Plaintiff's separate challenge to a jury instruction requiring deference to jail's policies sufficiently preserved a more general challenge to the instruction.
Juries should be instructed to give deference to jail's policies only where the treatment is a necessary, justified, and proportional security-based policy.
Absent any security-based reason, deference to the policy should be denied as a matter of law.
Pretrial detainees are entitled to a grievance procedure upon changes in their classification that increases the severity of the conditions of confinement.
Deliberate indifference claims arising from medical treatment should be judged under a standard of objective deliberate indifference.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/16-56051.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Ninth Circuit: Coffman v. Queen of the Valley Medical Center
Given the substance of the issues discussed at the meetings following certification, there is substantial evidence for the Board's finding that the employer entered into unconditional bargaining during the informational meetings prior to challenging the certification; additionally, sufficient evidence for harms, remedy.
Employee's schedule changes following appearance of photo on pro-union social media site sufficed for a prima facie case for retaliation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/17-17413.pdf
Employee's schedule changes following appearance of photo on pro-union social media site sufficed for a prima facie case for retaliation.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/16/17-17413.pdf
Ninth Circuit: US v Buenrostro
As a Presidential commutation is simply a mitigation of punishment, it does not set aside the initial judicial sentence, and therefore does not establish separate grounds for a habeas petition; a petition is therefore considered a second or successive challenge to the initial judicial sentence. Similarly, the commutation cannot shift the sentence from one based on a statutory minimum to one based on a gudelines range, making the sentence susceptible to a challenge based on a subsequent revision of the guidelines.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf
Eighth Circuit: United States v. DNRB, Inc.
Sufficient evidence for conviction of corporation, as the relevant regulation requires that the workers "shall be protected" by the safety device, so mere provision of the device, followed by the supervisor's observation that it wasn't being used sufficed; the fall was a foreseeable and natural result.
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.
Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.
http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf
Eighth Circuit: United States v. Michael Bordman
No procedural error in when mitigating circumstances in the defts past are described as "reported," rather than as established by court documents.
600-month sentence not substantively an abuse of discretion; restitution order is comparable to similar cases.
Release conditions barring possession of obscene materials or entering any business that sells them, or possessing certain electronic devices have previously been held sufficiently well-tailored to their purpose.
http://media.ca8.uscourts.gov/opndir/18/07/172395P.pdf
600-month sentence not substantively an abuse of discretion; restitution order is comparable to similar cases.
Release conditions barring possession of obscene materials or entering any business that sells them, or possessing certain electronic devices have previously been held sufficiently well-tailored to their purpose.
http://media.ca8.uscourts.gov/opndir/18/07/172395P.pdf
Eighth Circuit: Bottoms Farm Partnership v. Sonny Perdue
Agency's interpretation of the statute requiring surveying of the rice fields as a condition of insurability is valid under Chevron deference; there is no implicit requirement that the policy be good farming practice.
Under the terms of the insurance contract and the governing agency's construction of its own jurisdiction, an agency submitted a binding and dispositive interpretation of the relevant guideline during the arbitration process.
http://media.ca8.uscourts.gov/opndir/18/07/172164P.pdf
Under the terms of the insurance contract and the governing agency's construction of its own jurisdiction, an agency submitted a binding and dispositive interpretation of the relevant guideline during the arbitration process.
http://media.ca8.uscourts.gov/opndir/18/07/172164P.pdf
Eighth Circuit: Qwest Corporation v. City of Des Moines, Iowa
Locality's regulation of telecommunication carriers' cable rights of way is not preempted by the federal statute, since the local regulation does not bar any market participants from the local market.
Locality's fees are permitted under state law where they are actually incurred by the carrier's actions and a reasonable regulation of the market.
http://media.ca8.uscourts.gov/opndir/18/07/171257P.pdf
Locality's fees are permitted under state law where they are actually incurred by the carrier's actions and a reasonable regulation of the market.
http://media.ca8.uscourts.gov/opndir/18/07/171257P.pdf
Fifth Circuit: Dennis Kirchner, et al v. Deutsche Bank Natl Trust
Where one spouse does not sign the loan note, but does sign the deed of trust which contains similar terms of consent, the loan is held to be sufficiently voluntary against both spouses.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50736-CV0.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-50736-CV0.pdf
Fifth Circuit: Shudde Fath, et al v. Texas Dept. of Transportation
Regulation requiring a reasonably unitary environmental review for road-building projects incorporates an implicit requirement of sufficient length for discrete segments in its requirement that the segments have distinct terminii; a separate review of segment length is unnecessary.
A cumulative environmental review is unnecessary when the construction segments are de minimis.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50683-CV0.pdf
A cumulative environmental review is unnecessary when the construction segments are de minimis.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50683-CV0.pdf
Fifth Circuit: John Stroy v. Department of Veterans Affairs
Mere proximity to a filing's cutoff date is not a sufficient basis for equitable relief; a reason for relief must be articulated.
