August 24, 2019

Archives for April 25, 2013

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

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).


Tenth Circuit: School District Did Not Violate Developmentally Disabled Child’s Constitutional Rights by Placing Him in a Time-Out Room

The Tenth Circuit published its opinion in Muskrat v. Deer Creek Public Schools on Tuesday, April 23, 2013.

Paul and Melinda Muskrat’s son, J.M., is a developmentally disabled child. During the time period relevant to this lawsuit, J.M. was between five and ten years old but had the mental age of a two- or three-year-old. In addition to his mental disabilities, J.M. had impaired motor skills and a pattern of seizures. J.M. attended Deer Creek Elementary School in Edmond, Oklahoma, from 2002 to 2007.

Deer Creek Elementary had a special “timeout room” attached to J.M.’s classroom. The timeout room was small, although big enough for both a student and teacher to fit inside. J.M. was known to occasionally yell, throw, kick, hit, spit, throw tantrums, and otherwise exhibit disruptive behavior. As a result, teachers sometimes placed him in the timeout room. The Muskrats eventually became concerned about the use of the timeout room and told school officials beginning in 2004 that J.M. should not be placed there. The school’s principal nonetheless instructed at least one staff member to place J.M. in the timeout room if needed. The school’s logs show that J.M. was placed in timeout at least 30 times over the course of the 2004–05 and 2005–06 school years.

The Muskrats also claimed that J.M. suffered three instances of physical abuse at the hands of school staff.

Paul and Melinda Muskrat brought a civil rights action on behalf of their son against the school district and against certain school district employees. The Muskrats alleged that the defendants unconstitutionally subjected their son to timeouts and physical abuse.

The school district moved to dismiss, arguing that the Muskrats had not exhausted their claims through administrative procedures established by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1491o. The district court denied this motion, ruling that the Muskrats had no obligation to exhaust their claims. The case then proceeded to discovery and the defendants eventually moved for summary judgment, arguing that no constitutional violation occurred. The district court agreed and granted defendants’ motions.

IDEA Exhaustion Claim

The defendants moved to dismiss for lack of jurisdiction, arguing that the Muskrats had not exhausted their claims through procedures specified in the IDEA. The IDEA is a federal statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. A state accepting such funding must ensure that all children with disabilities have available to them a free public education that emphasizes special education and related services designed to meet their unique needs. A child’s free appropriate public education must conform with his or her individualized education program (IEP). The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals. If a parent objects to a school’s implementation of the IEP, the statute entitles the parent to an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency. If the parent is unsatisfied with the outcome of the hearing, he or she may appeal such findings to the State educational agency.

The IDEA requires parents to work through these administrative procedures before suing the school under federal law.

Before addressing the district court’s disposition of the exhaustion issue, the Tenth Circuit paused to consider whether prior case law correctly treated IDEA exhaustion as a jurisdictional matter. Ultimately, however, for purposes of this case, IDEA exhaustion’s status as a jurisdictional prerequisite was not at issue.

Regarding the physical abuse allegations, the Court concluded that no authority holds that Congress meant to funnel such isolated incidents of common law torts into the IDEA exhaustion regime.

Moving on to the time-outs, the Tenth Circuit held that, in contrast to the physical abuse allegations, the Muskrats worked through administrative channels to obtain the relief they sought, namely, preventing J.M. from being put in a timeout room in the future. They made written and oral demands to school administrators not to place J.M. in timeout. The interested parties conferred and the IEP was modified as a result.

Accordingly, the Muskrats’ lawsuit does not fail for lack of exhaustion.

Fourteenth Amendment “Shocks the Conscience” Claim

The due process clause of the Fourteenth Amendment prohibits “executive abuse of power . . . which shocks the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This standard applies to all school discipline cases, not just those based on corporal punishment. See, e.g., Harris v. Robinson, 273 F.3d 927 (10th Cir. 2001).

Viewing the record in a light most favorable to the plaintiffs, the Tenth Circuit concluded that the allegations of physical abuse did not rise to the level of a constitutional tort.

Regarding the time-outs, the various details, such as placing a chair in front of the door, show at most a careless or unwise excess of zeal rather than a brutal and inhumane abuse of official power.

Fourth Amendment Claim

Following summary judgment, the Muskrats filed a Rule 59(e) motion, arguing that the district court should have analyzed their § 1983 claim under a Fourth Amendment reasonableness standard. Finding no abuse of discretion, the Tenth Circuit held the district court did not err in denying the Muskrats’ motion, reasoning that the Muskrats had never before raised the Fourth Amendment as a possible source of evaluating § 1983 liability and could not do so for the first time after summary judgment.


