NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2012*
Decided October 25, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3225
JERMAINE L. KING, Appeal from the United States District
Plaintiff–Appellant, Court for the Central District of Illinois.
v. No. 08‐3213
DON L. SCHIEFERDECKER, et al., Sue E. Myerscough,
Defendants–Appellees. Judge.
O R D E R
Jermaine King sued the Illinois Department of Human Services, his former employer,
and some coworkers, contending that the Department fired him because he is black and to
retaliate against him for complaining about discrimination. King also sued the County of
Schuyler and its sheriff for, he says, following a policy that violated the Fourth Amendment
when the sheriff ordered officers to strip‐search him in 2007. King connects these claims by
arguing that his workplace and law‐enforcement injuries arose from the same source: his
coworkers falsely reported to both his employer and the sheriff that he was transporting
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐3225 Page 2
cannabis to work. The district court dismissed some defendants and granted summary
judgment for others. On appeal King challenges several of the district court’s discretionary
decisions. Because the district court did not abuse its discretion in these rulings, we affirm
the judgment.
The procedural history of the case is straightforward. The defendants moved to
dismiss King’s federal claims in his original complaint, contending that they failed to state a
claim. See FED. R. CIV. P. 12(b)(6). Rather than oppose the defendants’ motion, King
amended his complaint to allege specifically how and when each defendant discriminated,
retaliated, or otherwise wronged him, and he added exhibits purportedly bolstering his
allegations. Contending that the amended complaint remained deficient, the defendants
again moved to dismiss, and this time the district court granted the motion in part. It
dismissed as legally unfounded King’s claims that, after he complained of discrimination,
defendants conspired to violate his free‐speech, equal‐protection, and state‐law rights. But
King’s employment‐law claims under Title VII and § 1983 against State defendants and his
strip‐search claims against the County defendants survived.
King requested leave to amend a second time to allege how various defendants were
personally involved in the conspiracy against him, to resurrect the dismissed claims, and to
add new ones. The court denied the request. It reasoned that King had twice put the
defendants to the burden of moving to dismiss allegations that King could have pleaded in
his original complaint. Moreover, the court added, more than a year had passed since King
launched the litigation, and giving him a third chance to plead allegations available to him
all along would essentially restart the case, causing undue delay and prejudice to the
defendants.
The County and State defendants separately moved for summary judgment. The
County argued that, based on reliable tips that King was surreptitiously bringing cannabis
to his job site, the sheriff reasonably suspected that King was hiding drugs on his body. And
relying on King’s long history of workplace abandonment and insubordination, the
Department contended that it had valid reasons to fire him. In response, King moved to
strike the affidavits accompanying the summary‐judgment motions and to “stand” on his
verified complaint in lieu of submitting a statement opposing the defendants’ motions. The
court denied King’s two motions, ruling that the affidavits were proper and that King’s
complaint did not conform with the requirements of the local rules for opposing motions for
summary judgment. It then granted the defendants’ motions, ruling that the sheriff had
reasonable suspicion to search King and that King failed to show that the Department
discriminated or retaliated against him. The court allowed King’s Monell challenge to the
County’s strip‐search policy to go forward, but on September 9, 2011, the court granted
King’s motion to dismiss without prejudice that claim.
No. 11‐3225 Page 3
We first address appellate jurisdiction. The district court’s dismissal without
prejudice of the Monell claim against the County creates the risk of piecemeal appeals and
thus might ordinarily imperil our jurisdiction. See Arrow Gear Co. v. Downers Grove Sanitary
Dist., 629 F.3d 633, 636 (7th Cir. 2010); ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360,
363–64 (7th Cir. 2000). That claim, however, is now time‐barred because the two years that
King had to sue the County for his injuries in 2007, see Limestone Development Corp. v. Village
of Lemont, Ill., 520 F.3d 797, 805 (7th Cir. 2008), has passed. And although Illinois tolling
rules allow a plaintiff one extra year from the date of dismissal to refile a voluntarily
dismissed claim, 735 ILCS 5/13‐217, that time also has elapsed. Finally, King has told the
court in his response to the sheriff’s jurisdictional memorandum that we should treat the
dismissal with prejudice. Thus, with no risk of piecemeal appeals, appellate jurisdiction is
secure.
We next turn to King’s first argument that the district court should not have denied
his second motion for leave to amend his complaint. See FED. R. CIV. P. 15(a)(2). He contends
that the defendants would not have been prejudiced by his amendment and any delay was
brief. A district court has broad discretion to deny a motion for leave to amend a complaint
if allowing the amendment would unnecessarily delay the case or prejudice the parties.
See Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008); Thompson v. Ill. Dept. of Prof. Reg., 300
F.3d 750, 759 (7th Cir. 2002). Prejudice or delay sufficient to justify the denial can occur
when the plaintiff has already received a chance to amend his complaint to fix flaws cited in
a motion to dismiss, but failed to do so. Thompson, 300 F.3d at 759. That occurred here: King
had the chance in both his original complaint and again, after the defendants alerted him to
its defects, in his amended complaint to cure its failings. Because King forced the
defendants to brief the flaws in his complaint twice over two years, the court properly
found prejudice and denied King a third opportunity to cure the problems. See id.; Feldman
v. American Memorial Life Ins. Co., 196 F.3d 783, 793 (7th Cir. 1999).
