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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 …
Article • May 15, 2007
Filed under: Eighth Amendment, Juveniles
Arrestees' Kansas Jail Conditions Suit Dismissed by The five plaintiffs were arrested for planning to shoot up the local school, and spent from 11 to 27 days in jail. Eventually the charges were dismissed after they said they were just kidding. The constitutional standards for pre-trial detention conditions are the …
Article • May 15, 2007
Prisoner's Denial of Court Access for Divorce Defined, Confuses Court by In this case, where en banc rehearing was denied, the three-judge panel produces four separate opinions--a per curiam opinion, two concurrences with contradictory rationales, and one dissent. The plaintiff alleged that he tried to file a divorce petition pro …
Article • May 15, 2007
Firing of Deputy Warden Based on Political Affiliation Upheld by The termination of an assistant warden based on his political affiliation did not violate the First Amendment, given the broad discretionary authority associated with that position. His First Amendment retaliation claim had no merit, since his critical statements were linked …
South Dakota Juvenile Strip Searches Enjoined by Former juvenile detainees challenged the policy of strip-searching all juveniles admitted to the detention center regardless of the nature of their charges or the existence of reasonable suspicion. The policy is unconstitutional. An expert's conclusions that the policies and procedures were "neither unconstitutional …
Article • May 15, 2007
Court Rejects Challenge to West Virginia Parole Denial by In West Virginia, the state Supreme Court says parole is a liberty interest. However, the Fourth Circuit says that only "minimal procedure" is required--at most, a statement of reasons for parole denial. (629) The fact that the petitioner's parole hearing was …
Article • May 15, 2007
Medical Staff Records Subject to Disclosure by The plaintiff alleged that he suffers from a potentially severe psychiatric condition and was subjected to placement in SHU without due process, to deliberate indifference to his medical needs, and to unconstitutional conditions. The plaintiff (who is represented) is entitled to production of …
Article • May 15, 2007
Failure to Exhaust Differs from Failure to State Claim under PLRA by The court rejects the proposition that failure to exhaust administrative remedies is a strike under the PLRA. At 965-66 (footnotes omitted): . . . [T]he PLRA does not use "failure to state a claim" and "failure to exhaust …
Article • May 15, 2007
Ninth Circuit Defines Arrest by Ninth Circuit Defines Arrest The plaintiff's conviction for resisting arrest precludes his § 1983 claim for excessive force because under California law, an arrest involving excessive force is unlawful, and the lawfulness of the arrest is an element of the offense of resisting arrest. The …
Article • May 15, 2007
Arrestee Overdose Suit Dismissed for Lack of Injury by The plaintiff was arrested for domestic violence; there was reason to believe that he had taken an overdose of pills, though he denied it; he was taken to jail, where he started to have symptoms and admitted taking an overdose; he …
Article • May 15, 2007
Class Certification Criteria Recited by The court usefully recites class certification boilerplate. At 289-90: The key factor in determining the impracticability of joinder is the size of the class. . . . A plaintiff is not required to prove the identity of each class member or specify the exact number …
Article • May 15, 2007
Religious Immunization Exemption Statute in Arkansas Voided by A religious exemption from a school immunization statute, which was limited to persons belonging to a "recognized church or religious denomination," application for which was evaluated based on factors including the address of the church, the number of members, times and places …
Article • May 15, 2007
Court Bars Expert Testimony in Police Brutality Suit by Defendants moved in limine to preclude the testimony of plaintiff's expert concerning a police use of force, on the ground that it was not based upon scientific, technical, or other specialized knowledge. Rule 702, Fed.R.Ev., "makes clear that an individual may …
Article • May 15, 2007
Title VII Claims Subject to Equitable Tolling by The Title VII 300-day EEOC filing requirement is subject to the doctrine of equitable tolling when the employee is excusably ignorant of the discriminatory act or the existence of a claim. The D.C. Circuit reserves this power for "extraordinary and carefully circumscribed …
Article • May 15, 2007
Non Exhaustion Dismissals without Prejudice by The plaintiff was injured in a Puerto Rico prison and transferred to a federal institution, from which he filed suit. His claim is dismissed for non-exhaustion. The court distinguishes cases that say exhaustion is not required after release, and cites cases saying exhaustion is …
Court Upholds Firing of Probationary Cop for Affair With Captain by A female probationary police officer was terminated for having an affair with a male police captain. The captain was not terminated. There is no equal protection violation, since under the law of the Eighth Circuit a probationary officer and …
Article • May 15, 2007
No Liability for Untreated Cancer Death Claim by The decedent was imprisoned after he was diagnosed with widespread testicular cancer; he had two rounds of chemotherapy and was brought into remission each time. After his imprisonment, the cancer reappeared and his doctor advised immediate commencement of "salvage chemotherapy" (within five …
Delay in Treating Spinal Injury Survives Summary Judgment by The plaintiff injured himself in a fall, sustaining a spinal cord injury resulting in incontinence and other consequences. At 1221-22: "A delay in providing medical treatment is not actionable unless it is occasioned by 'deliberate indifference which results in substantial harm.' …
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