Circuit Watcher

06-1626 Blair v. City of Worcester
STAHL, Senior Circuit Judge. Plaintiffs-appellants Brandon S. Blair and Richard N. Tousignant (”plaintiffs”) appeal the district court’s dismissal of two separate actions in favor of defendants City of Worcester, Massachusetts (”City”), former Worcester Chief of Police James Gallagher, and Worcester Police Officers Daniel Dowd, Thomas Dowd, Thomas C. Duffy, Falcone¹, Edward McGinn, James Moore, Jose Ortiz, Jonathan Thomas, and Peter Towler (collectively, “defendants”).² The plaintiffs, in separate complaints that were later consolidated, alleged that they were attacked and beaten by Worcester police officers, for which they sought recovery against the defendants under myriad legal theories. In an initial action, the district court granted the defendants’ motions to dismiss, without prejudice, for failure to perfect service of process. After the plaintiffs refiled their claims in a second action, the district court granted the defendant officers’ motions to dismiss for failure to state a claim, holding that the matter was time-barred. We affirm in part, reverse in part, and remand for further proceedings. … Blair v. City of Worcester.

1. The first name of Officer Falcone is unclear. [↩]
2. We note that the City of Worcester, Chief Gallagher, and Officer Thomas were not named in the second action. Moreover, the plaintiffs voluntarily dismissed Falcone from the second action on August 29, 2006. Finally, the plaintiffs have abandoned their claims with respect to Chief Gallagher and the City. Where these distinctions matter, we refer to the remaining defendants as the “defendant officers.” [↩]

07-1605 Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto
Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. This is an appeal from the district court’s dismissal of plaintiff’s complaint for lack of subject matter jurisdiction.
.
The complaint was brought by Alberto San, Inc., an owner of a substantial interest in an office condominium, against the board and other owners of the condominium. The complaint alleged that a Puerto Rico statute, which decreased plaintiff’s original voting power in the condominium association, violated plaintiff’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. … We thus remand with instructions to revise the judgment to dismiss the federal claim with prejudice, to dismiss without prejudice the Puerto Rico law claim for unjust enrichment, and to deny the defendants’ motion for award of attorneys’ fees. Costs are awarded to the defendants. So ordered. Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto.

07-1479 U.S. v. Soares
Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.
TORRUELLA, Circuit Judge. Michael Soares was the passenger in a car that the police stopped in a heavy crime area, late at night, for driving without headlights. During the course of the stop, Soares was removed from the car by the police and pat-frisked. A loaded hand-gun was found on his person. Soares argues that the police pat-frisked him in violation of the Fourth Amendment. Soares’s motion to suppress the hand-gun was denied by the district court, and he entered a conditional plea of guilty to being a felon in possession of a hand-gun under 18 U.S.C. § 922(g)(1). He now appeals the district court’s denial of his motion to suppress. After careful consideration, we affirm. … U.S. v. Soares.

07-1244 U.S. v. Girouard
Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. Margaret Girouard was convicted by a jury of one count of consumer product tampering in violation of 18 U.S.C. § 1365. On appeal, she claims the empanelment of the jury that convicted her was tainted by religious discrimination in violation of the Constitution. The district court implicitly found that Girouard had failed to establish a prima facie case that the prosecutor’s peremptory strike was motivated by discriminatory animus. Finding no clear error in this determination, we affirm the conviction. … U.S. v. Girouard.

07-2227 Fields v. Shelter Mut. Ins. Co.
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Beam, Author, with Bye and Gruender, Circuit Judges]
Civil Case - employment discrimination. District court did not err in concluding employee failed to produce evidence that employer treated similarly situated employees differently. Other employees were not similarly situated. Grant of summary judgment to employer is affirmed.

06-3842 Seymour v. City of Des Moines
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Wollman, Author, with Bright and John R. Gibson, Circuit Judges]
Civil Case - civil rights - qualified immunity. Grant of summary judgment on basis of qualified immunity to City and police officers who detained father during child death investigation is affirmed. Although detention was not supported by a reasonable suspicion of criminal activity and thus was unreasonable, officer made a reasonable mistake, as officers thought the detention would be fairly unintrusive and useful under the circumstances. Officers had a reasonable belief that detention was not too lengthy or intrusive. Officers thus are entitled to qualified immunity as to the detention and the length thereof. The City is also not liable, as the procedures adopted by the City do not violate federal law or direct its employees to do so. The procedures are investigative techniques to be used where appropriate and City did not fail to train officers in the proper exercise of their discretion. Defendants are entitled to emergency response immunity under state law for state law claims. John R. Gibson dissents.