Convening of a physician review panel is an insufficiently adverse employment action to present an issue for trial as to retaliation.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30373-CV0.pdf
Convening of a physician review panel is an insufficiently adverse employment action to present an issue for trial as to retaliation.
http://www.ca5.uscourts.gov/opinions/pub/17/17-30373-CV0.pdf
Seventh Circuit: USA v. Dennis Franklin
An only-apparently arcane and metaphysical question certified to Wisconsin's highest state court asking whether a certain offense is divisible, i.e., whether the jury must unanimously agree on the section of the law that was violated. Bonus: thorough and courteous explanation of ACCA.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-17/C:16-1872:J:PerCuriam:aut:T:opGr:N:2188135:S:0
Sixth Circuit: United States v. Ramess Nakhleh
The loud and unusual noises in a post office that are prohibited by law are determined by the usual decorum and operation of the post office, as opposed to what might be loud or unusual for the person; sufficient evidence that the deft was loud and unusual; no plain error in refusal to consider an audio recording where that recording only covers part of the incident in question.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0143p-06.pdf
Sixth Circuit: Tyganda Gilmore v. David Ebbert
A prisoner seeking habeas relief from an unlawful detainer must seek habeas against the jurisdiction holding the detainer against his or her future release, not the jurisdiction of present incarceration.
Sixth Circuit: United States v. Malik Farrad
Sufficient evidence for the finder of fact to have determined that the gentleman in the Facebook photos with the gun was the deft.
Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.
Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.
Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.
No plain error in counting convictions in absentia as predicate convictions.
Sentence increase due to predicate offenses didn't need to be separately charged.
Warrant not defective when it identifies the Facebook data as present in the jurisdiction.
Year and a half delay after service of warrant on FB didn't invalidate the warrant.
Execution of warrant outside of district not plain error, cf. 2703(A).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf
Social media photos are not self-authenticating business records, but there is no need for the identity of the page to be established -- the identity of the subject of the photo is a matter for the finder of fact, and are admissible so long as there is sufficient evidence that they are what they appear to be.
Shaky qualifications for expert testimony on Facebook photo-posting habits of suspects ultimately harmless.
Predicate offenses properly counted for sentencing where each is defined as happening on or about a certain day, despite being connected by a common conspiracy.
No plain error in counting convictions in absentia as predicate convictions.
Sentence increase due to predicate offenses didn't need to be separately charged.
Warrant not defective when it identifies the Facebook data as present in the jurisdiction.
Year and a half delay after service of warrant on FB didn't invalidate the warrant.
Execution of warrant outside of district not plain error, cf. 2703(A).
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0141p-06.pdf
Sixth Circuit: Heidi Hostettler v. College of Wooster
There is an issue for trial when a plaintiff claiming disability or gender discrimination claims that she can perform all required work within a shorter amount of time; absent a showing to the contrary, the task is not necessarily defined by the number of hours required.
Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf
Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf
Fifth Circuit: Robert Furlough v. Lowell Cage
Amended opinion after motion for panel rehearing.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV1.pdf
http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV1.pdf
Fifth Circuit: Patrick Collins, et al v. Steven Mnuchin, Secretary
Minority shareholders have standing to challenge the structure of the federal agency empowered to wind-down or place in conservatorship financial institutions when those voting shareholders lose economic rights due to the agency's policies.
The single-director structure of the agency, combined with the lack of a bipartisanship requirement and a funding procedure outside normal appropriations, unconstitutionally insulates the agency from Presidential control, as the President is unable to ensure the execution of the laws.
Most prudent remedy is the removal of the requirement that removal of the agency head only be for cause.
Dissent: Executive has a voice, Congress has oversight hearings.
Dissent (@judgewillett) Valid delegation of Congressional power; obligations legally imposed on a conservator are the best protection for the economic rights of the shareholders
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
The single-director structure of the agency, combined with the lack of a bipartisanship requirement and a funding procedure outside normal appropriations, unconstitutionally insulates the agency from Presidential control, as the President is unable to ensure the execution of the laws.
Most prudent remedy is the removal of the requirement that removal of the agency head only be for cause.
Dissent: Executive has a voice, Congress has oversight hearings.
Dissent (@judgewillett) Valid delegation of Congressional power; obligations legally imposed on a conservator are the best protection for the economic rights of the shareholders
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf
Fifth Circuit: USA v. Christian Winchel
Appeals waiver did not bar appeal of restitution, as restitution in excess of proximately caused harms exceeds the statutory maximum punishment. Sentencing court must establish statutory proximate causation for losses before imposing restitution, else, plain error.
http://www.ca5.uscourts.gov/opinions/pub/16/16-11208-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-11208-CR0.pdf
Third Circuit: USA ex rel. Donald Palmer v. C&D Technologies Inc
District court did not err in reducing fee award below the level requested by another party; as it was opposed, the court did not act sua sponte, and courts frequently award fees according to prevailing rates as established by extrinsic evidence.
No abuse in limiting fees for deposition, given the interest in reducing the crowds of lawyers there.
Remanded for the District court to consider whether the Relator is owed fees for the present action for fees.
http://www2.ca3.uscourts.gov/opinarch/172350p.pdf
No abuse in limiting fees for deposition, given the interest in reducing the crowds of lawyers there.
Remanded for the District court to consider whether the Relator is owed fees for the present action for fees.
http://www2.ca3.uscourts.gov/opinarch/172350p.pdf
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