Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

RODRIGUEZ v. COOK COUNTY (December 15, 2011)

More than a decade ago, Angel Rodriguez was convicted of murder by a state court jury. An appellate court concluded that the evidence presented was insufficient to sustain the verdict and reversed. Rodriguez filed a federal civil rights suit against two officers involved in his arrest. He lost at the trial court level and the Seventh Circuit affirmed in 2006. Rodriguez obtained a "certificate of innocence" under Illinois state law in 2009. On the grounds that the certificate created a new cause of action, Rodriguez again filed suit in 2010 against the original defendants and three prosecutors. Judge Conlon (N.D. Ill.) dismissed the case against the original defendants on res judicata grounds and dismissed the case against the new defendants on statute of limitations grounds. She also dismissed the state law claims against the prosecutors on subject matter jurisdiction grounds, concluding that they were entitled to state immunity. Rodriguez appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Cudahy and Tinder affirmed. The Court addressed the Illinois law at issue. The statute, enacted in 2008, allows a person who has had a conviction set aside after serving prison time to obtain a certificate of innocence and file a petition in the Illinois Court of Claims for compensation. It does not, and could not, alter the effect of a federal court judgment nor does it, although it could, toll or extend the limitations period for a § 1983 suit. Rodriguez' claim accrued in 2000, when the Illinois appellate court reversed his conviction. His certificate of innocence does nothing to change that. The federal claims are time-barred. The Court did disagree with the district court's treatment of the state law claims against the prosecutors. It is not clear whether Rodriguez asserts his claim against the prosecutors in their official or personal capacities. But, if the former, the suit is really against the State and the prosecutors should be dismissed. If the latter (which the district court assumed), there is no jurisdictional barrier to the suit proceeding in federal court. The prosecutors could simply assert state law immunity as an affirmative defense. Nevertheless, since it was clear that the district court would have declined to exercise its supplemental jurisdiction over the state law claims, its error had no effect. The Court affirmed the dismissal without prejudice, as modified.

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HLAVACEK v. BOYLE (December 6, 2011)

Eric Hlavacek enrolled in the Southern Illinois University School of Dental Medicine in 2005. He failed a required course in the fall semester, failed it again the next semester, failed another course in the spring 2007 semester, and failed three courses (one of them twice) in the fall 2007 semester. In early 2008, the University informed Hlavacek that he was being dismissed for unsatisfactory academic performance. Hlavacek challenged his dismissal at a hearing, filed a grievance with the school’s Office of Institutional Compliance, and sought review through several school officials, including the President -- all to no avail. Hlavacek filed suit against the school, alleging they violated his procedural due process rights. Judge Murphy (S.D. Ill.) dismissed the complaint for failure to state a claim. Hlavacek appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Wood and Tinder affirmed. The Court assumed that Hlavacek had a cognizable property interest in his dental school education and turned to whether he was afforded the required process. In the educational institution setting, academic dismissals require very little process. They require notice and a careful decision -- but they do not even require a hearing. Here, Hlavacek was put on notice that he was on academic probation, and he was given repeated second chances. Though he was not even entitled to a hearing, he was given a hearing and a grievance and several additional audiences before the dismissal was final. He received more than due process.

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REDD v. NOLAN (November 29, 2011)

Samone Redd was a probationary correctional officer with the Cook County Department of Corrections in May of 2007 when she witnessed an altercation in which a friend was involved. When the friend later complained that she was hit in the face with a beer bottle during the altercation, the Chicago Police investigated. Redd was initially cooperative. The officers investigating the case later found her to be uncooperative and filed a complaint that she was failing to cooperate in an ongoing investigation. Redd alleges that her "failure to cooperate" was simply her refusal to go along with the officer’s request that she lie. The Sheriff’s Department investigated the charges against Redd and eventually sustained several of them. The results of the investigation ended with a recommendation that the Department terminate Redd. On October 31, just 13 days before her probationary employment would end, Redd was told that she would be discharged if she did not resign. She chose to resign. Redd brought suit against the original investigating officer for tortiously interfering with her employment. She also sued the County for First Amendment retaliation, retaliatory discharge, and procedural due process. The City claim was dismissed for failure to state a claim and Magistrate Judge Denlow (N.D. Ill.) granted summary judgment to the County on the remaining claims. Redd appeals.

In their opinion, Seventh Circuit judges Posner, Flaum, and Hamilton affirmed. With respect to the intentional interference claim, the Court noted that Redd alleged that the complaint with the County was made not by the officer, but by an Assistant State's Attorney. Although she tries to create liability on the part of the officer by alleging a conspiracy, she offers no facts to support the allegation. The Court turned to her First Amendment retaliation and state retaliatory discharge claims. It agreed with the district court that Redd presented no evidence from which a jury could conclude that the County's actions were in retaliation for her conduct during the investigation. The Court went on to note that, even in such had been presented, the investigator was not part of the termination decision. Finally, the Court turned to her due process argument. On its face, the argument seemed to lack merit. Redd was still a probationary officer and possessed no protectable property interest in continued employment under Illinois law. But Illinois courts have concluded that a municipal body can afford more protection than required by Illinois law -- all that is required is a "clear policy statement." In Redd's employment agreement, she confirmed that she was "on probation and can be terminated for cause." Notwithstanding the "for cause" language in the terms of her employment, the Court concluded that the phrase was not a sufficiently clear policy statement to provide protection amounting to a property interest. Since she had no protectable property interest, she was entitled to no particular procedures.

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ALEMAN v. VILLAGE OF HANOVER PARK (November 21, 2011)

Rick Aleman operated a daycare in his Hanover Park home. Joshua, one of the children in his care, had been feverish and lethargic his first two days under Aleman’s care. Then, on the third day, he stopped breathing. Aleman picked him up and shook him gently to see if he could get a response. Getting none, he performed CPR and then called 911. Joshua was taken to the hospital and Aleman was taken to the police station. He was held for several hours without questioning and then questioned for several hours. Although Aleman was allowed to call his lawyer several times, and his lawyer told the police that he was invoking his right to remain silent, Aleman eventually signed a waiver. The police told Aleman the three doctors told them that a shaking caused Joshua's injury. They were lying. Based on the statements, Aleman "admitted" that he must have shaken the baby too hard and hurt him. At the same time, he continued to express his disbelief that he could have caused the injuries. Aleman was charged with aggravated battery. A few days later, Joshua died. Aleman was rearrested and charged with first-degree murder. The charges were eventually dropped. Doctors explained that a child could go for a few days, usually in a lethargic state, after being shaken but before losing consciousness. The investigation also disclosed that Joshua's mother had a criminal record and had beaten and shaken Joshua in the past. In addition, one of the lead investigators had apparently developed a sexual attraction to Joshua's mother and did what he could to steer the investigation toward Aleman. Aleman brought suit pursuant to § 1983 against several state and local police officers. Judge Bucklo (N.D. Ill.) granted summary judgment to the defendants. Aleman appeals.

In their opinion, Seventh Circuit Judges Cudahy, Posner, and Wood affirmed in part and reversed and remanded in part. The Court quickly concluded that the first arrest was supported by probable cause. Aleman was the last person to be with Joshua and admitted shaking him, the doctors believed his injury resulted from being shaken, and the information about Joshua's mother was not yet known. The second arrest was a constitutional violation, however. By that time, one of the officers had already lied to one of the doctors and obstructed the investigation into Joshua’s mother. The police also engaged in improper tactics during their interrogation. The interrogation itself also violated Miranda. Aleman invoked his right to counsel on more than one occasion. The police should have terminated the interrogation until a lawyer was present or until Aleman initiated a conversation. Instead, they badgered him into signing a waiver. Since the statements he made were critical elements of the murder charge, the Miranda violation is actionable under § 1983. In addition to the Miranda violation, the content of the interrogation was also improper. Aleman is not a medical expert but was given (false) information that he must have been the cause of Joshua's injury. The false information distorted his ability to make a rational choice. Finally, with respect to the malicious prosecution under state law, the Court again distinguished between the first and second arrest. Illinois law requires proof of malice in a malicious prosecution action. Given the circumstances of the first arrest, the district court was correct in granting summary judgment to the defendants. With respect to the second arrest, however, a reasonable jury could find that the officer who obstructed justice and tried to protect Joshua's mother, at Aleman’s expense, had improper motives. 

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BACKES v. VILLAGE OF PEORIA HEIGHTS (November 10, 2011)

David Backes is a veteran of the Persian Gulf War and suffers from post-traumatic stress disorder. In late 2006, he lived with his wife in East Peoria, Illinois. At the time, he was taking a number of medications. He also kept two shotguns at home. On the night of October 17, he and his wife argued. He left home and drove aimlessly. He called his wife on a number of occasions and at least one of them suggested that he might commit suicide. Eventually, he decided against it, parked his car in a park, took a sleeping pill, and fell asleep in the car. In the meantime, his wife had notified the police of the situation. The police dispatcher reported that Backes was suicidal, medicated, and had access to weapons. The Peoria Heights Police Department located his vehicle about 2:00 a.m.. Various officers kept surveillance over the vehicle for several hours at a safe distance. They saw that the drivers window was down and that Backes was mostly motionless in the driver’s seat. Fearing for his safety as well as that of others, the Peoria Heights Police Chief contacted the Central Illinois Emergency Response Team. Members of the team arrived at the site and formulated a plan to bring an end to the situation. They shot pepper balls into the car and immediately removed Backes and took him to a nearby hospital. Backes and his wife brought an excessive force complaint pursuant to § 1983, as well as state law claims for battery, against the Police Chief and the Village. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to the defendants. The Backes appeal.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Kanne affirmed. In order to be liable for a § 1983 suit, a defendant must have been personally responsible for the allegedly unconstitutional behavior. A supervisor's direct participation is not required if he approves of the unconstitutional conduct. The conduct the Backes complain of, however, was carried out by the members of the emergency response team. The Police Chief was not involved in any way. The fact that he may have been consulted, and may have agreed with the proposed course of action, does not change the outcome. The Court turned to the state law battery claims asserted against both the Police Chief and the Village. Again, the Court concluded that the Police Chief's involvement in the operation was not enough to make him, or, in turn, the Village, liable for any battery.

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RAY v. MAHER (November 1, 2011)

Robert Ray was arrested in late 2007. Before he was taken to jail, he was treated at a local hospital for alcohol withdrawal. He became ill while in jail. Jail authorities administered some medication but never took him to a hospital. Ray died within days. Almost 3 years later, his ex-wife was appointed administrator of his estate. She brought § 1983 claims for denial of basic medical services against the jail doctor and a number of other Sangamon County employees. Ray’s daughter, the sole beneficiary of the estate, recently turned 18 and replaced her mother as administrator. Judge Mihm (C.D. Ill.) dismissed the claim on statute of limitations grounds. The administrator appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Wood and Tinder affirmed. The limitations period for a § 1983 claim is governed by state law. In Illinois, one has two years within which to file such a claim. The estate's administrator did not meet that 2009 deadline. Its only argument is that the beneficiary of the estate was under the age of 18 at the time the claim accrued and she brought the claim within two years of her reaching majority. Unfortunately, that argument is misplaced. The claim belongs to the estate. It must be brought by its administrator on a timely basis in order to survive. A beneficiary does not have a personal claim. His or her age at the time the claim accrues is irrelevant.

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MCCAULEY v. CITY OF CHICAGO (October 20, 2011)

Glenford Martinez was released from prison in 2006, after serving 13 years for attempted murder. The following year, he was arrested for domestic battery after he allegedly choked his former girlfriend, Mersaides McCauley. Martinez could have been held without bail had the Illinois Department of Corrections issued a parole violation warrant. They did not -- and he was released on bail. McCauley obtained an order of protection, but to no avail. Martinez continued to violate the order. In early 2008, Martinez shot and killed McCauley and then killed himself. McCauley's estate brought a number of federal and state claims against numerous defendants, including an equal protection claim against the City of Chicago and Roger Walker, the then-IDOC Director. Judge St. Eve (N.D. Ill.) dismissed the federal claims and declined to exercise jurisdiction over the state claims. With respect to the equal protection claims, she concluded that female victims of domestic violence are not a protected class and that Eleventh Amendment sovereign immunity precluded any recovery against Walker in his official capacity. The court denied the estate's request to conduct discovery to support a personal capacity claim against Walker. The estate appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton (dissenting in part) affirmed. The Court criticized the district court's analysis but ended up with the same result. The Court approached the case by asking whether the complaint sufficiently pleaded facts that would allow an inference that the City maintained a "policy, custom, or practice" of discrimination against a group to which McCauley belonged. Twombly and Iqbal require specific facts that support the legal claims, rather than legal conclusions and conclusory allegations. After disregarding the complaint's legal conclusions, the Court found that the factual allegations did not satisfy the Monell standard. In fact, the factual allegations alleged that the City failed to provide special protection to female victims of domestic violence, not that it failed to provide equal protection. The equal protection claim against the City was properly dismissed. The Court also affirmed the denial of discovery related to the Walker personal capacity claim, although again for different reasons. Given that there is nothing in the record to suggest that Walker had any personal involvement in Martinez' parole, the district court's refusal to allow discovery on the issue was not an abuse of discretion.

Judge Hamilton dissented from the majority's dismissal of the equal protection claim against the court City. His dissent was primarily an attack on Iqbal, its heightened pleading requirements, its inconsistency with other rules and practice, and its difficulty in application. He believed that the estate's complaint adequately alleged an equal protection claim by alleging that the City treated domestic violence less seriously than other crimes and that it had a custom of doing so. Even if he concluded that the complaint fell short, however, he would have remanded to give the estate an opportunity to amend its pleading to meet the heightened standard.

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CLARETT v. ROBERTS (September 23, 2011)

On in early October morning in 2005, police officers from Lynwood and Lansing arrived at the home of Patricia Clarett. The officers suspected that Clarett and her sons were involved in a burglary. Although Clarett and the officers had very different recollections of what happened after they arrived at her home, they do agree that Lansing police officer Steven Roberts used his Taser on Clarett three times. Clarett brought an action against a number of police officers, alleging excessive force and false arrest, as well as state law, claims. After a jury found for the defendants, Judge Grady (N.D. Ill.) denied Clarett's post-trial motions. Claret appeals.

In their opinion, Seventh Circuit Judges Manion, Rovner, and Sykes affirmed. The Court first addressed the evidentiary challenges. Clarett challenged the district court's ruling in limine that two criminal convictions, misdemeanor retail theft and obstruction of a police officer, were admissible. The Court concluded that neither conviction was admissible under Rule 609, in that neither had an element of dishonesty. Furthermore, under Rule 608 (b), defendants could not prove the convictions with extrinsic evidence or make affirmative use of them. However, probably in response to the pretrial ruling, Clarett's own counsel introduced the convictions during her case-in-chief. In Ohler, the Supreme Court held that a criminal defendant waived his right to challenge the admission of convictions if he introduced evidence of it first. The Court noted that it had never applied Ohler in a civil context, although other circuits had. It concluded that the principle should apply in civil cases. Clarett cannot challenge the admission of the convictions. Next, Clarett challenged Officer Roberts' testimony about his use of the Taser as impermissible expert testimony. The Court disagreed. The testimony was not of a technical nature but was limited to Roberts' own experience. Alternatively, since all parties agreed that he used the Taser three times, any error was harmless. Finally, Claret challenged the district court's exclusion of evidence that there was no warrant. The Court concluded that no only was the evidence of no warrant irrelevant to the excessive force or false arrest claims, but also that Clarett in fact testified on two occasions that there was no warrant. The district court did not abuse its discretion. Clarett also challenged the jury instructions. The Court found no merit in her challenges. Finally, Claret challenges the jury's verdict, asserting that three Taser deployments constitutes excessive force. The Court noted the conflicting versions of the events of that morning in October. It concluded that there was sufficient evidence in the record to support the jury's verdict.

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REHER v. VIVO (September 7, 2011)

Ronald Reher caused a bit of a commotion in Edson Park in Lombard, Illinois on a May day in 2007. The park is located behind the apartment building where Ezeldra Outlaw and her daughter Ashley lived. Outlaw and Reher had been romantically involved in the past. In fact, Ashley was their daughter. Reher had seen neither of them for over four years. Apparently because he carried a video camera and binoculars, several of the adults in the park became suspicious. Outlaw approached him and yelled at him and broke his video camera. Others in the park took his bicycle. Soon, a number of police officers arrived. Officer Gabinski was aware of a history of domestic disputes and orders of protection concerning Reher and Outlaw. When she told Reher that she did not believe his story (that he was videotaping nature scenes), he became upset and called her a “bitch.” At that point, Officer Vivo arrested him for disorderly conduct. Reher brought suit against Gabinski and Vivo pursuant to § 1983 for an unlawful arrest. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants, finding that the defendants had probable cause for the arrest or, in the alternative, were entitled to qualified immunity.

In their opinion, Seventh Circuit Judges Rovner, Williams, and Hamilton affirmed. Under Illinois law, a disorderly conduct charge requires unreasonable conduct that disturbs another and threatens to provoke a breach of the peace. Videotaping others in Illinois is not illegal unless it is also accompanied by other suspicious circumstances. The Court emphasized that neither Reher's swearing nor the neighbors’ general agitation satisfied the test. Officer Gabinski knew a lot more, however. Based on her extensive knowledge of the Reher /Outlaw relationship and past incidents, the Court concluded that she had probable cause to arrest Reher. In the alternative, it concluded that she was entitled to qualified immunity. Officer Vivo did not have the same historic knowledge. He was aware that some of the adults in the park accused Reher of videotaping the children. He also knew that one woman stated that Reher had been to the park several times earlier watching the children. The Court concluded that those allegations did not give rise to probable cause. It did conclude, however, that Vivo could have had a reasonable belief that they did. He was therefore entitled to qualified immunity.

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PADULA v. LEIMBACH (August 29, 2011)

Jerome Clement experienced a hypoglycemic episode while driving to work one day. He turned into a parking lot and stopped near a truck scale. A 911 call triggered a police response. The responding officers were told to respond to an intoxicated man in a car. The officers tried to wake Clement. Clement did not comply with police orders, spoke in angry tones, and even swung at an officer. The officers physically removed him from the car and attempted to handcuff him. He continued to resist. The officers continued to use force, including hitting him with a baton, kneeling on his head, and spraying him with Mace. Eventually, a paramedic arrived and transported him to the hospital. He died two weeks later of unrelated causes. His estate brought suit under § 1983 for wrongful arrest and excessive force against the officers and for failure to train and supervise against the City of East Chicago, Indiana and its Police Department. Judge Van Bokkelen (N.D. Ind.) granted summary judgment to the defendants. The estate appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum and Sykes affirmed. The Court first addressed the wrongful arrest charge and found ample evidence to support probable cause. Clement drove off the road, was slouched over in his car, was unkempt, and had bloodshot eyes. Furthermore, there was no indication, such as a necklace or bracelet, that he suffered from diabetes. Summary judgment on the unlawful arrest claim was appropriate. The Court turned to the excessive force claim and applied the objectively reasonable standard. Again, the Court found ample evidence in the record to support the conclusion that the officers responded reasonably. Clement refused to comply with police orders and resisted their attempts to handcuff him. The officers' response was commensurate with the situation. With respect to the inadequate training and supervision counts, the Court concluded that they were waived or, if not waived, they failed because the underlying arrest and excessive force counts failed.

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HERNANDEZ v. FOSTER (August 26, 2011)

Fifteen-month-old Jaymz Hernandez’ parents brought him to the hospital where x-rays established that he had a broken arm. The Hernandezes reported that they thought he had fallen out of his crib. Although the fracture was common in children, a hospital nurse was suspicious. The parents had slightly inconsistent stories about the circumstances of the injury and about whether Jaymz could walk. Jaymz also had unexplained, old bruises. The nurse reported her suspicions to the Department of Children and Family Services. Although the DCFS instructed the hospital to release Jaymz to his parents, it also began an investigation, which it assigned to Pamela Foster-Stith. Foster-Stith interviewed the nurse and doctor and prepared an action plan for a home visit and risk assessment. After receiving the approval of her supervisor, she sent investigator Lakesha Foster to the home. Foster found nothing particular suspicious in her visit. Nevertheless, given the injury and the inconsistent stories, Foster and Foster-Stith wanted a home safety plan. The family resisted. Foster-Stith, in consultation with her supervisor, decided that the Department had to take Jaymz into protective custody. She communicated that decision to Foster, who was still at the family's home. Foster explained the decision to the family, including the fact that they could not have contact with Jaymz during the custody period, and took Jaymz in the custody. Jaymz was placed with his great-grandparents. The next day, two different doctors examined Jaymz. Both concluded that the injury was not suggestive of abuse. Foster also spoke with an assistant state's attorney, who advised her that there was not enough evidence to seek protective custody. Although the Department decided to terminate its protective custody, Foster would still not let the family visit Jaymz. The next day, Foster presented a safety plan to the Hernandezes which would require Jaymz to remain with his great-grandparents with supervised visitation by his parents. After being told that they could not see Jaymz without agreeing to the safety plan, the Hernandezes agreed. The Hernandezes signed another safety plan the following week, which the Department later agreed to terminate. The Hernandezes brought suit pursuant to § 1983 for violations of the Fourth and Fourteenth Amendments, naming Foster, Foster-Stith, and the supervisor. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants on qualified immunity grounds. The Hernandezes appeal.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and vacated and remanded in part. The question for a qualified immunity defense is whether the defendants violated a clearly established constitutional right. The Court considered each plaintiff’s claims separately. First, all three plaintiffs asserted substantive due process claims with respect to the initial seizure. The Court noted that since Jaymz had a Fourth Amendment claim, he could not assert a substantive due process claim. With respect to Jaymz’ Fourth Amendment claim, the Court concluded that the removal was supported by probable cause. It relied on the unexplained injury, the older injury, and the inconsistent and contradictory statements of the parents. Therefore, the defendants were entitled to qualified immunity on that claim. The parents’ substantive due process claims fail for the same reason. Second, the Court addressed the plaintiffs' substantive due process claims relating to the continued withholding. This claim arises from a right to familial relations. The defendants needed reasonable suspicion of abuse to override that right. Again, however, the court concluded that Jaymz’ claim was properly analyzed under the Fourth Amendment while his parents' claims should be analyzed under substantive due process. Here, the Court found genuine issues of material fact with respect to defendants' knowledge that the continued withholding violated constitutional rights. The Court relied heavily on the normal physical exams and the assistant state's attorney's response. Summary judgment was improper. Third, the Court addressed the substantive due process claims regarding the allegedly coerced safety plan. The Court concluded that the defendants had no reasonable suspicion that Jaymz was in danger of abuse when they presented the safety plan. The alleged threats were extremely coercive. The Court concluded that the district court erred in granting summary judgment on those claims. Next, the Court considered the plaintiffs' procedural due process claims. The basis of these claims was that the defendants took Jaymz into custody without any pre-deprivation hearing. Here, the Court concluded that the case law at the time of the removal would not have put a reasonable Department investigator on notice that a pre-deprivation hearing was required. The defendants were therefore entitled to qualified immunity on the due process claim relating to the removal. Again, however, the Court found genuine issues of fact on the due process claim with respect to the safety plan. With the allegations of misrepresentations and coercion, qualified immunity would be appropriate.

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ORTIZ v. CITY OF CHICAGO (August 25, 2011)

Acting pursuant to a confidential tip, the Chicago Police raided May Molina's apartment. They placed Molina under arrest. Molina happens to be a local civil rights activist and a harsh critic of police practices. Molina also suffers from diabetes, hypertension, and a thyroid condition. She takes medications for those conditions. Pursuant to department policy, she was not allowed to take her medication into the lockup. Molina died after approximately 27 hours of confinement. Her estate brought suit against a number of police officers involved in her detention pursuant to § 1983, alleging constitutionally inadequate medical care and an unreasonable delay in providing her a probable cause hearing. Judge Grady (N.D. Ill.) excluded the estate's expert witness and granted summary judgment to the defendants on both claims. The estate appeals.

In their opinion, Seventh Circuit Judges Rovner, Wood, and Evans (who, as a result of his death, took no part in the decision) affirmed in part and reversed and remanded in part. The Court first addressed the inadequate medical care count. It pointed out that, since Molina had not yet had a probable cause hearing, her estate’s claim was governed by the Fourth Amendment reasonableness standard and not the Eight Amendment deliberate indifference standard. Since the defendants did not argue burdensomeness or police interest, the only reasonableness factors at issue are whether each individual defendant was on notice of a serious medical condition and causation. With respect to notice, the Court identified the allegations with respect to each individual defendant and concluded, in each case, that the allegations created genuine issues of fact. Considering the evidence in the light most favorable to Molina, each individual defendants either heard her ask for medical attention, heard her cry for help, were told by her lawyer that she needed to be hospitalized, or received numerous telephone calls from friends and relatives advising that she needed her medication. Therefore, the Court concluded that each was on notice of her serious medical condition. With respect to causation, the question is whether, had the defendants responded and taken her to the hospital, she would not have died or suffered pain and suffering. The district court applied too narrow a test when it required the estate to prove that it was the failure to provide her medication that caused her death. Because the defendants' expert testified that she died from an overdose of drugs she ingested at the time of the police raid, and because the district court excluded the estate’s expert testimony that she died because she was not giving her medication, the district court concluded that the estate failed to prove causation. But the estate did not need to prove that it was the lack of medication -- it only needed to prove that it was the failure to take her to the hospital. The Court therefore concluded that the expert testimony was not even required on that point. There was enough lay testimony in the record to establish causation. The Court also found the district court improperly excluded the expert testimony because of its misunderstanding of the factual record. With respect to the defendants' qualified immunity claim, the Court had no difficulty concluding that failing to provide medical care to a prisoner with a serious health risk satisfied the estate’s burden (without deciding whether it should apply the deliberate indifference or objectively unreasonable standard). On the unreasonable delay count, the Court agreed with the district court. The Supreme Court adopted a 48-hour burden shifting rule in Gerstein. Therefore, this 27-hour detention is presumptively reasonable. The estate failed to overcome the presumption.

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TENNY v. BLAGOJEVICH (August 25, 2011)

An Illinois statute regulates prison commissaries’ sale of goods to inmates. Except for tobacco products, it prohibits any markup over cost in excess of 25%. A 2006 Illinois Inspector General audit concluded that the Illinois Department of Corrections was violating the statute and recommended corrective action. The Department rejected the recommendations and maintained its pricing. Several inmates at the Stateville Correctional Center in Joliet filed grievances. The grievances were denied. The inmates filed two separate lawsuits in federal district court pursuant to § 1983, alleging violations of their Fourteenth Amendment procedural due process rights and violations of the Illinois Constitution. Judges Norgle and Pallmeyer (N.D. Ill.) dismissed the complaints for failure to state a claim. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Manion, Wood, and Hamilton affirmed and remanded. A procedural due process claim requires that the plaintiff allege a protected property interest, or legitimate claim of entitlement, under state law. Here, the Court assumed, without deciding, that the Illinois statutory cap created such a property interest. Even if there is a property interest, the inmates are not entitled to pre-deprivation review if it would be ineffectual. The Court concluded that no "process" would have prevented the Department from imposing its allegedly unlawful pricing policy. In this situation, an adequate post-deprivation remedy may satisfy due process. The inmates have not even alleged the inadequacy of a post-deprivation remedy. In fact, the Court concluded that the prison grievance procedures, a possible Court of Claims claim, and the availability of a state court claim were adequate post-deprivation remedies. Because both district courts dismissed the complaints with prejudice but neither district court addressed the state constitutional claim, the Court remanded the cases for dismissals of the state claims without prejudice.

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ORTIZ v. WEBSTER (August 24, 2011)

Shortly after Arboleda Ortiz was incarcerated in the Terre Haute federal prison, an ophthalmologist diagnosed him with a pterygium, a thin film covering the eye, and recommended surgery. The prison denied the request. Someone wrote on the request "NO TOWN TRIPS." Over the next few years, two other doctors concurred with the surgery recommendation while a fourth doctor concluded that the condition was not serious enough for surgery. Dr. Thomas Webster, the prison medical director, reviewed Ortiz’ file and concluded that surgery was not medically necessary, but that it might be required within two years after further evaluation. Ortiz filed suit in 2005 under Bivens, alleging that Dr. Webster was deliberately indifferent to his medical needs. Ortiz eventually got the surgery while his lawsuit progressed. The district court originally granted summary judgment to Webster. On appeal, the Seventh Circuit reversed and remanded, identifying several fact disputes: a) the seriousness of Ortiz’ condition, given the several surgery recommendations, b) Dr. Webster's motivation, given that his stated reason for denying surgery was contrary to the medical record, and c) whether the "NO TOWN TRIP" reflected a prison policy against off-site trips for death row inmates. On remand, the author of the "NO TOWN TRIP" explained it away and Dr. Webster presented evidence that there was no prison policy against off-site medical treatment. Dr. Webster also presented expert testimony that his treatment was within the standard of care because surgical removal of the film is not necessary until there is corneal distortion. Judge McKinney (S.D. Ind.) granted summary judgment to Dr. Webster. Ortiz appeals.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Kanne (dissenting) vacated and remanded. In order to prevail on summary judgment, Ortiz had to show both that his condition was objectively serious and that Dr. Webster knowingly disregarded it. The Court had no difficulty concluding that, at a minimum, there was a fact dispute as to whether the condition was objectively serious. The Court also concluded that Ortiz presented sufficient evidence to get to a jury on the deliberate indifference element. First, construing the evidence in Ortiz' favor, the conditions identified by the expert as requiring surgery actually existed when Dr. Webster refused surgery. Second, even when Dr. Webster refused surgery, he indicated the need for further evaluation and the possibility of the need for surgery within two years. But no further evaluation took place within the next two years. A jury could conclude that Dr. Webster's inaction unreasonably delayed the necessary surgery. Finally, the Court noted that the expert opinion that surgery was not necessary did not resolve the fact dispute -- it merely added one more opinion on the no-surgery side of the debate.

Judge Kanne dissented, taking issue with the majority’s treatment of the deliberate indifference prong. He pointed out that deliberate indifference in a medical context is especially hard to prove. A difference of opinion about a condition’s proper treatment is not enough. Judge Kanne saw nothing either in Dr. Webster's initial review of the file or his later treatment, even taking the facts in a light most favorable to Ortiz, that rose to the level of deliberate indifference.

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MADDOX v. LOVE (August 24, 2011)

The Illinois Lawrence Correctional Center is a medium-security adult prison facility in Sumner, Illinois with approximately 2,000 inmates. Those inmates proclaim numerous different religious affiliations (46 as of May 2009). When Mannie Maddox arrived as an inmate in early 2004, he was a member of the African Hebrew Israelite (AHI) faith. AHI was one of the 17 religious affiliations for which Lawrence offered regularly scheduled services. Maddox attended services for about six months, until they were terminated. Maddox filed a grievance, asserting a denial of his right to exercise his religion. The prison denied the grievance on the grounds that Lawrence canceled the services for budgetary reasons. Maddox appealed the decision through two more stages of review without success. The prison chaplain also denied Maddox’ request to allow the AHI inmates to meet without a formal service. The prison requires that such meetings be supervised and the chaplain's schedule could not accommodate another religious gathering. Maddox filed a § 1983 complaint against the chaplain and the prison wardens alleging violations of his First and Fourteenth Amendment rights. Judge Gilbert (S.D. Ill.) restructured the pro se complaint into four counts. He dismissed for failure to state a claim the counts relating to discrimination in the allocation of the prison budget. He granted summary judgment on the two counts alleging failure to provide reasonable access to religious materials and failure to provide worship services, concluding that Maddox failed to exhaust his administrative remedies. Maddox appeals.

In their opinion, Seventh Circuit Judges Sykes, Tinder, and Hamilton affirmed in part and reversed and vacated in part. The Court first addressed its jurisdiction, since the district court dismissed the two counts on exhaustion grounds without prejudice. Normally a dismissal without prejudice would preclude appellate jurisdiction. Here, however, Maddox cannot cure the complaint’s defects. That makes the decision a final judgment for appellate jurisdiction purposes. On the merits, the Court first addressed the free exercise and religious discrimination counts. The Court understood the district court's dismissal of these counts, as they were restructured, given the principle that prisons need not provide identical resources to every faith within the prison population. An allegation of a disproportionate allocation of resources does not state a claim. The Court did find fault, however, with the district court's restructuring of Maddox' allegations and explored the substance of those allegations. Maddox alleged a disproportionate allocation of resources to other religions, a singling out of AHI for budget cuts, and refusal to pursue alternatives for AHI members. The Court found that those allegations did, in fact, state a claim for relief. Prisons cannot discriminate against particular religions. Although it is premature to conclude that they did here, Maddox is allowed to make his case. The Court turned to the access to religious materials claim. Since Maddox concedes that he did not grieve that complaint, the Court concluded that the district court properly dismissed that count. Finally, on the group worship claim, the district court dismissed because Maddox failed to exhaust administrative remedies. He did not name the individuals he complained of, as required by the then-current Illinois Administrative Code. The Court disagreed. First, prison officials never raised this procedural infirmity during any of the three grievance stages. Instead, they rejected the grievance on the merits at each stage. When the prison addresses a grievance on the merits without addressing any procedural defect, the grievance has obviously served its purpose in notifying prison officials of the prisoner's complaint. They cannot later rely on that procedural defect to make out an exhaustion defense. Second, the procedural infirmity here was caused by prison's own error. Maddox was given a form that complied with a prior version of the administrative code. It did not require the same degree of factual particularly as did the code in effect at the time of the grievance. Maddox provided all the information that was requested on the grievance form.

