Three interesting new opinions

Downey v. Pa. DOC — prisoner civil rights — partial reversal — Restrepo

A formalist would say that the side that wins an appeal is the one that presented the stronger legal authority in support of their position. A legal realist would say that any opinion that contains this paragraph in its factual recitation probably will not end happily for the defendants in a prisoner-civil-rights suit:

It took nearly two months for the surgical consultation to take place. Dr. Szulborski saw Downey [the prisoner] on March 18, 2015, concluding that Downey’s right eye required an emergency procedure in one to two weeks to save his vision. Dr. Tomazic quickly approved the procedure. Despite Downey’s well-documented rapidly deteriorating vision, however, no progress was made towards scheduling his surgery for the next nine months.

The prisoner, now blind, filed suit alleging violation of his Eighth Amendment rights, but the district court granted summary judgment for the defendants on the ground that the prisoner had failed to satisfy the prisoner’s grievance-process requirements.

Today, the Third Circuit reversed in part. Interpreting the prison’s grievance policy, the court concluded that prisoners were not required to follow the normal grievance procedures in urgent situations. The court rejected the defendants’ arguments that the situation wasn’t urgent enough or that the normal procedures applied to urgent claims for money damages. The court affirmed in part, holding that claims against state-actor defendants were barred by sovereign immunity even though that defense was first raised on appeal.

Joining Restrepo were Jordan and Fuentes. Arguing counsel were Corey Mowrey of Rieders Travis for the prisoner, and Sean Kirkpatrick of the Pa. AG’s office and Kenneth Powell of Weber Gallagher for the defendants.


The court also decided two appeals on Friday, but they didn’t post because the court’s website was down.

Ramsay v. Nat’l Bd. of Medical Examiners — civil / disability — affirmance — Shwartz

The Third Circuit affirmed a district court’s order granting a preliminary injunction requiring the National Board of Medical Examiners to grant testing accommodations to a medical student with dyslexia and ADHD.

Joining Shwartz were Greenaway, Jr., and Rendell. Arguing counsel were Mary Vargas of D.C. for the student and Robert Burgoyne of Perkins Coie for the board.


Sherwin-Williams v. County of Delaware, Pa. — civil — affirmance — Hardiman

The Sherwin-Williams paint company, owners of one of this world’s worst corporate logos, sued a county in Pennsylvania, seeking declaratory and injunctive relief to keep that county from retaining lawyers and pursuing lead-paint litigation against it. Is this the kind of blog whose author opines that this suit sounds genuinely asinine, even though t was argued on appeal by a fancy lawyer? It is. The Third Circuit crisply affirmed dismissal on two alternative grounds, Article III injury-in-fact standing and ripeness.

Joining Hardiman were Ambro and Restrepo. Arguing counsel were Leon DeJulius, Jr., of Jones Day for the company and David Senoff of First Law Strategy Group for the county.