May 25, 2013

You are here: Home / Archives for civil rights

Tenth Circuit: Federal Prisoner Barred by PLRA from Proceeding In Forma Pauperis in Future Civil Actions

April 25, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Childs v. Miller on Tuesday, April 23, 2013.

Terry Lee Childs, a federal prisoner in Oklahoma, filed this civil rights complaint under 42 U.S.C. § 1983, asserting that defendants, who were all employees of the Lawton Correctional Facility , violated state and federal law by delaying the refilling of his asthma medication prescription in retaliation against him for exercising his federal constitutional right to file administrative grievances about his medical care. Defendants moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment. The district court eventually dismissed all of Mr. Childs’ claims and Mr. Childs appealed.

Congress enacted the Prison Litigation Reform Act (PLRA) in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts. The PLRA contains a variety of provisions designed to bring this litigation under control. One of these provisions is 28 U.S.C. § 1915(g), which Congress added to revoke, with limited exception, in forma pauperis privileges for any prisoner who has filed three or more lawsuits that fail to state a claim, or are malicious or frivolous.

Mr. Childs had accumulated three strikes under 28 U.S.C. § 1915(g). Accordingly as soon as the appellate process in this case has been completed, he will be barred from proceeding in forma pauperis in future civil actions or appeals in federal court unless he is “under imminent danger of serious physical injury,” § 1915(g), and he makes “specific [and] credible allegations” to that effect. Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001).

AFFIRMED.

Filed Under: Case Law Tagged With: , , , ,

Tenth Circuit: No Obligation to Answer Officer’s Questions During Consensual Encounter

October 25, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Kaufman v. Higgs on Tuesday, October 23, 2012.

A female driver with a male passenger hit a car in a parking lot and left the scene. The Colorado State Patrol investigated after receiving the license plate number from a witness and determined the car belonged to the plaintiff, Richard Kaufman. Two troopers met with Kaufman, who refused to identify the driver, citing privilege. The troopers arrested Kaufman for obstruction of justice. Kaufman brought a § 1983 action against the troopers based on violations of his Fourth and Fifth Amendment rights. The district court granted summary judgment for the troopers based on qualified immunity. Kaufman appealed only the claim that his Fourth Amendment rights were violated when he was arrested without probable cause.

As the first part of analyzing whether qualified immunity applied, the Tenth Circuit examined the plain language of Colorado’s obstruction of justice statute, C.R.S. § 18-8-104, and a Colorado Supreme Court case interpreting the statute to determine whether the officers had probable cause to arrest Kaufman. The court held that the officers had no probable cause, including arguable probable cause, because “[r]efusal to answer questions during a consensual encounter, expressed by silence and assertion of ‘privilege,’ is not an ‘obstacle’ as the term is used in the statute.” In answering the second part of the  qualified immunity analysis, the court determined that no officer could reasonably believe Kaufman’s silence constituted a criminal act, so his Fourth Amendment right to be free from unreasonable seizure was clearly established. The court reversed summary judgment for the defendants and remanded.

Filed Under: Case Law Tagged With: , , , , ,

Tenth Circuit: Firing Was Not Retaliation for Bringing to Light Various Accounting Improprieties

August 7, 2012 by 1 Comment

The Tenth Circuit Court of Appeals published its opinion in McBride v. Peak Wellness Center, Inc. on Monday, August 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an accountant who worked as Respondent’s business manager for about nine years. Respondent terminated her in 2009, citing job performance and morale issues. Petitioner, however, claims she was terminated in retaliation for bringing various accounting improprieties to the attention of Respondent’s Board of Directors. Petitioner brought several federal and state-law claims against Respondent, among them (1) whistleblower retaliation under the federal False Claims Act (FCA); (2) violations of the federal Fair Labor Standards Act (FLSA); (3) breach of employment contract; (4) breach of implied covenant of good faith and fair dealing; (5) defamation; and (6) a federal sex discrimination claim under Title VII of the Civil Rights Act. After discovery, Respondent moved for summary judgment on all claims, and the district court granted the motion. Petitioner appeals the grant of summary judgment, arguing that significant issues of material fact remain unresolved and that her claims should proceed to trial. She also appeals the district court’s denial of an evidentiary motion. The Court found no error in the district court’s decision and affirmed.

