Federal Civil Practice

Dist. Ct. did not err in granting plaintiff’s request for issuance of preliminary injunction to prevent defendants from enforcing Indiana statute (HEA 1337) that required women seeking abortion services to undergo ultrasound procedure at least 18 hours prior to obtaining abortion, where plaintiff’s alleged that said requirement placed unconstitutional burden on women’s right to chose to have abortion. Prior practice was to obtain ultrasound immediately prior to obtaining abortion, and requirement of obtaining ultrasound at least 18 hours prior to obtaining abortion was too burdensome since it essentially required women to travel great distances to one of only six facilities in Indiana that had ultrasound equipment. It also imposed on women additional childcare costs, loss of entire day’s wages, risk of losing job and potential danger from abusive partner. Ct. further noted that while ultrasound did provide benefit to women, State failed to present evidence to justify 18-hour wait after procedure was performed, especially where evidence showed that required 18-hour wait had already prevented some women from exercising their constitutional rights.

In class action under Telephone Consumer Protection Act seeking damages for unsolicited communications, Dist. Ct. did not err in approving proposed settlement that: (1) required defendants to pay between $56 million and $76 million into settlement fund; and (2) set attorneys’ fees on sliding scale that gave counsel 35 percent of first $10 million paid into settlement fund, then 30 percent of next $29 million paid into fund, then 24 percent of next $36 million paid into fund, and 18 percent of any additional recovery. While fee awards were greater than what had been awarded in comparable cases, said awards did not represent abuse of discretion since legal risks were greater in instant case, because plaintiffs presented novel legal theory of vicarious liability, where plaintiffs sought to impose liability on entities who merely authorized others to make said telephone calls. Also, Dist. Ct. did not err in failing to grant incentive award to one class member who proposed idea of instant sliding fee scale, since said proposal did not add even marginal value to instant litigation and idea of sliding scale would have been considered by Dist. Ct. absent class member's proposal. Ct. further rejected another class member’s claim that proposed settlement improperly covered claims outside defined time period of class action.

Dist. Ct. did not err in dismissing for failure to state valid cause of action plaintiffs’ section 1983 action alleging that 2008 amendment to state statute, which prevented plaintiffs, as sex offenders, from knowingly residing within 500 feet of day care home or group day care home, violated Ex Post Facto Clause as improper retroactive punishment, where plaintiffs had been convicted of their sex offender offenses prior to enactment of amendment. Plaintiffs also alleged that said amendment: (1) amounted to unconstitutional taking of their property; and (2) violated their procedural and substantive due process rights. Plaintiffs could not sue defendant-City of Chicago under section 1983, since plaintiffs failed to allege any causal connection between City’s compliance monitoring of amendment and plaintiffs’ constitutional injury. Moreover, plaintiffs could not proceed on their Ex Post Facto Clause claim, where instant amendment operated only prospectively to conduct occurring after its enactment. Also, plaintiffs could not proceed on any Takings Clause claim, where: (1) they had failed to exhaust their state-court remedies for obtaining compensation prior to filing instant lawsuit; and (2) plaintiffs purchased home and/or obtained rental lease after instant amendment had been enacted. Too, due process clause did not require that plaintiffs be entitled to hearing for individualized risk assessment, where amendment applied to all sex offenders, and amendment’s creation of buffer zone between child day-care center and home of sex offenders was rational.

Dist. Ct. did not err in granting defendants-correctional officers’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendants violated his 8^th Amendment rights by failing to protect him from attack by violent prisoner. While record showed that plaintiff’s attacker was prone to violence within prison, and that defendants had taken steps to protect other prisoners from said attacker, plaintiff could not prevail in instant action, since: (1) defendants were, at best, negligent in isolating attacker from plaintiff and others; and (2) just prior to instant incident, attacker appeared to be following defendants’ directives. Also, defendants acted reasonably to stop attacker once they had become aware of his assault on plaintiff.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment after finding that defendants were entitled to qualified immunity in plaintiff’s section 1983 action alleging that defendants used excessive force on plaintiff’s decedent during shoot-out in which armed third-party held decedent and others hostage at motorcycle shop. Record showed that defendants shot and killed decedent, who was armed at time of shooting, when decedent was attempting to get away from third-party and was spotted near third-party’s truck. Existing case law, though, failed to put defendants on notice that their use of deadly force, without warning on armed individual in dangerous hostage situation, was in violation of decedent’s constitutional right, especially where defendants could have concluded, albeit mistakenly, that armed decedent had shot at defendants only minutes prior to defendants shooting decedent.

