Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
4415 Gladstone Blvd.
Kansas City. MO 64123-1238
417-236-1179
The SAMARITAN-PROJECTS prepares post-conviction motions along with appeals under the direction of Attorney Tom Norrid and specializes in the preparation of compassionate release and 2255 motions. The Samaritan-Projects’ newsletter reports every winning published district court and court of appeals case for the week in review. Rusty – 417 901 3000 – Eddie 417 818 1938.
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CR.RIS/REHABILITATION/REMORSE/CCE/3582(c)(1)(B). The Eastern District of New York granted a CR.RIS motion in United States v. Gerald Miller, 2024 U.S. Dist. LEXIS 160865 (E.D. N.Y. Sept. 6, 2024). In 1992, Miller and nine co-defendants were charged with a variety of crimes related to their roles in the Queens-based "Supreme Team" enterprise, a violent crack cocaine distribution organization that operated in the 1980s and 1990s. Miller was not convicted of violent crimes butthe PSR outlines multiple murders and acts of intimidation that happened under Mr. Miller's command and expansion efforts. Ajury convicted Miller of eight separate counts, including, racketeering in violation of 18 USC 1962(c) (Count One); conspiracy to distribute cocaine base in violation of 21 USC 846 and 841(b)(1)(A) (Count Two); continuing a criminal enterprise ("CCE") offense, in violation of 21 USC 848(a) and 848 (b)(1)(Count Three); four counts of distributing cocaine base in violation of 21 USC 841(a)(1) and 841 (b)(1)(A) (Counts Seven-Ten); and money laundering in violation of 18 USC 1956(a)(1)(B) (Count Twelve). For the CCE offense he was found at sentencing to have engaged in a series of violations involving more than 1.5 kg of cocaine base in violation of 21 USC 848(a) and 848(b)(1). Miller was sentenced to six life sentences under Counts One, Two, Three, Seven, Eight, Nine, and Ten. The court imposed an additional 20-year sentence on Count Twelve. Miller sought a reduction in his sentence under 18 USC 3582(c)(1)(B) and the First Step Act. Count Three charged Miller with engaging in a CCE in violation of 21 USC 848(a) and 848(b)(1)which is a covered offense. At the time of Miller's sentencing, 21 USC 848(b) mandated a life sentence for anyone deemed a "leader of the enterprise" and engaged in a continuing criminal enterprise involving "at least 300 times the quantity of a substance described in 841(b)(1)(B)." 21 USC 848(b) (1995). Because 848(b) cross-references the quantities in 21 USC 841(b)—the quantities that the Fair Sentencing Act changed—this is a covered offense. Miller has participated in numerous educational and therapeutic courses in prison resulting in over 1,500 hours of programming. Six life sentences reduced to time served.
CR.RIS/MEDICAL. The Southern District of Texas granted a CR.RIS motion in United States v. Brandon Garner, 2024 U.S. Dist. LEXIS 159474 (S.D. Tex. Sept. 5, 2024). The defendant is a 38-year old confined at FMC Fort Worth medical facility. During March through Nov. 2012, the defendant committed seven armed robberies of retail stores in the Houston area. He pled guilty in Feb. 2015 to interference with commerce by robbery and two counts of use of a firearm during the commission of a violent crime. The Court sentenced him to an aggregate term of 430 months. The BOP currently reports defendant's anticipated release date as June 18, 2044. In May 2018, while serving his sentence at FCI Three Rivers, Texas, the defendant was injured while playing basketball during recreation time when he collided with other inmate players. He sustained a C5-6 vertebral subluxation with spinal cord injury, leaving him a quadriplegic confined to a BOP medical facility for 24-hour nursing care. According to his motion and medical records he is confined in bed or a motorized wheelchair for most of his waking time and requires round-the-clock care and assistance with all activities of daily living. His condition is permanent.The defendant argued he is eligible for a compassionate release because he suffers from a serious physical and medical condition that substantially diminishes his ability to care for himself while incarcerated and he will not recover from this condition. The Court found that a time-served sentence would provide just punishment for the offenses. The court reduced his sentence to time served.