Filed Under: Case Law Tagged With: , , , , ,

Tenth Circuit: Award of Attorney Fees was Arbitrary; Remand to Determine What Work Warrants Reimbursement

June 6, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Zinna v. Congrove on Tuesday, June 5, 2012.

The Tenth Circuit reversed the district court’s decision. Petitioner “appeals the district court’s attorneys’ fee award following a successful 42 U.S.C. § 1983 civil rights suit against [Respondent], a county official. On its consideration of the jury verdict favoring [Petitioner], the district court determined the damage award was nominal and the victory merely technical. It proceeded to award [Petitioner] but $8,000 in attorneys’ fees under § 1988— $1,000 for each day of an eight-day trial. In light of [Tenth Circuit] jurisprudence applying Farrar v. Hobby, 506 U.S. 103, 116-22 (1992) (O’Connor, J., concurring), [the Court concluded] that that the district court’s award was arbitrary, and therefore reversed and remanded to determine what work warrants reimbursement.

Filed Under: Case Law Tagged With: , , ,

e-Legislative Report: Week Twelve, April 2, 2012

April 5, 2012 by Leave a Comment

In this week’s Legislative Video Update, Michael explains the LPC docket was light due to the calm before the budget bill storm; hear about the single docket item and the budget bill process. And is it just us, or does this year’s legislative session seem lighter than last year?

From the CBA Legislative Policy Committee

The Legislative Policy Committee met on Friday, March 30 to take up one bill:

The LPC voted to support the recommendation of the Civil Rights Committee and Oppose HB 12-1130 – Concerning Offenses Against an Unborn Child. The basis for the opposition stemmed from a strong concern that the bill as drafted violates due process. The Civil Rights Committee asserted that the language of the bill does not pass the vagueness doctrine – the Civil Rights Committee cited several cases to support their position.

Filed Under: Legislation Tagged With: , , , , ,

Colorado GLBT Bar Association Presents Awards to Barton and Getches

September 16, 2011 by 1 Comment

On Thursday, September 15, 2011, the Colorado Gay Lesbian Bisexual and Transgender Bar Association held its Eighth Annual Awards Dinner. The evening drew allies from all across the Colorado legal community, including Senate President Brandon Shaffer and Colorado Supreme Court Justice Monica Marquez, to celebrate diversity and the progress of civil rights recognitions both locally and nationally. Dinner was followed by the presentation of the association’s 2011 Attorney and Ally Awards, which went to Mindy Barton and David Getches, respectively.

The keynote speaker for the evening was Scott M. Malzahn, a former attorney at Gibson Dunn & Crutcher LLP, where he was a member of the Perry v. Schwarzenegger trial team. With the team, he worked to repeal Proposition 8 in California, in which voters overturned the California Supreme Court’s ruling that same-sex couples have the constitutional right to marry. Scott discussed the case’s trajectory in the Ninth Circuit and possible future before the United States Supreme Court. He also shared insights from the trial, including details about expert witness testimony that lead to United States District Court Judge Vaughn R. Walker overturning Proposition 8 on August 4, 2010.

2011 Outstanding GLBT Attorney – Mindy Barton

Mindy serves as the Legal Director at The Center, the only statewide, nonprofit community center dedicated to providing support and advocacy for Colorado’s GLBT population. The Center serves as a catalyst for community organizing, support services, social activities, and cultural events. Mindy also serves as an ex-officio, non-voting member of the Board of Directors for Equal Rights Colorado doing legislative advocacy work. She holds an undergrad degree in Speech Communications from the University of Illinois and a JD from the University of Denver College of Law. She has worked in this role at The Center for three years, managing the Legal Helpline, taking high-impact cases for pro bono direct representation, and presenting diversity trainings across the state.

While unable to attend personally, Denver Mayor Michael Hancock had a representative on hand to present Mindy with a City and County of Denver Proclamation in recognition of her work on behalf of the GLBT community. The Proclamation declared that September 15, 2011 shall be known as Mindy Barton Day. It also happens to be her birthday.