In section 1983 action filed by plaintiff-prisoner alleging that defendants prison officials and parole officers were deliberately indifferent to plaintiff’s gender dysphoria condition by delaying 13 months to assess plaintiff’s request for hormone therapy and by ultimately denying said treatment on ground that plaintiff’s imminent release from prison dictated that said treatment not be administered at that time, Dist. Ct. did not err in granting defendant-prison psychologist’s summary judgment motion where record did not indicate that said defendant played any role in instant delay in assessing plaintiff's condition or had any authority to order hormone treatment. Also, Dist. Ct. did not err in granting portion of defendant-prison doctor’s summary judgment motion with respect to instant 13-month delay in assessing plaintiff’s request for hormone therapy, since said defendant was not on notice that instant delay would violate plaintiff’s rights. However, Dist. Ct. erred in granting said defendant’s portion of summary judgment motion dealing with any failure to treat plaintiff’s gender dysphoria condition throughout duration of plaintiff’s prison stay, where there was question as to whether prison had policy regarding said treatment and whether there was medical reason for deciding not to start treatment prior to plaintiff’s release from prison. Also, Dist. Ct. erred in granting summary judgment motion filed by defendants-parole officers, where plaintiff alleged that said defendants blocked plaintiff’s attempt to obtain hormone treatment while on parole even though medical professional had recommended said treatment.

In section 1983 action by plaintiff-prisoner alleging that defendants-prison officials were deliberately indifferent to his mental illness by keeping him in solitary confinement for over 11-year period, Dist. Ct. erred in denying defendant’s motion to proceed in forma pauperis, where Dist. Ct. found under Prison Litigation Reform Act that plaintiff had three “strikes” for having filed prior frivolous complaints, and where plaintiff failed to qualify for statutory exception to three-strike rule that would allow him to proceed in spite of said strikes under circumstances where plaintiff could show that he was under imminent danger of serious physical injury. Plaintiff’s allegations that solitary confinement caused him to incur suicidal thoughts qualified for statutory exemption to three-strike rule. Moreover, one of plaintiff’s three prior cases that Dist. Ct. used to deny instant motion did not qualify as “strike,” where plaintiff had sought unsuccessfully to intervene into existing case.

In section 1983 action alleging that defendants-City and police officer failed to intervene in domestic dispute between plaintiff-deceased and another police officer, Dist. Ct. did not err in denying defendant-police officer’s request that defendant-City reimburse officer for attorney fees under Indiana statute (section 34-13-4-1), where both defendants prevailed in section 1983 action. Instant indemnification statute requires public employer to pay defense costs in civil-rights action against employee only if employee was acting within scope of his employment when he committed act or omission. However, mere allegation in section 1983 complaint that officer was acting within scope of his employment did not trigger instant indemnification mandate, and Dist. Ct. found in section 1983 action (to which defendant officer did not contest) that officer was acting outside scope of his employment as private citizen (so as to preclude liability under section 1983) at time he failed to intervene to protect plaintiff. As such, officer was not entitled to reimbursement of his attorney fees under Indiana statute. (Dissent filed.)

Dist. Ct. did not err in granting defendants-Drug Treatment Court officials and court bailiff’s motion for summary judgment in section 1983 action alleging that defendants violated due process rights of plaintiffs-participants in drug court program as alternative for their drug-related convictions, where plaintiffs served jail sentences as sanctions for violating terms of drug programs, and where said sentences went beyond number of days set by court and were imposed without procedural protections required by Indiana law. Although record showed that plaintiffs’ constitutional rights were violated, plaintiffs failed to present evidence as to how instant defendants were personally responsible for failure to provide due process protections in first instance. Ct. rejected plaintiffs’ argument that defendants had failed to intervene while plaintiffs were in jail or had failed to bring about earlier end to said incarcerations and noted that plaintiffs established, at best, that defendants were merely negligent in failing to timely arrange for suitable placement of plaintiffs in treatment facilities following expiration of jail sentences. Moreover fact that certain defendants arrested plaintiffs although said defendants lacked state-law authority to do so did not constitute viable 4^th Amendment violation, since said arrests were made after issuance of valid arrest warrants and each plaintiff was promptly taken to drug court.

In section 1983 action by plaintiff-prisoner alleging that defendants-prison officials violated his 8^th Amendment rights by using excessive force on him when transferring him to segregation unit, Dist. Ct. did not abuse its discretion in redacting purported statement made by plaintiff to prison psychologist that he experienced frustration with lack of attention to his prison grievance he filed “when [correctional officers] kicked my ass.” Dist. Ct. could properly view quoted statement as inadmissible hearsay because plaintiff was attempting to use out-of-court statement as substantive evidence, and Ct. rejected plaintiff’s claim that statement was admissible as part of his medical diagnosis/treatment, since psychologist stated that plaintiff was not talking about any symptoms of medical health problems related to assault at time statement was made. Dist. Ct. also did not abuse its discretion in excluding portion of fellow prisoner’s deposition testimony, in which said prisoner stated concern that defendants would retaliate against him for giving favorable testimony to plaintiff, since there was risk that said testimony would have unfairly prejudiced defendants in front of jury.