November 9-13, 2009.
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U.S. 1st Circuit Court of Appeals, November 12, 2009 Cabral v. US Dep’t of Justice, No. 07-1633 In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants’ motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court’s dismissal of defendants’ action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency’s denial of the defendants’ Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive.
U.S. 2nd Circuit Court of Appeals, November 12, 2009 Wilson v. CIA, No. 07-4244 In a First Amendment action claiming that the CIA was required to allow former employee Valerie Plame Wilson to publish a memoir about her tenure at the agency, summary judgment for defendants is affirmed where: 1) plaintiff, and not the agency, permitted the classified information at issue to be revealed to the public; and 2) further, the public disclosure did not deprive the information of classified status, and the agency demonstrated good reason for adhering to its classification decision. A former CIA agent cannot use her own unauthorized disclosure of classified information to challenge the CIA’s ability to maintain the information as classified.
U.S. 3rd Circuit Court of Appeals, November 12, 2009 Berg v. Obama, No. 08-4340 In one of the so-called “birther” suits challenging Barack Obama’s eligibility to run for and serve as President of the United States based on claims that Obama was born in Kenya and therefore was not a natural born citizen of the United States, dismissal of the action is affirmed where plaintiff lacked standing to bring the suit because he suffered no injury particularized to him
U.S. 3rd Circuit Court of Appeals, November 13, 2009 Max v. Republican Comm. of Lancaster County, No. 08-4158 In plaintiff’s 42 U.S.C. section 1983 action against defendants claiming violation of her First Amendment rights of free speech and expression during a primary election campaign for judgeship on the County Court of Common Pleas, grant of defendant’s motion to dismiss is affirmed as defendants are not state actors and their actions toward plaintiff were not state actions that would subject defendants to section 1983 claims.
U.S. 5th Circuit Court of Appeals, November 13, 2009 Depree v. Saunders, No. 08-60978 In a First Amendment action by a state university professor alleging that defendants deprived plaintiff of his ability to teach because he criticized the university, summary judgment for defendants is affirmed in part where: 1) no clearly established law dictated that a university official sued in her individual capacity could not impose discipline on plaintiff; and 2) plaintiff failed to identify a cognizable property right for due process purposes. However, the order is reversed in part where plaintiff’s claim against university administrators in their official capacities could yield prospective injunctive relief.
U.S. 6th Circuit Court of Appeals, November 09, 2009 Jones v. Byrnes, No. 08-1889 In plaintiff’s 42 U.S.C. section 1983 action against two police officers on behalf of the estate of her husband arising from a high speed chase of armed robbery suspects that killed her husband in an automobile crash, summary judgment in favor of the defendant police officers is affirmed where: 1) the estate did not establish a prima facie case of deprivation of the husband’s substantive due process rights as officers’ actions of trying to apprehend what they reasonably believed to be dangerous criminals do not shock the conscience; and 2) in the alternative, even if the officers’ actions did rise to the level of violating the husband’s constitutional rights, it was not clearly established at the time of the incident that actions of that sort crossed the constitutional line.
U.S. 6th Circuit Court of Appeals, November 09, 2009 Al-Ghorbani v. Holder, No. 08-3376 Petitioners’ request for review of BIA’s denial of their application for asylum and related relief from being returned back to Yemen is denied in part and granted in part where: 1) the portion of the petition requesting asylum is denied as the court lacks jurisdiction to review whether the IJ failed to afford the petitioners due process by not excusing the untimeliness of their applications for asylum; 2) petitioners’ due process arguments with respect to the IJ’s denial of their applications for asylum are without merit; and 3) request for review of the portion of the petition requesting the withholding of removal is granted as the record contains ample evidence that the General will kill the petitioners if they are returned to Yemen and nothing in the record suggests that conditions in Yemen have changed such that the government there will now be able to control the powerful General.
U.S. 6th Circuit Court of Appeals, November 12, 2009 Lowery v. Jefferson County Bd. of Educ., No. 07-6324 In a section 1983 suit brought against a county Board of Education (Board) by the parents of children who were dismissed from a high school football team for challenging their coach’s leadership, a jury verdict in favor of defendants is affirmed where: 1) the Board’s policy amounts to a content-neutral time, place and manner regulation; 2) the board’s policy is not unconstitutionally vague on its face and as applied; 3) plaintiffs’ challenges to several of trial court’s jury instructions are rejected; but 4) district court’s decision to grant $87,216.49 in attorney’s fees and expenses to defendants is reversed as plaintiffs’ action were not frivolous, unreasonable, or without foundation.
U.S. 7th Circuit Court of Appeals, November 10, 2009 Bond v. Utreras, No. 07-2651 An independent journalist’s petition for permission to intervene to challenge a protective order that prohibited public disclosure of confidential voluminous materials relating to citizen complaints against officers after a plaintiff’s settlement against the city of Chicago and several members of its police department, an order simultaneously granting the journalist’s request to intervene and lifting the order in its entirety is vacated because the petition to intervene should have been dismissed for lack of standing where: 1) the controversy originally supporting the court’s jurisdiction no longer existed at the time the court acted on the petition; 2) the parties had settled; 3) the case was dismissed with prejudice; and 4) neither plaintiff nor the city asked the court to revisit and modify the terms of the protective order postjudgment. Furthermore, the district court lacked any alternative jurisdictional basis to revisit and revoke the protective order sua sponte as th! ere is no presumption of public access emanating from Rule 26(c)’s good cause requirement for discovery that is not part of the court file.
