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

ELUSTRA v. MINEO (February 9, 2010)

Three sisters and their friends were enjoying a night at Buffalo Wild Wings restaurant in the summer of 2007. A dispute arose over the girls' bill. The police were called and the girls were arrested on charges of disorderly conduct. The charges were dropped. The sisters brought an action against the restaurant, its owner, and the responding police officer. The girls' mother, Christine Lopez, appeared as next friend of the two minor girls. The magistrate held a settlement conference, attended by the plaintiffs, Lopez, their attorney, and the defendants' attorneys. Although the conference was off the record, the magistrate judge reported that the parties agreed to a $6000 settlement. The girls' father, a nonparty, argued with the girls' attorney and declared that he would find new representation. At that point, the family left, although their attorney remained. The Magistrate Judge entered a recommendation to the district court to dismiss the case with prejudice in accordance with the settlement agreement. At a hearing a short time later before the district court, the girls' attorney appeared again and advised the district court that the girls' recollection was that was no agreement. The district court dismissed the case with prejudice. Ten business days later, Lopez filed a handwritten pro se “Motion to vacate and Reinstate.” Newly retained counsel supplemented the motion nine days later. The district court did not recognize the pro se filing as a Rule 59(e) motion and treated counsel’s motion as a Rule 60(b) motion and denied it. The girls appeal.

In their opinion, Judges Flaum, Wood and Sykes affirmed. The Court first considered its scope of review. If Lopez' handwritten motion is considered as a timely Rule 59(e) motion, then the time to appeal the underlying judgment did not begin to run until that motion was denied and the Court can consider the merits. If not, the Court can only review the denial of the motion to reconsider. The problem with the first motion is that it was brought pro se by Christine Lopez. Normally, next friends and other representative parties may not appear pro se. Although the Court determined that federal law controlled whether Lopez’ filing should be allowed, it found guidance within Illinois state law. The Court cited several Illinois cases where the court applied a flexible rule, particularly where the filing simply preserved a party's right to go forward, as opposed to a more general prosecution of a suit. The Court also emphasized that the purpose of the rule is to protect the rights of the represented party. The Court concluded that the circumstances of the case -- where the parties had counsel through judgment, where the parties retained counsel to litigate the Rule 59(e) and later proceedings, where the parties were only unrepresented for a short time, but where the next friend filed a pro se motion during that time to preserve their appellate rights -- warranted a recognition of the motion. The Court also concluded that the motion met the requirements of Rule 7(b)(1), notwithstanding its brevity. It was in writing, it stated the grounds for seeking the order, and it stated the relief sought. Having reached the merits, however, the Court rejected the girls' position. An oral settlement agreement is valid if there is an offer, acceptance, and meeting of the minds. Here, the only contemporaneous evidence is the magistrate judge’s statement on the record that the parties understood the consequences of their agreement and reached a settlement. That is enough to conclude that there was a meeting of the minds.

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LAFARY v. ROGERS GROUP, INC. (January 12, 2010)

Angela LaFary was a field clerk for Rogers Group, Inc. (RGI), a producer of crushed stone. In 2003, she was performing primarily administrative duties but longed for a chance to get into sales. Michael DeMartin, her supervisor, indicated she was on a track to do so. Unfortunately, she got derailed in 2004. In February, she married a man who worked as an independent trucker for the same RGI office. She found out she was pregnant on March 15. On March 24, DeMartin proposed, in an e-mail, to transfer LaFary to another RGI office. He noted business needs as well as a concern about the possible conflict of interest presented by LaFary's marriage. He recommended a transfer based solely on the business needs, however. On April 1, RGI assigned LaFary's husband to work with a different RGI office. In the same month, they transferred LaFary to the same office. Although DeMartin knew she was pregnant when he transferred her, he asserts that he was unaware of her pregnancy at the time of his recommendation. The transfer resulted in a pay increase but may have negatively affected LaFary's opportunities for a sales position. LaFary suffered complications from her pregnancy. She was hospitalized for two weeks in June and never returned. In January of 2005, although LaFary indicated her desire to return, DeMartin informed her that, pursuant to RGI policy, she was terminated because she did not return when her leave expired. LaFary filed an EEOC complaint, alleging sex discrimination. She then brought suit under Title VII. The court granted summary judgment to RGI. LaFary appeals.

In their opinion, Judges Flaum, Wood, and Sykes affirmed. On the claim related to her transfer, the Court noted that the district court found both that it was not an adverse employment action and that LaFary did not establish that DeMartin knew of her pregnancy at the time he proposed her transfer. Although finding the first conclusion a close question, the Court affirmed on the second. LaFary's declaration stated only that DeMartin knew of her pregnancy "shortly after" she became pregnant. It never stated precisely when he knew. In fact, she never presented any competent evidence that DeMartin knew of her pregnancy at the time he recommended her transfer. Thus, she cannot prevail on that claim. With respect to her termination claim, the Court concluded that LaFary never established that a similarly situated individual not in her class was treated more favorably. Having failed to do so, she cannot prevail on the termination claim either.

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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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MAJESKI v. METROPOLITAN LIFE INSURANCE CO. (December 29, 2009)

Kirsten Majeski was a nurse consultant for Metropolitan Life Insurance Co. ("MetLife"). Her typical workday involved sitting at a desk, using a phone and computer. In 2006, she was diagnosed with cervical radiculitis, a compression in the upper spinal. MetLife originally approved short-term disability benefits. It later determined that Majeski was not entitled to benefits, concluding that her impairment did not prevent her from performing her job. Majeski appealed and submitted medical evidence from her doctor and physical therapist. The conclusion of the medical evidence was that she had difficulty sitting and using her hands -- and was thus unable to perform her job. MetLife had a physician review the records. He concluded that there were "minimal objective findings" to support the suggested limitations. MetLife rejected the appeal. Majeski brought suit under ERISA. The district court granted summary judgment to MetLife. Majeski appeals.

