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Article • August 15, 2008
Denial of HIV Medications Claim Dismissed for Failure to Exhaust by The plaintiff complained of an interruption of his HIV medications at a county jail where he spent five days He did not utilize administrative remedies there At 1166: "An inmate must allege and show that he has exhausted all …
Article • August 15, 2008
No ADA Violation for Denying Deaf Arrestee Sign Language Interpreter by The deaf plaintiff complained that she was arrested without being provided an American Sign Language interpreter. (They did show her the Miranda warnings in writing.) An arrest is not a "program or service" under the Americans with Disabilities Act, …
ADA Requires Employees Exhaust Claims Prior to Filing Suit by Title II of the Americans with Disabilities Act doesn't create a claim for public employees for employment discrimination; it doesn't deal with employment, and Title I, which does, relegates public employees to the administrative scheme with exhaustion requirement of Title …
Article • August 15, 2008
Post Monitoring Fees Allowed in Institutional Reform Suits by At 1344: "In complex institutional litigation that often entails extensive remedial efforts over a long period of time, it is generally accepted that prevailing plaintiffs are entitled to post-judgment fee-and-expense awards for legal services necessary for securing compliance with, and reasonable …
Article • August 15, 2008
Second Circuit Discusses Qualified Immunity Analysis by At 66: "... [T]he initial question in the qualified-immunity inquiry should be whether the complaint sufficiently alleges the violation of a federal right . ..." The court does not mention the decision in Horne v. Coughlin, 178 F.3d 603 (2d Cir. 1999), which …
Article • August 15, 2008
Obesity Upheld as Classification Criteria by The plaintiff's placement in administrative segregation and his transfer did not deny due process. Assuming he had a liberty interest in remaining in general population at the sending facility, he received due process under Helms v. Hewitt. Enhancing the level of his assaults for …
Article • August 15, 2008
IFRP Not an Improper Delegation of Judicial Authority to BOP by The Bureau of Prisons did not usurp a judicial function by imposing a schedule governing the plaintiff's payment of the criminal fine imposed as part of his sentence. The court did not delegate its function to the Bureau; it …
Article • August 15, 2008
Deposition Objections Discussed by The 1993 amendments to Rule 30, Fed.R.Civ.P., which require objections in depositions to be stated "concisely and in a non-argumentative and non-suggestive manner," were a response in part to speaking and coaching objections like "if you know" and "if you remember." The court condemns plaintiff's attorneys' …
Article • August 15, 2008
Fee Award Against Frivolous Prisoner Litigant Reduced by The court had awarded fees of almost $2900 against the plaintiff after ruling against him on the merits of his claims. The Fourth Circuit reversed and held that the 12 factors listed in Johnson v. Georgia Highway Express must be applied. The …
Claim Exhausted When Prison Rules in Favor of Prisoner by The plaintiff complained of improper discipline and retaliatory reclassification and transfer At 506: "The violation of a constitutionally protected right is a sufficient injury for purposes of standing." The defendants had argued that the plaintiff lacked standing because he didn't …
Article • August 15, 2008
ADA Does Not Allow Individual Liability by Title VII of the Americans with Disabilities Act does not permit individual liability. The court cites the weight of authority, including the Second Circuit, and also analogizes to Title VII. Accord, Corr v. MTA Long Island Bus, 27 F.Supp.2d 259 (E.D.N.Y. 1998). The …
Article • August 15, 2008
PLRA “Three Strikes” Rule Not Ex Post Facto by The PLRA three strikes provision does not violate the prohibition against Ex Post Facto laws (citing prior decision in Rivera v Allin) At 1193: The existence of "imminent danger of serious physical injury" is not to be assessed as of the …
Article • August 15, 2008
Failure to Investigate Police Misconduct Establishes Municipal Liability by At 1205: This Court has held municipalities liable under Monell when the plaintiffs have produced evidence of prior complaints sufficient to demonstrate that the municipalities and their officials ignored police misconduct.... ... Evidence that a police department has failed to investigate …
Article • August 15, 2008
Maine Jail Not Liable for Strip Search Policy by The plaintiff was arrested for an unpaid traffic fine, which in fact had been paid, and was strip-searched on admission to the jail. Nobody could be held liable for this, since there was no evidence of a municipal custom. Though the …
Article • August 15, 2008
PLRA Filing Fees Assessed on Dismissed Appeals by Dismissal of an appeal for untimely filing of a notice of appeal does not release the prisoner from the obligation to pay the appellate filing fee in full. There is no authority for waiver or reduction of the fee. At 596: "The …
Article • August 15, 2008
No Right to Have Evidence Preserved or Wrongdoers Prosecuted by At 81: ". . . [T]here is no federal right to have criminal wrongdoers prosecuted. See Leeke v. Timmerman, 454 U.S. 83, 87 (1981)...." The failure to preserve evidence of an alleged use of force did not violate the right …
Article • August 15, 2008
Resisting Arrest Conviction Does not Bar Beating Suit by A conviction for resisting arrest did not bar a claim for excessive force during arrest under the rule of Heck v. Humphrey, since the lawfulness of the arrest (an element of the criminal offense) need not be negated for the plaintiff …
Article • August 15, 2008
Slapping Prisoner on Face Okay by The plaintiff was being transferred and shouted obscenities and refused to put out her cigarette. The Sheriff says he tried to take the cigarette out of her mouth and she tried to bite him, and his hand "made contact" with her face. The plaintiff …
Beating Claims Must Be Exhausted by The PLRA exhaustion requirement applies to use of force claims The plain meaning of "prison conditions" encompasses such claims ("conditions" defined as "restricting, limiting, or modifying circumstances") However, some courts think there is an ambiguity, so the court looks to Congressional intent In § …
Article • August 15, 2008
Parolee Subject to Prison Rules Prior to Release by Complaints about fire code violations in a facility operated under contract with the state raised at most an issue of negligence on the part of the city where the facility was located, since the claim turned on their alleged failure to …
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