2011 Oustanding GLBT Ally – David Getches

David became a member of the CU Law faculty in 1979, and became dean of the school in 2003. He resigned from the position at the end of June this year, and died of pancreatic cancer just a few days later. During his tenure at the school, he oversaw the opening of the Wolf Law Building and was dedicated to increase scholarship money for his students. And David’s legacy is not confined to the law school. He earned his undergraduate degree from Occidental College in California and his law degree from the University of Southern California School of Law. In 1968, he was co-directing attorney for California Indian Legal Services and, in 1970, he moved to Colorado to become the founding executive director for the Boulder-based Native American Rights Fund, a national, nonprofit Indian-interest law firm.

Throughout his life, he was dedicated to protecting the rights of minorities and all groups that struggle for recognition in the legal system, including the GLBT community. His daughter was there to accept the award on behalf of him and his family. She reflected on her father’s life and mission, urging everyone in attendance to stand up for one another. Whether or not you belong to a particular minority or group, she reminded the audience that we are stronger together, diversity gives us strength, and that David’s legacy continues with us.

Filed Under: Community Tagged With: , , ,

Colorado Court of Appeals: Articles of Incorporation and Bylaws Did Not Contain Enforceable Agreement for Continued Purchasing of Goods and Services

September 6, 2011 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Arnold v. Anton Cooperative Ass’n on September 1, 2011.

Discrimination—Colorado Civil Rights Act—Jurisdiction—Breach of Contract.

April Arnold appealed the trial court’s judgment against her and in favor of defendants Anton Cooperative Association (Association), Chester Kenney, and Louanne Kenney. Arnold also appealed the orders awarding costs and fees to defendants. The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Arnold was a member of the Association, which operates a general store. Chester Kenney is the Manager of the Association, and Louanne Kenney is his wife and an employee of the Association. The Association sent Arnold a notice that she was no longer permitted to enter or purchase from the Association’s store. Arnold then brought this action, alleging discrimination based on gender and disability, breach of the membership contract, and intentional interference with contract.

Arnold argued that the trial court erred in dismissing her claim for discrimination in a place of public accommodation under part 6 of the Colorado Civil Rights Act (CRA). The trial court concluded that only the county courts have jurisdiction to hear public accommodation claims under the CRA. However, district courts and county courts have concurrent jurisdiction over claims brought under part 6 of the CRA. Therefore, the trial court erred in dismissing Arnold’s CRA claim.

Arnold also argued that the trial court erred in dismissing her breach of contract claim. Specifically, she argued that the Association’s articles of incorporation and bylaws, when read together with the Cooperatives Act, provide her with an express right to purchase goods and services from the Association’s store. However, these documents do not contain an enforceable promise that Arnold will be permitted to continue purchasing goods and services from the Association’s store. Therefore, the trial court did not err in granting the Association’s motion for summary judgment regarding her breach of contract claim.

Arnold further contended that, as an alternative to her express contract claim, the trial court should have implied terms into the contract or proceeded under a quasi-contract theory to find that she had a right to purchase goods and services from the Association’s store. Arnold, however, did not preserve this issue for appeal. Further, Arnold’s argument would require the court to rewrite her contract with the Association, which it is not permitted to do.

Finally, because Arnold’s interference with contract claim was wholly dependent on her claim for breach of express contract, and the latter claim could not be sustained, the trial court did not err in granting the Association’s motion for summary judgment as to Arnold’s interference claim. The judgment dismissing Arnold’s claim under the CRA was reversed, and the case was remanded for further proceedings on that claim. In all other respects, the judgment was affirmed. The trial court’s order awarding costs to defendants was reversed given the resolution of the issues presented on appeal, and the order awarding attorney fees was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

Filed Under: Case Law Tagged With: , , , ,

State Board of Human Services Amends Anti-Discrimination Policy in Child Welfare Rules

August 23, 2011 by Leave a Comment

The Colorado State Board of Human Services has amended the anti-discrimination policy within its Child Welfare rules. The proposed amendments are seen as necessary because the Federal Office of Civil Rights notified the Department of Human Services that their policy was inaccurate and needed to be updated in order to meet federal requirements.

The rules will align county anti-discrimination rules with Federal regulations by:

  • Correctly stating federal cites;
  • Adding “creed” and “method of payment” as areas that may not be a basis for discrimination;
  • Clarifying requirements to assist persons with limited English; and,
  • Adding the requirement for county departments to post signs that notify that auxiliary aids and services are available on request to persons with mental or physical disabilities.

