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Article • May 15, 2007
Police Force Claim Not Barred by Heck by The plaintiff's use of force claim is not barred under Heck and Preiser by her guilty plea to resisting arrest. The court is not persuaded by defendants' argument that the punch in the face of which plaintiff complains was the arrest. The …
Article • May 15, 2007
Segregation Excuses Failure to File Amended Complaint by The district court directed the plaintiff to file an amended complaint containing only exhausted claims, then dismissed when he did not do so by the deadline. The court should have accepted his excuse for not filing an amended complaint (he was put …
Article • May 15, 2007
Class Certification Can Be Bifurcated for Liability and Damages by The court rejects the Fifth Circuit rule that an action cannot be certified under Rule 23(b)(2), Fed.R.Civ.P., if the class claims include compensatory and punitive damages other than "incidental" damages. (These are damages that are capable of objective calculation and …
Article • May 15, 2007
Prisoner Suit Filed When Mailed to Court by Prisoner Suit Filed When Mailed to Court The plaintiff's suit was filed, tolling the limitations period, when his mailed complaint was received by the district court, even though it was returned to him for a failure to comply with local rules (i.e., …
Article • May 15, 2007
Private Juvenile Sex Offender School Not a State Actor by The plaintiff alleged that he was physically abused by staff members of a private school specializing in the treatment and education of juvenile sex offenders. The school and its staff did not engage in state action, since the plaintiff's placement …
Exposure to Smoke, Retaliatory Discipline and Dish Washing Claims Dismissed by Complaints of "sporadic and fleeting" exposure to second hand smoke on bus rides were properly dismissed as frivolous absent "competent evidence that [the plaintiff's] intermittent exposure to smoke during bus rides was an unreasonable risk to his health." (498) …
Article • May 15, 2007
NY Ban on Internet Materials Upheld by A serious medical need is "a condition of urgency that may result in degeneration or extreme pain." (559) (No it isn't, necessarily.) The plaintiff alleged an eight-month delay in diagnosis of his "bowel disorder" (mild distal proctitis and internal hemorrhoids) from the time …
Article • May 15, 2007
Grievance Response Required Before Suit Filed by The plaintiff did not grieve his medical care complaint, so he failed to exhaust. He grieved and appealed his use of force case, but failed to exhaust because he did not show that he had received a decision. The court does not discuss …
Attempted Rape by Cop States Claim by The plaintiff alleged that the defendant police officer stopped him, conducted an unlawful pat down search, handcuffed him, took him to a remote location, and tried to sodomize him. The allegations state a constitutional claim under the Fourth Amendment's protection against unlawful searches …
Article • May 15, 2007
FCC Radio License Can Unconstitutional by An FCC regulation that permanently prohibited anyone who had ever operated an unlicensed radio station from obtaining a low-power FM radio license violated the First Amendment, since it would not pass any scrutiny more stringent than minimum rationality, being both underinclusive and overinclusive. The …
Article • May 15, 2007
Attorney Fees Allowed in Defending Decree from Attack by An original prevailing party who later defends a decree against a collateral attack in a separate action may be awarded fees based on its original prevailing party status if the work was "useful and of a type ordinarily necessary to secure …
Hearing Officer Immune in Barring Witness Questioning by The plaintiff was disciplined, on appeal the tape of the hearing was damaged and unintelligible, so the charge and incident were expunged. The officers who reported the plaintiff's conduct did not violate the plaintiff's rights. At 791: ". . . [A] correctional …
Article • May 15, 2007
Defendant Sanctioned for Late Production of Discovery by The City, approximately two weeks before trial, "under circumstances not persuasively explained," produced documents which were clearly responsive to earlier document requests and which ultimately became a core part of plaintiff's (losing) case. The City's conduct, "although perhaps short of bad faith …
Color Blind Bus Driver Not Disabled Under ADA by A city bus driver disqualified from driving city buses based on color blindness was not disabled within the meaning of the ADA because he was not substantially limited in the major life activity of seeing and was therefore not disabled under …
Article • May 15, 2007
Filed under: Mental Health, Suicides
Police Not Liable for Suicide of Released Arrestee by The decedent committed suicide after being released by the police, who had initially arrested him but concluded there was no basis for charges. (He then rented a motel room, went to K-Mart and bought a gun, put the Do Not Disturb …
Article • May 15, 2007
Prison Not Liable for Cold Cell by The court rejects the plaintiff's claim that he was kept in an unconstitutionally cold cell for two winters, since temperature measurements showed nothing colder than 64.6 degrees, except for a 24-hour period with no heat, and that period was too short to "cause …
Administrative Exhaustion Required in Beating Claim by At 721: Dismissal without prejudice for non-exhaustion is final and appealable because it can't be remedied by an amendment to the complaint. Id.: The court says plaintiff's complaint might be time-barred after dismissal for non-exhaustion, or the limitations period might run from the …
Article • May 15, 2007
Filed under: PLRA, Filing Fees (PLRA)
PLRA Filing Fee Requirement Upheld by 28 U.S.C. § 1915(e)(2)(B)(ii) does not deny equal protection by permitting sua sponte dismissal of indigents' claims. Strict scrutiny does not apply because the statute only addresses procedures once a claim is presented; it does not affect the ability to prepare and file complaints, …
No Immunity For Cop Who Sprays Woman With Pepper Spray in Patrol Car by The plaintiff alleged that a police officer sprayed her with pepper gas while she was under arrest for a minor offense and secured in the back of a patrol car, separated from the officer by a …
Article • May 15, 2007
Federal Court Generally Can't Enjoin State Court Proceedings by At 666: "The Younger abstention doctrine requires federal courts to abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests, and (3) offer an adequate opportunity for review of constitutional claims, (4) so long …
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