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Public Law Legal Research Blog

CIVIL RIGHTS: Help America Vote Act Creates Individual Right Enforceable Through § 1983

Posted by John M. Stone on Tue, Mar 15, 2016 @ 13:03 PM

The Lawletter Vol 41, No 3

John Stone, Senior Attorney, National Legal Research Group

     A federal civil rights statute, 42 U.S.C. § 1983, is most closely associated with providing a remedy for individuals whose federal constitutional rights have been violated by persons acting under color of state law. However, although they comprise a relatively small subset of § 1983 cases, claims under § 1983 can, under certain circumstances, be based upon violations of federal rights derived from federal statutes, not from the U.S. Constitution.

     In a recent example of such a claim, a voter in Puerto Rico brought an action challenging a Puerto Rico statute that struck her and more than 300,000 other voters from a voter-registration roll because they did not vote in the prior general election. The U.S. District Court for the District of Puerto Rico issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission ("SEC") from removing otherwise eligible voters from an active election registry unless the requirements of the federal Help America Vote Act ("HAVA") were met. Colón-Marrero v. Conty-Perez, No. CIV. 12-1749CCC, 2015 WL 3508142 (D.P.R. signed June 4, 2015). The President of the SEC appealed, and the First Circuit Court of Appeals affirmed the lower court. Colón-Marrero v. Velez, No. 15-1356, 2016 WL 386428 (1st Cir. Feb. 1, 2016).

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Topics: civil rights, John M Stone, Help America Vote Act, Colon-Marrero v. Conty-Perez, removal from active election registry barred

CIVIL PROCEDURE: Relief in Federal District Court from a Fraudulently Obtained Remand Order

Posted by Paul A. Ferrer on Tue, Mar 15, 2016 @ 13:03 PM

The Lawletter Vol 41, No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

      In order to keep cases from ping-ponging between state and federal court, the federal removal statutes prohibit appellate review of remand orders. See In re La Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969) ("The action must not ricochet back and forth depending upon the most recent determination of a federal court."). In particular, 28 U.S.C. § 1447(d) provides that, with the exception of certain cases involving federal officers or civil rights, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (emphasis added). Does the "or otherwise" language prevent review by a district court of its own remand order under Rule 60(b)(3)? That was the question addressed by the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, in Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir. 2014) (en banc).

     In Barlow, two individuals separately sued Colgate-Palmolive Company and other companies in Maryland state court, alleging that each of the defendants' products had exposed them to asbestos. Even though the plaintiffs joined in-state defendants, Colgate removed the two cases to federal court on the basis of diversity of citizenship. Colgate asserted that the in-state defendants had been fraudulently joined, pointing to discovery responses indicating that the plaintiffs did not intend to pursue a claim against any defendant other than Colgate. The plaintiffs then moved to remand the cases to state court. In their motions, the plaintiffs' counsel represented that there was some circumstantial evidence to suggest exposure to asbestos at the hands of the nondiverse defendants. Based on counsel's representations, the district court judges (Judges Nickerson and Quarles) remanded the cases to state court.

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Topics: Fourth Circuit, Paul A. Ferrer, civil procedure, Barlow v. Colgate Palmolive Co., remand order, federal removal statutes

CIVIL RIGHTS: Do Termination Reports Constitute "Publication"?

Posted by Dora S. Vivaz on Tue, Jan 19, 2016 @ 13:01 PM

The Lawletter Vol 40 No 12

Dora Vivaz, Senior Attorney, National Legal Research Group

     In a recent case involving the Kansas University and City of Lawrence ticket-fixing scandal, wherein traffic tickets were allegedly dismissed in exchange for tickets to university athletic events, a city employee, an African-American, who had been terminated as a result of the investigation into the scandal, brought claims for race discrimination and the violation of his due process liberty interests. Monroe v. City of Lawrence, Kan., Case No. 13-2086-EFM, 2015 WL 5006081 (D. Kan. signed Aug. 20, 2015). The court engaged in the usual burden-shifting analysis on the race discrimination claim, concluding that although the employee had clearly shown that he had been treated differently from a similarly situated white employee, he had failed to raise a disputed question of fact on the issue of motive, because he had not shown that the City's reasons were pretextual.

