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

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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MILESTONE v. CITY OF MONROE (November 21, 2011)

The city of Monroe, Wisconsin (the "Swiss Cheese Capital of the U.S.A.") operates a Senior Center for its older residents. Nine volunteers sit on the Monroe Senior Citizens Board, which promulgated a Code of Conduct for the center. Edith Milestone used the center frequently, but not without incident. She was a frequent disruptive influence at the center and was warned about her failure to behave reasonably. In late 2008, she got into a heated discussion with the center's Director and threatened to sue her. The next day, the Center sent Milestone a letter advising her that she was no longer welcome. The letter listed the various alleged violations of the Center's Code. At Milestones request, the Senior Citizens Board held an evidentiary hearing and affirmed the ban. The Board also advised Milestone that she could appeal the finding to the Monroe Common Council. Instead of appealing, Milestone brought a § 1983 suit against Monroe, alleging violations of her due process and free speech rights. Magistrate Judge Crocker (W.D. Wis.) granted summary judgment to the defendants on the ground that neither the Director nor the Board were final policymakers for Monell purposes. Milestone appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton affirmed. The Court agreed with the magistrate, at least as far as he went. In order to establish liability against the city, there must be (in this case) a decision by a municipal agent with final policymaking authority. It is clear that neither the Director nor the Board had that authority. The Director's decisions are all subject to review by the Board. Under state and local law, the Board did not have final policymaking authority. The Monroe Common Council retained ultimate authority over the Board's activity in this area. Although the city cannot be liable for the actions of the Director or the Board under Monell, Milestone also brought a claim based on the Code of Conduct itself. The code is municipal policy and can subject the city to liability if it, as Milestone alleged, violates the First Amendment. Because the Code is content neutral, it's restrictions are acceptable if they are: a) narrowly tailored, b) to achieve a significant governmental interest, and c) allow for ample alternative communication channels. The Court concluded that the Code met each of these requirements. First, the rules only require visitors to treat each other with respect and to refrain from abusive language. Second, the Center's goal was to create a pleasant and upbeat environment for its older citizens. Third, the Code does not restrict a visitor's right to express herself, as long as she does so respectfully. The Code is a content-neutral reasonable time, place, and manner restriction and does not violate the First Amendment. Finally, the Court rejected Milestone's void for vagueness claim. Any person of reasonable intelligence would understand what conduct is prohibited.

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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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BROWN v. COUNTY OF COOK (or 25, 2011)

Between 2003 and 2005 (when he retired), Thomas Brown was a sergeant in the Cook County Sheriff’s Office. He was on a list of 16 officers eligible for promotion. Brown never contributed to then-Sheriff Michael Sheahan's campaign, was a Republican (Sheahan was a Democrat), and several years earlier had donated a small amount to Sheahan’s challenger. Brown was never promoted -- only 5 of the 16 were. But Brown filed suit pursuant to § 1983 alleging that he was passed over because of his political affiliation. Judge Coleman (N.D. Ill.) granted summary judgment to the County. Brown appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Williams affirmed. The Court first noted that the Mount Healthy "motivating factor" analysis remains the appropriate analysis in a First Amendment violation case (citing its Greene decision, released shortly after oral argument). Under that test, Brown had to present evidence that his political affiliation was a motivating factor in not being promoted. The burden would then shift to the County to convince a jury that it was not a "but for" factor. Brown's evidence falls far short of the motivating factor threshold. First, two of the five officers who were promoted had not contributed to Sheahan's campaign. Second, Brown has not controverted the testimony of Sheahan and his deputies that they either did not know Brown or did not know his political affiliation. Third, the fact that Sheahan promoted a female officer who was the subject of a serious misconduct allegation is not relevant to Brown's First Amendment claim. It may have been relevant to a gender discrimination claim, but the district court refused to allow Brown to amend his complaint.

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HUTCHINS v. CLARKE (October 24, 2011)

On May 17, 2007, callers to a popular Milwaukee radio call-in show were discussing the performance of Milwaukee County Sheriff David Clarke, and particularly his relationship with African-Americans. Deputy Sheriff David Hutchins criticized Clarke during his call. In response, Sheriff Clarke called the show and was critical of Hutchins. Specifically, he suggested that Hutchins held a grudge because Clarke had disciplined Hutchins years earlier for sexual harassment. Hutchins brought suit pursuant to § 1983, alleging that Clarke violated his First Amendment rights by retaliating against him. He also brought claims under Wisconsin's Open Records Law and Right of Privacy statute. Magistrate Judge Callahan (E.D. Wis.) granted summary judgment to Hutchins. Clarke appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Williams (concurring) reversed. The Court first summarily disposed of the state Open Records Law claim. That law deals with access to government records and limits access to government employees' disciplinary records. Although this case is about a disciplinary record, there was no request for access to that record -- the law simply does not apply. The Court turned to the Right of Privacy statute. The statute creates a right of action for "invasion of privacy." But it explicitly excludes from its definition the communication of any information that is a matter of public record. The Court disagreed with the magistrate's conclusion that Hutchins’ disciplinary record was not a matter of public record. The district court never engaged in the balancing test required by the Open Records Law to determine whether the record is a public record. Since the balancing test is a matter of law, the Court engaged in its own analysis. Although it found factors in favor of both privacy and disclosure, it concluded that the public interest in disclosure was not outweighed by the interest in keeping it private. Thus, Hutchins’ disciplinary record should be considered a matter of public record and his Right of Privacy claim fails. Finally, the Court turned to the only federal claim, the First Amendment retaliation claim. One of the elements of the claim is that there be some retaliatory action, although it need not rise to the level of an adverse employment action. It must be enough of an action, however, to chill further speech. Here, the retaliatory action is itself speech, which also must be afforded some protection. The Court looked to other circuits and district courts within its circuit and agreed that for such speech to be retaliatory, it must be threatening, harassing, or intimidating. Concluding that Sheriff Clarke's speech was not, the Court reversed the First Amendment retaliation claim.

Judge Williams wrote separately, concurring in the opinion and expressing her views on the panel's disposition of the First Amendment retaliation claim. Judge Williams emphasized the Court's precedent that retaliatory speech that is likely to deter a person for exercising First Amendment rights may be actionable, even if not threatening, harassing, or intimidating.

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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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EVERETT v. COOK COUNTY (August 24, 2011)

Cook County, Illinois faced a severe budget crisis in 2006. The County President instructed the Chief of the Bureau of Health to submit budget cut recommendations. One of the Bureau of Health functions was the Cermak Health Services, which provided medical and dental services to Cook County Jail inmates. The budget team identified Cermak’s dental program as a good source of some budget cuts. The Bureau Chief agreed to a recommendation that reduced the number of dentists from five to one. In deciding whom to keep among the five, the County looked for management experience, flexibility, productivity, and skills. The County ultimately chose Dr. Ronald Townsend as the dentist who best met those criteria. One of the five dentists who was not chosen was Dr. Carol Everett, a Caucasian woman who had been with Cermak for almost 25 years. Dr. Everett filed an appeal, which was denied. Everett filed suit under Title VII, alleging ethnicity discrimination, and under § 1983 and the Shakman decree, alleging political discrimination. Judge Kendall (N.D. Ill.) granted summary judgment to the County. Everett appeals.

In their opinion, Seventh Circuit Judges Kanne, Evans (who, due to his death, did not participate in the decision), and Sykes affirmed. The Court first addressed and rejected Everett's spoliation argument that the County destroyed certain documents containing notes concerning the layoffs. First, she did not identify any evidence of bad faith, a requirement before a negative inference is imposed. Second, the record does not support a conclusion that the documents were destroyed to eliminate adverse evidence. On the merits, the Court first addressed her political activity discrimination claim, in which she alleges that the decision to retain Everett was due to his political donations. The Shakman decree and the First Amendment prohibit firing an employee for political reasons. Under both theories, however, the plaintiff must show a causal relationship between the employment decision and the political considerations. Everett relied on procedural irregularities in the process to establish that causal relationship. The Court concluded, however, that her evidence was insufficient to establish such a relationship. Even if such a relationship had been established, however, Everett would still fall short because there is no evidence in the record that the decision-makers were aware of the political activity -- or lack thereof -- of either Everett or Townsend. The Court turned to the ethnicity discrimination claim. It concluded that Everett failed to show pretext. Although she provided some evidence of her possible superiority to Townsend in some areas, it was insufficient to show that the reasons the County gave for selecting Townsend were suspect. At most, they could show that the County made a hurried, poorly researched, and possibly poor decision. That is not enough to show pretext.

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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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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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SCHULZ v. GREEN COUNTY (July 20, 2011)

Wisconsin law requires each county in the state to provide defined juveniles services through a juvenile-intake worker. Green County is a small Wisconsin County on the Illinois border. Due to its size, it can employ its juvenile-intake worker through its court system or its Human Services Department. The Green County Circuit Court employed Sheila Schulz as the County's juvenile-intake worker from 1997 to 2008. During that time, she supervised some part-time employees. She was making $26.99 per hour in 2008. As part of a cost-cutting effort, the Green County Board of Supervisors eliminated Schulz's job and created a new job within the Human Services Department with much the same responsibilities, except it did not include supervising other employees. The County hired Schulz to fill that position at an hourly rate of $19.28. Schulz brought suit against the County, alleging that its actions deprived her of a property interest without due process in violation of § 1983. Chief Judge Conley (W.D. Wis.) granted summary judgment to the County. Schulz appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Bauer, and District Judge Young affirmed. The Court admitted the general rule that a government employee who can be removed from her position only for cause has a property interest in that position and may not be fired from it without due process. A corollary to the general rule, however, is the reorganization rule. If a government eliminates a position, there is no longer anything in which one can have a property interest. But the Court noted that the reorganization rule might not apply if the reorganization only affects a single person. In that case, the reorganization might simply be a pretext. The record in this case does not support the notion that the County's reorganization was a pretext to fire Schulz. First, the undisputed record shows nothing but that the County reorganized to save money. Second, if the purpose of the reorganization was to get rid of Schulz, the County would not have hired her to fill the new position.

