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Article • May 15, 2007
No Sentencing Guidelines Departure for Heart Transplant by An "extraordinary physical impairment" may justify a downward departure under the federal sentencing guidelines, but the district court declined to grant one based on this criminal defendant's severe cardiac problem and the fact that the Bureau of Prisons does not provide organ …
Article • May 15, 2007
Federal DNA Sample Parole Condition Upheld by A supervised release condition requiring the defendant to "cooperate in the collection of DNA as directed by the U.S. probation officer" does not violate the Fourth Amendment and is not unconstitutionally vague, given the extensive rules and restrictions that govern the collection and …
Article • May 15, 2007
Defendants Can Amend Answer to Raise Administrative Exhaustion Defense by Defendants are granted leave to amend their answer to assert non-exhaustion as a defense. There was no indication of bad faith; they rely on a change in the law occasioned by Porter v. Nussle. Why they waited two years is …
Article • May 15, 2007
PHS Avoids Liability in Maine Prison Suicide by The decedent committed suicide in prison. The court refuses to draw an adverse inference against the medical defendants from missing records because almost all of them were from a period later than when they had any dealings with the decedent, and the …
Article • May 15, 2007
No Liability for Medical Neglect Death of Mental Patient by The plaintiff, involuntarily committed to a civil mental hospital, suffered from chronic obstructive pulmonary disease. She was prescribed clozapine, which presented risks for someone in her condition and also caused weight gain, which further aggravated the risk. Her problems were …
Article • May 15, 2007
Damage Awards to 22 Minority Cops Upheld by A jury awarded $50,000 to each of 22 black or black-Hispanic police officers transferred on racial grounds to the precinct where Abner Louima was tortured. The court affirms. At 55: It is well-established that courts may award emotional distress damages in section …
Article • May 15, 2007
Court Upholds Firing of Racist NY Cop by The plaintiff, a New York City police officer, received solicitations from the Mineola Auxiliary Police Department and stuffed the return envelopes anonymously with racist and anti-Semitic literature. He was traced and reported to his employer, which fired him. The court assumes that …
Article • May 15, 2007
Wackenhut is a State Actor for Section 1983 Liability by Wackenhut is a State Actor for Section 1983 Liability The Wackenhut Corporation and its employees are "state actors" under § 1983 with respect to their operation of a jail under contract with the state. The plaintiff's allegation that a nurse …
Article • May 15, 2007
Filed under: Family, Family Law
Removal of Children From Domestic Violence Victims Enjoined by The court handily summarizes the various abstention doctrines plus Rooker-Feldman. Younger abstention doesn't apply to an injunctive challenge to the removal of children from mothers' custody as a result of the mothers' victimization by domestic violence. At 231: "While in the …
Article • May 15, 2007
Guards Refusal to Protect MD Prisoner Upheld by The plaintiff said he told a defendant officer that his cellmate was threatening him with assault, and the officer responded, "I don't roll like that. Deal with it." The plaintiff was assaulted and seriously injured. The officer could not be held liable. …
Article • May 15, 2007
Filed under: Attorneys, Attorney Client
Client-Client Meeting Notes Not Privileged by A corporation asked its general counsel to conduct an internal investigation of alleged wrongdoing. For purposes of attorney-client privilege, the general counsel was the attorney and the client was the firm and its partners and employees. Therefore all communications from partners or employees to …
Article • May 15, 2007
Going Barefoot Not Protected Speech by A rule requiring patrons of a public library to wear shoes did not violate the First Amendment, even assuming that going barefoot constituted speech. A library is a limited public forum, and the shoe requirement is a valid, content-neutral regulation that promotes communication of …
Article • May 15, 2007
Administrative Exhaustion Required for Title VII Claims by Title VII claimants must exhaust administrative remedies. At 644: "Where a plaintiff's claims 'exceed the scope of the EEOC charge[s] and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.'" Here, the EEOC charge alleged only …
Article • May 15, 2007
Exhaustion Defense Not Waived by 22 Month Delay by The plaintiff said he complained to the Inspector General and wrote letters to the Superintendent. He didn't exhaust. Even if his letters were viewed as having commenced the expedited harassment grievance process, he didn't get a favorable decision and didn't appeal. …
Article • May 15, 2007
Court Rejects Attempted Suicide Claim by Indiana Jail Prisoner by The plaintiff was arrested after a one-car accident in a car containing whiskey, a loaded shotgun, and a suicide note, though he denied that running his car into a tree at 85 miles an hour was a suicide attempt, and …
Article • May 15, 2007
Parties Involvement Must Be Shown in Vascular Care Suit by The plaintiff alleges that the defendants denied him appropriate medical care for a vascular condition, causing him great pain over an extended period of time and resulting in his confinement to a wheelchair. The court recites medical care boilerplate, including …
Article • May 15, 2007
Jail Insurance Agreements Subject to Discovery by In a jail strip search suit, the court holds that reinsurance agreements between a self-funded insurance pool of counties and its reinsurers are subject to disclosure under Fed.R.Civ.P. 26(a)(1)(D) governing discovery of insurance agreements. See: Tardiff v. Knox County, 224 F.R.D. 522 (D.Me. …
No One Liable in Jail Prisoner's Mysterious Death by The decedent, a 39-year-old homemaker, dropped her kids off at school, then was arrested for driving while drugged because she was having difficulty speaking and walking. A few hours later she was found strangled to death. Nobody knows who did it …
Article • May 15, 2007
IG Complaints Can Constitute Exhaustion by A plaintiff who didn't exhaust timely can't rely on the Porter v. Nussle change of law, because the earlier decision on which he might have relied, Nussle v. Willette, had not been decided. Porter applies retroactively. (That holding appears to be overruled by Rodriguez …
Written Statements Supports Disciplinary Sanctions by The plaintiff sought a writ of habeas corpus challenging his disciplinary conviction for attempting to traffic in contraband, which resulted in a loss of good time. Indiana prisoners have a liberty interest in earned good time and in maintaining their classification for purposes of …
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