Tag Archives: Prisoner rights opinions

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.

New opinions — catching up on last week’s ten opinions, including another ACA blockbuster and several notable reversals

Last week I was on vacation. During slow periods it’s not all that rare for the Third Circuit to go a week without issuing a single published opinion. But July/August is never a slow period — that’s when clerkships typically end, so everyone is scrambling to clear the decks. Last week the court issued 10 precedential opinions, 5 on Friday alone.

And there were some big ones, including a hot-button Affordable Care Act case and reversals in criminal, habeas, immigration, and prisoner civil rights cases. But enough wind-up …

 

US v. Wrensford [July 31] — criminal — reversal in part — Shwartz

The Third Circuit held that a defendant was arrested for Fourth Amendment purposes when he was involuntarily taken to a police station and held in a cell. Seems obvious, but the district court ruled to the contrary. The court vacated his criminal conviction and remanded. The court affirmed a co-defendant’s convictions on various grounds.

Joining Shwartz were Greenaway and Fuentes. Arguing counsel were FPD Omodare Jupiter for the prevailing appellant, Martial Webster for the other appellant, and Rhonda Williams-Henry and David White for the government.

 

Haskell v. Superintendent [August 1] — habeas corpus — reversal — Ambro

In this significant habeas corpus opinion, the Third Circuit held that a petitioner who has established a reasonable likelihood that the prosecution’s knowing use of false evidence could have affected the outcome need not also show that the error was not harmless. (Or, for my fellow habeas nerds, once you clear Napue you don’t have to clear Brecht too.) On the merits, the court reversed the district court’s denial of relief. Appallingly, the district court had not even granted a certificate of appealability.

Joining Ambro were Vanaskie and Restrepo. Arguing counsel were AFPD Elisa Long for the appellant and Mark Richmond of the Erie DA’s office for the Commonwealth.

 

EEOC v. City of Long Branch [August 2] — civil procedure — reversal — Chagares

The Third Circuit summarized its decision vacating a district court ruling in an EEOC enforcement suit thus:

The EEOC raises two issues on appeal: (1) whether Long Branch is precluded from contesting the motion to enforce because it failed to exhaust its administrative remedies ***, and (2) whether the EEOC may disclose information from the noncharging parties’ employment and personnel records to Lt. Johnson ***. Despite the compelling nature of these issues, we will not reach them because of a procedural error committed by the District Court: the District Court erroneously treated the motion to enforce that the Magistrate Judge had reviewed as a nondispositive motion instead of a dispositive motion. This is a meaningful distinction under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., as the categorization of motion dictates, inter alia, the level of authority with which a magistrate judge may act on a motion and the availability and standard of review afforded by the District Court and our Court.

Joining Chagares were Ambro and Fuentes. The case was decided without oral argument.

 

Ildefonso-Candelario v. AG [August 3] — immigration — reversal — Stearns

The Third Circuit held that a conviction under Pennsylvania’s obstruction-of-justice statute, 18 Pa. Cons. Stat. 5101, is not categorically a crime involving moral turpitude because it sweeps in non-fraudulent conduct. The court firmly rejected the government’s request to remand without decision to let the BIA reconsider its ruling.

Joining Stearns (D. Mass., sitting by designation) were Jordan and Krause. Arguing counsel were Daniel Conklin of the Shagin Law Group for the petitioner and Rebecca Phillips for the government.

 

Blackledge v. Blackledge [August 3] — family — affirmance — Krause

The Third Circuit rejected a father’s appeal from denial of his petition alleging that the mother violated an international treaty by retaining custody of their son.

Joining Krause were Ambro and Nygaard. Arguing counsel for the father was former Fisher clerk M. Patrick Yingling of Reed Smith; Barbara Ernsberger of Behrend & Ernsberger argued for the mother. The opinion thanked the father’s counsel for accepting the court’s appointment in the case and for their “excellent briefing and argument.”

 

Millhouse v. Heath [August 4] — prisoner civil rights — reversal — Cowen

The mean-spirited Prison Litigation Reform Act contains a provision — the PLRA’s three strikes rule — that poor prisoners cannot qualify for the same reduced filing fees as any other poor litigants if they previously filed three or more prisoner suits that were deemed frivolous, because it’s so fair to punish people who are poor and lawyer-less for not accurately assessing the strength of their potential legal claims.