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SROGA v. WEIGLEN (August 18, 2011)

Chicago Police officers arrested Kevin Sroga 13 times between November 2003 and January 2008. Three are at issue on this appeal. First, he tried to stop a City employee from towing his car. A crowd gathered and a police officer instructed him to stand down. Instead, he jumped on the car as it was being towed away and was arrested for disorderly conduct. Second, only months later, he found himself in another confrontation with a City employee ready to tow one of his cars. This time, he got into the car and ignored repeated police requests to get out. One of the officers on the scene noticed a Chicago Police Department ticket book in yet another Sroga vehicle. He was arrested on suspicion of theft. Third, a year or so later, he was arrested for criminal trespass to "state-supported" land. He was taking a shortcut through a police station parking lot that was marked with signs that said "Parking Police Personnel Only." He brought suit against the City pursuant to § 1983, asserting that each of these three arrests was an unreasonable seizure. Judge Guzmán (N.D. Ill.) granted summary judgment to the defendants. Sroga appeals.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Hamilton affirmed. The Court addressed each of the three arrests in turn. With respect to the first arrest, the Court noted that disorderly conduct is not particularly well-defined. One of its definitions is to provoke a "breach of the peace." The Restatement (Second) of Torts defines breach of the peace as an offense "likely to cause an immediate disturbance of public order." The Court concluded that jumping on a moving car being towed away fit that description. The Court rejected Sroga's argument that a police bulletin warning officers that courts typically throw out disorderly conduct cases when the complaining witness is a police officer amounted to some limitation on this arrest. With respect to the second arrest, the Court found probable cause that Sroga exercised control over the ticket book knowing that it was not his and without any effort to return it to its rightful owner. The fact that Sroga may have had an explanation for the ticket book’ presence (which the Court doubted) did not negate probable cause. As an aside, the Court added that Sroga could have been charged at either of the first arrests with resisting or obstructing the performance of a police officer in that he disobeyed lawful orders in both cases. Even though the charge was not identified by the officers at the time, it would have defeated his claims of unreasonable seizure. The Court turned to the third arrest for criminal trespass. Here, the Court concluded that the police did not have probable cause to arrest Sroga merely for crossing the parking lot. In order to make out a charge of trespass on state-supported land, there must be some indicia (a fence or signs) that put the public on notice that their entry is forbidden. The only signs here referred to the parking of cars. But the Court did find that Sroga's conduct in the parking lot, where he looked into several police cars and struck up a conversation with an officer, did give police probable cause to believe that Sroga was interfering with the lawful use of the land. The Court added that Sroga could not have been convicted of the offense since notice is a requirement -- and the notice was insufficient. Two officers stated that they thought the signs provided adequate notice and the Court found those understandings, although incorrect, not so unreasonable as to defeat probable cause.

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FLOREK v. VILLAGE OF MUNDELEIN, ILLINOIS (August 16, 2011)

After successfully completing a controlled marijuana buy at a Mundelein, Illinois apartment, the police obtained a search warrant. They executed the warrant late in the evening of December 7, 2004. Linda Florek and her son lived in the apartment (apparently, the son’s friend was the marijuana seller). Florek arrived home from work at approximately 10:00 p.m., at which point she enjoyed a marijuana cigarette. The police arrived at approximately 10:20 p.m. According to the police, they knocked and announced their presence and broke down the door after about 15 seconds without a response. The apartment still smelled of marijuana. Florek admitted to the police that she had hidden some marijuana upon their arrival. Florek and her son were handcuffed and kept in the living room during the one-hour search. The parties disagree about what happened next. According to Florek, she asked if she could take some baby aspirin because she was experiencing chest pains and thought she might be experiencing a heart attack. After the police rejected her request, she asked for an ambulance. The police told her to wait until they got to the police station. Florek also claims she told police she was having a heart attack before being placed in the van for transportation to the police station. According to the police, Florek did ask for a baby aspirin and they denied the request because of police policy that only physicians administer medication. Instead, they offered to summon paramedics if she needed help. She refused. The police concede that Florek complained about the choice of transportation to the police station but assert that she did not tell them of any chest pains until they were on their way. They immediately radioed for assistance and met an ambulance when they arrived at the police station, minutes later. Florek was taken to the hospital, where physicians confirmed that she had suffered a heart attack. Florek filed suit against the Village and individual police officer Hansen, alleging that: a) the denial of her request for baby aspirin was an unreasonable seizure, b) that the refusal to call an ambulance was an unreasonable seizure, and c) that the police's failure to wait a reasonable time after the knock and announce amounted to an unreasonable search. Magistrate Judge Valdez (N.D. Ill.) denied summary judgment on the knock and announce and ambulance claims and granted summary judgment to the defendants on the aspirin claim on qualified immunity grounds. At trial, after the close of plaintiff's case, the court directed a verdict for the Village. After trial, the jury found against Florek on the remaining claims. Florek appeals.

In their opinion, Seventh Circuit Judges Flaum and Sykes and District Judge Conley affirmed. The appeal raised three challenges: the summary judgment on the aspirin claim, the directed verdict for the Village, and the exclusion of an expert on the knock and announce claim. The Court rejected each. It first addressed the qualified immunity on the aspirin claim. The qualified immunity analysis involves two questions: whether there is a constitutional deprivation and whether the right at issue was clearly established at the time. If either question is answered no, the defendant is entitled to qualified immunity. Although the magistrate judge found qualified immunity by answering the clearly established prong in the negative, the Court affirmed by answering the deprivation prong in the negative. In the medical needs context, a seizure is unconstitutional if an arresting officer does not respond reasonably considering the totality of the circumstances. Here, the Court criticized the way the case was litigated in the district court. Since the aspirin claim and the ambulance claim were, in fact, both part of the same arrest and both were included in the totality of circumstances, they should have been presented as one claim. Nevertheless, the Court addressed the aspirin claim as a distinct claim. The Court considered the four Williams factors: the officer's notice of a medical need, the seriousness of the need, the requested treatment, and any police interests. Here, the officers were not on notice of a serious medical condition, the requested treatment was minor, the police were conducting a search for illegal drugs, and the officers summoned an ambulance when they were on notice of a serious medical condition. Therefore, the Court concluded that the officer was entitled to summary judgment on the aspirin claim. Florek’s only argument with respect to the directed verdict for the Village also related to the aspirin claim. Given the court's resolution of the individual claim, the directed verdict was appropriate. On the knock and announce claim, Florek presented expert testimony to the effect that no reasonable officer would expect a response from an apartment’s resident within 15 seconds at that time of night. The magistrate judge excluded the evidence on the grounds that the subject matter was within a layperson’s normal comprehension. Evidence Rule 702 requires that expert testimony "assist the trier of fact" in determining a fact issue. That generally means that the expert must have some specialized knowledge or experience that will help the trier of fact understand the testimony’s subject matter. Here, the Court concluded that the magistrate judge did not abuse her discretion in excluding the testimony. In some circumstances, expert testimony might be helpful in determining whether officers waited a reasonable time before forcefully entering a residence. A witness with expertise in law enforcement might offer testimony about how drugs are disposed of or what dangers await police officers in such a situation. But testimony about how long it would take a person to answer the door late at night is within the everyday experience of a layperson.

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DURAN v. TOWN OF CICERO (August 9, 2011)

Alejandro and Maria Duran threw a party at their Cicero, Illinois home to celebrate their daughter’s baptism. Close to 100 people attended. The Cicero police received two telephone complaints from neighbors. Shortly after the Cicero police responded to the second complaint, the party guests and the police exchanged heated words. Once the police actually entered the property, ostensibly to make an arrest, the verbal melee became a physical one. Seventy-eight guests claim they were physically injured and several police officers required medical treatment. The police made seven arrests but there were no convictions. The 78 injured guests brought suit against 17 police officers and the Town of Cicero pursuant to § 1983 and Illinois law. They also asserted a spoliation of evidence claim based on the police's confiscation of two video cameras, one that was returned but that did not contain any footage of the physical confrontation and one that was not returned that did contain footage of the confrontation. Before trial, Cicero stipulated to his liability under § 1983 and to its vicarious liability on the state law claims. The jury returned verdicts in favor of 23 plaintiffs, on which the court entered judgment. The court then tried to spoliation case. It excluded from that case the issue of the returned video camera, rejecting plaintiffs' theory that preventing the creation of evidence amounts to spoliation. Cicero filed a Rule 59 motion to amend the judgments pursuant because they appeared to list separate awards against both the individual defendants and Cicero for the same injuries. Judge Grady (N.D. Ill.) denied the motion. Cicero appeals the denial of the Rule 59 motion. The plaintiffs cross-appeal.

In their opinion, Seventh Circuit Judges Ripple, Manion, and Sykes vacated and remanded in part and affirmed in part. The Court first addressed Cicero's appeal. It noted the fundamental principle that a plaintiff is only entitled to one recovery for his injuries. Here, Cicero had stipulated to its liability and that issue should not have been submitted to the jury. It was -- and they were obviously confused. In addition, instructions and special verdict forms asked damages to be assessed by defendant or by claim and not for a particular injury to a particular plaintiff. A Rule 59(e) motion is a proper way to correct a manifest error of law such as this. The Court concluded that it was reasonably clear what the jury was trying to do and remanded for an amended judgment to eliminate any possibility of double recovery. The plaintiffs raise three issues on appeal: the exclusion of the videotape, the exclusion of misconduct complaints against one defendant, and the exclusion of a civil rights conviction against another defendant. First, the Court agreed with the district court that the evidence regarding the returned video camera was properly excluded. Spoliation occurs only when one fails to preserve existing evidence. Here, plaintiffs argue that the videographer would have continued recording the physical melee, creating valuable evidence for trial. That does not amount to actionable spoliation in Illinois. Second, the Court concluded that the district court did not abuse its discretion in excluding four misconduct complaints accusing one of the defendants of verbally abusing minorities. The Court noted the substantial leeway a district court has in ruling on an issue like this that requires a balancing of the evidence’s probative value with its prejudicial effect. Third, the plaintiffs sought to introduce a criminal conviction on a civil rights charge against another officer. They argued admissibility under either Rule 609(a)(1) or 609(a)(2). The Court concluded that plaintiffs forfeited their (a)(1) argument because they did not renew it at trial after the court's conditional pretrial ruling excluding it. With respect to (a)(2), the Court concluded that, although there was some evidence of an attempted cover-up, the crime with which the officer was charged and convicted did not involve dishonesty.

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FRIZZELL v. SZABO (July 27, 2011)

Thomas Frizzell was on his way to work one November afternoon in Springfield, Illinois when Sangamon County Sheriff’s Deputy Carl Szabo noticed (he asserts) that Frizzell was not wearing a seatbelt. Szabo followed Frizzell for several minutes, until Frizzell arrived in the parking lot of his place of employment. Their accounts of what happened next differ substantially. Deputy Szabo testified that Frizzell ignored his instructions to return to his car, ran toward the door of the building, and attempted to enter the building. Frizzell asserts that he was in a hurry because he was late for work, that he did not originally realize that Szabo was talking to him, and that he wanted to clock in before talking so as not to be late. In any event, Szabo used his taser on Frizzell. When Frizzell continued to ignore orders to stay down, Szabo tased him several more times. Finally, Szabo used pepper spray and physically subdued Frizzell. Frizzell lost his job and claims that he felt weak and tired for several weeks following the incident. He did not, however, seek medical treatment. Frizzell brought suit against Szabo pursuant to §§ 1983 and 1988 for excessive force and false arrest. Szabo brought a counterclaim for battery, seeking $75,000. After trial, Judge Scott (C.D. Ill.) refused to give a nominal damages instruction. She changed her mind and gave such an instruction, however, after the jury sent back a note asking if they had to award damages if they found in plaintiff's favor. The jury found against Frizzell on the false arrest claim, found against Szabo on the counterclaim, and found in Frizzell's favor on the excessive force claim but awarded nominal damages. Chief Judge McCuskey (C.D. Ill.) denied a motion to alter the award and also denied attorney's fees. Frizzell appeals.

In their opinion, Seventh Circuit Judges Kanne and Evans and District Judge Clevert affirmed. The Court noted that a nominal damages instruction can be appropriate where: a) an officer uses both justifiable and excessive force but any injury relates to the justifiable force, b) where a jury might conclude that the evidence of injury is not credible, or c) where the degree of the injury itself does not support greater damages. The Court found two of those situations in this case. First, the jury could have concluded that the use of the taser was justifiable but the pepper spray afterwards was not -- but that Frizzell's injuries related only to the use of the taser. Second, Frizzell produced very little evidence of injury related to the pepper spray. The district court did not err in giving the instruction or in denying the motion to alter the judgment. The Court turned to the motion for attorney's fees. On that issue, the district court properly considered the difference between the amount plaintiffs sought and the actual award, the significance of the legal issue at stake, and the litigation's public purpose. The Court agreed that those factors weighed against any award of fees. First, although Frizzell never requested a specific award at trial, he did refer to Szabo's $75,000 counterclaim request as a starting point. The difference between $1.00 and anything near $75,000 is significant. Second, Szabo did not prevail on his false arrest claim and prevailed without measurable damages on his excessive force claim. He cannot claim that he prevailed on any significant legal issue. Finally, there was no public purpose served by the litigation. It was simply a private injury.

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COBIGE v. CITY OF CHICAGO (July 12, 2011)

In the summer of 2006, the Chicago Police arrested Patricia Cobige on a drug charge. It was not the first time she was arrested. She was sentenced to four years in prison in 1998 on drug charges and, again, sentenced to three years in prison in 2001. Unfortunately, after her 2006 arrest, she suffered a heart arrhythmia and died while in police custody. Her son brought suit against several police officers and the City under both state and federal law. A jury awarded $5 million in compensatory damages and $4,000 in punitive damages. The defendants appeal.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Williams affirmed in part and vacated and remanded in part. The Court examined the trial evidence. It concluded that a jury could have found that Cobige had uterine tumors, that she experienced severe abdominal pain as a result, that the pain led her to produce more adrenaline, that the adrenaline in combination with a pre-existing heart condition caused her death, that routine examinations and care would have prevented her death, and that four police officers ignored her complaints of pain. The City's principal argument is that the plaintiff's expert testified that death can occur only a short period after each spike in adrenaline and that there was testimony that Cobige died in a peaceful sleep. The Court conceded the point but countered that the jury was not required to believe the testimony that she died in her sleep. They could have reasonably believed that she continued to experience the pain throughout the night until her death -- or even that she had been dead for hours. The City also complained that plaintiff's expert was not an expert in police procedures. Again, the Court conceded the point but countered that his testimony only went to Cobige's need for treatment. The City could have presented evidence that she was not treated because of other extenuating circumstances. But it did not. The Court did take issue with the district court's exclusion of much evidence concerning Cobige's drug problem and history of arrests. The district court allowed her son to testify that she was a friend, a supporter, and a role model and that she provided wise advice. The court then admitted evidence only of Cobige 's latest drug conviction. The court relied on evidence Rules 404(b) and 609. Rule 609 is irrelevant in that it deals with attacks on the witness’ character for truthfulness and Cobige obviously never testified. Rule 404(b) also deals with evidence of character and prohibits such evidence when it is offered to show "action in conformity therewith." That is not why the City offered the evidence. It offered the evidence on the question of damages. The exclusion of that evidence requires a new trial, which should be limited to the subject of damages.

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HARVEY v. TOWN OF MERRILLVILLE (July 11, 2011)

The mostly African-American residents of a Merrillville, Indiana subdivision were unhappy with their retention pond. It frequently flooded and they thought it attracted mosquitoes. When town officials considered a subdivision expansion, the residents became even more concerned. They attempted to express those concerns to town officials. They claim that the officials ignored them, subjected them to racial slurs, and were generally less responsive than they were to the white residents of a different subdivision. Several of the residents filed suit pursuant to § 1983 alleging a violation of the Fourteenth Amendment’s equal protection clause. They also brought many state law claims. They named as defendants the Town, the town engineer, and a large number of other town employees. In a December 2, 2010 order, Judge Van Bokkelen (N.D. Ind.) granted summary judgment to the defendants (but failed to mention the engineer) on the ground that plaintiffs failed to identify a similarly situated class. He also declined to exercise supplemental jurisdiction over the state law claims and "remanded" the case to state court. After the engineer sought clarification, the court issued an order the following day pursuant to Rule 60(a) granting summary judgment to the engineer. A few months later, the district court entered Rule 58 judgment as to all defendants. Plaintiffs appealed the December 2 order, but mentioned all defendants. The plaintiffs did not file a notice of appeal with respect to the December 3 order or the later judgment.

In their opinion, Judges Cudahy, Kanne, and Tinder affirmed as modified. The Court first rejected the engineer's arguments that: a) plaintiffs failed to effectively appeal summary judgment in his favor because they did not appeal from the December 3 order or the later judgment, and b) plaintiffs waived their argument as to him by not developing it adequately. With respect to the former, the Court noted that failed attempts to comply with Federal Rule of Appellate Procedure 3  are generally not fatal if the appellee is not harmed. Here, the appellant's identified the engineer by name and even included a copy of the judgment in their brief, which also named him. Their technical noncompliance does not prevent the Court from having jurisdiction. With respect to the latter, the Court acknowledged many deficiencies in the briefing but concluded that plaintiffs addressed the engineer enough to avoid waiver. On the merits, the Court agreed that plaintiffs failed to make out an equal protection claim sufficient to get past summary judgment. To do that, the plaintiffs had to present evidence that they were in a protected class, that they were similarly situated to others in an unprotected class, and that they were treated differently. They did present some evidence of similarities with the residents of another subdivision but they failed to carry the day. There was more evidence of substantial differences between the groups, including subdivision zoning differences and the fact that the other subdivision did not even have a retention pond. In addition, plaintiffs failed to present evidence, other than their pleadings, that the other residents even belonged to an unprotected class. And finally, the record seems to show that the other residents group was actually treated less favorably than the plaintiffs. The district court did err, however, in remanding the case to state court. The case did not originate in state court and cannot be remanded there. The district court should have dismissed without prejudice.

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BOGAN v. CITY OF CHICAGO (July 6, 2011)

Nicole Evans's eight-year-old son called 911 at about 2:30 a.m. to report that his mother was being beaten. When officers arrived at her apartment, a male voice swore at them from inside. They then heard a woman scream and eventually found her on the roof. She was partially dressed, mentally distraught, and physically injured. She told the police that she wanted her boyfriend arrested. The police saw the boyfriend through an apartment window and went after him. He ran to the rear of the apartment and they followed, searching every room. Other officers had arrived at the building and advised that an African-American male was on the rear porch. The officers arrived at a door which they assumed was a door to the porch. They tried to kick it in but Sharon Bogan opened the door from the inside. She identified the boyfriend as her son. Chicago police searched the apartment but did not find boyfriend. Bogan brought suit against the City of Chicago and the officers under § 1983. She alleged a Fourth Amendment violation. A jury returned a verdict for the defendants. Judge Kennelly (N.D. Ill.) denied her motion for judgment as a matter of law. Bogan appeals.

In their opinion, Circuit Judges Ripple and Hamilton and District Judge Murphy affirmed. The Court first addressed Bogan's claim that the exigent circumstances instruction was error. The district court instructed the jury that Bogan had to prove that a reasonable officer would not have believed that a crime suspect was in the apartment. The Court noted that it had never addressed that precise question. It had, however, addressed the burden of proof question with respect to consent. In Valance, the Court concluded that a defendant asserting a consent exception to a warrantless search claim has the burden of coming forward with evidence but the plaintiff still has the ultimate burden of persuasion. The Court concluded that its rationale there also applied to the exigent circumstances exception as well. The Court acknowledged that there is a split in the circuits on the question, but countered that the split has existed for some time. The Court next addressed Bogan's argument that it was error to allow one of the officers to testify regarding his subjective beliefs during the search of Evans’s apartment. The Court recognized that the exigent circumstances exception cannot be satisfied with a police officer’s subjective view. Instead, the factfinder views the totality of the circumstances as they would have appeared to a reasonable person in the officer’s position. Here, the officer's testimony simply explained his progress and decisions made during this search. The information could have been helpful to a jury in assessing the reasonableness of his actions. Finally, the Court found no error in the district court's rejection of Bogan's request for judgment as a matter of law. There was sufficient evidence in the record from which a jury could conclude that the officers reasonably believed the boyfriend was in the apartment.

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 BROOKS v. CITY OF AURORA (July 6, 2011)

Early one June evening in 2008, two Aurora police officers were staking out a location suspected of being a front for drug activity when they observed Michael Brooks driving through an adjacent parking lot. They knew Brooks but had never seen him drive. When they checked, they discovered that his license had been suspended for over a decade. Before they could take any action, however, they were called away. One of the officers later completed a traffic ticket and obtained a warrant for Brooks's arrest. The police served the warrant a few weeks later. When they arrived at his apartment, Brooks was barbecuing. An officer took him aside and explained the reason for the visit -- that he was under arrest. Brooks denied driving the car, claimed that it was not even working at the time, pulled his wrists away, and started backpedaling and waving his arms. The officer fired two bursts of pepper spray and ultimately immobilized Brooks. He was arrested and charged with the driving offense and resisting a peace officer. He was acquitted of both charges. Brooks filed suit against the police officers and the City of Aurora pursuant to § 1983. He alleged false arrest, false imprisonment, and excessive force. The defendants moved for summary judgment on the false arrest and excessive force claims and asserted qualified immunity on the excessive force claim. Judge Coar (N.D. Ill.) found probable cause and granted summary judgment on the false arrest claim. Sua sponte, he granted summary judgment on the false imprisonment claim for the same reason. Finally, he found that defendants were entitled to qualified immunity on the excessive force claim.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Tinder affirmed. The Court first addressed probable cause on the false arrest and imprisonment claims. Probable cause depends on the facts and circumstances at the time of the arrest and whether a prudent person, with the officers knowledge, would believe that the suspect has committed, is committing, or is about to commit an offense. The offense at issue here, resisting a peace officer, requires "a physical act of resistance or obstruction . . . that impedes, hinders, interrupts, prevents, or delays the performance of the officer’s duties, such as by going limp or forcefully resisting arrest." Although Brooks claims that he had no intent to resist (but just to tell his wife to bring his wallet to the station), the undisputed evidence in the record supports the proposition that a reasonable officer could have believed that he did. Although there is disputed evidence regarding whether Brooks was actually driving a car on the night in question, that evidence is not material. First, resisting even an unlawful arrest violates the statute. Second, Brooks was not actually arrested and detained until after the officers had probable cause to believe that he had resisted the arrest. The Court saw no error in the false imprisonment summary judgment. The analysis is the same for both claims and Brooks never proffered a reason why an opportunity to respond to the false imprisonment claim was necessary. With respect to the excessive force claim, the Court did not decide the deprivation prong of the qualified immunity test. It noted that courts have held the use of pepper spray appropriate in resisting arrest situations and that courts have considered it excessive if its use is unprovoked or gratuitous. Here, regardless of Brooks's intentions, a reasonable police officer could have concluded that he was resisting arrest and that the use of pepper spray would be appropriate. Therefore, the officer is entitled to qualified immunity.

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HOLLAND v. CITY OF CHICAGO (June 23, 2011)

In 1997, Dana Holland was convicted of sexually assaulting Dionne Stanley. At Holland's trial, Stanley positively identified Holland. She also described how she met him at a bar the night before and the particulars of the assault. Five years later, a DNA test established Holland’s innocence. His conviction was vacated. He brought suit against the City of Chicago and two police officers for Brady violations and state law malicious prosecution. At her deposition, Stanley testified that she committed perjury in her trial testimony. She testified that she told the police officers on the scene three times that Holland was not her assaulter. She stated that she identified him at the scene only after the police pointed out all the evidence against him and told her she could go home if she identified him. She also testified that she told the Assistant State's Attorney shortly before trial that Holland did not do it. Judge Zagel (N.D. Ill.) granted summary judgment to the defendants.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court first addressed the malicious prosecution claim. Among other things, a plaintiff must prove the absence of probable cause and the presence of malice in order to prevail on a malicious prosecution claim. In testing for probable cause, one must look at the time when the charges were filed, not the time of arrest. The Court recited the "ample" evidence of probable cause; including the facts that he was found with clothing matching that of the assailant, that his wallet was in the clothing, and that he had no alibi. The Court noted that probable cause existed even without Stanley’s identification. Although the presence of probable clause itself defeats Holland's case, the Court also noted that he had no proof of malice. The Court turned to the Brady argument. A police officer can be liable under Brady if he withholds exculpatory evidence and the evidence is material. The materiality test is that there must be a reasonable probability that the proceeding would have turned out differently had the evidence been disclosed. The evidence Holland takes issue with is the police officer's failure to disclose the "pressure" they put on Stanley to identify him. They Court identified several reasons to reject the Brady claim. First, Holland's attorney had the opportunity to cross-examine Stanley at trial. Second, the Court thought it unlikely, given Stanley's explanation that she did not identify him because she was afraid and the significant physical evidence, that the outcome would have been different. Third, Stanley was a particularly strong eyewitness at trial because of her lengthy, and initially friendly, encounter with Holland.

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LEWIS v. CHICAGO (May 13, 2011)

In 1995, applicants for Chicago's Fire Department took a written examination. The City divided the applicants into three categories, based on their test scores. Applicants scoring 64 or less were rated not qualified. Applicants scoring 89 or more were rated highly qualified. The middle group was rated qualified but told in January of 1996 that they were not likely to be hired. The City hired applicants on 11 different occasions between May 1996 and November 2001. Each time, it chose at random from the well-qualified pool. An applicant in the qualified pool filed a charge of discrimination in March of 1997. The charge claimed that the 89 cut-off had a disparate impact on African-Americans. Several applicants later filed a class-action. Judge Gottschall (N.D. Ill.) concluded that the charge was timely, notwithstanding the fact that it was filed more than 300 days after qualified applicants were told that they were not likely to be hired. She also rejected the City's business necessity defense and awarded relief to the class. On appeal, the Seventh Circuit reversed, concluding that the charge was not timely. The Supreme Court reversed the Seventh Circuit, concluding that the 300-day clock starts anew in disparate impact litigation whenever the employer makes a hiring decision based on the challenged test. The Supreme Court's decision made the charge timely with respect to each hiring event except the first. The Supreme Court remanded for consideration of: a) whether the City preserved an argument that the charge was untimely with respect to the first hiring event, and b) whether the City preserved an argument that the plaintiffs failed to prove disparate impact arising from any particular use of the test.

In their opinion, Chief Judge Easterbrook and Judges Power and Posner affirmed the original district court opinion as modified to eliminate any relief based on the first hiring event. The Court first concluded that the City preserved both arguments identified by the Supreme Court. Since the City preserved its argument that the charge was untimely with respect to the first hiring event, and since the Supreme Court concluded that it was untimely, the Court reversed the District Court with respect to any relief arising from that event. Although the Court concluded that the City preserved its argument that the plaintiffs failed to prove any particular disparate impact, the Court rejected the argument on its merits. First, the City had conceded that the 89 cut-off had a disparate impact. Because each hiring event was a random selection from the well-qualified pool, each event resulted in the same disparate impact as the list as a whole. The Court rejected the City's argument that since it could treat the original creation of the pool as legal (because of the delayed charge), then each use of the pool was legal. In a disparate impact case, which does not require evidence of discriminatory intent during the charging period, the use of the test can be unlawful even if the original creation of the highly qualified pool was not.

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RADENTZ v. MARION COUNTY (April 5, 2011)

Prior to 2005, forensic pathologists at Indiana University performed certain services, including autopsies, for the Marion County Coroner's office under a contract. The contract terms were very favorable to the County, in that the University subsidized much of the cost. The contract expired on the last day of 2004, the day before Kenneth Ackles, an African-American chiropractor, became the new Coroner. Notwithstanding the contract expiration, the University continued to provide services at no cost for a few months but it eventually terminated the contract. The Chief Deputy Corner reached out to two of the University's pathologists who had been providing the services, Stephen Radentz and Michele Catellier. Radentz and Catellier formed a limited liability company and entered into a five-year contract with the County to provide forensic pathology services. Under the contract, the pathologists could perform autopsies for other counties, but Marion County had to furnish the supplies for those autopsies. With six months notice, either party could terminate the contract without cause and the County could amend the contract to eliminate permission for other county autopsies. In late 2005, Ackles replaced his deputy with Alfarena Ballew, an African-American woman. Ballew terminated the contract with Radentz and Catellier. They brought suit pursuant to § 1983 against the County, Ackles, and Ballew, alleging that the contract termination was based on race discrimination in violation of the Constitution. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants. Radentz and Catellier appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner reversed and remanded. The Court noted that the district court concluded that plaintiffs had met their prima facie indirect method burden, and that determination is not challenged on appeal. What is at issue is whether the defendants' nondiscriminatory reason given for the contract termination was pretextual. In order to prevail, the plaintiffs must do more than show that the decision was unwise. They must show that it was not honestly believed. There was evidence that Ballew and the County were concerned about the contract costs. Ballew was particularly concerned about the costs the County incurred providing supplies for the other county autopsies. The County received no income from these autopsies. The Court noted that the contract allowed the County to withdraw that permission with six months notice. The County never explained why it gave six months notice to terminate the contract rather than giving the six months notice to withdraw the other county autopsy permission. Their failure to explain their decision casts some doubt on it. The Court noted other evidence that was consistent with a race based decision: the County was satisfied with plaintiffs’ work, the County hired an African-American woman to replace the plaintiffs, Ackles was on record discussing his desire for more African-Americans in the Coroner’s office, the racial demographics of the office were changing, and the new hire provided no economic benefit to the County. On that record, the Court concluded that a factfinder would not have to believe the County. The factual disputes concerning the termination decision preclude summary judgment.

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GROESCH v. CITY OF SPRINGFIELD (March 28, 2011)

Kevin Groesch, Greg Shaffer, and Scott Allin are all white males, were all police officers in the Springfield, Illinois Police Department, all voluntarily resigned from the department, all sought reemployment with the department, and all were ultimately rehired between 1989 and 1996 as entry-level officers pursuant to City policy. Donald Schluter, on the other hand, is African-American. He also was a Springfield police officer who sought reinstatement after a voluntary resignation. He was rehired in 2000 -- but he was given a retroactive leave of absence and he returned to the force with full credit for his prior years of service. The City policy had not changed but the City Council enacted a special ordinance allowing the exception. The police union challenged the ordinance in state court but it was upheld. The City ignored the white officers' request to be credited with their prior years of service. A state court dismissed, on statute of limitations grounds, the officers’ lawsuit alleging disparate treatment under the Illinois Constitution. The officers then filed race discrimination claims under Title VII in federal court in 2004. Judge Scott (C.D. Ill.) denied the City's motions for summary judgment in late 2006, relying on the "paycheck accrual" rule, under which each department paycheck amounted to a separate discriminatory act. Five months later, however, the Supreme Court decided Ledbetter and rejected the paycheck accrual rule. The district court reversed course and granted the City's motion. The court also ruled that the officers' § 1983 claims were barred by res judicata because they could have been brought in the state court action. The officers appeal.

In their opinion, Judges Bauer, Wood, and Hamilton affirmed in part, reversed in part, and remanded. The Court first noted that Congress enacted the Lilly Ledbetter Fair Pay Act of 2009 during the pendency of the appeal. In effect, the Act reinstated the paycheck accrual rule and also made the reinstatement retroactive to any claim pending on the day of the Supreme Court's decision or later. The City attempted to avoid application of the Act or distinguish the case -- but to no avail. The Court reversed the district court with respect to the Title VII claims relating to the time period after the state court dismissal. Next, although the Act only directly applies to Title VII actions, the Court concluded that the paycheck accrual rule applied to pay discrimination claims under § 1983, as well. Finally, the Court considered the impact of the earlier state court decision. Under Illinois law, res judicata requires a final judgment, an identity of causes of action, and an identity of parties. The district court correctly concluded that res judicata bars recovery for claims that arose before the date of the final judgment. But each individual paycheck after that final judgment supports a separate cause of action and triggers a new statute of limitations. They therefore do not share an identity of causes of action and are not barred by res judicata. The Court emphasized that the state court had never ruled on the merits, therefore not implicating collateral estoppel or issue preclusion.

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OWENS v. HINSLEY (March 18, 2011)

While imprisoned in the Menard Correctional Center, James Owens became unhappy with prison conditions and with the prison's response to his complaints. So he started a hunger strike. He spent 21 days in his cell and four in the infirmary before he ate again. He lost 20 pounds but suffered no medical complications. Within weeks, he began a second hunger strike. This time, he spent 25 days in his cell and almost 3 weeks in the infirmary. He ate again only after the prison began force-feeding him. He lost 30 pounds on his second hunger strike but again suffered no medical complications. He submitted an informal grievance complaining that he should have been moved to the infirmary sooner. His counselor ignored the grievance. The following year, on two separate occasions, Owens was assaulted by cellmates, complained to guards, and was assaulted again before the guards did anything. Owens brought suit pursuant to § 1983. The complaint contained seven separate claims against 15 different defendants. Chief Judge Herndon (S.D. Ill.) dismissed five of the seven claims at screening and granted summary judgment to the defendants on the other two. Owens appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first noted that the complaint violated the rules of civil procedure regarding joinder and should either have been severed into two separate actions or dismissed for improper joinder. However, since improper joinder is not jurisdictional, the Court addressed each claim's merits in turn. His claim that prison officials violated the Constitution when they ignored his grievances is frivolous -- prison grievance procedures are not required by the Constitution. His claim that his First Amendment right to demonstrate was violated when the prison force-fed him is frivolous -- there is no constitutional right to refuse life-saving medical treatment. His claim that the guards failed to protect him from cellmate assaults fails -- no reasonable juror could find that the guards deliberately ignored a substantial risk of serious harm. His claim that the prison was deliberately indifferent when it did not move him from his cell to the infirmary during his hunger strikes fails, although not for the reason relied upon by the district court. His allegation, in his verified response to summary judgment,  that he submitted an informal grievance is the equivalent of an affidavit. The court should have considered it. The claim still fails because he failed to exhaust administrative remedies when he did not follow up his informal grievance with a written grievance to a designated prison official. The district court dismissed the other three claims without prejudice because the allegations of misconduct were not linked to a particular defendant. Although an amended complaint may have corrected some of that problem, the Court concluded that the district court did not abuse its discretion in denying leave to amend when Owens failed to comply with local procedure, failed to follow the court's instructions for refiling, and filed claims that had already been dismissed at screening.

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VODAK v. CHICAGO (March 17, 2011)

In early 2003, a group of people in Chicago opposed to the United States' anticipated invasion of Iraq wanted to express their opposition. They wanted to hold a march at the same time as the invasion, but they did not know when that would happen. A Chicago ordinance requires a permit for a demonstration and typically requires five days notice of the march's date and route. For "good compelling cause," the City will act within two days. When, as here, the two-day requirement cannot be met, the City has an informal practice of waiving the permit requirement. Although non-permitted demonstrations typically use the same standard route, the police and demonstrators never agreed on a route. The invasion took place on March 19. The protesters gathered on March 20. Part of the way along their announced route, thousands of the protesters detoured. They marched toward Michigan Avenue, a major commercial thoroughfare in Chicago. The police blocked access to the street and told the march organizers to return to their starting point or disperse. They threatened to arrest anyone entering Michigan Avenue. The police claim they also shouted these warnings through bullhorns. Most of the marchers either dispersed or began to return to their starting point. Along the way, hundreds of marchers started approaching Michigan Avenue again on a different cross street. There is a dispute in the record regarding the marchers' presence on that street -- there is some evidence that at least some of the marchers thought they were directed there by the police. The police again blocked Michigan Avenue. This time, however, they also sealed off the marchers in the other direction. They started arresting the marchers and any other person who happened to be on that one block stretch of Chicago Avenue. Most of those arrested were released without being charged -- others had their charges dismissed. Two lawsuits were filed against the City and several police officers pursuant to § 1983, alleging violations of the First and Fourth amendments, as well as state law. Judge Kendall (N.D. Ill.) dismissed both suits against the officers on qualified immunity grounds and against the City because no policymaker had been responsible for the officers' conduct. Plaintiffs appeal.