     The court then went on to the interesting due process question raised by the employee's claim, that the "termination report" filed by the City violated his liberty interest by foreclosing employment opportunities in his field. The court concluded that the viability of the claim rested on whether the report constituted "publication." First the court noted that the City was required by statute to submit the report to the Kansas Commission of Peace Officers' Standards and Training. It then noted that although the statute purports to provide absolute immunity for reporting, the City had abandoned that argument in light of Supreme Court precedent stating that state law cannot immunize conduct that is wrongful under federal law. The question therefore came down to whether the report constituted publication, as required to make out a claim, or merely intragovernmental dissemination, which falls short of publication.

     The employee argued that the report constituted publication because it was available to prospective employers, but the court found the legal character of the report to be unsettled. It explained that the Tenth Circuit had not yet considered whether public dissemination, that is, publication, occurs when a mandatory report to another governmental agency is made and that the authority in the circuit on intragovernmental dissemination was underdeveloped. It further noted that the district court itself had reached conflicting conclusions on the issue of obligatory termination reports.

     In the end, the court failed to address the conflict, because, even assuming publication, the employee could not support his liberty interest claim. He had clearly received an adequate name-clearing hearing, and nothing more was required by due process.

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Topics: civil rights, Dora S. Vivaz, due process claim, publication, termination report

CHURCHES: Constitutional Law—Ministerial Exception

Posted by Timothy J. Snider on Tue, Jan 19, 2016 @ 12:01 PM

The Lawletter Vol 40 No 12

Tim Snider, Senior Attorney, National Legal Research Group

     Setting aside the cases involving criminal misconduct by priests and others affiliated with certain Roman Catholic Church dioceses, the First Amendment precludes courts from interfering with the internal operations and activities of churches. Few principles are more firmly enshrined in our body of constitutional law than that government, including the courts, should not become entangled in the internal or doctrinal affairs of churches. To do so would offend the First Amendment's Free Exercise Clause. For over a century, the Supreme Court has directed that courts may not entangle themselves in the internal functions of churches. Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29 (1871).

     Churches are at liberty to make employment decisions that are arbitrary, even capricious, and those decisions are immune from judicial scrutiny. Young v. N. Ill. Conference of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994). To permit courts to review decisions that are alleged to be arbitrary or unreasonable would be to allow courts to inquire into internal doctrinal matters, and the courts may not do that. There are circumstances where a court may inquire into an action taken by a church, but those circumstances are rare and typically involve, for example, the contractual obligations between the church and an unaffiliated third party, such as a contractor repairing the roof of the church building. Those decisions, however, implicate no doctrinal issues, unlike the employment of a pastor, which is intimately bound up with a church's doctrinal principles. Thus, civil courts, as a general proposition, are not a constitutionally permissible forum for a review of ecclesiastical disputes. Serb. E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976).

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Topics: churches, Free Exercise Clause, First Amendment, Timothy J. Snider, ministerial exception

CONSTITUTIONAL LAW: Involuntary Commitment Scheme Violates Due Process

Posted by John M. Stone on Tue, Dec 15, 2015 @ 16:12 PM

The Lawletter Vol 40 No 11

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Topics: constitutional law, John M Stone, involuntary commitment, periodic review of grounds for commitment

BANKRUPTCY: Reopening a Federal Bankruptcy Case

Posted by Anne B. Hemenway on Mon, Dec 14, 2015 @ 11:12 AM

The Lawletter Vol 40 No 11

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Topics: bankruptcy, Anne B. Hemenway, bankruptcy court, Chapter 7 trustee