Last week, a partially divided Third Circuit panel held that a prisoner was entitled to file in forma pauperis despite having more than 3 prior suits dismissed as frivolous because (1) the number of PLRA strikes must be assessed as of the time the notice of appeal is filed and (2) dismissals without prejudice for failure to state a claim do not count as strikes. Judge Ambro disagreed on both points but would have reached the same result through equitable tolling.

Joining Cowen was Restrepo, with Ambro dissenting in part. Arguing counsel were Stephen Fogdall of Schnader Harrison for the prisoner and Timothy Judge for the government. The opinion thanked Fogdall and his Schnader co-counsel Emily Hanlon for their “excellent work” as pro bono counsel appointed by the court.

 

US v. Ferriero [August 4] — criminal — affirmance — Scirica

The Third Circuit affirmed the conviction and sentence of a New Jersey county politico convicted of violating the Travel Act, RICO, and the wire fraud statute by lobbying on behalf of commercial clients without disclosing his own financial interest. In a lengthy opinion, the court rejected various challenges to the convictions, including the defendant’s quite plausible-sounding argument that failing to disclose his interest cannot constitute making a false or fraudulent misrepresentation under the wire fraud statute. The court also rejected the defendant’s arguments relying on McDonnell v. United States.

Joining Scirica were Hardiman and Rosenthal SD Tex by designation. Arguing counsel were Peter Goldberger for the defendant and Bruce Keller for the government.

 

US v. Chapman [August 4] — criminal — affirmance — Greenaway

The Third Circuit held that a conviction for mailing a threat to injure constitutes a crime of violence under the Sentencing Guidelines. Judge Jordan concurred “to express dismay at the ever-expanding application of the categorical approach.”

Joining Greenaway were Jordan and Rendell. Arguing counsel were Ronald Krauss of the MDPA federal defender for the defendant and unfairly blocked Third Circuit nominee Rebecca Ross Haywood for the government.

 

In re: AE Liquidation [August 4] — civil — affirmance — Krause

The opinion’s introduction says it best:

This case arises from the bankruptcy and subsequent
closing of a jet aircraft manufacturer, and requires us to assess
that manufacturer’s obligation under the Worker Adjustment
and Retraining Notification (WARN) Act, 29 U.S.C. §§
2101-2109, to give fair warning to its employees before
effecting a mass layoff. On appeal, we are asked to determine
whether a business must notify its employees of a pending
layoff once the layoff becomes probable—that is, more likely
than not—or if the mere foreseeable possibility that a layoff
may occur is enough to trigger the WARN Act’s notice
requirements. Because we conclude that a probability of
layoffs is necessary, and the manufacturer has demonstrated
that its closing was not probable until the day that it occurred,
it cannot be held liable for its failure to give its employees
requisite notice. Accordingly, we will affirm ***

Joining Krause were Fisher and Greenberg. Arguing counsel were Jack Raisner of New York for the appellants and Barry Klayman of Cozen O’Connor for the appellees.

 

Real Alternatives v. Secretary DHHS [August 4] — civil — affirmance — Rendell

A sharply split Third Circuit panel held last week that a secular anti-abortion group with no religious affiliation was not entitled to the same exemption as houses of worship from the Affordable Care Act’s requirement that employer-provided health insurance include contraceptive services. The court also held that employees’ religious beliefs are not substantially burdened by the ACA’s contraception mandate. The majority answered both questions “[a]fter careful review, but without any hesitation.” A petition for certiorari seems a certainty and I sure wouldn’t bet against a grant.

Joining Rendell was Greenaway. Jordan dissented as to the rejection of the employees’ claims. Both authors are at the top of their game. Arguing counsel were Matthew Bowman of Alliance Defending Freedom for the employer and employees and Joshua Salzman for the government.

Three new opinions plus an en banc grant

In re: Zoloft — civil — affirmance — Roth

“This case involves complicated facts, statistical methodology, and competing claims of appropriate standards for assessing causality from observational epidemiological studies. Ultimately, however, the issue is quite clear.” So said the Third Circuit today, affirming a district court’s decision to exclude an expert witness in a high-stakes drug-liability case.

Joining Roth were Chagares and Restrepo. Arguing counsel were former assistant to the Solicitor General David Frederick of Kellogg Hansen for the appellants and Mark Cheffo of Quinn Emanuel for the appellees.

