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May 17-21, 2010
U.S. 1st Circuit Court of Appeals, May 17, 2010 Coggeshall v. Massachusetts Bd. of Registration of Psychologists, No. 09-1111 In plaintiffs’ 42 U.S.C. section 1983 suit against the Massachusetts Board of Registration of Psychologists, claiming multiple challenges to the constitutionality of the Board’s actions and the regulations involving plaintiff-psychologist’s evaluation of a seven-year-old boy, district court’s dismissal of the action is affirmed where: 1) the members of the Board, individually, are shielded from the damages claims by reason of quasi-judicial immunity; 2) district court’s dismissal on abstention ground is affirmed as this case is a paradigm for Younger abstention; and 3) third party lacks standing to pursue his nonmonetary claims as he suffered no legally cognizable injury in fact as a result of the Board’s actions.
U.S. 1st Circuit Court of Appeals, May 20, 2010 Gorelik v. Costin , No. 09-1192 In plaintiff’s 42 U.S.C. section 1983 suit against the president of the New Hampshire State Board of Medicine, arising from the Board’s mischaracterization of plaintiff’s temporary license as disciplinary action rather than as “Board action” and posted on the Board’s website and in newsletters, judgment of the district court is affirmed where: 1) the issuance of plaintiff’s temporary license and the posting of the newsletter labeling it a “disciplinary action” occurred eleven years before filing of the complaint, which is well outside the limitations period; and 2) plaintiff has failed to identify any retaliatory decision or action by the Board in response to her attempts to avail herself of administrative remedies.
U.S. 2nd Circuit Court of Appeals, May 18, 2010 Adams v. Zelotes, No. 07-1853 In an action challenging the constitutionality of a Bankruptcy Code provision, 11 U.S.C. section 526(a)(4), alleging that the provision’s prohibition on debt relief agencies advising clients to incur additional debt in contemplation of bankruptcy violated plaintiff’s First Amendment rights, an injunction in favor of plaintiff is reversed where the Supreme Court’s decision in Milavetz directly foreclosed plaintiff’s as-applied challenge by narrowly construing the Bankruptcy Abuse Prevention and Consumer Protection Act to avoid his First Amendment complaint.
U.S. 5th Circuit Court of Appeals, May 21, 2010 Meza v. Livingston, No. 09-50367 In a civil rights action for violations of plaintiff’s right to due process after defendants attached sex offender conditions to plaintiff’s mandatory supervision, judgment for plaintiff is affirmed in part where: 1) the Texas procedure for providing parolees with their Coleman notice did not meet the constitutional requirements for procedural due process; and 2) on the spectrum of due process rights afforded by the Supreme Court in analogous cases, requiring a parolee who has not been convicted of a sex offense to register as a sex offender or participate in sex offender therapy required more process than was provided to the inmate in Wolff, but less process than was provided in Vitek. However, the order is vacated in part where the due process clause did not entitle plaintiff to counsel in Coleman notice proceedings.
U.S. 6th Circuit Court of Appeals, May 17, 2010 Fox v. Traverse City Area Pub. Sch. Bd. of Educ., No. 09-1688 In a former special-education teacher’s First Amendment retaliation suit under 42 U.S.C. section 1983, district court’s grant of summary judgment in favor of the defendants is affirmed as the district court correctly determined that, under Garcetti, when the plaintiff complained to her supervisor about the number of students assigned to her supervision, she spoke as a public employee rather than a private citizen, and as such, her statements were not entitled to protection under the First Amendment.
U.S. 7th Circuit Court of Appeals, May 18, 2010 Ogden v. Atterholt, No. 09-2953 In a 42 U.S.C. section 1983 suit brought by a former employee with the Indiana Department of Insurance claiming that a memo he wrote was protected speech and his forced resignation violated his rights under the First Amendment, summary judgment in favor of the defendant is affirmed as plaintiff was speaking as a governmental employee and not a citizen when he wrote the memo under Garcetti because his complaints about the Deputy Commissioner and his request for a departmental reorganization were made in the performance of his professional duties as manager of the Title Insurance Division.