CIVIL RIGHTS: Intracorporate Conspiracy Doctrine

Posted by Dora S. Vivaz on Tue, Dec 1, 2015 @ 08:12 AM

The Lawletter Vol 40 No 10

Dora Vivaz—Senior Attorney, National Legal Research Group

      The intracorporate conspiracy doctrine was created to shield corporations and their employees from liability for routine, collaborative business decisions that are later alleged to be discriminatory. E.g., Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007). Although the doctrine was initially crafted in the context of the Sherman Act, the courts have extended its reach to many other contexts, including claims brought under civil rights and other antidiscrimination laws. See, e.g., Blades v. Countrywide Home Loans, Inc., No. CIVA1:06CV1000LG-JMR, 2007 WL 2746678 (S.D. Miss. Sept. 18, 2007) (available on WL and Pacer). The courts have not necessarily agreed on just how far the doctrine should be extended, however. See id. (and cases cited).

      In a recent case, for example, the federal district court noted that while the doctrine applies in the Sixth Circuit to conspiracy claims under 42 U.S.C. § 1985, it is unclear whether it also applies to claims under 42 U.S.C. § 1983. See Engle v. City of Cuyahoga Falls, No. 5:14-CV-1161, 2015 WL 3852143 (N.D. Ohio June 22, 2015). In fact, it appears that the district courts within the Sixth Circuit continue to disagree on whether the doctrine should apply to § 1983 cases. Id.

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Topics: civil rights, Dora S. Vivaz, civil rights statutes, intracorporate conspiracy doctrine

CIVIL RIGHTS: A Civil Rights Civil War: Religious Observance and Educational Rights of the Disabled

Posted by Steven G. Friedman on Tue, Nov 3, 2015 @ 11:11 AM

The Lawletter Vol 40 No 9

Steve Friedman, Senior Attorney, National Legal Research Group

     One of the bedrock principles of American jurisprudence is the freedom of religion guaranteed by the First Amendment. See U.S. Const. amend. I. More recently, the law had mandated that disabled students are to receive certain minimum educational benefits at public expense. See 20 U.S.C. §§ 1400–1491o (Individuals with Disabilities Education Act ("IDEA")); 29 U.S.C. § 794 (Rehabilitation Act of 1973 ("RA")). At times, these two distinct rights may overlap and conflict with one another. As illustrated by two fairly recent cases, however, public schools need not accommodate the student's (or the parents') religious beliefs in providing a free appropriate public education ("FAPE") as required by the IDEA and the RA.

      In M.L. ex rel. Leiman v. Starr, No. PWG-14-1679, 2015 WL 4639569 (D. Md. filed Aug. 3, 2015), appeal filed, No. 15-1977 (4th Cir. Aug. 27, 2015), the parents of a child with an intellectual disability brought suit against Maryland's Montgomery County Board of Education, alleging that the Board had failed to provide the student with a FAPE as required by the IDEA. The student is part of the Orthodox Jewish community, and, thus, it is very important to his parents that he learn the rules and customs of Orthodox Jewish life. Consequently, the parents sought an individualized education program ("IEP") that placed the student at a private school where the basics of Orthodox Jewish life are a part of the curriculum. Instead, the school district proposed an IEP that placed the student at a public school that did not include instruction on Orthodox Jewish life.

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Topics: civil rights, Steven G. Friedman, religious observance, educational rights

CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

Posted by John M. Stone on Thu, Sep 10, 2015 @ 17:09 PM

CONSTITUTIONAL LAW: Denial of Medical Care for an Inmate Was Cruel and Unusual Punishment

The Lawletter Vol 40 No 7

John Stone, Senior Attorney, National Legal Research Group

     It is no easy task for a prisoner to succeed on a claim that he was denied medical care in circumstances that violated his federal constitutional rights. Such a cause of action is not simply a prisoner's version of a medical malpractice case but, rather, requires a more demanding showing by the plaintiff. Mere negligence in diagnosis or treatment will not suffice. To state an Eighth Amendment claim for cruel and unusual punishment based on deficient medical care, a prisoner must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Estelle v. Gamble, 429 U.S. 97 (1976). "Deliberate indifference" to a prisoner's serious medical needs occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists but then disregards that risk.

