Ross v. City of Waukegan, s. 92-1349
| Decision Date | 23 September 1993 |
| Docket Number | 92-1350 and 92-1439,Nos. 92-1349,s. 92-1349 |
| Citation | 5 F.3d 1084 |
| Parties | Ollie B. ROSS, individually and as Administrator of the Estate of William ROSS, Deceased, Plaintiff-Appellee, Cross-Appellant, v. CITY OF WAUKEGAN, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Louis R. Hegeman, Kathryn S. Matkov (argued), Gould & Ratner, Chicago, IL, Forrest L. Ingram, Kalish & Colleagues, Chicago, IL, Cindy M. Johnson, Teller, Levit & Silvertrust, Chicago, IL, Gail Bley, Chicago, IL, for plaintiff-appellee.
David A. Novoselsky (argued), Novoselsky & Associates, Chicago, IL, for defendant-appellant.
Before CUMMINGS and RIPPLE, Circuit Judges, and WILLIAMS, Senior District Judge. *
This is an appeal from the district court's denial of the City of Waukegan's request for sanctions against Ollie Belle Ross, under Federal Rule of Civil Procedure 11, pursuant to 28 U.S.C. Sec. 1927 (1988), and under Federal Rule of Appellate Procedure 38. The City submits that Ms. Ross has maintained frivolous litigation. Additionally, Ms. Ross cross-appeals from the district court's denial of her motion for leave to file a third amended complaint. For the reasons that follow, we affirm in part, and vacate and remand in part.
On August 11, 1985, the City of Waukegan, Illinois held its annual Waukegan Lakefront Festival on the shores of Lake Michigan. During the festival, William Ross, twelve years old, and a friend wandered onto a breakwater that extended out into the lake. The boy slipped and fell into the lake. His friend ran for help. Within ten minutes, two lifeguards, two firefighters, a city police officer and two civilians who had been scuba diving nearby were on the scene and prepared to effect a rescue. However, before any rescue attempt could begin, Lake County Deputy Sheriff Gordon Johnson arrived on the scene in a patrol boat. Deputy Sheriff Johnson instructed all bystanders that no one was to enter the water until an official county rescue team arrived.
The City of Waukegan and Lake County previously had entered into an intergovernmental agreement that gave the County the responsibility to provide all police services in the entities' concurrent jurisdiction on Lake Michigan. Pursuant to its authority to police the lake, the County had promulgated a policy under which only divers from the City of Waukegan Fire Department could attempt to rescue a person in danger of drowning in Lake Michigan. Further, the policy directed Apparently, city officials were present when the boy began to drown, but did not act because of the policy of deferring to the County. The two civilian scuba divers who were on the lake in a boat attempted to assist, but were stopped by Deputy Sheriff Johnson who threatened arrest if the citizens interfered before the official rescue team arrived. By the time a rescue crew arrived, some thirty minutes later, the boy, although still manifesting some clinical signs of life, was in extremis and died shortly thereafter.
all members of the county sheriff's department to prevent civilians from attempting to effect a lake rescue.
On August 8, 1986, William Ross' mother, Ollie Belle Ross, filed a complaint in federal court with regard to the drowning death of her son. Ms. Ross' six count, eighty-seven paragraph complaint named nine defendants, including both the City of Waukegan and Lake County. 1 Federal question jurisdiction was based upon allegations that the defendants had violated the civil rights of William Ross. See 42 U.S.C. Sec. 1983 (1988).
Ms. Ross' case was initially assigned to Judge Bua of the United States District Court for the Northern District of Illinois. Shortly after Ms. Ross filed her complaint, in separate motions and supporting memoranda, the City and the County each moved for dismissal. Judge Bua referred the case to a magistrate judge for a report and recommendation. The magistrate judge recommended that the action not be dismissed. On June 12, 1987, over objections from both the City and the County, Judge Bua adopted the magistrate judge's Report and Recommendation and denied the City and the County defendants' motions to dismiss.
Shortly thereafter, upon the appointment of Judge Zagel, Ms. Ross' case was transferred to his docket. In November 1987, the City and the County again filed motions to dismiss on the same grounds that had previously been rejected by the magistrate judge and Judge Bua. On August 29, 1988, Judge Zagel dismissed Ms. Ross' Sec. 1983 claims against the City and the County and requested that the parties submit memoranda on Ms. Ross' state law claims. On September 28, 1988, Judge Zagel denied Ms. Ross' motion to reconsider the August 29 dismissal of her federal causes of action. On that same day, Ms. Ross filed a motion for leave to file an amended complaint. The following year, on August 24, 1989, Judge Zagel issued an order declining to retain jurisdiction over Ms. Ross' remaining state law claims, denying Ms. Ross leave to file an amended complaint, and dismissing the case in its entirety.