In their opinion, Judges Wood, Evans and Tinder vacated and remanded. The Court first rejected Majeski's argument that the Supreme Court's decision in Glenn required a heightened standard of review. The Court admitted that it was still undecided on how to weigh a Plan administrator's conflict of interest. In Marrs, the Court concluded that the circumstances of the case should determine the impact of the conflict. The Court also rejected Majeski's argument that the district court should have considered evidence outside of the administrative record. On the merits, however, the Court agreed with Majeski. The physician's report on which MetLife solely relies did not address key findings presented by Majeski's medical evidence. Although the report concludes that there were "minimal objective findings," the Court cited several objective findings contained in Majeski's material that MetLife physician failed to mention or rebut. The failure to address this significant medical evidence amounts to an absence of reasoning and lack of fair review. The Court declined to rule directly in Majeski's favor, concluding that the typical and proper course is to remand to the plan administrator.

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FANNON v. GUIDANT CORP. (October 21, 2009)

Guidant Corporation is a worldwide manufacturer of medical devices, including pacemakers and implantable cardioverter defibrillators ("ICDs"). In the 1990s, Guidant released a new ICD model. Within a few years, it discovered a design flaw. Although it corrected the flaw in new production runs, it never recalled the flawed units nor did it advise doctors or the public of the flaw. In 2004 and 2005, Guidant and J&J were involved in merger negotiations. Guidant issued several press statements and filed several SEC forms without mentioning its potential liability arising from the flawed devices. After a young man died and the New York Times prepared to report on the flaws, Guidant disclosed the problems in a letter to physicians. Shortly thereafter, the FDA issued a national recall. Guidant's stock price fell and J&J reconsidered its merger intentions. Eventually, Boston Scientific agreed to buy Guidant. Guidant's share price fluctuated between $63 and $80 during this time period. A number of class-action suits were filed, beginning in 2005. Some were voluntarily dismissed -- a second set was consolidated in the district court. Almost a year after the first complaints were filed, plaintiffs in the consolidated cases filed a consolidated complaint. A few days later, plaintiffs filed an amended consolidated complaint. Almost two years later, the court dismissed the complaint on the ground that it failed to meet the stringent scienter pleading requirements of the Private Securities Litigation Reform Act. The court also denied plaintiffs leave to amend and denied a rule 59(e) motion to set aside the judgment and allow for an amended complaint. Plaintiffs appeal.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court first noted that the plaintiffs, in their appeal, do not challenge the district court's evaluation of the merits of the complaint. They only challenge the court's decisions to dismiss the complaint with prejudice and to not allow an amendment. The Court recognized the jurisprudence which advises that a better course in PSLRA cases is to dismiss without prejudice. The Court also recognized the specific factual backdrop of the case -- that numerous individual cases had been filed, that a consolidated complaint was filed a year later, that the consolidated complaint was amended and that the dismissal came two years after that. Given the amount of time and number of opportunities, the Court concluded that the district court did not abuse its discretion in dismissing with prejudice. With respect to the court's denial of the Rule 59(e) motion, the Court also concluded that it was not an abuse of discretion. The Court relied on the facts that plaintiffs made a strategic decision not to insert new evidence prior to the original ruling on the motion to dismiss and also that the court below was of the opinion that the amended complaint did not adequately address the deficiencies of the original complaint.

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WALSH v. CHEZ (October 21, 2009)

Jason Walsh was diagnosed with autism early in his life. His parents took him to Dr. Michael Chez for treatment. Chez prescribed a daily dosage of 50 mg of prednisone. One side-effect of prednisone is its negative impact on the body's ability to fight infection. A short time after the beginning of his prednisone treatment, Jason developed pneumonia. Dr. Chez reduced the prednisone treatment from 50 mg per day to 50 mg twice a week. A few months later, Jason died. Jason's parents brought a medical malpractice case against Dr. Chez. The Walshes submitted expert reports supporting their theory that the abrupt dosage reduction was the cause of their son's death. The district court excluded the reports on the ground that they failed to articulate a standard of care. The court dismissed the case. The Walshes appeal.

In their opinion, Judges Cudahy, Flaum and Wood reversed and remanded. The Court focused on the Rule 26 duty to disclose information regarding an expert's testimony. The purpose of the rule is to allow an opposing party a reasonable opportunity to address the expert's opinion. Examining the reports of the two experts, the Court concluded that each expressed an opinion that the conduct of Dr. Chez was not consistent with the standard of care. Dr. Chez was on notice of the Walshes' theory of malpractice. The fact that there may have been numerous ways of properly weaning Jason from the prednisone does not affect the experts' opinions that Dr. Chez' approach fell below the standard of care.

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AMERICAN RIVER TRANSPORTATION CO. v. RYAN (August 27, 2009)

Kerrie Vesolowski was a passenger on a motor boat when it collided with a barge. Vesolowski sued American River Transportation Co. to recover for injuries in state court. American filed an action in federal court pursuant to the Shipowner's Limitation of Liability Act. The Act limits a shipowner's liability to the value of its ship if it can prove that the acts complained of occurred without its privity or knowledge. The Act also requires that any claims brought against the owner “cease” during the pendency of the proceedings. The district court ordered that Vesolowski’s proceedings be stayed. Vesolowski complied. After more than a year, American asked the court to find Vesolowski (and others) in contempt and to impose sanctions. The court granted the motion and required Vesolowski to dismiss her state court action. Vesolowski appeals.

In their opinion, Judges Bauer, Ripple and Wood reversed and remanded. The Court first clarified its jurisdiction, noting that it has jurisdiction over an order modifying an injunction but lacks jurisdiction over an order interpreting an injunction. The Court concluded that the order modified the earlier injunction because it required that the case be dismissed, rather than merely stayed. Addressing the merits, the Court noted that the order had two possible bases: 1) the Act requires a dismissal rather than a stay, or 2) the Act requires only a stay and the dismissal is a sanction for Vesolowski's actions during the stay. The Court rejected the first basis. The use of the word "cease" in the Act and the Act's provision preserving Vesolowski's right to her state court remedy convinced the Court that the Act only requires a stay. The Court rejected the second basis as well, as it found no grounds for a sanction. The state case remained stayed. Vesolowski's only action was to add additional defendants and theories of liability. American never had to respond in state court. The Court expressed its opinion that the district court did not intend the dismissal order to be a sanction. If it did, however, it was an abuse of discretion.

