Saturday, March 07, 2015

Short Form: Seventh Circuit and points (mostly) West

Seventh Circuit:

Eugene Bailey v.  City of Chicago - S1983 dismissal of claims in mistaken arrest after schoolyard brawl.  Sufficient cause for arrest, no showing of malice in motive for detention lasting less than 48 hours, insufficient showing on state IIED & malicious prosecution tort claims.

Eighth Circuit (Summary from Circuit site):

142220P.pdf  03/06/2015  David Zink  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2220
   U.S. District Court for the Western District of Missouri - Jefferson City   
   [PUBLISHED] [Per Curiam En Banc Decision - Chief Judge Riley and Judges 
   Wollman, Loken, Smith and Gruender join in this opinion. Judge Colloton 
   joins all but Part II.A of the opinion and Judge Shepherd joins all but 
   Part II.B of the opinion.] 
   Prisoner case - habeas - Death Penalty. The Missouri prisoners' second 
   amended complaint failed to adequately allege that Missouri's 
   lethal-injection protocol created a substantial risk of severe pain 
   because none of the alleged potentialities the prisoners identified 
   relating to compounded penobarbital rise to the level of "sure or very 
   likely" to cause serious harm or severe pain; even if one of the harms 
   identified were to occur, the prisoners offer nothing in their pleading to 
   support the allegation that it would be more than an isolated incident, 
   and an isolated incident, while regrettable, would not result in an Eighth 
   Amendment violation; the claim, therefore is inadequately pled as a matter 
   of law, and the district court did not err in dismissing it; the existence 
   of an alternative method of execution is a necessary element of an Eighth 
   Amendment claim and this element must be pleaded adequately in the 
   complaint; here,the second amended complaint merely conceded that other 
   methods the Department of Corrections could choose would be 
   constitutional, and this concession, without additional factual 
   enhancement, is insufficient to allege the necessary element of the 
   existence of an alternative method; in sum, without a plausible allegation 
   of a feasible alternative method of execution that would significantly 
   reduce a substantial risk of serious pain, or a purposeful design by the 
   State to inflict unnecessary pain, the plaintiff prisoners have not stated 
   an Eighth Amendment claim based on the State's use of compounded 
   pentobarbital in executions, and the district court did not err in 
   dismissing the prisoners' Eighth Amendment claim; the prisoners have not 
   pleaded that the use of pentobarbital will result in unnecessary and 
   wanton infliction of pain, and they have failed to state an Eighth 
   Amendment deliberate-indifference to medical needs claim; where only the 
   mode of execution has changed, with no allegation of superadded punishment 
   or superior alternatives, the Ex Post Facto Clause is not implicated; 
   prisoners failed to show that changes to the execution protocol deprived 
   them of the timely and adequate notice needed to litigate the lawfulness 
   of the procedures; the prisoners' allegations that the State violates its 
   own execution protocol by executing prisoners while legal actions are 
   pending fails to state a claim under the Equal Protection Clause; the 
   State's decision to carry out a lawful execution when there is no judicial 
   stay in place does not burden a prisoner's rights under the Eighth 
   Amendment or other constitutional provision; the prisoners failed to state 
   a claim of qualified right of public access to information regarding the 
   source of the compounded pentobarbital to be used in their executions 
   because they did not plausibly allege a history of openness to the general 
   public; challenges to use of compounded pentobarbital under the Food, Drug 
   and Cosmetic Act and the Controlled Substances Act rejected as there is no 
   private right of action under the statutes and the prisoners cannot use 
   the Missouri Administrative Procedures Act to allege the denial of a 
   private legal right under the federal statutes when the federal statutes 
   themselves do not create such a private legal right. Judge Bye, with whom 
   Judges Murphy and Kelly join, dissenting. Judge Shepherd, dissenting in 
142163P.pdf  03/06/2015  Russell Bucklew  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2163
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Loken, Author, for the Court En Banc] 
   Prisoner case - habeas - Death Penalty. This opinion should be read in 
   conjunction with the court en banc's March 6, 2015 opinion in No. 14-2220, 
   Zink v. Lombardi,as Bucklew's due process claim is not materially 
   different than the due process claims raised in Zink and is resolved in 
   the opinion in that case. With respect to Bucklew's "as applied" Eighth 
   Amendment claim arising out of his congenital cavernous hemangioma, the 
   district court erred in dismissing the complaint sua sponte as it was not 
   patently obvious that Bucklew could not prevail and would not amend his 
   as-applied challenge to include a plausible allegation of a feasible and 
   more humane alternative method of execution; on remand, the pleadings 
   should be narrowly tailored and expeditiously conducted to address only 
   those issues that are essential to resolving Bucklew's as-applied Eighth 
   Amendment challenge; at the earliest possible time Bucklew must identify a 
   feasible, readily implemented alternative procedure that will 
   significantly reduce a substantial risk of severe pain and that the State 
   has refused to adopt. Judge Bye, with whom Judges Murphy and Kelly join, 
   concurring in the result. Judge Shepherd, with whom Judges Murphy and Bye 
   join, concurring. 

Ninth Circuit:

CHRIS KOHLER V. FLAVA ENTERPRISES -- ADA.  Bench that exceeds the length permitted by the statute is nonetheless legal under the statute, as it possesses a latent equivalent facilitation   (Parallel transfer from wheelchair as opposed to diagonal.)  No error in denial of fees, as it was a tough question to figure out.

Tenth Circuit:

United States v. Hicks  Violation of Speedy Trial Act, as a pro forma motion without hearing only tolls the STA clock for 30 days.  No Constitutional violation.

Al-Yousif v. Trani -- Error in granting AEDPA equitable tolling due to mistaken log entry in computer system for date of judgement; Deference to state supreme court on Miranda claims.

DC Circuit

Center for Sustainable Economy v. Sally Jewel -- Rather complex administrative law challenge having to do with oil, and continental shelves and such.  As we're in a rush, here's the stated holding: We deny CSE’s petition and conclude that: (1) CSE has  associational standing to petition for review, (2) CSE’s NEPA  claims are unripe, (3) two of CSE’s Program challenges are  forfeited, and (4) CSE’s remaining challenges to Interior’s adoption of the 2012-2017 leasing schedule fail on their merits.

Federal Circuit

G4S TECHNOLOGY LLC v. US [OPINION] -- Subcontractor is not a third party beneficiary of government contract, given government's responsibilities to the people and lack of direct benefits to the subcontractor.  Dissent: It's called "reliance," people.

OTAY MESA PROPERTY, L.P. v. US [OPINION] -- Takings award for placement of sensors at the border - no error in partial denial of compensation for "development" lands, no error in the court's arriving at its own figure for the other lands.

Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.