May 22, 2018

Archives for February 14, 2013

Tenth Circuit: District Court’s Denial of Qualified Immunity to Prison Warden Affirmed

The Tenth Circuit published its opinion in Keith v. Koerner on Tuesday, February 12, 2013.

Tracy Keith was an inmate at the Topeka Correctional Facility (“TCF”), an all-female state prison, between 2006 and 2010.  While there, she participated in a vocational training program. Her instructor, Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith, and she became pregnant. The pregnancy was terminated. Mr. Gallardo ultimately pled guilty to a charge of unlawful sexual relations and two charges of trafficking contraband.

Ms. Keith filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of her rights under the Eighth Amendment. She named as Defendants former warden Richard Koerner and other Kansas Department of Corrections employees. Defendants filed a motion to dismiss, arguing in part that they were entitled to qualified immunity. The district court granted qualified immunity to all Defendants except Mr. Koerner and Mr. Gallardo and entered a default judgment against Mr. Gallardo. Mr. Koerner appeals from the district court’s denial of qualified immunity.

In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant’s alleged misconduct.

As an initial matter, it is clearly established that a prison official’s deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment. The question is whether Ms. Keith alleged facts sufficient to support such a deliberate indifference violation by Mr. Koerner. To state a claim, a plaintiff must only allege enough factual matter in her complaint to make her claim to relief plausible on its face and provide fair notice to a defendant.

Ms. Keith alleged facts that could tend to establish that Mr. Koerner was responsible for managing TCF and knew about multiple instances of sexual misconduct at TCF over a period of years, inconsistently disciplined corrections officers who engaged in prohibited sexual conduct with inmates and thus purportedly tolerated at least an informal policy which permitted sexual contact between prison staff and inmates. After reviewing the complaint, the Tenth Circuit concluded that Ms. Keith provided notice and nudged her claims beyond the conceivable to the plausible given that the Court had to accept accept the well-pleaded allegations as true.

Because Ms. Keith alleged facts sufficient to state a plausible claim for relief and survive a motion to dismiss, the district court’s denial of qualified immunity is AFFIRMED.

Tenth Circuit: Increase in Sentence Based on Amount of Cocaine for Which Defendant was Responsible Unsupported in Record

The Tenth Circuit published its opinion in United States v. Battle on Tuesday, February 12, 2013.

In 1997, a jury convicted Shawn Battle of conspiracy to possess with intent to distribute 50 grams or more of cocaine base. Battle was sentenced to 360 months’ imprisonment. Battle appealed his conviction and sentence.  The Tenth Circuit affirmed. Shawn Battle then filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) following Amendments 750 and 759 to the United States Sentencing Guidelines, which would have the effect of retroactively reducing his advisory sentence Guidelines range. Under the amended Guidelines, a finding that Battle was responsible for 1.5 kilograms of crack would correspond to a reduced sentence range of 262 to 327 months. Battle argued that the court should find him eligible for a reduced sentence based on the finding that Battle was responsible for 1.5 kilograms of crack. The district court denied the motion. Combining figures in the Presentence Report, the court determined that Battle was responsible for 3.4 kilograms of crack. Using this 3.4 kilogram figure, the district court imposed a new increased sentence of 324 months. Battle appealed.

Federal courts generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). However, in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission, the court may reduce a previously imposed term of imprisonment if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding. District courts cannot recalculate aspects of a sentence that are unaffected by a retroactively applicable amendment to the Guidelines.

In the case at bar, the Tenth Circuit determined that the supplemental drug quantity calculations made by the district court at Battle’s § 3582(c)(2) proceeding that he was responsible for 3.4 kilograms of crack were unsupported by the facts found at his original sentencing.

REVERSED and REMANDED for resentencing.

Tenth Circuit: Unpublished Opinions, 2/12/13

On Tuesday, February 12, 2013, the Tenth Circuit Court of Appeals issued two published opinions and nine unpublished opinions.

Gaines v. Pearson

Tercero v. Holder

United States v. Clapper

Sanchez-Naranjo v. Holder

George v. Astrue

Michael v. Newton-Embry

Winbush v. Faulk

McDonald v. State of Colorado

United States v. Medina

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 13-075: Providing that After a Final Decree for Withdrawal of Designated Ground Water, Conservation of Water is Not Grounds to Modify Rights Under the Decree

On Tuesday, January 22, 2013, Sen. Greg Brophy introduced SB 13-075 – Concerning Safeguards to Prevent the Modification of a Final Designated Ground Water Permit Based on Reductions in the Use of Designated Ground Water. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill specifies that once the state engineer issues a final permit for the withdrawal of designated ground water, a reduction in the amount of water used pursuant to the permit due to the conservation of water is not grounds to reduce the maximum annual volume of the appropriation, the maximum pumping rate, or the maximum number of acres that have been irrigated. On Feb. 7, the Agricultural, Natural Resources and Energy Committee approved the unamended bill sent it to the Senate for consideration on 2nd Reading.

Since this summary, the bill was amended in 2nd Reading and passed 3rd Reading in the Senate. It was introduced in the House and assigned to the Agriculture, Livestock & Natural Resources Committee.

SB 13-074: Creating Mechanism to Resolve Ambiguities in Certain Pre-1937 Irrigation Water Right Decrees

On Tuesday, January 22, 2013, Sen. Mary Hodge introduced SB 13-074 – Concerning the Resolution of Ambiguities in Old Water Right Decrees Regarding the Place of Use of Irrigation Water. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires irrigation water right decrees to specify the acreage on which the water may be used, but some older decrees do not include an acreage limitation. For such decrees, water courts look to the original appropriator’s intent in determining the lawful historical consumptive use of a decreed irrigation water right; however, it is often very difficult to determine the original appropriator’s intent, which has resulted in cases that substantially decrease the acreage that has historically been irrigated by a water right.