In their opinion, Circuit Judges Posner and Wood and District Judge Adelman reversed and remanded. The Court first noted that the police were well within their rights in blocking Michigan Avenue. A large protest march was getting out of control. They could, and did, order the crowd to disperse or return to their starting point. But, on the undisputed record, they only communicated their orders to the organizers. According to hundreds of affidavit filed in the record, many of the marchers were unaware of any order to disperse or return. The Court emphasized this point because the only reason the police gave for the arrests several blocks away from where they gave the orders is the marchers' defiance of these orders. At the time of the arrest, the police had no good reason to believe that the people they were arresting knew they were violating a valid police order. Of course, the police only needed probable cause to make the arrests. But because there was no permit, no agreed-upon route, and no effective means of communicating an order to the thousands of marchers, a police officer on Chicago Avenue could not have a reasonable belief that the hundreds of marchers there knew of the orders. The Court rejected the District Court's conclusion that the right allegedly violated was not "clearly established" at the time. Decades before the march, the Supreme Court held that, if police revoke permission to march, they must give notice of the revocation before arresting alleged violators. In fact, the Court even stated that this is one situation that is so obvious that precedent is not required. The police cannot give permission to march, then withdraw the permission without telling anyone, and arrest the marchers. With respect to the dismissal of the City, the Court also disagreed with the district court. In order to hold the city liable, plaintiffs must show that the conduct was authorized or directed by a policymaker. But that does not mean only the City Council. Here the City Council defers to the Superintendent of Police as the sole policymaker with respect to demonstrations. In addition to his sole policymaking role, the Superintendent monitored and approved the very police conduct at issue. That satisfies Monell.

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SILIVEN v. INDIANA DEPARTMENT OF CHILD SERVICES (March 16, 2011)

Teresa and Mark Siliven’s two-year-old son had been in daycare with Ashley Woods for almost a year. When Teresa picked him up one day in January 2008, Woods told her that the boy had been acting up. Later that evening, Teresa noticed bruises on her son's arm. Mark said he knew nothing about them, so they filed a child-abuse report with the Richmond, Indiana Police Department. The report was forwarded to the Indiana Department of Child Services(DCS). DCS caseworker Amber Luedike investigated. She interviewed Mark and Teresa, as well as Woods. Luedike also asked the Siliven’s to take their son to the emergency room for an examination. Although the emergency room report reached no conclusion as to the cause of the bruises, another doctor to whom Luedike showed the bruises opined that they were consistent with an adult grabbing the boy's arm. Six days into her investigation, Luedike learned that the DCS had substantiated an incident of child abuse involving Mark and his 15-year-old stepdaughter five years earlier. Luedike met with her supervisor, a staff attorney, and a DCS director. She recommended that DCS remove the boy from his home. She based her recommendation on the likelihood that he had been injured by an adult, the fact that the parents had not been eliminated as the cause, and Mark’s earlier incident. The others agreed, and also agreed that they should remove him on an emergency basis because they would be unable to obtain a court order before the upcoming weekend. Luedike and several sheriff’s deputies went to the Siliven's home, intending to take the boy into protective custody. The DCS director eventually agreed, however, to allow Teresa to take the boy to his grandmother's home in Ohio. The following Monday, a judge concluded that probable cause to believe that the boy’s physical health was seriously endangered did not exist. DCS closed its investigation. The Silivens filed suit against Luedike and the DCS director, alleging federal Constitutional and state law violations. Judge Lawrence (S.D. Ind.) granted summary judgment to the defendants based on qualified immunity. He did not address whether there was a constitutional violation but, under the second prong of the qualified immunity test, held that the constitutional rights allegedly violated were not clearly established at the time of the conduct. The Silivens appeal.

In their opinion, Judges Flaum, Manion, and Evans affirmed. The Court’s two-part test is familiar: whether the complaint alleges a constitutional violation and whether the rights allegedly violated were clearly established at the time of the conduct. Unlike the district court, which ignored the first prong and found the second prong dispositive, the Court started with the first prong and found it dispositive. With respect to the Fourth Amendment unreasonable seizure claim, the Court assumed without deciding that there was a seizure (remember that the boy never left his mother's side) but concluded that the defendants' acts were reasonable under an objective test. There was physical evidence of abuse, Mark had access to the boy, and the DCS had substantiated an earlier abuse claim against Mark. Those facts, particularly combined with the fact that the boy remained with his mother at all times, were enough for the Court to find reasonableness. With respect to the substantive due process claim, the Court noted that the constitutional right to familial integrity has to be balanced against the public interest in child safety. A caseworker need only have reasonable suspicion of past or threatened abuse to take a child into custody. Since that threshold is less demanding than the Fourth Amendment threshold the Court already discussed, the Court had no difficulty in concluding that there was no substantive due process violation. Finally, the Siliven's also alleged a procedural due process violation. Due process does require a pre-deprivation hearing before a child is removed from his home, unless there are exigent circumstances. This also requires an objective test, whether a reasonable caseworker would have believed the child was in immediate danger. Again, that test is less stringent than the Fourth Amendment test. The Court concluded that the defendants met the test.

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JOHNSON v. MANITOWOC COUNTY (March 10, 2011)

Steven Avery was convicted of rape in Wisconsin state court in 1986. After serving 18 years in jail, he was released in 2003 after DNA evidence suggested that he did not commit the crime. He filed a multi-million dollar lawsuit against Manitowoc County authorities. Avery lived in a trailer and garage rented  from Roland Johnson. A few years after his release, a magazine photographer disappeared after meeting with Avery on Johnson's property. An investigation ensued, with Avery a prime suspect. Several search warrants were executed at the trailer and garage. During the searches, the investigators broke up a portion of the concrete garage floor with a jackhammer, damaged the garage door, and damaged the trailer. They also seized a number of personal items. Johnson brought suit against County officials under § 1983, alleging violations of the Fourth, Fifth, and Fourteenth amendments. Judge Randa (E.D. Wis.) granted summary judgment to the defendants. Johnson appeals.

In their opinion, Judges Flaum, Rovner, and Evans affirmed. The Court first considered Johnson's argument that the use of the jackhammers violated the Fourth Amendment. The Fourth Amendment requires reasonableness, and measures it under the totality of the circumstances. The Court rejected Johnson' argument that the availability of a less invasive tool made the use of the jackhammers unreasonable. The Fourth Amendment does not require the least destructive approach to the execution of a search warrant. The Court concluded that the use of the jackhammers was reasonable under the circumstances. The Court turned to Johnson's claim that the Fifth Amendment Takings Clause entitles him to compensation. But the Takings Clause does not apply when the "taking" results from a government power other than the power of eminent domain. Here, any property seized or destroyed by government authorities was done so under its police power. The Court did note that Johnson may have some state remedies, both for compensation for damages and the return of his property – but he does not have a federal constitutional claim.

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AULT v. SPEICHER (March 3, 2011)

In late 2004, the Illinois Department of Children and Family Services received a tip that Dana Ault's boyfriend had physically abused one of her four children. Ault sent her children to live with her mother to prevent them from being placed in foster care. The Department assigned Leslie Speicher as Ault’s caseworker. Speicher developed a plan to which Ault agreed. Under the plan, the children would continue to reside with Ault's mother. In mid-2005, Speicher suggested to Ault's mother that she should attempt to gain legal custody of the children. In fact, Speicher told Ault that she would file for custody in court if Ault did not agree to transfer custody to her mother. Both Ault and her mother believed that Ault could retain custody only as long as they agreed to leave the children with the mother. When Ault refused to sign a subsequent plan, the Department sought an adjudication of wardship. The court denied the petition and Ault's children were allowed to return to her care. Ault filed suit against Speicher pursuant to § 1983, alleging violations of the First, Ninth, and Fourteenth Amendments. Judge Herndon (S.D. Ill.) granted summary judgment to Speicher, concluding that there was no constitutional violation and, alternatively, that Speicher was entitled to qualified immunity. Ault appeals.

In their opinion, Circuit Judges Bauer and Williams and District Judge McCuskey affirmed. The Court addressed only the qualified immunity issue and only the second prong of the familiar test, whether the constitutional right allegedly violated was clearly established at the time. In order to carry its burden, a plaintiff must either present case law well articulating the right and applying it in a similar factual circumstance or show that the conduct’s unconstitutionality was obvious. With respect to the case law, the Court stated that the plaintiff’s cases simply stood for the proposition that parents have certain constitutional rights in family choice issues. They are not at all similar to the factual circumstances here. Even the alleged violations of state law do not establish a violation of a clearly established constitutional right. The Court also concluded that Speicher’s acts were not obviously unconstitutional, given that Ault was still in a relationship with a man accused of child abuse and that she had earlier agreed to the children’s placement with her mother.

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HERNANDEZ v. COOK COUNTY SHERIFF'S OFFICE (February 24, 2011)

Several Cook County Jail inmates escaped in February of 2006. Jail authorities immediately suspected that the escapees had inside help. One guard admitted his involvement. Six additional guards came under suspicion. Internal and criminal investigations were conducted. Several of the guards were suspended with pay. The guards also claimed they were treated harshly during the investigation and discouraged from contacting the union or an attorney. Ultimately, one guard was suspended for five days and two left the department. Administrative charges were dropped against the other three. The six guards brought suit against the Sheriff's office alleging a violation of their First Amendment rights, and included state law intentional infliction of emotional distress and false imprisonment claims. They claimed that the investigation was in retaliation for their safety complaints (the plaintiffs allegedly complained about security and overcrowding problems in the jails) and political views (the head of their unit was running for Sheriff against the incumbent sheriff's Chief of Staff). The defendants moved to dismiss the constitutional claims on qualified immunity grounds and the state law claims on statutory immunity grounds. The court never ruled on that motion. The defendants later moved for summary judgment, but only briefly argued qualified immunity and did not argue statutory immunity in their opening brief. Judge Guzman (N.D. Ill.) a) granted summary judgment on the merits on the retaliation claim based on safety complaints, b) denied summary judgment on the retaliation claim based on political views, c) denied the request for qualified immunity, concluding that defendants had waived it, and d) denied summary judgment with respect to the state law claims. Defendants appeal only the denial of qualified immunity on the constitutional claims.

In their opinion, Judges Cudahy, Flaum, and Wood reversed and remanded. The Court noted that the denial of a motion for summary judgment is ordinarily not appealable. It is, however, when the requested grounds for summary judgment is qualified immunity and when the denial involves only legal issues. Since a finding of waiver is a legal issue, the Court has jurisdiction to entertain the appeal. The Court seemed to have little difficulty in concluding that the district court erred in finding waiver. Although an underdeveloped argument can amount to waiver, it does so only when it provides inadequate notice of the argument. Here, defendants have argued qualified immunity from the beginning of the case. They argued in their motion to dismiss, they argued unambiguously (albeit briefly) in their opening summary judgment brief in a section captioned "Qualified Immunity," and they argued it at length in their reply brief. Arguments raised for the first time in reply briefs are generally considered waived, but arguments more fully developed in reply briefs do not necessarily suffer the same fate. The plain fact is that plaintiffs were on notice of the argument and defendants treatment of it did not constitute a waiver. Finding no waiver, the Court addressed the merits of the argument. The familiar test has two prongs -- whether the defendants violated a constitutional right and, if so, whether that right was clearly established at the time. When the constitutional violation concerns a public employee's First Amendment rights, a court first must determine whether the speech involves a matter of public concern. If it does, the court applies a balancing test. If it does not, the employee is not entitled to constitutional protection. Based on the district court's findings on the safety complaint retaliation claims, the Court was able to determine as a matter of law that the speech did not involve a matter of public concern. The plaintiffs were acting in response to their duties as employees and are not entitled to constitutional protection. Therefore, there was no constitutional violation, and the defendants are entitled to qualified immunity. With respect to the political retaliation claim, however, the Court was unable to reach such a conclusion. The district court failed to identify the disputed and undisputed facts, nor did it make any findings regarding materiality. The Court remanded for that purpose.

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POLZIN v. GAGE (February 18, 2011)

Gerald Polzin pleaded guilty in 2005 to sexual abuse of two teenage boys. In connection with his presentence investigation, Polzin claimed he was himself a victim of sexual abuse as a boy at the hands of his uncle, an Appleton, Wisconsin police officer. The prosecutor asked the Wisconsin Department of Justice to investigate. The Appleton Police Department declined to conduct its own investigation. Although the prosecutor expressed doubts about the allegations, the trial judge considered it a mitigating factor in Polzin's sentence. Polzin a) filed a state civil suit against Appleton and several police officers which was resolved against him and affirmed on appeal, b) took an appeal from his sentence which was also affirmed on appeal, c) brought a state motion for postconviction relief, and d) brought a § 1983 suit against the prosecutor, the trial judge, the court reporter and the state investigators. In the § 1983 case, he alleged the falsification of evidence and the fabrication of the sentencing transcript. His motion for postconviction relief was pending when he filed his § 1983 claim. He asked the district court to stay the case because of the Supreme Court’s holding in Heck that a § 1983 challenge to a conviction cannot be made unless the conviction has been invalidated. Judge Griesbach (E.D. Wis.) denied the request for a stay, concluding that Polzin was not faced with a statute of limitations problem like Wallace. His claims were akin to malicious prosecution, which do not accrue until the prosecution terminates in his favor. The court therefore dismissed the complaint as barred by Heck. On a motion for reconsideration, however, the court added that Polzin also failed to state a claim on the merits. Specifically, the court ruled that the claims against the court reporter and trial court judge were frivolous in that neither had a role in the investigation and that his claims regarding the investigation did not amount to a constitutional violation. Polzin appeals.

In their opinion, Judges Coffey, Flaum, and Ripple affirmed in part and vacated and remanded in part. The Court held (for the first time) that a district court can ignore the Heck doctrine and proceed to the merits since Heck is not jurisdictional. On the merits, the Court concluded that a) the judge had absolute immunity with respect to the claims of falsifying the transcript, b) the court reporter is not liable because the transcript attached to the complaint showed that Polzin's allegations about the transcript were actually wrong, and c) the prosecutor is entitled to absolute immunity either as a prosecutor or as a witness at the sentencing hearing. Finally, the Court did point out that the district court did not specifically address Polzin's claims against the prosecutor and state investigators in their investigatory role. It remanded for further explanation or consideration of that claim.

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MUCHA v. VILLAGE OF OAK BROOK (February 14, 2011)

Randy Mucha was an Oak Brook, Illinois police officer. He began an internal investigation into potential police officer misconduct in 2004. He discovered that officers were frequently parked near the residence of Frances Gaik, a local woman who had organized a group that was critical of the Oak Brook Police Department. After he became suspicious that she had an internal Department phone list, he began investigating her. He infiltrated her group under a false identity and ran a criminal background check on her through the Law Enforcement Agencies Data System. Gaik discovered the background check only after she subpoenaed the Illinois State Police more than a year later. Police Chief Thomas Sheahan obtained a warrant and arrested Mucha, charging him with unlawfully requesting a background check. After the charges were dismissed, Mucha filed a § 1983 false arrest claim against the Village. Judge Hart (N.D. Ill.) granted summary judgment to the Village. Mucha appeals.

In their opinion, Judges Bauer, Wood, and Sykes affirmed. In order for Mucha to prevail, the Court noted he had the burden to prove that he was arrested without probable cause. Probable cause exists if the facts and circumstances known at the time support a belief by a prudent person that a crime has been committed. Here, Sheahan knew at the time of the arrest that Mucha did not approve of Gaik’s group and that he spied on her and the group, infiltrated their meetings, ran Internet searches, and did in fact run a criminal background check when Gaik was not the subject of any legitimate investigation. Given that knowledge, in the absence of any knowledge supporting a conclusion that the background check was legitimate, the Court concluded that probable cause existed. The existence of probable cause is also not affected by any improper motive on the part of Sheahan.

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SOW v. FORTVILLE POLICE DEPARTMENT (February 11, 2011)

Mouhamadou Sow, a Senegal native, traveled all over the United States selling African items at fairs and festivals. In November 2007, Sow tried to cash a $1000 money order at the Fortville, Indiana Post Office. He had purchased the money order at a United States Post Office in Columbus, Ohio. The postal clerk suspected that the money order was counterfeit and told Sow as much. After conferring with her supervisor, she told Sow that she did not have enough money to cash the money order and directed him to the nearby McCordsville Post Office. Once Sow left, a postal employee reported the suspected forgery incident to the Fortville police. The Fortville police notified the McCordsville police, who stopped Sow before he reached the post office. Fortville Officer Michael Fuller arrived at the scene. The police interrogated Sow for over an hour. Sow produced the money order but was unable to produce a receipt. He did produce other receipts and money orders. Both officers examined the money order and also believed that it was counterfeit. They called post office headquarters and a local postal inspector and described the money order and its serial numbers. Both postal employees told the officers that the money order was counterfeit. The officers did not call the Columbus Post Office where Sow told them he purchased the money order, even though they had its phone number. The police arrested Smith. The charges were ultimately dismissed. Smith brought suit under §§ 1983, 1985, and 1986 against the Fortville postal employees, the two police departments, and Officer Fuller. He alleged that he was unlawfully arrested, that he was physically mistreated, and that his handcuffs were too tight. Judge Young (S.D. Ind.) dismissed the postal employees and granted summary judgment to the police departments and Fuller. Sow appeals.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court first affirmed the dismissal of the two police departments. Section 1983 liability for local governments depends on state law. Indiana law does not allow municipal police departments to sue or be sued. Next, the Court rejected Sow's argument that the statements made to Fuller by the postal employees were inadmissible hearsay. Since the statements were offered not for their truth but because they constituted part of the facts and circumstances known to Fuller when he decided to arrest Sow, they were properly admitted. Third, the Court addressed Sow's unlawful arrest claim. That claim rests on the existence of probable cause. Here, although Fuller did not call the post office where Sow claimed to have purchased the money order, he received information from several third parties that supported the conclusion that the money order was a forgery. He had no reason to believe that the information he received was anything but truthful. Based on that information, the Court concluded that a reasonable person would believe that a crime had been committed -- probable cause therefore existed. Finally, the Court affirmed with respect to the racial profiling, excessive force, and conspiracy allegations.

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MILLER v. DOBIER (February 11, 2011)

Dale Miller is confined pursuant to the Sexually Violent Persons Commitment Act. While confined, he was disciplined on two separate occasions in 2007 and 2008. In 2007, he was accused of threatening a deputy sheriff. A disciplinary committee found him guilty of those charges and reduced his status within the institution. As a result, he lost certain privileges; including longer visitation, later access to the day room, and access to electronic equipment. In 2008, he was accused of damaging furniture, breaking a window, and threatening staff. Again, a disciplinary committee upheld the charges in a hearing. Miller was placed in "close" status for a month. His punishment again included lost privileges. He had an earlier curfew, no yard privileges, shorter visits, no access to special events, and no use of the library or exercise room. Miller brought suit against institution officials pursuant to § 1983 claiming a denial of procedural due process. Judge Baker (C.D. Ill.) granted summary judgment to the defendants. Miller appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court never addressed Miller’s evidence of procedural deficiencies. Instead, it concluded that the due process clause was not even implicated. There is no constitutional due process requirement unless there is a deprivation of liberty or property. When a lawfully committed person is subjected to discipline, the due process clause is not implicated unless the institution substantially worsens the conditions of his confinement. Here, even while Miller was in "close" status, he had much freedom. The reduction in his status does not amount to a deprivation of a liberty interest.

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HURST v. HANTKE (February 10, 2011)

Joseph Hurst suffered a stroke while incarcerated in an Illinois prison. More than eight months later, he filed a grievance complaining of his treatment by the prison’s medical staff. The prison denied the grievance on the grounds that it was not filed within 60 days, as required by law. Hurst appealed the denial, contending that the stroke left him almost totally incapacitated "until just recently." The prison rejected his appeal on the ground that Hurst provided no justification. Hurst brought suit pursuant to § 1983 alleging deliberate indifference on the part of the prison’s medical staff. Judge Kapala (N.D. Ill.) granted summary judgment for the defendants on the ground that Hurst had failed to exhaust his internal prison remedies. Hurst appeals.

In their opinion, Judges Posner, Evans, and Hamilton affirmed. The Court concluded that the prison was wrong in denying Hurst's appeal. The law does not require an inmate to submit evidence in support of a claim of good cause any more than a plaintiff is required to submit evidence with a complaint. The prison could have insisted on additional substantiation, in which case Hurst would have had to supply it. Notwithstanding the error at the internal prison level, the Court nevertheless affirmed. Because when he sued, and when the defendants moved for summary judgment, Hurst was required to present evidence that he exhausted his administrative remedies -- that is, that he had filed a grievance as soon as he was reasonably able. He had an opportunity -- and an obligation -- at that stage to substantiate his good cause claim. Because he did not, summary judgment for defendants was appropriate.

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ROE v. ELYEA (January 28, 2011)

Hepatitis C is a disease that affects the liver. It is caused by the HCV virus and is transmitted through blood to blood contact. Many hepatitis C sufferers are asymptomatic while others develop cirrhosis or liver cancer. These conditions sometimes develop two or three decades after the initial infection. The virus is relatively common in the United States prison population. Edward Roe, Anthony Stasiak, Timothy Stephen, and Jonathan Walker are current or former Illinois prison inmates who suffer from the disease (Roe actually died in 2007). The plaintiffs brought suit against Dr. Willard Elyea, the former medical director of the Illinois Department of Corrections. They allege that the Department’s diagnosis and treatment protocols violated the Constitution. Their principal contention is that Elyea instituted a policy applicable to all inmates suffering from hepatitis C that deprived them of treatment unless they had a certain amount of time remaining on their sentences. The plaintiffs' damage claims were tried to a jury, which awarded to each plaintiff $20,000 in compensatory damages and $2 million in punitive damages. Judge Baker (C.D. Ill.) rejected Elyea’s qualified immunity claim but vacated the judgments in favor of Messrs. Stephen, Stasiak, and Walker on the ground that insufficient evidence supported the verdicts. He upheld the verdict and compensatory damages in favor of Roe but ordered a conditional remittitur, giving Roe the choice of $20,000 in punitive damages or a new punitive damages trial. When Roe made no choice, the court entered an order reducing the punitive damages to $20,000. Stephen, Stasiak, and Walker appeal the court's entry of judgment against them, Roe's estate appeals the remittitur, and Elyea appeals the qualified immunity ruling and the denial of judgment as a matter of law with respect to Roe, and also challenges the Court's jurisdiction to hear the appeal.

In their opinion, Seventh Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court first addressed two jurisdictional issues. It rejected Elyea's argument that plaintiffs’ notice of appeal was ineffective because it was filed after the entry of the conditional remittitur order but before entry of the final judgment. The Court held that Federal Rule of Appellate Procedure 4(a)(2) applied to the remittitur order and the premature notice became effective when the final judgment was entered. The Court agreed with Elyea, however, that the remittitur order was not reviewable (a point Roe ultimately conceded). A party cannot appeal a judgment to which it has consented. The Court turned to qualified immunity and the merits. With respect to qualified immunity, the Court concluded that the district court properly denied qualified immunity. It was "clearly established" that an inmate had a right to adequate medical care that addressed his particularized need. The evidence in the record allowed a factfinder to conclude that Elyea's policy precluded certain treatment without regard to the inmate's particularized need. On the merits, the Court noted that the plaintiff's burden on an Eighth Amendment deliberate indifference claim is high. He must establish both an objectively serious medical need and that a prison official disregarded a known risk. Applying that test to each of the plaintiffs, the court concluded: a) Roe established the serious medical need and a denial of treatment without regard to his particular medical needs, and the record contained sufficient support for the jury's conclusion on causation, b) Walker failed to demonstrate Elyea's responsibility for his lack of treatment, c) Stasiak demonstrated a serious medical need but failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury, and d) Stephen demonstrated a serious medical need but also failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury.

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LAWSON v. VERUCHI (January 28, 2011)

A June, 2007 confrontation inside a Target store in Rockford, Illinois spilled out into the parking lot and down the street where Kimberly Colvin was assaulted by an unknown man. She reported the matter the next day to Rockford police She described the man and provided the license plate number of the car he was driving. A follow-up investigation on the plate led Detective Veruchi to Jeffrey W. Lawson ("JW"). JW's mother told Smith that she would have JW call him. Veruchi also received a call from a courtroom bailiff, who knew JW and knew that he had had an altercation in the Target. Veruchi even received a call from JW who originally agreed to come to the station but later reconsidered and referred Veruchi to his lawyer. In the meantime, Veruchi arranged a photo array with the victim and another witness. Veruchi obtained what he thought was JW's photograph from the county jail system. What he got, however, was a picture of Jeffery A. Lawson ("JA"). What happened at the photo array is disputed. Veruchi claims that the victim and witness both identified JA's picture as the attacker. Both the victim and witness denied that they positively identified JA as the attacker. Nevertheless, Veruchi relied on his version of the facts in an affidavit for a warrant. JA was arrested on the warrant and held in custody for 34 days before his release. JA brought suit against Veruchi and the City of Rockford under § 1983, alleging that his arrest was without probable cause and that municipal liability attached because Rockford had no policy to prevent his arrest. Judge Kapala (N.D. Ill.) granted summary judgment to Veruchi and the City. JA appeals.

In their opinion, Judges Posner, Manion, and Hamilton reversed and remanded. In order to prevail on a claim of unconstitutional arrest, a plaintiff must establish the absence of probable cause. In most cases, the issuance of a warrant will shield an officer from liability even if the arrest is later determined to be without probable cause. But if the warrant is issued on an affidavit that contains statements that the affiant knows are false or made with reckless disregard for the truth, the warrant does not shield the officer. Here, JA presented sufficient evidence of just that situation. The district judge erred when he discounted the victim's testimony (that is a question for the jury) and found the plaintiffs theory incredible (it is not). Considering the evidence in the light most favorable to JA, a jury could find that Veruchi intentionally provided false information in order to obtain the warrant and that probable cause to arrest JA did not exist. Since the district court's ruling in favor of the City was based on its dismissal of the underlying claim against Veruchi, the Court also reversed that decision and remanded for further consideration.

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ATKINS v. CITY OF CHICAGO (January 25, 2011)

In late 2003, Chicago police officers arrested William O. Atkins because they had a parole violation warrant for "William Atkins." Atkins was kept in custody overnight and then transferred to the custody of the Illinois Department of Corrections and held for 36 days. Atkins alternately claimed that he was not the warrant's William Atkins and that he was that William Atkins but that he could not violate his parole because it had expired. After his release, Atkins sued the arresting officers, the City of Chicago, and several employees of the Department of Corrections. The complaint alleged an unlawful arrest as against the City defendants and an unlawful detention as against the state defendants. Judge Shadur (N.D. Ill.) dismissed the suit for failure to state a claim. Atkins appeals.

In their opinion, Judges Posner, Manion, and Hamilton (concurring in part and concurring in judgment) affirmed. The Court began with the arrest and whether the officers had probable cause. Although the police lacked probable cause to stop the vehicle in which Atkins was a passenger, they nevertheless had an affidavit with his name on it. If he was the person named in the warrant, the absence of probable cause to stop the car does not vitiate the probable cause to arrest him. The affidavit matched Atkins’ first name, last name, gender, race, day of birth, month of birth, and the first three digits of his Social Security numbers. It did not match Atkins’ height, weight, or year of birth. Given the closeness of the match, the Court concluded that the officers did not err in arresting Atkins or, if they did, it was a reasonable error and did not violate Atkins's constitutional rights. Atkins' stronger complaint is that the state defendants held him unlawfully for 36 days, despite his protests. The Court stated that alleged parole violators must be afforded a preliminary hearing "as promptly as convenient" to determine probable cause and a full hearing within a "reasonable time." The hearings can be administrative. Atkins had an administrative hearing on the seventh day of his incarceration but failed to convince the hearing officer that he was either not the same William Atkins or that his parole has expired. It was on the 36th day that Atkins had his full hearing and was released. The Court noted a possible distinction between the due process rights of an alleged parole violator who admits the parole but denies the violation and an alleged parole violator who denies that he is even on parole. The former has already agreed to administrative adjudication of parole as one of the terms of his parole. The latter has not. But that would give every alleged parole violator an opportunity for two hearings. Particularly given the Court's belief that a judicial hearing is not necessarily superior to an administrative hearing, the Court doubted that the difference would lead to a constitutional distinction. It never resolved the issue, however, because its belief that the question was novel inescapably led to the conclusion that the defendants were entitled to qualified immunity. Finally, the Court addressed Atkins' claim that he was mistreated during the 36 days of confinement. The Court ultimately concluded that the claims were properly dismissed. Notwithstanding the fact that Atkins was represented by counsel and had already amended his complaint three times, the Court noted that some allegations were highly implausible while others were contradicted or internally inconsistent. Atkins never stated a plausible claim for a constitutional violation. In addition, Atkins has died and his the estate has no way of even presenting his version of the facts.

Judge Hamilton joined the majority opinion with respect to the claims against the City defendants, the conditions of confinement claims, and the qualified immunity holding He wrote separately, however, to address the merits of the alleged due process violation. Generally, a person arrested without a warrant is entitled to a judicial hearing within 48 hours. An alleged parole violator is entitled to much less protection -- but only because he is already on parole and has a more limited liberty interest. Here Atkins claimed that he was not the parolee named in the warrant. Judge Hamilton therefore concluded that due process imposes procedural protections on identification challenges to parole violation warrants. He addressed the issue under the Matthews framework, considering: the private interest, the risk of erroneous deprivation, and the government interest. The private interest is basic liberty, the risk of error is likely significant, and the government interest is closely aligned with the private interest. Weighing those factors, Judge Hamilton concluded that a claim of misidentification should be resolved by a prompt appearance before a judge.

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HOSKINS v. DART (January 20, 2011)

Joshua Hoskins had a number of complaints about the way he was treated in an Illinois prison. They included the use of excessive force, the denial of medication, and the inadequate processing of grievances. He brought five separate complaints under § 1983 against the Cook County  Sheriff and prison officials. He used a court-issued form for each of his complaints. The form contained a section which required him to list any prior lawsuits that he had filed. Hoskins listed none although he had filed three earlier civil rights lawsuits and, indeed, was still litigating them. The form contained several notices that severe sanctions, including dismissal, could result from a failure to fill out the forms correctly. During screening, the district court discovered the omission. Judge Manning (N.D. Ill.) concluded that the omissions were fraudulent and dismissed the complaints with prejudice. Hoskins appeals.

In their opinion, Judges Bauer, Tinder, and Hamilton affirmed. First, the Court found no clear error in the district court's finding of fraud. Although Hoskins claimed that the error was innocent in that it was based on another inmate's instructions, the court was well within its rights to reject that explanation. Second, the Court found no abuse of discretion in the district court's choice of sanction. Courts generally have significant discretion in imposing sanctions on those who violate its rules. Here, the district court considered lesser sanctions but chose dismissal because of the inadequacy of monetary sanctions in a pauper proceeding, the importance of the information requested in administering the three strike rule, and the multiple warnings on the form itself of the consequences of dishonesty. 

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SMITH v. PETERS (January 19, 2011)

Anthony Smith was incarcerated in Indiana state prison. He brought suit against prison employees, alleging violations of the First and Eighth amendments. According to the allegations of his complaint, he was a) forced to work outside in freezing conditions without protective equipment (including gloves), b) forced to work in a group with axes and shovels without receiving safety instruction, and c) retaliated against for filing grievances complaining about the work conditions. Chief Judge Young (S.D. Ind.) dismissed the complaint, concluding that a) the outdoor work was merely "the usual discomforts of winter" and b) Smith's fear of dangerous working conditions was not actionable in the absence of a physical injury. He did not address the First Amendment claim. Smith appeals.

In their opinion, Seventh Circuit Judges Posner, Wood, and Williams reversed and remanded. On the protective clothing claim, the Court stated that the allegations of forcing Smith to work in freezing conditions without gloves is sufficient to state an Eighth Amendment Claim. On the dangerous conditions claim, the Court agreed that Smith was not entitled to injunctive relief (because he had been transferred to another prison) or compensatory damages (because of 42 U.S.C. § 1997e(e)’s a physical injury requirement). However, the complaint's allegation of a reckless exposure to serious physical injury does state an Eighth Amendment claim and the Court concluded that Smith is entitled to seek remedies not precluded by § 1997e (including nominal and punitive damages). Finally, the Court noted that the complaint stated a claim for a First Amendment violation and the district court erred by not addressing it.

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JONES v. CLARK (January 14, 2011)

Early one August morning, Christina Jones had begun her job reading meters for Commonwealth Edison. Jones is African-American. On this particular day, her job took her to Braidwood, Illinois. Braidwood, a small town about 50 miles southwest of Chicago, has an almost exclusively white population. Apparently, a "concerned citizen" thought that she was something other than a meter reader and called the police. [According to her complaint:] Officer Clark was the first to arrive and question her. Although she wore numerous articles of clothing with her employer's logo and provided two separate pieces of identification, Clark would not let her go. When he asked for her date of birth, she stepped away and started to call her supervisor on her cell phone. At that point, Officer Kaminski arrived. He screamed at her, knocked the phone out of her hand, cuffed her hands behind her back, threw her against the car, and arrested her. She was charged with obstructing a peace officer and released on bond. The charges were later terminated in her favor. Jones brought suit, alleging Fourth Amendment violations. Judge Andersen (N.D. Ill.) concluded that disputed issues of fact precluded resolution either of the merits or defendants' request for qualified immunity. Defendants appeal.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first addressed its appellate jurisdiction. Although the "collateral orders" exception to the finality rule does apply to the appeal of qualified immunity denials, it does so only in so far as the appeal raises an issue of law. Even in a case, like this, where there are disputed issues of fact, defendants can (and these defendants have) get their appeal if they limit it to plaintiffs version of the facts. Comfortable with its jurisdiction, the Court turned to the merits. Qualified immunity has two prongs: was there a constitutional deprivation and were the constitutional rights at issue clearly established. With respect to the second prong, the constitutional right at issue here -- the right to be free from an arrest without probable cause -- was certainly clearly established. Therefore, the only question for the Court on the merits is whether Clark and Kaminski violated Jones' rights. The Court appeared to have little difficulty in answering that question affirmatively (again, on Jones' version of the facts). The Court noted that there was nothing in the record that would provide reasonable suspicion that she was engaged in unlawful activity. Their initial detention of her was therefore a constitutional deprivation. In addition, her actual arrest was a constitutional violation. Since the officers had no reason to detain her in the first place, anything supporting probable cause to arrest her must have occurred after her detention. Her post-detention conduct does not support probable cause either for disorderly conduct or for obstructing a peace officer. With respect to the former, she acted professionally at all times. With respect to the latter, the offense requires a physical act rather than just an argument with a policeman. The officers are therefore not entitled to qualified immunity on this record.

