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    Public Law Legal Research Blog

    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

    PUBLIC LAW UPDATE: Circuits Split on Showing Required in Reverse Discrimination

    Posted by Dora S. Vivaz on Thu, Jun 11, 2015 @ 16:06 PM

    Dora Vivaz, Senior Attorney, National Legal Research Group

         The procedural requirements and burdens for showing race discrimination in employment are by now fairly well delineated and established. This is apparently not yet so for claims of reverse discrimination. In a recent case, the U.S. District Court for the Western District of Virginia, faced with such a claim, first noted that there is a split amongst the circuits as to whether the same requirements and burdens apply to reverse discrimination claims as apply to discrimination claims. Shomo v. Apple, Inc., Civ. Act. No.: 7:14cv00040, 2015 WL 777620, at *4 n.3 (W.D. Va. Feb. 24, 2015). The court referenced McNaught v. Virginia Community College System, 933 F. Supp. 2d 804, 817-20 (E.D. Va. 2013), which includes a detailed discussion of the subject and outlines the circuit split on the issue.

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    Topics: legal research, Dora S. Vivaz, The Lawletter Vol 40, No 4, equal protection, reverse discrimination

    CIVIL PROCEDURE: Simultaneous Involvement in Cobell Settlement Claim Bars Plaintiffs' Mineral Lease Complaint Against United States

    Posted by Charlene J. Hicks on Thu, Mar 19, 2015 @ 12:03 PM

    Charlene Hicks, Senior Attorney, National Legal Research Group

         A class action settlement may have far-reaching, unintended effects for particular class members who choose not to opt out of the settlement. This point is highlighted in a recent decision by the U.S. Court of Federal Claims in Two Shields v. United States, No. 13-90 L, 2015 WL 513315 (Fed. Cl. Feb. 6, 2015).

         In that case, two Native Americans filed claims against the United States, alleging that the Government had breached its fiduciary duty to prudently manage their mineral rights, which were held in trust by the United States. The plaintiffs were allottees of Indian lands on the Fort Berthold Indian Reservation who, in 2007 and 2008, had granted oil leases to a private party known as Dakota-3. The plaintiffs alleged that the United States had rubber-stamped its approval of the leases at below-market rates. In November 2010, Dakota-3 re-leased the plaintiffs' allotments for a bonus price roughly 20 times the original lease rate. The plaintiffs alleged that the United States had breached its duties under the Indian Long-Term Leasing Act, 25 U.S.C. § 396, which requires the Government to approve only those mineral leases that are in the best interests of the Indian owners.

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    Topics: breach of fiduciary duty, civil procedure, class action

    PUBLIC LAW UPDATE: Tort Liability for Third-Party Criminal Conduct

    Posted by Gale Burns on Thu, Jun 12, 2014 @ 12:06 PM

    John Stone, Senior Attorney, National Legal Research Group

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    Topics: legal research, public law, John M Stone, tort liability, Virginia Tech murders, wrongful death claim, Commonwealth v. Peterson, Va. Supreme Court, reversed judgment for plaintiffs, reasonably unforeseeable that students faced risk, difficulty prevailing on negligence claim even if

    TORTS: Economic Loss Doctrine as a Bar to Negligent Misrepresentation Claims

    Posted by Gale Burns on Mon, Dec 30, 2013 @ 15:12 PM

    The Lawletter Vol 38 No 10

    Fred Shackelford, Senior Attorney, National Legal Research Group

         Does the economic loss doctrine preclude recovery for negligent misrepresentation? The supreme courts in Kansas and Nevada recently addressed this issue and reached opposite conclusions.

         In its original form, the economic loss doctrine prohibited a commercial buyer of defective goods from suing in negligence or strict liability when the only injury consisted of damage to the goods themselves. The doctrine reflected courts' concern that the rise of implied warranties and strict liability for dangerous products would allow tort law to consume contract law. Over the years, many courts extended the doctrine's application beyond the commercial product sphere as a means of preserving distinctions between contract and tort law.