 

US v. Fattah Jr. — criminal — affirmance — Smith

In this latest chapter in the Chip Fattah saga, the Third Circuit ruled that while an FBI agent’s media disclosures about Fattah were wrongful, Fattah was not entitled to relief.

Joining Smith were Hardiman and Krause. Arguing were Eric Gibson for the government, Fattah for himself, and Ellen Brotman as amicus appointed by the court for Fattah. The court thanked Brotman for her “excellent advocacy” which the court noted she provided on an expedited basis.

 

Gillette v. Prosper — prisoner civil rights / jurisdiction — dismissal — Hardiman

The Third Circuit dismissed for lack of jurisdiction a prisoner’s interlocutory appeal challenging denial of his request under the PLRA that his case be decided in district court by a three-judge court.

Joining Hardiman were Chagares and Jordan. Arguing counsel were Joseph DiRuzzo III for the prisoner and Kimberly Salisbury for the warden.

 

US v. Douglas

The Third Circuit granted rehearing en banc in US v. Douglas, with oral argument “limited to the application of the enhancement for abuse of position of trust under U.S.S.G. 3B1.3.” My coverage of the now-vacated panel ruling is here — Judge Greenaway had dissented from the panel majority’s holding on this point.

Two messy new opinions

Oliver v. Roquet — civil rights / civil commitment — reversal — Krause

This appeal arose after a state psychologist recommended an unfavorable action against a civil detainee in a report that referred critically to the detainee’s pro se litigation and legal assistance for other detainees. The psychologist said the detainee’s legal work could be “counter-therapeutic” for him.

In an interlocutory appeal, the Third Circuit today held that the district court erred in denying the psychologist’s qualified-immunity motion. The court first rejected the detainee’s argument that the psychologist’s assertion of qualified immunity came too late because it was not included in her first motion to dismiss.

The court then held that the detainee’s First Amendment claim failed to adequately allege causation. A state actor’s mere consideration of protected activity normally is enough to plead retaliation in a retaliation case, but more than mere consideration of protected activity is required to state a valid retaliation claim against a mental health professional at a state institution for the civilly committed: “There must be particular facts alleged that allow the court to reasonably infer it is the protected activity itself, and not simply medically relevant behavior associated with that activity, that formed the basis of the defendant’s adverse action.”

Finally, the court alternatively held that the detainee’s asserted right was not clearly established.

Joining Krause were Ambro and Smith. Arguing counsel were David DaCosta of the NJ Attorney General’s office for the psychologist and Stephen Fogdall of Schnader as amicus counsel for the detainee. The court thanked Fogdall “for accepting this matter pro bono and for the quality of his briefing and argument in this case.”

 

Fahie v. People — criminal — affirmance — Jordan

The Third Circuit today affirmed a Virgin Islands criminal conviction. The court held that it was not an abuse of discretion for the court to issue an aiding-and-abetting instruction even though the co-defendant had pled to being an accessory after the fact, rejecting the defendant’s argument that the plea meant there was no one for him to abet.

The case was unusual in two ways. First, the Third Circuit granted certiorari to review the Virgin Islands ruling after Congress revoked the court’s cert. jurisdiction. But the court applied its prior precedent to hold that the revocation did not apply to cases that had commenced in the Virgin Islands courts before the revocation, precedent the Virgin Islands bar association decried in an amicus brief as “absurd.” Second, the court dismissed as improvidently granted a second issue on which the court had granted certiorari, concluding that the issue turned in territorial rather than federal law. A bit of a mess.

Joining Jordan were Chagares and Hardiman. Arguing counsel were David Cattie for the petitioner, Su-Layne Walker of the VI Attorney General’s office for the people, and Edward Barry for the bar association amicus.

New opinion — error to dismiss inmate’s claim that prison retaliated against him for doing his job as legal assistant

Wisniewski v. Fisher — prisoner civil rights — reversal — Vanaskie

The Third Circuit today reversed a district court’s dismissal of an inmate’s civil-rights suit.