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HEYDE v. PITTENGER (January 11, 2011)

Raymond Heyde owns residential property in Tazewell County, Illinois, just south of Peoria. In late 2003, Heyde received his 2004 tax assessment notice. He filed a complaint with the County Board of Review, asserting that the $207,000 assessment was too high (the proper assessment level is 33 1/3% of the property's fair cash value). The Board reduced the assessment to $140,000. He complained again after he received his 2005 notice, which increased the assessment to $149,000. The Board declined to reduce their assessment. The assessment went up again in 2006, to $153,000. Again, he complained and submitted a then-recent $435,000 property appraisal (which would result in a $145,000 assessment). The Board not only did not reduce the assessment, but increased it to $436,000 in a June 1, 2006 decision. Heyde continued to complain about his assessment each year -- the Board refused to budge. Heyde appealed the June 1 decision to the Illinois Property Tax Appeal Board. Although the Appeal Board reduced the assessment, Heyde was still dissatisfied and has sought administrative review in state court. He also has additional appeals before the Appeal Board for subsequent years. In 2007, Heyde filed a § 1983 action against the members of the Board and the County Assessors. He alleged that the defendants deprived him of equal protection rights, conspired to deprive him of his equal protection rights and retaliated against him for exercising his lawful challenge rights. Judge Mihm (C.D. Ill.) concluded that the members of the Board had absolute immunity and dismissed the complaint as to them. He dismissed without prejudice as to the Assessors based on principles of comity on the grounds that Heyde had not exhausted state remedies. Heyde appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. Addressing first case against the Board members, the Court noted that absolute immunity does apply to a quasi-judicial adjudicatory body when it acts in a capacity functionally equivalent to that of a judge or prosecutor. It does not, however, apply to administrative or ministerial acts. Relying on the Board’s statutory authority and the Court’s own precedent, the Court concluded that Board members were entitled to absolute immunity. They fit neatly within the factors identified by the Supreme Court in Butz. The Court turned to the claims against the Assessors. In McNary, the Supreme Court held that challenges to state tax systems must occur within the state’s courts, with final review in the Supreme Court. A § 1983 action is therefore not the proper vehicle. The Court rejected Heyde's argument that the Illinois system failed to meet the "plain, speedy and efficient" exception to the McNary rule. The Court recognized the delays inherent in the Illinois system but concluded (not for the first time) that they were not enough to avoid McNary.

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RAY v. CITY OF CHICAGO (January 5, 2011)

A Chicago Police officer pulled over Nona Ray for driving an night without headlights. He arrested her when he found cocaine in her car. She was charged with possession of a controlled substance and was detained for several hours. The officer also impounded her vehicle. The drug charges against her were eventually dropped. She contested the seizure of her automobile but a hearing officer found in favor of the City. Ray brought suit against the City and the officer, claiming a deprivation of her Fourth and Fourteenth Amendment rights. She also sought review of the hearing officer's finding and challenged the constitutionality of the seizure ordinance. Judge Zagel (N.D. Ill) dismissed the complaint. Ray appeals.

In their opinion, Seventh Circuit Judges Cudahy, Rovner, and Evans affirmed. First, the Court rejected Ray's claim that the officer lacked probable cause to believe that she possessed drugs. The officer had probable cause to believe she committed a traffic offense -- that is all he needed for the arrest. Second, the Court rejected Ray's claim that the length of her detention violated the Constitution. The Court noted that it has held that detentions of up to 14 hours were reasonable absent an improper purpose, which is not alleged here. Third, the Court rejected her malicious prosecution-type claim that the officer planted the drugs. Because Illinois recognizes a malicious prosecution tort, she cannot bring a constitutional claim. Fourth, to the extent she alleged a Brady claim and did not waive it, the Court rejected it. A Brady claim is not viable in a situation where a person is never prosecuted. Finally, the Court rejected her claim regarding the impoundment of her automobile. Not only did she fail to adequately state any reason to reverse the district court, the Court's independent review of the district court's rationale convinced it that it was correct.

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LABELLA WINNETKA, INC. v. THE VILLAGE OF WINNETKA (December 29, 2010)

LaBella Winnetka operated as a restaurant in Winnetka, Illinois since 1993. It occupies a leased space and renews the lease from time to time. It also has a liquor license. Each year, Winnetka sends it a renewal form. Each year LaBella completes the form and Winnetka renews the license. A fire at the building in early 2007 damaged the roof over the LaBella dining room and forced its closure. The Village refused to allow repairs to the restaurant’s interior until the roof was fixed. It also refused to allow LaBella to reopen the undamaged portion of its leased premises. At the same time, other restaurants, even one operating out of the same building, were allowed to reopen in allegedly similar circumstances. LaBella's most recent liquor license was due to expire in March of 2008. Winnetka never sent a renewal form and terminated the license went LaBella did not file for renewal. LaBella brought suit against the Village and the Village Manager, alleging a violation of its equal protection, substantive due process, and procedural due process rights. The complaint alleged that the benefits bestowed on the other restaurants came about because of their friendships with the Village Manager. Judge Kendall (N.D. Ill.) granted defendants' motion to dismiss. LaBella appeals.

In their opinion, Seventh Circuit Judges Posner, Flaum, and Sykes affirmed. The Court first considered the "class of one" equal protection claim. In order to state such a claim, one must allege treatment different from others "similarly situated." LaBella concedes that the restaurants that were allowed to reopen did not incur the same major fire damage as the LaBella roof. They are therefore not "similarly situated" and the equal protection claim fails. The Court next considered and rejected LaBella's substantive due process claim relating to its property interest in its lease and business. In order to prevail on that claim, LaBella had to show an independent constitutional violation or the inadequacy of state law remedies. It did neither. Finally, the Court rejected LaBella's procedural due process claims related to the liquor license non-renewal. First, to the extent the claim is based on the Village's simple failure to send a renewal form, there was no constitutional deprivation. Second, to the extent the claim is that the Village revoked the license without notice or hearing, the allegations of the complaint fall far short of even the notice pleading requirements of the federal rules. Finally, the claim fails because LaBella does not even allege that it took advantage of post-deprivation remedies or that they were inadequate.

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SALLENGER v. CITY OF SPRINGFIELD (December 17, 2010)

In early 2002, Andrew Sallenger was living with his mother, his sister, and his sister's four children at his mother's house in Springfield, Illinois. Sallenger suffered from bipolar disorder and schizophrenia. In the middle of the night on April 30, Sallenger experienced a psychotic episode. He was screaming, breaking things, and running around the house naked. His sister called 911. She warned the police of his condition and his strength (6 feet tall, 262 pounds). Three officers responded and eventually, although not without great difficulty, were able to subdue him. They used a hobble, a device that limits movement by strapping one's lower legs to one's hands. A few minutes after the officers subdued Sallenger with a hobble, he stopped breathing. The officers removed the hobble and administered CPR, without success. Sallenger’s Estate brought several claims against the officers and the City, including a § 1983 claim alleging a Fourth Amendment violation for failing to adequately respond to Sallenger’s medical needs and a Monell claim against the City for failure to train in the use of the hobble. They also brought excessive force claims against the three officers. Those claims were tried to a jury and resolved in the officers' favor. Judge Scott (C.D. Ill.) granted summary judgment against the Estate on the medical needs and Monell claims. The Estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Sykes affirmed. The Court applied an objective reasonableness standard to the medical needs claim and considered four criteria: the need for medical attention, the severity of the need, the nature of the required treatment, and any police interests. The Estate's case rests on the timing of two police calls and the inferences that can be drawn from them. One call came in at 2:15 a.m. In that call, one of the officers reported that Sallenger was unconscious. The second call, which came in at 2:22 a.m., was from a police lieutenant reporting that he was at the scene. Combined with the fact that the lieutenant was present when efforts to resuscitate began, the Estate argues that it is entitled to an inference that the officers waited seven minutes after knowing Sallenger was unconscious before they tried to resuscitate him. The Court rejected this inference. All inferences must be drawn in the Estate’s favor on summary judgment, but those inferences must be reasonable. Here, the officers and Sallenger's sister all testified that resuscitation efforts began as soon as they knew that he was unconscious. The lieutenant also testified that his call did not necessarily take place immediately upon his arrival. In light of that testimony, and without more support, the inference requested by the Estate is unreasonable. The Court also agreed with the district court's summary judgment ruling on the Monell claim. A municipality cannot be liable unless there is an underlying constitutional violation by an employee. Here, a jury found that none of the officers was liable for a constitutional violation on the excessive force claim and the Court affirmed summary judgment for the officers on the medical needs claim. Therefore, there can be no municipal liability. 

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JACKSON v. PARKER (December 3, 2010)

On a spring afternoon in 2006, Wayne Jackson was southbound on Chicago’s Lake Shore Drive ("Urban America's Most Beautiful Roadway") in his pickup truck. Unfortunately, his truck was licensed as a commercial vehicle and therefore prohibited on the Drive. Chicago police officer Joe Parker noticed the plates and also observed Jackson making two illegal lane changes. Parker stopped Jackson's car and then observed a windshield crack, another ordinance violation. He also administered field sobriety tests and a breathalyzer, which he claims Jackson failed. Jackson was released after approximately 12 hours at the police station. Although his arrest report lists DUI, the prosecutor later amended the charge to negligent driving. At trial, Jackson was found guilty of improper lane usage and failing to notify the state of an address change and was found not guilty of negligent driving and driving an unsafe vehicle charges. Jackson brought a § 1983 charge against Parker, claiming a Fourth Amendment false arrest violation. Jackson claimed that Parker falsified the DUI test results. He also presented evidence that Parker regularly reported such false information as part of a scheme to increase his compensation and that he was being internally investigated for his conduct. Judge Conlon (N.D. Ill.) granted summary judgment to Parker, concluding that the unlawful lane change provided sufficient probable cause for the arrest. In the face of that probable cause, Jackson could not prevail whether or not there was probable cause for a DUI arrest. Jackson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. The Court agreed with the district court and noted that Jackson implicitly agreed as well. Parker had reason to believe that Jackson was violating the law by even being on the roadway in a commercial vehicle. Even though he was never charged with that offense, and even if he had an illicit motivation, the arrest is reasonable. Apparently recognizing that his false arrest claim was not going to survive the appeal, Jackson's counsel reconstituted his argument as a unreasonable detention rather than a false arrest. Unfortunately for Jackson, arguments that are not presented to the district court are normally forfeited on appeal unless the interests of justice require otherwise. The Court concluded that this was not such a case.

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CYRUS v. TOWN OF MUKWONAGO (November 10, 2010)

Twenty-nine-year-old Nicholas Cyrus lived with his parents in Mukwonago, Wisconsin. Cyrus suffered from bipolar disorder and had occasional delusional episodes. He was known by the local police in his small community for his unusual behavior but was not considered dangerous. On the evening of July 8, 2006, Cyrus left his parents' home wearing only his bathrobe following a dispute with his mother . He remained missing until early the next morning when a town resident reported to the police that an unknown man wearing only a bathrobe was trespassing on his property. Lt. Czarnecki responded to the call. Czarnecki suspected that the "unknown man" was Cyrus. He knew Cyrus and knew that he had been reported missing the night before. There are slight factual disputes regarding what happened next but, generally, Czarnecki unsuccessfully tried to get Cyrus' attention and cooperation. After Cyrus refused a request to talk and moved toward the house, Czarnecki used his Taser on him. Cyrus fell to the ground. He tried to get up but wobbled and fell. Czarnecki used his Taser again and Cyrus rolled down the driveway. By this time, a second officer had arrived at the scene. The two officers tried to handcuff Cyrus but he was lying on his hands. When the officers could not pry his hands loose, Czarnecki used his Taser several more times. The officers finally got him handcuffed but, when they rolled him over, they discovered he was not breathing. Cyrus died later that day. His parents brought a § 1983 Fourth Amendment excessive force claim against the officers and the municipality. The plaintiffs offered two experts -- one to testify regarding reasonable force and one (the Medical Examiner, who reformed the autopsy) on the cause of death. The Medical Examiner testified at her deposition that many factors contributed to Cyrus' death, including the stress of the struggle, his fear, his mental condition, his physical position, the pain, and the shock. She testified that she could not state that any particular factor was more significant than another. Judge Randa (E.D. Wis.) excluded the testimony of both experts relating to the cause of death, principally because the Medical Examiner could not isolate a primary cause of Cyrus' death. The court then granted summary judgment to the defendants, finding that there were no material disputes of fact and that the Taser use was not excessive force as a matter of law. Plaintiffs appeal.

In their opinion, Circuit Judges Bauer and Sykes and District Judge Simon reversed and remanded. The Court recognized that most of the material facts were undisputed (principally because the victim was dead). However, it rejected the district court's conclusion for two reasons. First, the Court identified several material facts that were in dispute. Czarnecki testified that he used his Taser only five or six times but the Taser's internal register recorded 12 trigger pulls. The parties also disagreed about whether Cyrus walked or ran toward the house. Second, excessive force claims require an analysis of all the circumstances surrounding the use of force. Facts that may not technically be in dispute may be susceptible of different interpretations, making summary judgment appropriate. For example, there were potentially different inferences that a jury could draw from the fact that Cyrus rolled down the driveway. Was it an attempt to escape or merely an involuntary reaction to the shock? Other factors the jury could consider also tended to support the unreasonableness of the force: Cyrus had not committed a serious offense, he did not violently resist the officers, he was not armed, and he suffered from a mental illness. Since a jury could reasonably conclude that Czarnecki's multiple Taser uses constituted unreasonable force, summary judgment was inappropriate. The Court also rejected defendants' alternative position that plaintiffs could not prove causation without the excluded expert testimony. The Court conceded that proof of causation will be more difficult without the Medical Examiner's testimony. However, it found that the record was not totally devoid of evidence upon which a jury could conclude that the force caused Cyrus's death. Expert testimony is not necessary if the facts relied on are such that lay persons can understand them and draw appropriate conclusions from them. Here, Cyrus stopped breathing shortly after receiving the shocks, there is no evidence of a prior injury or condition, the toxicology report showed the absence of drugs, and there is no evidence of an intervening cause. On this record, the Court concluded that a jury could find causation.

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FLETCHER v. MENARD CORRECTIONAL CENTER (October 28, 2010)

Anthony Fletcher is an inmate at Menard Correctional Center in Illinois. He claims that prison guards used excessive force while they were transferring him to a new cell. He further claims that he suffered significant injuries and that he was denied medical treatment for those injuries and for his asthma and diabetes. He brought suit asserting those constitutional violations and attempted to proceed in forma pauperis. Unfortunately, he had three "strikes" (prior frivolous suits) and thus could not proceed in forma pauperis without relying on the "under imminent danger of serious physical injury" exception. Even more unfortunately, his judge had presided over one of those earlier "strikes" in which Fletcher alleged a failure to treat his asthma and diabetes. Fletcher's medical records in that case showed that he did not have asthma or diabetes. Judge Baker (C.D. Ill.) ruled that he therefore did not come within the exception and dismissed his complaint. Fletcher appeals.

In their opinion, Judges Bauer, Posner, and Wood affirmed. Although the Court affirmed the dismissal, it did so on different grounds. On the imminent danger exception to the three strike rule, the Court concluded that the district court erred. Although Fletcher did not have asthma or diabetes, the district court did not consider his additional allegation that he was denied treatment for injuries suffered from the excessive force. Untreated injuries could pose as much a threat as untreated illnesses and could qualify as an “imminent danger.” Nevertheless, the Court found an alternative ground to affirm the dismissal. The Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies before bringing suit. The Court imagined a scenario in which a prisoner would not be required to exhaust administrative remedies -- if he is in imminent danger and no administrative remedy is available to avert that danger. Here, however, Illinois has an emergency procedure under which a grievance is directed immediately to the warden. Fletcher took advantage of that procedure but waited only two days before filing his suit. Under these circumstances, the Court concluded that he was not excused from the exhaustion requirement of the Act. 

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PALKA v. SHELTON (October 7, 2010)

Peter Palka's hopes of becoming a Chicago police officer were dashed when he was kicked out of the Police Academy. His father Tadeusz, a 28-year veteran of the Cook County Sheriff's Department, thought the termination was discriminatory and based on the fact that Peter was Polish. The elder Palka tried to convince Matthew Tobias, the official in charge of the Academy, to reinstate his son. Tobias assured Palka that Peter was terminated for cause and refused to reverse the decision. A few months later, the receptionist at his children’s school advised Tobias that an unidentified man with a Polish accent called and asked questions about the children. Tobias suspected Palka and began an investigation. Phone records revealed that someone in the Cook County Building at 69 W. Washington in Chicago had placed a call to the school on the afternoon in question. Tobias was now convinced -- he reported the call to the local police, he opened an incident report and checked Palka for outstanding warrants, he asked senior officers to speak with Palka, and he filed a formal complaint with the Sheriff's Department's Office of Internal Affairs. Palka was suspended with pay. Shortly before a formal disciplinary hearing that would decide his fate, the Department offered Palka full retirement benefits (including badge and firearm credentials) if he resigned. He did resign, but never received his credentials. Palka filed suit pursuant to § 1983, alleging procedural and substantive due process violations, occupational liberty deprivations, and Monell claims. Judge Kendall (N.D. Ill.) dismissed the complaint with prejudice. Palka appeals.

In their opinion, Judges Ripple, Kanne, and Sykes affirmed. The Court rejected each of Palka’s contentions in turn. First, the procedural due process claim relating to his suspension fails because a suspension with pay does not trigger due process protection unless there is a claim of indirect economic consequences. Palka makes no such allegation. Second, the procedural due process claim relating to his resignation also fails. Palka was simply given a choice to avail himself of the procedural protections offered by the Merit Board (and risk losing everything) or to resign with retirement benefits. He was not deprived of due process protections -- he traded them away. Third, the substantive due process claim fails. Public employment termination does not give rise to a substantive due process claim unless it is accompanied by an allegation of other constitutional violations or inadequate state remedies, neither of which is present here. To the extent that Palka relied on police misconduct to support the substantive due process claim, the Court stated that it did not meet the high “shocks the conscience” threshold. Fourth, the occupational liberty claim fails. Palka failed to allege public disclosure an essential element of the claim. The County's failure to grant him badge and firearm credentials, on which Palka bases this claim, was not publicly disclosed nor does Palka allege that any potential future employer learned of it. Finally, because there is no constitutional violation, there can be no Monell liability.

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WILSON v. PRICE (October 4, 2010)

Midnight Auto Express is a car repair business located in Aldermen Keith Price's Sixth Ward in Harvey, Illinois. Midnight apparently had a number of cars parked illegally in front of its shop on May 2, 2008 because Price received a number of complaints from his constituents. Price unsuccessfully tried to get the City to remove the cars. Undaunted, he paid a personal visit to the shop and spoke with Christopher Wilson, a mechanic. Wilson refused Price's demand to move the cars and also refused to contact the owner. Instead, he walked away. Price attacked Wilson, leaving him unconscious. Wilson and his wife brought suit against Price and Harvey, alleging claims under and state law. Judge Hibbler (N.D. Ill.) dismissed the § 1983 claim on the ground that Price had not acted under color of state law and declined to exercise jurisdiction over the state claims. The Wilsons appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed. The only issue on appeal was whether Price was acting under color of state law. The Court noted that the fact that he is a government official is not enough. An act is under color of state law when it is a misuse of the power the actor has been granted by state law. In other words, it must be related to the performance of his official duties. The Court noted that Price's aldermanic duties are purely legislative. As such, they involve enacting legislation and related legislative investigation. The Court analyzed his conduct to determine whether the required relationship existed. Of course, none of his activities that day related to the passage of legislation. He could, however, have visited the repair shop as part of his legislative investigation role. Even if that is so, however, the Court concluded that he crossed over into a law enforcement role once he ordered the cars moved. Since Price had no enforcement authority, his actions were not related to his official duties – and not under color of state law. The altercation was one between private citizens and does not support a § 1983 action.

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GATES v. CITY OF CHICAGO (September 27, 2010)

Chicago police arrested Luster Nelson in February of 2004 on a narcotics charge -- and seized the $59 in cash that he had on his person at the time. Chicago police arrested Elton Gates in January of 2003 on a non-narcotics charge -- and seized the $113 in cash that he had on his person at the time. Gates and Nelson were each given a property inventory receipt that included instructions for the return of their property. Gates ultimately pled guilty and unsuccessfully sought the return of his $113. The charges against Nelson were dismissed. He also was unsuccessful in his attempt to retrieve his $59. Gates and Nelson brought a class action suit against the City and various individuals. They alleged due process violations in that the City: seized their property and kept it without instituting a forfeiture proceeding, misrepresented when their property would be available, kept their property after the conclusion of criminal proceedings, and maintained a policy designed to delay the return of property. They sought the return of their cash, damages, and attorney's fees. They also included state law claims for conversion, replevin, and unjust enrichment, among others. Shortly after they filed suit, the City sent each a check in the full amount of his alleged property loss and offered to pay interest. The plaintiffs returned the checks. The court certified two classes of individuals (one for narcotics arrestees, one for non-narcotics arrestees) who had had property taken from them during a particular period, whose criminal cases had been resolved, and who had not been able to recover their property. The Seventh Circuit affirmed the class certification. Judge Castillo (N.D. Ill.), on remand, granted summary judgment to the City on the federal claims, refused to certify a class on the state restitution claims, and dismissed those claims as moot. The plaintiffs appeal.

In their opinion, Judges Kanne, Rovner, and Wood affirmed in part and vacated and remanded in part. The Court first turned to the sufficiency of the notice. It looked to the Supreme Court decisions in West Covina and Memphis Light for guidance. In West Covina, the Supreme Court upheld a notice that did not give many specifics about the procedure for obtaining the return of one's property but the procedures were generally available in public sources. Conversely, in Memphis Light, the Supreme Court held that a public utility must give its customers notice of its internal procedure for resolving billing disputes because the procedure was not otherwise publicly available. Here, part of the procedure for property recovery is contained in Illinois statutes and is publicly available. However, the record shows that the police also use internal procedures that are not described in generally available documents. The Court concluded that the notice provided to the plaintiffs did not satisfy Memphis Light and violated due process. The Court referred to the City's instructions as a "model of misdirection" and concluded that summary judgment for the City was premature. The narcotics arrestee class also challenges the additional notice that is sent to the home of narcotics arrestees. Their position is that the City should check the sheriff's website to determine if the arrestee is incarcerated, either before sending the notice or at least upon return of an undelivered notice. A notice, under due process, must be reasonably calculated to inform interested parties. Generally, a notice mailed to the interested party's residence is sufficient -- unless, of course, there is reason to know it would be ineffective. The Court concluded that summary judgment for the City was premature with respect to the narcotics notice. The extra notice to narcotics arrestees is not just a notice -- it is a document required to recover property. The record is not clear regarding the burden on the City to check the website, either for all notices or for those returned undelivered. The City failed to meet its burden that the mailing of the notice meets the Mullane standard.

The Court moved to the consideration of the adequacy of the procedures themselves. Again, the Court concluded that summary judgment for the City was error. First, it identified a number of factual disputes regarding the actual procedure. Second, it discussed a series of Second Circuit cases (McLendon, Butler, and Alexandre) to clarify the difference between having procedures for the return of property and having remedies if the procedures fail. A post-deprivation remedy is not a defense to a § 1983 action if the deprivation is a result of established procedures. Here, the arrestees were apparently required to obtain an arresting officer's signature on a form, and the officer could refuse arbitrarily. This does not comply with due process requirements – and cannot be corrected with a simple post-deprivation remedy. As an aside, the Court noted that the significant amount of money and number of arrestees unable to reclaim their property are indications that the policy is suspect. Finally, the Court affirmed the district court's dismissal of the restitution claims. Those claims sought nothing more than a return of the plaintiff's property. The City's tender of the full amount of the claim is sufficient to make the plaintiff whole.

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GUAJARDO-PALMA v. MARTINSON (September 20, 2010)

Cesar Guajardo-Palma is a prisoner in a Wisconsin facility. He brought suit alleging that his constitutional rights were violated when prison employees opened nine pieces of his incoming mail outside of his presence. None of the mail was from his lawyer. One document was from the district court and was a matter of public record. The others were from federal and state agencies and, though not public documents, were not particularly sensitive. Judge Crabb (W.D. Wis.) dismissed the complaint for failure to state a claim. Guajardo-Palma appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Hamilton affirmed. The Court engaged in a lengthy analysis of the jurisprudence in this area, including such topics as the interception of a letter from a lawyer, the interception of a letter to a lawyer, whether the analysis is properly a First Amendment analysis or a right of access to the courts analysis (the "more straightforward" approach) or the right to a fair hearing, the Sixth Amendment issues that arise if the prisoner is a criminal defendant, the accommodation required between a prisoner's interest in confidentiality and the prison's interest in security, whether an unjustified interception of legal mail is a violation or simply a potential violation that requires a showing of hindrance, the appropriate remedy for a violation, and the fact that such a violation would be subject to a harmless error analysis. The Court then put its imprimatur on an approach described in Wolff -- the prison official should be allowed to open, in the prisoner's presence, mail that purports to be from the prisoner's lawyer to ensure that it is what it purports to be. Of course, the actual communications at issue in the case were not to or from a lawyer. The prisoner had not asserted any interference with his rights to pursue his litigation nor had he claimed to be intimidated. The Court concluded that the prison's practice of opening communications that are not sensitive and not likely to provide insights into a legal strategy is harmless and not a constitutional violation.

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CARLSON v. BUKOVIC (September 2, 2010)

June Carlson and her adult handicapped son Paul were shopping at their local Walmart store when Paul scratched himself on a fire hose box. They reported the incident to store personnel and were in the process of completing some forms when things got heated. The store manager eventually felt threatened and the police were called. Officer Bukovic interviewed the manager and the Carlsons. June Carlson, a woman in her 80s, became very upset, raised her voice, and accused the manager of lying -- but refused to cooperate with the Officer's interview. The manager told Officer Bukovic that he wanted Ms. Carlson to leave the store. After Ms. Carlson refused several requests to leave, Officer Bukovic gently placed his hands on her arm to guide her out. She began screaming and flailing about. Eventually, she calmed down and left the store -- and sued. She asserted a § 1983 Monell claim against the City of Darien and a Fourth Amendment excessive force claim against Bukovic. Magistrate Judge Nolan (N.D. Ill.) granted the City's summary judgment motion on the Monell claim. The excessive force claim was tried to a jury, which found that no “seizure” had occured. Carlson appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The principal issue before the Court was Carlson's argument that the mere touching by Bukovic was a seizure as a matter of law and "per se" unreasonable. The Court rejected the argument. The Fourth Amendment inquiry has two prongs -- whether there was a seizure and, if so, whether it was unreasonable. There are a number of factors that go into the "totality of the circumstances" test to determine whether there was a seizure. Physical contact is one of those factors. But so are the number of officers, the display of a weapon, and the tone of voice. The Supreme Court has held that the purpose of the contact is relevant in physical contact cases. The mere fact that there is a touching or physical contact does not automatically create a seizure. The Court concluded that the district court properly submitted the question to the jury. Given the Court's disposition of the excessive force claim, it also rejected Carlson’s appeal of the Monell claim. There can be no municipal Monell liability without an underlying constitutional violation.

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GOLDHAMER v. NAGODE (September 2, 2010)

Don Goldhamer and Robin Schirmer participated in a peaceful demonstration near a military recruitment booth during the Taste of Chicago festival in the summer of 2006. They expressed their opposition to military recruitment by handing out fliers and speaking to passers-by. The police asked them to relocate to a designated area. When they refused, the police ordered them to leave. Again they refused. They were arrested and charged with a city ordinance violation. The ordinance makes it unlawful to fail to disperse when ordered to do so -- but only in a situation where "three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm.” A state court ultimately dismissed the charges for failure to prosecute. Goldhamer and Schirmer brought suit under § 1983, alleging that the ordinance was facially invalid under the First Amendment and that it was unconstitutionally vague. They sought an injunction and damages. Judge Grady (N.D. Ill.) granted plaintiffs summary judgment on liability and permanently enjoined enforcement of the ordinance. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Hamilton vacated and remanded. The Court first noted that, although the district court had not disposed of all claims, it had limited appellate jurisdiction under § 1292(a)(1). Before reaching the merits, the Court addressed the plaintiffs' standing on their request for injunctive relief. Among other things, they must show that a favorable decision from the court will prevent or redress the injury. The Court found that element absent. There is no evidence in the record of any disorderly conduct in their vicinity -- an essential element of the offense for which they were arrested. Given that their conduct was clearly outside the scope of the ordinance, the requested injunction is unlikely to prevent future injury. The Court concluded that this misuse of the ordinance by the Chicago police does not provide a basis on which a federal court should examine the constitutionality of the law. The Court added that plaintiffs of course have standing to challenge their arrest and seek money damages.

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FORREST v. PRINE  (August 31, 2010)

In responding to a 911 call, the Rock Island County Sheriff's police came upon Roger Forrest. Forrest was uncooperative and belligerent. After he struck an officer, the police employed a taser several times to subdue him. He was arrested and charged with a felony. Pursuant to County procedure, he was subject to a strip search. Forrest refused to cooperate, instead pacing back and forth in a small room, shouting obscenities and insulting the officers present. One of those officers, Michael Prine, warned him on several occasions that he would use a taser again if Forrest did not comply with the search. Eventually, he did use the taser. The testimony differs on this point. Prine and other officers testified that he aimed the taser at Forrest's back -- Forrest testified that Prine aimed at his face. In any event, one of the darts did hit his face. He fell and suffered a head injury. Forrest brought an action pursuant to § 1983 against Officer Prine. He complained of the use of excessive force in violation of the Fourth and Fourteenth Amendments. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to Prine. Forrest appeals.

In their opinion, Judges Posner, Ripple, and Kanne affirmed. The Court first commented on the basis for Forrest's claim. The Fourth Amendment grants certain rights to be free from excessive force but applies only in the search and seizure context. The Court admitted that it had not precisely defined the temporal contours of Fourth Amendment protection but concluded that allegations arising in the pretrial detention process, such as Forrest's, are clearly outside its temporal bounds. On the other end of the spectrum, the Eighth Amendment protects sentenced prisoners from claims of unnecessary or excessive force or punishment. Forrest's claims arise in the pretrial detainee context and are governed by the due process clause of the Fourteenth Amendment. In analyzing Forrest's claim, the Court applied an Eighth Amendment approach. The due process clause provides at least as much (and maybe more -- but Forrest did not argue so) protection as the Eighth Amendment. The test under the Eighth Amendment is whether the force is "unnecessary and wanton infliction of pain." The relevant factors include the need for and amount of force, the existence of a threat, any effort to use less force, and the extent of any injury. Applying that test here, the Court concluded that no reasonable factfinder could find Prine's use of force impermissible. Forrest was a large man in a small space, pacing and shouting, threatening and swearing, clenching his fists and refusing to follow orders. Prine warned him several times that he would use the taser if Forrest did not follow instructions. Finally, the Court refused Forrest's invitation to infer some malicious intent from the mere fact that one dart struck him in the face. There is simply no evidence to support such an inference.

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GROSS v. TOWN OF CICERO (August 27, 2010)

For several years after Clarence Gross retired as a Cicero police officer, he served in a number of appointed positions in the Town's government. The Town President appointed him Chairman of the Board of Fire and Police Commissioners. As Chairman, Gross oversaw the hiring of the Town's police officers. Gross admits that he hired several officers that he deemed unqualified because he was directed to do so by the Town President. Rhonda Gross, Clarence's daughter, also served as a Cicero police officer during this time. She complained to Gross that she and other female police officers were the victims of sexual harassment. Gross approached the Town President on several occasions to discuss the harassment. On each occasion, she deflected his attempt and promised to address it later. Rhonda filed an EEOC charge. The EEOC found substantial evidence that she was the subject of sexual harassment -- the Town settled. After Rhonda filed her charge, Gross was removed from his various appointments. He complained to the Town's attorney that he was owed compensation. When he became involved as a potential witness in litigation against the Town, he claims that the attorney told him he would not get his compensation until the other litigation was resolved. Gross brought suit pursuant to § 1983 against the Town, the President, a successor President, and the Town’s attorney. He alleged First Amendment free-speech violations. The Town brought counterclaims for breach of fiduciary duty and unjust enrichment. Judge Darrah (N.D. Ill.) granted summary judgment to the defendants on Gross' claim, granted summary judgment to Gross on the unjust enrichment claim, but granted summary judgment on liability to the Town on the breach of fiduciary duty claim. The court ultimately awarded over $300,000 on the claim after a bench trial, representing Gross' entire salary for the years in question.

In their opinion, Judges Cudahy, Williams, and Tinder affirmed in part and reversed and remanded in part. The Court first addressed Gross' First Amendment retaliation claims, specifically the first prong of the retaliation inquiry -- whether his speech was constitutionally protected. Three different episodes of retaliation were alleged: a) his sexual harassment complaints on behalf of Rhonda to the Town President, b) his instruction to Rhonda to file an EEOC charge, and c) his conversations with the plaintiffs’ lawyers in another case against the Town. The Court concluded that none of the episodes constituted protected speech: a) his complaints to the Town President about sexual harassment (to the extent there was even any actual content to the speech, as opposed to a mere request to discuss) were not matters of public concern but merely a private grievance, b) any encouragement to Rhonda to file the EEOC charge was not speech on a matter of public concern but, again, a mere private matter (the record also contains no evidence that any defendant was aware of this speech, precluding a finding of causation), and c) there is no evidence in the record to establish that a conversation with plaintiffs' lawyers in another case could constitute protected speech. The Court therefore affirmed the district court's finding in favor of the defendants on Gross’ First Amendment claim. The Court next addressed the Town’s breach of fiduciary duty claim. The district court noted that an Illinois statute sets standards by which municipalities’ Police Boards must evaluate appointed police officers. The court held that the statute created a fiduciary duty on the part of Police Board members to exercise independent judgment. The Court disagreed. The statute does not refer to fiduciary duties and the Court was reluctant to create one. Instead, the statute merely grants authority and establishes rules for the exercise of that authority. Although it concluded that the statute did not create a duty, the Court did recognize that Gross was subject to a duty of loyalty owed by all public officials. Relying on the standard the Illinois Supreme Court stated in upholding a criminal conviction, the Court ruled that there was sufficient evidence (barely) in the record for a factfinder to conclude that Gross violated that duty. A factfinder could conclude that Gross engaged in a quid pro quo arrangement with the Town President by which he protected his and his daughter’s jobs in return for appointing unqualified police officers selected by the President. The Court remanded for additional factual findings on that issue. Its conclusion on liability did not necessitate any analysis of the damage award. Nevertheless, the Court commented that the district court’s total salary forfeiture was not correct, unless Gross was breaching his duty during his entire tenure, a conclusion not supported by the current record.