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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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BROOKS v. ROSS (August 20, 2009)

Victor Brooks served on the Illinois Prison Review Board ("PRB"). One of the functions of the PRB is to make certain parole decisions. In 2002, the parole request of inmate Harry Aleman came before the PRB. The hearing was unusual both because of Aleman's notoriety for murder and bribery and because a Department of Corrections employee provided a statement in support of his parole. Brooks cast the only vote in support of parole. Because of the high profile of the situation, the department began an investigation. The investigation resulted in several reports, some of which accused Brooks of accepting bribes to vote in favor of parole. Eventually, Brooks and the department employee were indicted for their conduct -- and later acquitted. Brooks filed suit under § 1983 and state law against numerous state officials, alleging claims of deprivation of due process, malicious prosecution, conspiracy and intentional infliction of emotional distress. The district court dismissed for failure to state a claim. Brooks appeals.

In their opinion, Judges Flaum, Wood and Tinder affirmed. The Court chose to address the claims under principles of timeliness, sovereign immunity and pleading requirements. First, a § 1983 claim borrows its statute of limitations from a state personal injury action. Here, that limitation is two years. Brooks' complaint was filed within two years of his acquittal, but more than two years after his indictment. The malicious prosecution and federal due process claims both require an allegation of acquittal and are therefore timely. The federal and state conspiracy claims and the intentional infliction of emotional distress claim complain of his prosecution. An acquittal is not a pleading element of any of them. Under Illinois law, the Court concluded that the indictment was a single overt act that triggered the statute of limitations for those claims. They are therefore time-barred. Second, Illinois law requires tort suits against the state to be brought in the Illinois Court of Claims. Although the Court recognized the exception if a state actor exceeds his authority, it concluded that the malicious prosecution claim did not fall within the exception and was therefore barred. Finally, the Court concluded that Brooks' due process claim did not meet the pleading requirements of the Supreme Court's recent opinions in Twombly, Erickson and Iqbal. Under those cases, a plaintiff is required to provide notice of his claim, a court must accept allegations as true unless they fail to provide sufficient notice, and the court need not accept conclusory or abstract allegations. Here, Brooks does provide many specific allegations, but the allegations describe conduct that is just as consistent with legal behavior as it is with illegal behavior. The only allegations that adequately describe illegal behavior merely recite the elements of the cause of action and do not put the defendants on notice of their specific conduct that is alleged to have violated the Constitution or law.

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DEAR v. SHINSEKI (August 20, 2009)

Deborah Dear, an African-American woman, had impressive educational and employment credentials when she was hired by a Veterans Affairs hospital in 2004. She continued to do well and received positive evaluations for a few years. In 2006, however, her supervisor discovered that the morale in her department was very low and staff members were complaining about Dear’s supervision. The supervisor also witnessed Dear engage in inappropriate discipline. Another supervisor asked Dear to develop and submit a plan for improving the situation. Dear did develop and submit a plan -- but it was late and failed to address many of the issues. Dear was temporarily reassigned to a non-supervisory position with a decrease in salary. She was replaced by a white woman. Dear filed an EEO complaint alleging race discrimination. Several days later, she was permanently reassigned to a staff nurse position. Dear filed a lawsuit pursuant to Title VII, alleging race discrimination, retaliation and hostile work environment. The district court granted summary judgment to the defendant. Dear appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed. The Court addressed Dear’s discrimination claim under the indirect method of proof. The parties did not dispute that Dear was in a protected class and that her reassignment was an adverse employment action. The Court addressed the other two elements: whether she was meeting her employer's legitimate expectations and whether she identified a similarly situated employee who was treated more favorably. The Court concluded that she met neither element. With respect to meeting expectations, Dear relied on her impressive education and employment history. While those may be relevant, the Court emphasized that it must look to her performance at the time of the adverse employment action. The record contained several instances of her failure to meet expectations at the time of her reassignment. Dear also failed to meet her burden of identifying a similarly situated employee who was treated differently. The same two shortcomings prevent her from avoiding summary judgment on her retaliation claim. Finally, with respect to her hostile work environment claim, the Court noted that there was little support in the record for her contention that the environment was hostile to African-Americans.

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HABER v. BIOMET, INC. (August 20, 2009)

Biomet produces artificial joints. It contracted with Paul Haber to be its distributor in parts of Florida. Their relationship was governed by two contracts -- one made in 1995 and one made in 1999. The 1995 contract contained a forum selection clause favoring an Indiana court. The 1999 contract contained a clause requiring arbitration in Chicago. Biomet came to believe that Haber was in breach of the contracts and brought an action in Indiana state court. In response, Haber filed a complaint in the local federal court to compel arbitration. The federal court dismissed the complaint, concluding that venue for such an action was proper only in Chicago, the selected forum of the arbitration. Haber also moved to compel arbitration in the state court action. The state court compelled arbitration only on claims that arose under the 1999 agreement and ordered Biomet to identify which of its claims arose under that agreement. Haber did not appeal the state court decision -- Haber did appeal the federal court decision.