     In a recent case, a prisoner appearing on his own behalf, and perhaps benefiting from the relative leniency afforded pleadings from pro se litigants, convinced a federal appeals court to reinstate his claim under 42 U.S.C. § 1983 for denial of medical care after his claim had been dismissed by a federal district court. Perez v. Fenoglio, No. 12-3084, 2015 WL 4092294 (7th Cir. July 7, 2015). While an inmate at a state prison, Perez was injured during a prison basketball game. He suffered a torn ligament in his right hand, dislocation of his thumb, tissue damage, and a "gaping wound" between his thumb and right index finger. What ensued was a succession of failures by medical personnel and prison officials to see to it that Perez received adequate treatment for his serious injuries. The recurring theme was unnecessary delays, prison red tape, some outright indifference to Perez's condition, and, at least as to some of the defendants, a desire to retaliate against Perez. The result was permanent damage to his hand and a diminished ability to use it.

     Not only did Perez's complaint state a violation of his Eighth Amendment right to medical care, but a succession of persons or entities who made contact with him after his injury were found by the Seventh Circuit to be culpable, assuming that Perez could support his allegations with proof. The prison physician determined that the wound was so serious that it required a specialist's care, but then Perez had to wait four days and file a grievance before he was sent to the specialist, by which time it was too late for the wound to be sutured. Then Perez had to wait seven months and file another grievance before he was sent to the specialist for follow-up care. The prison physician also ignored recommendations of the specialist. Altogether, Perez was forced to wait 10 months from the time of his injury until receipt of meaningful treatment in the form of surgery, despite his complaints of ongoing symptoms, including pain, bleeding, swelling, and loss of function.

     A prison nurse had knowledge of the severe injury yet failed to provide adequate treatment to Perez herself, such as by suturing his wound, or to ensure that others did, such as by contacting supervisory personnel to voice any concerns about the treatment being provided to him. The private corporation that served as the prison's health-care provider also could be found liable on allegations that the prison nurse told Perez that she could not stitch his wound or prescribe medication without a "doctor there" and that a doctor was not "there" because of the provider's policy or practice of not having a full-time doctor stationed at the prison at all times or on call to suture open wounds as necessary. The prison's health-care administrator also contributed to the violations, as he was the individual responsible for approving requests for inmates to be seen by outside doctors. Furthermore, despite the prison physician's determination that Perez's gaping wound and open dislocation were so serious that he should see a specialist, the administrator, without explanation, refused to grant the referral request for four days, causing Perez needless pain and suffering and worsening the injury.

     Even some nonmedical personnel at the prison were subject to being held liable. Grievance officials, who had been made aware of Perez's predicament by way of his grievances and other correspondences, obtained actual knowledge of the serious medical condition and inadequate medical care through coherent and highly detailed grievances and other correspondences from Perez. Each of these officials failed to exercise his or her authority to intervene on behalf of Perez to rectify the situation, suggesting that they either approved of, or turned a blind eye to, his allegedly unconstitutional treatment.

     According to Perez's handwritten complaint, the suffering experienced from the neglected injuries to his hand was compounded by the fact that the defendants were retaliating against him over an earlier series of events. He sufficiently alleged that because he had brought a previous grievance against prison officials for the withholding of his prescribed depression medication, members of the prison's medical staff, including the prison physician and the prison's health-care administrator, denied him adequate care when he severely injured his hand. This constituted a separate, additional violation, this time of his rights under the First Amendment. To state a First Amendment claim for retaliation, a plaintiff must allege that (1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the defendants' decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009).

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Topics: constitutional law, John M Stone, Eighth Amendment, The Lawletter Vol 40 No 7, medical care, inmate

PUBLIC LAW: Ability to Obtain Shelter Is a Major Life Activity

Posted by Steven G. Friedman on Thu, Jul 9, 2015 @ 11:07 AM

The Lawletter Vol 40 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

     The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").

      "The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).

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Topics: Rehabilitation Act, Fair Housing Act, Americans with Disabilities Act, Steven G. Friedman, The Lawletter Vol 40 No 5, housing/shelter, major life activity

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