The prisoner, Thomas Wisniewski, worked as an inmate legal aide in SCI Smithfield’s law library. In the course of helping a mentally ill inmate prepare a grievance — doing his job — Wisniewski obtained a similar grievance from another inmate to use as a model. The prison treated this as circulating a petition, which is insane. (For starters, the prison’s own guidelines defined petitions as containing 3 or more signatures.) So the prison put poor Wisniewski in restricted housing for almost 90 days for misconduct, and Wisniewski alleged that they retaliated in several other ways including firing him from his law-library job. The district court dismissed, ruling that Wisniewski failed to allege a First Amendment retaliation claim and his other claims were time-barred.

Today the Third Circuit crisply reversed, holding that the prisoner’s allegations stated a valid First Amendment claim and that the district court erred in failing to consider whether tolling during administrative exhaustion rendered his other claims timely.

Joining Vanaskie were Ambro and Scirica. Arguing counsel were Hardiman clerk (famously so) Richard Heppner Jr. of Reed Smith for the prisoner and Debra Rand of the PA DOC for the prison defendants. The opinion expressed sincere appreciation to Heppner and his Reed Smith co-counsel Patrick Yingling, a Fisher clerk, for their “excellent representation,” noting they “performed admirably” and were “of immense assistance to the Court.”

New opinion — Third Circuit rejects appeal by pretrial detainee held in administrative segregation

Steele v. Warden — prisoner civil rights — affirmance — Restrepo

A pre-trial detainee was put into administrative segregation after he was accused of threatening other detainees into using a particular bail-bond provider, and being in segregation delayed the detainee from posting his own bail. The detainee sued, alleging violation of his substantive and procedural due process rights. The district court granted summary judgment to the defendants, and today the Third Circuit affirmed. Most notably, the court held that pretrial detainees have a substantive-due-process liberty interest in exercising his bail option once bail has been set, but ruled that the detainee’s right wasn’t violated here because he was still able to access mail and contact his lawyer.

The court appointed counsel to represent the detainee on appeal and issued the opinion close to a year after oral argument. The opinion is a model of lucidity.

Joining Restrepo were Ambro and Nygaard. Arguing for the detainee was Penn law student William Stewart, while Lori Dvorak of Dvorak & Associates argued for the appellees. The court thanked Stewart and his supervising attorneys from Dechert for handling the case pro bono and for their “excellent advocacy.”

New opinion — plaintiffs failed to present evidence that Delaware’s massive ongoing failure to release its prisoners on time was “callously misguided”

Wharton v. Danberg — prisoner civil rights — affirmance — Greenaway

The Third Circuit today issued a remarkable opinion in a remarkable case, rejecting Delaware inmates’ argument that the state violated the constitution by failing to release a horrifying proportion of its inmates on time. The heart of the opinion comes near the end:

Viewing the facts in the light most favorable to Appellants, we could conclude that over-detentions are rampant in Delaware and that correctional officials are trying, albeit without great success, to tackle that challenge. So far, this is not deliberate indifference. Appellants need more to rescue their claim. They would need to show that Appellees’ efforts to improve COR so obviously miss the mark that pursuing those efforts manifests disregard for the real problem and thereby amounts to deliberate indifference. Such evidence is absent from the record.

The word “discovery” appears once in the opinion, in passing.

Joining Greenaway were Jordan and Rendell. Arguing counsel were Stephen Hampton of Grady & Hampton for the inmates and Michael McTaggart for the state.

 

New opinion — a landmark prisoner-civil-rights win in solitary-confinement case

Palakovic v. Wetzel — prisoner civil rights — reversal — Smith

The Third Circuit issued a major prisoner-rights decision today, ably summarized in its opening paragraph:

Brandon Palakovic, a mentally ill young man who
was imprisoned at the State Correctional Institution at
Cresson, Pennsylvania (SCI Cresson), committed suicide
after repeatedly being placed in solitary confinement.
His parents, Renee and Darian Palakovic, brought this
civil rights action after their son’s death. The District
Court dismissed the family’s Eighth Amendment claims
against prison officials and medical personnel for failure
to state a claim upon which relief can be granted. We
write today to clarify and elaborate upon the legal
principles that apply to Eighth Amendment claims arising
out of prison suicides. For the reasons that follow, we
will vacate the District Court’s dismissals.

The opinion chillingly documents Palakovic’s alleged suicide-risk red flags, and it notes that the complaint alleges that the prison’s ” practice for dealing with mentally ill prisoners like Brandon was to relegate them to solitary confinement.” And the court “acknowledge[d] the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement” and “the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.”

