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Fifth Circuit Misstates Retaliation Standard by Prisoners claiming retaliation must allege "(1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation." The plaintiff alleged retaliation for his filing of grievances …
Article • August 15, 2008
State Consent Decree Valid Despite Governor’s Objection by The state submitted a consent decree to plaintiffs and agreed to several changes; the day before it was to be presented to court, the Assistant AG repudiated it at the direction of the Office of the Governor, which had just learned of …
Article • August 15, 2008
Injunction Over Towing, Sale of Cars Without Notice to Owners Reversed by The district court found that municipal practices of towing and selling automobiles without notice to their owners denied due process. During the litigation, the defendants changed their regulations. The district court said they "did not go far enough" …
Fired Whistleblowing Rec Staff Allowed to Amend Complaint by The plaintiff, a prison "recreation specialist," alleged that he was fired because of his complaints of lack of safety in the workplace. The court first says that his complaints about lack of personal security amount to no more than negligence, even …
Article • August 15, 2008
Ninth Circuit Discusses Anonymous Party Requirements by At 1068: "... [A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." Where fear of retaliation is …
Immigration Detainee Loses Failure to Protect Suit by The plaintiff immigration detainee was attacked by another prisoner and was warned not to retaliate against him. He was involved in a second altercation the next day in which the other prisoner "got cut"; the plaintiff was later criminally convicted for the …
Police Chief Subject to Discovery in Killing by Cop by The court cites law acknowledging the "need for controlling the use of subpoenas against high government officials," which usually requires a showing of "compelling need and extraordinary circumstances." The court questions whether a police chief is a "high government official," …
Article • August 15, 2008
Exclusion of Prisoners from Virginia FOIA Upheld by The plaintiff sued the county court clerk for refusing to make a recording of a 911 call available for copying and inspection, and challenged the exclusion of prisoners from the Virginia Freedom of Information Act. The Burford abstention doctrine does not require …
Article • August 15, 2008
Courts Can Approve Settlement Orders Sealing Case Files by When a district court "so orders" a settlement that provides the case file will be sealed, it is obliged to seal the case file, and cannot require a further showing of good cause. While the court has great discretion in granting …
Article • August 15, 2008
New Mexico AG Comments on Disclosability of Prisoners' Penitentiary Files by Howell Gage, Superintendent of the New Mexico State Penitentiary, asked the state Attorney General (AG) to opine as to the disclosability of prisoners' records at the penitentiary. In his opinion, the AG considered authorities from other jurisdictions because New …
Article • August 15, 2008
N.Y. Protest Rally Arrest Documents Ordered Disclosed Despite Protective Order by New York state resident Michael Schiller petitioned to obtain confidential documents bound by a protective order regarding numerous arrests during a 2004 Republican National Convention (RNC) protest. The New York Times (Times) filed a motion to modify the protective …
Federal Escape Statute of Limitations Not Triggered Until Return to Custody by Naturalized U.S. citizen and federal prisoner Guillermo Gonzalez appealed his 2006 escape conviction, arguing that the district court failed to instruct the jury on the statute of limitations for escape. His conviction was affirmed. While serving an eight …
Article • August 15, 2008
Ninth Circuit: Retroactive Blakely Relief Unavailable on Habeas Corpus, Only on Timely Certiorari by by John E. Dannenberg The Ninth Circuit U.S. Court of Appeals held that a state prisoner virtually identically situated as in Blakely v. Washington, 124 S.Ct. 2532 (2004) (sentence may not be enhanced by facts not …
Article • August 15, 2008
OH Mental Health Service Not Subject to Public Records Act by The state of Ohio created a mental health services board (Board) which was to contract with and govern private mental health providers to ensure that even indigents and the uninsured could receive mental health services. The Board in Stark …
Article • August 15, 2008
Colorado AG Advises Against Felons Microfilming Department of Revenue Tax Records by Colorado Attorney General (AG) J.D. MacFarlane opined against the Division of Correctional Industries utilizing felons to microfilm Department of Revenue (DOR) tax records. Upon request by Lee White, Executive Director of the Department of Administration, and Alan Charnes, …
MA Prison Conditions Might Amount to Cruel and Unusual Punishment by Richard Smith, a Massachusetts state prison at MCI-Concord, filed suit against prison officials after being disciplined for fighting. He sued numerous guards and administrators in state court alleging a multitude of constitutional and statutory violations. Among them was a …
Article • August 15, 2008
CHP's Liability for Excessive Force May Depend on Plaintiff's Immigration Status by Pretrial motions in a California U.S. District Court were determined in 2006 concerning Jose Angel Martinez Romero's immigration status as it pertained to his § 1983 excessive force action against the California Highway Patrol (CHP). The CHP's motion …
Article • August 15, 2008
New Hampshire DOC Union Representative Ordered to Reveal Client Admissions by An unnamed New Hampshire Department of Corrections (DOC) union representative (petitioner) appealed a court's refusal to quash a subpoena requiring him to testify before a grand jury. The state Supreme Court denied his appeal and ordered that he reveal …
Illinois Police Misconduct Investigative Documents Ordered Disclosed by Self-proclaimed journalist Jamie Kalven filed a motion to intervene in a 42 U.S.C. § 1983 action for police misconduct which subsequently settled. The motion was granted and production of the investigative documents he sought was ordered. Diane Bond brought an action against …
Improper Jury Instruction Vacates Four Aggravated Rape Charges Against Oklahoma Sheriff by Federal prisoner and ex-Larimer County (Oklahoma) Sheriff Melvin Holly appealed his conviction for five counts of felony deprivation of rights related to numerous incidents of sexual abuse. He claimed that an inappropriate jury instruction had resulted in the …
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