Federal Civil Practice

Ct. of Appeals issued reprimand to Appellee’s counsel for repeatedly submitting amended brief that contained changes to substance of original brief that was not authorized by Ct. of Appeals. While Ct. of Appeals had previously directed Appellee’s counsel to make changes to Appendix of brief, counsel could not make changes in other portions of brief, since, under Khan, 879 F.3d 838, both court and opposing counsel are entitled to rely on substance of original brief once it had been filed with court.

Dist Ct. did not err in granting defendants-state official and school district’s motion for summary judgment in plaintiffs-Catholic private school and parents’ section 1983 action alleging that defendants violated their First Amendment rights by refusing to provide school transportation to parents’ children to attend plaintiffs’ school, even though Wis. statute required school district to bus private-school students under certain circumstances. Record failed to establish that defendants withheld public benefits on basis of non-neutral religious criteria, and Wis. statute allowed defendants to deny said transportation benefits, where another self-identified Catholic private school within relevant area had previously applied and obtained said transportation benefits for its students. Ct. rejected plaintiffs’ claim that defendants made impermissible inquiry into religious character of plaintiffs’ school to determine that plaintiffs’ school was affiliated with another Catholic private school. (Dissent filed.)

District Courts did not err in granting plaintiffs’ requests for attorney fees under Equal Access to Justice Act, where plaintiffs were prevailing parties in appeals of denials of their applications for Social Security benefits. Moreover, Treasury Dept. did not err in intercepting SSA payment vouchers for said fees and applying said vouchers under Debt Collection Improvement Act to existing debts that plaintiffs had with Dept. of Education and Dept. of Health and Human Services. Although application of said vouchers to said debts left plaintiffs’ attorney with nothing in terms of fees, Dist. Ct. could properly deny plaintiffs’ requests to rescind instant administrative offsets, since said offsets were proper under Ratliff, 560 U.S. 586, because attorney fees are property of “prevailing party,” such that fee payments go directly to litigants and not their attorneys. Ct. of Appeals declined to exercise ancillary jurisdiction to entertain plaintiff’s collateral challenge to regulations that would allow instant offsets, since: (1) plaintiffs’ challenge pertains to actions taken by entity that was not party in instant action; (2) plaintiffs’ challenge is more appropriately addressed in new action under Administrative Procedure Act; and (3) instant challenge poses potential conflict of interest if allowed to proceed in instant case, since plaintiffs’ attorney is real party in interest to such challenge, and plaintiffs would potentially suffer by having their extinguished debts re-imposed should their attorneys prevail on challenge.

Dist. Ct. erred in granting defendant-prison official’s motion to dismiss on qualified immunity grounds plaintiffs’ section 1983 action, alleging that they, as Iowa delinquent youths, suffered from excessive use of isolation cells and excessive force committed by Wisconsin prison officials, and that defendant, as Iowa official contracting with Wisconsin officials to place plaintiffs in Wisconsin facility, knew or should have known about said isolation use and failed to either remove plaintiffs or adequately train or supervise employees of Wisconsin facility. Dist. Ct. acted prematurely in finding at pleading stage that defendant was entitled to qualified immunity, where: (1) allegations in complaint stated viable cause of action; (2) case law at time of plaintiffs’ custody indicated that isolation of pre-trial detainees was not reasonably related to legitimate governmental objective; and (3) it was impossible to determine at pleading stage whether instant constitutional violations occurred. Fact that plaintiffs were housed in Wisconsin facility did not require different result, where: (1) plaintiffs maintained that defendant was aware of reports indicating existence of excessive isolation occurring to plaintiffs at Wisconsin facility; and (2) juveniles in state custody have right not to be handed over to others whom state knows to be child abusers.

Dist. Ct. erred in dismissing for failure to exhaust administrative remedies plaintiff-prisoner’s section 1983 action alleging various constitutional claims, where record showed that: (1) plaintiff failed to file any internal grievances regarding claims made in section 1983 action prior to filing instant section 1983 action; (2) defendants-prison officials were aware that plaintiff understood only Spanish language; and (3) defendants only informed plaintiff of prison’s grievance procedure in English. As such, plaintiff was excused from satisfying exhaustion requirements set forth in Prison Litigation Reform Act because defendants had failed to inform plaintiff of grievance process in manner that he might reasonably understand.