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LOGAN v. WILKINS (July 8, 2011)

John Logan used to own a mobile home park in east-central Indiana. He claims that he no longer owns it as a result of the conduct of various local government officials and employees. Beginning in 2005, he says, these people started rumors that the health department was going to close the park, told the tenants to stop paying rent, obtained an order for the destruction of thirteen homes, hired an inept contractor who ended up destroying fourteen homes, and stole property. In September 2007, he lost the mobile home park to foreclosure. He also claims that the sheriff had someone order the tenants to vacate after the foreclosure. Logan brought suit in March of 2009 pursuant to §§ 1983 and 1981. Judge Lawrence (S.D. Ind.) dismissed the complaint. He found most of the allegations untimely under § 1983's two-year statute of limitations. The only claims within the two-year period related to the post-foreclosure conduct. Since Logan no longer own the property at that time, he had no claim. In an amended complaint, Logan alleged that the defendants concealed their conspiracy. The district court again dismissed. Logan appeals.

In their opinion, Chief Judge Easterbrook and Judges Manion and Williams affirmed. In Indiana, the statute of limitations for a § 1983 claim is two years and it runs from the time a plaintiff knew or should have known of a constitutional violation. A defendant may be estopped from asserting a statute of limitations defense if the defendant has concealed material facts from the plaintiff. Logan has not alleged any such facts on the part of the defendants. He simply claims that his attorney was prompted to investigate upon receiving some information at some point after the conduct occurred. But Logan and his attorney knew of the facts as they occurred and they could have investigated earlier. With respect to the post-foreclosure claims, the Court stated that Logan waived any argument by not addressing the claims in his opening brief. The Court added that no facts were alleged to support Logan's conspiracy theory. Finally, the Court declined Logan's request to remand for an opportunity to amend his complaint once again.

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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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BAGLEY v. BLAGOJEVICH (May 2, 2011)

In 2003, the Illinois Department of Corrections’ chain of command at its high-security facilities comprised 12 layers, including captain. Although the captains were not represented, other IDOC employees were. The American Federation of State, County and Municipal Employees represented sergeants and other employees in its RC-6 bargaining unit and represented lieutenants in its CU-500 bargaining unit. Another union, the Illinois State Employees Association attempted to organize the captains in 2002. At the same time, Illinois faced a huge budget deficit. Newly-elected Governor Blagojevich had promised to reduce spending and eliminate government management layers. So he proposed eliminating the captain position. After the Legislature passed a budget that included the captain position, Blagojevich vetoed it. Illinois' plan was to place the captains in other agencies, denote them to lieutenants, or lay them off. The AFSCME opposed the plan to place former captains into open lieutenant positions because it wanted its own members placed in those positions. Illinois also created a new position of "shift commander." Some captains became lieutenants and joined the CU-500 bargaining unit. IDOC calculated their seniority pursuant to the CBA as their demotion date. Some captains became officers and joined the RC-6 bargaining unit. IDOC gave additional seniority to these employees based on its interpretation of that CBA. The union objected and filed a grievance. IDOC and the union ultimately agreed to calculate seniority based only on the employee's continuous service after his return to the unit. A number of former captains sued Governor Blagojevich and other officials pursuant to § 1983, alleging that the elimination of the captain position and seniority treatment were in retaliation for their attempts to unionize. The plaintiffs sought to depose Blagojevich. Between February 2007 and October 2008, the parties fought over the deposition. The district court ultimately granted Blagojevich’s request for a protective order on legislative immunity grounds. Several months later, Judge Mills (C.D. Ill.) granted summary judgment to the governor, also on legislative immunity grounds. The other defendants then moved for summary judgment. The plaintiffs conceded, given the law of the case, that the other defendants were entitled to immunity on the job elimination claim. They did oppose summary judgment on the seniority retaliation count. Judge Mills granted summary judgment to the other defendants. He did not agree that the law of the case settled the immunity question and concluded that plaintiffs waived it by not contesting it. On the seniority retaliation claim, he concluded that there was no causal link between the union officials and the administration. Plaintiffs appeal.

In their opinion, Judges Kanne, Tinder, and Hamilton affirmed. The Court first addressed legislative immunity. Bogan tells us that the question of whether an action is legislative and therefore entitled to absolute immunity depends on the nature of the act rather than the actor's intent. There, the Supreme Court looked both to the form and substance of the action. Although the Court noted that Bogen does not require that two-part test, it nevertheless applied it. With respect to form, the Court had little difficulty in concluding that a governor's veto is legislative. In fact, the plaintiffs forfeited the point. With respect to substance, the Court distinguished an individual firing with the elimination of a position (and noted that other circuits applied the same distinction). The termination of one employee's job is not legislative in substance -- but the elimination of an entire position is. Having concluded that Blagojevich's acts were legislative, the Court stated that he was thus entitled to immunity both from the suit and from defending himself in the suit. The district court did not abuse its discretion in blocking the deposition. With respect to the seniority retaliation count, the Court agreed with the district court that the evidence presented on the record was insufficient to create a genuine dispute of fact on causation.

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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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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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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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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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CZARNIECKI v. CITY OF CHICAGO (January 21, 2011)

For a few months in late 2006 in early 2007, Wojciech Czarniecki was a probationary police officer with the Chicago Police Department. He alleges that Assistant Deputy Superintendent Tobias made several negative references to his Polish ancestry in a discussion about Czarniecki's use of exam study guides. He alleges that his dismissal followed shortly thereafter and that another Polish probationary officer was dismissed at about the same time. He brought suit under § 1983 against the City and Tobias, alleging national origin discrimination in violation of the 14th Amendment. The district court granted summary judgment to the City. Shortly before trial, the court granted Czarniecki's motion to dismiss his claim against Tobias without prejudice - but conditioned the dismissal on a requirement that he seek her permission if he ever wanted to refile it. Czarniecki appealed that order because of its refiling condition, then sought permission to refile and appealed that order when the court denied permission on the grounds that his first appeal deprived her of jurisdiction. A few months later, Czarniecki filed a new complaint alleging national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, naming only the City. Judge St. Eve (N.D. Ill.) dismissed the complaint on res judicata grounds. Czarniecki appeals.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Hamilton consolidated the three appeals, affirmed the res judicata dismissal, and dismissed the other appeals as moot. The Court noted the three familiar ingredients of federal res judicata (federal res judicata applies when the earlier judgment was in federal court): a final decision, a dispute arising out of the same operative facts, and the same parties. The Court found that the three requirements were met here. There is no dispute that the earlier decision against the City was final, the parties are the same (the fact that Tobias is not a defendant in the second suit is of no consequence), and the claim arises from the same operative facts. The fact that he sets forth a new theory of liability, even with different proof requirements, does not change the res judicata result. The Court also rejected Czarniecki's argument that res judicata should not apply because he lacked a "right to sue” letter at the time of his first complaint and could not have brought a Title VII claim. The Court concluded that Czarniecki had several ways in which he could have dealt with that situation -- splitting his claims was not one of them. Finally, the Court dismissed as moot Czarniecki's two other appeals since both only dealt with his ability to refile.

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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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KAHN v. BLAND (December 23, 2010)

The “Section 8” federal housing subsidy program provides rental assistance to low-income families. Although funded federally, the program is administered by local public housing agencies. Both the beneficiary families and the participating landlords must meet certain qualifications and are governed by a host of regulations. In Champaign County, Illinois, the program is run by the Housing Authority of Champaign County (HACC). In 2003, Latif Kahn, a qualified landlord with a contract with HACC, rented a subsidized apartment to Andrew Washington. At Washington' request, and allegedly with the approval of HACC, Kahn also rented some space in the building's basement to Washington outside the program. After Kahn evicted Washington in for nonpayment of rent, Washington brought the existence of this "side lease" to the HACC's executive director. The director advised Kahn that the lease was a violation of program regulations and that he was terminating Kahn's contracts and barring him from the program. Kahn was never given an opportunity to explain or appeal. The HACC sent a letter to each of Kahn's four tenants and advised them that they would have to move. In fact, however, Kahn’s contract with respect to only one of the tenants was terminated pursuant to the letter. Another contract was terminated when the contracted unit failed to pass an inspection. The other two tenants actually remained. One prospective tenant was denied an opportunity to rent an apartment from Kahn and was told by HACC that Kahn was an "undesired person." Kahn brought suit, alleging procedural and substantive due process claims against the director and a due process claim against HACC. Chief Judge McCuskey (C.D. Ill) granted the defendants' motion for judgment as a matter of law at the close of plaintiff's case. Kahn appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed. Both the substantive and procedural due process claims require the identification of a property or liberty interest. The Court concluded that Kahn had not established a property interest from a) his termination from the program, b) the termination of the contracts, or c) disputes regarding the remaining contracts. First, notwithstanding his allegations, the record was clear that he was never terminated from the program. The director made threatening statements but had no authority to bar Kahn from the program and, in fact, Kahn continued to participate in the program. Second, although the HACC did refuse to enter into new contracts with Kahn, nothing in the statute or regulations entitles him to enter into new contracts. Finally, Kahn's rights with respect to his existing contracts do not raise constitutional issues. They simply give rise to possible state breach of contract claims. With respect to a liberty interest, the Court concluded that Kahn forfeited the claim -- but also concluded that the claim would not succeed. The liberty interest recognized by the Fourteenth Amendment protects a person's right to pursue an occupation, but not a specific job. Here, although the defendants' conduct may have affected Kahn 's ability to lease to certain individuals, it did not preclude him from his occupation.