05-55829 Pierce v. County of Orange
Before: Betty B. Fletcher, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.
B. FLETCHER, Circuit Judge: In 2001, plaintiffs-appellants Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, and Laurie D. Ellerston—pretrial detainees in Orange County’s jail facilities—initiated Pierce v. County of Orange, No. 05-55829 (D. Ct. No. 01-981), a class action suit against the County of Orange and Michael S. Carona, the county’s sheriff and agent.¹ Seeking relief under 42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights, plaintiffs contend, in essence, that the Orange County jails are operated in an unconstitutional manner, depriving them of opportunities for exercise, unduly limiting their access to common areas, and impermissibly restricting their ability to practice religion. Plaintiffs further assert that they have been deprived of a number of the federal rights previously recognized in Stewart v. Gates, 450 F. Supp. 583 (C.D. Cal. 1978) (“Stewart”)—a decision and resulting injunctive orders (“the Stewart orders” or “the Stewart injunction”) that established standards for pretrial detention in Orange County jails. The plaintiffs seek relief for the same injuries under the California Constitution, as well as Title 15 of the California Code of Regulations (which sets minimum standards for county jails) in violation of § 815.6 of the California Government Code, and breach of § 54.1 of the California Civil Code. Finally, the plaintiffs in Pierce assert an equal protection claim under § 1983 based on the denial of equal treatment to disabled detainees, and they advance a separate claim for violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., alleging noncompliant jail facilities and denial of access to programs and services available to non-disabled detainees. On appeal, the plaintiffs also challenge a number of the district court’s pretrial procedural and evidentiary rulings.
.
After a six day trial, the district court found that the plaintiffs had failed to establish any constitutional injury giving rise to relief under § 1983. The district court went on to find that the fourteen Stewart orders at issue were no longer necessary, and ordered them all terminated pursuant to the Prison Litigation Reform Act (“PLRA”),².)) 18 U.S.C. § 3626(b)(3). The district court likewise rejected plaintiffs’ equal protection and ADA claims, finding that although the County was not in “full ADA compliance, [ ] it can reasonably be expected to move toward full compliance.”
.
Having conducted a thorough review of the extensive pretrial and trial record, we affirm in part and reverse in part. We affirm the district court’s pre-trial and evidentiary rulings challenged by the plaintiffs; the district court did not abuse its discretion in its pre-trial management of the case or its decisions related to the admission of evidence. On the merits, we affirm the district court’s termination of nearly all of the fourteen Stewart orders at issue. Two of those orders, however, which secure inmates housed in administrative segregation some minimal access to religious services and exercise, may not be terminated. The district court clearly erred in its finding that these two orders are unnecessary to correct a current and ongoing violation of a Federal right. We likewise conclude that, because of physical barriers that deny disabled inmates access to certain prison facilities (bathrooms, showers, exercise and other common areas), and because of disparate programs and services offered to disabled versus nondisabled inmates, the County is in violation of the ADA. … Pierce v. County of Orange.

1. Plaintiffs’ claims against Carona were dismissed, leaving the County as the sole defendant-appellee involved in this consolidated appeal. In a separate order, we grant Carona’s motion to dismiss the plaintiffs’ appeal as untimely with respect to him. [↩]
2. Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified at 11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2000); 42 U.S.C. §§ 1997a-1997h (2000 [↩]

07-2028 U.S. v. Hernandez-Hernandez
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge. At a bar in Palomas, Mexico, Alfredo Hernandez-Hernandez, a Mexican citizen twice deported from the United States, consumed a sufficient amount of alcohol and marijuana to blackout. The next thing he knew, Mr. Hernandez was in the United States without any recollection how he got there and, in short order, arrested for illegally reentering the country. Today, we are asked to decide whether the district court’s decision to exclude from trial evidence of Mr. Hernandez’s intoxication and resulting amnesia violated his constitutional right to present a defense. We hold that it did not, and so affirm the district court’s judgment. … U.S. v. Hernandez-Hernandez.

