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Article • May 15, 2007
Protective Orders Must Be Narrow, Judicial Proceedings Inherently Public by At 247: Because the public "has an interest in what goes on at all stages of a judicial proceeding," . . . including the pre-trial discovery stage, . . . the judge, as "the primary representative of the public interest …
Article • May 15, 2007
Evidence Disclosed to Experts is Discoverable by The 1993 amendments to Rule 26(a)(2)(B) concerning disclosure of material presented to an expert does not exempt "core" work product or limit disclosure to factual material as opposed to mental impressions or opinions of counsel. If the expert sees it, it's discoverable. Accord, …
Article • May 15, 2007
Filed under: Medical, HIV/AIDS, Medication
Delay of HIV Medication Claim Dismissed by The plaintiff complained that he did not get his HIV medication on time. However, the evidence showed that his viral loads got better rather than worse during the relevant period, a doctor testified that it really didn't matter whether he got his medications …
Article • May 15, 2007
Federal Injunctions Against State Agencies Must be Narrow by At 1092: "Due to concerns of comity and federalism, the scope of federal injunctive relief against an agency of state government must always be narrowly tailored to enforce federal constitutional and statutory law only." (Citation omitted) Anything more is an abuse …
Article • May 15, 2007
Police Beating Requiring Spleen Removal Actionable by The plaintiff alleged that he accompanied police officers to the station to assist in an investigation and that an officer kicked him and punched him, then told him the investigation was over and he could go home. After they took him home he …
No Policy Needed to Support Municipal Liability Under ADA/RA by A municipal policy need not be shown to support liability under the disability statutes; the statutory term "employer" encompasses any agent of an employer covered by the statute. At 575: "There is no 'deliberate indifference' standard applicable to public entities …
Article • May 15, 2007
No Suit Dismissal for Not Answering Deposition Questions by The plaintiff refused to answer questions at his deposition on the ground that he was being threatened with harm at the prison if he spoke, and he asked the Assistant Attorney General to protect him. His claim was of retaliation for …
Article • May 15, 2007
Filed under: Medical, Misdiagnosis, Hepatitis
Eventual HCV Diagnosis Fails to State Claim by The plaintiff complained of pain in his right side, saw doctors, got pain medication, an x-ray, an ultrasound examination, and tests of stool samples. Eventually he was diagnosed with Hepatitis C. The defendants were not deliberately indifferent. See: Davis v. Williamson, 208 …
Article • May 15, 2007
Village Failure to Investigate Police Abuse May Create Liability by The plaintiff alleged abusive conduct by a police office. There had been six prior letters of complaint or criticism of the officer's abuse of civilians. At 479: ". . . [A] reasonable jury could infer from these repeated complaints an …
Article • May 15, 2007
Habeas Required to Challenge Abuse Parole Arrest by The plaintiff's allegations of an abusive and improper arrest by parole officers and an improper parole violation hearing may not be pursued under § 1983 because he is incarcerated after having had his parole revoked. The court does not distinguish finely among …
Article • May 15, 2007
Filed under: Civil Procedure, Complaints
Pro Se Complaints Broadly Construed by At 461: "Where a party appears pro se, the Courts are required to broadly construe that party's pleadings and interpret them 'to raise the strongest argument they suggest.' Graham v. Henderson, 89 F.3d 75, 79 (2nd Cir. 1996)." Factual allegations in an opposition to …
Article • May 15, 2007
Delay in Appealing Grievance Denial Bars Suit by The plaintiff grieved and had 10 days to appeal. He waited a year. The grievance system has discretion to permit late appeals, but they didn't in this case. The plaintiff is barred for non-exhaustion. At 1023-24: . . . [U]nless the prisoner …
Important Application of Qualified Immunity to Supervisory Liability Claims by This is probably the most important opinion the Second Circuit has issued concerning the application of qualified immunity to supervisory liability. Although it is not a prison case, it has significant implications for a largely unrecognized question in prison litigation. …
City Not Liable in Police Shooting by After an unconstitutional warrantless entry into a residence in which a man was fatally shot, his family sued alleging a municipal policy. Custom or policy liability must be supported by "[a]ctual or constructive knowledge of such custom . . . attributable to the …
Article • May 15, 2007
Consent Decree Deadlines Extended Due to Attorney Conduct by In litigation by African-American farmers against the Department of Agriculture alleging racial discrimination in lending practices, a consent decree was entered. After class counsel's failure to meet crucial deadlines, the district court interpreted the decree to allow extension of the deadlines …
ADA Suit by Alcoholic Work Release Residents Dismissed by Residents of a halfway house for alcoholics were disabled for purposes of the disability statutes, since alcoholism is a recognized disability and since the halfway house only admitted persons who inter alia were determined to be unable to abstain without continued …
Alcoholism is a Disability by Alcoholism is an "impairment" under the disability statutes; to be a disability, an impairment must substantially limit one or more major life activities, and the impact must be "permanent or long-term." Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, …
Article • May 15, 2007
Administrative Exhaustion Required Despite No Response to Grievance by A plaintiff who merely asserts generally that he has exhausted, not contesting the specific statement of defendants that they have no record of an appeal to the highest level, is subject to dismissal for non-exhaustion. Even though pro se papers are …
Supervisors Not Liable for Retaliatory Assault by The plaintiff alleged that he was assaulted by an officer because he had filed previous lawsuits against other officers at the prison. He brought suit against supervisory defendants and not the officer. The fact of the assault does not establish deliberate indifference on …
Default Denied Where Defendant Ignores Complaint by The plaintiff is not entitled to a default judgment against a defendant who has not answered because he has not exhausted. The court does not explain in its two-sentence reference to this issue why the defendant in question hasn't waived exhaustion, and also …
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