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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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HILL v. COPPLESON (November 22, 2010)

Eighteen-year-old Harold Hill was arrested in early 1992. While in custody, two detectives began questioning him about a sexual assault and murder that happened almost 2 years earlier. According to Hill, they questioned him for hours and abused him both physically and mentally. At some point, Assistant State's Attorney Rogers also began questioning Hill. Hill eventually confessed to the crime and implicated two other men. Those two men were arrested and also eventually confessed to the crime -- although one was never charged because, even though he gave a detailed confession, he was in jail at the time of the crime. In late 1994, Hill was convicted of the crime and sentenced to life in prison. Over 10 years later, Hill was exonerated through DNA testing and his conviction was vacated. Hill filed suit against the two detectives, Rogers, and the City of Chicago alleging that the defendants violated his Fifth Amendment rights by coercing the confession and that they engaged in a civil conspiracy in violation of § 1983. Judge St. Eve (N.D. Ill.) denied the individual defendants' motions for summary judgment, including Rogers' claim that he was entitled to both absolute prosecutorial immunity as well as qualified immunity. Rogers appeals.

In their opinion, Seventh Circuit Judges Ripple, Williams, and Tinder dismissed for want of jurisdiction. The Court has jurisdiction of an appeal from the denial of summary judgment on either absolute or qualified immunity grounds only if they can decide the questions presented based on undisputed facts. Here, there is a dispute in the record over the timing of Rogers' arrival at the police station. Rogers claims that he arrived only after Hill's confession -- Hill claims that he did not confess until after meeting with Rogers. Rogers' success on his absolute immunity claim depends on whether he was acting as a prosecutor or investigator. The answer to that question depends on whether probable cause existed prior to his arrival. Rogers' success on his qualified immunity claim depends on whether there is evidence that he was involved in the coerced confession. The probable cause and the coercion questions depend on the timing of Rogers' arrival at the police station and thus cannot be decided on a record of undisputed facts. Because the Court cannot resolve the question on undisputed facts, it lacks jurisdiction.

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TAYLOR v. WATKINS (October 14, 2010)

Corey Taylor is an inmate in Illinois prison. He claims that his jailers violated his civil rights. Among other things, he says that they contaminate his food, withhold his mail, and even beat him. He filed suit under § 1983 and requested permission to proceed in forma pauperis (IFP). This is not the first time that Taylor has made this sort of allegation. In fact, Taylor has three "strikes" (that is, he has filed at least three prior actions against government entities or employees that have been dismissed as malicious, frivolous, or for failure to state a claim). He therefore cannot proceed in forma pauperis under § 1915A unless he meets the in "imminent danger of serious physical injury" exception. He did allege imminent danger but the defendants challenged the allegation. Judge Murphy (S. D. Ill.) held an evidentiary hearing, concluded that Taylor was not in imminent danger, denied IFP status, and dismissed the case when Taylor failed to pay the fee. Taylor appeals and requests permission to proceed IFP on appeal.

In their opinion, Judges Kanne, Wood, and Hamilton denied his request to proceed IFP and gave notice that the appeal would be dismissed if Taylor failed to pay the docketing fee within 14 days. The Court cited the Third Circuit's distinction between challenged and unchallenged imminent danger allegations. If the allegation is unchallenged, it is accepted as true. If the defendants challenge the allegation of imminent danger, however, the court must resolve that question before proceeding. The Court stated that its decision in Ciarpaglini is not to the contrary. There, the defendants did not deny the allegations -- they simply argued that the allegations did not meet the imminent danger threshold. The district court did the proper thing here in conducting a hearing to resolve the allegations of imminent danger.

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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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FINCH v. PETERSON (September 10, 2010)

In 1978, the Indianapolis Police Department and the United States Department of Justice entered into a consent decree designed to correct racial discrimination in the Department. The long-range goal of the decree was to increase the number of African-Americans to the point where it reflected the racial composition of the workforce in the city. In part, it provided that assignments, transfers, and promotions were to be based on appropriate criteria without regard to race. Now fast forward almost 30 years to 2006. That year, the Department promoted 11 lieutenants to captain. To prepare for the promotions, the Department screened, tested, and ranked each applicant. Instead of promoting the highest-ranked applicants, however, the Department promoted three African-Americans who ranked as low as 26th. Three white applicants, all of whom ranked in the top 10, brought suit pursuant to Title VII, § 1981, and § 1983. Magistrate Judge Lynch (S.D. Ind.) rejected the individual defendants' argument that they were entitled to qualified immunity because their actions were required by the consent decree and denied their motion for judgment on the pleadings. The defendants appeal.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court first confirmed its jurisdiction under the collateral-order doctrine. Even in the absence of a final judgment, a decision denying qualified immunity on an issue of law is immediately appealable. On the merits, the Court recited the familiar two questions raised by a qualified immunity analysis -- was a constitutional right violated and was the right sufficiently well-established to put the defendants on notice. The Court rejected the defendants' only argument that their race-based promotion decisions did not violate the Constitution -- that is, that the consent decree required them. Although it conceded that the consent order had general goals of increasing the number of African-American captains, the Court pointed to the several, very specific provisions of the order requiring race-neutral decisions. Other provisions of the consent decree (e.g., requiring sufficient African-American representation in an applicant pool) were designed to allow the department to reach its general goal without engaging in race-based promotions. The Court also rejected the defendants' only argument with respect to the "sufficiently well-established" prong because it also relied on the premise that the consent order required them to promote the African-Americans.

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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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WOLFE v. SCHAEFER (August 31, 2010)

Mervin Wolfe ran an unsuccessful campaign for Cumberland County State's Attorney in 2008 against Barry Schaefer, the incumbent. Wolfe brought suit against Schaefer and others (with whom he had a long history) pursuant to § 1983. He alleges that the defendants violated his Fourth and Fourteenth Amendment rights when they published the fact that he was under investigation by certain state agencies as part of their attempt to defeat his campaign. Judge Scott (C.D. Ill.) dismissed the complaint. Wolfe appeals.

In their opinion, Judges Posner, Wood, and Hamilton affirmed. The Court noted that the state law required the investigations be kept confidential. But Wolfe did not allege a violation of state law -- he alleged that the state law granted him a constitutional right. The Court recognized that a state law can create a liberty or property interest protected by the due process clause. There is also a common law breach of privacy tort, including one that protects an unreasonable interference with one's private life. The issue for the Court was whether any of this rose to the level of a protected property or liberty interest. The Supreme Court has not held that disclosure of private information violates the due process clause. In Whalen, it suggested that the disclosure of certain private information might do so -- but in Paul v. Davis held that one's reputation is not constitutionally protected. The courts of appeals have used Whalen to recognize certain constitutionally protected privacy rights. Although the Court recognized that certain situations might give rise to a constitutional right to privacy, it concluded that Wolfe's case was at the other end of the continuum. Information regarding the investigations of a candidate for public office is a matter of significant public interest. Wolfe's complaint was properly dismissed.

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SKS & ASSOCIATES v. DART (August 27, 2010)

SKS & Associates owns a number of residential rental properties in and around Chicago. From time to time, SKS has used Illinois' eviction procedures to deal with tenants who do not pay their rent. In November of 2008, the Chief Judge of the Cook County Circuit Court entered a General Order that prohibited the Sheriff from carrying out an eviction order during a specified period around the winter holidays, whenever the temperature was lower than 15°, or when the Sheriff determined that "extreme weather conditions" threatened the health and welfare of persons evicted. SKS brought an action pursuant to § 1983 against the Chief Judge and the Sheriff. It alleges that the Order denies it equal protection, deprives it of property without due process, and that it amounts to the establishment of a religion. Judge Shadur (N. D. Ill.) dismissed the action before the defendants appeared. SKS appeals.

In their opinion, Judges Kanne, Wood, and Hamilton affirmed. Although a federal court should normally exercise the jurisdiction which it has been granted by the Constitution, there are exceptions. The Court noted the four main abstention doctrines: Pullman, Burford, Younger, and Colorado River. With respect to each of these doctrines, a federal court can decline to exercise its jurisdiction. The Younger doctrine, the only abstention doctrine inapplicable here, teaches a federal court to abstain from resolving federal constitutional claims when doing so would interfere with ongoing state proceedings. The Younger doctrine started in the criminal context and required abstention when a criminal defendant sought to block a state prosecution on federal constitutional grounds. The Supreme Court has extended it, on a limited basis, to civil proceedings. It has not, however, extended to a situation, like this, where SKS is not the target of any state enforcement. Nevertheless, the Court identified the same principles (equity, comity, and federalism) at stake here that support the Younger doctrine. SKS wants a federal court to tell a state court how to manage its cases. Doing so would demonstrate a lack of respect for the state court's abilities. Furthermore, the Court did not believe that SKS had no state remedies. It could simply ask the court to issue an eviction order notwithstanding the General Order, it could file suit in state court to vacate the General Order, or it could seek a writ of mandamus to compel a reversal of the Order. SKS must allow a state court the opportunity to address its constitutional complaints about the Order.

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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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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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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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BRANDT v. VILLAGE OF WINNETKA (July 20, 2010)

William Brandt, Jr. resides in Winnetka, Illinois and is active politically. He has hosted several receptions for candidates and officeholders at his home. In the aftermath of such an event in 1996 for President Clinton, Winnetka passed an ordinance that requires event sponsors to pay for the “special services” required by the events. Special services includes things like additional police presence and traffic control measures. Notwithstanding the ordinance, Winnetka has not asked Brandt to pay for any special services occasioned by the several events he has sponsored since its passage. The village has invoked the ordinance on three occasions -- one for President Bush and two for Laura Bush. Political committees, rather than the individual sponsor, paid for at least two of those events. Brandt filed suit pursuant to § 1983, seeking a declaratory judgment that the ordinance violates the First Amendment. He alleged that it "chilled" his willingness to sponsor events and that it engaged in viewpoint discrimination on the theory that more controversial candidates would require more special services. Judge Dow (N.D. Ill) dismissed the complaint on the grounds that Brandt lacked standing. Brandt appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Tinder affirmed as modified. The Court noted that the district court dismissed for lack of standing because Brandt had not established an injury -- but also mentioned its belief that the issue was not ripe and that it may be an improper case to exercise the court's discretion to issue a declaratory judgment. The Court concluded that the district court was in error when it found an absence of standing. Standing can be found when there is an actual or impending injury, even though that injury may be small and not absolutely certain. Here, the Court found sufficient injury (as well as causation and redressability) to support standing. The Court concurred with the district court, however, in its decision not to exercise its discretion to issue a declaratory judgment. Brandt does not challenge the ordinance on its face -- only as applied. The record does not show that the ordinance will be applied in a discriminatory fashion or that it has had any effect on speech. Such an abstract record does not lend itself to a constitutional adjudication at this time.

