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Article • May 15, 2007
Family Court Judge Immune From Suit by The plaintiff sued the county Department of Social Services and a Family Court judge for allegedly interfering with his correspondence with his son and ignoring his requests for visitation, and removing the child from his relatives' custody without notice to him. The Family …
CA Peer Review Records Not Privileged in Jail Death Suit by The decedent died in jail after making repeated complaints of abdominal pain. He was diagnosed after his third complaint with gastroenteritis and prescribed palliatives; nine days later he died of peritonitis due to idiopathic perforation of the descended colon. …
Article • May 15, 2007
Time Limit for Service Extended in Immigration Suit by The plaintiff immigration detainee did not serve the defendants properly because her attorneys did not understand the service rules. That is not good cause to extend the time for service. However, the court has discretion to extend the time for service …
Article • May 15, 2007
Attorney Misconduct at Depositions by Defense counsel engaged in misconduct at depositions by improperly "interpreting" questions for the witnesses, coaching them as to how to answer, engaging in lengthy speaking objections and colloquies, conferred with his witnesses during questioning, and left the room with a deponent while questions were pending. …
Article • May 15, 2007
HCQIA No Bar to Discovery of Peer Review Reports by The Health Care Quality Improvement Act "does not create an inviolate bar to discovery of materials relating to peer review committees." (438) The court grants plaintiff's motion to compel, along with a protective order. The complaint alleges that the peer …
Article • May 15, 2007
Class Certification Discussed by Plaintiffs alleged that delays in informing them of adverse actions on Medicaid coverage claims violated federal and state statutes and the Due Process Clause. The court certifies a class over the defendants' objection based on the Galvan "necessity doctrine" that government can be expected to apply …
Article • May 15, 2007
Class Certification Explained by As to numerosity (at 286): "Numbers alone are not dispositive when the numbers are small, but will dictate impracticability when the numbers are large." Here there are at least 168 members, far more than necessary to establish numerosity. Other factors supporting certification include that most class …
Article • May 15, 2007
Ohio Court Certifies Guard Gender Discrimination Class Action by Plaintiff female correction officers sued for gender discrimination and sought both injunctive relief and damages. The court certifies the class for injunctive relief but not for damages, rejecting the rule prevailing in other circuits that if other than "incidental" damages are …
Article • May 15, 2007
Discovery of Absent Class Members Not Allowed by At 455: ". . . [D]iscovery of absent class members is ordinarily not permitted in class actions." Some courts say they are not "parties" and hence not subject to certain forms of discovery, like interrogatories. At 456: "Another, perhaps more compelling, reason …
Article • May 15, 2007
Total Exhaustion Required Under PLRA by The plain language of the PLRA exhaustion requirement compels a "total exhaustion" rule--i.e., if one claim is unexhausted, all must be dismissed. General legislative intent and history supports that conclusion, as do policy considerations, since piecemeal litigation is more time-consuming than requiring all claims …
Article • May 15, 2007
Filed under: Medical, OB/GYN, Drug Testing
Supreme Court Bans Drug Testing of Pregnant Women by At 1288: "The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent." See: Ferguson v. City of Charleston, …
Article • May 15, 2007
Supreme Court Strikes Down CSC Ban on Welfare Suits by The Court strikes down a statute forbidding Legal Services lawyers to challenge the constitutionality of welfare statutes, and in doing so characterizes litigation as speech and applies the usual First Amendment analysis to this content-based restriction. (Interestingly, the Court ignores …
WI Transfer to CCA Prison Upheld by The plaintiff challenged his transfer to an out-of-state prison. At 974: ". . . [A] prisoner has no liberty interest in avoiding transfer to another prison, be it out-of-state, more restrictive, or owned and run by a private corporation." The transfer does not …
Article • May 15, 2007
Filed under: Medical, Abortion
Louisiana Jail Policy Banning Abortions Upheld by A policy requiring a prison inmate to obtain a court order and pay all attendant costs of a non- therapeutic abortion did not violate the Fourteenth Amendment. (The Sheriff said that this policy applied to all "elective surgery.") Under the Turner standard, the …
Ninth Circuit Upholds Prosecutor Denying Detainee Phone Access by The plaintiff, a federal pre-trial detainee held in a local jail, was placed in administrative segregation and lost telephone access based on a letter from the prosecutor to the U.S. Marshal, which requested such action because the plaintiff's superseding indictment named …
Article • May 15, 2007
RFRA Does Not Require Religious School to Recognize Union by The National Labor Relations Board ordered a religious college to recognize a union, which it objected to on grounds that it was a religiously operated institution not subject to the National Labor Relations Act and that it had religious objections …
Retroactive Federal DNA Testing for Parolees Upheld by The federal statute requiring DNA samples from everybody on supervised release was retroactively applicable to all persons who were on supervised release when it was enacted. This retroactive application did not deny due process or the Ex Post Facto Clause and was …
Article • May 15, 2007
Court Denies Defendant Transfer to Jail Closer to Counsel by The federal criminal defendant complained that she was held in a jail in Cedar Rapids, which imposed excessive travel on her attorneys, rather than in Des Moines. She also complained that the jail conditions amounted to punishment. Assuming that the …
Article • May 15, 2007
Notice Implies Consent to BOP Jail Phone Recordings by The criminal defendants were convicted based in part on recordings of their telephone calls from jail. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 generally forbids telephone surveillance without a warrant, but has exceptions for instances …
Article • May 15, 2007
Trial Court Must Make Fact Findings Before Ordering Stun Belt by The application of a stun belt to a criminal defendant is governed by the same considerations and body of law as restraint devices. Such a decision "must be subjected to close judicial scrutiny to determine if there was an …
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