In their opinion, Judges Posner, Kanne and Wood affirmed. Before addressing the venue issue, the Court addressed res judicata. The Indiana court, although not resolving all matters, concluded that claims under the 1995 agreement were not arbitrable. The Court had to decide whether that ruling was of sufficient finality to be afforded res judicata effect. Indiana requires finality for issue preclusion. The factors a court should look at are whether: the parties were fully heard, the decision was rendered in a reasoned opinion, the order was appealable, and the order was appealed. The Court concluded that the state court’s order was final. The issue was before the court, was decided in a reasoned opinion and was appealable (though not appealed). Having found finality, the Court easily concluded that the order met the next four elements barring relitigation: a court of competent jurisdiction, an issue actually determined, identical parties, and a decision on the merits. The state court ruling was entitled to preclusive effect. The Court also briefly addressed the venue issue. Section 4 of the Federal Arbitration Act requires that, if an arbitration clause selects a forum for arbitration, a motion to compel the arbitration must be brought in a court in the forum selected. The venue decision was thus proper.

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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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SHARP ELECTRONICS CORP. v. METROPOLITAN LIFE INSURANCE CO. (August 18, 2009)

Sandra Rudzinski was an active employee of Sharp Electronics when she began experiencing fatigue and headaches. As a Sharp employee, she participated in its disability plan. Under the plan, Sharp paid short-term benefits during an initial 180-day period and Metropolitan Life Insurance Company ("MetLife") paid long-term benefits. Sharp paid premiums to MetLife on behalf of its employees. Rudzinski received short-term benefits from Sharp and applied for long-term benefits from MetLife. MetLife denied her application, first on the ground that she had a pre-existing disability and later on the ground that she had not completed the 180 days of short-term benefits. Rudzinski sued MetLife under ERISA. During the litigation, MetLife told Rudzinski that MetLife also denied her benefits because Sharp stopped remitting premium payments after her employment ended. She added Sharp as a defendant. She accused Sharp of interfering with her benefits, violating fiduciary duties, and for telling her that she could maintain her benefits by obtaining a conversion policy. Sharp cross-claimed against MetLife, alleging breach of fiduciary duty, equitable estoppel and indemnity. Rudzinski voluntarily dismissed her claim against Sharp and the court entered judgment in her favor in her claim against MetLife, leaving only Sharp's cross-claim. Sharp filed an amended complaint, alleging breach of fiduciary duty under ERISA, indemnification, negligence, negligent inducement, negligent misrepresentation, abuse of process and common-law breach of fiduciary duty. The court granted MetLife's motion to dismiss, concluding that MetLife had not breached a fiduciary duty and that the state law claims were preempted by ERISA. Sharp appeals.

In their opinion, Judges Kanne, Rovner and Wood affirmed with respect to ERISA and vacated and dismissed with respect to the state law claims. In order to recover under its ERISA claim, Sharp had to prove that MetLife owed it a fiduciary duty, that it was involved in fiduciary functions when it told Rudzinski about Sharp's failure to pay premiums, and that it was seeking damages for losses suffered by the plan (as opposed to the company). Although the Court agreed that Sharp and MetLife both occupied fiduciary roles, it concluded that MetLife did not owe a fiduciary duty to Sharp. It also concluded that Sharp's only losses were its fees and expenses in defending the suit brought by Rudzinski, losses not recoverable under ERISA. With respect to the state law claims, the Court disagreed with the district court that they were preempted by ERISA. ERISA does not preempt state law claims that are not related to a benefit plan. Here, Sharp's claims relate to its contractual relationship with MetLife. Even though the subject of that relationship is a benefit plan, claims relating to the contract are not preempted. The Court nevertheless dismissed the state law claims based on the lower court's alternative ruling that it would not exercise its discretion to hear the state law claims, considering that the only federal claim was dismissed. 

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JUSTICE v. TOWN OF CICERO (August 14, 2009)

On the basis of an affidavit of a local building inspector asserting that John Justice was operating a business without a license and was likely illegally storing chemicals, a state judge issued a search warrant. During the search, the police discovered several unregistered guns. The town seized the guns and ticketed Justice for their possession. Justice responded with a lawsuit against the town and several individuals. Justice alleged a lack of probable cause for the search and challenged both the business license and firearm ordinance. He also asserted various antitrust claims arising out of the town's water supply charges. The district court dismissed the entire complaint for a failure to state a claim. Justice appeals.

In their opinion, Judges Bauer, Wood and Tinder affirmed. The Court took each of Justice's allegations in turn. With respect to his challenge of the business license ordinance, the Court noted that the town was a home-rule unit with the power to regulate and license. The Court agreed with the district court that the ordinance was a proper application of that power. The Court next rejected Justice's challenge to the search. The search was conducted pursuant to a properly issued warrant. With respect to the firearm ordinance, the Court noted the Supreme Court's recent decision in Heller, which struck down a District of Columbia handgun prohibition, and the Court's even more recent decision in City of Chicago, which concluded that the Second Amendment did not apply to the states. Justice has no case either because City of Chicago was decided correctly and the Second Amendment does not apply to the town, or, even if the Second Amendment does apply, the ordinance is consistent with Heller in that it only regulates – and does not prohibit - gun possession. Finally, the Court summarily affirmed the district court with respect to Justice's various claims with respect to the town's water supply practices. Water supply is a traditional government activity authorized by state law. The town is immune from both federal and state antitrust liability for its water supply activities.

 

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SCHOR v. CITY OF CHICAGO (August 13, 2009)

The City of Chicago passed an ordinance that prohibits the use of a mobile phone while driving unless it is used in conjunction with a "hands-free" device. Three individuals who were ticketed for violating the ordinance filed an action against the City, alleging violations of the Fourth Amendment, the Equal Protection Clause and Illinois law. The district court dismissed the claims and refused to allow an amendment to the complaint. The plaintiffs appealed.