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GOLDEN v. HELEN SIGMAN & ASSOCIATES (July 2, 2010)

Bruce Golden and his wife were involved in a bitter and hostile divorce. The dispute centered principally on the division of their assets and the custody of their only child. Golden added a battlefield when he brought suit in federal court. The defendants included his child’s court appointed representative and his wife’s attorneys, close friend and neighbor, and two business associates. His claims were based on federal copyright law, RICO, and § 1983 as well as several state law theories. He accused the lawyers of defamation, the lawyers and business associates of copyright infringement, the representative of defamation and failing to maintain neutrality, and the neighbor of a false 911 report. Judge Gottschall (N.D. Ill.) stayed the copyright infringement claim pending completion of the state court divorce proceedings and dismissed all other claims -- the RICO claim for failure to plead sufficiently the predicate acts and pattern of racketeering activity, the § 1983 claim because the representative had not acted under color of state law and enjoyed absolute immunity, and the state law claims by choosing not to exercise supplemental jurisdiction. The lawyers, the representative, and the friend all sought sanctions under Rule 11. The district court concluded that some of the claims did violate Rule 11 and ordered Golden to pay the defendants' attorneys' fees for the offending claims. Golden settled with the attorneys and appeals.

In their opinion, Judges Cudahy, Wood, and Sykes affirmed. The Court first noted that the only merits decision challenged on appeal was the § 1983 claim against the representative. It identified a potentially thorny issue with respect to absolute immunity. Although a child representative is entitled to absolute immunity when carrying out its court appointed duties, it may not be when it functions in a role closer to that of the child's attorney. The complaint did allege acts relating to that role. The Court declined to resolve that issue, however, instead identifying the Rooker-Feldman doctrine as a jurisdictional bar. Under that doctrine, a party may not seek redress in a lower federal court for an injury caused by a state court judgment. Here, the Court determined that the only injury Golden complained of arose directly from the state court custody orders. The Court therefore affirmed the dismissal of the § 1983 claim. With respect to sanctions, the Court first rejected Golden's argument that the Rule 11 motions were not timely -- both because he failed to raise it in the district court and because the district court did not abuse its discretion in allowing them. On the fees themselves, the Court concluded that the district court was well within its discretion in identifying counts on which to impose a sanction and in its method of calculating the amount of the sanction. Finally, the Court declined to impose sanctions on Golden for the appeal. Although he raised several frivolous arguments, he did advance some positions that could not be dismissed summarily.

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PARRA v. NEAL (June 23, 2010)

Ambrosio Medrano filed the necessary papers to get his name listed as a candidate for 25th Ward Chicago alderman on the February 2007 ballot. Several voters challenged his papers. They asserted that his prior felony conviction prevented him from holding office. The Election Board and the circuit court sided with Medrano. Paper and electronic ballots were prepared with his name. Just four days before the election, the Illinois Supreme Court reversed the circuit court. It ordered the Election Board to either remove Medrano’s name from the ballot or, if it remained, to disregard any votes cast for him. The Election Board had insufficient time to correct the ballots. Instead, it posted signs in three languages at all polling places and distributed individual notices to every voter in the ward in which his name was on the ballot. The signs and notices explained that a vote for Medrano would not be counted. Nevertheless, Medrano received 178 votes. Eight of those voters brought an action pursuant to § 1983 claiming that the Election Board violated equal protection by disregarding their votes. Judge Darrah (N.D. Ill.) granted summary judgment to defendants. Plaintiffs appeal.

In their opinion, Judges Manion, Rovner, and Tinder affirmed. The Court emphasized the reluctance of a federal court to become entangled in state election matters. A § 1983 action can therefore prevail only if the defendants acted willfully and intended to undermine the voting process or impair the plaintiffs' voting rights. The Court found no proof -- or even allegation -- of wrongdoing on the part of the Election Board. In fact, it did what it had to do by following the mandate of the Supreme Court.

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SEIFERT v. ALEXANDER (June 14, 2010)

The State of Wisconsin has two sets (primary and general) of elections during its election years. Non-partisan officeholders, including judges and many county and municipal officers, are elected in the spring. Candidates for these positions are slated without party affiliation. In the fall, elections are held for partisan officeholders, including the sheriff and district attorney. In 2004, the Wisconsin Supreme Court amended the Wisconsin Code of Judicial Conduct to prohibit a judge or judicial candidate from a) being a member of any political party, b) endorsing or speaking on behalf of another candidate, and c) personally soliciting campaign contributions. John Siefert has been a circuit court judge in Wisconsin since 1999. Siefert would like to join the Democratic Party, endorse partisan candidates for office, and solicit contributions for his upcoming campaign. He brought suit pursuant to § 1983 against the members of the Wisconsin Judicial Commission for injunctive and declaratory relief. Judge Crabb (W.D. Wis.) declared the rules unconstitutional and enjoined their enforcement. The Commission appeals.

In their opinion, Judges Flaum, Rovner (dissenting in part), and Tinder affirmed in part and reversed in part. The Court described its task as an attempt to "harmonize . . . two strains of First Amendment law." On the one hand, in White I, the Supreme Court applied strict scrutiny in striking down a code of conduct that prohibited judges from taking positions on legal and political issues. On the other hand, the Supreme Court applied the less stringent Pickering standard in Letter Carriers and Garcetti and balanced the public employee's right to speak against the government's interests. The Court addressed each prohibition separately. With respect to the party membership prohibition, the Court found it content-based and applied strict scrutiny. Although a state does have a compelling interest in the lack of bias in its judiciary, the Court found that the prohibition was not narrowly tailored to serve that interest and struck it down. With respect to the partisan candidate endorsement prohibition, the Court noted a distinction between an endorsement of another and speech regarding a judge's own views. The distinction supported the application of a balancing approach instead of strict scrutiny. In balancing the state's interest in a fair judiciary with the judiciary's interest in endorsing candidates, the Court concluded that the state's interest prevailed. The Court did express its concern that the prohibition only applied to partisan elections. That under-inclusiveness could have invalidated the prohibition under a strict scrutiny approach – but the Court concluded that it did not under the balancing approach. Finally, with respect to the personal solicitation prohibition, the Court noted that Buckley created two approaches. Candidates' spending restrictions are met with strict scrutiny -- candidates' contributions restrictions are met with a less rigorous standard. The personal solicitation prohibition was a contribution restriction and therefore analyzed under the less rigorous approach. The Court found a strong state interest in protecting against the appearance of a quid pro quo that a direct personal solicitation might create. Even though the prohibition does not prevent a candidate from a reviewing a contributor list and applies even to family members, where the risk of a quid pro quo is remote, the Court found that the regulation was closely enough drawn to the state's interest to be constitutional.

Judge Rovner agreed with the panel in its treatment of the party membership restriction and the personal solicitation restriction. She dissented, however, from its treatment of the partisan candidate endorsement restriction. Her fundamental disagreement was with the majority's application of a balancing test. In her view, White I requires the application of a strict scrutiny standard in evaluating a content-based restriction. Under a strict scrutiny approach, the under-inclusiveness noted by the majority opinion is fatal to its constitutionality.

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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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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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EGONMWAN v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Iyare Egonmwan was a black male jail guard at the Cook County Jail. In 2001, he was transferred into the women's division. The following year, the female superintendent of the division disciplined him for conduct that had occurred prior to his transfer. Several days later, Egonmwan accused the superintendent of sexual harassment. The claim was investigated and determined to be unfounded. In 2003, during a general investigation into allegations of sexual misconduct between guards and prisoners, a female detainee informed the investigators that she and at least one other prisoner had had a sexual encounter with Egonmwan. Although Egonmwan was acquitted of criminal charges in 2004, an administrative hearing board terminated his employment in January of 2005 for violation of institutional rules. Egonmwan brought suit against, among others, Cook County and the Sheriff's Department. He alleged § 1981 race discrimination and § 1983 gender and race discrimination. The district court granted summary judgment to the defendants. Egonmwan appeals.

In their opinion, Judges Cudahy, Evans, and Sykes affirmed. The Court first affirmed the summary judgment on the gender discrimination claim. Egonmwan proceeded under the direct method but presented only a few isolated remarks by the women's division superintendent. The Court noted that isolated remarks may be sufficient to establish a discriminatory motive, but they must be made by the decision-maker, at the time of the decision, and regarding the decision. Here, the Court doubted (but did not decide) that the superintendent could be considered the decision-maker. It upheld the summary judgment because of the seven to ten month lag between the remarks and the action and the fact that the remarks did not refer to Egonmwan's termination. With respect to the race discrimination claim, the Court concluded that Egonmwan was unable to show that similarly situated non-blacks were treated more favorably or that the defendants' reasons for his termination were not legitimate.

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SWEARNIGEN-EL v. COOK COUNTY SHERIFF'S DEPARTMENT (April 22, 2010)

Swearnigen-El was a black male guard in the women's division at the Cook County Jail. He had a run-in with the head of the division, who wanted the correctional staff in the women's division to be comprised totally of women. Swearnigen-El thought that belief was discriminatory and he reported his concerns to other supervisors. Shortly thereafter, Swearnigen-El found himself in trouble when a female prisoner's allegations that male guards were engaged in sexual activity with female prisoners launched an investigation. The Sheriff's Police conducted the initial investigation, followed by an investigation by the State's Attorney’s office. Several prisoners reported that Swearnigen-El was having sex with a female prisoner. The prisoner herself admitted the activity. Swearnigen-El was de-deputized and transferred for violating a General Order that forbids "activities unbecoming" an employee. He was later charged with sexual misconduct and suspended with pay. Before he had a termination hearing with the merit board, Swearnigen-El resigned. After he was acquitted of the criminal charges, he filed a complaint alleging gender discrimination, race discrimination, Title VII retaliation, First Amendment retaliation, malicious prosecution, and intentional infliction of emotional distress. The district court dismissed the Title VII retaliation claim and granted summary judgment to the defendants on all other claims. Swearnigen-El appeals.