Joining Smith were Jordan and Shwartz. Arguing counsel were Bret Grote of the Abolitionist Law Center for the prisoner’s estate, Howard Hopkirk of the PA AG’s office for the defendant prison officials, and associate Cassidy Neal of Matis Baum for the defendant medical providers.

New opinions — a Title IX blockbuster and a prisoner-civil-rights reversal with a blistering reprimand for the lower court

Two opinions published today — both of them authored by Judge Fisher, both of them partial reversals in favor of civil plaintiffs, and both broadly significant.

Doe v. Mercy Catholic Med. Ctr. — civil / sex discrimination — reversal in part — Fisher

In a major Title IX opinion, the Third Circuit today ruled in favor of a medical resident whose Title IX sex discrimination claims had been dismissed by the district court. The resident alleged that her supervising doctor sexually harassed her and retaliated when she rebuffed him. The court reversed dismissal of claims for retaliation and quid pro quo and affirmed dismissal of a hostile-environment claim on statute of limitations grounds.

First, it ruled that the medical center’s residency program fell within Title IX’s scope, reading education broadly while rejecting the center’s argument that Title IX reaches only principally educational entities. The court listed features for deciding if something is an “education program or activity covered by Title IX:

(A) a program is incrementally structured through a particular course of study or training, whether full- or part-time; (B) a program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training; (C) a program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or (D) the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.

Second, the court held that Doe’s private causes of action for retaliation and quid pro quo were cognizable under Title IX, rejecting the argument that Title VII’s employment-discrimination provisions (with its elaborate administrative exhaustion requirements) were her exclusive remedy. On this point the court expressly split with the Fifth and Seventh Circuits while joining the First and Fourth Circuits. The court did not reach whether Doe’s private hostile environment claim was cognizable because it held that Doe’s was time-barred, rejecting her argument that her dismissal was part of a continuing violation.

Joining Fisher were Krause and Melloy by designation. Arguing counsel were Joshua Boyette of Swartz Swidler for Doe, Christine Monta for the government as amicus supporting Doe, and Robin Nagele of Post & Schell for the medical center.

 

Pearson v. Prison Health Svc. — prisoner civil rights — partial reversal — Fisher

After an inmate at SCI Somerset in Pennsylvania had a botched surgery for appendicitis, he sued prison and medical staff for Eighth Amendment deliberate indifference, and the district court granted summary judgment for the defendants. Today the Third Circuit ruled in the prisoner’s favor as to one of the defendants and affirmed as to the others.

The court rejected the lower court’s view that expert testimony was always necessary to establish deliberate indifference. The court ruled that lay jurors were capable of deciding that (1) a prison nurse acted with deliberate indifference when he forced the prisoner, screaming in pain, to crawl to a wheelchair to obtain treatment, and (2) delay or denial of treatment for a non-medical reason was deliberate indifference.

The court also “[r]egretfully” criticized Magistrate Judge Keith Pesto and District Judge Kim Gibson (though neither is named in the text of the opinion) for irrelevant editorializing generally to the effect that too many prisoner suits were frivolous:

When we remanded this case, we were hopeful that the Magistrate Judge and District Judge would cease making these kinds of irrelevant, categorical statements for several reasons, including that they are unnecessary and might cast our judicial system in a bad light by leading an observer to question the impartiality of these proceedings. In addition, it is antithetical to the fair administration of justice to pre-judge an entire class of litigants, and we expect courts to conduct, at a minimum, a careful assessment of the claims of each party. By failing to exhibit such an individualized inquiry, these statements disserved the important principle that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 13 (1954).

Despite our optimism, and despite our admonishment of these sorts of categorical statements, this commentary continued since we last remanded this case to the District Court. ***

As we noted in Pearson’s prior appeal and will reiterate now, Pearson suffered from two serious medical conditions, and “it does not appear . . . that he filed this lawsuit for recreational purposes or to harass prison personnel.” Pearson, 519 F. App’x at 84. It appears he filed this suit because he genuinely believes that the prison officials acted deliberately indifferent to his medical needs in violation of his constitutional rights. Whether or not he ultimately prevails, equality before the law is one of the founding principles of our government and Pearson deserves to have his case treated as carefully and thoughtfully as any other litigant’s.

