Notice Implies Consent to BOP Jail Phone Recordings by The criminal defendants were convicted based in part on recordings of their telephone calls from jail. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 generally forbids telephone surveillance without a warrant, but has exceptions for instances …
Motion to Compel Discovery Denied for Not Conferring With Counsel by The plaintiff alleged excessive force, a disciplinary due process violation, and other varieties of abuse by prison staff. The court denies appointment of counsel because the plaintiff has shown he can present the facts clearly and draft pleadings and …
Class of Disabled Riders Certified by A 6% rate of denial of requests for transportation for the disabled is "substantial"; the court notes that rides are regularly denied, "not for reasons outside defendants' control, but because of a lack of available seats, which in turn is attributable to defendants' insufficient …
Defendant Loses Forfeiture Challenge Despite Lack of Notice by The government sent a notice of forfeiture for a confiscated vehicle to the plaintiff's home address, the prison he was believed to be held in, and the lien-holder. He was transferred to a different prison two weeks before the notice was …
Guard Loses Gender Discrimination Suit by The court holds that a New York State correction officer failed to prove gender discrimination; five incidents of harassment over four years did not establish a hostile work environment. The officer could not pursue a claim of disciplinary action, not raised in the officer's …
Class of Disabled Children Certified to Avoid Mootness by Children with psychiatric disabilities challenged the failure to place them timely in a Residential Treatment Facility and sought class certification. The court certifies the class. Numerosity is presumed at a level of 40 members, and it is undisputed that the class …
Order Limiting Defendant from Contacting Class Members Should be Narrow by The court previously restricted the defendant employer from contacting individual employees in an action brought by the E.E.O.C. It now adopts the Eleventh Circuit's view that orders limiting communications between parties and potential class members "should be based on …
Disability Not Required for Disability Discrimination Student Plaintiffs by A student asserting disability discrimination in education need not show a learning disability. At 147: "It was sufficient to demonstrate that [she] was substantially limited in a major life activity of central importance to her daily life. . . . There …
Jail Prisoner's Shooting Suit Estopped by Fruad Conviction from Incident by The plaintiff's claim that he was shot in jail by other prisoners is collaterally estopped by his conviction for fraud arising from the same incident (the government's theory being that he staged his own shooting so he could bring …
New Suit Requires PLRA Exhaustion by Plaintiff brought a suit pre-PLRA, tried to add additional claims after the PLRA, and was told to file a new suit. Since his new suit was filed after the enactment of the PLRA, it is governed by the exhaustion requirement. The fact that the …
Suit for Retaliatory Discipline Dismissed by The plaintiff's claim that he was disciplined in violation of due process in retaliation for complaining about a teacher is dismissed absent any evidence of retaliation or that his sanction, 20 days in keeplock, was atypical and significant under Sandin. See: Brooks v. Miles, …
Qualified Immunity Claims Should Be Resolved First by At 359: The "better approach to resolving" [qualified immunity] claims is to first determine whether the plaintiffs have alleged a violation of a constitutional right, and then, if they have, to determine whether the right was clearly established at the time of …
NY Jail Finger Injury Suit Dismissed by The plaintiff had a medical care problem at a City jail. At 308: "New York State [sic] has procedures for filing grievances in each of its correctional facilities." The claim is dismissed for non-exhaustion. A bleeding finger is not a serious medical need. …
Filing Fee Refund Period Discussed by The plaintiff voluntarily discontinued his appeal and sought the return of his filing fee. At 79: "We write to clarify that the six month period to which 28 U.S.C. § 1915(b)(1) and Leonard v. Lacy, 88 F.3d 181, 186-88 (2d Cir.1996), refer is the …
Second Circuit Explains Interlocutory Class Certification Appeals by At 139: . . . [W]e hold that petitioners seeking leave to appeal [a class certification decision] pursuant to Rule 23(f) must demonstrate either (1) that the certification order will effectively terminate the litigation and there has been a substantial showing that …
Fact Questions Over Exhaustion Preclude Dismissal by The plaintiff said there was no prison grievance procedure; the defendants attached parts of an inmate handbook describing such a procedure (with a 6-day time limit). The plaintiff said that he filed three grievances as prescribed and never received a response. These claims …
HIV+ Plaintiff Can Be Anonymous in Needle Exchange Police Harassment Suit by Intravenous drug users who used state-authorized needle exchange programs alleged that they were harassed by the police. The plaintiffs had standing to seek injunctive relief. There is no minimum number of past incidents that must be pled to …
Court Orders Sentence Credit for Time in Federal Custody by The plaintiff was held in federal custody for 87 days pursuant to a writ of habeas corpus ad prosequendum executed two days before his state conditional release date. Later he was convicted of federal charges. He did not get credit …
School Case Mooted During Appeal by The court recites the "capable of repetition, yet evading review" doctrine and finds mootness. When a case becomes moot on appeal, the court considers the equities of the case in determining whether the decision below should be vacated. A party who sought review should …
Evidence Disclosed to Experts is Discoverable by The 1993 amendments to Rule 26(a)(2)(B) concerning disclosure of material presented to an expert does not exempt "core" work product or limit disclosure to factual material as opposed to mental impressions or opinions of counsel. If the expert sees it, it's discoverable. Accord, …