In their opinion, Judges Manion, Rovner and Wood affirmed. The Court rejected the Fourth Amendment claim. The officers making the stops observed each plaintiff violating the ordinance. Those observations provided probable cause for the stop – and thus no Fourth Amendment violation. The Equal Protection Clause claim was a "class of the one" claim. To succeed on that claim, the Court stated, the plaintiffs had to show that they were treated differently and that there was no rational basis for the difference in treatment. Here, the drivers were treated differently than other drivers who were not using mobile phones. The basis for the differential treatment, however, was the violation of an ordinance -- clearly a rational distinction. The Court rejected the plaintiffs' Monell claims as well. A direct claim against a municipality must be based on an underlying constitutional violation, which is not present here. Finally, the Court concluded that the district court's refusal to allow an amendment to the complaint was not an abuse of discretion. In the amendment, the plaintiffs sought to include a claims that the ordinance violated their fundamental right to travel and a claim that the ordinance was void for vagueness. The plaintiffs failed to indicate how the ordinance infringed any right to travel or how its terms were so vague that an ordinary person could not understand.

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WELLPOINT, INC. V. JOHN HANCOCK LIFE INSURANCE COMPANY (AUGUST 7, 2009)

In 1996, WellPoint and John Hancock Life Insurance Company (Hancock) entered into a complex business transaction. The transaction was documented with a series of contracts, each of which contained an express arbitration clause. A dispute arose. WellPoint and Hancock both demanded arbitration. Pursuant to the arbitration procedure agreed upon, each appointed its own party arbitrator. When the party arbitrator’s could not agree on a third arbitrator, the AAA made the appointment, again as provided in the agreements. After over two years of extensive discovery and procedural disputes, WellPoint's party arbitrator resigned. Hancock objected but the panel, including Hancock's party arbitrator, approved the resignation. Hancock again objected when WellPoint proposed specific names for the vacancy. Hancock's party arbitrator proposed a compromise that WellPoint accepted -- and Hancock supported. Under the proposal, the panel suggested several candidates from which WellPoint could choose. Again, Hancock objected but also agreed that the replacement arbitrator met the prerequisites for service. The panel awarded WellPoint almost $30 million. WellPoint filed a petition to confirm the award -- Hancock cross-petitioned to vacate the award. The district court confirmed the award. Hancock appeals.

In their opinion, Judges Bauer, Ripple and Wood affirmed. The Court rejected Hancock's argument that the panel "exceeded their powers" under § 10(a)(4) of the Federal Arbitration Act when they selected a third arbitrator in a manner not provided for in the agreement. Although the Court conceded that the party's agreements did not provide a process for filling a vacancy, it noted that § 5 of the Act does. Section 5 expressly provides that a district court can appoint an arbitrator in the event of a vacancy were no provision exists in the party's agreement. Given the express remedy in § 5, the Court was unwilling to interpret the act in a way that would allow a party to forgo its § 5 remedy but get the same relief under § 10 after the arbitration is complete -- and it loses. Hancock's failure to avail itself of the remedy under § 5 amounts to a forfeiture of its challenge to the third arbitrator.

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FISCHER v. LIBERTY LIFE ASSURANCE CO. (August 4, 2009)

After five years as a programmer with Stein Roe, Bruce Fischer complained of memory loss and problems with his attention. He applied for and received short-term disability benefits. A few months later, he submitted a claim for long-term benefits. The three medical reports he submitted with his application contained diagnoses of severe or profound depression. The plan administrator approved his application but informed him of the plan's 24-month maximum benefit period for mental illnesses, including depression. After the 24 months, the plan discontinued Fischer's benefits. Fischer continued to see additional medical personnel during the period of the plan's evaluation and his appeal. In all, at least thirteen physicians reviewed Fischer’s case. There was disagreement among the physicians as to whether Fischer's condition was organic or psychological. Fischer brought an action under ERISA for reinstatement of benefits. The district court granted summary judgment to the plan administrator. Fischer appeals.

In their opinion, Judges Posner, Flaum and Wood affirmed. The Court noted its limited scope of review. Only if the plan's decision is arbitrary and capricious will the court disturb it. The Court noted the "ample evidence" in the record supporting Fischer's contention that his condition is organic, at least in part. It also noted, however, the evidence in the record that concluded that his condition was solely psychological. On that record, applying an arbitrary and capricious standard of review, Fischer cannot prevail.

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BAIRD v. RENBARGER (August 3, 2009)

Joe Baird owned a body shop in Shelbyville, Indiana. After he purchased an antique automobile, he had his office call the police department to check the vehicle's motor number. Although an officer verified the number, he soon thereafter reported his suspicion to a prosecutor that the number was altered. He obtained a search warrant for the automobile and he and several other officers, including Officer Renbarger, executed the warrant. Officer Renbarger carried a 9 mm. submachine gun and rounded up a number of people in the surrounding shops and warehouses, including a group of Amish men. He held the individuals for almost two hours while the search was conducted. The officers located the car and concluded that the motor number had not been altered. Baird brought suit against the officers pursuant to 42 U.S.C § 1983. He alleged violations of the Fourth Amendment and state law claims for trespass, negligence and false imprisonment. The district court denied Renbarger's motion for summary judgment on the basis of qualified immunity. Renbarger appeals.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court set out the two-step Saucier inquiry: whether a constitutional right has been violated and whether that right was clearly established at the time of the conduct. Whether the seizure was unreasonable is an objective test requiring an analysis of the severity of the alleged crime, the presence of an immediate threat and whether there is any resistance. Here, these factors all support the unreasonableness of the seizure. The only alleged crime concerned a vehicle motor number. No officer had any reason to believe there was any imminent threat. No one resisted the detention. The Court concluded that a jury could find that Renbarger violated Baird's rights. With respect to the second step of the inquiry, the Court concluded that it was clearly established that police officers are not entitled to point guns at citizens when there is no suggestion of any danger. The Court concurred with the district court's denial of qualified immunity.

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ASKEW v. SHERIFF OF COOK COUNTY (May 18, 2009)

Carl Askew alleges that he was the victim of excessive force at the hands of Officer Lopez while a pretrial detainee in the Cook County Jail. He filed a lawsuit naming Lopez and the Sheriff. He included two theories of relief under a 42 U.S.C. § 1983 -- that Lopez used excessive force and that Lopez was deliberately indifferent to his safety. The district court dismissed his complaint on the grounds that he failed to name Cook County as a defendant. Askew appeals.