Abdullahi v. Prada USA Corp.
Before POSNER, FLAUM, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff was a salesperson at a Prada store, was fired, and has sued Prada for violating Title VII of the Civil Rights Act of 1964 and also 42 U.S.C. § 1981. The suit charges, under both statutes, discrimination and retaliation. The district judge dismissed the suit for failure to state a claim.
.
The principal issue is the meaning of “race” in section 1981, which provides, so far as relates to a case of employment discrimination, that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” The plaintiff’s Title VII claims, with (as we’ll see) one exception, are time-barred, but not her section 1981 discrimination and retaliation claims. The judge thought them barred for a different reason—that they did not charge racial discrimination. Her original complaint did, along with discrimination on the basis of national origin (she was born in Iran) and religion (Muslim). But in her amended complaint (which like the original one was on a standard complaint form for employment discrimination supplied by the Northern District of Illinois and used mainly by unrepresented plaintiffs, such as the plaintiff in this case, and which has boxes, each for a different type of discrimination, that the plaintiff can place a check mark in), unlike her original complaint, only the “national origin” and “religion” boxes were checked. There is also a box marked “color,” which was not checked in either complaint. …the dismissal of the Title VII post-employment retaliation claim and of the section 1981 claims is reversed and the case is remanded for further consideration of all those claims. The dismissal of the remaining claims is affirmed. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Abdullahi v. Prada USA Corp.

07-1132, 07-1152 U.S. v. Fiasche
Before FLAUM, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Two Antonios—Vitagliano and Fiasche—entered conditional guilty pleas to charges that they conspired to possess, with intent to distribute, various controlled substances, namely, methylenedioxy-methamphetamine (MDMA or ecstasy), methylenedioxy-amphetamine (MDA), and marijuana. They now appeal their convictions, arguing that their motions to suppress evidence were wrongly denied. … The motions to suppress were correctly denied and the judgments of conviction are AFFIRMED. U.S. v. Fiasche.

06-4125 Cheelios v. Heavener
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. James Chelios filed this action under 42 U.S.C. § 1983 against Lindsey Heavener, a City of Joliet police officer, David Gerdes, the police chief, and the City of Joliet (collectively, the “defendants”). He alleges that the defendants violated his Fourth and Fourteenth Amendment rights by unlawfully arresting him and using excessive force to effectuate the arrest. The complaint also includes a battery claim based on Illinois law. The district court granted the defendants’ motion for summary judgment. Mr. Chelios timely filed a notice of appeal.
.
For the reasons set forth in this opinion, we reverse the judgment of the district court and remand the case for further proceedings. … Cheelios v. Heavener.

06-2054 King v. Ambs
Before: ROGERS and COOK, Circuit Judges; O’MALLEY, District Judge.¹
ROGERS, Circuit Judge. This is an appeal from summary judgment entered in favor of a police officer in a § 1983 action. Officer Kevin Ambs was questioning a third party, Nicholas Klein, when plaintiff Sean King told Klein not to speak to the officer. After King had twice told Klein not to talk to the officer, Officer Ambs threatened to arrest King if he said “one more word.” King told Klein a third time not to speak to the officer, at which point Officer Ambs arrested King. Relying on Houston v. Hill, 482 U.S. 451 (1987), King argues that the arrest violated his First and Fourth Amendment rights. Officer Ambs argues that the arrest did not violate the Constitution and that he is entitled to qualified immunity. The district court granted Officer Ambs’ motion for summary judgment and held that King’s interference with Officer Amb’s investigation provided probable cause for the arrest. We affirm the district court’s judgment. … King v. Ambs.

1. The Honorable Kathleen McDonald O’Malley, United States District Judge for the Northern District of Ohio, sitting by designation. [↩]

07-5381 Dunlap v. TVA
Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.¹
BOYCE F. MARTIN, JR., Circuit Judge. David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority. The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, concluding that the TVA’s subjective hiring processes permitted racial bias against both Dunlap and other black job applicants. The TVA now appeals, arguing that the district court erred in each of these analyses. We find that although the district court was correct in finding disparate treatment, the proof was insufficient for a finding of disparate impact. We therefore AFFIRM on the disparate treatment claim, REVERSE on the disparate impact claim, and AFFIRM the court’s award of damages and fees. … Dunlap v. TVA.