Dist. Ct. did not err in granting defendant-County’s motion for summary judgment in plaintiff’s section 1983 action alleging that: (1) one of defendant’s employee’s violated her 4^th and 8^th Amendment rights, where said employee allegedly sexually assaulted her while she performed cleaning services at County park while satisfying mandated community service; and (2) defendant had custom or policy that violated said rights. Indiana law does not impose vicarious liability on defendant for employee’s sexual misconduct, since: (1) nothing in employee’s job involved physical contact with visitors or other staff members; and (2) employee’s touching of others intimately was not authorized by defendant nor was it incidental to employee’s duties. Moreover, defendant did not owe plaintiff any non-delegable duty of protection, and plaintiff failed to show that defendant had custom or practice of failing to prevent or respond to employee’s sexual misconduct, where: (1) plaintiff failed to present evidence of similar occurrence of coerced sexual activity or attack on members of public by one of defendant's employees; and (2) handful of incidents of sexual misconduct by defendants employees over 20-year period that were also addressed by defendant did not suggest any indifference on part of defendant.

Dist. Ct. did not err in granting defendants’ motion for summary judgment in plaintiff-out-of-state butter producer’s section 1983 action alleging that Wisc. statute’s requirement that all butter sold in state must contain stamped grade by individual licensed by state violated Due Process and Equal Protection Clauses, as well as dormant Commerce Clause. Said statute was rationally related to state’s legitimate interest in giving consumers relevant product information and to promote commerce. Moreover, statute did not violate dormant Commerce Clause because it applied to both in-state and out-of-state butter producers.

Appellant filed “request” for Ct. of Appeals to take judicial notice of two state-court orders, as well as copies of power of attorney and lawyer’s motion filed in state-court proceeding. While two state-court orders typically would be subject to judicial notice, appellant must make said request in appellant’s brief, as opposed to instant freestanding motion. Moreover, appellant’s request with respect to lawyer’s motion and power of attorney would not be subject to judicial notice, since said documents either had not been authenticated or did not constitute evidence of any adjudicative fact.

In action by plaintiff seeking declaration that defendant’s set-off of its own debt (generated under Affordable Care Act) to defunct insurance company violated Ill. circuit court order, Dist. Ct. erred in remanding case back to Ill. circuit court (that had been removed to federal court by defendant under federal officer removal statute, 28 USC section 1442), where Dist. Ct. believed that it lacked removal jurisdiction of plaintiff’s request for declaratory relief, and where Dist. Ct. otherwise believed that abstention doctrine applied. Defendant established all four requirements for removal under section 1442, and Dist. Ct. erroneously believed that qualifying “civil action” under section 1442(d)(1) was limited to ancillary proceeding that pertained only to pre-suit discovery disputes. Moreover, instant request for declaratory relief was “ancillary” proceeding within text of section 1442, where only part of state court action was removed to federal court. Also, defendant had colorable defense in its contention that it had not waived sovereign immunity. Also, Dist. Ct. could not rely on abstention doctrine to support instant remand order, where federal issues in case concerning sovereign immunity overshadowed state-law issues.

Dist. Ct. erred in denying defendant-County’s motion for judgment as matter of law in action by plaintiff-prisoner seeking indemnification under Wisc. statute for injuries incurred by plaintiff when County’s employee (prison guard) raped plaintiff while plaintiff was in jail. Although jury eventually found that plaintiff was entitled to $6.7 million in compensatory and punitive damages, Ct. of Appeals agreed with County that plaintiff failed to show as matter of law that employee sexually assaulted plaintiff within scope of employee's employment so as to render County liable for indemnification under Wisc. statute. Ct. further noted that employee’s actions with respect to plaintiff were designed to further his own objectives, and that instant sexual assaults were not part of natural, connected or ordinary part of employee’s contemplated services as prison guard.