Federal Civil Practice

Dist. Ct. did not err in denying defendant-police officer’s motion for summary judgment in plaintiff’s section 1983 action alleging that defendant used excessive force during physical altercation between plaintiff and defendant arising out of defendant's issuance of parking tickets, where defendant ultimately shot plaintiff in abdomen after, according to plaintiff, plaintiff had placed his hands in air and announced that he was surrendering. While defendant insisted that he was entitled to qualified immunity based on plaintiff’s conduct in choking him prior to his alleged surrender, Ct. of Appeals held that reasonable jury could find that plaintiff no longer posed immediate danger at time he was shot, and that trial was necessary to resolve status of altercation at time defendant fired his weapon at plaintiff. Ct. further noted that plaintiff had disputed defendant’s recollection of altercation, and that case law indicated that plaintiff had right to be free of deadly force unless plaintiff had placed defendant in imminent danger or was actively resisting arrest at time of use of deadly force.

Dist. Ct. did not err in dismissing plaintiff’s lawsuit alleging that defendants’ actions led to plaintiff losing stake in partnership, where procedural history indicated that: (1) plaintiff had originally filed said claim in federal court and then stipulated to dismissal without prejudice, where one defendant destroyed diversity jurisdiction; (2) plaintiff then re-filed same claim in state court, which dismissed one of plaintiff’s claims; and (3) plaintiff then re-filed remaining claims in federal court, minus defendant that had destroyed diversity jurisdiction in first federal lawsuit. Dist. Ct. could properly find that dismissal was warranted under section 13-217 (735 ILCS 5/13-217), which precludes plaintiff from re-filing same lawsuit more than once, where: (1) stipulated dismissal of first federal lawsuit constituted “voluntary” dismissal under Rule 41(a); and (2) instant re-filing of remaining claims constituted plaintiff’s third lawsuit, which was barred by single re-filing provision of section 13-217. Fact that instant lawsuit had two defendants not named in first federal lawsuit did not require different result.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment in plaintiffs’ section 1983 action alleging that defendants obtained warrant that lacked probable cause to search plaintiffs’ home for drugs and third-party (where police did not find any drugs or third-party after executing warrant), and that defendants performed unreasonable search and used excessive force during said search. Defendants had probable cause to search plaintiffs’ home, where: (1) tipster claimed that he made recent purchase of heroin from third-party in plaintiffs’ home; (2) tipster alleged that during said purchase he saw 100 similar baggies containing heroin and that third-party offered to sell tipster more heroin; (3) police confirmed with tipster location of plaintiffs’ home and identity of third-party; and (4) day after police obtained above information from tipster, defendants obtained warrant to search plaintiffs’ home during procedure where tipster testified in front of trial court that issued warrant. Fact that tipster had no prior relationship with defendants or had no track record of providing reliable information did not require different result. Moreover, minor discrepancies in description of plaintiffs’ home would not have given defendants good reason to believe that they were searching wrong home. Also, defendants were entitled to qualified immunity when procuring and executing warrant, and plaintiff failed to show that defendants entertained serious doubts as to accuracy of information reported to trial court. (Dissent filed.)

Record failed to support jury’s verdict in favor of plaintiffs-former employees in action alleging that defendant-employer defamed them when defendant issued Form 10-K report and internal memo that referenced investigation of claim that plaintiffs had violated defendant’s conflict of interest policy by timing trades of securities in order to increase their bonuses at expense of stock portfolios managed by plaintiffs. Statements in 10-K report and internal memo were not defamatory per se and were actionable, if at all, only on theory of defamation per quod, which required plaintiffs to show existence of special damages. Moreover, plaintiffs did not make said showing, where they presented no evidence that any prospective employer declined to hire them as consequence of defendant’s statements in 10-K report or internal memo. Additionally, plaintiffs lacked standing to assert violation of section 1681a(y)(2) of Fair Credit Reporting Act (FCRA), even though plaintiffs argued that defendant violated said section by failing to give them summary of investigation report after their terminations, where said alleged violation constituted only procedural violation that was unaccompanied by any concrete harm or risk of harm to plaintiffs that was protected by FCRA.