U.S. 8th Circuit Court of Appeals, May 17, 2010 Nikolas v. Omaha, No. 09-1679 In an action against the City of Omaha and its Planning Department Code Inspector, asserting federal constitutional claims under 42 U.S.C. section 1983 and an inverse condemnation claim under state law, summary judgment for defendants is affirmed where: 1) the practical effect of plaintiff’s argument — that neither the County nor the City had jurisdiction to take action against a serious health and safety hazard on his property — was contrary to manifest legislative intent; 2) the alleged littering was prohibited by the city ordinance at issue long prior to its occurrence; 3) if action taken pursuant to the ordinance violated Fourth Amendment warrant requirements, the resulting criminal prosecution may be tainted, but that does not render the authorizing statute unconstitutional; and 4) an inspector who was lawfully on the premises and who saw an apparent public health and safety violation from the exterior of a detached structure did not need a warrant before looking in t! he window to confirm or refute the apparent violation.
U.S. 8th Circuit Court of Appeals, May 17, 2010 White v. McKinley, No. 09-1945 In a civil rights action challenging plaintiff’s prosecution, conviction, re-prosecution, and eventual acquittal for the alleged molestation of his adopted daughter, judgment for plaintiff is affirmed where: 1) defendant was not permitted to relitigate the issue of qualified immunity; 2) defendant failed to offer any actual evidence — expert or otherwise — that plaintiff, a convicted child molester, would have been released on bond pending his re-trial; 3) the district court did not abuse its discretion in prohibiting defendant from eliciting testimony from the prosecutor in plaintiff’s case as to whether defendant had testified correctly during his deposition, as the jury heard defendant’s own testimony that he believed that he had testified correctly; and 4) the punitive damages award amounted to approximately seven percent of the actual damages, and thus there was no plain error in the punitive damages awar
U.S. 9th Circuit Court of Appeals, May 17, 2010 Peterson v. Cal., No. 09-15633 In an action claiming that California Proposition 115 (Prop. 115), the Crime Victims Justice Reform Act, violated plaintiff’s constitutional rights under the Fourth, Sixth, and Fourteenth Amendments, judgment on the pleadings for defendant is affirmed where: 1) the admission of hearsay statements at a preliminary hearing does not violate the Confrontation Clause, and thus Prop. 115 does not violate the Sixth Amendment; and 2) the preliminary hearing was not required to include the right of confrontation in order to satisfy the requirements of due process.
U.S. 9th Circuit Court of Appeals, May 19, 2010 Leu v. Int’l Boundary Comm’n., No. 07-35949 In a takings claim against the International Boundary Commission and the U.S. Boundary Commissioner in his official capacity, the district court’s denial of the current Boundary Commissioner’s motion to quash filings by a previous Boundary Commissioner is vacated where the former Commissioner lacked Article III standing to appeal from the district court’s order.
U.S. 9th Circuit Court of Appeals, May 20, 2010 Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., No. 08-16073 In a Title VII action claiming that defendant public university administrators failed to take immediate or appropriate steps to prevent a professor from sending allegedly racially harassing emails, the denial of qualified immunity to defendant is reversed where plaintiffs’ objection to the professor’s speech was based entirely on his point of view, and it was axiomatic that the government could not silence speech because the ideas it promoted were thought to be offensive.
U.S. 10th Circuit Court of Appeals, May 17, 2010 Rocky Mountain Christian Church v. Bd. of County Cmm’rs of Boulder County, No. 09-1188 In an action by a church claiming that the City of Boulder’s denial of a special use application violated the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden, equal terms, and unreasonable limitations provisions, a permanent injunction in favor of plaintiff is affirmed where: 1) plaintiff presented ample evidence of similarities between its proposed project and another at trial; 2) the jury could reasonably choose to weigh evidence of the County’s land use regulation effectively excluding churches more heavily than the County’s record of approving special use applications; and 3) the injunction was consistent with the jury’s verdict on both the RLUIPA claims and damages.
U.S. 10th Circuit Court of Appeals, May 17, 2010 Lewis v. Tripp, No. 09-6105 In an action by a chiropractor whose license had been revoked claiming that an administrative search of his office was carried out in violation of his Fourth Amendment rights, a denial of summary judgment to defendant (the president of the Oklahoma Board of Chiropractic Examiners) is reversed where defendant was entitled to qualified immunity because there was no evidence in the record to suggest that defendant was personally involved in the Fourth Amendment violation plaintiff alleged.