In their opinion, Judges Wood, Evans, and Sykes affirmed. The Court first upheld summary judgment on all gender and race discrimination claims because there was no adverse employment action. Swearnigen-El was de-deputized and transferred after a internal investigation demonstrated evidence of misconduct. His pay was not affected and there was no evidence that the conditions were intolerable. The Court concluded that no reasonable jury could find a constructive discharge under those circumstances. Alternatively, the Court found that Swearnigen-El a) failed to establish sufficient evidence of race or gender discrimination to create a triable issue, and b) was not meeting his legitimate job expectations. Next, the Court considered the First Amendment retaliation claim. The principal speech at issue was Swearnigen-El's disagreement with his superior regarding the staffing of the women's division and his subsequent complaints to other officials that her actions constituted discrimination. The Court concluded that the speech was not protected -- Swearnigen-El was speaking not "as a citizen" but as a public employee under Garcetti. Again, the Court came to the alternative conclusion that no reasonable juror could find the defendants' actions pretextual. On the claim of malicious prosecution, the Court found sufficient evidence of misconduct after the investigation to establish probable cause. Since the absence of probable cause is an element of a malicious prosecution claim, Swearnigen-El's claim must fail. Finally, the Court agreed that there was no "outrageous" conduct that would amount to an intentional infliction of emotional distress claim and upheld the district court's dismissal of the Title VII retaliation claim on the ground that Swearnigen-El failed to include it in his EEOC charge.

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LEAVELL v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (April 6, 2010)

Eva Leavell and her family own or lease hundreds of oil wells in southern Illinois. Most of the permits are in Ms. Leavell’s name -- but at least one is in the name of her husband, Daniel. Beginning in the year 2000 and continuing for several years, the Illinois Department of Natural Resources conducted a number of hearings to identify abandoned wells that should be plugged. The proceedings resulted in several disputes between the Department and Ms. Leavell, including a state court lawsuit. In 2008, the Department held a similar hearing concerning a well for which Daniel was the permittee. The Department sent a certified letter to Daniel -- but Daniel had already died. No representative was notified and the hearing proceeded. The Department ordered the well plugged. The estate has not challenged that ruling in any administrative or judicial proceeding. Ms. Leavell instead brought a lawsuit as administratrix of his estate, alleging that the Department violated Daniel's procedural due process rights in failing to provide sufficient notice of the 2008 hearing. The district court dismissed on the grounds of issue preclusion, apparently believing that the complaint referred to the same conduct that had already been litigated in state court with respect to the wells for which Ms. Leavell was the permittee. The court also denied Ms. Leavell's motion to reconsider. The court stated that the assertion that Daniel was the permit holder was raised for the first time in the motion to reconsider. Ms. Leavell appeals.

In their opinion, Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court noted that, after concessions in the briefs and oral argument, the only issue on appeal was whether Leavell stated a due process claim and, if not, whether the dismissal is with or without prejudice. Any procedural due process inquiry requires the identification of the property interest at issue and the necessary process due in connection with the deprivation of that interest. The Court distinguished between procedural due process claims based on established state procedure and those based on the random and unauthorized acts of state actors. With respect to the former, post-deprivation procedures are not necessarily adequate. In those cases, a pre-deprivation hearing may be required. With respect to the latter, however, pre-deprivation hearings are usually impossible because of the inability to predict when the random acts will occur. There, procedural due process requirements are satisfied if the state provides an adequate post-deprivation remedy. Leavell does not assert that the state lacks an adequate notification procedure. Rather, she alleges that a Department employee failed to implement an existing procedure for notifying a permittee of a hearing. Therefore, only a post-deprivation remedy is required. Since she conceded that there are state remedies available and that she has not taken advantage of them, her claim must fail. With respect to whether the dismissal should be with or without prejudice, the Court distinguished between dismissals for failure to exhaust administrative remedies or failure to satisfy a condition precedent and the case before it. Here, Leavell's failure to take advantage of an adequate state court remedy is a failure to allege a necessary element of the cause of action. The claim should be dismissed with prejudice.

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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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LONDON v. RBS CITIZENS (April 1, 2010)

After Chase Bank obtained a judgment against Andrew and Carolyn London, it issued a Citation to Discover Assets to Charter One Bank. The citation prohibited Charter One from allowing any transfer or disposition of the London’s property "not exempt from execution." Included with the citation was a specific notice indicating that Social Security benefits were exempt funds. Charter One froze the London's accounts, including one into which Social Security benefits were deposited electronically. The Londons demanded that Charter One release the exempt funds -- Charter One refused. Over the course of the next several weeks, additional Social Security deposits were made to the account. They also were frozen and their release denied. The Londons filed suit under § 1983, claiming that the bank violated their constitutional right to due process under the Fourteenth Amendment as well as 42 U.S.C. § 407(a). The district court granted Charter One's motion to dismiss, concluding that the temporary freeze did not violate § 407(a) and that the Londons were afforded adequate process by a post-deprivation hearing in state court. The Londons appeal.

In their opinion, Chief Judge Easterbrook and Judges Manion and Evans affirmed. In order to state any claim under § 1983, stated the Court, a plaintiff must allege the deprivation of a right guaranteed by the Constitution or laws and that the deprivation occurred at the hands of a person acting "under color of state law." Under that standard, private persons may not be sued for purely private conduct. Instead, for a private party to be held accountable under § 1983, the deprivation must be caused by the exercise of a right created or imposed by the state. Here, to the contrary, the bank was not following any state-imposed right or rule of conduct. The citation itself restricted its order to funds that were not exempt from execution and provided a notice that Social Security benefits were exempt. The bank's misapplication of the state law directive does not amount to conduct taken "under color of state law."

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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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STOKES v. BOARD OF EDUCATION (March 19, 2010)

Nyokia Stokes has four children who attend the same elementary school in Chicago. One of her children, a third-grade daughter, had a problem with a classmate. Ebony Scott, the classmate's mother, paid a visit to Stokes' home one night and allegedly threatened her. Stokes and her mother, Carnelita Stokes, met with the police and the school principal, Johnny Banks, the next morning. Banks agreed to host a meeting between Stokes and Scott. When Stokes and her mother returned to the school that very afternoon to pick up Stokes' kindergarten daughter, they encountered Ebony Scott and her cousin in the school office. The factual accounts of what happened next vary. What is clear is that Scott, Scott’s cousin, and Stokes were involved in a lengthy physical and verbal altercation. Most accounts agree that Scott was the aggressor and Stokes was the victim. Approximately thirty kindergarten students entered the office during the altercation and became extremely upset. Banks arrived in the office as the altercation was ending. He instructed Scott and her cousin to go into his office and instructed Stokes and her mother to go to another room. Stokes' mother refused to leave and continued yelling at Banks. Banks swore out criminal complaints against all four women and they were arrested. They were released several hours later and the charges against them were dismissed. The Stokes sued Banks and the school district under § 1983, alleging a violation of their Fourth Amendment rights. The district court granted summary judgment to the defendants. The Stokes appeal.

In their opinion, Judges Posner, Manion, and Hamilton affirmed. The gist of the Stokes' complaint is that Banks lacked probable cause to swear out the criminal complaints. The existence of probable cause, therefore, is an absolute bar to recovery. Because the case was decided on summary judgment, the Court examined the record to see if there was a genuine dispute of material fact with respect to the existence of probable cause. A complaining witness is not expected to determine whether a person's behavior satisfies the essential elements of a crime. To the contrary, probable cause involves the exercise of judgment and depends on the facts and circumstances of the case. Here, even resolving factual disputes in the Stokes' favor, the record shows that Banks entered the room and found Stokes involved in a violent and loud altercation. Many young school children were in the same room and visibly upset. Those undisputed facts provide probable cause for Banks to sign a criminal complaint against Stokes. Although Stokes' mother was not actually involved in a physical altercation, she was in the same room and Banks knew that she was Stokes' mother. Her yelling and refusal to comply with Banks' request to leave contributed to the chaos. Thus, Banks had probable cause to sign the complaint against Carnelita . The facts that were developed after the incident supported the Stokes' position that they were the victims of the altercation and that they did nothing to incite it nor did they retaliate. Nevertheless, the Court noted that Banks was not required to conduct an investigation. He was responsible for maintaining order and had to do so quickly. He exercised the judgment of a reasonable person in taking the action that he did.

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TULLY v. BARADA (March 17, 2010)

One night a resident of Rush County, Indiana, saw automobile headlights and another light near a bridge several hundred yards from his home. When he heard a shot coming from the same direction, he called the sheriff. He called the sheriff a second time when he heard a second shot. In responding to the report, Sheriff Chandler stopped a vehicle occupied by Michael Tully and a friend. There was a spotlight, a rifle, and a dead raccoon in the car. Both boys responded "yes" when Sheriff Chandler asked if they knew that shooting from a roadway is wrong. The county prosecutor, Paul Barada, charged both boys as juveniles with "shooting on or across a public highway." A trial court adjudicated Tully as a delinquent -- the appellate court reversed. Tully brought an action under § 1983 against Barada and the probation officer upon whose report his complaint was based. He alleged a constitutional right not to be summoned into court and prosecuted without probable cause. The district court granted defendants' motion to dismiss, concluding that there is no such right. Tully appeals.