U.S. 7th Circuit Court of Appeals, November 13, 2009 Bloch v. Frischholz, No. 06-3376 In plaintiffs’ Fair Housing Act (FHA) suit against their condo association for being required to remove a mezuzah from their doorpost under a new rule requiring that common hallways and outside of the doors be kept free of any objects, summary judgment in favor the condo association and its president is reversed for the most part where: 1) the judgment of the district court with respect to plaintiffs’ claims under sections 3604(b), 3617 and 1982 is reversed as a trier of fact could conclude that the condo association’s reinterpretation of the hallway rule and clearing of all objects from doorposts was intended to target only groups of residents for which the prohibited practice was religiously required; 2) plaintiffs can therefore proceed on an intentional discrimination theory under sections 3604(b), 3617 and 1982; and 3) district court’s judgment granting summary judgment against the plaintiffs on their section 3604(a) claim is affirmed.
U.S. 8th Circuit Court of Appeals, November 09, 2009 Norman v. Schuetzle, No. 08-1686 In a 42 U.S.C. section 1983 action alleging that defendant prison officials failed to protect plaintiff from an assault, district court’s denial of qualified immunity to defendants is reversed where: 1) defendants did not have reason to know of plaintiff’s attacker’s dangerousness; and 2) defendants’ conduct did not rise to the level of deliberate indifference.
U.S. 8th Circuit Court of Appeals, November 09, 2009 Rohrbough v. Hall, No. 08-3617 In a 42 U.S.C. section 1983 action alleging excessive force by the police, denial of qualified immunity to defendants is affirmed where a jury could conclude that plaintiff’s pushing the officer was de minimis or inconsequential, and so a reasonable officer, when faced with the circumstances, would have known that responding by punching plaintiff in the face, taking him to the ground face down, landing on top of him and thereby causing him serious injury was illegal.
U.S. 8th Circuit Court of Appeals, November 09, 2009 Smith v. Kansas City Police Dep’t, No. 09-1484 In a 42 U.S.C. section 1983 action alleging unlawful entry and excessive force by police, denial of summary judgment based on qualified immunity for defendants is affirmed where: 1) the presence of a domestic violence suspect did not alone justify defendant’s warrantless entry; and 2) on all the facts alleged, including the lack of exigent circumstances, the lack of an immediate safety threat, and the lack of active resistance to arrest, a jury could find that defendant’s use of force was not objectively reasonable.
U.S. 8th Circuit Court of Appeals, November 10, 2009 Nance v. Sammis, No. 09-1353 In a 42 U.S.C. section 1983 action alleging excessive force by the police, denial of summary judgment based on qualified immunity is affirmed where the facts taken in the light most favorable to plaintiffs could establish the excessive use of force and unreasonable seizure in violation of the Fourth Amendment.
U.S. 9th Circuit Court of Appeals, November 10, 2009 Burke v. County of Alameda, No. 08-15658 In a 42 U.S.C. section 1983 action alleging that defendants interfered with plaintiffs’ constitutional right of familial association by removing their child without a protective custody warrant, summary judgment for defendants is affirmed in part where it was reasonable for officer-defendant to believe the child’s statement that she had been abused at the time she spoke with him. However, the order is vacated in part where local government units such as defendant-county are not entitled to the qualified-immunity defense.
U.S. 9th Circuit Court of Appeals, November 12, 2009 Matsuo v. US, No. 08-15553 In an action claiming that the Federal Employees Pay Comparability Act infringed the right to travel because it penalized federal employees who worked in areas where the prevailing pay rates were lower, summary judgment for defendant is affirmed where: 1) as to employees in lower-paying areas, the act, if anything, imposed a penalty for staying put, not for traveling; and 2) not everything that deterred travel burdened the fundamental right to travel.
California Appellate Districts, November 10, 2009 In re Jennifer S. , No. A122900 Juvenile court’s order placing defendant on home probation for violation of County Code section 9.42.020, which makes it a misdemeanor for a person under age 21 to have a blood alcohol level of .01 percent or more while in a public place within the County, is affirmed and defendant’s claim that the ordinance is preempted by state law rejected where: 1) the field of underage drinking is not fully occupied; 2) the ordinance was enacted to prohibit consumption; 3) the ordinance does not duplicate state law; and 4) defendant’s argument that the potential adverse effects of the ordinance on transient citizens outweighs the possible benefits to the county is rejected.
California Appellate Districts, November 10, 2009 Kaye v. Bd. of Tr. of the San Diego County Pub. Law Library, No. D053644 In plaintiff’s wrongful termination suit arising from his discharge as a law librarian for sending a scathing e-mail criticizing his superiors, summary judgment as to the state law causes of action in favor of defendants is affirmed where defendant could not establish that: 1) a violation of the state Constitution’s free speech clause; 2) a violation of the CFCA’s whistleblower protections, as his conduct was not protected under the CFCA; 3) a violation of Business and Professions Code section 6345; and 4) a violation of the Brown Act. .