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Article • May 15, 2007
No Qualified Immunity to Virginia DOC Officials in Smoking Suit by The plaintiff, a non-smoker with a respiratory condition, was double-celled over his objection with a habitual smoker of cigars. In response to his grievance, he was moved to a unit for "troublemakers" and assigned to a cell with a …
Article • May 15, 2007
Burden of Proof in Retaliatory Transfer Suit Discussed by The plaintiff alleged he was transferred in retaliation for his winning one lawsuit and testifying in another prisoner's suit against an officer. Under the Federal Rules' notice pleading standard, the plaintiff stated a claim. Stating a claim requires only the "bare …
Article • May 15, 2007
Harassment and Verbal Abuse by Guards Legal under 8th Amendment by The plaintiff missed the 10-day deadline for his Rule 59 motions, and the district court properly denied his Rule 60(b) motion, since it merely reiterated his rejected arguments and did not fit the requirements of any subsection of the …
Article • May 15, 2007
Suit Waiver Not Valid Due to Lack of Counsel by The plaintiff signed a release agreement with respect to civil claims arising out of an arrest which was resolved by a "plea in abeyance," equivalent to an ACD. The court concludes it was not voluntarily executed under Rumery and could …
Article • May 15, 2007
Continuing Violation of Federal Law Not Required for Consent Decree Jurisdiction by Continuing Violation of Federal Law Not Required for Consent Decree Jurisdiction The defendants, having failed to comply with a consent decree for over 20 years, moved to vacate it on the ground that the district court lacked jurisdiction …
Releasing Disabled Prisoner into Cold Weather Upheld by The plaintiff alleged that he was released in January into freezing cold temperatures without a coat or a ride home, despite his disability. The plaintiff's ADA claim is dismissed based on sovereign immunity, since Title II of the ADA is not congruent …
Article • May 15, 2007
Filed under: Medical, Podiatry
Toe Nail Fungus Not a Serious Medical Need by Toe Nail Fungus Not a Serious Medical Need The plaintiff alleged that he was denied treatment for a toenail fungus which caused burning and itching, with skin that cracked and bled; the defendant doctor responded that he refused to provide various …
Article • May 15, 2007
BOP Prisoner Suit Dismissed for Failing to Exhaust by Plaintiff failed to exhaust because he did not try to resolve his claims informally and did not file a remedy request with the warden. Though the regulations permit bypassing these steps if the inmate reasonably believes the issues are too "sensitive," …
Article • May 15, 2007
BOP Prison Phone Suit Wrongly Dismissed by New federal prison telephone policies limiting prisoners to 300 minutes per calendar month were instituted after the Bureau of Prisons settled an earlier suit about telephone policies. The plaintiff alleged that the earlier settlement was entered fraudulently with intent to retaliate against prisoners …
Court Denies Certification to Class of Involuntarily Operated On Mental Patients by Court Denies Certification to Class of Involuntarily Operated On Mental Patients Developmentally disabled persons challenged the District's policy of allowing city officials to consent to elective surgical procedures on their behalf (in the named plaintiffs' cases, two involuntary …
Article • May 15, 2007
Court Vacates Default Judgments by The court relieves defendants from entry of default, since plaintiff shows no prejudice to his ability to present his case, the fault was counsel's rather than the parties' (he was awaiting service of all defendants before answering), defendants moved promptly to set the default aside …
Article • May 15, 2007
Court Enjoins BOP Prisoner Transfers from Work Release by The three petitioners moved to vacate their sentences on the ground that they had been imposed on the understanding that the petitioners would serve their short sentences of imprisonment in community correction centers, but the Department of Justice had subsequently decided …
BOP Prisoners Habeas Hepatitis Suit Dismissed by The bottom line of this opinion, 59 pages in Westlaw, is that the court treats the plaintiff's medical care claim, filed as a habeas petition, as a civil rights action, denies appointment of counsel, holds the prisoner partially exhausted, and grants summary judgment …
Seventh Circuit Applies PLRA to IL Civil Commitment Prisoners with Pending Charges by Seventh Circuit Applies PLRA to IL Civil Commitment Prisoners with Pending Charges The district court dismissed at screening for non exhaustion. At 978: "Although the judge used 28 U.S.C. § 1915A to act peremptorily, failure to employ …
Article • May 15, 2007
No Liability for Heart Attack Death of MI Jail Detainee by The decedent arrestee complained of chest pains, but jail staff allegedly delayed five hours getting him to a hospital, where he died 12 hours later. The plaintiff's death did not establish a serious medical need. In cases of delay, …
FTCA Doesn't Apply to BOP Surgeon Contractor by The plaintiff federal prisoner sued his surgeon for malpractice; the court substituted the United States as defendant per the Federal Tort Claims Act; the U.S. said that the surgeon is an independent contractor, not a federal employee, so the substitution was wrong …
Article • May 15, 2007
Filed under: Searches, Strip Searches
Strip Search of Female Jail Prisoner in View of Male Guard Upheld by The plaintiff was being strip searched by female jailers, with reasonable suspicion, on intake to the jail, and a male jail employee viewed her bare breasts. The Fourth Amendment was not violated. The plaintiff offered no evidence …
Article • May 15, 2007
RLUIPA and RFRA Substantial Burden Defined by RLUIPA and RFRA Substantial Burden Defined Substantial burden is a necessary element of claims under RLUIPA and RFRA; that term is "akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can …
Article • May 15, 2007
Seizure of State Court Settlement Damages by MO DOC Upheld by Federal Courts by The plaintiff had cash seized on arrest; it was neither returned nor forfeited, so he sued; there was a settlement and the money was paid into his prison account. Eight days later the state invoked the …
Article • May 15, 2007
Sheriff Not Liable for Slip and Fall in Showers by The plaintiff didn't exhaust because, he says, he was unaware of the requirement. His claim is dismissed with prejudice, since he is no longer in the jail and remedies are unavailable. The plaintiff failed to allege that the Sheriff was …
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