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TRENTADUE v. REDMON (August 18, 2010)

During the 2003-2004 school year, Major Lee Redmon supervised the Junior ROTC program at Pekin High School and Mark Cole was one of his instructors. Cole admittedly had sexual contact with a female student on multiple occasions. The student reported the abuse to her mother on November 5. They immediately reported the incident to school authorities, the school district, and the police. The student's stepfather confronted Redmon. According to the stepfather, Redmon said that "this incident has happened before." After the local newspaper reported the incident, two former students came forward with allegations that they two had been abused by Cole, one in 1996 and one in 2002. The student brought suit against Redmon under § 1983 and against the school district under Title IX. Judge Mihm (C.D. Ill.) dismissed the action against Redmon based on circuit precedent that Title IX precludes a § 1983 action based on supervisor liability. The court later entered summary judgment for the school district on the Title IX claim. The student appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed as modified. The Court first concluded that the district court was in error in dismissing the § 1983 claim -- but only because of the Supreme Court's intervening holding in Fitzgerald that such a claim is not precluded by Title IX. Since the district court did not address the claim on the merits, a remand would normally be appropriate. However, here the § 1983 claim rested on the same set of facts as the Title IX claim, which the court did fully consider on the merits, so a remand is unnecessary. Liability under either theory requires evidence of knowledge and indifference or facilitation -- on the part of Redmon with respect to the § 1983 claim and on the part of the school district with respect to the Title IX claim. The parties do not dispute that neither the school officials nor Redmon knew of Cole's abuse of the plaintiff. It is also undisputed that no school official knew of the two earlier incidents. The only issue, therefore, is whether Redmon knew of either of the earlier incidents. Plaintiff's entire argument rests on Redmon’s "this incident happened before" statement. But Redmon testified that he did not know of Cole's earlier abuse and explained his reference to an earlier incident as one involving his predecessor, not Cole. On that record, the Court concluded that the plaintiff's interpretation of the remark was mere speculation unsupported by evidence. At the summary judgment stage, plaintiff had the obligation to identify some evidence on that issue.

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ABCARIAN v. MCDONALD (August 13, 2010)

Dr. Herand Abcarian was a senior surgeon at the University of Illinois College of Medicine and the University of Illinois Medical Center in Chicago. Over time, he clashed frequently with co-employees over issues like recruitment, compensation, risk management, and benefits. He alleges that several of these co-employees conspired to defame him and deprive him of his constitutional rights. In particular, he alleges: a) they caused the University to settle a malpractice claim against him for almost $1 million, b) the reported the malpractice settlement to federal and state databanks, and c) they caused the malpractice plaintiff's attorney to file suit against Abcarian only to then have it dismissed as a result of the settlement. Abcarian brought suit pursuant to § 1983, alleging constitutional violations of his right to free speech, equal protection, and procedural due process. Judge Der-Yeghiayan (N.D. Ill.) dismissed for failure to state a claim. He also denied Abcarian's requests to amend the judgment and to amend his complaint. Abcarian appeals.

In their opinion, Judges Kanne, Williams, and Hamilton affirmed. The Court first addressed his First Amendment claim that he was retaliated against for his speech. Garcetti dealt with an employer's retaliation and the Court noted that it had already reserved judgment once about whether that rule applied to a co-employee's retaliation. Again, the Court ducked the question whether Garcetti applies to all employees but did conclude that it applies to employees whose actions are advancing the interests of their employer. The Court also concluded that a practical view of the speech, keeping in mind Abcarian's role and the content and context of the speech, lead to the conclusion that he spoke as a public employee under Garcetti, not as a private citizen. His speech was therefore not protected. Abcarian's equal protection claim was a "class-of-one" claim under which a plaintiff need not allege a suspect classification. The plaintiff must, however, allege arbitrary treatment without a rational basis. The basis of Abcarian's claim is that the defendants reported the malpractice settlement. But they had no discretion in the matter. Federal and state law required the report and would have exposed them to punishment had they failed to report. The Court concluded that the lack of discretion precluded an equal protection claim. Abcarian's third constitutional claim was a procedural due process claim based on the defendants' defamation. In order for defamation to rise to the level of a due process violation, a plaintiff must allege that was stigmatized by publicly disclosed information and that he suffered a loss of employment opportunities. The Court concluded that Abcarian could not meet this test because he still maintains his same positions at the Medical Center and College of Medicine. One cannot be thought to have been deprived of something that one still possesses. Finally, the Court concluded that Abcarian could not and did not meet the test for a Rule 59(e) motion. Since a post-judgment amendment would only be allowed if his Rule 59(e) motion was granted and it was clear that the district court had entered a final judgment, Abcarian was also not entitled to amend his complaint.

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MCALLISTER v. PRICE (August 12, 2010)

Frank McAllister, who suffers from diabetes, was driving his car alone early one afternoon when he suddenly went into a severe hypoglycemic state. McAllister's car struck two other vehicles before coming to rest. Although McAllister was not injured, witnesses described him as staring into space and convulsing. Burns Harbor police officer Jerry Price responded. The dispatch advised Price that the accident may have been caused by an intoxicated driver. Price confronted McAllister. When McAllister failed to follow his instructions or respond to his questions, Price removed him from his car with force. According to a witness, Price threw him to the ground, put his full weight on his back, and handcuffed him. Eventually, and only after the suggestion of a bystander, Price checked McAllister for medical alert identification. He discovered a diabetes alert necklace on McAllister and released him. McAllister suffered from a broken hip and a bruised lung. He brought a § 1983 complaint against Price. Judge Van Bokkelen (N.D. Ind.) denied Price's request for summary judgment on qualified immunity grounds, concluding that there were genuine issues of material fact. Price brought an interlocutory appeal.

In their opinion, Judges Bauer, Flaum, and Tinder affirmed. A qualified immunity defense requires that a court answer two questions: whether there is a constitutional deprivation and whether the constitutional right was "clearly established" at the time. The Court first addressed the deprivation -- whether Price used excessive force. Three factors mattered: the degree of severity of any offense, whether the victim was a safety threat, and whether the victim was a flight risk. Before addressing the merits of the excessive force claim, the Court resolved two evidentiary issues. First, it concluded that the district court did not err in allowing evidence of McAllister's hip injury, even though there was no conclusive medical testimony that Price's actions caused the injury. Some causal evidence is all that is required for the jury to consider the evidence. Second, the Court concluded that the district court did not err in considering McAllister's diabetic condition. Although a police officer is not required to accommodate unknown conditions, here McAllister was obviously suffering from something and Price was trained in recognizing diabetes, trained in recognizing intoxication, and trained to look for medical alert identifications. On the merits of the constitutional deprivation question, the Court concluded that there was sufficient evidence for a jury to conclude that the amount of force used was excessive. On the second question, the Court concluded that the case law in effect at the time of the incident was sufficient to "clearly establish" McAllister's rights to be free from the excessive force as alleged.

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ROMANELLI v. SULIENE (August 11, 2010)

Ron Romanelli was incarcerated at the Columbia County Jail. He claims that he was in desperate need of medical attention while incarcerated and that Dr. Suliene and Sgt. Kuhl violated his rights to adequate medical care. The district court granted Romanelli leave to proceed on his § 1983 claim but denied his motion for court-appointed counsel as premature. The court denied a second motion a few months later, concluding that Romanelli was capable of representing himself. After the court denied the defendant's motions for summary judgment, it also denied Romanelli's third request for counsel. The court concluded that the case was not complex, that Romanelli had successfully defeated the summary judgment motions, and that the Romanelli was provided with detailed trial instructions. The case proceeded to trial before Magistrate Judge Crocker. The Magistrate Judge ruled that the defendants were permitted to impeach Romanelli with evidence of prior convictions for issuing worthless checks, bail jumping, and sexual assault -- he did not permit impeachment with evidence of Romanelli's convictions for resisting/obstructing an officer and failure to report as a sex offender. A jury concluded that Romanelli did not suffer from a serious medical condition. The court entered judgment in favor of the defendants. Romanelli appeals.

In their opinion, Judges Ripple, Kanne, and Sykes affirmed. The Court first noted the absence of any right to counsel in a civil case but added that a district court has discretion under 28 U.S.C. § 1915(e)(1) to appoint counsel. In exercising that discretion, the court should examine whether the plaintiff is indigent, whether the plaintiff has made reasonable attempts to retain counsel, whether the case is complex, and whether the plaintiff is capable of representing himself. The Court concluded that the district court applied that proper standard and did not abuse its discretion in denying court-appointed counsel to Romanelli. The court acted within its discretion in denying a) the first motion -- it was too early for the court to make the necessary determinations, b) the second motion -- exceptional circumstances were absent and the court made a threshold determination that Romanelli was capable of representing himself in a relatively simple case, and c) the third motion -- Romanelli had proven himself capable of his own representation. The Court added that Romanelli had a very weak case on the facts and suffered no obvious prejudice due to the lack of professional representation. With respect to the evidence of prior convictions, the Court also concluded that the trial court did not abuse its discretion. The Court relied on the facts that almost all of the evidence relating to Romanelli's prior convictions was brought into the record by Romanelli himself and that the court included limiting instructions to the jury. Finally, the Court also noted that any evidentiary error would have been harmless given Romanelli's lack of credibility and the dearth of corroborating evidence.

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PURVIS v. OEST (AUGUST 2, 2010)

Gina Purvis was a high school teacher in Spring Valley, Illinois. In early 2004, rumors of a sexual relationship between Purvis and a 15-year-old student arose. Principal Patricia Lunn questioned Purvis and the student. When both denied the truth of the rumors, she dropped it. However, when the rumors resurfaced the following year, Lunn and Superintendent Oest decided to investigate. Oest and Dean of Students Gary Vicini carried out the investigation. Unfortunately, Vicini knew that Purvis had reported him for the sexual harassment of a student the prior year. Lunn was aware of Vicini's conflict, although Oest was not. Oest and Vicini interviewed the student, who denied the relationship. There is evidence that Vicini then threatened the student with expulsion if he continued to deny the relationship. The student recanted his denial, admitted the relationship, and provided numerous details about its development. Oest reported the matter to the local police, who in turn reported the matter to the Department of Children and Family Services (“DCFS”). Neither the police nor DCFS were informed of Vicini's potential bias. The police investigation resulted in significant additional information, some of which supported the student's admission and some of which did not. Of particular importance was the fact that the student's cousin, while on leave from the Navy, picked the student up from Purvis' house and saw them kissing. Purvis was arrested and resigned her teaching position but was later acquitted of all charges. She brought suit alleging a denial of due process and false arrest against Oest, Lunn, Vicini, and the police investigator. Judge Mihm (C.D. Ill.) denied the defendants' request for summary judgment, finding genuine issues of fact with respect to the constitutional violation itself and concluding that the defendants were not entitled to qualified immunity. The defendants appeal.

In their opinion, Judges Cudahy, Manion, and Williams reversed. First, the Court found genuine issues of material fact both with respect to Vicini's bias and with respect to the independence of the subsequent investigations by the police and the DCFS. Due process is not provided when the process is biased and deprives one of a protected interest. Purvis had a protected interest in her job as a tenured teacher. The Court concluded that a jury could find that the subsequent investigations did not cure the fundamental bias present in the original investigation. The Court then addressed qualified immunity. The first prong of the qualified immunity test was already answered in the Court's treatment of the summary judgment appeal. The facts in a light most favorable to Purvis demonstrated a constitutional violation. Application of the second prong of the test, whether the right was "clearly established," led the Court to conclude that each of the non-police defendants was entitled to qualified immunity. Oest was not even aware of Vicini's bias and could not have knowingly violated a clearly established right. Lunn and Vicini are also entitled to qualified immunity based on the Court's conclusion that there was no case law holding that reporting Purvis to a separate body for an independent investigation violated a clearly established constitutional right. Finally, the Court concluded that the police investigator was entitled to qualified immunity under the first prong of the test. The officer had probable cause to arrest Purvis -- there was no constitutional violation. The evidence uncovered by the police officer "easily" met the probable cause standard -- whether there is a probability of criminal activity. Although significant exculpatory evidence was uncovered in the police investigation (enough, in fact, that Purvis was ultimately acquitted), it did not negate the existence of probable cause. As an alternative ground for finding qualified immunity, the Court noted that a reasonable police officer would believe probable cause existed even if it did not.

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MOSS v. MARTIN (August 2, 2010)

William Moss was hired as the Chief of the Illinois Department of Transportation's (IDOT) Springfield, Illinois Highway Sign Shop in 2000. He was responsible for taking care of the signs on Illinois' highways. Moss was also a Republican. In 2003, a Democratic governor was elected in Illinois for the first time in a long time. Shortly thereafter, IDOT personnel manager Jacob Miller, who knew that Moss was a Republican, discovered that he was non-exempt. Non-exempt employees are those that are not protected from employment decisions based on their political affiliation. Miller started the process for firing Moss. Before any action was taken, Scott Doubet replaced Miller. Independently of anything Miller had decided or started, Doubet fired Moss in order to provide a job to Joe Athey, who was loyal to the new governor. Moss brought suit under § 1983, alleging that his First Amendment and due process rights were violated. Judge Scott (C.D. Ill.) dismissed the claims. On appeal, the Seventh Circuit reinstated the First Amendment claim. The district court then granted summary judgment to the defendants on qualified immunity grounds. Moss appeals.

In their opinion, Judges Kanne, Wood, and Hamilton affirmed. The district court only addressed the second prong of the qualified immunity test, whether Moss’ constitutional rights were clearly established at the time of the defendants' conduct. The Court nevertheless briefly visited the first prong of the test, whether Moss' First Amendment rights were even violated. The Court noted that a fact finder could find that the firing was politically motivated, particularly against some of the defendants. It also found that Moss had a "promising" argument that his classification as non-exempt was wrong. Non-exempt positions are reserved for individuals with policymaking responsibilities or those who handle confidential information. The Court did not believe that the Chief of the Highway Sign Shop met that definition. Thus, the Court moved to the issue addressed by the district court -- whether it was "clearly established" that defendants' actions would violate the First Amendment. Although not dispositive, the Court agreed with the district court that Illinois' designation of the position as non-exempt favored a qualified immunity finding. The Court also relied on the fact that the job was designated exempt before Moss took the position. Finally, the Court found it particularly telling that Moss was unable to point to a closely analogous case despite a large number of political patronage case. The Court therefore concluded that qualified immunity was appropriate.

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PARISH v. CITY OF ELKHART (July 30, 2010)

A jury found Christopher Parish guilty of the 1996 shooting of Michael Kershner in his Elkhart, Indiana home. Evidence uncovered during his post-conviction proceedings supported a different conclusion: that Kershner was shot in a drug deal and was not even in his home at the time, and that local police threatened witnesses and otherwise fabricated evidence in an effort to falsely convict Parish of the crime. Parish's conviction was vacated in 2006 by the Indiana Court of Appeals. The state then dropped all charges. Parish brought suit pursuant to § 1983, alleging the denial of a fair trial. He also brought state claims for false arrest, false imprisonment, and intentional infliction of emotional distress (“IIED”). Judge Lozano (N.D. Ind.) dismissed all but the § 1983 fair trial claim on statute of limitations grounds. The court granted Parish's request for a Rule 54(b) certification. Parish appeals.

In their opinion, Judges Posner, Flaum, and Williams affirmed in part and reversed in part. Parish conceded, at oral argument, the propriety of the dismissal with respect to the claims for false arrest and false imprisonment. Thus, the only issue on appeal is the dismissal of the IIED claim. The parties agreed that the statute of limitations for the claim is two years from the date it accrued. The Court discussed four cases in its analysis of when an Indiana IIED claim accrues. In Heck, the Supreme Court held that a state prisoner could not bring a § 1983 suit for damages until his conviction was overturned. A judgment would have implied the invalidity of his conviction – the claim was therefore an improper collateral attack on the conviction. An Indiana appellate court followed Heck in Scruggs, when it dismissed false imprisonment claims. The Scruggs plaintiffs, still imprisoned, were also attacking the validity of their convictions. Next, in Wallace, the Supreme Court held that a claim for false arrest or false imprisonment requires a detention without legal process and therefore ends when legal process (e.g., appearance before a magistrate) is granted. The cause of action accrues at the same time -- when the false imprisonment ends. The Court distinguished Heck. Unlike in Heck, the Wallace claim for false imprisonment did not challenge the validity of a conviction. In fact, it did not even require a conviction. Finally, in Johnson, another Indiana appellate court concluded that a false arrest claim accrued at the time of arraignment (when process was granted) but that other claims of emotional discretion and invasion of privacy based on an unreasonable search accrued at the time of the search. Thus, the general rule requires an examination of whether the tort was complete before conviction (e.g., an IIED claim tied to an unreasonable search) or not (e.g. an IIED claim tied to a false conviction). If the former, the claim accrues upon completion of the tort. If the latter, the claim accrues upon completion of the tort unless it directly implicates the validity of the conviction. If it does, the claim does not accrue until the conviction has been lifted. Applying these principles to Parish's claim, the Court concluded that the IIED claims were not complete prior to conviction. In fact, the conviction was an integral part of Parish’s IIED allegations. The Court then concluded that the claim also attacks the validity of Parish's conviction and could not have been brought while the conviction was still outstanding. Parish brought the claim within two years of his exoneration – it is timely.

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MOSLEY v. CITY OF CHICAGO (July 29, 2010)

It was mid-summer 1999 when Jovan Mosley and three other individuals were standing near the porch of a friend when Howard Thomas walked by. The four of them ran at Thomas. Thomas was beaten to death and the four of them left the area together. All four were arrested and charged with murder. The police took statements from them as well as several eyewitnesses. One eyewitness, Anton Williams, viewed Mosley in a lineup and identified him as a person who was on the scene. The lineup was not documented until 15 months later and the report does not what Williams said about Mosley's particular role in the murder. Another eyewitness, Gregory Reed, implicated all four of the defendants in the beating and specifically identified Mosley as having participated. Reed never testified at trial because he admitted to the prosecutor just before trial that he was quite drunk the night of the incident and had no independent recollection. Mosley remained in jail for over five years until he was tried and acquitted by a jury (see this for commentary on that delay). He brought a § 1983 action against the City of Chicago and several individual police officers who were involved in the investigation. He alleged a due process denial for the withholding of exculpatory evidence, malicious prosecution, and civil conspiracy. Judge Coar (N.D. Ill.) granted summary judgment to the defendants. Mosley appeals.

In their opinion, Judges Flaum, Rovner, and Wood affirmed. The Court first addressed the main issue, the failure to produce exculpatory evidence under Brady. The claim has two parts: a) that the prosecutors did not inform Mosley that Williams told the police at the lineup that Mosley did not participate in the beating, and b) that the prosecutors did not tell Mosley that Reed admitted to being drunk on the night of the incident. The Court noted the "logical tension" in a Brady claim when the case results in an acquittal. The normal test for a Brady claim is that the non-disclosed evidence could put the case in a different light and undermine confidence in the verdict. That test makes no sense when the verdict is an acquittal. In fact, the Court noted that several circuits have concluded that a Brady claim cannot exist after an acquittal. The Court has reserved answering that question in the past and did so again. In Bielanski, the Court concluded that the elements of a post-acquittal Brady claim, if one even exists, are a) the withholding of material and favorable evidence, and b) that would have changed the prosecutor’s decision to try the case. Since Mosley cannot meet either element, his Brady claim fails. With respect to the lineup, the Court concluded that there was literally no evidence in the record that Williams told police that Mosley did not participate in the crime. Other than a one-word answer to a leading question on cross-examination, his testimony was inconsistent with that conclusion. In addition, even if it was said, the prosecutors approach would not have changed. It did not have to prove that Mosley actually participated to prevail on the accountability theory it was pursuing. With respect to Reed being drunk, the prosecutor had no obligation to disclose the statement since Reed never testified at trial. The Court next addressed the state malicious prosecution claim, one of the elements of which is the lack of probable cause. The Court had no difficulty in concluding that the district court's finding that probable cause existed was correct. Finally, with respect to the civil conspiracy claim, the Court pointed out that Mosley offered no evidence of the common scheme element of the conspiracy claim. At the summary judgment stage, Mosley cannot rest on the allegations of his complaint but must come forward with evidence.

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PORTIS v. CITY OF CHICAGO (July 23, 2010)

The City of Chicago arrests thousands of individuals each year for crimes punishable only by monetary fines. These crimes include disorderly conduct, peddling, and minor traffic offenses, among others. The police procedure after such arrests is to confirm the identity of the individual, the existence of probable cause, and that the individual is not wanted for a more serious offense. At that point in the process, an individual is entitled to be released on a personal-recognizance bond. All that remains is the bond’s processing and approval and the return of any personal belongings that were taken upon the arrest. The individual is then released. A number of persons who were subjected to this process brought a class action against the City. They allege that if the period of time between the entitlement to release and the actual release exceeds two hours, the confinement is unreasonable and in violation of the Fourth Amendment. Judge Gettleman (N.D. Ill.) agreed and certified the question for appeal. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans accepted the appeal -- and reversed and remanded. The Court compared the district court's ruling with the Supreme Court's decision in McLaughlin. In that case, the Supreme Court adopted a 48-hour test for the reasonableness of the period between arrest and presentation to a magistrate. That test differed in two ways from the district court's test: first, it looked at the entire process between arrest and presentation rather than one phase of the process -- and second, the 48-hour test was a presumption rather than a bright line rule. McLaughlin specifically rejected the adoption of arbitrary bright lines by courts -- only a legislature should venture there. The reasonableness of a detention should be decided as a whole -- not with relation to its component parts -- and should be decided individually -- not as a class. So not only did the Court find error in the lower court's decision on the merits, it also directed the district court to decertify the class. The named plaintiffs may still proceed individually with their claims that their detention was unreasonable.

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MCGOWAN v. HULICK (July 20, 2010)

Michael McGowan was incarcerated in an Illinois prison in 2006. He filed a pro se lawsuit pursuant to state law and § 1983 against a dentist and the prison's dental director alleging the following facts: In November of 2006, his tooth began to hurt. His pleas for assistance finally resulted in an appointment with a dentist in late January 2007. The dentist refused to provide a filling but agreed to extract the tooth. The procedure did not go well. McGowan was in severe pain, the tooth broke apart, and the dentist had to remove pieces of the tooth from his mouth with an ice pick. After the procedure, the pain increased, a mass of tissue developed, and he developed a sinus perforation. Other than pain relievers and temporary fixes, McGowan received no treatment until August, months after the extraction. The complaint alleges detailed facts regarding his requests for treatment and the delay occasioned at least in part by the prison dental director. Judge Herndon (S.D. Ill.) dismissed the case with prejudice for failure to state a claim pursuant to the § 1915A screening. The court acknowledged the long delay in treatment but concluded that it did not amount to deliberate indifference. The court did not address the state law negligence claims. McGowan appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood vacated and remanded. The Court noted the "well-established" Eighth Amendment test -- that deliberate indifference to serious medical (or dental) needs can amount to a violation. Delay itself can equal deliberate indifference in circumstances where it made conditions worse. Here, the Court concluded that the allegations against the prison dental director were erroneously dismissed. It noted the very specific complaint allegations of significant delays before McGowan was able to see the dentist, the oral surgeon, and finally the specialist. At this screening stage of this proceeding, the Court concluded that the allegations were sufficient to proceed. The Court reviewed the allegations against the dentist quite differently. It saw that as a dispute over which procedure was used and the competence with which it was performed. Although the ice pick allegation gave the Court the most pause, it decided that the allegation was simply that some instrument that looked like an ice pick was used. Although possibly supporting a negligence or gross negligence conclusion, the Court concluded that the allegations cannot support a finding of deliberate indifference. With respect to the state law negligence claims, the Court reinstated the claim with respect to the dental director and instructed the district court to modify its dismissal of the dentist to be without prejudice.

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JUNKERT v. MASSEY (June 21, 2010)

Roger Massey, the Sheriff of the DeWitt County, Illinois, began an investigation into a series of local burglaries. His investigation led him to Richard Baker. Baker provided much information to the police about his activities and those of Jeffrey McCall: a) he received stolen guns from McCall, b) he sold drugs with McCall, c) he named his cocaine source, d) McCall told him that McCall's attorney (a female) used cocaine, and e) McCall told him that he paid his attorney with stolen laptops. Massey corroborated some of the information from Baker. Additional investigation established that McCall's lawyer was Dodie Junkert, the only female lawyer in the county. Massey used the information from Baker in preparing an affidavit for a search warrant for Junkert's office and residence. When Massey informed Junkert of the existence of the search warrant, she admitted receiving the stolen laptops from McCall and arranged for their return. The police searched her office and home anyway. They found no computers but did find evidence of drug use. Junkert brought an action under § 1983, alleging that the Massey’s lack of probable cause for the search warrant violated her Fourth Amendment rights. A jury found in favor of Massey. Junkert appeals from Judge Mills' (C.D. Ill.) denial of her motion for judgment as a matter of law.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. The Court addressed whether the affidavit provided probable cause for the search, applying a totality of the circumstances test. It focused on the degree of cooperation, the extent of personal observation, the amount of detail, the time interval, and whether the affiant appeared before the judge. The Court found the affidavit severely lacking -- it lacked personal observation, it specified no time period, and the affiant did not personally appear. Even with the other positive aspects of the affidavit, the Court found it "difficult to conclude" that the affidavit provided a substantial basis for the search. Without actually deciding whether probable cause existed, however, the Court addressed qualified immunity. It noted that Massey is personally liable for damages only if courts have held that a materially similar affidavit lacked probable cause or if the affidavit was so lacking that any reasonable officer would have known it lacked probable cause. The Court found neither. Notwithstanding the weaknesses in the affidavit, the Court concluded that there were enough indicia of probable cause to support Massey’s reliance on it. Massey was therefore entitled to a qualified immunity defense.

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HANSON v. DANE COUNTY (June 15, 2010)

The 911 line was dead when the Dane County dispatcher picked it up. The dispatcher called the number back but there was no answer. The police were alerted. When the police arrived at the home of David and Karen Hanson, Karen asked them to leave. She advised the police that she had called 911 but could not remember why -- she also said that she and David had been arguing but that she could not remember why. The officers continued their investigation. They questioned David and Karen separately and also questioned the couple's 15 and 13-year-old daughters. David ultimately admitted that Karen had called 911 after he "bumped" her during a heated argument. The police arrested David and charged him with domestic battery. The charges were dropped when Karen refused to cooperate. David Hanson filed suit pursuant to § 1983 alleging violations of the Fourth, Fifth, and Fourteenth Amendments. Judge Crabb (W.D. Wis.) granted summary judgment to the defendants. Hanson appeals.

In their opinion, Chief Judge Easterbrook and Judges Cudahy and Manion affirmed. The Court first rejected Hanson's argument that the police entry was without probable cause in violation of the Fourth Amendment. The Court concluded that an unanswered 911 callback itself provides probable cause. The Court also rejected the argument that the officers violated the Fourth Amendment by remaining on the premises after Karen asked them to leave. Her demeanor and her obviously false statements that she could not remember why she called or why she and David were fighting support the reasonableness of the officers' actions. The officers also acted reasonably in questioning the children given David and Karen's lack of cooperation. In addition, any substantive due process rights would belong to the children, who are not parties directly or indirectly. Finally, the Court rejected David's claim that his separate questioning amounted to a custodial interrogation and that the officers "violated" Miranda by not delivering its warnings. Although the district court had resolved the issue on qualified immunity grounds by concluding that a reasonable officer would not have found the interrogation "custodial," the Court found that analysis unnecessary. The Miranda doctrine governs the use in court of incriminatory statements. It does not prohibit a compelled statement nor does it allow a claim of damages for the failure to provide the warning.

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CARMICHAEL v. VILLAGE OF PALATINE (May 21, 2010)

Palatine police officer Timothy Sharkey stopped an automobile being driven by Albert Carmichael and Keith Sawyer as they returned to their motel parking lot. Sharkey searched both Carmichael and the automobile. He found marijuana and cocaine. When asked why he had pulled them over, Sharkey stated that it was because the automobile lacked a front license plate and had tinted windows. After fellow officer Steve Bushore arrived, Sharkey conducted a search of Sawyer. In the motel parking lot, he pulled Sawyer's pants down and shined a flashlight into his underwear. The officers let Sawyer go but arrested Carmichael on drug charges. They also cited him for having no functioning taillights. In his report, Officer Sharkey made no mention of the tinted windows or absence of front license plate. At a hearing on a motion to suppress the evidence, Sharkey testified that the reason for his stop was the non-functioning tail lights, not the license plate or tinted window. Other testimony established that the tail lights were functioning at the time of the stop. The trial judge suppressed the evidence and all charges were dropped. Carmichael and Sawyer sued the Village and the officers under § 1983. They alleged unreasonable search and seizure, false arrest, and excessive force, as well as state law claims. Judge Kendall (N.D. Ill.) granted summary judgment to the defendants. She concluded, on the search and seizure claim, that the fact that a window was tinted and the front plate was missing provided probable cause. On Sawyer's unreasonable search claim, she concluded that it was constitutional without any detailed examination of the manner in which it was carried out. The court found the remainder of the claims waived. Carmichael and Sawyer appeal.

In their opinion, Judges Ripple, Manion, and Williams affirmed in part and reversed and remanded in part. A traffic stop is reasonable, said the Court, if the police have probable cause to believe that a violation has occurred. The inquiry is an objective one and focuses on what the officer knew at the moment of the stop. Here, the tinted window and missing license plate did constitute moving violations and could have supported a stop of the vehicle. However, the uncontroverted evidence is that Officer Sharkey was not aware of either violation at the time to stop. Therefore, probable cause did not exist. For much the same reason, the Court concluded that Sharkey was not entitled to qualified immunity. The Court also found summary judgment with respect to the search of Sawyer in error. Although the defendants purported to request summary judgment on all counts, they made no mention of this search in their brief in the district court. They bear the initial burden of demonstrating that the summary judgment requirements are met -- they failed to do so. Conversely, the district court was correct in concluding that the plaintiffs waived the remainder of their federal and state law claims because of their perfunctory response to the defendants' request for summary judgment on those issues.

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OGDEN V. ATTERHOLT (MAY 18, 2010)

In late 2006, Paul Ogden was hired as the manager of the Title Insurance Division of the Indiana Department of Insurance. He reported to Carol Mihalik, the head of the Consumer Protection Unit. Mihalik in turn reported to James Atterholt, the Commissioner. From early on, Ogden was critical of Mihalik. He even managed to avoid her and report directly to Atterholt on some of his projects. In September 2007, Ogden took two separate steps related to Mihalik. First, he filed a formal complaint with the State Personnel Division, complaining that Mihalik did not follow hiring regulations, misused funds, and fostered a hostile work environment. A few days later, he delivered a memorandum to Atterholt requesting that his division be removed from the Mihalik’s Unit. Almost all of the reasons in support of his request referred to Mihalik’s incompetence or dishonesty. Many of them repeated items from his formal complaint. He did not refer to his formal complaint, however, nor did the memorandum suggest the need for any discipline. A few hours after receiving the memorandum, Atterholt summoned Ogden to his office and gave him an opportunity to resign or be fired. Ogden resigned -- but then sued the Department, Atterholt, and Mihalik. He claimed a violation of his First Amendment rights under § 1983. Magistrate Judge Magnus-Stinson (S.D. Ind.) granted summary judgment to the defendants. Ogden appeals.

In their opinion, Judges Williams, Sykes, and Tinder affirmed. The only First Amendment issue addressed by the Court was whether Ogden's speech was constitutionally protected. Relying on the Supreme Court's decision in Garcetti, the Court held that it was not. Garcetti tells us that public employees' speech is not constitutionally protected when the statements are made "pursuant to their official duties." Here, the Court concluded that the memorandum was simply a request for departmental reorganization – a request which fell squarely within the scope of his official duties. Although many of the reasons given alleged incompetence and dishonesty on the part of his superior, they were all made in support of this effort to convince Atterholt of the need to reorganize.

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KODISH v. OAKBROOK TERRACE FIRE PROTECTION DISTRICT (May 10, 2010)

Brian Kodish began work as a full-time firefighter and paramedic for Oakbrook Terrace in June of 2003. The Illinois Fire Protection Act prohibits the termination of a firefighter without just cause after the firefighter has "held that position for one year." In March of 2004, Kodish went on leave for a knee surgery. While he was out, he received a letter indicating that the District was going to extend his 12-month probationary period for 90 days. Although the evaluations he had received in his first nine months contained some positive remarks, Kodish was evaluated as "fair" in most categories. He was criticized for a lack of motivation, poor communication skills, and an inability to follow authority. Kodish returned from leave on July 24. On August 11, the District Board decided to terminate his employment. He filed suit against the District under § 1983, alleging a violation of his due process rights. He also alleged that he was fired in retaliation for speaking out on union issues. The district court granted summary judgment to the defendants. Kodish appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner reversed. The Court first addressed the existence of a property right, a prerequisite for the federal due process claim. Of course, Kodish had passed his one-year anniversary before he was fired -- but, because of his four-month leave, he only actually worked a little over ten months. The Court looked to Illinois law to determine whether Kodish was protected. No Illinois court has interpreted the "held that position" language of the Act. The Court looked to Illinois decisions with respect to analogous statutes and concluded that the Illinois Supreme Court would read the plain language of the Act to impose a simple twelve-month employment requirement for the creation of the property interest. The Court rejected defendants' other arguments based on the Illinois Municipal Code and the District’s own Wage and Benefit Policy as either in applicable (in the case of the Code) or not controlling (in the case of the Policy) -- and reversed the district court's conclusion that Kodish had no property interest in continued employment. The Court then addressed Kodish's First Amendment claim. It quickly concluded that Kodish met two of the three requirements of the claim -- that the speech was protected speech and that he suffered a deprivation. In addressing the third requirement -- whether he would have been terminated but for his speech -- the Court reviewed his mixed employment evaluations as well as the evidence of the fire chief's opinion of Kodish's speech. The Court disagreed with the district court's conclusion that the only reasonable conclusion for his discharge was his employment record. Although the Court found that theory "plausible," it also found the alternate theory -- that he was fired for his speech -- one that a reasonable jury could adopt. In concluding that the First Amendment claim should have survived summary judgment, the Court also concluded that Kodish presented sufficient evidence that the fire chief's animus should be attributed to the District under either the "singular influence" or the "motivating factor" test.