While we remain convinced that the Magistrate Judge and District Judge are capable of handling Pearson’s trial without any bias, we trust that our message will be heard on this third remand and that this editorializing will cease going forward.

Extraordinary stuff.

In a footnote, the court added that district judges are responsible for magistrate judges’ reports that they adopt in their entirety, and it noted that district judges and magistrates must recuse, sua sponte, whenever their impartiality might reasonably be questioned!

Joining Fisher were Krause and Greenberg. Arguing counsel were Brandon Verdream of Clark Hill for the prisoner, and Kemal Mericli of the PA AG’s office and Kathryn Kenyon of Meyer Unkovic for the defendants.

New opinion — court rules for prisoner in speech-retaliation appeal

Mack v. Warden, Loretto FCI — prisoner civil rights — reversal — Fuentes

A divided Third Circuit panel ruled in favor on an inmate alleging violation of his rights. As the majority opinion summarized:

Mack’s allegations raise several issues of first impression in our Circuit, including (1) whether an inmate’s oral grievance to prison officials can constitute protected activity under the Constitution; (2) whether RFRA prohibits individual conduct that substantially burdens religious exercise; and (3) whether RFRA provides for monetary relief from an official sued in his individual capacity. We answer all three questions in the affirmative, and therefore conclude that Mack has sufficiently pled a First Amendment retaliation claim and a RFRA claim. We agree, however, that Mack’s First Amendment Free Exercise claim and Fifth Amendment equal protection claim must be dismissed. We will therefore affirm in part, vacate in part, and remand to the District Court for further proceedings.

Fuentes was joined by McKee; Roth dissented in part, arguing that inmates’ oral complaints should not be First-Amendment-protected speech. Arguing for the prisoner was Duke law appellate clinic student Russell Taylor (supervised by Sean Andrussier), and for the government was Jane Dattilo.

En banc court upholds habeas relief in capital case, plus two divided panels and a sentencing affirmance

Another blockbuster August day today, with a big capital-habeas en banc ruling and three panel opinions. Over 300 pages of opinion today.

Dennis v. Secretary — capital habeas corpus — affirmance — Rendell

The en banc Third Circuit today affirmed habeas corpus relief for James Dennis, holding in a landmark habeas opinion that the prosecution suppressed evidence that effectively gutted its case and that the Pa. Supreme Court unreasonably applied Brady v. Maryland when it denied relief. The 2015 panel ruling (Fisher with Smith and Chagares) had ruled for the state.

Joining Rendell were McKee, Ambro, Fuentes, Greenaway, Vanaskie, Shwartz, and Krause, and by Jordan in part. McKee concurred “to underscore the problems inherent in eyewitness testimony and the inadequacies of our standard jury instructions relating to that evidence.” Jordan concurred in part and concurred in the judgment, noting:

Every judge of our en banc Court has now concluded that the Pennsylvania Supreme Court’s contrary determination was not only wrong, but so obviously wrong that it cannot pass muster even under AEDPA’s highly-deferential standard of review. In other words, it is the unanimous view of this Court that any fairminded jurist must disagree with the Dennis I court’s assessment of the materiality and favorability of the Cason receipt. Yet somehow a majority of the Pennsylvania Supreme Court endorsed Dennis’s conviction and death sentence. The lack of analytical rigor and attention to detail in that decision on direct appeal is all the more painful to contemplate because the proof against Dennis is far from overwhelming. He may be innocent.

Fisher dissented, joined by Smith, Chagares, and Hardiman, and Hardiman also authored a dissent that Smith and Fisher joined. Arguing counsel were Amy Rohe of Reisman Karron for Dennis and Ronald Eisenberg of the Philadelphia D.A.’s office for the state.

 

Watson v. Rozum — prisoner civil rights — reversal in part — McKee

A divided Third Circuit panel today ruled in favor of a prisoner alleging a First Amendment retaliation claim.

Joining McKee was Ambro; Ambro also concurred, explaining the court’s rejection of caselaw from the Fifth and Eighth Circuits and its disavowal of prior non-precedential circuit rulings. Hardiman dissented. Arguing counsel were Kemal Mericli of the Pa. A.G.’s office for the state and former Fisher clerk Ellen Mossman of Dechert for the prisoner.