         In the Kansas and Nevada Supreme Court cases, the issue was whether the doctrine applied in actions for negligent misrepresentation arising from construction contracts. In Rinehart v. Morton Buildings, Inc., 305 P.3d 622 (Kan. 2013), property owners who had contracted with a builder for a preengineered building sued the builder. They alleged claims for breach of contract and warranty, as well as a claim under the state's Consumer Protection Act. As part of their statutory claim, the owners alleged that the builder had negligently misrepresented that the building would be completed in a timely matter, accommodate the owners' need to relocate its operations, and meet or exceed all industry standards. After difficulties arose during construction over the structure's quality, the owners sued for damages to compensate for shop rent at an alternate facility, lost production, relocation costs, and interest expenses on a line of credit. The builder argued that the economic loss doctrine barred the negligent misrepresentation claim.

         The Rinehart court disagreed, concluding that the scope of a negligent misrepresentation claim is narrow enough that it is unnecessary to limit recovery by applying the economic loss doctrine. The court reasoned as follows:

         The elements of the negligence misrepresentation tort sets the bounds on the scope of liability by imposing the duty in the limited circumstances when a defendant supplies information to guide others in business transactions in the course of the defendant's business. The tort also limits the universe of those who may pursue such claims to those for whose benefit the defendant supplied the information and whom the defendant intends to influence or knows will be influenced in the transaction. Therefore, the doctrine's second purpose of restricting potential extensive liability to a commercial user "downstream" from the manufacturer does not apply here.

         . . . .

         We hold negligent misrepresentation claims are not subject to the economic loss doctrine because the duty at issue arises by operation of law and the doctrine's purposes are not furthered by its application under these circumstances. We leave for another day whether the doctrine should extend elsewhere.

    Id. at 632-33 (citation omitted).

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    Topics: legal research, Fred Shackelford, torts, construction contract, Halcrow, Inc. v. Eighth Judicial District Court, NV, Rinehart v. Morton Buildings, KS, economic loss doctrine, negligent misrepresentation

    PUBLIC LAW: Lanham Act's Prohibition of Trademarking Governmental Insignia Applies Even to the Governmental Entity Itself

    Posted by Gale Burns on Tue, Nov 19, 2013 @ 12:11 PM

    The Lawletter Vol 38 No 9

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    Topics: legal research, Lanham Act, distinguishable mark can be trademarked excepting, flag/insignia/coat of arms of US or a state, In re City of Houston, Fed. Cir., city argued that it was not an applicant, parallel case DC as local entity cannot obtain reg, The Lawletter Vol 38 No 9, public law

    PUBLIC LAW UPDATE: Silence Is Not Obstruction of Police

    Posted by Gale Burns on Thu, Apr 25, 2013 @ 10:04 AM

    April 25, 2013

    John Stone, Senior Attorney, National Legal Research Group

    A tan Infinity hit an unoccupied car in a jewelry store parking lot. The Infinity was driven by a female and carried a male passenger. The driver inspected the car she had hit, spoke briefly with her male passenger, and then drove away without leaving any information. Someone witnessed the incident, took down the Infinity's license plate number, and reported these observations to the Colorado State Patrol.

    Two troopers investigated the report, first by running a search on the license plate number of the Infinity and determining that it belonged to a Mr. Kaufman. They also checked the jewelry store's receipt records and found that Kaufman had made a purchase in the store a few minutes before the accident. When the troopers reached Kaufman by telephone, he agreed to allow them to speak with him at his residence later that day.

    At the meeting, Kaufman asked the troopers to reveal what they had learned during their investigation. They declined to do so, except to tell Kaufman the name of the owner of the damaged car. Within the troopers' hearing, Kaufman then called the victim and offered to pay for the damage incurred by the victim. The troopers continued to question Kaufman, in particular asking him who had been driving his vehicle on the day of the accident. Citing "privilege," Kaufman declined to identify the driver of his vehicle.

    Frustrated by Kaufman's silence, and after consulting a supervisor, one of the troopers presented Kaufman with a choice:  reveal the driver's identity or be arrested for obstruction of a peace officer.  Kaufman still declined to reveal the driver's identity and was arrested and taken to jail. The charges against him were eventually dropped by the local district attorney's office.

    Kaufman filed suit pursuant to 42 U.S.C. § 1983, alleging violations of his Fourth and Fifth Amendment rights. The defendant troopers moved for summary judgment on the ground of qualified immunity. In opposition to the summary judgment motion, Kaufman argued that he had been subjected to a false arrest in violation of his Fourth Amendment rights, because Colorado's obstruction statute does not criminalize a refusal to answer police questions during a consensual encounter (as opposed to questions following a valid arrest). (Kaufman eventually dropped his argument that the defendants had infringed his Fifth Amendment rights by retaliating against him for having asserted his Fifth Amendment privilege.)