The bill creates a mechanism to determine the amount of acreage for an irrigation water right for which the original decree predates 1937 and is unclear about the amount of acreage that may be irrigated under the water right. On Feb. 7, the Agricultural, Natural Resources and Energy Committee approved the unamended bill sent it to the Senate for consideration on 2nd Reading.

Since this summary, the bill was laid over daily for 2nd Reading.

SB 13-073: Requiring Division of Administration to Follow Rule-Making Procedures when Proposing Changes to Permits Related to Water Quality Control

On Tuesday, January 22, 2013, Sen. Greg Brophy introduced SB 13-073 – Concerning a Requirement that the Division of Administration of the Department of Public Health and Environment Follow Rule-Making Procedures when Proposing Changes to General Permits Related to Water Quality Control. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the division of administration (division) of the department of public health and environment may adopt new and amended permit requirements for general permits related to water quality control without providing any of the following information to existing and potential permit holders:

  • A statement of basis and purpose for the changes;
  • Evidence and data in support of the changes; and
  • A cost-benefit analysis of the effect the changes will have on permit holders.

The bill requires the division to comply with the rule-making procedures set forth in the “State Administrative Procedure Act” when the division proposes new or amended permit requirements with respect to general permits related to water quality control. On Feb. 4, the State, Veterans, & Military Affairs heard testimony; the bill is back on the calendar for “action only” on Wednesday, Feb. 13 at 1:30 p.m.

Since this summary, the State, Veterans, & Military Affairs Committee amended the bill and referred it to the Appropriations Committee.

SB 13-072: Deleting the Requirement for a Final Permit for Wells

On Tuesday, January 22, 2013, Sen. Mary Hodge introduced SB 13-072 – Concerning the Deletion of the Requirement for a Final Permit for all Wells Withdrawing Designated Ground Water from the Denver Basin Aquifers. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For most water wells in designated basins, the state engineer issues a conditional permit and then issues a final permit after the water has been put to beneficial use. But under current law, the requirement for a final permit does not apply to wells permitted on or after July 1, 1991, that withdraw designated ground water from the Denver basin aquifers. The bill deletes the requirement for a final permit for all wells withdrawing designated ground water from the Denver basin aquifers. On Feb. 7, the approved the unamended bill and sent it to the Senate for consideration on the 2nd Reading Consent Calendar.

Since this summary, the bill passed 2nd Reading in the Senate.

SB 13-068: Reducing the Fee for Late Registration of a Motor Vehicle

On Wednesday, January 16, 2013, Sen. Randy Baumgardner introduced SB 13-068 – Concerning Modification of the Fee for Late Registration of a Vehicle. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Effective July 1, 2013, the bill changes the fee for late registration of a vehicle from a fee of $25 per month to a flat fee of $20 and repeals an exemption from the late fee for a vehicle that has expired temporary registration number plates, tags, or certificates. Assigned to the Transportation Committee; the bill is set for committee review on Tuesday, Feb. 12 at 1:30 p.m.

Since this summary, the bill was postponed indefinitely in the Transportation Committee.

SB 13-061: Amending Requirements for Emissions Inspections when Registering a Motor Vehicle

On Wednesday, January 16, 2013, Sen. Scott Renfroe introduced SB 13-061 – Concerning Motor Vehicle Emissions Inspections. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, a motor vehicle that is being registered in the emissions program area for the first time is exempt from the requirement to get an emissions control inspection if the motor vehicle is in its fourth model year or newer. The bill extends the exemption period from 4 years to 10, and expands its coverage to previously-registered motor vehicles that have never failed an emissions control inspection. Also, it extends the exemption period for government-owned and dealer-owned vehicles to 10 years. Finally, the bill creates a senior citizen hardship exemption whereby a senior citizen may register one motor vehicle without obtaining an emissions control inspection. Assigned to the Transportation Committee and is set for committee review on Thursday, Feb. 14 upon morning adjournment.

Since this summary, the bill was postponed indefinitely by the Transportation Committee.

HB 13-1042: Providing a State Income Tax Deduction to Marijuana Businesses That Are Precluded from Claiming a Federal Deduction

On January 9, 2013, Rep. Daniel Kagan and Sen. Lucia Guzman introduced HB 13-1047 – Concerning a State Income Tax Deduction for a Taxpayer Who is Prohibited from Claiming a Federal Income Tax Deduction by Section 280e of the Internal Revenue Code Because Marijuana is a Controlled Substance under Federal Law. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The starting point for determining state income tax liability is federal taxable income. This number is adjusted for additions and subtractions (deductions) that are used to determine Colorado taxable income, which amount is multiplied by the state’s 4.63 percent income tax rate.

Section 280E of the internal revenue code (section 280E) prohibits a trade or business that is illegally trafficking controlled substances from claiming any federal income tax deductions. This increases federal taxable income and, consequently, state income tax liability.

The bill allows a taxpayer who is licensed under the “Colorado Medical Marijuana Code” or under regulations promulgated by the department of revenue pursuant to amendment 64 to claim a state income tax deduction for an expenditure that is eligible to be claimed as a federal income tax deduction but is disallowed by section 280E because marijuana is a controlled substance under federal law. Taxpayers eligible for this deduction include medical marijuana centers, optional premises cultivation operations, medical marijuana-infused product manufacturers, marijuana cultivation facilities, marijuana testing facilities, marijuana product manufacturing facilities, and retail marijuana stores. On Feb. 6, the Finance Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact on the state.