In their opinion, Judges Flaum, Rovner and Wood vacated and remanded. The Court concluded that the district court misapplied Rule 19. Rule 19 draws a distinction between joinder of parties when it is feasible and joinder of parties when it is not feasible -- because it would defeat jurisdiction or the party is beyond the personal jurisdiction of the court or the party could make an objection to the venue. Rule 19 (a)(1) addresses a "required party" whose joinder is feasible. Once such a party is identified, Rule 19 (a)(2) requires a court to order that the person be made a party. Here, the Court concluded that the lower court was correct in finding that Cook County was a required party, at least part of it. It correctly read Carver II for the proposition that an Illinois county is a necessary party in any suit seeking damages from its sheriff. Ironically, Askew waived his claim against the Sheriff in his appellate brief. Although he did so under the mistaken impression that the lower court was correct in dismissing the claim against the Sheriff, he is bound by his waiver. The case may still proceed against Lopez, however. The county is not an indispensable party in the case against Lopez. Any judgment entered against Lopez would be entered against him in his individual capacity notwithstanding any right on his part to recover the judgment from the county.

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ILLINOIS INVESTMENT TRUST NO. 92-7163 v. AMERICAN GRADING CO. (April 8, 2009)

Resource Technology Corp. ("RTC") collected methane gas at landfills and converted the gas into energy. In 1995, RTC entered into a ten-year lease at the McCook landfill. RTC was to install and operate a methane collection and conversion system in exchange for royalties. Although the actual royalties were computed on the sale of electrical energy, the lease required RTC to pay a $100,000 royalty advance at the beginning of each year. RTC entered bankruptcy in 1999. The bankruptcy proceeded for several years. When the 2006 royalty advance payment became due, the trustee did not pay it. A few weeks later the owner of the landfill requested that the trustee refrain from entering the premises. In March of 2006, the trustee entered into a settlement agreement with some of RTC's creditors. Illinois Investment sought an order under the agreement compelling the estate to assume the McCook lease. The lessor objected, asserting that the ten-year lease term had expired. The court ruled that the lease had been extended for a five-year term. The lessor then sent a notice of termination of the lease. The bankruptcy court determined that the lessor validly terminated the lease as a result of RTC's failure to make the royalty payment. Illinois Investment appeals.

In their opinion, Judges Manion, Wood and Williams affirmed. The Court ruled that the failure to pay the advance royalty was a material breach and allowed the lessor to terminate the lease. Even if no royalties were generated during the year, as Illinois Investment argued, the Court concluded that the advance royalty was still required, as security for RTC's performance under the lease.

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FOR YOUR EASE ONLY, INC. v. CALGON CARBON CORP. (March 31, 2009)

For Your Ease Only ("FYEO") sells jewelry boxes on the Home Shopping Network (“HSN”). Several years ago, FYEO obtained a default judgment in excess of $2 million against Mark Schneider and his wholly owned company Product Concepts Company ("PCC"). At the time of the judgment, PCC's principal assets were a relationship with and the right to payments from the HSN. In order to collect the judgment, FYEO began searching for assets. Schneider had since moved to Costa Rica. It noticed the deposition of Doug Fournier, Schneider’s brother-in-law. The subpoena advised Fournier of the lawsuit and the judgment. When Fournier got the subpoena, he met Schneider in Costa Rica. There, Schneider transferred his company's rights under the HSN agreement to a company that Fournier would create when he returned to the United States (Anewco). FYEO served HSN with a third-party citation prohibiting them from transferring any property or money to the judgment debtors. Notwithstanding the citation, HSN paid almost $400,000 to Anewco. FYEO requested an order for the turnover of all payments made by HSN. The district court denied the request, concluding that Fournier had acted in good faith and the transfer was not voidable under the Uniform Fraudulent Transfer Act (UFTA). FYEO appeals.

In their opinion, Judges Posner, Wood and Tinder vacated the judgment of the district court and remanded. The Court identified one of the central issues on appeal as whether Schneider’s transfer to Fournier was made in good faith. Relying on Illinois cases, the Court concluded that a transferee who knows about a judgment against a transferor does not take assets in good faith. Here, the records indicated that Fournier knew about the judgment against Schneider at the time of transfer. Since he did not accept the assets in good faith, the transfer is voidable under the UFTA. The other issue on appeal is whether HSN violated the citation when it began making payments to Anewco. The Court rejected HSN's argument that it should not be found liable because it faced the choice of violating the citation or breaching the contract. The Court noted that HSN could have arranged to have had the funds held in escrow or in the registry of the court. Nevertheless, the Court concluded that the record was not clear that HSN had actually violated the citation. The Court therefore remanded for the district court to make that initial determination.  

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CAMPION, BARROW AND ASSOCIATES, INC. v. CITY OF SPRINGFIELD (March 24, 2009)

Dr. Michael Campion, through his firm, provided psychological evaluations. His clients included the City of Springfield. The services were provided pursuant to a contract executed in 2000 and automatically renewed annually. Timothy Davlin became mayor in 2003. Davlin was quite vocal in his criticism of psychological evaluations but continued the services on the advice of a city attorney. Beginning in mid-2004, several articles in the local newspaper criticized Dr. Campion for his involvement with a conservative group and his failure to disclose that involvement on his resume. An alderman reacted to the articles by pressuring Davlin to replace Dr. Campion. In mid-2005, the City Council unanimously approved a contract with a different psychologist. Although the city did not terminate the contract with Dr. Campion, it began referring all evaluations to the new psychologist. Dr. Campion brought an action against the city pursuant to § 1983, alleging that the city violated his First Amendment rights. The district court granted summary judgment to the city, concluding that Campion had not demonstrated that his speech was a motivating factor in the city's decision. Campion appeals

In their opinion, Judges Manion, Wood and Williams affirmed. The Court noted that the only issue before it was whether Campion produced enough evidence that his protected activity was a factor in the city's decision. The Court rejected Campion's argument that it was the mayor, not the City Council, that actually had the power to act. Illinois law authorizes only the City Council to enter into contracts. The evidence here supports the fact that it was the Council that acted. The Court concluded that there was a lack of evidence indicating that the City Council was retaliating against Campion because of his speech or associations.