    The district court granted the defendants' motion for summary judgment, concluding that there had been no false arrest, because the troopers had had probable cause to believe that Kaufman's silence, accompanied by an assertion of privilege, constituted a violation of the obstruction statute.  Kaufman v. Higgs, Civ. Act. No. 10-cv-00632-LTB-MEH, 2011 WL 3268346 (D. Colo. July 29, 2011).  In an appeal by Kaufman, the Tenth Circuit Court of Appeals reversed, holding that the shield afforded by the qualified immunity defense was not available to the troopers, because their arrest of Kaufman for obstruction of a peace officer was objectively unreasonable under the facts of the case and established case law.  Kaufman v. Higgs, 697 F.3d 1297 (10th Cir. 2012).

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    BANKRUPTCY: Judicial Estoppel in Post-Bankruptcy Court State Court Actions

    Posted by Gale Burns on Tue, Apr 2, 2013 @ 17:04 PM

    The Lawletter Vol 38 No 1

    Anne Hemenway, Senior Attorney, National Legal Research Group

    Many considerations come into play before an entity or individual files for bankruptcy relief.  Included among them is the careful consideration the potential debtor must give to other nonbankruptcy claims or lawsuits to which it is, or may be in the future, a party.  If it goes forward as a debtor, it must avoid the pitfall of having the doctrine of judicial estoppel preclude it from seeking future relief in a nonbankruptcy court.

    Judicial estoppel is an equitable doctrine applied at the discretion of the court.  New Hampshire v. Maine, 532 U.S. 742 (2001).  The primary purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process and to guard the judicial process against improper use.  Milton H. Greene Archives, Inc. v. Marilyn Monroe, LLC, 692 F.3d 983, 993 (9th Cir. 2012) (the doctrine is invoked because of "general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings and to protect against a litigant playing fast and loose with the courts" (internal quotation marks omitted)).  The fundamental requirement for the application of judicial estoppel is that the party against whom estoppel is asserted must be assuming a position of fact inconsistent with a stance that that party has taken in prior litigation.  Bland v. Doubletree Hotel Downtown, Civ. No. 3:09CV272, 2010 WL 723805 (E.D. Va. Mar. 2, 2010).  Judicial estoppel is most often applied where in its schedules the debtor has failed to disclose assets or contingent assets to the bankruptcy court but then later pursues a known claim in state court.  In re Knight-Celotex, LLC, 695 F.3d 714 (7th Cir. 2012); Guay v. Burack, 677 F.3d 10 (1st Cir. 2012).

    The specific elements of judicial estoppel are (1) the party to be estopped must be advancing an assertion that is inconsistent with a position taken during previous litigation; (2) the position must be one of fact instead of law; (3) the prior position must have been accepted by the court in the first proceeding; and (4) the party to be estopped must have acted intentionally and not inadvertently.  Love v. Tyson Foods, Inc., 677 F.3d 258 (8th Cir. 2012). Importantly, judicial estoppel requires that the party adopting the inconsistent positions must have acted with some intent in doing so.

    In Bland, the court held that judicial estoppel applied where the debtor had failed to properly disclose a claim in her bankruptcy proceedings.  Even though the debtor had actually amended her petition to include the claim against the defendant hotel, she stated that the claim's value was only one dollar.  The court stated:

    While the Court would be receptive to the conclusion that Bland neglected to initially include the Doubletree claim in the bankruptcy proceeding as a result of inadvertence where she amended her petition upon supposedly learning for the first time of the necessity for doing so, the Court cannot ignore or discount the undisputed fact that she valued the claim at such a negligible amount while seeking a bounty in this litigation.  The Court simply cannot tolerate such purposeful action.

    2010 WL 723805, at *5.  The court held that the debtor's later Title VII claim against her employer was barred under the doctrine of judicial estoppel because of her failure to disclose the contingent or unliquidated claim in her bankruptcy case and because her actions were not inadvertent.

    Ultimately, how the court applies the doctrine of judicial estoppel is discretionary, and it is an equitable tool.  The doctrine can lead to harsh results and, therefore, must be applied with caution. 
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    Topics: legal research, The Lawletter Vol 38 No 1, bankruptcy, Anne Hemenway, judicial estoppel is discretionary tool of the cou, protection of judicial integrity and process, invoked against party asserting inconsistent stanc, not disclosing assets or contingent assets, acted intentionally

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