1. The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. [↩]

06-1041 Rweyemamu v. Cote
Before: CARDAMONE, WALKER, and STRAUB, Circuit Judges.
Appeal from a judgment of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge) concluding that the “ministerial exception” to Title VII barred plaintiff’s suit and granting defendants’ motion to dismiss for lack of jurisdiction. We hold that Title VII is unconstitutional as applied in this case and that the ministerial exception bars plaintiff’s claim. AFFIRMED.
.
JOHN M. WALKER, JR., Circuit Judge: Alleging that the Roman Catholic Diocese of Norwich, through its Bishop, misapplied canon law in denying him a requested promotion and, ultimately, in terminating him, Father Justinian Rweyemamu, an African-American Catholic priest, claims racial discrimination in a Title VII suit against the Bishop and the Diocese. After the district court dismissed the suit pursuant to the “ministerial exception,” Father Justinian appealed. The question we must decide is whether, under the First Amendment, Title VII is unconstitutional as applied in this case. In reaching this constitutional question, we distinguish this case from our decision in Hankins v. Lyght, 441 F.3d 96, 99 (2d Cir. 2006), which held that a federal statute, the Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb, 2000bb-1 to -4, governed the merits of an age discrimination action against a church. … Rweyemamu v. Cote.

06-30596 U.S. v. Davenport
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
GOULD, Circuit Judge: Winston Davenport appeals the district court’s denial of Davenport’s motion to withdraw his guilty plea and the sentence that the district court imposed on him for one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district court denied Davenport’s motion to withdraw his guilty plea, Davenport received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count.
.
In this opinion we address whether Davenport’s conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and we determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment’s prohibition on double jeopardy. We reverse and remand to the district court for further proceedings consistent with this opinion. … U.S. v. Davenport.

1. Davenport’s other claims relating to the denial of his motion to withdraw his guilty plea and to his sentence are the subject of a separate, unpublished memorandum disposition filed contemporaneously with this opinion. [↩]

07-5431 U.S. v. Urrieta
Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Jose Eduardo Urrieta appeals the district court’s denial of his motion to suppress evidence. During a routine traffic stop, Deputy Sheriff Lee Young detained Urrieta beyond the time reasonably necessary to issue a citation, primarily because the officer mistakenly believed that Urrieta was not allowed to drive in Tennessee with a Mexican driver’s license. Deputy Young claims that, during the course of the traffic stop, he became suspicious that Urrieta was transporting drugs. Eventually Urrieta gave Deputy Young written consent to search his vehicle. The deputy discovered no drugs, but found three handguns and several fraudulent identification cards. Finding that Deputy Young had a reasonable suspicion to extend the detention and that Urrieta’s consent was voluntary, the district court denied Urrieta’s motion to suppress. For the reasons set forth below, we REVERSE the judgment of the district court. … U.S. v. Urrieta.

07-5230 Arendale v. City of Memphis
Before: SILER, CLAY, and COOK, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Michael Arendale is a white police officer employed by the Memphis Police Department. He appeals the district court’s grant of summary judgment in favor of Defendant City of Memphis (“The City”) in this civil rights suit brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. For the reasons that follow, the district court’s decision granting summary judgment in favor of the City is AFFIRMED. … Arendale v. City of Memphis.

07-5648 Almontaser v. New York City Dep’t of Educ.
NEWMAN , WINTER, AND B.D. PARKER, Circuit Judges.
Before: Appeal from an order of the United States District Court for the Southern District of New York (Stein, J.), denying a motion for a preliminary injunction. AFFIRMED. … Almontaser sued, alleging, inter alia, retaliation in violation of her First Amendment rights and infringement of her Fourteenth Amendment right to due process. She moved for a preliminary injunction: 1) requiring the DOE to “afford[] [her] a full and fair opportunity to be reviewed and considered for the position of [permanent] principal at [KGIA]” according to the applicable hiring regulations by a “disinterested person,” and 2) “enjoining and restraining defendants from proceeding pursuant to [these regulations] or to otherwise select, assign, or appoint a principal at [KGIA] until [she] is afforded such consideration.” See Fed. R. Civ. P. 65. After a two-day hearing, the district court denied the application. Almontaser appealed. … Almontaser v. New York City Dep’t of Educ..