Tenth Circuit: Court Denied Prisoner’s Successive Motion for Relief Under 28 U.S.C. § 2255

The Tenth Circuit published its opinion in In re: Leo D. Graham on Tuesday, April 23, 2013.

In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. He then moved for authorization to file a second § 2255 motion based on Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

Congress has placed strict limitations on successive § 2255 motions, requiring that a movant obtain this court’s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

To date, however, every circuit court to consider the question has held that Frye and Lafler do not establish a new rule of constitutional law. Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Tenth Circuit denied authorization.

Tenth Circuit: Court Recommends Enforcing Order of Removal of Mexican Citizen

The Tenth Circuit published its opinion in Salgado-Toribio v. Holder on Tuesday, April 23, 2013.

Petitioner Lucio Salgado-Toribio is a citizen of Mexico who entered the United States without inspection. An immigration judge found him removable as an alien pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The immigration judge granted Petitioner’s request for voluntary departure. Petitioner appealed to the Board of Immigration Appeals (BIA), which dismissed the appeal.

Petitioner, acting pro se, sought review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. By the time the case reached the Tenth Circuit, Petitioner had been using the federal courts’ procedures to put off removal for more than three years since an immigration judge found him removable. This proceeding was the third time Petitioner sought review of an administrative decision over which the Tenth Circuit had no jurisdiction. He did not assert a nonfrivolous constitutional claim sufficient to give the Court jurisdiction. Petitioner repeatedly took advantage of the federal court of appeals’ stay procedures.

The Tenth Circuit denied Petitioner’s motion to proceed in forma pauperis, dismissed his petition for review, and recommended that the Department of Homeland Security enforce the order of removal immediately.

Tenth Circuit: Unpublished Opinions, 4/23/13

On Tuesday, April 23, 2013, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

United States v. Holguin-Espino

Carbajal v. Hotsenpiller

Jackson v. Shinseki

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

HB 13-1300: The Revisor’s Bill – Amending or Repealing Obsolete, Conflicting, or Inconsistent Laws

On April 10, 2013, Rep. Bob Gardner and Sen. John Morse introduced HB 13-1300 – Concerning Nonsubstantive Revisions of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Inconsistent, and Conflicting Provisions of Law and Clarifying the Language to Reflect the Legislative Intent of the Laws.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Committee on Legal Services—Revisor’s Bill

This bill amends or repeals various statutory provisions that are obsolete, inconsistent, or in conflict with other law, clarifies the language to more accurately reflect the legislative intent of the laws, and reconstructs provisions to follow standard drafting format. The specific reasons for each amendment or repeal are set forth in the appendix to this bill.

The amendments made by this bill are nonsubstantive in nature and, as such, are not intended to change the meaning or intent of the statutes, as amended.

The bill was introduced on April 10 and was assigned to the Judiciary Committee. The bill is scheduled for committee review on April 23 at 1:30 p.m.

Since this summary, the bill was amended in the Judiciary Committee and sent to the House Committee of the Whole for consideration on Second Reading.

HB 13-1296: Creation of the Colorado Civil Commitment Statute Review Committee to Study and Review Civil Commitment Statutes

On April 8, 2013, Rep. Beth McCann and Sen. Linda Newell introduced HB 13-1296 – Concerning Civil Commitment Statutes, and, in Connection Therewith, Creating the Civil Commitment Statute Review Task Force and Redefining Certain Terms Related to Civil Commitment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the civil commitment statute review task force (task force). The membership and duties of the task force are detailed.

The bill also adds a definition of “danger to self and others” and amends the current definition of “gravely disabled,” as those definitions relate to civil commitments.

On April 19, the adopted the bill on 3rd and final reading.

Since this summary, the bill was introduced in the Senate and assigned to the Finance Committee.

HB 13-1294: Confirming that the State Judicial Department is a Covered Governmental Entity Under the CGIA

On April 8, 2013, Rep. Bob Gardner and Sen. Lucia Guzman introduced HB 13-1294 – Concerning a Clarification that the State’s Judicial Department is Included within the Definition of “Public Entity” for Purposes of the “Colorado Governmental Immunity Act.”  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2012, the general assembly enacted legislation that had the inadvertent effect of removing the state’s judicial department from the definition of “public entity” for purposes of the “Colorado Governmental Immunity Act” (CGIA). The bill modifies the definition of “public entity” under the CGIA to clarify that it includes the state’s judicial department.

On April 16, the Judiciary Committee referred the bill to the full House for consideration on 2nd Reading.

Since this summary, the bill passed Second and Third Readings in the House and was introduced in the Senate, where it was assigned to the Judiciary Committee.