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WRAGG v. VILLAGE OF THORNTON (May 7, 2010)

In 1997, Thornton Village President Jack Swan received an anonymous complaint that a village police officer had molested a minor boy. A few months later, with Swan's knowledge, the officer resigned and sought treatment for a cocaine habit. A few years later, Swan appointed that same officer the Village's fire chief. Soon thereafter, he was found molesting another minor boy, a member of the Village’s fire cadet program. The chief's propensities were the subject of much conversation throughout the department. A few years later, the chief was arrested for molesting yet another boy, also a fire cadet. Swan removed the chief from his post. The cadet sued the Village under § 1983, asserting that the Village retained the fire chief knowing his history of molesting minors and that their deliberate indifference violated his substantive due process rights. The court granted summary judgment to the Village. The cadet appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Wood affirmed. The Court acknowledged that the fire chief was a state actor and the cadet had a substantive due process right not to be harmed by him. Whether the Village was liable under Monell, however, depends on whether the injury was caused by an express policy or a widespread practice, or by a "person with final policymaking authority." Because the cadet alleged neither an express policy or widespread practice, the Court focused on whether the injury was caused by a person with final policymaking authority. The Court identified an issue of fact with respect to that inquiry. The Board of Trustees certainly had final power to appoint and remove the fire chief. The Court found it unclear, however, whether Swan had final authority to retain him. Either way, however, the claim failed. With respect to the board, the cadet presented evidence only with respect to one member. Municipal liability under Monell cannot be based on the isolated act of one member of a multi-member board. With respect to Swan, the Court concluded that the evidence was insufficient for a reasonable jury to find that Swan was on notice that the retention of the chief posed a substantial risk to the cadet. The Court conceded that there were "storm warnings" regarding the fire chief -- but found none of them sufficient to establish the deliberate indifference necessary for municipal liability.

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FOX v. HAYES (April 7, 2010)

Kevin and Melissa Fox and their children, six-year-old Tyler and three-year-old Riley, lived in a small town in Will County, Illinois, about 60 miles from Chicago. On June 6, 2004, Tyler woke his father up at about 8:00 a.m. and told him Riley was missing -- Melissa had spent the night in Chicago. Riley's lifeless body was found in a nearby forest preserve several hours later. Although the parties’ versions of the investigation vary wildly, the jury could have found the following. Will County detectives, including Scott Swearengen, conducted the investigation. At some point, Swearengen began to suspect Kevin. On October 26, the Foxes were asked to come to the station to talk about the case. Although they thought they were about to receive new information about the murder, they were mistaken. They were immediately separated. Melissa was locked in a waiting area and told that an officer would be with her shortly. Instead, she was left alone for almost 4 hours. Meanwhile, Kevin was taken to an interrogation room where Swearengen accused him of killing Riley. The officers falsely told Kevin that they had fiber evidence implicating him and a surveillance tape showing him driving his SUV during the night. Kevin took a polygraph examination, which the officers told him that he failed. When Melissa offered her love and support to Kevin, Detective Hayes started screaming. He screamed at his fellow officers to remove Melissa from the room, he screamed at Kevin that he was a "f***ing murderer," and he screamed at Melissa. Continuing to use a lot of profanity, he screamed at Melissa that Kevin was a liar and a murderer, that he never loved her, that he killed her daughter, and that she had to "get over it." After that episode, the detectives continued the interrogation of Kevin. Hayes told Kevin that if he did not confess, he would make sure that Kevin was raped every day he was in prison. At one point, Swearengen told Kevin that the state's attorney would give him a deal if he admitted that he accidentally killed his daughter. He told him he would be out on bond the very next day and wood only have to serve 3-5 years in prison. Kevin decided to go along with the story and "confessed." He immediately renounced the confession the next morning when he was allowed to meet with a lawyer. Months later, his defense team had the DNA evidence tested. The test results showed conclusively that the DNA found on Riley's body did not come from Kevin. Kevin was released the next day, after 243 days in jail. Kevin and Melissa brought suit under both § 1983 and Illinois law against several Will County detectives. Kevin's allegations included due process violations, false arrest, malicious prosecution, intentional infliction of emotional distress (IIED), and punitive damages. Melissa's claims include loss of consortium, IIED, and punitive damages. After a six-week trial, a jury awarded Kevin $9.3 million and Melissa $6.2 million. The trial judge struck some of the punitive damage award and dismissed the case against a detective whose estate had settled. The end result was an award of $12.2 million. The detectives appeal.

In their opinion, Judges Flaum, Evans, and Williams affirmed in part and reversed in vacated in part. The central issue on appeal is defendants' argument that they had probable cause to arrest Kevin and are therefore entitled to qualified immunity on all the counts except the IIED claim. In order to resolve that issue, the Court had to identify the earliest time that the jury could have found Kevin to be under arrest and then assess whether a reasonable jury could have found that the defendants lacked probable cause to arrest Kevin at that time. On the first question, the Court had little difficulty identifying a time early in the interrogation when Kevin tried to leave the room and was told to sit down. The fact that he did not specifically ask to leave is only one factor in the analysis. Here the other factors --whether he knew he was a suspect of a crime, whether his movement was limited, whether the officers were engaged in a course of conduct, and whether he was in a private location -- all support a conclusion that he was under arrest. With respect to the second issue, the Court examined the long list of facts that the defendants argued supported probable cause. After it eliminated from the list facts that were disputed, irrelevant, or mischaracterized, the Court concluded that a reasonable jury could have concluded that they fell short of probable cause. On the merits of the defendants' argument that the substantive due process claim could not stand, the Court agreed with the defendants. It is well settled that a substantive due process claim cannot prevail where state law provides an adequate post-deprivation remedy. The state law false arrest and malicious prosecution claims do exactly that here -- the jury verdict on the due process claim must be set aside. The Court next upheld the verdict on Melissa's IIED claim. Although it agreed that the evidence of Melissa's distress was weak, it concluded that Hayes' abuse of authority in a particularly emotional environment was enough to uphold the claim. Finally, the Court addressed certain damage awards. Although it upheld a $2.7 million award for Melissa's loss of consortium because it found a rational connection between the award and the evidence, it concluded that the $1 million award on the IIED claim was excessive because there it lacked such a connection. The Court also concluded that the $1.6 million false arrest award to Kevin was not supported by the evidence since the false arrest award only covered the period of time between his arrest and the first issuance of process (36 hours). Instead of a new trial, however, the Court ordered a remittitur to $150,000 on Melissa's IIED claim and $16,000 on Kevin's false arrest claim.

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ESTATE OF ESCOBEDO v. BENDER (April 5, 2010)

At 4:24 on a summer morning in 2005, Rudy Escobedo called 911 and told the dispatcher that he was high on cocaine, armed, and suicidal. According to the complaint filed by his estate, the Fort Wayne Police grossly mishandled the situation. It alleges that, over the succeeding five hours, the police: a) engaged the Crisis Response Team and the Emergency Response Team, b) did not follow normal communication protocol, c) never complied with Escobedo's request to have his psychologist at the scene, d) decided to use teargas to force Escobedo from his apartment, e) actually used twelve times the incapacitating concentration of teargas, f) were forced to cut off communication with Escobedo because of the strength of the teargas and the location of the officer in communication with him, g) broke down his apartment door and threw in more teargas and a flash bang grenade, h) broke down the door to his bedroom and threw in more grenades, and i) shot and killed him. Escobedo never threatened anyone other than himself. Escobedo 's estate filed a complaint pursuant to § 1983, alleging that the use of the teargas and flash bang grenades constituted excessive force. On the individual officers' motion for summary judgment, the district court granted in part and denied in part. Its denial of the officers’ summary judgment motion on the excessive force claim was based on the courts' ruling that they were not entitled to qualified immunity. The individual officers appeal.

In their opinion, Circuit Judges Manion (concurring in part and dissenting in part) and Kanne and District Judge Kendall affirmed. The Court noted that the only issue before it was whether the individual officers were entitled to qualified immunity. Furthermore, the officers limited their appeal to the second prong of the Saucier qualified immunity test -- whether the law was clearly established at the time of the events in question that the use of teargas and flash bang grenades under the circumstances presented constituted excessive force. The estate has the burden of meeting the "clearly established" test but can do so in one of two ways: either by presenting a closely analogous case or by establishing that the conduct is so obviously a violation of constitutional rights that any reasonable0 officer would know. Although the Court briefly discussed the latter test, they declined to apply it because of its conclusions with respect to closely analogous case law. The Court addressed the case law with respect to teargas and flash bang grenades separately. With respect to teargas, the Court found controlling precedent and a clear trend in other circuits that the use of teargas is unreasonable when: a) the target is an individual, b) the individual poses no actual threat, c) there are no hostages, d) the individual has not committed a crime and is not attempting to flee, e) the individual, though suicidal, is not homicidal, and f) the individual suffers some incapacity. The Court found those elements present here. With respect to flash bang grenades, the Court noted that it had earlier found the use of such devices reasonable in Molina. It distinguished Molina, however, on the grounds that the officers there had serious personal safety concerns. It then cited dicta from other circuit cases which suggests that the use of the devices might not be reasonable if used in close proximity to a suspect or when the suspect is not dangerous. Although recognizing the relative dearth of precedent in the area and the lack of any precise guidance, the Court concluded that the holdings and dicta in the cases that do exist clearly show that the use of the device in the circumstances of this case is unreasonable.

Judge Manion concurred in part and dissented in part. With respect to the teargas, he agreed with the result although he would have reached it under the patently obvious violation route rather than the closely analogous case law route. He disagreed, however with the Court's conclusion on the use of flash bang devices. Judge Manion criticized the majority's treatment of Molina. Although he agreed that the cases were distinguishable, he considers Molina the leading authority in the circuit on the issue and should not have been limited to its facts in favor of dicta from other cases. Even the dicta in the other cases, he believed, did not come close to meeting the "clearly established" standard.

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WRIGHTSELL v. COOK COUNTY (March 31, 2010)

Lance Wrightsell is a former prisoner of the Cook County Jail. He brought an action against the County pursuant to § 1983. He alleged that the County's practice of making only one dentist available to the 10,000 inmates of the jail constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. After the district court denied his request for class certification, he agreed to an offer of judgment of $10,000 and renounced his right to appeal. John Smentek, another former inmate, also had a class action pending in the district court -- against the same defendant, alleging the same constitutional violation, and represented by the same attorney. Wrightsell, notwithstanding his renunciation, appeals the district court's denial of class certification. Smentek petitions for leave to intervene in the appeal.

In their opinion, Judges Posner, Wood, and Tinder denied the petition to intervene and dismissed the appeal. The Court addressed some of the complexities involved in class actions and appeals -- for example, the distinction between the named plaintiff as plaintiff and as class representative and the distinction between voluntary and involuntary settlements. Here, the named plaintiff, after denial of class certification, settled his individual claim and waived his right to appeal as class representative. The Court noted competing policy considerations but concluded that Wrightsell resigned his representative status when he waived his right to appeal. Thus, his appeal should be dismissed. The fact that Wrightsell settled, however, does not affect the rights of the other potential class members, including Smentek. But a potential class member who wishes to appeal the denial of class certification must first seek to intervene in the district court and must do so within the time period for filing a notice of appeal. Smentek did not -- his petition to intervene should be denied.

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BROWN v. CITY OF CHICAGO (March 30, 2010)

Chicago police officers Blackman and Long were on a plain-clothes detail in a Chicago neighborhood when they observed what they believed was an illegal drug transaction. During their pursuit of the suspects, Blackman came across Arthur Brown. According to Blackman, Brown was holding a gun. When he failed to follow the officer's orders to drop it, Blackman shot him several times. According to Brown and another witness, he did not have a gun. Instead, Brown claims that Blackman shot him in the back and then planted a gun in his hand. Brown was charged and convicted of several counts of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon. His conviction was affirmed. Nevertheless, Brown brought a § 1983 complaint against Blackman, alleging that Blackman's conduct amounted to the excessive use of force in violation of the Constitution. The district court granted summary judgment to Blackman, concluding that the complaint was barred by collateral estoppel. Brown appeals.

In their opinion, Chief Judge Easterbrook and Judges Manion and Tinder affirmed. The Court noted that Brown conceded that the elements of collateral estoppel existed in the case. Instead, he argued that two exceptions to the rule applied: that he was denied a fair hearing and that new evidence made the rule’s application unfair. The Court agreed that Brown's exceptions to the application of collateral estoppel were recognized in Illinois. However, the Court rejected their application in this case. First, with respect to the fair hearing exception, the Court concluded that the two evidentiary issue rulings at his criminal trial did not deny Brown a fair hearing. The third ground on which he based his “fair hearing” argument was the accusation by the prosecutor that Brown and his attorney made up a theory of conspiracy by police officers in order to “cash in” in a civil action against the City. The state appellate court found the remarks improper but did not reverse the conviction. Likewise, the Court found that the remarks, though improper, did not amount to the deprivation of a fair hearing. Second, with respect to the new evidence exception, the Court concluded that any discrepancy between a witness’ testimony in Brown's criminal trial and his deposition testimony in the § 1983 case was not significant enough to create the type of injustice that would bar the application of collateral estoppel.

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SANDRA T.E. v. GRINDLE (March 17, 2010)

Three female elementary school classmates at Pershing Elementary School attended a seminar on "inappropriate touching" at their school in May of 2001. After the seminar, they wrote a short letter to the presenter stating that they were uncomfortable with the conduct of their band teacher. The presenter shared the note with Karen Grindle, Pershing's principal. Although Grindle met with the band teacher, the students, some parents, and the school's social worker, the accounts of their meetings varied. The allegations are that Grindle downplayed the significance and the seriousness of the accusations. Additional incidents surfaced in January and April of the following year. Again, Grindle is alleged to have minimized the significance of the incidents. One of the students who wrote the original letter in 2001 revealed to her mother, in 2005, her version of what happened. Her mother informed the police, a criminal investigation was launched, other victims came forward, and the band teacher pleaded guilty to multiple counts of aggravated criminal sexual abuse. Several of the children and their parents filed an action pursuant to section 1983, alleging a violation of their equal protection and substantive due process rights. The district court granted summary judgment on the section 1983 claim to all defendants except Grindle and the band teacher. Grindle appeals.

In their opinion, Judges Flaum, Rovner, and Hamilton affirmed. The basis of Grindle's appeal is her claim to qualified immunity. The Court recited the familiar two-part test: whether a constitutional right was violated, and whether the right was "clearly established" at the time of the conduct. With respect to the equal protection claim, the Court concluded that well-developed law at the time of Grindle's conduct held that a supervisor could be liable for deliberately ignoring an equal protection violation of her subordinate. In addition, the sexual harassment by the subordinate was a well-established equal protection violation. The Court concluded that plaintiffs presented sufficient evidence from which a jury could infer that Grindle intentionally discriminated against the girls to withstand summary judgment. With respect to the substantive due process claim, Grindle argued that she had no duty to protect the students from the abuse at the hands of the band teacher. The Court agreed that state officials do not generally have an obligation to protect citizens from violence, but noted the "special relationship" exception to that rule. Although the Court agreed that it had once rejected the "special relationship" theory in the student context, it also noted that the Third Circuit held otherwise in Stoneking. The Stoneking decision has been recognized in the circuit as one that is viable and, in fact, has been followed on several occasions in the district courts of the circuit. The Court concluded that a reasonable elementary school principal should have concluded that she could be liable for ignoring, or even covering up, a teacher's sexual abuse of a student. Finally, the Court noted that the plaintiffs allege that Grindle's own actions establish the constitutional violation, and not just her mere failure to act or prevent. Thus, they meet the test of Iqbal.

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MINIX v. CANARECCI (February 26, 2010)

While on leave from a mental hospital where he was a patient, Gregory Zick was arrested and incarcerated in the St. Joseph County Jail. The jail provided medical and mental health services through contracts with third-party vendors Memorial Home Care and Madison Center. Jail personnel became aware during Zick's booking that he had attempted suicide in the past and was taking medications to treat his suicidal thoughts. Zick was originally put in medical segregation and on suicide watch. He was transferred into the general population, however, a few days later after he denied having suicidal thoughts. About a month later, he was placed back in medical segregation after he refused to take his medication and a jail officer noticed a razor blade missing. Again, after a few days, he was released from medical segregation because he was alert and denied thoughts of suicide. Later that night, he hanged himself with a bed sheet. Cathy Minix, his personal representative, brought an action pursuant to § 1983 against the Sheriff, the medical providers, and several jail employees. She alleged violations of the Eighth and Fourteenth Amendments based on the defendants' display of deliberate indifference. The district court granted summary judgment to all defendants except the Sheriff. Minix then accepted an offer of judgment from the Sheriff. She appeals the summary judgment rulings in favor of Memorial Home Care and its employee Dr. David, Madison Center and its employee Christine Lonz, and the supervisor of the nursing staff, Jeanne James.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. The Court first addressed its jurisdiction, in light of the offer of judgment and its acceptance. Since the claim against the Sheriff was against him in his official capacity, and therefore could not have included punitive damages under § 1983, the punitive damage claims against the other defendants present a live controversy, even if the acceptance of the offer of judgment limits additional compensatory damages. On the merits, the Court first identified the two elements of an inadequate medical care claim under the Eighth or Fourteenth Amendment: a substantial risk to one's safety because of an objectively serious harm, and deliberate indifference to that risk. A jail suicide case automatically satisfies the first element. The second element requires that each defendant know that there is a substantial risk of suicide -- and intentionally disregard it. The Court addressed each defendant under that standard and found summary judgment proper in each case: a) Lonz was unaware of Zick’s suicidal history or thoughts, b) there was no evidence that Madison Center adopted or condoned any unconstitutional policy and there was no causal link between any Madison Center practice and the suicide, c) Zick's behavior in segregation did not provide Nurse James with actual knowledge of a substantial risk of suicide, d) Dr. David was not directly involved in Zick's treatment, and e) there was a lack of evidence that Memorial Home condoned or adopted an unconstitutional practice.

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WHITLOCK v. BROWN (February 24, 2010)

The Whitlocks were camping with their daughter at the Indiana Dunes State Park in July of 2005. They came across some personal property at what appeared to be a deserted camp site. They put the items in their vehicle and told a neighboring camper that they would turn it in to park rangers. Instead of turning it in immediately, however, they left the park and went shopping. Upon their return, they left a voicemail for the property owner (having obtained his number from information found in the property) advising him that they had his property and were going to leave it with the park ranger. The owner of the property had already reported it missing and park authorities were investigating. When the Whitlocks eventually turned in the property, they were accused of theft. The investigation confirmed the Whitlocks' explanation. State investigator Brown prepared a case report and an "Affidavit for Probable Clause." He sent the affidavit to the local county prosecutor's office, and there is a dispute over whether he attached his case report to it. The Whitlocks were charged with conversion and an arrest warrant was issued. When they were stopped for a traffic violation a month later, they were arrested and held in jail for four days before the prosecutor dropped the charges. The Whitlocks sued Brown under § 1983, specifically alleging that he withheld their explanation for why they held the property for so long from his case report or application for a warrant. The district court concluded that Brown did violate their Fourth Amendment rights by withholding the exculpatory information but also concluded that he was entitled to qualified immunity because a reasonable officer could have believed that probable cause to arrest the Whitlocks existed. The Whitlocks appeal.

In their opinion, Circuit Judges Posner and Sykes and District Judge Dow affirmed. Qualified immunity, stated the Court, involves two inquiries: whether there is a constitutional violation and whether a reasonable officer, considering clearly established law, would have known his actions were unconstitutional. Here, the claim is that Brown intentionally or recklessly withheld exculpatory information from the prosecutor, which could overcome the general presumption of the validity of the warrant. The information omitted, however, must be material to the existence of probable cause. The Court first addressed the alleged withholding of the case report itself. The district court had concluded that Brown withheld the report, inferring so from its absence from the prosecutor's file. The Court disagreed. Brown testified that he had submitted the case report. Although self-serving, the testimony was not speculation and was based on Brown's personal knowledge. In contrast, the Whitlocks presented no evidence or reasonable inference that the report was not sent. Although therefore concluding that the report itself was not withheld, the Court also considered an omission in the report -- Brown's failure to include the Whitlock's innocent explanation for why they did not turn in the property immediately. The Court turned to the materiality of that missing information. The statute upon which the warrant was based prohibits "unauthorized control over property" of another. It does not require an intent to permanently deprive. Although the Court hypothesized a situation in which the explanation could be material under a theory of implied consent from the owner of lost property, it found no such theory recognized under Indiana law. The Court concluded that a reasonable officer would not have known if the innocent explanation was material to probable cause and that Brown was therefore entitled to qualified immunity.

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PARISH v. CHICAGO (February 3, 2010)

Michael Parish was arrested in May of 2005 and held in custody until June of 2007, when he was acquitted of a murder charge. Parish brought suit against the City of Chicago and several police officers under § 1983, claiming malicious prosecution in violation of the Fourth Amendment. He alleged, among other findings, that the officers suppressed favorable evidence, prepared false reports, and fabricated evidence. Parish conceded in the district court that the prevailing Seventh Circuit precedent of Newsome precluded his claim. The district court dismissed. Parish appeals

In their opinion, Judges Coffey, Evans, and Williams affirmed. In Newsome, the Seventh Circuit held that the existence of a state law malicious prosecution claim precludes a constitutional tort under the due process clause. Parish concedes as much but seeks reconsideration of Newsome in light of a footnote in the Supreme Court's subsequent opinion in Wallace. In that footnote, the Supreme Court stated that it had never and was not evaluating a §1983 Fourth Amendment malicious prosecution claim. The Court noted that it had already once rejected an invitation to revisit Newsome in Johnson v. Saville. It saw no reason to do so now. However, as an aside, the Court stated that Newsome did not preclude a Brady-type due process claim. Given Parish's allegations, he may well have had such a claim after his acquittal.

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GAYTON v. MCCOY (January 28, 2010)

India Taylor had a life-threatening heart condition. She took six different medications to treat the condition. The six drugs were not the only drugs Taylor took – she was also a heroin user. Taylor was arrested on four different occasions in the summer of 2003. As a result, personnel at the Peoria County Jail became very familiar with her condition and her medications. Both her medical history and her prescriptions became part of her file. She was arrested again in October. Because she complained of chest pain, she was taken for a medical examination. Nurse Radcliffe knew her history and medications and asked her brother to bring her medications to the jail. She also made a notation that Taylor should see the doctor the next day if her medications did not arrive. The next day, Taylor complained of nausea on multiple occasions. By mid-afternoon, she was vomiting violently. The guards called the nurse, and even collected her vomit in a bag. Nurse Hibbert suspected that Taylor was faking her symptoms in order to get drugs and refused to see her. Although her name was on the list to see the doctor the next day, she died during the night. Lester Gayton, her brother and administrator of her estate, brought a wrongful death action pursuant to §1983. He named the sheriff, the jail superintendent, the doctor, three nurses, and the outsourced health care provider at the jail. The district court excluded the testimony of the plaintiff's medical expert and granted summary judgment to the defendants. Gayton appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed in part and reversed in part. The Court started with the district court’s exclusion of the medical expert, Dr. Weinstein. First, the Court concluded that the lower court erred in finding Weinstein unqualified to opine on the cause of death. In fact, Weinstein did not testify as to cause of death -- he simply adopted the other experts' conclusion that Taylor died of nonspecific heart failure. Next, the Court stated that the fact that Weinstein was not a cardiologist did not make him unqualified. Finally, with respect to the reliability of his specific conclusions, the Court considered each conclusion individually: a) the lower court properly barred the conclusion that Taylor might have lived had she been given her medication since he gave no basis for his opinion and claims no specific expertise regarding the medication, b) the court improperly barred his testimony that the combination of her vomiting and certain medications might have contributed to her heart failure since that opinion requires no specialized expertise, and c) although the court did not address it, Weinstein is an expert in prison healthcare and is qualified to give his opinion that prison medical personnel fell short of accepted standards of medical care.

The Court next addressed summary judgment. A cause of action for failure to provide adequate medical care requires a showing of a serious medical condition, deliberate indifference, and causation. The deliberate indifference element itself requires knowledge of the health risk and a disregarding of that risk. Given Taylor's serious heart condition, her complaints of chest pain and nausea, and her excessive vomiting, the Court had little difficulty in finding enough evidence of a serious medical condition to overcome summary judgment. On the issue of deliberate indifference, the Court analyzed each defendant separately: a) summary judgment was proper for the sheriff, the doctor, and the superintendent since they had no contact with Taylor and did not know of her request for medical attention, b) summary judgment was proper for the outsourced medical care organization since the plaintiff conceded that the medical policies were sufficient, thus precluding Monell liability, c) summary judgment was proper for two of the three nurses in that one acted reasonably and the other, although negligent, was not deliberately indifferent, and d) summary judgment in Nurse Hibbert’s favor was improper since a jury could find that her refusal to see Taylor despite strong indications that she was in need of medical treatment amounted to deliberate indifference. Finally, the Court also found sufficient evidence in the record on which a jury could find proximate causation between Nurse Hibbert’s conduct and a delay in treatment that exacerbated Taylor’s suffering.

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GILBERT v. ILLINOIS STATE BOARD OF EDUCATION (January 11, 2010)

For almost 20 years, Robert Gilbert was a high school social studies teacher -- and a highly regarded one at that. Apparently, he performed better as a teacher than as a colleague or employee. The school district eventually fired for insubordination. Gilbert contested his discharge administratively. After the district presented its evidence at the hearing, the hearing officer granted Gilbert's request to find in his favor. On review, the state appellate court reversed and remanded with instructions to reinstate the termination. Gilbert, concerned that the order would not allow him to reconvene the hearing and present his evidence, sought reconsideration in the appellate court and review in the state Supreme Court. He was unsuccessful. Gilbert then attempted, on remand to the circuit court, to get the state to reconvene the hearing. Again, he was unsuccessful. Instead of appealing that order, Gilbert filed suit in federal court. He asserted a due process claim and sought an injunction to reconvene the hearing and a declaration that his due process rights had been violated. The court dismissed the request for injunctive relief under the Rooker-Feldman doctrine, later (after a replacement of judge) dismissed the claim for declaratory relief for lack of standing, and denied several motions to amend. Gilbert appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court agreed that the claim for an injunction was barred by the Rooker-Feldman doctrine. That doctrine prevents a lower federal court from reviewing the decisions of a state court. Here, the Court concluded that granting Gilbert his requested relief would reverse the effect of the state court decision. Even Gilbert's argument that the state appellate court's decision did not preclude a reconvening of his hearing was presented to and rejected by the state court. With respect to the declaratory count, Gilbert did not contest the soundness of the ruling. He only argued that the second judge violated law-of-the-case principles when he dismissed the declaratory count after the first judge chose not to. The Court first noted that the law-of-the-case doctrine has no applicability on appeal. At the district court level, it is a deferential principal discouraging a later judge from reconsidering a prior judge’s ruling. On appeal, however, the Court simply decides whether the ultimate result was correct. As an aside, the Court also noted that the law-of-the-case principal has less applicability when a jurisdictional issue is involved and when the first judge never directly addressed the issue, both of which are present here. Because Gilbert did not even challenge the correctness of the dismissal of the declaratory count, the Court did not address the merits.

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BIVENS v. TRENT (January 6, 2010)
 

In his position as an officer in the Illinois State Police, Jimmy Bivens was responsible for the operations of an indoor firing range. He performed his job well. He greatly improved the conditions at the range and was commended for his work. After a few months of working at the range, however, Bivens began to feel quite ill. He was concerned that his symptoms were related to lead exposure at the range. Blood tests revealed highly elevated levels of lead. Bivens filed a union grievance, alleging unsafe working conditions. Within days, the range was tested and closed for remediation. Bivens' blood lead levels returned to normal within a few weeks and he returned to work. He only worked for one week, however, claiming that he continued to experience health problems. The State Police arranged for independent examinations by a neurologist and psychiatrist. Both found Bivens' health to be normal and approved his return to work. The State Police terminated Bivens' disability benefits. Bivens brought suit pursuant to §1983, alleging that his superiors violated the First Amendment by retaliating against him for filing the union grievance. The district court granted summary judgment to the defendants on the ground that his speech was not protected because it was part of his official duties. Bivens appeals.

In their opinion, Judges Posner, Manion and Evans affirmed. One of the several elements of Bivens' §1983 claim is that he engaged in speech protected by the Constitution. The Court agreed with the district court that Bivens had an obligation, as part of his job, to report his concerns about lead contamination. It also agreed that any such reports to his superiors would not be protected under the Supreme Court's Garcetti decision. Here, however, the speech was not through Bivens' chain of command but as a union grievance. The Court was unwilling to conclude, because of the availability of an alternative holding, that the union grievance could not be protected speech. To be protected, the speech must also address a matter of public concern. The Court looked to the content, the context and the form to determine whether the speech addressed a matter of public concern. The court concluded that the context -- Bivens' own illness -- and the form -- an internal union grievance -- were more consistent with the vindication of a private, rather than a public, interest. Although the content referenced a subject of potential public interest, the Court concluded that Bivens was not attempting, by his speech, to bring this safety issue into the open. Being purely private, the speech was not protected and retaliation claim fails. 

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AVILA v. PAPPAS (January 4, 2010)

Maria Avila was already in trouble. Her employer, the Cook County Treasurer's Office, was about to conduct a disciplinary hearing. Avila made it worse when she told one of her coworkers that she might "go postal." Her coworker advised her superiors. They not only added a disciplinary count for the implied threat and fired her but alerted the authorities. Avila was criminally prosecuted. The prosecutor charged a felony, taking the position that one of the targets of Avila's threat was a public official. Avila was acquitted, the court holding that he was not a public official. Avila filed suit against her superiors pursuant to §1983, alleging both constitutional violations and state law malicious prosecution. Although the court dismissed the federal counts, it retained the state law claim under supplemental jurisdiction and resolved it on the merits in favor of the defendants. Avila appeals the judgment on the state law claim.

In their opinion, Chief Judge Easterbrook and Judges Wood and Tinder vacated and remanded with instructions to dismiss for want of jurisdiction. The Court first addressed its jurisdiction. Although Avila asserted four federal law theories, the Court emphasized that a federal claim must have substance to create a basis for federal jurisdiction. The Court concluded that the federal claims -- substantive due process, conspiracy, failure to train, and equal protection -- were frivolous. The Court principally relied on the Supreme Court's decision in Albright and the Court's own decision in Newsome, holding that malicious prosecution does not violate the Constitution if state law recognizes it as a tort (which Illinois does).

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KNIGHT v. WISEMAN (December 22, 2009)

Shortly before Rick Knight began serving a prison term, he had surgery on his shoulder. Although he had no medical work restrictions, he did advise prison personnel of the surgery and some lingering pain. Nevertheless, several months later, he was transferred to a work camp. Prison inmates at the work camp participate in the work gangs, typically trimming trees and picking up roadside logs. At the camp, Knight participated in several work details without complaint, although he was generally successful in finding the less-strenuous tasks. On February 16, Knight was assigned to a work gang with Officers Wiseman and Wiedau. Although Knight again selected easier tasks, the officers insisted he do more. They were unaware of his shoulder complaints. The result -- he re-injured his shoulder throwing a log. A third officer returned Knight to the camp, although he took a short detour to run an errand on the way. Knight was diagnosed with a torn rotator cuff. He brought suit against the two officers pursuant to § 1983, alleging violations of this Eighth and Fourteenth Amendment rights. The district court granted summary judgment to the officers, concluding that they did not act with deliberate indifference. Knight appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. Two elements are required to state a claim for an Eighth amendment violation. There must be a serious medical condition and the plaintiff must demonstrate deliberate indifference on the part of the prison official to that condition. Deliberate indifference requires a showing that the defendant was actually aware of the serious medical condition. Here, there is no evidence in the record that the officers were aware of Knight's condition when they first ordered him to work. Although one of the officers ordered Knight back to work after his first complaint of pain, he quickly retracted his order when he realized the seriousness of Knight's injury. Finally, the Court rejected Knight's argument that the few hour delay in receiving treatment, including the brief detour, amounted to deliberate indifference. Such a claim would require medical evidence that showed his condition deteriorated due to the delay, which does not exist here.

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MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION v. CLARKE (December 4, 2009)

The Milwaukee County Sheriff, David Clarke, invited a religious group, the Fellowship of the Christian Centurions, to attend and speak at a department leadership conference. All deputies above the rank of sergeant were required to attend. At the conference, Clarke announced some upcoming promotions, distributed written material with quotations from the Bible, and described "people of faith" as one of the qualities he was looking for in a leader. One of the Centurions then spoke and distributed additional material. After the conference, representatives of the Centurions also made presentations and distributed flyers at a number of mandatory roll calls. Two deputies, and their union, brought suit under § 1983. They alleged a violation of the Establishment Clause and the Free Exercise Clause of the First Amendment. The court granted summary judgment to the plaintiffs on the Establishment Clause claim. The defendants appeal.

In their opinion, Judges Bauer, Cudahy and Williams affirmed. Under the Establishment Clause, government action may not: a) have a non-secular purpose, b) have the principal effect of advancing or inhibiting religion, or c) foster an excessive government entanglement with religion. Although the first prong requires an analysis of the government's actual purpose, the second does not. A violation can be established if a reasonable person would conclude that the government action amounted to an endorsement of religion. Here, very few outside organizations have the kind of access given to the Centurions -- and those that were were organizations that partnered with the department in some fashion. The Court concluded that a reasonable observer would interpret the Sheriff's actions as an endorsement, although it was careful to limit its conclusion to the facts presented. In its analysis, the Court also rejected the Sheriff's argument that the First Amendment compelled him to grant access to the Centurions. The Court reasoned that the Sheriff did not create a forum of any kind by having a department meeting or a roll call. The Centurions were not looking for a place to speak -- they were looking for a specific audience to speak to. The Sheriff was not required to give that access.

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THOMAS v. COOK COUNTY SHERIFF'S DEPARTMENT (December 1, 2009)

Norman Smith was arrested by the Chicago police on April 23, 2004. He was delivered to the Cook County Jail on April 24, where he was scheduled to remain until his trial date. An intake medical examination showed elevated blood pressure but no other medical problems. Smith showed symptoms of something more serious, however, from that first day. He was dizzy and vomiting. His symptoms became more serious over the next several days. Despite repeated requests by Smith and by other detainees on his behalf for medical assistance, he received none. On April 30, his cellmate discovered Smith convulsing on the floor. The cellmate reported it immediately to the officer on duty. There was a significant delay before Smith received any treatment. He died that morning of pneumococcal meningitis. His mother, Marlita Thomas, brought a § 1983 case against a number of individual correctional officers, the Cook County Sheriff and Cook County. A jury awarded Thomas $4,450,000 against the County, the Sheriff and three correctional officers. The jury then allocated the damages amongst the defendants. The court denied the defendants' motions for judgment as a matter of law or for a new trial. The defendants appeal.

