said policies or that suicide rate at defendant’s jail was disproportionate to suicide rate of free population. Also, plaintiff failed to show that defendant’s policies/practices of using horizontal bars in plaintiff's cell, failure to provide suicide kits to lockup personnel, failure to reassess suicide risks when detainees return from court appearances, failure to have personnel personally inspect detainees or failure to properly train personnel on identifying persons with suicide risks either had causative effect on plaintiff’s suicide or would affect frequency of suicides occurring at jail.

Dist. Ct. erred in sua sponte remanding to state court plaintiff’s personal injury action alleging that plaintiff was exposed to asbestos fibers emanating from certain products manufactured by defendant, where defendant had removed said action to federal court under federal officer removal provisions under 28 USC section 1442(a). Defendant alleged sufficient facts to support federal officer removal, since defendant asserted that it was involved in assembly of heavy bomber aircrafts that were built under defendant’s contract with U.S. govt. under circumstances where govt. controlled design and development of said aircraft and required strict adherence to its detailed specifications. Moreover, defendant alleged sufficient facts in its notice of removal to support its claim that it was entitled to government contractor defense. Ct. further found that: (1) Dist. Ct. erred in stating that defendant was required to submit evidence to support its claims set forth in its notice of removal; and (2) defendant sufficiently alleged that it was “acting under” U.S, its agencies, or its officers by stating that it was assisting or carrying out duties of U.S. Air Force.

Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendants were deliberately indifferent to his physical safety by failing to protect him from known gang violence at prison. Plaintiff failed to contest qualified immunity claim made by two defendants. Moreover, Dist. Ct. appropriately entered summary judgment in favor of two other defendants, where record showed that: (1) said defendants, who were supervisors, were unaware of plaintiff’s history of being assaulted by gang member prisoners; and (2) plaintiff could not otherwise establish claim that supervisors were liable based on allegations that conditions at prison were generally unsafe, since plaintiff could only present evidence of isolated incidents of violence. However, Dist. Ct. erred in granting summary judgment motion by filed by one defendant, where record showed that said defendant had knowledge of gang activity at prison, as well as knowledge of initial attack of plaintiff by gang members and plaintiff’s articulated fear that he would be attacked in retaliation by same gang members, who shortly thereafter effectuated said attack. Ct. rejected defendant’s claim that plaintiff’s complaints lacked sufficient details regarding threats posed by specific prisoner(s).

Dist. Ct. erred in granting motion for summary judgment filed by two defendants-prison guard and former warden in section 1983 action by plaintiff-prisoner, alleging that said defendants knew that he faced risk of attack by other prisoners and did nothing to prevent subsequent attack on plaintiff by said prisoners. Record contained dispute as to whether defendants had received letter from plaintiff that described said threat of attack, which precluded entry of summary judgment, and defendant warden conceded that he would have placed plaintiff in protective custody had he received said note. Moreover, neither defendant contended that threat articulated by plaintiff was false or that plaintiff was otherwise not credible in describing said threat.

 Dist. Ct. did not err in dismissing for failure to state viable claim under Anti-Terrorism Act, plaintiff’s action alleging that defendant-bank with U.S. affiliates was responsible for her son’s death via roadside bomb while son was serving tour of duty in Iraq. While plaintiff alleged that defendant had tie to fatal bomb because bomb was signature Iranian weapon, and because defendant had alleged membership in Iranian conspiracy that included defendant’s institution of procedures to evade U.S. sanctions and its facilitation of Iranian banking transactions, Dist. Ct. could properly find that defendant’s actions were too attenuated from terrorist attack that killed plaintiff’s son for purposes of holding defendant liable for his death. Moreover, ordinary tort requirements of fault, state of mind, causation and foreseeability must be satisfied in any ATA action, and plaintiff otherwise failed to show that defendant’s alleged action satisfied definition of international terrorism in absence of allegation that defendant’s conduct was “violent” or “dangerous to human life.” Plaintiff also failed to allege facts that gave rise to plausible inference that defendant had agreed to provide material support for terrorism.

Record contained sufficient evidence to support decision of Dept. of Health and Human Services Departmental Appeals Bd. that imposed $83,000 penalty on plaintiff-skilled nursing facility for failing to address sexual interactions between three cognitively impaired residents. Record showed that: (1) defendant’s staff was aware of sexual interactions with respect to said residents and broke up said interactions on two occasions; and (2) defendant failed to undertake any investigation to determine whether said interactions were consensual or whether said residents had capacity to give consent. Moreover, Dept. could properly find that defendant’s non-compliance caused immediate jeopardy to said residents, where defendant’s “non-intervention” policy prevented any real inquiry on consent issue except when resident yelled or physically acted out. Also, instant penalty could be based, in part, on defendant’s history of non-compliance with Medicare Act, even where prior instances of non-compliance were not for same exact misconduct.