King next argues that the district court improperly denied his motion to strike the
affidavits used in the defendants’ motions for summary judgment. The affiants all state that
before a notary they affirm and swear to the truth of their statements, which they make on
personal knowledge. King contends, however, that the court should have rejected the
affidavits for three reasons. First, he maintains, the affiants were required under 28 U.S.C.
§ 1746 to add “under the penalty of perjury” to their sworn statements. Second, he disputes
that each affidavit was based on personal knowledge. Last, he argues that because the
defendants did not respond to his motion to strike, they necessarily conceded that the
affidavits are insufficient; he cites the court’s Local Rule 7.1(B), which generally requires a
response to a motion.
No. 11‐3225 Page 4
King is wrong about the affidavits. First, the requirement in § 1746 that an affiant
refer to the penalties for perjury applies only to unsworn declarations. See Owens v. Hinsley,
635 F.3d 950, 954–55 (7th Cir. 2011). Here each affidavit is sworn, signed, and notarized.
They are thus proper for a motion for summary judgment. See FED. R. CIV. P. 56(c)(4); Jajeh v.
Cnty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012). Also, the court specifically addressed King’s
concerns about personal knowledge and refused to consider any asserted facts that were not
based on personal knowledge; indeed, King cannot identify a single fact in the district
court’s decision that was based on an affiant lacking personal knowledge. Finally, King’s
reliance on Local Rule 7.1(B) is misplaced. That rule applies only to motions other than those
for summary judgment. King’s motion to strike was his response to the defendants’
summary‐judgment motions. Under Rule 7.1(D)(3), the defendants may, but need not, reply
to that response. Thus, the court properly considered the affidavits and denied King’s
motion to strike.
King next argues that the district court should have granted his motion to stand on
his verified amended complaint. He maintains that the paragraphs in his complaint were
sufficient to satisfy his obligation to submit a factual statement opposing summary
judgment. But he ignores that a district court has broad discretion to enforce strictly its local
rules governing summary judgment. See Yancick v. Hanna Steel Corp., 653 F.3d 532, 537 (7th
Cir. 2011); Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010). Under
Local Rule 7.1(D), a party’s submission opposing a motion for summary judgment must
respond to each factual assertion in the movant’s fact statement, specify which facts are
material, identify any additional material facts, and argue why the court should deny the
motion. LOC. R. 7.1(D)(2). King’s amended complaint includes none of this required content.
In any case, the district court considered the facts in King’s amended complaint in making
its decisions. The court thus acted within its discretion.
Finally, King contends that the district court erred in granting summary judgment
because, he says, the defendants themselves did not comply with the local rules in their
motions for summary judgment, the district court did not specify which submitted facts it
relied on in granting their motions, and the court considered case law beyond the parties’
briefs. King is wrong on all points. The defendants’ motions complied with Local Rule
7.1(D)(1) because they contain the required introduction, statements of undisputed material
facts, and legal arguments. Also, the district court specified at great length the facts and
legal reasons for its decision to grant the motions, just as is required. See FED. R. CIV. P. 56(a).
And in reaching its conclusions, the court could consider materials not cited by either party,
see FED. R. CIV. P. 56(c)(3), and grant summary judgment on a ground not raised by either
party, see FED. R. CIV. P. 56(f)(2).
No. 11‐3225 Page 5
King fails to challenge the merits of the district court’s grant of summary judgment.
But any potential argument he could have made would fail even if King had properly made
them.
King could not establish a case of discrimination or retaliation in his discharge
because his employer had ample reason for firing him. King had an undisputed history of
infractions as a Security Therapy Aide for the Illinois Department of Human Services: He
abandoned his post without notice, slept on the job, misused sick time, violated his
perimeter duties, violated work‐away procedures (which would allow him to perform state‐
related work at a different facility), was insubordinate and insolent, and failed to report to
an overtime shift. He offers no evidence of discriminatory or retaliatory animus. See Coleman
v. Donahoe, 667 F.3d 835, 845, 859 (7th Cir. 2012); Luster v. Ill. Dept. of Corr., 652 F.3d 726, 730
(7th Cir. 2011). Nor did he identify any similarly situated coworkers who were treated
better than him. Coleman, 667 F.3d at 845–46; Salas v. Wis. Dept. of Corr., 493 F.3d 913, 926
(7th Cir. 2007). Nor did King offer evidence that but‐for his complaints he would not have
been reprimanded or fired. See Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012); Greene
v. Doruff, 660 F.3d 975, 979–80 (7th Cir. 2011).
Nor could King successfully challenge the court’s conclusion that the sheriff had
reasonable suspicion to strip‐search him. Before conducting a strip search, the officers
needed a reasonable suspicion that King was concealing drugs. See Bell v. Wolfish, 441 U.S.
520, 558–60 (1979); Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007); Kraushaar v. Flanigan,
45 F.3d 1040, 1045–46 (7th Cir. 1995); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th
Cir. 1983). That standard was met here. Multiple people informed the sheriff that King had
an outstanding arrest warrant and was planning to take drugs into his work facility. Some
of this information came from a co‐worker close to King who had previously reported
credible information about a different employee involved in illegal drug activity. Based on
this information, the sheriff directed officers to stop King’s car. The officers then patted
down King and searched his vehicle with his consent. Because the sheriff was told
specifically that King was planning to bring drugs to work, and neither the pat down or
search of the car revealed any evidence, the sheriff had reasonable suspicion to search
King’s body further, which led to the strip‐search at the jail.
We have reviewed the remainder of King’s arguments, but none has merit.
AFFIRMED.