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Article • May 15, 2007
Police Beating Suit Not Barred By Heck by The plaintiff alleged that he was unlawfully seized, arrested without probable cause, and subjected to excessive force. His claims concerning the seizure and arrest were barred under Heck v. Humphrey because of pending criminal charges for resisting arrest, but the claim of …
Article • May 15, 2007
Failure to Exhaust Dismissals Count as PLRA Strike by Failure to Exhaust Dismissals Count as PLRA Strike The plaintiff argued that a previous case should not be counted as a strike because some claims were dismissed as frivolous but others were dismissed for failure to exhaust. Another judge has already …
Challenge to Prison Library Purge Properly Exhausted by Plaintiff challenged prison censorship on the ground that similar books to those he was denied were in the prison library; so they purged the prison library of 21% of its contents, e.g., Sophie's Choice, Myra Breckinridge, and "a number of works by …
Article • May 15, 2007
Employers Entitled to Discovery on Plaintiffs Mental State by A plaintiff who alleged mental distress in an employment case did not place his mental condition "in controversy" entitling the defendants to a Rule 35 psychiatric examination. At 194: "No specific psychiatric malady has been alleged nor has Bowen asserted a …
ADA, RA Include Private Cause of Action by The Americans with Disabilities Act's incorporation by reference of the rights and remedies of the Rehabilitation Act, which in turn incorporates those of Title VI of the Civil Rights Act of 1964, includes the judicial gloss on those rights and remedies, including …
Article • May 15, 2007
Filing Amended Complaint Allows Defendants to Raise Waived Defense by A prisoner who is released after he files suit is still bound by the PLRA exhaustion requirement. Rulings to that effect "are consistent with the plain language of the PLRA, which focuses on the time that a lawsuit is 'brought' …
Article • May 15, 2007
Court Orders Disclosure of Discovery Materials to Media by Newspapers sought to intervene to challenge a confidentiality order governing discovery materials in a suit against the state child welfare agency. The newspapers are allowed permissive intervention; the requirement of a "question of law or fact in common" can be met …
Article • May 15, 2007
Michigan District Court Discusses Administrative Exhaustion by The plaintiff may amend his complaint, which consisted of exhausted claims, to add new claims which had subsequently been exhausted. At 551: . . . [A] rule requiring separate cases every time a new grievance is exhausted is fundamentally at odds with Congress' …
Article • May 15, 2007
No Federal Court Jurisdiction Over Article 78 Claim by A federal court cannot exercise supplemental jurisdiction over an Article 78 proceeding because state statutes specify where such a proceeding shall be brought, i.e., in state Supreme Court in the county specified by statute. (That would seem to suggest that state …
Article • May 15, 2007
Mental Health Arrests Okay by An individual subject to a "mental hygiene pickup" after what appeared to be a suicide attempt, joined by an advocacy group for the disabled, alleged that treating such pickups as arrests by using the same form as for criminal arrests discriminated against the mentally disabled. …
Article • May 15, 2007
No Liability in Jail Prisoner's Medical Neglect Death by The decedent was found unconscious in his cell. Staff attempted mouth-to-mouth resuscitation, and a physician's assistant attempted "full CPR." The decedent was transferred by ambulance to a hospital, where he was pronounced dead. The cause of death was toxic diffuse goiter. …
Article • May 15, 2007
No Immunity in Kansas Jail Suicide by The decedent's mother notified the prison's second-shift supervisor that her son had threatened suicide; he directed a search of the decedent's cell, where a tear-stained suicide note was found. The supervisor ordered him placed on suicide watch and moved to a "hard lockdown" …
Article • May 15, 2007
BOP Proper Defendant in Work Release Change Suit under APA by The plaintiffs are criminal defendants who received judicial recommendations that they serve their sentences in a community corrections center, but were denied such placement pursuant to the Department of Justice's abruptly announced change of policy barring it except for …
Delaware DOC Denial of Medical Diet Suit Proceeds by The plaintiff filed a grievance in September 1998, almost four years before the defendants moved to dismiss for non-exhaustion, and had received no response. There's no futility exception to the PLRA exhaustion requirement. At 602: However, this Court has held that …
Article • May 15, 2007
Black FBI Agent Beaten by Police States Claim by The African-American plaintiff was pulled over for a traffic violation and cooperated with the police officer in every respect, including informing him that he was an FBI agent and was armed. The defendant officer handcuffed him and then grabbed him from …
After 34 Years, Alabama Complies With Mental Health Order by In what used to be Wyatt v. Stickeney, the Alabama mental health/mental retardation litigation filed in 1970, the court grants a joint motion for a declaration that the defendants have complied with the most recent settlement agreement and to vacate …
Court Denies Jail Staff Motion to Dismiss in Death Suit by The plaintiff sued over the decedent's death in jail. A nurse, a doctor, and a private medical provider moved for a more definitive (sic) statement, asserting that language in the complaint such as "inter alia" and "is not limited …
Article • May 15, 2007
Filed under: Sentencing
Sentence Requiring Defendant to Wear Sign in Public Upheld by The defendant was sentenced (i.e., required as a condition of supervised release) to stand in front of a postal facility for 100 hours wearing a sandwich board reading "I stole mail. This is my punishment." The requirement does not violate …
Article • May 15, 2007
Filed under: Work Release, Sentencing
Resentencing Required After BOP Changes Work Release Rule by The criminal defendant alleged that the district court sentenced him under the belief that he could be placed in a community corrections center, and that if it had known the real state of the law it would have given him a …
Article • May 15, 2007
No Law Library Required When Defendant Has Standby Counsel by The criminal defendant elected to defend himself but contends that he should have had access to a law library. At 1051: . . . [P]retrial detainees are not entitled to law library usage if other available means of access to …
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