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Article • May 15, 2007
Federal Law Requiring Felons Submit DNA Sample Constitutional by The Sixth Circuit Court of Appeals has held that a federal statute, 42 U.S.C. § 14135a, that requires persons convicted of federal felonies to submit a DNA sample is constitutional. That ruling comes in the appeal of Bobbie J. Conley, who …
Disciplinary Rule Description Rather than Title Controls by The West Virginia Supreme Court of Appeals has held that "it is the content of what is contained under a title that is critical in most instances, not the title" of a "disciplinary rule"(DR). That ruling comes in the appeal of a …
Article • May 15, 2007
New York Prisoner's Prior Convictions for Sex Offenses Are Sufficient for Level 3 Classification by New York Prisoner's Prior Convictions for Sex Offenses Are Sufficient for Level 3 Classification In anticipation of the release from prison of Dale Mabb, a New York sex offender, the state Board of Examiners of …
Article • May 15, 2007
NY Prisoners Entitled to Assistant to Help Prepare Their Defenses in Tier 3 Disciplinary Hearings by NY Prisoners Entitled to Assistant to Help Prepare Their Defenses in Tier 3 Disciplinary Hearings Louis Avincola, a New York state prisoner, was infracted for fighting. At the ensuing Tier 3 disciplinary hearing the …
NY Sex-Offender Properly Classified as Risk Level II Where Risk Assessment Points Place Him in That by NY Sex-Offender Properly Classified as Risk Level II Where Risk Assessment Points Place Him in That Category Alan Barnett, a New York state prisoner, was classified as a risk level II sex offender …
NY Sex Offender's Risk Level 3 Classification Based on Credible Information, Thus Affirmed by NY Sex Offender's Risk Level 3 Classification Based on Credible Information, Thus Affirmed Tercero Stafford, a New York prisoner, is serving a prison sentence for burglary. He had prior convictions for sex offenses in New York …
Article • May 15, 2007
Court Rejects Cold Cell BOP Suit by The plaintiff said he was locked in a cell so cold that at times he could see his breath, his knees swelled and his arthritis worsened, and he suffered severe stress, anxiety, and panic attacks. He sued under the Federal Tort Claims Act …
Article • May 15, 2007
Jail Immune in Alcohol Withdrawal Death by The decedent was arrested for DUI and died in jail about 18 hours later. An autopsy found that he died from an arrhythmia resulting from an electrolyte imbalance caused by fatty liver. The court assumes that alcohol withdrawal is a serious medical need, …
Article • May 15, 2007
No Liability for Attack on Prisoner Collaborator by Segregation prisoners flooded their cells in protest over not receiving clean linens; the plaintiff was ordered to mop up the water. The other prisoners kicked and banged on their cell doors and threatened him. The defendants let another prisoner out of his …
Article • May 15, 2007
Prisoner Legal Advisor's Transfer Upheld by The plaintiff, an inmate legal advisor, alleged that he was reclassified and transferred in retaliation for filing grievances. At 1037: In this case, the Warden terminated Smith from his position as inmate legal advisor and transferred him to another prison because of his aggressive …
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 …
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