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HECKER v. DEERE & COMPANY (February 12, 2009)

Deere & Co. sponsors 401(k) plans for its employees. It engaged Fidelity Management Trust Co. (“Trust”) to serve as trustee of two of the plans. Trust administered employees’ accounts, maintained records, and advised Deere regarding investment options to include in the plans. Both plans offered many different investment choices – Fidelity mutual funds, two investment funds managed by Trust, a Deere stock option, and an option that provided a link to over 2500 funds managed by different companies. The plan’s participants managed their own funds from among the choices. Each of the funds imposed a percentage of assets fee upon participants. Fidelity Management & Research Co. (“Research”) is the investment advisor for the Fidelity mutual funds. Research earned revenue from the mutual fund fees and shared it with Trust. Trust’s only compensation for managing Deere’s plans was the fee from Research. Dennis Hecker and other plan participants brought this class action against Deere, alleging that Deere violated its fiduciary duty under ERISA by providing options in the plans that charged excessive fees and by not disclosing the fee structure between Trust and Research. Hecker also sued Trust and Research as functional fiduciaries. The district court granted defendants’ motions to dismiss without addressing the class issue. Hecker appeals.

In their opinion, Judges Manion, Wood and Tinder affirmed. The Court addressed several issues on appeal:
     1) Defendants’ motions to dismiss included hundreds of pages of documents related to the plans. The documents were either referred to in the complaint or were publicly available. The Court rejected Hecker’s argument that the district court improperly considered documents outside the complaint. The documents were used only to show the disclosures that had been made to plaintiffs. The district court was within its discretion to consider them without converting the motion to one for summary judgment.
     2) Deere admits that it owed some fiduciary duties to plaintiffs. Trust and Research, however, deny that they are fiduciaries. The district court agreed. Hecker argues only that they are “functional fiduciaries.” In order to be a functional fiduciary, the Court stated, one must exercise some discretionary management or control over the plan. The Hecker complaint alleged that Trust and Research “played a role,” not that they exercised control. The Court held Hecker to his complaint and rejected his attempts to change his theory on appeal.
     3) Even if Deere left an inaccurate impression that it was paying for the management of the fund, the Court agreed with the district court that there was nothing illegal about the revenue sharing agreement described in the complaint. The participants were fully informed of the amount of fees imposed by each fund and were free to direct their assets to whichever fund they chose. In order for there to be a breach of a fiduciary duty, there must have been a material omission. How Research distributed its fee is not material to plaintiffs – and they cannot make out a breach of fiduciary duty claim for that omission.
     4) Hecker also asserts that Deere breached its fiduciary duty by selecting investment options with excessive fees. The Court held that no rational trier of fact could conclude that Deere failed to offer a sufficient array of vehicles – it offered over 2500 different vehicles with varying fees, all of which were also available to the public. The Court could find nothing in ERISA that required any particular mix of plans – so Deere’s decision may not even be within its fiduciary responsibilities. Even if it is, the Court found no breach. 
     5) The Court also addressed the ERISA “safe harbor” provision as an alternative grounds for affirmance. The normal ERISA imposition of a fiduciary duty on a plan manager is modified when the participants: exercise independent control of their assets, can choose from a broad range of alternatives, and have sufficient information to make informed choices. Then, a fiduciary is not liable for a participant’s loss resulting from that exercise of control. Although this “safe harbor” provision is an affirmative defense normally not applied on a Rule 12(b)(6) motion, the Court noted that it can be applied when the complaint establishes the very elements of the defense. Here, the 2500+ options to plan participants with fees ranging from .07% to 1% establish the elements of the safe harbor for Deere and Trust and Research.
     6) The Court summarily rejected Hecker’s complaints with respect to the court’s refusal to entertain an amended complaint and its award of costs.

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DOSS v. CLEARWATER TITLE (December 24, 2008)

Doss refinanced his home. First Franklin Financial Corporation (“Franklin”) loaned him $135,000 on the condition that he obtain title insurance. He did so. At closing, the itemization of costs indicated that he paid $500 for the title insurance. In fact, he paid almost $1500. Doss filed suit against Franklin and others, alleging violations of the Truth in Lending Act (“TILA”) and the Illinois Consumer Fraud and Deceptive Practices Act. The court entered a default judgment against Franklin, which Franklin moved to set aside. Other defendants moved to dismiss for failure to state a claim, alleging that Doss sold his home before filing suit. Although Doss disputed this fact in the district court, the court nevertheless granted the motion and dismissed the TILA count. The court then exercised its discretion to dismiss the state law claims as well. It also struck “as moot” all pending motions, including Franklin’s motion to set aside the default. Doss appeals.

In their opinion, Judges Manion, Wood and Tinder reversed and remanded. The Court first rejected defendants’ argument that the district court lacked jurisdiction because of Doss’ sale of the property. TILA does provide that the right of rescission expires upon the sale of the property. That provision is not jurisdictional, however. It is simply a precondition to substantive relief. The Court also addressed its own jurisdiction, given that the district court dismissed without prejudice. Although a dismissal without prejudice is usually not appealable, the Court held that the case fit within an exception. The Court will entertain an appeal where it is clear that the court below was finished with the case and where TILA’s three year period of repose would have prevented Doss from refiling the case.

On the merits, the Court held that the district court erred in relying on the deed, a matter outside the pleading, in granting a Rule 12(b)(6) motion. Instead, the court should have converted the motion to a Rule 56 motion for summary judgment and given Doss a chance to respond. Furthermore, the deed was not a subject for judicial notice since its very validity was in dispute. The Court added that a) Franklin’s motion was not moot but since it did not cross-appeal, the default judgment is final, and b) the state law claims should be reinstated.