In their opinion, Judges Flaum, Wood and Williams affirmed in part and reversed and remanded in part. The Court first addressed the verdict against the individual officers. In order to prevail, the Court stated that a plaintiff must demonstrate that a medical condition is objectively serious, that the defendant has subjective knowledge of the health risk and the defendant disregarded the risk. The Court concluded that there was sufficient evidence in the record to allow a jury to conclude that the individual officers knew about Smith's health risk and ignored it. Thus, the verdict is affirmed. The Court next addressed the verdict against the County. The County can be liable only if the unconstitutional act is the result of an official policy or a widespread practice or custom or is caused by an official with policy-making authority. The Court refused to adopt a bright-line test on how widespread a policy need be, but noted that it must be more than a random event. The Court concluded that there was sufficient evidence of a widespread policy: a failure to review medical requests, a failure to collect medical requests, keeping request forms in a locked box, etc. Thus, the verdict against the County was affirmed. The Court next addressed the verdict against the Sheriff. The basis for imposing liability under Monell against the Sheriff was his policy of severely understaffing the jail. In order to sustain the verdict, there must be a causal link between the policy and the unconstitutional act. Here, the individual officers were found liable based on their deliberate indifference to Smith's medical needs. The Court found no relationship between the officers' conduct and the understaffing. The Court concluded that the understaffing theory was too remote to support the verdict. Thus, the Court reversed for entry of judgment in the Sheriff's favor. After rejecting several evidentiary arguments of the defendants, the Court addressed the verdict. On the verdict form, the jury entered $150,000 against the officers, $3 million against the County, and $1 million against the Sheriff. This allocation was improper, in that the defendants were jointly and severally liable for one indivisible injury. It raised the question of whether the total damages is the sum of all of the damage awards, or the highest single assessment. The Court presumed that the jury followed instructions to not award duplicate damages and concluded that adding the damage awards would be proper. Under that analysis, the award against the Sheriff ($1 million) remains as part of the verdict against the County and individual officers, notwithstanding the reversal of the verdict against the Sheriff. Finally, the Court rejected the defendants' argument that the award was excessive.

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FORD v. MINTEQ SHAPES AND SERVICES (November 24, 2009)

Dennis Ford has been employed as a forklift operator for Minteq for many years. Throughout those years, he has been the only African-American employee at his facility. In 2007, Ford brought a race discrimination claim against Minteq. He complained that a coworker referred to him as "black man," that a supervisor called him a guerrilla, that he was not allowed to bring his grandchildren to a holiday party and that he was retaliated against for seeking outside medical attention for an on-the-job injury. The district court granted summary judgment to Minteq. Ford appeals.

In their opinion, Judges Bauer and Wood affirmed. The Court noted that Ford's racial harassment claim required proof of an abusive work environment. The factors to be considered in determining whether the employer's conduct is severe and pervasive are the frequency and severity of the conduct, whether it is physically threatening and whether it interferes with the complainant's job. The Court concluded that Ford's complaints, individually and in the aggregate, did not rise to that level. Specifically with respect to the "black man" comments, the fact that Ford complained only once and never followed up with his employer on that complaint would not allow a reasonable juror to find that it rose to the level of harassment. The Court also concluded that Ford failed to present sufficient evidence on his disparate pay and retaliation claims to reach a jury.

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BLOCH v. FRISCHHOLZ (November 13, 2009)

The Blochs have owned and occupied several units in the Shoreline Towers condominium building in Chicago for years. The Blochs are Jewish – each of them has, for years, displayed a mezuzah on the doorpost of his or her unit. In 2001, the Board of Managers of the Condo Association enacted a new rule that prohibited the placement of "objects of any sort" outside any unit in the building. For several years, enforcement of the rule was generally limited to the removal of clutter. In 2004, however, the Association begin to interpret the rule to include a mezuzah (as well as wreaths, crucifixes, political posters, etc.). Despite repeated appeals and attempts to educate the Board on the religious significance of a mezuzah, the practice continued. The Blochs filed suit, seeking relief under the Fair Housing Act (FHA) and 42 U.S.C . § 1982. The district court granted summary judgment to the defendants. A panel of the Seventh Circuit affirmed, with one dissent. The Blochs sought rehearing en banc.

In their opinion, Chief Judge Easterbrook and Judges Bauer, Posner, Kanne, Wood, Evans, Sykes and Tinder affirmed in part and reversed and remanded in part. The Blochs asserted three separate FHA theories -- the Court addressed each in turn. Under § 3604(a), it is unlawful to "refuse to sell or rent" or to "refuse to negotiate for the sale or rental" or to "otherwise make unavailable" a dwelling to a person because of religion. Referring to its decision in Halprin, the Court stated that the FHA is generally concerned with access to housing and does not support a claim of discrimination arising after a purchase. Although the Court thought the section might support a constructive eviction claim, it concluded that the Blochs could not maintain such a claim since they never vacated the premises. The Court affirmed with respect to § 3604(a). Section 3604(b) prohibits discrimination based on religion against any person in the terms or conditions of the sale or rental of a dwelling. The Court concluded that one of the terms and conditions of the Blochs' purchase of a condominium unit was their agreement to be governed by the Condo Association and its Board of Managers. Although § 3604(b) does not address isolated discriminatory conduct of neighbors, the Court concluded that it did prohibit the Association from discriminating against the Blochs in its enforcement of its rules. The Blocks could rely on § 3604(b) if they produced sufficient evidence of discrimination. Thirdly, the Court considered § 3617 of the FHA. That section makes it unlawful to "coerce, intimidate, threaten, or interfere" with any person's exercise or enjoyment of any right granted by other sections of the FHA. The Court concluded, effectively overruling part of Halprin, that the interference could occur post-purchase. Like their claim under § 3604(b), the Court concluded that the Blochs could pursue a claim under § 3617 if there were sufficient evidence of discriminatory intent. On the issue of discriminatory intent, the Court concluded that the combination of facts and inferences on the record was sufficient to allow a jury to conclude that the conduct of the Association was intentionally discriminatory toward the Blochs because of their religion.

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GUNVILLE v. WALKER (October 9, 2009)

Robert Gunville and Richard Oakley had both worked for the Illinois Department of Corrections for over twenty years, all during Republican administrations, when a Democratic governor was elected in 2003. Both were laid off within months of the new administration’s inauguration. Gunville was an active member of the Republican Party while Oakley had a record of voting in Republican primaries. Gunville and Oakley brought suit, alleging a violation of their First Amendment rights. They also allege a violation of their Fourteenth Amendment rights as a result of their placement on a reemployment list for only their last county of employment. The district court granted summary judgment to the defendants. Gunville and Oakley appeal.

In their opinion, Judges Manion, Rovner and Sykes affirmed. In first addressing their First Amendment claim, the Court noted that there was no dispute that their speech was constitutionally protected and that they suffered a deprivation. The issue on appeal was whether the layoff came as a result of their political affiliation. In order to establish the unlawful motivation, the plaintiffs must first establish that the defendants knew of their political affiliation. After concurring with the district court's hearsay ruling on one particular statement, the Court concluded that there was a complete absence of evidence that the persons deciding which jobs to eliminate knew of plaintiffs' political affiliations. The Court came to the same conclusion with respect to the Fourteenth Amendment claims. The due process clause does not provide an opportunity to challenge the meaning of a regulation, the relief plaintiffs sought. To the extent that plaintiffs assert political retaliation, the due process argument suffers from the same complete absence of evidence as the First Amendment claim.

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HUNTER v. AMIN (October 1, 2009)

Stanley Bell was sent to the St. Clair County Jail as a pretrial detainee. At the time, he was taking several medications, including an antidepressant and a sleep aid. The prison psychiatrist, Dr. Amin, met with Bell about a week later. Bell refused to speak with Amin with a jail officer present. Amin refused to meet with Bell without a jail officer present, a practice that was also required by state regulations. Bell became agitated -- Amin told him his medication would be discontinued without the examination -- Bell became more agitated and belligerent. Amin discontinued all of Bell's medications and planned to meet with him the following week. Bell committed suicide two days later. Bell's sister, Elisha Hunter, brought a claim pursuant to § 1983 against Amin, the County, and others. She also bought medical malpractice claims. The district court entered summary judgment in favor of all the defendants. Hunter appeals.

In their opinion, Judges Ripple and Sykes (dissenting) and District Judge Lawrence affirmed in part, reversed in part and remanded. The Court first considered the argument that the policy requiring the presence of a corrections officer was a violation of Dell's right to mental health treatment. In order for a municipality to be liable under these circumstances, its policy must violate constitutional rights. Here, the Court stated that the policy did not violate Bell's rights. Bell had a constitutional right to adequate mental health treatment but nothing in the County's policy affected that right. In fact, the Court noted that the fact that the communications would be privileged from disclosure supported their conclusion. With respect to the medical malpractice claim, however, the Court reversed. Although it is true that no physician duty arises if a patient refuses treatment, Bell did not refuse treatment -- he only refused to be examined. The Court found no evidence in the record supporting Amin's position that the examination was necessary in order for him to continue the prescription medications. The Court medical remanded the malpractice claim for further proceedings. Finally, given the affirmance on the only federal claim in the case, the Court instructed the district court to determine whether it should continue to exercise jurisdiction.

Judge Sykes dissented from the majority's reversal of the medical malpractice claim. Judge Sykes concluded that Bell's refusal to consent to the examination meant that Amin had no right to render any treatment. Amin testified that he needed the examination before any treatment. Judge Sykes noted the lack of support in the record for the majority's conclusion that the examination was required.

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BISSESSUR v. THE INDIANA UNIVERSITY BOARD OF TRUSTEES (September 11, 2009)

Bissessur was a graduate student in the School of Optometry at Indiana University. The 2004-2005 school year was not a banner one for him. He received an incomplete and two D+ grades, was banned from one clinical rotation and failed another rotation. The University dismissed him. Bissessur filed suit and alleged violations of his substantive and procedural due process and equal protection rights. He also alleged a breach of implied contract. The district court dismissed for failure to state a claim. Bissessur appeals.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The Court first concluded that, although a student does not have a federal constitutional right to a graduate education, an implied contract could give rise to a property interest. That interest, in turn, would receive constitutional protection. In order to find the implied contract, however, a student must establish an identifiable promise that was breached. Bissessur admittedly made no such allegations in this complaint. He instead relies on the conclusory allegations of his complaint and his representation that the specific promises will be unearthed during discovery. Citing Bell Atlantic and Iqbal, the Court concluded that be fell "drastically short" of the current federal pleading requirements.

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SUAREZ v. TOWN OF OGDEN DUNES (September 11, 2009)

William Suarez hosted a high school graduation party on the beach behind his parents' home in Ogden Dunes, Indiana. Beer was served. Around 11:00 p.m., a local police officer happened by and noticed the activity. While warning one young man for his illegal parking, he was verbally abused by several others. Believing that the party was getting out of control, the officer left to get help. Meanwhile, Suarez ended the party, put out the bonfire and invited a small group of his friends inside to spend the night. Suarez' mother, concerned that the police may return, instructed the boys to remain upstairs. The officer returned with a bevy of squad cars. He saw that there were still several cars in the driveway, although no people were present. Suspicious that the underage drinking was continuing inside the house, the officer telephoned a local judge for a search warrant. He described the earlier scene of abuse and fairly raucous behavior. He added that there were bottles in the back yard, that a number of teenagers retreated into the house and that teenagers hiding behind couches were visible through a window of the house. He got his warrant -- they broke down the door -- they arrested Suarez and his mother. William was wrestled and pepper-sprayed during his arrest. Suarez and his mother brought this action under § 1983, alleging an unlawful search and an unlawful arrest. William also complained of excessive force. Most of the case was resolved with summary judgment in the defendants' favor. The excessive force claim against three of the officers was tried to a jury, resulting in a defense verdict. William and his mother appeal.

In their opinion, Judges Flaum, Williams and Tinder affirmed. The illegal search claim, stated the Court, depends on the existence of probable cause. Because the plaintiffs challenged the statements made by the officer to the judge, as opposed to the decision of the judge, they must show that the officer made false statements knowingly or with reckless disregard for the truth and that the statements were necessary for the determination of probable cause. The Court first considered the claim that he made false statements by implying that he actually saw the teenagers retreat into the house and by omitting the fact that almost an hour elapsed between the earlier raucous behavior and his return to the home. The Court concluded that these were not materially false statements. The officer's earlier observations combined with the fact that a number of cars were still at the house supported an inference that the party was still taking place. The Court also rejected the claim that the officer did not personally observe every fact reported to the judge. He was entitled to rely on the collective knowledge of the gathered officers. Probable cause therefore existed and the search was lawful. The existence of probable cause for the search disposes of William's unlawful arrest claim. As for his mother's, the officers had reason to believe that she was permitting minors to consume alcohol in her home, a violation of Indiana law. Her arrest, also, was lawful.

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HARPER v. SHERIFF OF COOK COUNTY (September 8, 2009)

Robert Harper was arrested on September 29, 2005. The next afternoon, a judge found probable cause, set bond and remanded him to the custody of the sheriff. Apparently, Harper's wife was at the probable cause hearing and was willing and able to post a cash bond. She eventually posted it a few hours later but Harper was not released from custody until hours after that. During that time, he was in the custody of the sheriff undergoing pre-release processing. Harper brought an action against the Sheriff, alleging that the pre-release procedures are unconstitutional. The district court granted Harper's motion for class certification, although it found his class definition too broad and asked for a redefinition. The Sheriff appeals.

In their opinion, Judges Bauer, Sykes and Tinder vacated and remanded. The Court first clarified that it had jurisdiction, notwithstanding the lower court's request for a redefinition of the class. The open definition was of no consequence since the court certified the class. Before it addressed class certification, the Court first had to decipher the crux of the complaint. It noted that Harper complained of specific intake procedures as well as the general practice of holding detainees after bond had been posted. Relying specifically on representations at oral argument, the court focused on the latter of these two issues -- the post-bond detention. On the merits of that argument, however, the Court concluded that the reasonableness of the detention would depend on the specific facts and circumstances of each individual case. The Court cited a number of factors: time of day, number of detainees, collateral events, etc. The Court also addressed Harper's equal protection claim that persons with money or influence can avoid the detention. Without addressing the merits, the Court concluded that this claim, too, was not appropriate for class disposition.

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GONZALEZ v. CITY OF ELGIN (August 20, 2009)

A number of former high school classmates attended a wedding. Afterward, they gathered at the home of one of them. They visited late into the night and early morning. As the group was about to break up, one of them (who had left earlier to go to a local restaurant) returned to tell the others that his wife and brother were being assaulted outside the restaurant. Several members of the group went to the restaurant. The fight was over and the attackers were gone – but the police had arrived. Here, the testimony in the record supports two versions of a story. Several members of the group described a situation in which a number of police officers were out of control. They testified to beatings, kicks, and pepper-sprays. The police, on the other hand, described an unruly mob, disorderly conduct and resisting arrest. The police arrested several of the group. Most of the charges were dismissed. Six members of the group brought an action against the City and several police officers. They alleged violations of the Fourth Amendment, under § 1983, for unlawful arrest, excessive force, and failure to intervene. They also alleged state law malicious prosecution and a respondeat superior claim against the City. The district court granted summary judgment to the defendants and added that the defendants were also entitled to qualified immunity. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum and Wood reversed and remanded. On the unlawful arrest claim, the Court noted that the plaintiffs had to show an arrest without probable cause. The Court reviewed the evidence in support of probable cause for the arrests for mob action, resisting arrest and battery. In each case, the Court concluded that the facts were contested. The plaintiffs’ version supported a conclusion that probable cause did not exist. On the excessive force claims, the Court again criticized the lower court for not viewing the facts in a light most favorable to plaintiffs. A reasonable jury could find that the police used greater force than necessary considering the totality of circumstances. For the same reason, the failure to intervene judgment was reversed. Next, the Court had little difficulty in rejecting the qualified immunity argument. The plaintiffs stated constitutional violations of an arrest without probable cause and the use of excessive force. Both constitutional rights are clearly established. Finally, the Court reversed with respect to the state law claims for much the same reason – there were genuine issues of material fact.

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HANES v. ZURICK (August 18, 2009)

Apparently, Stephen Hanes and his neighbors in Grayslake, Illinois have been unable to get along for quite some time. The feud has resulted in numerous complaints to the local police. According to Hanes' complaint that the Grayslake police officers denied him equal protection of the law, the police always blame Hanes and arrest him. He has been arrested at least eight times – and every charge was dropped. The officers moved to dismiss the complaint both for failure to state a claim and on qualified immunity grounds. The district court denied the officers' motion to dismiss for failure to state a claim, although it did not specifically mention qualified immunity. The officers appeal.

In their opinion, Judges Rovner, Wood and Williams affirmed. Because a ruling on the qualified immunity defense was a necessary basis for the Court's jurisdiction of the interlocutory appeal and because the district court did not specifically mention qualified immunity, the Court first addressed its jurisdiction. The qualified immunity issue was fully briefed below, the district court addressed both prongs of the qualified immunity inquiry, and the district court gave no indication that it intended not to rule on any issue presented. The Court was therefore satisfied that it had jurisdiction to consider the order rejecting a qualified immunity defense. On the merits, the Court first considered the constitutional violation prong. The Court started with its opinion in Hilton, which recognized a class-of-one equal protection claim for unequal police treatment. The Hilton plaintiffs did not survive summary judgment because they failed to show that the unequal treatment was the result of personal animus. Personal animus is alleged here. Although the Court concluded that a constitutional violation existed under Hilton, it did consider the officers' argument that the Supreme Court's decision in Engquist should prompt it to reconsider Hilton. In Engquist, the Supreme Court held that the class-of-one theory is not well-suited to the public employment context where government actors exercise "discretionary authority based on subjective, individualized determinations." The Court rejected the invitation to reconsider Hilton. It noted that although police officers enjoy broad discretion in their actions, their discretion is much more limited than that of a public employer. On the issue of whether the constitutional right was clearly established, the Court concluded that the officers were on notice as a result of Hilton.

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MCBRIDE V. GRICE (August 11, 2009) 

Dytaniel McBride owns and operates a clothing store in Peoria. One day, McBride got into a disagreement with one of his employees. She began calling him names and generally creating a scene. McBride summoned the police by activating an alarm. Instead of waiting for the police to arrive, however, he physically removed his employee from the store. She called the police and met them when they arrived in response to the alarm. A police officer interviewed both of the individuals and reviewed some portion of a security tape -- and then arrested both of them. After the charges against McBride were dismissed, he filed a lawsuit alleging that his constitutional rights were violated because of his arrest without probable cause. The district court granted summary judgment to the defendants. McBride appeals.

In their opinion, Judges Posner, Kanne and Sykes affirmed. The Court first addressed the burden of persuasion in a § 1983 case. The person complaining that he was arrested without probable cause bears the burden of establishing the absence of probable cause. The same holds true, added the Court, for a state law claim of illegal arrest. On the merits, the Court had little difficulty in finding probable cause. In fact, the employee told the police officer that McBride hit her in the head. A police officer is entitled to base his determination of probable cause on information he receives from the victim -- assuming he reasonably believes she is telling the truth. Although an officer should not ignore facts or inquiries that might clarify the situation, he may end his investigation once he is satisfied that probable cause exists. The witness’ statement and a scratch on her head were enough for the officer to reasonably believe that McBride committed the offense of battery under Illinois law. 

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ESTATE OF MORELAND v. DIETER (August 11, 2009)

Christopher Moreland was arrested on a drunk driving charge in 1997. While in jail, he was beaten to death. His estate filed suit, pursuant to § 1983, against three jail officers. In May of 2002, a jury returned a verdict against two of the officers for $29 million in compensatory and $27.5 million in punitive damages. The jury deadlocked in the case against the third officer. A defense verdict was returned after a September 2003 retrial. In July of 2003, Indiana amended its statute governing the indemnification of government employees. Prior to the amendment, indemnification was discretionary. After the amendment, indemnification for non-punitive damages became mandatory. In 2007, Moreland's estate filed a motion for a writ of execution to collect the award of compensatory damages from St. Joseph County. The district court denied the motion. The Estate appeals.

In their opinion, Judges Posner, Sykes and Dow affirmed. The Court looked to the statutory amendment. It noted two particularly noteworthy features: discretionary indemnification became mandatory in certain circumstances, and discretionary indemnification remained for punitive damages and settlements. In order for the Estate to benefit from the amendment, however, it must be retroactive. That Court stated the general Indiana rule that statutes apply prospectively only unless they contain explicitly retroactive language. An exception exists for certain remedial statutes. The Court rejected each of the Estate's arguments: a) the fact that there was no final judgment until after the amendment took effect does not allow for prospective application of the amendment to the earlier verdict, b) the plain language does not unambiguously support a legislative intent to apply the statute retroactively, and c) even if the statute is remedial and could fit within the exception, the Estate's interpretation would frustrate, rather than carry out the statute's purpose.

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CATLIN v. CITY OF WHEATON (July 21, 2009)

Police officers from the City of Wheaton and several neighboring jurisdictions conducted a major law enforcement operation targeting a drug conspiracy in August of 2003. Several Wheaton police officers were given the task of arresting Robert Ptak. Ptak was considered armed and dangerous and had a history of resisting arrest. The officers were dispatched to a local motel where Ptak was believed to be staying. They had a photograph and a physical description and had been told that he was seen riding a yellow sport motorcycle. The officers located an individual that met Ptak’s physical description on a yellow sport motorcycle in the vicinity of the motel. Unbeknownst to the officers, however, the individual was not Ptak. It was Jonathan Catlin. According to Catlin, the officers jumped out of their vehicle while they were stopped at a traffic light and ran toward him. They grabbed him, threw him down, and eventually handcuffed him. They did not identify themselves as police officers until after the arrest. They soon realized their mistake and released Catlin within 20 minutes. Catlin brought an action for false arrest and excessive force under § 1983. The district court found that the defendants were entitled to qualified immunity and granted summary judgment. Catlin appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that Catlin had to show a violation of a constitutional right and that the right was clearly established at the time. With respect to the false arrest claim, the Court found no constitutional violation. The officers had a reasonable belief that the person they arrested was Ptak. The fact that they might have taken additional steps to be more certain does not affect the reasonableness of their belief. With respect to the excessive force claim, the Court stated that the reasonableness of force depends on the circumstances of the case. The Court conceded that summary judgment is frequently not appropriate in excessive force cases because of factual disputes. Here, given the absence of any factual dispute and the particular circumstances of who the police thought they were dealing with, the Court concluded that the presence of excessive force was a question of law. The Court was troubled by the officers' failure to identify themselves until after the arrest. Earlier identification might have reduced the need for the amount of force used. Even accepting it as a close question, however, the Court concluded that the right, if it existed, was not "clearly established." The Court was unaware of any court of appeals decision holding that police officers have a constitutional obligation to identify themselves when carrying out a public arrest. Qualified immunity therefore attached.

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STAINBACK v. DIXON (June 30, 2009)

Several police officers, after a report of his involvement in a minor disturbance, arrested Charles Stainback. They asked Stainback to put his hands behind his back. Instead of doing so, he asked that he not be handcuffed. All he said was that he thought it would hurt. The officers handcuffed him anyway. Stainback was handcuffed in a police vehicle for approximately 20 minutes. During that time, he complained that the handcuffs were hurting him and asked for them to be removed. Stainback alleges that he required medical treatment as a result of the episode. He sued the officers, alleging the use of excessive force. The lower court concluded that the officers were entitled to qualified immunity because the amount of force was reasonable under the circumstances. The court granted summary judgment to the police officers. Stainback appeals.

In their opinion, Judges Flaum, Ripple and Sykes affirmed. The Court stated that whether force is reasonable depends on the circumstances surrounding the arrest. The circumstances must be viewed as they would have been by a reasonable officer on the scene. Here, the officers used an amount of force that would not have harmed a typical arrestee. Given that the officers were not aware that Stainback suffered from any particular condition or injury, the Court concluded that their actions were reasonable.

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ESTATE OF ANGELA ENOCH v. TIENOR (June 29, 2009)

Angela Enoch committed suicide while a prisoner in a Wisconsin state prison. Her estate brought a lawsuit alleging violations of her rights. The plaintiffs accepted the defendants' $635,000 offer of judgment. The offer of judgment did not include attorneys’ fees. On the plaintiffs' request for fees in excess of $300,000, the court awarded only $100,000. The court's rationale was that the plaintiffs recovered only a small fraction of the $10 million sought in their complaint. The Estate appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans reversed and remanded. The Court held that the lower court erred in relying on the Supreme Court’s Farrar decision. Farrar deals with fee awards for plaintiffs who prevail but receive only nominal damages (Farrar asked for $17 million and received $1). Here, although the Court believed the $10 million sought was absurdly high, it concluded that a recovery of $635,000 in prison litigation is significant. A fee award need not be proportional to the recovery or to the amount recovered versus the amount requested. The Court remanded for a recalculation of the award using the lodestar as a starting point and also considering the result obtained, any claims on which plaintiffs did not prevail, the adequacy of the documentation, and any social benefits obtained.

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BUCHANAN-MOORE v. COUNTY OF MILWAUKEE (June 29, 2009)

Sidney Gray, a mentally ill man, was well known to the Milwaukee Police Department. In the 10 years preceding July of 2006, he was arrested at least 35 times. Many of those arrests stemmed from violent episodes. He was also committed to the county's mental-health facilities on several occasions. County doctors understood that certain medications reduced Gray's violent episodes. In a five-week episode in June and July of 2006, Gray was arrested, committed, released from commitment, arrested for home invasion, held without medication, released by mistake, arrested again for home invasion, held again without his medication, and again released without charges being filed. Shortly thereafter, Gray shot and killed Frank Moore after breaking into the house next door to Moore's. Moore's survivors brought a section 1983 suit against the County, alleging that Gray’s release after a 72- hour confinement in a county facility without his medication was a violation of Moore’s civil rights. The court entered judgment for the County. The survivors appeal.

In their opinion, Judges Bauer, Kanne and Sykes affirmed. The Court noted that the 14th Amendment generally does not impose on the state a duty to protect against harm by private individuals. An exception exists to not place one in a position of danger that otherwise would not have existed. Under this exception, the Court noted that the state must affirmatively create or increase the danger and the state's actions must be the proximate cause of the injury. Here, the Court held that the County's conduct was not proximate cause of Moore's death in that Moore was not a foreseeable victim of the County's actions. Gray was not known to carry a weapon, he did not pose a threat to any definable population, and any danger he posed was not of finite duration. The Court concluded that Moore's death was too remote a consequence to hold the County liable under section 1983.

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BROOKS v. THE CITY OF CHICAGO (May 1, 2009)

Terence Brooks was arrested, allegedly without probable cause, in May 2004 by two Chicago police officers. The charges were dropped and he was released after about three weeks in custody. A few months later, he was indicted as a result of evidence seized at the time of the arrest. A warrant was issued when he failed to appear in court on the indictment. Brooks was arrested on the warrant by different police officers in May of 2007. Again, the charges were dismissed and Brooks was released. Brooks brought an action against the City of Chicago and the police officers who were responsible for the 2004 arrest. He brought due process and false arrest claims under § 1983, as well as claims under state law. The district court dismissed the complaint on the ground that, although it purported to complain of the 2007 arrest, it depended entirely on the 2004 arrest. Claims based on the 2004 arrest were barred by the statute of limitations. Brooks appealed.

In their opinion, Judges Flaum, Manion and Rovner affirmed. The Court recognized that Brooks' theory was that the 2007 arrest culminated from a series of events that began with the allegedly unlawful 2004 arrest. The Court noted, however, that the existence of the warrant supported probable cause for the 2007 arrest. One cannot maintain a false arrest claim based on an arrest made with probable cause. Even if Brooks had a false arrest claim in 2004, his arrest in 2007 cannot revive that claim. The Court also rejected Brooks' due process claim on the grounds that it was merely a recast false imprisonment claim.

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BIELANSKI v. COUNTY OF KANE (December 18, 2008)

Kane County set up a Child Advocacy Center (“Center”) to coordinate the investigation and prosecution of child sexual abuse. The Child Advocacy Advisory Board (“Board”) is responsible for drafting the policies and procedures for those investigations and prosecutions. Kathryn Berg and David Byrne were a child protection investigator and police officer, respectively, assigned to the Center. [The facts that follow, given the posture of the appeal from a motion to dismiss, are taken from the complaint.] In mid-2001, Berg and Byrne interviewed a six-year old boy and his parents. The boy claimed he had been sexually abused by “Lorri.” Berg and Byrne failed to follow accepted techniques used in child victim interviews. They did not use techniques to identify the perpetrator and did not even ask the boy to describe her. Within days, Lorri Bielanski, a fifteen-year-old neighbor of the boy, was notified that credible evidence existed that she had sexually assaulted the boy. Sometime shortly after Berg and Byrne’s interview of the boy, they learned that: a) he was taking medication for Attention Deficit Hyperactivity Disorder, b) he was in special education classes, c) he was known, on two occasions, to have undressed with others and tried to get others to undress, d) his parents confronted him about the undressing incidents and punished him, and e) his parents suggested to him that he may have been sexually abused. Berg and Byrne did not disclose this information to the prosecutors or Bielanski. The county filed a Petition for Adjudication of Wardship, alleging the commission of two sexual assault felonies. As a result, Bielanski was forced to attend court hearings and an interview with a probation officer and was not allowed to travel out of the state without court permission. Bielanski was eventually acquitted of all charges and was successful in getting her record expunged. She filed a complaint against the County, the Center, the Board, Berg, and Byrne. Based on § 1983, she alleged: a) that the defendants violated her Fourth Amendment rights by compelling her to attend the court hearings and restricting her movement, and b) that Byrne and Berg violated her rights to a fair trial and due process by withholding the information they had about the boy. The district court granted defendants’ motion to dismiss. Bielanski appeals.

In their opinion, Judges Posner, Kanne and Rovner affirmed. The Court began with Bielanski’s Fourth Amendment claim. In order to make out such a claim, the plaintiff must allege a seizure and that it was unreasonable. Since Bielanski was not seized in the normal sense of an arrest, the Court reviewed Justice Ginsburg’s “continuing seizure” concurrence in Albright and other circuits’ approaches in similar situations. In Albright, Justice Ginsburg supported a Fourth Amendment analysis whereby a defendant who was arrested, released, and then summoned back to court based on the misleading testimony of a police officer could state a claim for unlawful seizure. No other Justice has adopted the analysis. The Court concluded that a summons, even when combined with travel restrictions and a forced probation officer interview, is an insufficient restraint on freedom to constitute a seizure. The Court then addressed the fair trial claim. The elements of that claim are that: a) the evidence is favorable to the accused, b) that it was suppressed by the government, and c) that it was material. The Court noted that materiality was the only element in dispute and that the Supreme Court had not addressed a case in which evidence was withheld and the defendant was later acquitted. Several other circuits have concluded that a Brady claim cannot survive an acquittal or dismissal of charges. The Court concluded that Bielanski had no Brady claim since earlier disclosure of the evidence would not have resulted in a dismissal of the charges.

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HASAN v. FOLEY & LARDNER (December 15, 2008)

Zafar Hasan is a Muslim of Indian descent. In 2000, he joined the law firm of Foley & Lardner (“Foley”) as an associate. (The following are facts construed in a light most favorable to Hasan.) During his first year at the firm, he received mostly positive reviews and maintained high billable hours. The events of September 11, 2001 changed Hasan’s standing in the firm. Hasan’s billable hours dropped considerably and he received much less positive reviews. At a meeting in October of 2002, Foley decided to fire Hasan. The firm notified Hasan in December that he was being terminated. He filed suit in 2004, alleging that Foley violated Title VII of the Civil Rights Act. The district court granted Foley’s motion for summary judgment. Hasan appeals.

In their opinion, Judges Coffey, Ripple and Manion reversed and remanded. The Court noted that Hasan proceeded under the “direct method” of proving discrimination. Under the direct method, a plaintiff must present evidence, direct or circumstantial, that points to a discriminatory reason for the action of the employer. Courts accept three types of circumstantial evidence in a direct method case. Hasan relies on two types: a) suspicious timing, ambiguous statements, or comments directed at others in the same group, and b) evidence that the employer’s stated reasons for its conduct is not worthy of belief. Hasan’s evidence included: a partner’s anti-Muslim comments, suspicious timing in Hasan’s downturn in billable hours, the financial health of the firm, Foley’s treatment of other Muslim associates, and a changing justification for Foley’s conduct once it located Hasan’s performance reviews. The Court disagreed with the district court’s treatment of some of the evidence. It concluded, for example, that: a) evidence of an anti-Muslim comment by a partner who was not Hasan’s supervisor was valid nonetheless because the partner attended the meeting at which Foley decided to terminate Hasan (and, in fact, may have instigated the decision), b) evidence of an anti-Muslim remark made a year before the decision to terminate may nonetheless be valid circumstantial evidence when it was made at about the time when Foley began to assign work elsewhere, which in turn became a stated reason for his termination, and c) evidence regarding Foley’s treatment of other Muslims is not per se irrelevant but may be relevant depending on how closely tied it is to Hasan’s circumstances. The Court rejected Foley’s argument that Hasan failed to produce evidence of its treatment of similarly situated employees. The direct method of proof does not require such evidence. Finally, the Court noted that Foley initially claimed that it fired Hasan for poor performance but changed its stance when early, positive performance reviews were discovered and produced. They then claimed that Hasan was fired because the firm did not have enough work to keep all associates busy. The Court held that a reasonable jury could have believed both reasons to be pretext. The Court held that the totality of the evidence and possible inferences precluded summary judgment for Foley and remanded to the district court.

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HOUSKINS v. SHEAHAN  (November 25, 2008)

Virgean Houskins was an employee of the Cook County Department of Corrections. One September morning in 2001, she found herself sitting in her car in the parking lot of her place of employment, waiting for a parking space to open up. Correctional Officer Keith entered the lot and took what Houskins believed was her space. Houskins uttered some profanities about Keith (which he heard) and proceeded to park in another space. A verbal confrontation between the two ended with Keith striking Houskins in the face. Correctional Officer Calderone arrived a few moments later but did nothing. Houskins reported to work, filed an incident report, and also reported the incident to her supervisor, Tolbert. Tolbert took Houskins and Bowers to the Internal Affairs Division (“IAD”) to make out a complaint. Houskins also filed a police report. The IAD dismissed the charges against Keith and Calderone as not conclusive but upheld an obscene language charge against Houskins. Upon further department review, the finding against Houskins was upheld but the dismissal of the complaint against Keith and Calderone was reversed. Houskins filed a complaint pursuant to 42 U.S.C. § 1983 against the Sheriff and Cook County, alleging a) that the Sheriff retaliated against her for filing the complaints and charges against Keith, b) that a “code of silence” policy existed for correctional officers and those who violated it were subject to retaliation, and c) that the Sheriff employed a disciplinary system in which certain officers with clout were exempted from discipline. Houskins also brought pendant state court claims of assault and battery against Keith. At trial, the jury returned a verdict against the Sheriff and Keith. It awarded $240,000 against the Sheriff and $10,000 in compensatory and $50,000 in punitive damages against Keith. The Sheriff and Keith appeal.

