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Article • May 15, 2007
Firing Whistleblowing Cop Unconstitutional by The plaintiff police officer filled out a required use of force report and implicated an officer in a beating (the suspect was not bleeding when the plaintiff left and was bleeding when he returned.) The plaintiff police sergeant expressed concerns to a lieutenant about the …
Article • May 15, 2007
Disciplinary Appeal Based on Same Facts May Exhaust Beating Claims Too by Defendants say the plaintiff failed to appeal to the highest level of the grievance process. However, plaintiff says he filed a grievance but DOCS failed to act on his complaints. He has sought discovery but defendants have refused. …
Administrative Exhaustion in Medical Neglect Claims Discussed by The plaintiff complained of medical neglect during a period in which he was transferred among facilities; he filed two grievances and exhausted them. Defendants argued that he did not sufficiently exhaust all the occurrences at all the prisons. The court addresses a …
Article • May 15, 2007
Filed under: Medical, Tuberculosis
Ohio Prison Officials Not Liable for TB Exposure by The plaintiff tested positive for TB in prison and alleged that various actions of prison officials had exposed him to it. There was an outbreak of TB after prisoners had filed numerous grievances based on rumors about an active case of …
Inconsistent Jury Verdict on Qualified Immunity Requires New Trial by Qualified immunity should be raised before trial so the claim can be disposed of by summary judgment where possible or factual disputes material to it can be identified and presented to the jury. The defendants did not waive their qualified …
Article • May 15, 2007
Jail Clothing Change Process Not a Strip Search by The plaintiff was arrested one night and released the following morning. Both coming and going, she was required to change clothing in a doorless room under the continuous observation of a female jail officer. The defendants argued that their procedure was …
Article • May 15, 2007
Filed under: Sentencing, Parole
Unconfirmed NJ Parole Board Members Do Not Deny Due Process by Participation in parole decisions of temporary Parole Board members, appointed by the Governor without Senate confirmation allegedly in violation of state law, did not deny due process. At 325: "As Defendants have conceded, New Jersey prisoners have a state-created …
Article • May 15, 2007
Prison Officials Failure to Respond to Grievance Must be Raised in Lower Court by At 1085: "Prison officials' failure to timely respond to a grievance could be a basis for a prisoner to show that he exhausted 'available' administrative remedies." At 1086: "Significantly, however, we find no evidence in the …
Catheterizing Motorist for Urine Sample Suit Dismissed by The plaintiff alleged that he ran out of gas and Sheriff's deputies took him to a hospital and requested he submit to a urine analysis; when he could not urinate with a room full of people watching him, the deputies tackled him …
Article • May 15, 2007
Beating Noisy Arkansas Prisoner Unjustified by The plaintiff's allegation that he was sitting on a bench in a cell and two guards entered and beat him was sufficient to withstand summary judgment. The fact that he had been yelling and kicking the walls previously did not provide a basis for …
Texas Failure to Protect, Retaliation Claims Dismissed by The plaintiff's injunctive and declaratory claims concerning failure to protect him are mooted by his transfer to another prison. At 522: "A plaintiff-prisoner may avoid dismissal of his equitable claims for mootness if he shows 'either a "demonstrated probability" or a "reasonable …
Article • May 15, 2007
No City Liability for Policeman's Sexual Assault, Strip Search of Minor by The plaintiff, a minor, was a passenger in a car whose driver was in possession of marijuana. The plaintiff was strip searched at the police station and the officer later made sexual advances toward him and restrained him …
Article • May 15, 2007
Post Incarceration Proposed Residence Doesn't Establish Diversity in Forfeiture Action by Post Incarceration Proposed Residence Doesn't Establish Diversity in Forfeiture Action The plaintiff established a trust pursuant to a plea agreement to shelter his 24-acre Texas farm from forfeiture, with his children as beneficiaries, and now there is a dispute …
Article • May 15, 2007
Third Circuit Terminates Prison Paralegal Clinic Injunction by Prison officials moved to terminate an injunction requiring a prisoner-run law clinic. Plaintiffs conceded that there was no current and ongoing constitutional violation, but said if the judgment is terminated there will be because the defendants will shut down the clinic. At …
Article • May 15, 2007
Filed under: Civil Procedure, Estoppell
No Estoppel for Failing to File EEO Notice by The plaintiff failed to seek EEO counseling within 45 days of the act she alleged was discriminatory and then failed to file an administrative complaint within 15 days after receiving a notice of the right to file it. Equitable tolling and …
No Liability for Arrestee Who Chokes to Death on Vomit While Wearing Spit Mask by The decedent was arrested for public intoxication based on ample visible evidence, and vomited in the police cruiser. He had a large amount of fluid in his mouth, which he refused to spit out until …
Article • May 15, 2007
Class Settlement No Bar to Federal Parolee's Damages Suit by The plaintiff was arrested on a parole violation warrant; the charges were dismissed a few months later and plaintiff's lawyer notified parole authorities; the government said the case remained "open and ongoing" despite the failure to return an indictment. After …
Article • May 15, 2007
D.C. Court Upholds BOP Work Release Policy Change by The Department of Justice abruptly changed its policy to forbid service of prison sentences in community correction centers. The prior policy was to honor judicial recommendations that sentences be served in a community correction center. The new policy did not deny …
Article • May 15, 2007
Title VII Plaintiff Can Rely on EEO Statements for Exhaustion Purposes by The court applies equitable principles to excuse the plaintiff from exhausting one aspect of her Title VII claim because she withdrew the relevant administrative charge based on the incorrect advice of an EEO counselor. At 17-18: "Failure to …
Article • May 15, 2007
Police Must Produce Informant Used to Justify Drug Raid by The plaintiffs alleged that they were unlawfully subjected to a drug raid which the City said was based on information from a confidential informant. At 510: ". . . [A]s a condition precedent for invoking the informer's privilege, the government …
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