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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.' …
Article • May 15, 2007
Filed under: Media, Censorship
Vanity Plates Are Not Protected Speech by The Vermont Department of Motor Vehicles did not violate the plaintiff's rights in recalling her vanity license plate reading "SHTHPNS," pursuant to a regulation disallowing vanity plates that are "offensive or confusing to the public." (The court was not impressed by a belated …
Article • May 15, 2007
City Liable for Jay Walker Being Shot 14 Times by Cop by A statement by one police officer that the defendant officer who shot the plaintiff's decedent was "known to use 'heavy handed' tactics with citizens and was 'out to perform [his] job overzealous[ly] with prejudice towards people" and that …
Article • May 15, 2007
Timeliness of Administrative Exhaustion Claim Needs to be Presented in Grievances by Timeliness of Administrative Exhaustion Claim Needs to be Presented in Grievances Plaintiff said he shouldn't have to exhaust because inmate assault is not grievable. Wrong. He said he shouldn't have to exhaust because Porter v. Nussle hadn't been …
Article • May 15, 2007
Qualified Immunity for Maryland Officials Requiring Jewish Prisoner to Clean Cell on Sabbath by Qualified Immunity for Maryland Officials Requiring Jewish Prisoner to Clean Cell on Sabbath Prison officials' designation of Saturday as cell cleanup day violated the Free Exercise clause as applied to an Orthodox Jewish prisoner. (They made …
Article • May 15, 2007
Okay to Hold Sexually Violent Predator in Jail for Trial by The plaintiff was held after the expiration of his sentence pursuant to the state Sexually Violent Predators Act. He spent some time in a county jail after that point, in connection with hearings on his commitment, and alleges that …
Sheriff Not Liable for Hiring Brutal Jail Guards by The plaintiff alleged that he was subjected to excessive force, including a "knee drop" that severed his intestine. He alleged that the Sheriff was deliberately indifferent in hiring the deputy responsible. The deputy had nothing worse on his criminal record than …
Article • May 15, 2007
Kentucky Sex Offender Classification Upheld by The plaintiff complained he was wrongfully classified as a sex offender based on a prior state conviction for criminal sexual abuse. The court finds that federal prison policy supports the classification, and classification decisions do not present constitutional issues. The classification based on a …
Article • May 15, 2007
Class Certified Despite Disagreement Among Plaintiffs by Defendants opposed class certification on the ground that some class members supported the program that the named plaintiffs were trying to enjoin. At 233: "Class actions, however, are not forbidden in every case in which class members disagree." The interests of those supporting …
Supreme Court Clarifies Limitations on Removed State Law Claims by The plaintiffs filed federal claims and state claims in federal court; the state claims were dismissed on Eleventh Amendment grounds and then refiled in state court, where they were dismissed on limitations grounds. 28 U.S.C. § 1367(a), the supplemental jurisdiction …
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