07-30011 U.S. v. Soto
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The petition for panel rehearing is GRANTED. The memorandum disposition filed on November 28, 2007, is withdrawn and the Clerk is ordered to file the attached opinion in its place. New petitions for rehearing and petitions for rehearing en banc may be filed.
.
PER CURIAM: Defendant Jose Martin Soto appeals his conviction for possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a). He argues that the district court violated Carter v. Kentucky, 450 U.S. 288 (1981), and James v. Kentucky, 466 U.S. 341 (1984), by failing to give his requested instruction that the jury make no adverse inference from his constitutionally protected choice not to testify. We hold that any error was harmless beyond a reasonable doubt. We also reject Defendant’s other challenge to the jury instructions. We therefore affirm. … U.S. v. Soto.

07-11657 Rioux v. City of Atlanta
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,¹ District Judge.
ALTONAGA, District Judge: The issues in this appeal, a civil rights action raising claims of race discrimination, are whether the trial court erred in granting summary judgment in favor of Appellees, Defendants below, Lynette Young (“COO Young”) and Dennis L. Rubin (“Rubin”), by misapplying the summary judgment standard to the facts presented and on the basis of Appellees’ qualified immunity. While we agree with Appellant, Plaintiff below, Gerard Rioux (“Rioux”), that he presented a prima facie case of discrimination and showed sufficient evidence of pretext, we find that he has not shown Defendants violated clearly established federal law, and we affirm. … Rioux v. City of Atlanta.

1. Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of Florida, sitting by designation. [↩]

06-3251 Metzger v. Illinois State Police
Before RIPPLE, MANION, and WOOD, Circuit Judges.
MANION, Circuit Judge. Linette Metzger sued the Illinois State Police (“State Police”) alleging that when it denied her promotions it violated Title VII by retaliating against her for having previously filed a sex discrimination suit against it. The district court granted summary judgment in favor of the State Police. Metzger appeals, and we affirm. … Metzger v. Illinois State Police.

07-5942 Carter v. Burns
Middle District of Tennessee at Nashville
Before: MARTIN and NORRIS, Circuit Judges; STAMP, District Judge.¹
BOYCE F. MARTIN, Circuit Judge. John E. Carter, a Tennessee prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
.
Carter brought this § 1983 action against fourteen judges and justices of the Tennessee Criminal Court, Tennessee Court of Criminal Appeals, and Tennessee Supreme Court in their official capacities. Carter sought a declaratory order that the State of Tennessee is constitutionally mandated to provide him with an adequate corrective process to bring a constitutional challenge to his convictions following the clarification of the “premeditation” and “deliberation” elements of first-degree murder in State v. Brown, 836 S.W.2d 530, 537-43 (Tenn. 1992). Since the Brown clarification, Carter has filed numerous habeas corpus and other post-conviction challenges to his convictions in state court, in which his Brown-based constitutional claims have been rejected as not cognizable in the type of proceeding in which he brought them or as barred by the statute of limitations. According to Carter, the Tennessee statutes governing collateral review, Tenn. Code Ann. §§ 29-21-107, 40-26-105, 40-30-107, and 40-30-117, “facially and/or as enforced and applied,” are unconstitutional under the Eighth and Fourteenth Amendments because these statutes deprive him of all opportunity for judicial review and redress of his Brown-based constitutional claims. …the district court’s opinion is affirmed in part and vacated in part, and this case is remanded for further proceedings. Carter v. Burns.