On August 16, 1990, 2 we affirmed Judge Zagel's dismissal of the City. We held that the City was not liable under Sec. 1983 either for entering the intergovernmental agreement with the County or for the actions of the County and its employees under a respondeat superior theory of liability. Ross v. United States, 910 F.2d 1422 (7th Cir.1990). However, we reinstated and remanded Ms. Ross' Sec. 1983 cause of action against the County. We held that the alleged County policy or practice could have led to an unconstitutional deprivation of William's right to life in violation of Sec. 1983. Upon remand, the case was reassigned randomly to Judge Bua's docket. Ms. Ross filed a motion seeking leave to file a second amended complaint.
On May 28, 1991, Judge Bua dismissed the City as a defendant on res judicata grounds; he noted that this court had affirmed the first dismissal of the City. 764 F.Supp. 1308. Nevertheless, Judge Bua denied the City's motions to sanction Ms. Ross for filing a previously barred claim. Judge Bua's order stated in part:
Indeed, this is a borderline case for sanctions. On the one hand, [Ms.] Ross's attempts to add the City as a defendant are contrary to the mandate of the Seventh Circuit. But, on the other hand, [Ms.] Ross's conduct does not appear to be motivated by an improper purpose, such as R. 330 at 4. Thereafter, the City filed a motion for entry of a Rule 54(b) judgment as to its possible liability. Judge Bua denied this motion at Ms. Ross' request and on her assertion that she could demonstrate a new theory of liability that had just come to her new attorneys' 3 attention and had initially been foreclosed because Judge Zagel said that no Sec. 1983 action could be pursued.
harassment or delay.... At any rate, while [Ms.] Ross's apparent disregard for the Seventh Circuit's mandate is not to be condoned, this Court does not believe that sanctions are warranted under the unique facts and procedural history of this case.
Judge Bua retired in December 1991, and Ms. Ross' case was reassigned to Judge Lindberg. Shortly after the reassignment, Judge Lindberg reviewed Ms. Ross' case file and, on December 19, 1991, he entered an order reaffirming the previous dismissals of the City and ruling that there was "no just reason for delaying enforcement or appeal." On December 23, Ms. Ross filed a 59(e) motion to vacate the dismissal and a motion for leave to file a third amended complaint. In response, the City filed a second motion for Rule 11 sanctions and a second motion for sanctions pursuant to Sec. 1927.
On January 9, 1992, Judge Lindberg denied Ms. Ross' motion to vacate the December 19 dismissal of the City and her motion for leave to file a third amended complaint. Subsequently, on January 27, 1992, without a hearing and without explanatory comment, in a one sentence minute order effective nunc pro tunc to January 9, 1992, Judge Lindberg also denied the City's motion for Rule 11 sanctions and its motion for sanctions pursuant to Sec. 1927. The City now appeals the denial of its motions for sanctions under Rule 11 and pursuant to Sec. 1927. It also asks that we impose sanctions on appeal pursuant to Rule 38. Ms. Ross cross-appeals from Judge Lindberg's denial of her motion to vacate his December 19, 1991 order dismissing the City and her motion for leave to file a third amended complaint. 4
We have before us both an appeal and a cross-appeal. The cross-appeal involves the district court's decision refusing to allow Ms. Ross to file a third amended complaint. The appeal brings to us the district court's decision not to impose sanctions on Ms. Ross for tendering this complaint. Therefore, we shall first address the cross-appeal and then the appeal.
On cross-appeal, Ms. Ross argues that the district court erred in denying her Rule 59(e) motion to vacate the December 19 dismissal of the City and in denying leave for her to file a third amended complaint.
The district court's three-line minute order was laconic. Although a more plenary explanation of the matter would have significantly aided us in our evaluation of counsels' submissions on appeal, we cannot fault the trial court for going to the heart of the matter and determining that, however the other criteria for Rule 59(e) relief or for amendment of a complaint might impact on the ultimate decision amendment was not possible here in light of our earlier decision in this case. "While Rule 15(a) states that 'leave shall be freely given when justice so requires,' the court should not allow the plaintiff to amend [her] complaint when to do so would be futile." Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir.1993).
In the amended complaint tendered to the district court, Ms. Ross alleged that the City is liable because it had...
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