Dist. Ct. erred in denying defendants-correctional officers’ motion for summary judgment alleging that they were entitled to qualified immunity with respect to plaintiff-deceased detainee’s section 1983 action alleging that defendants violated his 4^th Amendment rights by placing him in jail cell under circumstances where: (1) he was highly intoxicated; (2) particular jail cell required that he use top bunk; and (3) he fell out of top bunk, which caused his paralysis and eventual death. Plaintiff failed to show existence of applicable case law establishing that placement in instant cell was objectively unreasonable. Moreover, record showed that plaintiff’s intoxication did not necessarily indicate that giving plaintiff upper bunk was patently unreasonable, since: (1) plaintiff was communicating with defendants and was moving around under his own capacity prior to being left in cell; and (2) defendants could believe that any impairment from plaintiff’s intoxication would eventually decrease with time. Also, plaintiff’s own conduct in deciding to sleep in upper bunk rather than taking mattress down and sleeping on floor as told to him by one defendant could have been intervening factor in plaintiff’s injuries.

Ct. of Appeals struck pro se appellant’s opening brief because it contained more than 14,000 countable words allowed under Rule 32(a)(7). While Ct. of Appeals subsequently issued rule to show cause as to why appellant should not be sanctioned for falsely claiming that his brief complied with applicable word limit, Ct. ultimately discharged said rule after finding that pro se appellant made good faith effort to comply with court rules, and that, among other things, appellant misunderstood Rule 32(f) by asserting that words in footnotes did not count towards applicable limit. As such, Ct. observed that all words count towards applicable limit except for items specifically contained in Rule 32(f).

In section 1983 action alleging that defendants-police officials subjected plaintiff to false arrest, excessive force and malicious prosecution when plaintiff was arrested on unlawful possession of firearm charge, Dist. Ct. did not err in refusing plaintiff’s proposed modification of Seventh Circuit Pattern instruction that clarified definition of “possession” by adding language indicating that “mere proximity to the contraband is not enough to establish possession.” While proposed modification was accurate statement of law, pattern instruction already told jury that more than mere proximity to firearm was required to satisfy definition of possession, and case law did not require giving plaintiff’s proposed modification to jury in criminal cases involving unlawful possession of firearm charges. Moreover, Dist. Ct. was not required to give alternative definition of possession, and plaintiff otherwise was able to present his theory that police lacked probable cause to make arrest on unlawful possession of firearm charge because he did not "possess" firearm found near him at time of arrest. Also, Dist. Ct. did not err in refusing jury’s request to examine witness’s answers to interrogatories, where said answers had not been admitted into evidence.

Dist. Ct. did not err in dismissing plaintiff’s section 1983 action against defendant-State Superintendent of Public Instruction in his official capacity, alleging that defendant’s placement of plaintiff-teacher on list of individuals being “under investigation” on accusation that plaintiff had failed to make required report of suspicious activity, violated his due process rights. While plaintiff argued that placement on list in defendant’s website resulted in schools not hiring him while he was under investigation, plaintiff could not prevail, even though he was eventually cleared of said accusation, since plaintiff’s lawsuit was in essence lawsuit against State that would not be actionable under section 1983. Moreover, instant defamation claim against public official is not covered under Due Process Clause, and plaintiff otherwise did not assert any loss of liberty or property, where he did not allege that listing cost him his existing job. Ct. also rejected plaintiff’s contention that Due Process Clause required hearing before public notice that charge against him was under investigation.

Dist. Ct. did not err in dismissing for failure to state valid claim, plaintiff’s section 1983 action alleging that defendant-City’s six-month delay between conducting property inspection and issuance of ordinance citation for overgrowth of weeds on plaintiff’s property constituted violation of her procedural due process rights. Record showed that plaintiff and her counsel appeared at hearing in which ALJ found existence of ordinance violation based on two photographs taken at time of property inspection. While plaintiff asserted that said delay in issuance of citation hindered her ability to mount effective defense, plaintiff cannot show that she was deprived of any property at any time prior to hearing, where ALJ fined plaintiff $640. As such, instant delay, by itself, cannot constitute due process violation, and plaintiff did not otherwise establish that hearing was constitutionally deficient. Moreover, instant six-month delay did not rise to level of substantial prejudice.

Dist. Ct. did not err in granting one defendant-prison official’s motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendant placed plaintiff in segregation in retaliation for complaining about prison conditions and subjecting him to especially harsh conditions of confinement. While another defendant-prison official conceded that Dist. Ct. had erred in dismissing said claim against him, plaintiff had failed to show that instant defendant had knowledge of plaintiff’s prison complaints. Similarly, Dist. Ct. did not err in granting both defendants’ summary judgment with respect to plaintiff’s 8^th Amendment claim, since plaintiff failed to show that either defendant had knowledge of any excessive risk to his health or safety with respect to conditions of his confinement.