 

NAACP v. City of Philadelphia — First Amendment — affirmance — Ambro

It’s unusual enough for the same panel to issue two precedential opinions on the same day, but it’s rare indeed for the same judge to dissent in both cases. But so it was here, where Hardiman again dissented from a McKee-Ambro majority. In this case, the majority affirmed a district court ruling that Philadelphia’s policy of banning non-commercial advertising at its airport violates the First Amendment.

Arguing counsel were Craig Gottlieb for the city and Fred Magaziner of Dechert (who clerked for Rosenn) for the challengers.

 

US v. Carter — criminal — affirmance — Shwartz

The Third Circuit affirmed a district court criminal sentence applying a sentencing enhancement for maintaining a stash house. The defendant had argued he did not maintain the stash house because he did not own or rent the house and did not pay for its operation from his own funds.

Joining Shwartz were Fuentes and Restrepo. The case was decided without oral argument.

Three new opinions — antitrust, criminal sentencing, and prisoner civil rights

It’s mid-August, so clerkships are ending and opinions are issuing thick and fast. Three more today, including a significant prisoner-rights opinion.

Deborah Heart & Lung Ctr. v. Virtua Health — civil / antitrust — affirmance — Roth

A dispute between two health care providers over patient referrals led one of them to bring an antitrust suit against the other. The district court ruled for the defendant, and today the Third Circuit affirmed. The opinion begins, “In antitrust suits, definitions matter,” and the court found that the plaintiff failed to meet its own undisputed definitions of the relevant products and markets. The court stated that it wrote in order to clarify the plaintiff’s burden under Section 1 of the Sherman Act when the plaintiff doesn’t allege that the defendants have market power: such plaintiffs must show anti-competitive effects on the market as a whole.

Joining Roth were Fuentes and Krause. Arguing counsel were Anthony Argiropoulos of Epstein Becker for the appellant and Philip Lebowitz of Duane Morris for the appellees.

US v. Jones — criminal — affirmance — Hardiman

When defendants commit a crime while they are on supervised release, they get a new, revocation sentence, and the length of that sentence depends on the seriousness of the original offense. But what if the seriousness of the offense has changed between the time of the original conviction and the time of the revocation sentencing?

Jermaine Jones was sentenced back in 2000 as an armed career criminal. Since that time, the Supreme Court decided cases that Jones says would make him ineligible to be sentenced as an armed career criminal today. So when Jones violated the terms of his supervised release and faced revocation sentencing, the sentencing court had to decide how to calculate his revocation sentence now–as a career criminal or not? Jones argued that he should be sentenced today based on how his original offense would be classified today; it would be unconstitutional to sentence him as an armed career criminal now, so it would be wrong to classify him now as an armed career criminal when imposing a revocation sentence. The government argued he should be sentenced today based on how his offense was classified at the time.

Today, the Third Circuit agreed with the government and affirmed, holding that it was correct to classify Jones as an armed career criminal for purposes of calculating his revocation sentence.

Hardiman was joined by Smith (Sloviter also had been on the panel before she assumed inactive status). The case was decided without oral argument.

 

Parkell v. Danberg — prisoner civil rights — reversal in part — Chagares

A Delaware inmate fell and seriously injured his elbow. In the suit he eventually filed, he alleged a disturbing year-long ordeal of mistreatment and neglect by prison guards and health-care staff. He also alleged that his Fourth Amendment rights were violated by three-times-daily visual body cavity searches even though he had no contact with anyone. The district court granted summary judgment for the defendants.

Today in a 38-page opinion the Third Circuit reversed summary judgment on the Fourth Amendment cavity-searches claim, holding that the Fourth Amendment gives inmates a “very narrow” right to bodily privacy and that the prisoner here may be able entitled to prospective injunctive relief. The court affirmed summary judgment on his Eighth Amendment conditions-of-confinement and deliberate-indifference claims, as well as his effort to recover money damages on his Fourth Amendment claim, essentially because the pro se inmate had failed to marshal enough proof about who was actually responsible.

Joining Chagares were Fisher and Cowen. Arguing counsel for the inmate were Suzanne Bradley and former Barry clerk Brendan Walsh of Pashman Stein, who the court thanked for the quality of their pro bono representation. Counsel for the defendants were Devera Scott of the Delaware AG’s office and Chad Toms and Daniel Griffith of Whiteford Taylor.

