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Article • May 15, 2007
Pre Forfeiture Seizure of DUI Vehicles Illegal by New York City's provision for seizure of motor vehicles of those accused of DWI pending forfeiture proceedings denies due process. (Arrests for misdemeanor DWI are not supported by an independent determination of probable cause.) At 43: "A car or truck is often …
Article • May 15, 2007
Second Circuit Skirts Qualified Immunity Analysis by The Second Circuit Qualified Immunity tap dance resumes in this case. The court "ordinarily" begins by determining whether a constitutional right was violated, then decides whether the right was clearly established. But (166) "where we normally apply this two-step test, where we are …
Article • May 15, 2007
Mailbox Rule Only Applies to Use of Prison Mail System by A pro se prisoner's notice of appeal is deemed filed when the prisoner delivers it to prison authorities for forwarding. This prisoner asked his sister to mail the notice, so he was not entitled to the benefit of this …
Article • May 15, 2007
No Supervisory Liability for Ignoring Back Pain Complaint Letter by The plaintiff alleged that he had serious back pain over a period of time that was not adequately treated. Defendants do not dispute that this is an objectively serious injury, and prior decisions support that conclusion. However, plaintiff has not …
Article • May 15, 2007
Child Visitors Clothing Removal Upheld by The plaintiff, suing as next friend of her eight-year-old granddaughter, visited the plaintiff's son in an Arkansas state prison; the child set off the metal detector, and everyone agreed the reason was probably her metal overall buttons. She was told that to visit she …
No Immunity for Cop Who Shot Arrestee in Holding Cell by The plaintiff was arrested for DWI; while in a police holding cell, an officer shot him in the abdomen under disputed circumstances. The Fourteenth Amendment use of force standard is governed by the factors set out in Johnson v. …
Article • May 15, 2007
Inability to Work Suit Dismissed by The plaintiff alleged that he was assigned to a job inappropriate to his medical condition. He filed repeated grievances, all denied. The district court said he didn't exhaust because his grievances were not considered on the merits because he didn't follow the rules, and …
Article • May 15, 2007
Resisting Arrest Doesn't Bar Excessive Force Suit against Police by It is clearly established that using substantial force without any prior inquiry against an already subdued unarmed and unresisting individual violates the Fourth Amendment. The plaintiff's conviction for resisting arrest does not foreclose the possibility of a finding of excessive …
Suit Over Seizure of IRA Refund Check Dismissed by The plaintiff received a $617.15 refund check from the IRS, about 50% of which reflected an earned income credit, but prison officials sent the check back per an agreement to return prisoners' tax refunds to IRS for review. The plaintiff is …
Article • May 15, 2007
Nevada Smoking Suit Dismissed by Placing the non-smoking plaintiff in a cell for 42 days with a heavy smoker did not violate the Eighth Amendment, since he suffered only discomfort, irritation, and coughing, and 42 days doesn't pose an unreasonable risk to future health (based on what evidence, the court …
Article • May 15, 2007
New Jersey Parole Suit Dismissed by At 640: There is no federal constitutional right to parole. . . . Nevertheless, the Third Circuit has held that "once a state institutes a parole system, all prisoners have a liberty interest flowing directly from the due process clause in not being denied …
Article • May 15, 2007
Legal Mail Suit Dismissed, Administrative Exhaustion is Affirmative Defense by Once again, a SDNY judge applies the New York State grievance regulations to a claim that arose in the NYC jails. At 625: In the instant action, plaintiff filed at least two complaints to the IGRC in 1998. When he …
Article • May 15, 2007
Oklahoma DOC Grievance System Passes Muster by At 1032: "We review de novo the district court's finding of failure to exhaust administrative remedies." Id.: An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust …
Article • May 15, 2007
Filed under: Civil Procedure, Juries
Jury Verdicts Explained by Questions to the jury are not special verdicts when the jury is asked to make determinations not just of fact but of ultimate liability. They are not special interrogatories either if they address liability rather than facts. What they are, in this case, are general verdicts …
Article • May 15, 2007
Filed under: PLRA, Filing Fees (PLRA)
Suit Dismissed for Failing to Pay Initial Filing Fee by Plaintiff was assessed an initial fee, didn't pay, and now says that because he didn't pay, prison officials have no authority to take installment payments from him. Wrong. At 952: "The Prison Litigation Reform Act (PLRA) makes prisoners responsible for …
Article • May 15, 2007
Private Medical Transport Company Not Liable for Police Actions by At police direction, a private corporation transported the plaintiff to a police station, where he collapsed from a medication overdose. He had taken 114 pills after arrest while the officers stood around talking. When asked about the empty bottle, he …
Article • May 15, 2007
Filed under: Searches, Strip Searches
No Summary Judgment in Strip Search Suit While Discovery Underway by Plaintiffs challenged a jail policy of strip searching prisoners who returned to jail to await release, and the court denied a motion to dismiss citing a similar case from Illinois. Now the defendants move for summary judgment based on …
Article • May 15, 2007
Class of Over Detained, Strip Searched DC Prisoners Certified by The plaintiffs alleged that they were kept past their release dates by the D.C. Department of Correction; a subclass alleged that they were subjected to strip searches upon return to jail after judicial determinations that there was no basis for …
Product Liability Suit by Prisoner Welder Dismissed by The plaintiff alleged that he was forced to weld with thoriated tungsten electrodes, which contain a radioactive substance, as part of his prison work assignment. He also smoked two packs a day for 45 years. The court performs a Daubert analysis and …
Parole Retaliation Suit Dismissed by The plaintiff alleged that prosecutors reneged on a plea bargain by failing to submit favorable letters to the parole board and instead submitting unfavorable letters, and that the parole board retaliated against him for having filed federal court litigation. The plaintiff's claim for breach of …
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