A hearing on the amended rules will be held on Friday, October 7, 2011 at the Colorado Department of Human Services, Conference Room 4A/B, 1575 Sherman Street, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed changes and line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Filed Under: Updates Tagged With: , , , , , ,

Interpreter Services to Be Free in Colorado Courts after DOJ Agreement

June 29, 2011 by Leave a Comment

Today, the Justice Department announced that it has reached an agreement with Colorado State Judicial officials to ensure that limited English proficient (LEP) individuals will have free access to timely and competent language assistance when seeking services in state courts.

Last year, the Justice Department issued a letter to chief justices and state court administrators around the nation to help clarify the obligation “to provide oral interpretation, written translation and other language services to to people who are LEP.” Since then, the Department had been investigating a complaint alleging that Colorado State Judicial, which receives federal funding, was not in compliance with Title VI of the Civil Rights Act of 1964, and the nondiscrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968. These two acts prohibit discrimination on the basis of race, color, national origin, sex, or religion by recipients of federal assistance.

Today’s agreement resolves that investigation and, accordingly, Chief Justice Bender has issued a comprehensive Directive that provides for free and competent interpreter services in all criminal and civil proceedings, as well as court operations. Drafting the Directive was a collaborative effort between state court officials, judges, administrators, and community experts.

Additionally, the Colorado Judicial Department will develop state and local language access plans in conjunction with the DOJ, addressing both oral interpretation and the translation of vital written documents. The existing Court Interpreter Oversight Committee will be expanded to include a Colorado Legal Services attorney, a prosecutor, a public defender, an advocate representing the interests of the language minority populations in Colorado, and other members who have relevant experience in court language access issues. This committee will have the opportunity to provide feedback on the directive, the state and district plans, and implementation efforts.

The Chief Justice Directive implementing the changes to interpreter services can be read here. Additionally, two other CJDs were amended to account for the changes, and they can be read here and here.

Click here to read the full DOJ press release.

Filed Under: Updates Tagged With: , , , , , , , ,

Tenth Circuit: Opinions, 4/25/11

April 26, 2011 by Leave a Comment

The Tenth Circuit on Monday issued three published opinions and three unpublished opinions.

Published

In Crowe v. ADT Security Services, Inc., the Court affirmed the district court’s decision. Petitioner, who is African-American, worked for ADT as a technician providing telephone support to customers and dealers for Respondent for ten years; he was ultimately fired based on repeated complaints of sexual harassment and unprofessional behavior. Petitioner claims he was terminated on the basis of his race or in retaliation for complaining about the lack of African-Americans in management, all in violation of Title VII. However, the Court found that the record reveals that Respondent justified its termination of Petitioner based on his entire personnel file, particularly his long history of alleged sexual harassment and insubordination, and not for his protected conduct; the reasons for his firing were not pretextual. Additionally, Respondent’s prior leniency with Petitioner before his subsequent termination is not evidence of pretext.

In United States v. Vaquera-Juanes, the Court dismissed Petitioner’s appeal on prudential ripeness grounds. Petitioner was charged with knowingly attempting to reenter the United States after having been previously deported; he pleaded guilty and was sentenced to forty-nine months’ imprisonment and two years’ supervised release. Petitioner argues the district court erred by imposing a condition of supervised release without first making required findings, although this issue was not raised during sentencing. A prudential ripeness analysis examines the fitness of the issue raised on appeal for judicial review and the potential hardship to the defendant from withholding review. While the issue certainly could be resolved by the Court, resolving the appeal at this time would not be an efficient use of judicial resources because any relief Petitioner obtains would be illusory. “Petitioner is a removable alien . . .  and the district court recommended that Immigration and Customs Enforcement . . . begin removal proceedings during his term of incarceration. Therefore, the record indicates that [Petitioner] will be removed once he completes his term of custodial confinement and fails to reveal any realistic possibility he will be released from immigration detention while he awaits physical removal. Accordingly, the issue [Petitioner] raises in this appeal is not fit for judicial review at this time because the occupational restriction imposed by the district court currently has no practical effect on him, and will have no practical effect on him during the two-year period of supervised release.”