In their opinion, Circuit Judges Bauer and Wood and District Judge Kennelly affirmed. The Court first noted that the Supreme Court has not spoken on the possibility of a right not to be prosecuted without probable cause. The Courts of Appeals that have spoken have taken various approaches. In fact, the issue is infrequently presented because prosecutors generally claim absolute immunity. Here, the Court noted that defendants waived not only their affirmative defense of absolute immunity, but also the affirmative defenses of the existence of probable cause and res judicata. Having been required to reached the merits, the Court concluded that there is no federal constitutional right under either the Fourth or Fourteenth Amendment not to be summoned into court and prosecuted without probable cause. Being summoned into court is not a "seizure" of Tully under the Fourth Amendment -- his state court vindication was due process under the Fourteenth Amendment.

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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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COVELL v. MENKIS (February 8, 2010)

The Illinois Deaf and Hard of Hearing Commission (the "Commission") was created several years ago to provide services for and advocate on behalf of the hard of hearing. Gerald Covell served as its Director from 1998 until 2003. In July of that year, the Commissioners terminated him. Covell filed suit under § 1983, alleging that defendants violated both his property and liberty interests. Specifically, he alleged that he was let go without any pre-or post-termination process in violation of a property interest. He also alleges that defendants circulated false information about him, without providing him an opportunity to clear his name, in violation of his liberty interest. The district court granted summary judgment to the defendants, concluding that Covell had no property interest in this position and that he failed to demonstrate that any particular defendant circulated negative information. Covell appeals.

In their opinion, Judges Bauer, Manion and Williams affirmed. The Court first addressed the existence of a property interest. Although a property interest can arise from state law, a person must identify a specific statute, rule, or contract that limits the ability of the state to terminate him. The rules governing Covell's position states that he "shall serve at the pleasure of the Commission." The Court rejected Covell's position that an inconsistent right was somehow incorporated into the regulation by its reference to the Personnel Code. Since he had no property interest, he had no right to due process. With respect to his liberty interest claim, the Court stated that the plaintiff must show that he was stigmatized by publicly disclosed information and that he suffered a tangible loss. Specifically, the plaintiff must show that a named defendant made the public disclosure. Here, Covell contends only that the disclosure was made by someone in the government. Without evidence that the disclosure was made by a named defendant, Covell's claim fails.

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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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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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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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ILLINOIS DUNESLAND PRESERVATION SOCIETY v. ILLINOIS DEPARTMENT OF NATURAL RESOURCES (October 14, 2009)

Illinois Beach State Park is located in northeastern Illinois on the shores of Lake Michigan. Various buildings in the park have display racks containing pamphlets on various topics. The Illinois Dunesland Preservation Society is a nonprofit corporation that supports the park. The Society created a pamphlet warning of the risk of asbestos at the park's beaches. When the park refused to display the pamphlet, the Society brought suit under § 1983 against the state officials involved in operating the park. The district court granted summary judgment to the officials. The Society appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first recited some of the "forum analysis" of Supreme Court decisions but then questioned the value of that analysis to the question. Every public site, stated the Court, can be regulated to some extent depending on the circumstances and as long as the regulation is not used to stifle speech. Here, the materials displayed in the park's racks are meant to promote the park and state tourist facilities generally. The dire warning contained in the Society's pamphlet is hardly consistent with that purpose. The Court concluded that the park was not required to display, and thus tacitly endorse, the pamphlet containing the warnings. The Court added that there were other means, such as personal distribution, available to the Society to convey its message. The park's position was not an unreasonable barrier to speech.

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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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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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NEW ALBANY DVD v. CITY OF NEW ALBANY (September 10, 2009)

New Albany DVD set out to operate an adult entertainment business in New Albany, Indiana. It purchased property, obtained licenses and renovated a building. Although the land was properly zoned, the City refused to conduct a final inspection, a requirement for occupancy. Instead, it imposed a moratorium on new adult businesses. During the moratorium, it changed the zoning rules to prohibit the operation of an adult business on the property selected by New Albany DVD. The new rules prohibit the operation of an adult business within 1000 feet of a church or any property zoned residential. The site is within 200 feet of both. New Albany DVD brought suit under § 1983, alleging a violation of the First Amendment. The district court held that the ordinance was likely unconstitutional and issued an injunction allowing New Albany DVD to open. The City appeals.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Rovner remanded. The Court first disagreed with the lower court's rationale -- that the regulation was not narrowly tailored for its purpose -- for issuing the injunction. Although Alameda Books and other cases require narrow tailoring of regulations of adult businesses, the Court concluded that the dispersal regulation at issue had often been used and sustained after challenge. The Court went on, however, to agree with the court’s result under a different rationale. It noted that the studies relied on by the City focused on live-entertainment businesses. New Albany DVD offers take-home materials only. The City’s attempts to overcome this hurdle by offering anecdotal evidence of increased litter and theft was rejected as well. The Court agreed that the City might be able to use those justifications, but concluded that sufficient evidence did not exist in the record. Finally, the Court referred, as it did in its earlier Annex Books opinion (see post), to Justice Kennedy’s opinion in Alameda Books as a guide to the evidence required under the intermediate scrutiny standard.

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THOMAS v. CITY OF PEORIA (September 3, 2009)

A lawyer for the city of Peoria sought and obtained a warrant for the arrest of Joshua Thomas. Joshua’s crime -- nine unpaid parking tickets. Sometime later, Joseph Thomas was stopped for a traffic violation. Although the names and addresses of Joshua and Joseph did not match, the driver's license number on the arrest warrant for Joshua did match that of Joseph. Joseph was arrested. He was later released when it was determined that he was, indeed, not Joshua. Joseph brought an action under § 1983 against the City and the lawyer who obtained the warrant. He alleged a deprivation of his Fourth Amendment and due process rights. The court dismissed for failure to state a claim. He then denied class certification. Thomas appeals.

In their opinion, Judges Cudahy, Posner and Tinder affirmed. The Court first addressed "zone of interest" standing. The Court explained zone of interest standing as a requirement of federal common law that limits the class of persons entitled to sue. Remoteness of injury is one of those limitations. Here, for example, assuming state law does not authorize an arrest for unpaid parking tickets and that such an arrest would therefore violate the Constitution, Joshua Thomas is the one within the class of people the policy is designed to protect. Joseph’s interest is to remote to be recognized. Alternatively, the Court went on to conclude that Joseph would fare no better even if he was within the zone of interest. The Supreme Court held in Moore that a otherwise reasonable arrest (which this is) is not unconstitutional simply because it was for an offense that does not authorize arrest. The Court easily disposed of the due process argument. Finally, the Court added that the individual defendant would in any event have absolute immunity as a prosecutor performing a prosecutorial function.

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DARCHAK v. CITY OF CHICAGO BOARD OF EDUCATION (September 3, 2009)

Anna Darchak, a native of Poland, worked for several years in the Chicago public school system as a teacher of English as a Second Language. In 2005, she was hired as a full-time teacher at the Princeton Alternative Center on a one-year contract. It was not a good year. Almost immediately, Darchak complained that Hispanic students were being treated more favorably than Polish students. Darchak alleges that Princeton's principal made several disparaging remarks in reference to Darchak's heritage. Later in the year, the principal assigned Darchak to a classroom with a large number of Spanish speaking students. Darchak complained – and she received a negative evaluation. The principal chose not to renew Darchak's contract at the end of the year. Darchak filed suit, alleging retaliatory discharge, First Amendment retaliation under § 1983, and national origin discrimination under Title VII. The district court granted summary judgment to the defendants. Darchak appeals.

In their opinion, Judges Cudahy, Ripple and Wood affirmed in part and reversed in part. The Court addressed each claim in turn. First, with respect to the state law claim of retaliatory discharge, the Court stated that Darchak had to demonstrate that she was discharged, that the discharge was retaliatory, and that the discharge violated a clear mandate of public policy. The Court concluded that the claim failed on both the first and third elements. First, Darchak was not discharged -- her one-year contract was not renewed. Second, the public policy relied on by Darchak -- equal education -- has never been recognized by Illinois courts as support for a retaliatory discharge claim. With respect to her First Amendment retaliation claim, the Court concluded that the Board of Education was not liable under Monell. Although Darchak alleged that the principal was a final policymaker, the Court stated that Illinois law makes the Board the final policymaker. The Court agreed that the Board's adoption of the principal's recommendation could be a basis for liability but only if they adopted the retaliatory basis as well. The Court found no evidence of that. Finally, with respect to the Title VII national origin discrimination claim, the Court noted that she put forth both a direct and an indirect case. The Court rejected her indirect method approach because she could not demonstrate pretext with respect to the Board's reasons for nonrenewal. On her direct method, however, the court found that Darchak presented sufficient circumstantial evidence to reach a jury. The evidence of derogatory remarks followed shortly by a disciplinary notice from the principal follow later by the nonrenewal establish a prima facie case. The fact that Darchak's testimony is uncorroborated and self-serving does not change that result, as the district court believed. The testimony is based on her first-hand experience and deserves to be considered. The Court concluded that the evidence raised a question of intent that had to go to the jury.

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WATERS v. CITY OF CHICAGO (September 2, 2009)

Daniel Waters was a painter in the Chicago Department of Transportation (CDOT). In 2000, he refused a request by his supervisor to participate in a political campaign. At about the same time, he twice contacted local investigative journalists. On one occasion, he complained about a bridge that he thought was in such a state of disrepair that it was a danger to the public. On the other occasion, he complained that the City was making some improvements to a piece of property and that it did not own. Several of his superiors were unhappy with his conduct. He was transferred into a job working for a supervisor for whom he had worked before several times. Their relationship was strained, at best. Within a matter of weeks, Waters had several run-ins with his supervisor and was reported multiple times for violent behavior. A deputy commissioner recommended his firing. The department did not act on the recommendation. Department policy required that Waters be given an opportunity to respond to the charges of violence before any discipline was handed out. Waters provided his side of the story -- but the department ruled that his conduct amounted to violence in the workplace. The deputy commissioner resubmitted his recommendation. A pre-termination hearing was held. Commissioner Rice, who held the only authority to fire, terminated Waters. Waters sued the City under § 1983, alleging First Amendment retaliation. A jury awarded Waters $225,000 in damages and the court awarded more than $1 million in back pay, front pay and pension benefits. The City appeals.