In their opinion, Judges Bauer, Manion and Williams affirmed the judgment and damages award with respect to Keith and reversed and remanded with respect to the Sheriff. The Court first addressed two preliminary procedural issues. Houskins argued that the Sheriff could not appeal a denial of summary judgment after a jury verdict and also that the Sheriff waived the argument by not raising it in the final pre-trial order. The Court noted that while denials of summary judgments motions based on the sufficiency of the evidence are generally not reviewable, the Sheriff’s motion raised a question of law – whether Houskins’ speech was constitutionally protected – and was therefore appealable. The Court also held that the failure to raise it in the final pre-trial order did not constitute a waiver. On the merits of the speech issue, the Court looked to the Supreme Court’s Garcetti decision. Garcetti requires a court first to decide whether a plaintiff is speaking as a private citizen on a matter of public interest. Houskins complained of retaliation for two different instances of speech – her internal complaint and her police report. The Court concluded that her internal complaint was not protected speech. She was required to report misconduct as part of her official job responsibilities. With respect to the police report, the Court concluded that it was not part of her job responsibilities but that she was speaking about a matter of purely personal interest. Her purpose in filing the police report was not to air a grievance about conditions at the jail or her safety as an employee. The Court found that Houskins’ speech was not constitutionally protected and that the lower court therefore erred in denying the Sheriff’s motion for summary judgment. The Court added that Houskins’ Monell claims that the Sheriff had a policy of retaliation and selective discipline had to fail as well. A Monell claim cannot stand where the alleged official policy did not result in a constitutional violation.

With respect to the jury’s verdict for Houskins on her claims of assault and battery against Keith, the Court rejected each of Keith’s arguments on appeal. It held that a) the district court properly asserted supplemental jurisdiction over the state law claims since they pertained to the same set of circumstances alleged in the federal claim, b) the district court did not abuse its discretion in denying a separate trial for Keith, c) the judge’s comments to Keith’s counsel did not indicate bias, and d) the award of punitive damages was not excessive. The Court affirmed the judgment against Keith.

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POWERS v. RICHARDS December 2, 2008

Robert Powers was employed by the State of Illinois in 2002 as Deputy Director of the Department of Central Management Services. Powers is alleged to have been part of a scheme to help certain state employees keep their jobs. The employees had been appointed to their jobs for four-year terms. During those terms, they could not be fired but for cause. Instead of allowing their terms to expire shortly after the election of a new governor and risk being replaced, these employees voluntarily resigned before the election. They were then reappointed to new four-year terms. Powers signed the personnel forms that were necessary for the scheme to succeed. Powers did not have the authority to sign the forms and did so knowing that the Director would not. In October of 2002, Powers took a new job as Executive Secretary of the Civil Service Commission (“Commission”). The role of the Commission is to hear appeals of state employees regarding discharges and discipline, modify personnel rules, and investigate personnel violations. Powers’ role as Executive Secretary included drafting rules and regulations, making recommendations regarding resolution of disputes, and interpreting the Personnel Code, among others. When a new governor took office in January of 2003, he began an investigation into the late appointments. The governor’s office concluded that Powers was involved in the scheme and referred its findings to the Commission. The Commission suspended Powers and authorized its Chairman to conduct a hearing. The Chairman was authorized to fire Powers if he did not produce exculpatory evidence at the hearing. The Chairman notified Powers of his rights and held a hearing. The Chairman recommended that Powers be fired – and he was. Powers received a post-deprivation hearing before an ALJ. The ALJ concluded that the firing was warranted. Powers brought suit under 42 U.S.C. § 1983. He alleged that his firing was a deprivation of his right to association because it was on account of his party affiliation. He also alleged a lack of pre-deprivation procedural due process. The defendants conceded, for purposes of summary judgment, that Powers was fired because he was a Republican. The district court granted summary judgment to all defendants. Powers appeals.

In their opinion, Judges Manion, Rovner, and Evans affirmed. The Court stated that the First Amendment does not prohibit a firing based on party loyalty if that loyalty is necessary to properly perform the job. The considerations in determining that necessity include whether the position allows for meaningful input into government decision-making and involves political discretion. The Court reviewed Powers’ job description to decide whether the position was such a position. The Court recited the job’s numerous responsibilities and concluded that they did include broad discretion to make policy, interpret the law, and speak on behalf of the Commission. The position is therefore one into which an incoming administration can appoint someone of its own party. With respect to Powers’ procedural due process argument, the Court noted that when a person is afforded a full post-deprivation hearing, a pre-deprivation hearing satisfies due process if it includes notice, an explanation of the evidence, and an opportunity to be heard. Since Powers concedes that he had all that is required, he cannot prevail. Finally, the Court was not persuaded by Powers’ unsupported claim that the Commission had already decided to fire him before the hearing.

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SANDAGE v. BOARD OF COMMISSIONERS (November 24, 2008)

Sheena Sandage-Shofner twice called the sheriff’s department in Vanderburgh County and complained that a man named Moore was harassing her. Moore was in the sheriff’s custody, serving a prison term for robbery. Sandage-Shofner’s complaints arose at times when Moore was out of prison on work release. Two days after her second complaint, Moore murdered Sandage-Shofner and two other people and then took his own life. Christine Sandage and Arthur Shofner brought a suit under § 1983, claiming that the County’s failure to reimprison Moore deprived their decedents of their lives without due process in violation of the Fourteenth Amendment. The district court dismissed for failure to state a claim. Sandage and Shofner appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Rovner affirmed. Relying principally on the Supreme Court’s decision in DeShaney, the Court held that there is no federal constitutional duty to protect the citizenry from private violence, nor is there a right to be rescued from a danger that was not created by the government. There is a right not to be harmed, a right illustrated, for example, by prisoner cases alleging deliberate indifference to medical needs. Here, the Court concluded, the government did not restrict Sandage-Shofner’s access to aid and it took no affirmative steps that increased the danger to Sandage-Shofner. It simply failed in its moral obligation to protect its citizens from private harm, for which there is no federal constitutional remedy.

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MUHAMMAD v. OLIVER (November 10, 2008)

The Dennis Muhammad Community and Economic Development Corporation (“MDC”) is a Chicago-based minority business enterprise. It entered into a joint venture agreement with CDA Management (“CDAM”). The purpose of the venture was to bid on a contract to install air conditioners in Chicago Housing Authority (“CHA”) buildings. Their bid was successful but the relationship quickly soured. In 2002, MDC sued CDAM and the related non-profit Chicago Dwellings Association (“CDA”). MDC alleged, in a state court action, that the defendants breached the joint venture agreement by not allowing MDC to do the work it had agreed to do. The court granted CDA’s motion to dismiss on the ground that CDA was not a party to the agreement. Later, on MDC’s own motion, the court dismissed MDC’s complaint against CDAM without prejudice. In 2007, MDC brought suit in federal court against CDA, CDAM, and Christine Oliver. Oliver was the CEO of both CDA and CDAM. MDC repeated the same allegations it had made in the earlier state court suit. It added an allegation under § 1981 that the defendants had used MDC as a “minority front” to increase their chances of success on the bid for the CHA contract. The district court dismissed CDA and CDAM on res judicata grounds and dismissed Oliver because she was not a party to the joint venture. MDC appeals.

In their opinion, Judges Cudahy, Posner, and Rovner affirmed. The Court observed that, although the two complaints relied to some extent on different legal theories, they did both arise out of the same facts. When a prior case arising out of the same facts is abandoned after an adverse ruling, as the Court concluded the state court suit was, the judgment generally bars a later suit. When there are multiple defendants, as is here, the bar against one operates as a bar against all, if they arose out of the same facts. The Court found that all three defendants were alleged to be in violation of § 1981 for the identical conduct. The Court concluded that the earlier suit barred the federal complaint against all defendants. The Court also rejected MDC’s argument that there had been a stipulation to reserve all rights upon dismissal. The Court concluded that there was no evidence, or even allegation in the complaint, of such an agreement. Finally, the Court rejected MDC’s claim that the lower court erred by dismissing on res judicata grounds when a) the defendants never raised it and b) it is not one of the FRCP 12(b) defenses that are allowed to be raised by motion . The Court held that the dismissal was proper. The application of res judicata eliminates unnecessary lawsuits. It can be raised by the court on its own motion. Also, when an affirmative defense like res judicata is shown on the face of the complaint, it can be dismissed on motion.

The Court did conclude that the court below erred in dismissing Oliver on the grounds that she was not a party to the joint venture agreement. A claim of tortious interference with contractual rights on account of race does state a cause of action under § 1981. Nevertheless, Oliver is still entitled to dismissal. First, the Court pointed to its prior discussion of res judicata. The dismissal of the state court complaint barred a cause of action against any defendant arising out of the same facts. Oliver’s does. Second, when liability rests on the doctrine of respondeat superior, as it does here, the plaintiff cannot bring an action against the “servant” (Oliver) when judgment has already been entered for the “master” (CDA, CDAM). Third, and most significantly, the Court concluded that the complaint did not actually allege tortious interference on account of race. The Court stated that the allegation that the defendants included MDC to gain a bidding advantage, and then cheated them out of that advantage, did not allege racial discrimination. The Court observed that it was greed, not discrimination, that drove the defendants’ decision. The district court’s result was correct. 

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ANDONISSAMY v. HEWLETT-PACKARD CO. (November 7, 2008)

Sanjay Andonissamy, a French citizen of Indian ancestry, began his employment with Hewlett-Packard (“HP”) in April of 2001. He was in the country on an HP-sponsored H-1B visa. [The following is Andonissamy’s version of the story – HP’s version differs greatly] After the events of September 11, 2001, Ken Smith, Andonissamy’s supervisor, began to make derogatory racial, ethnic, and nationalist remarks to and about Andonissamy. Andonissamy frequently complained to Smith’s supervisor. Smith placed Andonissamy on remedial performance plans, allegedly in retaliation for Andonissamy’s complaints about Smith. Andonissamy began taking medication for anxiety and depression in 2002. He was being treated, but his physician never placed him on any restricted work schedule. Andonissamy’s condition worsened in early 2003 after the deaths of his brother and nephew. In May of 2003, Smith made a false report to the company implicating Andonissamy as a security threat. HP fired Andonissamy on June 23, 2003. On September 16, Andonissamy filed an EEOC complaint alleging national origin discrimination. The EEOC dismissed his complaint and issued a right to sue letter. Andonissamy filed a complaint in federal court in April of 2004. In addition to his complaints of national origin discrimination under Title VII and 42 U.S.C. § 1981, Andonissamy added a Family and Medical Leave Act count. In November of 2005, Andonissamy added Smith as a defendant on an assault count. The district court dismissed Smith and granted summary judgment to HP. Andonissamy appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first addressed Andonissamy’s Title VII hostile work environment claim. In order to survive summary judgment, Andonissamy had to show that a) he was subjected to unwelcome harassment, b) the harassment was based on his national origin, c) it was severe and pervasive enough to amount to a hostile and abusive environment, and d) there exists a basis for employer liability. The Court did not address the first three elements because it found no basis for employer liability. An employer can be vicariously liable for the conduct of a supervisor but can only be liable for the conduct of a co-worker if the company was negligent in discovering or remedying the harassment. A supervisor for purposes of Title VII is the person with the ability to affect the terms and conditions of the plaintiff’s employment. Smith, although he was Andonissamy’s “supervisor” in the sense that he directed his performance, was not a Title VII supervisor. There was no evidence that Smith was able "to hire, fire, promote, demote, discipline or transfer" Andonissamy. In order to hold HP liable for the acts of Smith as co-worker, Andonissamy had to establish that he complained or that the discrimination was so pervasive that HP’s knowledge could be inferred. Although Andonissamy did complain to Smith’s supervisor, he did not specifically complain about national origin discrimination. The Court agreed with the district court that Andonissamy therefore did not make out a Title VII claim. With respect to his companion § 1981 claim, the Court stated that a plaintiff can proceed under the direct or indirect method. The direct method requires evidence that an adverse employment action was based on the plaintiff's national origin. The Court found no such evidence in the record. Under the indirect method, a plaintiff must establish, among other elements, that he was meeting his employer’s legitimate performance expectations. The Court noted that the record contained numerous references to Andonissamy’s performance problems. The Court concluded that Andonissamy was therefore unable to establish a § 1981 claim under either method.

Andonissamy’s retaliation claim could also be established under the direct or indirect method. The indirect method for retaliation, like discrimination, contains an element that Andonissamy was meeting HP’s performance obligations. The Court rejected Andonissamy’s indirect method for establishing his retaliation claim for the same reason it rejected it for his discrimination claim. Under the direct method, Andonissamy had to establish that: a) he engaged in statutorily protected activity, b) his employer took an adverse employment action, and c) there was a causal connection between the two. The Court held that his complaints to HP did not include complaints of national origin discrimination. He was thus unable to establish the statutorily protected activity element. The Court concluded that he failed to establish a retaliation claim under either method. With respect to the FMLA count, the Court noted that Andonissamy never asked for any leave and did not exhibit any dramatic changes in behavior that would have put HP on notice of a need for leave. The Court agreed with the district court that Andonissamy failed to meet his burden under the FMLA.

Finally, the Court addressed Andonissamy’s assault claim against Smith. The assault claim was added to the case after the statute of limitations on the claim had expired. Andonissamy argued that the claim related back to the original claim and was thus permissible under FRCP 15(c). The Court affirmed the dismissal, stating that a claim against a new defendant relates back only when there is a case of mistaken identity. Since Smith supervised Andonissamy for years, that cannot be the case here.

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TRIGILLO v. SNYDER (October 31, 2008)

The Illinois Department of Corrections (“Department”) created a new position in 1999 dedicated to procurement matters. The Department hired Tracy Trigillo, an attorney, into the position. Her responsibilities included managing the Department’s contracting, purchasing, leasing, and inventories. She advised department officials on legal matters. She also was responsible for ensuring that contracts were properly bid and in compliance with the Illinois Procurement Act. From early in her employment, Trigillo had concerns about the Department’s procurement practices. She frequently advised her superiors of her concerns, with little effect. In late 2000, she drafted a report that summarized many of her concerns. The report was addressed to the Department of Central Management Services (“CMS”), an agency that provided procurement support to other state agencies. Trigillo also sent the report to the state Attorney General (“AG”). The report contained some allegations of misconduct, although it was principally addressed to policy disputes. Also in 2000, one of Trigillo’s staff members told her that Department officials had rigged the bid of a contract to benefit a friend of the governor. Although the incident predated Trigillo’s tenure in the Department, she was responsible for monitoring an extension of the contract. She reported the information to the FBI but did not advise her superiors that she had done so. When her term of employment was up for renewal in late 2001, the Department chose not to renew. Although she had received acceptable performance reviews during her tenure, her supervisor stated that her approach to procurement principles was “over-zealous” and that she was not a team player. Trigillo brought an action under 42 U.S.C. § 1983, alleging that she was non-renewed in retaliation for her reports of misconduct. The district court granted summary judgment to the defendants. The court separated her speech into three categories. The court held that: a) her routine communications with her superiors were part of her normal job duties and not as a citizen speaking out on matters of public interest, b) her CMS report referred principally to policy disputes and, to the extent it did raise matters of public interest, the Department’s interest in effective operations outweighed Trigillo’s interest as a citizen, and c) her report of misconduct to the FBI was constitutionally protected but there was no evidence that the person who decided not to renew her contract knew about it. Trigillo appeals.

In their opinion, Judges Rovner, Evans, and Williams affirmed. The Court first observed that the district court entered judgment just prior to the Supreme Court’s decision in Garcetti v. Ceballos. Garcetti reaffirmed the limitations imposed by the First Amendment on a public employer’s ability to restrict the “liberties employees enjoy in their capacities as private citizens.” The role of the Court is to determine whether the speech is that of an employee doing her job or that of a private citizen reporting on a matter of public interest. Garcetti requires an inquiry into whether the speech in question relates to the employee’s official obligations, even the more general ones. Trigillo conceded on appeal that her routine communications did not meet the Garcetti standard. The Court addressed the other two categories. The Court rejected defendants’ argument that the CMS report was per se “official” because it was required by statute. The Court noted that the statutory duty was very broad and applied to all employees. Instead of looking at a broad duty, the Court looked at the speech at issue and the responsibilities of the employee. The Court held that the CMS report did not meet the Garcetti standard. The report: a) made no “accusations”, b) sought “guidance” on procurement issues, c) was written on Department letterhead, d) was signed by Trigillo in her official capacity, and e) offered her group’s resources to any investigation. The Court held that the report fit squarely within Trigillo’s responsibilities of managing the procurement practices of the Department. With respect to the FBI report, the Court agreed with the district court that Trigillo had presented no evidence that the decision-maker even knew that she made the report. It could not have been the reason for her non-renewal.

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KAY V. BOARD OF EDUCATION (October 27, 2008)

Gail Kay taught in the Chicago public school system. After she retired in 1994, she brought a § 1983 action against the Board of Education (“Board”). She alleged that the Board penalized her on account of her speech. The parties settled the litigation in 1996 and her case was dismissed. In the settlement, the Board offered to rehire Kay into an available future position. In 1997, she was offered an opportunity to return to her former school. She taught for seven more years – yet she never received another paycheck. After retiring again in 2004, she brought suit against the Board in federal court to enforce the 1996 settlement, alleging that her seven years of teaching without pay was a breach of the settlement. The district court dismissed the case on its own accord for “lack of venue” because Kay was governed by a collective bargaining agreement that required arbitration. Kay appeals.

In their opinion, Chief Judge Easterbrook and Judges Sykes and Tinder vacated the judgment of the court and remanded with instructions to dismiss for lack of subject matter jurisdiction. First, the Court listed several reasons why the court erred in dismissing the suit because of the collective bargaining agreement’s arbitration clause: a) only the union and employer can invoke the clause, b) a settlement of a dispute is not arbitrable as a claim arising under the agreement, c) a collective bargaining agreement cannot require the arbitration of civil rights claims, and d) the Board cannot compel arbitration with a volunteer, which they claim is Kay’s status. The panel also criticized the court below for acting independently, without benefit of the views of the parties.

Although the Court held that the lower court erred in dismissing the complaint, it identified (and asked for supplemental briefing on) a different problem. The Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. makes clear that the vehicle for enforcement of a settlement of a federal case is a contract claim, which cannot be brought in federal court unless it qualifies independently under diversity principles. Apart from a settlement, a state’s wage-payment statute is the proper vehicle for a claim for unpaid wages. Kay conceded that she has no federal claim to enforce the settlement or for unpaid wages. She asserted, however, a claim that the Board’s failure to abide by the settlement is further retaliation for her assertion of constitutional rights. The only assertion of rights she maintains, however, are those that pre-dated the settlement. The Court noted that the Board’s failure to pay cannot be deemed a revived retaliation claim under Kokkonen. Finally, the panel did consider whether the Kokkonen rule applied in the context of a state actor defendant. It held that the Constitution does not require a state actor to keep its promise; it only requires some process before depriving a person of property. Kay’s opportunity to litigate her case in state court is process enough.  

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VIILO v. EYRE (October 27, 2008)

Virginia Viilo was enjoying a quiet August evening in her backyard, accompanied by several family members and Bubba, her dog. Suddenly, Bubba heard a commotion in Viilo’s front yard and ran down the side of the house. It seems that six Milwaukee police officers, acting on a tip that a felon had entered the house with a dangerous dog, had arrived and were approaching the house. Bubba leapt a three foot fence and ran toward the officers. Officer Carter shot Bubba twice, seriously injuring him. Bubba retreated into bushes near the house. Carter continued to watch Bubba while the other officers spoke with Viilo. Viilo asked to get Bubba or call for help. The police refused. Sergeant Eyre arrived about ten minutes after Carter shot Bubba. Eyre approached the bushes where Bubba was hiding. According to many witnesses, Bubba came out limping and whimpering. Eyre ordered Carter to shoot Bubba. Carter shot Bubba a third, and a fourth time, killing him. Viilo sued the city and Carter and Eyre under 42 U.S.C. § 1983, alleging a violation of her Fourth Amendment rights. The district court denied Carter and Eyre’s motion for summary judgment on qualified immunity grounds. Carter and Eyre appeal.

In their opinion, Judges Bauer. Cudahy, and Williams dismissed the appeal for lack of jurisdiction. The Court began with the familiar two-part analysis for qualified immunity – whether the alleged facts establish a violation of a constitutional right and whether that right was clearly established. Although the panel briefly discussed the application of the test and found it compelling, it decided it could not reach the merits.

Appeals are generally heard after a final order. Interlocutory appeals are an exception to that rule. The Supreme Court, in the Mitchell v. Forsyth and Johnson v. Jones cases, clarified the scope of the exception in qualified immunity cases. The appeal cannot attack the presence or absence of disputes of fact. It must be limited to the question of law: whether the facts establish a violation of a clearly established constitutional right. The panel pointed out that there can be disputed factual issues in the case. The appellants just cannot contend that the court below erred in ruling that the evidence created an issue for the jury. They must accept alleged or stipulated facts or the facts that the court below found had sufficient support to go to a jury. Here, the court below found that there were sufficient facts to support a reasonable jury’s finding that Bubba was shot the third and fourth time as he was “crying, sitting down, moving slowly, or headed to the backyard.” The officers argue for qualified immunity based on a totally different set of facts. Their appeal must be dismissed.

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NEGRETE v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK) (October 27, 2008)

Jorge Negrete was a track repair worker for Amtrak.  He injured his back on the job. He sued Amtrak, alleging a permanent disability. During discovery, Negrete: a) withheld the names of doctors who did not support his claim, b) provided false information during his deposition regarding his income, c) was “less than forthcoming” at his deposition regarding who performed maintenance at his apartments, and d) missed twenty-one discovery deadlines (in one case by over a year). The district court dismissed the case for these abuses. Negrete appeals.

In their opinion, Chief Judge Easterbrook and Judges Rovner and Sykes affirmed. The Court observed that dismissal is a drastic penalty for discovery abuses. In the case, however, the “appalling” conduct of Negrete supported the dismissal. He lied about the principal issues in the case – how severe were his injuries and whether he could work. The Court not only affirmed the dismissal, it referred its opinion to the United States Attorney’s Office.

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HAYES v. SNYDER  (October 9, 2008)

Floyd Hayes, a Vietnam War veteran, was serving a ten-year sentence at the Hill Correctional Center (“Hill”) in Illinois. In 2000, Hayes developed testicular cysts. Tests revealed that the cysts were benign. A Hill physician determined that neither a biopsy nor urological referral were indicated. Hayes’ condition worsened and he began to experience more pain. He requested a urology referral in 2001. Hill personnel declined. In September, he began receiving an antibiotic and over-the-counter pain medication. Beginning in October, he saw Dr. Hamby twice and then started seeing Dr. Shute. Dr. Shute wanted to refer Hayes to a urologist and administer prescription pain medication but Hamby refused to approve. Hayes complained to Hill personnel. He sent letters to the Director and to his staff. He described in significant detail his condition and the extreme swelling and pain he experienced. He complained that he needed to see a specialist but that Hamby would not approve. The Hill staff investigated Hayes’ complaint by seeking information from the medical staff. Hamby himself responded to the inquiry by the staff with a lengthy e-mail. He confirmed that Hayes had two cysts but concluded that they were stable but for “self-reported swelling and occasional tenderness.” Hayes and the non-medical staff continued their correspondence. The staff continued to base its responses to Hayes on communications from Hamby that nothing further needed to be done. Hayes filed a formal grievance complaining of inadequate treatment for his pain. The grievance officer denied his grievance, relying on Hamby’s assurance that Hayes was “treated and tested” appropriately.

Upon his release from Hill, Hayes went directly to a nearby VA hospital. Although he complained of testicular pain, the hospital referred him to the psychiatric ward. They allowed Hayes only a few minutes with a urologist. It seems that the Hill staff had called the hospital to warn them that Hayes might be coming and to advise them that his problems were principally psychiatric. Hayes was released after ten days. He went to his home in Kentucky where he visited the local VA hospital there. He received an evaluation, an ultrasound, and a urology referral. Hayes was diagnosed with Peyronie’s disease, a connective tissue disorder that is often painful. The disease is not easily recognized or well understood, even by urologists. Hayes was referred to and is still being treated by a pain management specialist.

Hayes filed suit under 42 U.S.C. § 1983 against Dr. Hamby for his failure to treat his condition and against the non-medical staff at Hill for their failure to respond to his condition properly. The district court granted summary judgment to the defendants on the merits and on the basis of qualified immunity. Hayes appeals.

In their opinion, Judges Bauer, Ripple, and Wood reversed in part and affirmed in part. The Court started with the rule and the test. The defendants are liable if they displayed “deliberate indifference” to Hayes’ medical needs. Hayes must establish that the condition itself, objectively, is sufficiently serious. Then he must establish that the prison officials knew of and disregarded an excessive health risk. The Court first addressed the objective prong of the test. In finding that a reasonable trier of fact could find in Hayes' favor on the objective test, the Court relied on Hayes’ complaints of extreme pain and swelling and Hamby’s refusal to refer Hayes to a specialist. It disregarded the fact that the disease was quite rare and hard to diagnose, given Hamby’s refusal to even make a referral.

The analysis of the subjective element of the test required separate approaches for Dr. Hamby and the non-medical defendants. The Court relied on several facts in the record to conclude that Hayes could meet the test with respect to Hamby.  Hamby a) refused to approve the urology referral, b)may have stopped minimal treatment of ice-packs and non-prescription pain medication in retaliation for Hayes' complaints, c)  testified that he would never prescribe pain medication for a prisoner, and d) was dismissive of Hayes' needs in his deposition testimony. The Court found these to be sufficient facts to establish that a reasonable trier of fact could conclude that Hamby’s conduct constituted deliberate indifference.

Addressing the non-medical personnel, the Court stated that non-medical personnel are generally justified in believing that a prisoner is being adequately cared for if he is in the hands of medical personnel. Here, the non-medical personnel investigated Hayes’ complaints. They were entitled to rely on the professional judgment of the medical professionals. The Court held that Hayes could not establish his claims against the non-medical personnel.
 

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KOZUSZEK v. BREWER  (October 8, 2008)

Nicole Kozuszek and her brother Wesley lived with their parents and were registered to vote in Porter, Indiana. About a month before the 2003 general election, Wesley reported his car stolen in the neighboring town of Chesterton. The police met him at an apartment he rented in Chesterton. The police report of the theft lists the apartment as the residence of  Wesley and Nicole. Wesley was scheduled to be a poll-watcher in Chesterton on election day. At a pre-election training session, Chesterton Police Chief Nelson noticed a document on which Wesley had asked that his fee for poll-watching be sent to the Porter address. Nelson recalled the theft incident and the Chesterton address Wesley gave the police. He mentioned the discrepancy to Dale Brewer, an election official. Brewer did nothing with the information until election day. She and Wesley were both at the Chesterton polls. Brewer asked Wesley if he liked living in Chesterton. Wesley responded that he did not live in Chesterton, at least on a regular basis. Brewer did not question Wesley further about the address discrepancy . Instead, she consulted with the other election board members. All of them agreed that Wesley’s vote should be challenged if there was a residence conflict. Brewer learned from election officials in Porter that Nicole and Wesley had both voted by absentee ballot in Porter. Brewer challenged both ballots.  The Porter poll inspector spoiled the ballots.  The Kozuszeks brought a § 1983 claim, alleging that Nelson and Brewer violated their right to vote. The district court granted the defendants’ motion for summary judgment. The Kozuszeks appeal.

In their opinion, Judges Kanne, Williams, and Tinder affirmed. They observed that the parties agreed that the votes should not have been spoiled.  To be successful on their § 1983 cliam, however, the Kozuszeks had to prove that Nelson and Brewer willfully acted to spoil the ballots. Willfulness requires an intent to undermine the electoral process. Addressing Wilson, the Court found that he did nothing wrong. He merely reported a voting record discrepancy to an elected official. With respect to Brewer, the Kozuszeks rely on a) the fact that Brewer waited until election day to challenge the vote, leaving no time to resolve the issue pre-election, and b) the fact that Brewer neglected to tell the Porter poll inspector about the information (Wesley's statement to Brewer and the pay voucher) that would have supported Wesley's Porter registration.  The Court determined that neither of these facts amounted to willfullness on Brewer's part.  The Court also relied on the fact that there was no evidence that the poll inspector did not exercise independent judgment.  The Court held that no reasonable jury, particularly because Brewer had reasonable explanations for her actions, could find that Brewer acted willfully.

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MOORE v. TULEJA  (October 6, 2008)

On the evening of April 8, Frederick Grady was in a serious accident in his van. He escaped with minor injuries but his van flipped and was badly damaged. Despite the warnings of emergency personnel, Grady reached into his van to retrieve some carpentry tools. He cut his hand badly. The on-scene emergency personnel treated the wound and recorded its occurrence. Later that evening, Grady trespassed on the lot where his damaged van had been taken, in another vain attempt to retrieve his tools. He was arrested. The arresting officer noticed his bandaged hand but did not mention it in his report. The report prepared at the lockup also neglected to mention a hand injury. He was photographed and taken to jail. The photograph showed no signs of injury to his head. The prisoner in the adjacent cell noticed the bandage on his hand. Jail guards noticed Grady sitting in his cell at about 1:30 the next afternoon. A few minutes later, the prisoner in the adjacent cell heard an unusual noise. Shortly thereafter, jail personnel found Grady on the floor of his cell, unconscious. He was pronounced dead at the hospital. An autopsy determined that he died of a heart attack. It also revealed a number of injuries to his body. His estate filed an action under 42 U.S.C. §1983, claiming that various officers and jail personnel deprived Grady of his constitutional rights by using excessive force and depriving him of medical care. The case was based almost exclusively on inferences drawn from the nature of the injuries to Grady’s body. After seven days of testimony from almost every individual who interacted with Grady after his accident, the jury found for defendants. Plaintiffs appeal the denial of their motion for a new trial.

In their opinion, Judges Cudahy, Posner, and Tinder affirmed. The Court first noted plaintiffs' heavy burden on appeal. They will set aside the verdict only if “no rational jury” could have rendered the verdict. The panel moved on to a review of the evidence. All three medical experts agreed that the cause of death was a heart attack. The question for the jury was what triggered the attack. Plaintiffs’ expert opined that the nature of the hand laceration, two head abrasions, and scrapes on Grady’s wrist indicated that Grady had likely been beaten. The Court analyzed each individual injury in turn. They found reasonable bases in the record for the jury's conclusions that a) the hand injury arose from the post-accident event, b) the head abrasions occurred when he collapsed onto the floor of his cell, and c) the wrist scrapes resulted form the short time he was in handcuffs or even from the original accident.  Plaintiffs did not meet their burden. 

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BURRUS V. STATE LOTTERY COMMISSION  (October 6, 2008)

Indiana created the State Lottery Commission of Indiana (the “Commission”) in 1989 to operate lottery games in the state. The legislature set it up to operate as a “separate body politic and corporate” from the rest of state government. The legislature authorized up to $18 million in start up costs. The Commission only used $6 million and repaid that within the year. The lottery has been quite successful. It has generated over $3 billion in profits since its inception. The governor appoints the director and five commissioners who operate the lottery. The Commission has the authority to sue and be sued. It operates independently of the state, although it is heavily regulated by the state.  The Commission deposits all of its revenue into a fund separate from the state’s general revenue fund. The funds are first used to pay for the prizes and operating costs. Each quarter, the remaining funds are disbursed to the credit of the state teachers’ retirement fund ($7.5 million) and the pension relief fund ($7.5 million). Any quarterly surplus is transferred to a fund which is used to support local and state capital projects.

Between January and May of 2005, seven employees of the Commission were fired. They all sued the Commission under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Each alleged that he or she was fired as a result of his or her race. The Commission moved to dismiss the § 1981 claims on the grounds of sovereign immunity. The district court denied the motion. The Commission appeals.

In their opinion, Judges Bauer, Ripple, and Manion affirmed. The appeal raised only one issue – whether the Eleventh Amendment shields the Commission from the §1981 claims. The Court began with the basic proposition that unconsenting states, and their agencies, are immune from federal lawsuits under the Eleventh Amendment. Here, the parties simply disagreed over whether the Commission is a state agency. The Court listed the two factors that generally determine that issue. The first, and most important, is the degree of financial autonomy from the state. The other factor is the general legal status of the entity. The Court observed that the Commission’s complete lack of financial reliance on the state and the total lack of responsibility by the state for any of the Commission’s obligations strongly weighed against finding the Commission to be an agency of the state. While it is true that a judgment against the Commission would deprive the state of revenues it otherwise would have received but for the judgment, the panel noted that the Supreme Court had rejected that “state-benefit” theory of financial dependence.

The second prong of the test, general legal status, also supports the Court’s conclusion that the Commission is not an agency of the state. The Court pointed to a number of factors to support its conclusion: a) it sets its own budget, b) it controls its day-to-day operations, c) it sues in its own name, and d) it enters into contracts in its own name. The fact that the governor appoints the commissioners was given little weight by the Court given the Commission’s financial independence. Finally, the Court noted that the fact that the lottery is the subject of much state regulation does not change the result that the Commission is not an agency of the state and not immune from suit.

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MANNING v. UNITED STATES  (October 6, 2008)

Steve Manning is a former police officer and FBI informant. He was convicted of kidnapping in Missouri and murder in Illinois. Both convictions were overturned. Manning brought a §1983 Bivens action against two FBI agents, alleging that they violated his constitutional rights in their handling of both investigations and prosecutions. Specifically, he alleged that they fabricated evidence and withheld that fact from the prosecutors. He also sued the United States, in the same action, under the Federal Tort Claims Act (“FTCA”) for malicious prosecution and intentional infliction of emotional distress. The claims were tried together. Since FTCA claims cannot be tried to a jury, the jury heard only the Bivens claim. Simultaneously, the court heard the FTCA claim. The jury awarded Manning $6.5 million on the Bivens claim. A year and a half later, the court found against Manning on the FTCA claim. The Bivens defendants moved to vacate the judgment entered on the jury award, invoking the FTCA “judgment bar.” The district court granted the motion. Manning appeals.

In their opinion, Judges Bauer, Flaum, and Manion affirmed. The Court cited the established rule that the victim of a tort committed by a federal law enforcement officer can pursue a constitutional tort action (i.e., a Bivens action) or a common law tort claim against the United States under the FTCA. However, the FTCA provides that a judgment in an FTCA claim bars a direct action against the employee(s) whose act gave rise to the claim. Manning argued, alternatively, that the FTCA does not bar a judgment on a claim pursued in the same action or that the FTCA does not operate retroactively to bar a prior-entered direct judgment. On the “same action” argument, the Court relied on the unambiguous, plain language of the statute and the common meaning of the word “action” to reject Manning’s interpretation. Similarly, the Court found no support in the plain language of the statute for Manning’s retroactivity argument. The panel appreciated the “significant reversal of fortune” for Manning as a result of its holding. It observed that it was, of course, bound by the plain language of the statute. It also pointed to Manning’s strategic choices that led to the unfortunate (for Manning) result.

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