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SEEGER v. AFNI, INC. (December 8, 2008)

AFNI is a debt collector. Cingular is (or was) a cellular telephone service provider. Cingular contracts with individuals to provide telephone service. It typically includes in its contracts a provision that its customer is obligated to pay the fees of a collection agency and other costs Cingular incurs in enforcing its rights under the contracts. In 2004-05, Cingular sold some delinquent customer accounts to AFNI. AFNI sent collection letters to plaintiff Seeger and others. The letters stated that the recipient was responsible for collection fees. In 2005, Seeger and other plaintiffs filed suit. They alleged that AFNI’s actions violated the Fair Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act (“WCA”). The district court certified a class and granted summary judgment to the class. It held that AFNI’s action violated both the FDCPA and WCA because the owner of a debt is not allowed to impose a collection fee for its own benefit (as opposed to that it pays a third-party collector). AFNI appeals.

In their opinion, Judges Bauer, Cudahy and Wood affirmed. The Court agreed that AFNI could prevail if the fee was allowed either by the contract or by Wisconsin law. It turned first to the law. Wisconsin does permit recovery of losses that are the natural and probable result of a breach of contract. The Court noted, however, that the record was silent on the issue of AFNI’s cost of debt collection and could not support a characterization of the fee as a form of allowable damages. Turning to the contracts, the Court agreed with the court below that the contracts allowed Cingular only to collect fees it “incurred” in collecting a debt. The way the parties structured their arrangement, neither Cingular nor AFNI “incurred” any collection fees. Finally, the Court addressed AFNI’s argument that it was entitled to the bona fide defense in the FDCPA. The Court identified a growing split in the circuits on the issue of whether the bona fide defense applies to mistakes of law. It did not express an opinion on that issue, however. Rather. it decided that AFNI did not maintain reasonable procedures to prevent the error, which is an element of the defense.

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KING v. CITY OF MADISON (December 4, 2008)

Gail King was a city bus driver in Madison, Wisconsin (“City”). She developed some health issues and became unable to work. After she took a six-month unpaid disability leave, the City placed her on layoff status. If she became able to return to work during the layoff period, her collective bargaining agreement gave her the right to a) displace the most junior employee in her bargaining unit with an equal or lower job classification, b) fill a vacant position within her bargaining unit for which she was qualified, or c) compete for any vacant positions in other bargaining units. When she received doctor’s permission to return to work, it was qualified by a requirement that she not drive a bus. Based on her seniority and job classification, however, driving a bus was the only job which she could choose by right. King did apply for several vacant positions outside her unit but she was found not to be most qualified and was not selected. The City terminated King after two years of leave, a remedy they were entitled to under the collective bargaining agreement. King brought this action under the Americans with Disabilities Act (“ADA”). She alleged that the City failed to accommodate her disability. The district court granted summary judgment to the City. It held that King’s medical condition did not substantially limit her major life activity and she was therefore not a qualified individual with a disability. Additionally, it held that the City provided reasonable accommodation. King appeals.

In their opinion, Judges Ripple, Wood and Tinder affirmed. The Court stated the requirements of an ADA claim. To prevail, King had to establish that she is a qualified individual with a disability, that the City was aware of her disability, and that the City failed to accommodate her disability. The Court addressed only the accommodation prong. Although an employer can accommodate a disabled person by reassigning her to a different job, an employer need not do so if it would violate a “legitimate, nondiscriminatory” policy of the employer. The City’s collective bargaining agreement is such a policy. The City complied with the policy in a neutral manner and was not in violation of the ADA.

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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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DOMINQUEZ v. HENDLEY (September 30, 2008)

Alejandro Dominguez was fifteen when a neighbor accused him of sexual assault. He was convicted of home invasion and sexual assault and spent four years in prison before he was paroled. Dominguez always maintained his innocence. He eventually proved his innocence through DNA testing. Not only did he succeed in getting his conviction vacated, the Governor pardoned him. Dominguez brought this action against an investigating police officer and the City of Waukegan under 42 U.S.C. §1983. He alleged that the officer (a) withheld exculpatory material from the prosecutor and defense, (b) conducted an improper and prejudicial identification, and (c) fabricated evidence. At trial, the jury returned a verdict in favor of Dominguez in excess of $9 million. Hendley and the City appeal.
 

In their opinion, Judges Bauer, Ripple, and Wood affirmed. The appellants raised numerous issues, none of which convinced the panel of reversible error.

• The Court rejected the Statute of Limitations argument as the complaint was filed within two years of the date the conviction was vacated. One who brings a §1983 claim for violation of due process based on denial of a fair trial must first have the conviction vacated. The limitations period runs from that date. The appellants’ argument that it should run from the arraignment would have merit only if the complaint was based on false arrest rather than unfair trial.
• The Court rejected the argument that Hendley was entitled to qualified immunity because Dominguez did not prove that Hendley proximately caused the alleged violations. In the eyes of the Court, the argument was not one of qualified immunity, but simply an attack on the sufficiency of the evidence of the violations. The Court found sufficient evidence to support the verdict.
• The Court found as irrelevant whether Dominguez proved that the arrest was without probable cause. Again, Hendley was misreading the complaint as one simply attacking the arrest.
• Appellants’ next argument was that Dominguez did not properly plead or prove that Hendley failed to provide exculpatory evidence. Any supposed flaw in the pleading was overcome by Hendley’s failure to object and presentation of affirmative evidence on the issue. The panel had no difficulty in finding sufficient evidence in the record to support the verdict.
• Appellants’ argued a number of errors in the instructions. Some were rejected because they were based on the appellants’ erroneous “false arrest” theory. Others were addressed to causation. The Court found that the district court’s instructions on proximate cause were sufficient.
• The appellants’ submitted a litany of supposed trial errors, the cumulative effect of which they claim deprived them of a fair trial. The Court never had to address the cumulative effect of any errors because, in fact, they held that not one of the items raised amounted to error.
   

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