In their opinion, Judges Manion, Rovner and Tinder vacated, reversed and remanded. The Court stated that, under Monell, a city can be liable for a constitutional deprivation but only if it resulted from a policy or practice, or that the injury was caused by someone with final policymaking authority. Waters relied on the latter prong. Final policymaking authority comes from state and local law, though. Here, said the Court, local law gives policymaking authority to the City Council, which has delegated it to the Commissioner of Human Resources. Although the Court recognized that department commissioners do have some authority to execute existing policy, they do not have policymaking authority. Since Commissioner Rice had no such authority, municipal liability cannot be based on her actions. The Court went on to note that Waters presented no evidence that Rice’s termination was in retaliation for his exercise of his First Amendment rights. Even if she had policymaking authority, the absence of that evidence would have defeated his claim.  

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FAIRLEY v. ANDREWS (August 20, 2009

Fairley and Gackowski were employed as guards at the Cook County Jail. Both complained about their fellow guards' mistreatment of prisoners. After one particularly brutal incident, the affected prisoners filed suit. Fairley and Gackowski infuriated some of the other guards by their willingness to testify truthfully about their knowledge of the incident. They were both harassed and taunted, verbally and physically. Ultimately, they both quit. Fairley testified in a deposition a few weeks before he quit. Gackowski gave a deposition after he quit. Both testified at the trial, which resulted in a defense verdict. Fairley and Gackowski brought an action under § 1983, alleging that the defendants violated their free speech rights by assaulting them as a result of their willingness to report the abuse of prisoners and to testify truthfully. Shortly before trial, the district court ordered the exclusion of all evidence of events that occurred prior to the plaintiffs’ depositions. The judge reasoned that anything that occurred prior to their speech could not be considered as retaliation or punishment for that speech. Without that evidence, the guards accepted a dismissal. Fairley and Gackowski appeal.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed in part and reversed in part. The Court first clarified its jurisdiction, given the guards' acceptance of a dismissal after the court’s evidentiary ruling. The Court concluded that a party can decide that further pursuit of its case in the trial court is hopeless and accept a judgment against it in order to appeal. On the merits, the Court addressed both of plaintiffs' theories: that the defendants punished them for reporting defendants’ misconduct and that defendants taunted them to prevent their future testimony. On the first theory, the Court concluded that their claim was barred by Garcetti. Garcetti provides that the First Amendment does not protect speech that is part of one's job. Here, one guard’s report about another guard's conduct is part of the job. But Garcetti applies as against an employer - here, the defendants are coworkers. The Court concluded that it did not have to reach the coworker issue. The guards' Monell argument that the jail had a policy against reporting any guard misconduct linked the employer's liability and the coworker's liability. On the second theory of liability, however, the Court concluded that Garcetti did not control. The speech at issue in the second theory was the guards' testimony in the prisoners' trial. That speech is not part of the job. The Court concluded that Fairley and Gackowski could recover against a defendant who made threats that were designed to discourage their trial testimony.

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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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BENTZ v. CITY OF KENDALLVILLE (August 14, 2009)

The local police arrived at the home of Dr. Bernard Leonelli, responding to reports of a domestic dispute. An officer observed a large fire on the front lawn and was told by bystanders that a fight was taking place inside the home. The officer approached Leonelli, who was standing on his front porch, and asked to speak with him. Instead, Leonelli walked into the house, where the officer observed him reaching for something. The officer entered the house, arrested Leonelli and searched the premises for a possible victim of domestic abuse. Leonelli brought an action against the city under § 1983, alleging that both the arrest and the search were unreasonable and unlawful. The district court granted summary judgment to the defendants. Leonelli appealed -- but died before the appeal was heard. His personal representative seeks to continue the appeal on his behalf.

In their opinion, Judges Cudahy, Posner and Kanne granted the defendants’ motion to dismiss the appeal. Section 1983 is silent on whether a claim survives death. Instead, the Court stated, the state’s survival statute applies. A court must first characterize the § 1983 claim and decide which state tort is most analogous. With respect to the arrest claim, the Court noted that the plaintiff had to establish the fact of a seizure and its unreasonableness. The Court concluded that the closest Indiana tort was false imprisonment, the elements of which are almost identical to those for false arrest. Since an Indiana tort of false imprisonment does not survive the death of the plaintiff, neither does Leonelli's false arrest claim. With respect to the unlawful entry and search, the Court stated that the facts of the case were closely analogous to both a state trespass claim, which does survive, and a state invasion of privacy claim, which does not survive. The proper analysis, however, focuses on the elements of the federal claim, not the specific facts of the case. Looking at it from that perspective, the Court concluded that an expectation of privacy is the core of the unreasonable search claim. The federal claim is more analogous to invasion of privacy than it is to trespass. The claim does not survive.

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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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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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HOLLINS v. MILWAUKEE (July 31, 2009)

David Hollins is a freelance photographer. One June day in 2002, he was walking down a Milwaukee street. He came upon a scene where the Milwaukee Police were conducting a search of a home across the street. Hollins began taking pictures. A police officer noticed Hollins and asked him to move away from the area. Although he moved a short distance, Hollins eventually stopped and refused to move further. Police officers arrested Hollins and cited him for resisting an officer. The parties' versions of the events differ greatly with respect to the amount of force used by the officers and the attitude and language of the participants. Hollins was convicted and paid a fine. He later sued the city and the officers for violations of the First, Fourth and Fourteenth Amendments. He also brought a § 1983 claim against the City of Milwaukee for failure to train police officers properly. The court granted summary judgment to the defendants on the § 1983 claim and dismissed the free speech and due process claims as well. A jury found for the defendants on the unlawful arrest and excessive force claims. Hollins appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court first addressed the § 1983 claim for failure to properly train the police. The Court agreed that a failure to train police can lead to § 1983 liability if it amounts to a deliberate indifference of public rights. The Court further stated that Hollins had to present allegations of a specific pattern of incidents to prove that the constitutional deprivation resulted from an official policy or custom. Hollins, however, failed to offer any evidence that the city's failure to train amounted to the requisite deliberate indifference. The city, on the other hand, presented unrebutted evidence that it did offer significant training in the areas cited by Hollins. The Court also affirmed the dismissal of the free-speech claims, concluding that Hollins' allegations that he was arrested for taking pictures totally unsupported. With respect to the alleged trial errors, the Court concluded that the district court did not abuse its discretion when it: a) refused to ask a voir dire question on racial prejudice that had nothing to do with the law or facts, b) disallowed questioning on cross-examination that one of the defendants had been investigated for falsifying police reports when it had limited probative value, and c) refused to tender Hollins' jury instruction interpreting the ordinance under which he was cited when he offered no authority to support his interpretation and when the jury was not being asked to determine whether the ordinance had been violated.

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VALENTINO v. SOUTH CHICAGO HEIGHTS (July 30, 2009)

Sandra Valentino worked for the Village of South Chicago Heights for several years. In 2001, she became suspicious of Mayor David Owen's hiring practices. She was aware that the Village employed many of the mayor's friends and family members. She believed that many of these employees were on a “ghost payroll,” i.e., being paid for work they did not perform. She shared her concerns with William Bramanti, a former village employee who quit as a result of a dispute with the mayor. Bramanti submitted a FOIA request to the village for employee time records. At the same time, Valentino began to make copies of the daily employee sign-in sheets. In February of 2003, Bramanti accused the mayor publicly of ghost payrolling. The very next business day, the Village Administrator searched Valentino's desk, found the copies, and fired Valentino when she arrived for work. Valentino filed a § 1983 action against the Village, the mayor and others. She alleged retaliation in violation of her First Amendment rights. The district court granted summary judgment to the defendants. Valentino appeals.

In their opinion, Judges Rovner, Evans and Williams reversed and remanded. The Court first looked to whether Valentino's speech was constitutionally protected, i.e., whether she spoke as a private citizen on a matter of concern. The Court found it "well-established" that speech which protests government waste is entitled to constitutional protection. Although the Court recognized that Valentino had a private interest in determining whether she was receiving proper compensation, it concluded that her speech was protected since she was not motivated solely by those personal interests. The Court next addressed whether there was evidence that the protected speech was a motivating factor in her termination. The Court found the circumstantial evidence -- knowledge of her relationship with Bramanti, the search of her desk, the search and firing the day after Bramanti's public accusations, and a comment by the mayor threatening her employment -- sufficient to take that issue to a jury. That same evidence, as well as the fact that the sign-in sheets were on public display and were simply copied by Valentino, was enough for the Court to conclude that a jury could also find the village's stated reason for her termination pretextual. Thus, the Court reversed the summary judgment for the defendants. With respect to the Monell claim, the Court stated that the Village could be liable for the constitutional violation if it was caused by an individual with final policymaking authority. The question for the Court was whether Owens had final authority on matters of hiring and firing. The Court concluded that the evidence was conclusive that Mayor Owen made personnel decisions for the village without any meaningful oversight, and thus had final authority. The Court reversed the district court with respect to the village's liability under Monell. Finally, the Court rejected defendants' argument that the Illinois Tort Immunity Act immunized them. That Act immunizes village officials from certain discretionary policy decisions. The decision to fired Valentino was not a policy decision -- the defendants are not entitled to immunity.

