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Article • May 15, 2007
Pointing Gun at Five Week Old Baby Unconstitutional by At 1071: Use of a weapon against someone who is helpless constitutes excessive force. . . . Pointing a gun at a person's head can constitute excessive force. . . . Most importantly, in 1999, no reasonable officer could have believed …
Article • May 15, 2007
Housing Rival Gang Members Together May Violate Constitution by The plaintiff was placed in a cell with members of a rival gang and was attacked. He said he told the deputy that he was gang affiliated, but there is no evidence he said which gang he was in or that …
Article • May 15, 2007
Filed under: PLRA, Filing Fees (PLRA)
Indigent Prisoners Required to Pay PLRA Filing Fees by The assessment of an initial filing fee of $5.16 was proper under the PLRA formula even if, by that time, the plaintiff's account balance was negative. However, the court reconsiders and rescinds its order that if the partial filing fee isn't …
Article • May 15, 2007
Georgia False Arrest Suit Dismissed by At 1374: This case demonstrates the proclivity of American citizens today to search for legal causes of action to redress every imaginable wrong. As we commemorate the 60th anniversary of the Allied's [sic] invasion of Normandy during World War II, the Court must decide …
Article • May 15, 2007
Georgia Detainee's Excessive Force Suit Dismissed by Allegations that the plaintiff was pushed repeatedly in connection with his arrest do not state a Fourth Amendment claim, since they did not result in injury, even though the alleged pushes were entirely gratuitous. Allegations that a deputy handcuffed the plaintiff without justification …
Article • May 15, 2007
No Claim for Guard Ordering Prisoner to Touch his Penis by The plaintiff alleged that on two occasions an officer unzipped his clothing and instructed the plaintiff to grab his penis. He further alleged that the same officer turned off his water and power for five hours in connection with …
Second Circuit Discusses Damages for Loss of Liberty, Mental and Emotional Injury by Second Circuit Discusses Damages for Loss of Liberty, Mental and Emotional Injury The plaintiff was involuntarily detained and hospitalized. He prevailed both on his Fourth Amendment claims for unlawful seizure and his state law claims for false …
Article • May 15, 2007
Class Certified in Suit by Georgia Foster Children by Foster children in state custody sued in state court on behalf of a proposed class alleging a wide range of constitutional and statutory violations. Defendants removed the case to federal court. By removing to federal court, the defendants waived their right …
Article • May 15, 2007
MI Jail Not Liable for Heroin Addict's Suicide by The decedent, a heroin addict, was arrested and killed himself four days later. At 792: "Heroin withdrawal is a serious medical condition." The failure to notify authorities at the jail where the decedent hanged himself of the plaintiff's condition did not …
Article • May 15, 2007
Rule 68 Offers Applicable to Class Actions by Rule 68, authorizing offers of judgment, is applicable to class actions (the court notes authority questioning or limiting this conclusion). Here, the offer was made before the plaintiff moved for class certification, and would satisfy the plaintiff's claim, so it mooted that …
Article • May 15, 2007
Parole Rule Ex Post Facto That Changes Revocation Standard by Application of a parole regulation that postdated the petitioner's offense and created a "significant risk of a more onerous sentence" violates the Ex Post Facto Clause. It need not be certain that the particular petitioner would serve more time. Here, …
Article • May 15, 2007
Filed under: Civil Procedure, Damages
No Damages for Three Year Visiting Denial by The plaintiff prisoner's visits were suspended after he was found with a shank on his way to the visiting room. His visiting privileges were permanently revoked, except that he was told he could apply for reconsideration after a year, and did so …
Article • May 15, 2007
Class Can be Certified Despite Fact Differences by All doubts regarding the propriety of class certification should be resolved in favor of certification, since certification is conditional. Numerosity does not require impossibility of joinder, only that "it is extremely difficult or inconvenient to join all members of the class." (694, …
Article • May 15, 2007
Eighth Circuit Requires Total Exhaustion Before Suit Filed by Dismissal is required if the plaintiff did not complete exhaustion before filing his complaint. The court does not require dismissal in this case. At 628: "In this posture, and because we are the first panel in this circuit to explicitly rule …
Article • May 15, 2007
No Modification of Mental Hospital Consent Decree by The defendants wanted to get out of a consent judgment governing a mental health facility, and the court doesn't let them, because even though the facility is closed, it is not established that the discharged patients have been treated consistently with the …
Article • May 15, 2007
Seventh Circuit Discusses Injury in Court Access Suits by The plaintiff, seeking post-conviction relief, was held in a jail whose law library he deemed inadequate, and he was not able to obtain disbursement forms to buy legal materials because he did not provide prison officials with the reason for his …
Right to Privacy Survives Death under FOIA by The Freedom of Information Act's exemption for law enforcement records the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy" is not limited to disclosure of records concerning the person whose privacy is at issue. Here, …
Article • May 15, 2007
Defendants Held in Contempt in Trademark Suit by The defendants are held in contempt in a trademark infringement and dilution case. The defendants are not excused on the ground of impossibility of compliance. At 377: "That reasonably, if not easily, avoidable violations occurred ten days after the Order's entry indicates …
Article • May 15, 2007
Class of Homeless Children Seeking Education Certified by The court certifies a class of homeless children who alleged that school enrollment and transportation procedures violate the McKinney Act and deny equal protection. At 324: The Defendants urge that the legal issue can only be decided on an individual basis because …
New Exhaustion Not Required for Enforcement of IDEA Remedy by An IDEA plaintiff who exhausted administrative remedies but remained aggrieved because the resulting IEP was not carried out was not required to exhaust again to enforce the initial decision. The fact that an IEP is supposed to be updated once …
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