1. The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District of West Virginia, sitting by designation. [↩]

06-4457 People Against Police Violence v. City of Pittsburgh
BEFORE: RENDELL and STAPLETON, Circuit Judges, and IRENAS,¹ District Judge
STAPLETON, Circuit Judge: In this appeal we review a District Court’s order awarding attorneys’ fees to plaintiffs pursuant to 42 U.S.C. § 1988(b). Plaintiffs brought this lawsuit to challenge the constitutionality of the City of Pittsburgh’s (“City’s”) ordinance regulating expressive activities in public forums. Plaintiffs’ complaint sought declaratory and permanent injunctive relief; plaintiffs also filed a motion for interim injunctive relief. The District Court granted plaintiffs’ motion and issued a preliminary injunction which prohibited the City from enforcing the challenged ordinance and imposed temporary procedures to govern the issuance of permits for expressive activities in public spaces until the City passed a new ordinance. The District Court also directed the parties to meet and confer regarding the City’s proposals to revise the ordinance and supervised that process as disputes arose. The Court lifted the preliminary injunction and closed the case only after the City passed a revised ordinance which, the parties agreed, corrected all of the alleged constitutional infirmities of the challenged ordinance.
.
Although several of our sister Courts of Appeals have confronted the question, this appeal requires us to determine for the first time whether 42 U.S.C. § 1988 allows a plaintiff to be the “prevailing party” when it achieves relief on the merits of its claims in the form of a preliminary injunction, but does not secure a final judgment in its favor. Under the circumstances of this case, we find that it does. Because we conclude that plaintiffs were the “prevailing party” in this litigation and that the District Court’s fee award was reasonable, we will affirm the order of the District Court. … People Against Police Violence v. City of Pittsburgh.

1. Hon. Joseph Irenas, Senior District Judge for the District of New Jersey, sitting by designation. [↩]

06-3217 Ent. Software Ass’n v. Swanson
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Wollman, Author, with Smith and Benton]
Civil case - Minnesota Restricted Video Games Act. The district court’s grant of a permanent injunction against the enforcement of the Minnesota Restricted Video Games Act (Section 325I.06 of the Minnesota Code] which prohibits minors from purchasing or renting video games bearing a “Mature” or “Adult Only” rating is affirmed; under this court’s precedents, violent video games are protected free speech and restrictions on their access are subject to a strict scrutiny analysis; here, the state failed to provide incontrovertible proof of a causal connection between exposure to the violence depicted in the games and subsequent psychological dysfunction, and such a high level of proof is required under the strict scrutiny analysis.

07-1430 Atanus v. Perry
Before RIPPLE, MANION and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Susanne Atanus filed this action in the district court against her employer, Stephen A. Perry, Administrator of the General Services Administration (“GSA”). Ms. Atanus’ complaint alleges that the GSA discriminated against her on the basis of her race, color, religion, gender and national origin, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Her complaint also includes a Title VII retaliation claim and a claim of age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The district court granted the GSA’s motion for summary judgment on all claims. Ms. Atanus timely filed a notice of appeal. For the reasons set forth in this opinion, we affirm the judgment of the district court. … Atanus v. Perry.

06-1515 Habecker v. Town of Estes Park
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
LUCERO, Circuit Judge. David Habecker is a former Trustee of the Town of Estes Park, Colorado (“Town”) and a self-described atheist. After he refused to stand and recite the Pledge of Allegiance at meetings of the Town Board of Trustees (“Board”), several Town citizens organized a successful campaign to recall him from office. Habecker then brought this federal civil rights suit against the Town and members of the recall committee, alleging violations of the First Amendment and Article VI of the Constitution. Concluding that Habecker lacked standing, that his claims were moot, and that he failed to allege a state action, the district court granted summary judgment to the defendants. We agree that we lack jurisdiction over all claims and AFFIRM. … Habecker v. Town of Estes Park.

07-1800 Fischer v. Avanade, Inc.
Before, POSNER, FLAUM, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff Barbara Fischer was an employee at Avanade, Inc. from May 2001 until her resignation in October 2005. During the course of her employment, Fischer was passed over on multiple occasions for a promotion to Delivery Management Practice Director (“Director”) at the company. In 2005, Fischer brought a lawsuit against Avanade under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging gender discrimination based upon a failure to promote and retaliation in the form of constructive discharge. On June 12, 2006, Defendant filed a motion for summary judgment, which the district court granted on both claims. Fischer appeals this decision. For the reasons discussed below, we reverse with respect to Plaintiff’s failure to promote claim and affirm on Plaintiff’s retaliation claim. … Fischer v. Avanade, Inc.