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CASNA v. CITY OF LOVES PARK (July 24, 2009)

From 1996 through 2003, Mary Casna worked for the City of Loves Park in two different positions. Though she had a serious hearing impairment, it did not interfere with her performance. In her second job, Casna and one of her superiors did not enjoy a good working relationship. The City transferred her to a temporary police clerk position for six months in order to evaluate her performance in a less volatile atmosphere. Casna's hearing impairment became an issue. In one particular episode, Casna explained to her supervisor, Kay Elliot, that she had not heard her make a request. Elliot snapped: "How can you work if you cannot hear?" Casna accused Elliot of being discriminatory. Elliot consulted with her supervisor and prepared a written performance evaluation, even though Casna was only two months into the job. At the police chief's request, and based on the negative evaluation, the Mayor fired Casna. Casna brought suit against the City, the Mayor and the Police Chief. She alleged that she was fired in retaliation for her complaints of discrimination. She also alleged that the City violated Due Process by discharging her without a hearing. The district court granted summary judgment to defendants. Casna appeals.

In their opinion, Judges Manion, Rovner and Sykes reversed and remanded. On the due process claim, the Court stated that Casna must establish a property interest that is guaranteed by the Constitution but found in Illinois law. Relying on Illinois’ civil service statute, the Court concluded that her first position was exempt but that her second job was not exempt (although the resolution appointing her said it was). Although the Court agreed that a temporary position (her third job) is normally exempt, the Court also concluded that the City could not transfer Casna out of a protected job into an unprotected job and then fire her without process. The Court also rejected the City’s reliance on the requirement that a protected employee obtain her job through the civil service process. Since it was the City that wrongfully tried to make the second position exempt, the Court held that it was estopped from relying on that requirement. Casna is entitled to prove her damages, if any, arising from the lack of process. The Court also reversed the lower court on the retaliation claim. It concluded that Casna’s single statement to Elliot complaining of discrimination, though informal, was sufficient to amount to “protected activity.” Finally, although the Court cautioned that suspicious timing is rarely enough to establish a triable issue on causation, it concluded that it did here, where the police chief recommended her termination the day after the protected activity.  

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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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HALLINAN v. FRATERNAL ORDER OF POLICE OF CHICAGO LODGE NO. 7 (June 25, 2009)

Shawn Hallinan and Wayne Harej were Chicago police officers and members of the police union, the Fraternal Order of Police of Chicago Lodge No. 7 (the Union). They led an effort to unseat the Union’s president and his organization in early 2005. During the course of the campaign, they discovered that the president had underreported his income. They reported the matter to the Attorney General and discussed it publicly. The president was, nevertheless, reelected. The Union soon suspended, and then expelled, the two men from the Union. At the Union's request, the City of Chicago converted the two men into "fair-share payers." Fair-share payers are those members of the Police Department who are not Union members and do not pay Union membership dues but who contribute a "fair-share" for the Union's continued representation of them in matters concerning their wages, hours and working conditions. Hallinan and Harej brought an action against the Union under section 1983 alleging violations of the First and Fourteenth Amendments. The court dismissed the action for plaintiffs’ failure to plead state action. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood and Sykes affirmed. The allegations of constitutional violations in the complaint, noted the Court, are actionable only against conduct of the government -- not against private conduct. Unions, of course, are not government actors. A deprivation of a constitutional right may be actionable against a private actor in certain limited circumstances. The Court noted several examples: when the state compels the action, when the private actor is only nominally private, when the state delegates its function to a private actor, etc. Here, the state action alleged is that the Union is the sole collective bargaining unit for the Chicago Police. However, the acts complained of were not taken in concert or in agreement with the City. They were exclusively internal actions. The Court concluded that there was not enough evidence of entanglement by the City to give rise to state action. Although the Court agreed with the district court that the claim should be dismissed for failure to allege state action, it corrected the district court’s categorization of it as a lack of subject matter jurisdiction. An absence of a proper allegation of state action is simply a failure to plead an essential element of the claim.

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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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GUZMAN v. CITY OF CHICAGO (May 13, 2009)

Sgt. Bonnstetter of the Chicago Police Department met with an ex-convict who wanted to share information regarding gang activity with the police. The informant provided valuable information and identified pictures of known gang members. He specifically advised Sergeant Bonnstetter that he was aware of the location of gang member Ruben Estrada. He told Bonnstetter that Estrada lived with his family in a single-family residence at an address on the west side of Chicago. He advised that he had seen Estrada at the residence with a handgun. He even drove by the house with an FBI agent and confirmed the location. Although there was a small sign in the front window, the agent assumed that it was a single family residence. Based on this information, Bonnstetter obtain an affidavit to search the premises and Estrada's person. When the officers arrived to execute the search warrant, they realized there was a separate door leading to a business and another door leading to a stairway to the second floor. At some point, it became clear that the building contained a first floor office, a first floor apartment, and a second floor apartment. The officers broke into the second-floor apartment and encountered Maira Guzman. With guns drawn, the officers searched the apartment -- but found nothing. Guzman brought a lawsuit against the City and several officers under 42 U.S.C § 1983, alleging that the search was unreasonable and a violation of her constitutional rights. The district court granted summary judgment to the City. Guzman appeals.

In their opinion, Judges Kanne, Rovner and Evans reversed and remanded. The Court identified the two different ways of evaluating an alleged violation of the Fourth Amendment. A court must look at both the issuance of a warrant and the execution of the warrant. Here, with respect to its issuance, the Court determined that there was sufficient indicia of reliability with respect to the informant to support probable cause. The informant provided information known to the police and identified a number of known gang members. With respect to the execution of the warrant, however, the Court disagreed with the district court. The Court specifically noted the "not uncommon" problems that arise with multiple living units. In executing the warrant in this case, the Court concluded that the officers were aware early in their search that the building was not a single-family residence, as expected and as described in the warrant. The proper course at that stage was to have called off the search. By continuing the execution of the warrant, the police violated Guzman's constitutional rights.

Judge Rovner wrote separately and concurred in the holding and reasoning. She did not join in that part of Judge Evans’ opinion in which, in dicta, he discussed Fourth Amendment rights in the context of civil actions as opposed to criminal suppression motions.

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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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RUJAWITZ v. MARTIN (April 2, 2009)

Mark Rujawitz was an at-will employee of theIllinois Department of Transportation (IDOT) for thirteen years. When he violated an injunction requiring him to keep his distance from his ex-girlfriend, IDOT fired him. A disciplinary panel reviewed the discharge and recommended a lesser level of discipline. Rujawitz was reinstated and his discipline was changed to a suspension without pay. Rujawitz brought a § 1983 action against the secretary of IDOT, alleging that he was denied his substantive due process rights. The district court dismissed the complaint on the ground that Rujawitz had no property right in continued employment. Rujawitz appeals

In their opinion, Judges Bauer, Posner and Rovner affirmed. In order to establish a due process claim, the court stated, Rujawitz had to demonstrate a constitutionally protected property interest. The Court looked to state law for that determination. The Court could locate no ordinance, law or employment agreement that changed Rujawitz's status from an at-will employee to one with an expectation of continued employment. The Court rejected Rujawitz 's position that the presence and use of the disciplinary procedures established a property interest protectable under the Fourteenth Amendment.

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MARION v. THE CITY OF CORYDON (March 23, 2009)

Having been caught shoplifting, Trent Marion fled from police, scuffled with police, fled again, and led police on a high-speed chase down a divided highway. For miles, Marion eluded the police and their attempts to stop him. Even with three deflated tires, Marion refused to stop. Eventually, Marion swerved into the median and drove toward the other side of the highway. The police surrounded and fired shots at the vehicle. Marion continued to rev his engine and shift from forward to reverse. The police continued firing at the vehicle until Marion stopped. Marion suffered serious gunshot wounds. He filed suit under §1983, claiming that the police violated his Fourth Amendment rights. The district court granted summary judgment to the defendants. Although Marion opposed the motion, he did not file an affidavit. He did submit an affidavit with a motion to reconsider. The court denied the motion. Marion appeals.

In their opinion, Judges Flaum, Williams and Kapala affirmed. The Court first concluded that it would not consider Marion's affidavit. The Court could consider it only if it consisted of newly discovered evidence, which it did not. On the merits of Marion's Fourth Amendment excessive force claim, the Court stated that it would apply an objective reasonableness standard and consider the totality of the circumstances. The Court concluded that it was reasonable for the police officers to believe that Marion posed a threat to their safety and the safety of nearby motorists while he was in the median. The amount of force they employed was therefore reasonable.

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GOLDEN YEARS HOMESTEAD v. BUCKLAND (February 19, 2009)

Golden Years Homestead, Inc. (“Golden Years”) operates a nursing facility in Fort Wayne, Indiana. In early 2000, the Indiana Department of Health (“IDH”) conducted an annual certification inspection, as required by Golden Years’ participation in the Medicaid program. The inspection took place over a span of ten days. At some point during the inspection, the inspection team became upset with the conduct of the Golden Years’ team. From then on, the inspection team became loud, overly critical, hostile and accusatory. The team left information favorable to Golden Years out of its report. Golden Years was cited for seventeen violations. After a six-day evidentiary hearing and administrative appeals, all but one of the citations was reversed. Golden Years brought a lawsuit against the inspectors under 42 U.S.C. § 1983 for constitutional violations and state law claims for abuse of process and malicious prosecution. The district court granted summary judgment for the inspectors. Golden Years appeals the dismissal of the state law claims.

In their opinion, Judges Bauer, Rovner and Sykes affirmed. The Court first addressed Golden Years’s complaint that the court dismissed the state law claims sua sponte. The Court disagreed. Although the inspectors did not specifically address the state law issues in their motion, they did ask for all counts to be dismissed. Furthermore, Golden Years actually addressed the state law counts in its response. The lower court acknowledged the general rule that a court will decline to exercise jurisdiction over state law claims if all federal claims are dismissed before trial. The Court approved the lower court’s invocation of the exception to the rule when the state law claims are meritless. On the substance of the malicious prosecution claim, the Court stated that Golden Years was required to prove malice. Although it seemed to accept that the inspectors’ conduct was overzealous and unprofessional, the Court concluded that the evidence did not support personal animosity or malice. Similarly, the Court concluded that the evidence of hostility and rancor was insufficient to establish the ulterior motive requirement for abuse of process.

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