New opinion — prison’s failure to timely respond to an inmate’s grievance opens door to the inmate’s federal suit

Robinson v. Superintendent — prisoner civil rights — reversal — Hardiman

A unanimous Third Circuit panel today held that a  Pennsylvania prison’s repeated failure to respond to an inmate’s grievance rendered its administrative remedies “unavailable” under the Prison Litigation Reform Act, reversing the district court and allowing the inmate’s civil-rights suit to proceed. The court explained:

The District Court concluded that SCI Rockview’s * * * response to Robinson—which was provided more than four months late and six weeks after Robinson filed suit, and did not even address the correct incident— rendered the prison’s administrative remedies “available” to him under the PLRA. We disagree.

The opinion had some pointed words for the prison:

If prisons ignore grievances or fail to fully investigate allegations of abuse, prisoners will feel disrespected and come to believe that internal grievance procedures are ineffective. If prisoners do not believe they will get a response from prison administration, they will be more likely either to bypass internal procedures entirely and file a complaint in federal court or use a federal lawsuit to prod prison officials into a response, thus taxing the judicial resources that Congress meant to conserve by passing the PLRA. Accordingly, we hope that the events that transpired in this case are not reflective of the way in which SCI Rockview responds to inmate grievances generally.

Joining Hardiman were Jordan and Greenaway. Arguing counsel for the prisoner was John Jacobus of Steptoe & Johnson (a Barry district court clerk) and Howard Hopkirk of the state AG’s office for the prison. The opinion thanked the Steptoe lawyers for handling the appeal pro bono.

New opinion — Third Circuit reaffirms the “picking off” exception to mootness

Richardson v. Director Federal BOP — inmate civil rights / class action — reversal — Smith

Class-action plaintiffs won a major victory in the Third Circuit today, as the court reaffirmed a rule that makes it harder for defendants to moot impending class-action suits by picking off the plaintiffs before they can seek class certification.

First, the facts. An inmate at USP Lewisburg housed in that prison’s “Special Management Unit” alleged that the prison had an unwritten policy of increasing inmate-on-inmate violence by housing hostile SMU inmates together and painfully restraining inmates who refused a hostile cellmate. Specifically (record cites omitted):

In support of this claim, Richardson [the inmate plaintiff] explains how—after seven months of living with a compatible cellmate—corrections staff asked him to “cuff up” on the cell door so that a new inmate could be transferred into his cell. Richardson alleges that this inmate, known among the prison population as “the Prophet,” had attacked over twenty former cellmates.  Richardson refused to “cuff up” because he did not want to be placed with “the Prophet.” Corrections staff then asked if Richardson was refusing his new cellmate, and he replied that he was. After taking “the Prophet” away, corrections staff returned thirty minutes later with a Use of Force team and asked Richardson if he would submit to the use of restraints. Richardson complied.

Richardson was then taken down to a laundry room where he was stripped, dressed in paper clothes, and put in “hard” restraints. Next, he was locked in a cell with another prisoner (who was also in hard restraints) and left there for three days before being transferred yet again. All told, Richardson alleges that he was held in hard restraints for nearly a month, was forced to sleep on the floor for much of that time, and frequently was refused both showers and bathroom breaks. Richardson also claims that there have been at least 272 reports of inmate-on-inmate violence at USP Lewisburg between January 2008 and July 2011 and that dozens of other inmates have suffered treatment similar to his as a result of this unwritten practice or policy.

The inmate sued for damages and injunctive relief and sought class certification. The district court denied certification on ascertainability grounds, and the inmate appealed. The prison argued that the claims for injunctive relief were moot because they moved the inmate out of the SMU after he sued and before he sought class certification. The prison also argued that all the named defendants had retired or changed jobs and that this too mooted any claim for injunctive relief.

Today, the Third Circuit reversed, rejecting both of the prison’s mootness arguments in a thorough, 44-page opinion. In the opinion’s most important holding, the court reaffirmed the “picking off” exception to mootness, which bars defendants from dodging class suits by mooting named plaintiffs before they have a fair opportunity to seek class certification and reduces premature certification motions.

Joining Smith were Hardiman and Nygaard. Arguing counsel were Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project for the inmate and Michael Butler for the prison.