06-11351 U.S. v. Burgest
Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and STORY,¹ District Judge.
DUBINA, Circuit Judge: Appellant Earl Burgest (“Burgest”) appeals his convictions on two counts of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Burgest contends that the district court erred by admitting into evidence his post-arrest statement given to federal authorities after he waived his Miranda² rights but while he had retained counsel for a pending state drug charge. Burgest’s challenge presents an issue of first impression in this circuit: whether the dual sovereignty doctrine³ applies to the Sixth Amendment right to counsel. Based on the following discussion, we join the majority of circuits and hold that the dual sovereignty doctrine applies in the Sixth Amendment context. Because the drug offenses violated the laws of separate sovereigns, the state and federal offenses are not the same for purposes of the Sixth Amendment right to counsel. Thus, Burgest’s right to counsel had not attached to his uncharged federal offenses at the time he made his incriminating statements. Accordingly, we conclude that the district court did not err in admitting Burgest’s post-arrest statement into evidence, and we affirm his convictions. … U.S. v. Burgest

1. Honorable Richard W. Story, United States District Judge for the Northern District of Georgia, sitting by designation. [↩]
2. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). [↩]
3. The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’” Heath v. Alabama, 474 U.S. 82, 88, 106 S. Ct. 433, 437 (1985) (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142 (1922)). [↩]

06-55517 Porter et al v. Jones et al
Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Ricardo S. Martinez, District Judge.¹
ORDER: Judges Fisher and Clifton voted to deny the petition for rehearing en banc and Judge Martinez so recommends. … The petition for rehearing en banc, filed August 27, 2007, is denied. …
.
KLEINFELD, Circuit Judge, with whom Circuit Judges O’SCANNLAIN and BEA join, dissenting from denial of rehearing en banc:
.
I respectfully dissent.
.
This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer and cigars, the buyers offered promises. The special twist, a very important one, was that the purpose of the scheme was to effectuate what amounted to people voting in states other than their own. The not very special twist is that instead of standing around the polling place to buy votes, or chartering buses to bring voters to other states, the scheme used internet sites to enable people to exchange promises. The deals were in the form, “if you promise to vote for my preferred candidate in your state, I will promise to vote for your preferred candidate in my state.” …Porter et al v. Jones et al.

1. The Honorable Ricardo S. Martinez, United States District Judge for the Western District of Washington, sitting by designation. [↩]

06-35068 Alvarez v. Hill
Before: Raymond C. Fisher, Ronald M. Gould and Sandra S. Ikuta, Circuit Judges.
FISHER, Circuit Judge: We revisit in this appeal the longstanding principle that federal complaints plead claims, not causes of action or statutes or legal theories. Blackie Alvarez (“Alvarez”) brought suit alleging that prison officials substantially burdened his religious exercise by denying him various accommodations. Those officials (“appellees”) now insist that Alvarez’s failure to specifically plead in his complaint a violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), see 42 U.S.C. § 2000cc-1, bars his argument that the district court erred in not analyzing his religious exercise claims under RLUIPA, which establishes a more protective standard than does the First Amendment. They are plainly incorrect. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part and remand. … Alvarez v. Hill.

06-35262 Lanier v. City of Woodburn
Before: Pamela Ann Rymer and Richard A. Paez, Circuit Judges, and Cormac J. Carney,¹ District Judge.
RYMER, Circuit Judge: This appeal requires us to decide whether the City of Woodburn’s policy requiring candidates of choice for city positions to pass a pre-employment drug test as a condition of the job offer is constitutional, facially or as applied to Janet Lynn Lanier, the preferred applicant for a part-time position as a page at the Woodburn Library. The district court held that it was not. We agree that Woodburn’s policy is unconstitutional as applied because the City failed to demonstrate a special need to screen a prospective page for drugs, and affirm on this basis. By the same token, Lanier did not show that the policy could never be constitutionally applied to any City position. We reverse the district court’s order to the extent it implies otherwise, and remand for its declaratory judgment to be clarified so that it is consistent with our holding. … Lanier v. City of Woodburn

1. The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation. [↩]

07-1112 Steele v. U.S.
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge, and Hansen, Circuit Judge]
Prisoner case - habeas. Due process does not guarantee a constitutional
right to counsel for a litigant seeking to file a certiorari petition to the
Supreme Court of the United States, and counsel’s failure to file a
petition following Steele’s direct appeal did not constitute ineffective
assistance of counsel; alleged violations of the court’s Amended Criminal
Justice Act Plan and Rule 44(a) did not deprive Steele of due process of
law and did not give rise to a claim for ineffective assistance of counsel;
even if a right to have counsel file a certiorari petition existed, Steele
failed to show that she suffered prejudice from her counsel’s failure to
file a petition.