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Brown v. Illinois Dep't of Natural Resources

November 5, 2008


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Pro se plaintiff Jerry Brown, as shown both by his court filings and by his in-court appearances, is an intelligent as well as a well-educated man. But he is regrettably a scofflaw as well, consistently pursuing his lawsuit in a manner that, if he were a lawyer, would clearly call for the imposition of sanctions under 28 U.S.C. §1927.*fn1

Most recently that has manifested itself in Brown's just-filed response to the summary judgment motion brought by defendant Illinois Department of Natural Resources ("Department"). Although Brown's entire conduct of this litigation has been marked by a stubborn refusal to recognize the significance and effect of his earlier loss of a similar lawsuit claiming employment discrimination, his current filing is at least as troublesome as some of that earlier conduct.

For a full understanding of what has just been said, it is necessary to recapitulate--at least briefly--the fate of that earlier lawsuit, 02 C 398. There Brown made the same type of charge of discriminatory treatment, as summarized in the first page of Judge John Nordberg's January 25, 2006 opinion and order rejecting Brown's then-asserted claim via summary judgment,*fn2 that he has asserted here.

Nothing daunted, Brown filed this action in 2005, not only carrying a like discrimination claim forward but also attempting to bolster that claim by rehashing the same claim that he had lost in the earlier case. This Court's efforts to curb Brown's misdirection on that score went unheeded, for he continuously sought to expand his discovery efforts and arguments to include those out-of-bounds claims.

To be sure, earlier discriminatory conduct that cannot serve to state an actionable claim in substantive terms because of limitations problems may perhaps be admissible as evidence of an employer's current discriminatory mindset--as bearing on the employer's intent. But in this case Brown must realize that his earlier defeat not only has preclusive effect (both claim preclusion and issue preclusion) but has also established that, even with the aid of all reasonable favorable inferences, he cannot claim to have been the victim of discrimination by Department through 2003. That of course forecloses any attempted reliance by Brown on his claims of discriminatory treatment during the period addressed by Judge Nordberg.

Then on August 27, 2007 our Court of Appeals affirmed Judge Nordberg's grant of summary judgment in Brown's earlier lawsuit (499 F.3d 675). In the course of doing so Circuit Judge Daniel Manion, speaking for the panel, also addressed the then-recent Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007), pointing out the nature and scope of the time bar imposed by that decision on actions of the type advanced by Brown.

Although Brown had been represented by counsel in the case before Judge Nordberg and in the subsequent appeal, while he has been acting pro se in this case, the explanation of Ledbetter by the Court of Appeals should have been sufficient to inform him as to how any claims in this lawsuit would be similarly cabined. But to make certain that Brown got the message, this Court promptly issued a brief September 10, 2007 memorandum opinion and order calling on Brown to clean up his act in this action to conform to the principles announced by our Court of Appeals. Then, when Brown's response continued to depart from those principles, this Court followed up with a September 26, 2007 memorandum order pointing out his deficiencies.

None of that seems to have done any good. Brown's further efforts at discovery thereafter continued to go well beyond matters relevant to his claim as limited by Ledbetter, and now his Response to Defendant's Motion for Summary Judgment is filled with references to and reliance on matters that were within the time frame of his earlier lawsuit. That presentation makes it extremely difficult for Department's counsel and this Court to evaluate the response in proper terms--as our Court of Appeals has had occasion to remark in a related summary judgment context (United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)):

Judges are not like pigs, hunting for truffles buried in briefs.

This matter is scheduled for a status hearing tomorrow, November 6 (a rescheduling ordered at the same time that this Court granted Brown's most recent motion for an extension of time to respond to the Rule 56 motion). At that time this Court will consider what steps are ...

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