Five new opinions from the end-of-summer opinion surge

This post covers the precedential opinions issued August 29.

Parker v.Montgomery Co.  Corr. Facility — prisoner civil rights — denial — Smith

I detest the Prisoner Litigation Reform Act. This opinion magnifies the shabby unfairness of the PLRA, so I detest its result and I hope (with no optimism) that the Supreme Court or Congress fixes it.

While I believe all that, I also believe this: this opinion is superb, a near-perfect model of clarity and restraint. It is a crisp counter-punch to the cynics and the “politicians in robes” federal-judge-bashers. I deplore its holding as a policy matter, but, given controlling law, its ruling is probably correct and without a doubt reasonable.

Under the PLRA’s three-strikes rule, an indigent prisoner who has filed three actions or appeals that were deemed “frivolous, malicious, or fail[] to state a claim upon which relief may be granted” no longer qualifies to proceed in forma pauperis. That means that, unlike all other poor litigants, they must pre-pay the full filing fees. The current fee for one Third Circuit appeal is $505, or over 2600 hours of income for a PA inmate earning 19 cents an hour.

The issue in this case is whether an inmate may appeal IFP from a district court imposing a third strike. The court held that, given the language of the statute and a unanimous 2015 Supreme Court case interpreting it, he may not appeal IFP from his third strike, disagreeing with the Solicitor General and splitting with the Ninth Circuit.

Joining Smith were Fuentes and Stark D. Del. by designation. Arguing counsel were Ryan Becker of Fox Rothschild for the prisoner and Philip Newcomer for the county. The panel extended its gratitude to Becker and his co-counsel Peter Buckley for “donating their time and talent in accepting this pro bono appointment.”

 

Davenport v. Borough of Homestead — civil rights — partial reversal — Fisher

Late one night, a driver ran a red light and then did not pull over for police. Police followed him, as he drove into Pittsburgh, never exceeding 45 miles per hour and jeopardizing no one. The police sergeant called off the low-speed pursuit, but instead several off-duty police officers deployed a spike strip in an area filled with pedestrians. After the red-light-runner swerved out of his lane to avoid the spike strip, several officers opened fire. A pedestrian was struck in the back and the driver’s mother, a passenger in the car, was shot in the head. The mother sued the officers for using excessive force, the officers asserted qualified immunity, and the district court denied the officer’s motion.

The Third Circuit reversed, holding that no reasonable juror could find for the mother because of the heavy pedestrian presence and the driver’s swerving and, alternatively, because the unconstitutionality of the officer’s actions wasn’t clearly established. Ugh.

Joining Fisher were Hardiman and Roth. Arguing counsel were Shane Haselbarth of Marshall Dennehey for the officers and J. Kerrington Lewis Sr. of Lewis Lewis for the mother.

 

NLRB v. New Vista Nursing & Rehab. — labor — reversal — Smith

The Third Circuit rejected an employer’s challenges to the NLRB’s power to act based on various grounds including recess appointments of its board members. On the merits, the court vacated the NLRB’s order for applying the wrong test to decide whether the nurse employees were supervisors and thus unable to unionize.

Joining Smith was Fisher in full and Greenaway in part; Greenaway dissented on the merits issue. The case was decided without oral argument despite impressive counsel and an amicus.

 

Norfolk Southern Railway v. Pittsburgh & W. Va. R.R. — contract — affirmance — Vanaskie

The Third Circuit affirmed a district court’s grant of summary judgment in a dispute over interpretation of a railroad lease.

Joining Vanaskie were Ambro and Scirica. The case was decided without oral argument.

 

Bamaca-Cifuentes v. AG — immigration — affirmance — McKee

The Third Circuit rejected an immigration petition for review, holding that 8 CFR 1003.2(c)’s timebar applies to motions to reopen removal under the Convention Against Torture.

Joining McKee were Cowen and Fuentes. The case was decided without oral argument.

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