In United States v. Maestas, the Court affirmed the district court’s decision. Petitioner was charged with distributing five grams or more of methamphetamine, possessing with intent to distribute fifty grams or more of methamphetamine, and carrying a firearm during and in relation to a drug-trafficking crime; forty-two grams of methamphetamine and a handgun were seized from an enclosed garbage storage area in close proximity to where Petitioner was residing. Petitioner claims that he had a reasonable expectation of privacy in the place where the evidence was seized, that the seizure therefore violated his Fourth Amendment rights, and that the district court erred in denying his motion to suppress the evidence. Unlike the district court, the Court grants that Petitioner was a social or overnight guest at another tenant’s residence and that, for Fourth Amendment purposes, “his expectation of privacy was coterminous with the expectation of privacy of the tenant.” But, while Mr. Maestas had a reasonable expectation of privacy in the apartment, he does not necessarily have a reasonable expectation of privacy in the garbage storage area adjacent to the triplex residence.

In determining whether an area around a home is within the “curtilage” protected by the Fourth Amendment, the following factors are considered: “(1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the house; (3) the manner in which the area is used; and (4) the steps the resident has taken to protect the area from observation.” The Court concluded that Petitioner failed to demonstrate that he had a subjective expectation of privacy in the garbage storage area; the fact that this was a common area shared by all three tenants, the landlord, and presumably their guests, weighs against a conclusion that Petitioner had a reasonable expectation of privacy in the area. Additionally, an area located outside of the multi-unit complex and used to store cans of garbage is not likely an area related to the “intimate activities of the home.”

Unpublished

Graham v. Smelser

United States v. Vasquez

Rosenzweig v. Manville

Filed Under: Case Law Tagged With: , , , , , , ,

Governor Hickenlooper Appoints Three Members to Colorado Civil Rights Commission

April 25, 2011 by Leave a Comment

Last week, Governor John Hickenlooper announced his appointment of three members to the Colorado Civil Rights Commission. The Commission investigates complaints and conducts hearings concerning alleged discrimination in employment, apprenticeship programs, on-the-job training, and vocational schools. The Commission also investigates the existence of discriminatory or unfair employment practices. The appointments to the Commission are dependent upon Senate confirmation.

The members appointed are:

  • Susie Velasquez of Greeley, to serve as a representative of local or state government entities; term to expire March 13, 2015.
  • Raju Jairam of Fort Collins, to serve as a representative of the business community; term to expire March 13, 2015.
  • Katina C. Banks of Denver, to serve as a representative of the community at-large; term to expire March 13, 2015.
Filed Under: Updates Tagged With: , , ,

DORA Civil Rights Commission Files Discrimination Complaint against Wilder Farms

March 25, 2011 by Leave a Comment

On March 17, 2011, the Colorado Civil Rights Commission, through the Colorado Attorney General, filed a Notice of Hearing and Formal Complaint against the Wilder Corporation of Delaware (Wilder Farms). The case was first filed with the Civil Rights Division on March 22, 2010, after a nine‐month investigation that included numerous interviews of past and current employees, the Division issued a probable cause finding on December 7, 2010, in which the Division found there was reason to believe Ms. Farris had been sexually harassed by her managers and at least one co‐worker.

The specifics of the case, Shirley Farris v. Wilder Farms, will be argued before an administrative law judge at the Colorado Office of Administrative Courts on July 11, 2011.

Ms. Farris alleges that several of her managers commonly used offensive, derogatory, and sexual terminology when referring to her. She also complains that a co‐worker was allowed to view internet pornography from his work computer. According to her, when she complained to Wilder’s corporate headquarters, an investigation was undertaken without her input and, ultimately, no action was taken against either manager or her co‐worker.

The Notice of Hearing and Formal Complaint cites that Ms. Farris is seeking full recovery of actual damages, as well as both injunctive and equitable relief, as permitted by the Colorado Anti‐Discrimination Act, C.R.S. § 24‐34‐301, et seq.

The DORA press release concerning the complaint can be found here.

Filed Under: Case Law Tagged With: , , ,
«Older Posts
Protected

2013-05-25 07:47:35