CR.RIS/MEDICAL/USSG 1B1.13(b)(6). The Middle District of Florida granted a CR.RIS motion in United States v. Gary Allen, 2024 U.S. Dist. LEXIS 159380 (M.D. Fla. Sept. 5, 2024). On June 25, 2003, a grand jury returned a 12-count Indictment charging defendant and others with conspiracy to possess with intent to distribute 5 kilograms or more of cocaine (Count One) in violation of 21 USC 841(a)(1) and 841(b)(1)(A)(ii), and with use and carrying a firearm during and relation to a drug trafficking crime (Count Four) in violation of 18 USC 924(c)(1)(A), being a felon in possession (Count Eight) in violation of 18 USC 922(g)(1) and 924(a)(2), and being an alien in possession of a firearm (Count Nine) in violation of 18 USC 922(g)(5) and 924(a)(2). The Government filed a Notice pursuant to 21 USC851 of its intention to seek an enhanced penalty as to Count One because defendant had been convicted of two prior felony drug offenses: (1) possession of cannabis with intent to deliver/sell for which defendant entered a plea of guilty, adjudication was withheld, and defendant was placed on probation for 36 months; and (2) possession of cannabis with intent to deliver/sell and possession of drug paraphernalia for which defendant entered a plea of guilty, adjudication was withheld, and defendant was placed on probation for 36 months on Count I and one year probation on Count II. The defendant was sentenced to a term of life on Count One, 120 months of imprisonment as to Counts Eight and Nine concurrently, and 5 consecutive years on Count Four. It is uncontested that defendant has served at least 21 years of his term of imprisonment. USSG 1B1.13(b)(6). Another listed extraordinary and compelling reason is defendant is suffering from a "medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death."Defendant suffers from stage 3a chronic kidney disease. Defendant argued he will eventually need dialysis and there is no recovery from the condition. At stage 3a there is a mild to moderate loss of kidney function and the disease may progress. The documentation shows the diagnosis in a list along with pain in his hand, constipation, and gastro-esophageal reflux. The defendant’s sentence was reduced from life to 360 months.
CR.RIS/FAMILY CIRCUMSTANCES/REHABILITATION. The District of Maryland granted in part a CR.RIS motion in United States v. Alvin Cunningham, 2024 U.S. Dist. LEXIS159358 (D. Md. Sept. 4, 2024). Cunningham was charged with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21 USC 846 (Count One), and possession of a firearm and ammunition by a prohibited person in violation of 18 USC 922(g)(1) (Count Five). The Court sentenced defendant to 151 months. The defendant is currently 55 years of age. Defendant has served approximately 79-months of his 151-month sentence, or approximately 52 percent. The defendant moved for his immediate release or, alternatively, a sentence reduction, claiming that his partner, Tyra Alisha Wright, has died. According to defendant, he and Ms. Wright have a daughter in common, Chansey Davison, who is approximately fifteen years old. Defendant claims that when he was arrested in connection with this case, Ms. Wright became the sole caretaker of Chansey. Defendant submitted Ms. Wright's death certificate as an exhibit to his motion. Several courts have recognized that, as to the death of the caregiver of the defendant's minor child, the defendant need not establish that he is the only available caregiver. In light of Ms. Wright's death, defendant has established an extraordinary and compelling reason for compassionate release. Cunningham earned his GED. The Court commended him for doing so. Cunningham has participated in several courses while in BOP custody, including public speaking, resume writing basics, and decision-making skills. These efforts signaled to the Court that Cunningham was making strides to rehabilitate himself. The defendant has had numerous serious disciplinary reports. Sentence reduced from 151-months to 120-months.
CR.RIS/MEDICAL/FAMILY CIRCUMSTANCES. The Eastern District of New York granted in part a CR.RIS motion in United States v. Emmanuel Tavarez, 2024 U.S. Dist. LEXIS 159043 (E.D. N.Y. Sept. 4, 2024). Tavarez is a former New York City Police Department officer who had served as a lookout for a robbery crew that targeted narcotics dealers and traffickers by posing as law enforcement officers and using false badges and warrants to seize money and drugs from its victims. Tavarez provided NYPD equipment to his co-conspirators and, on one occasion, entered a victim's home, brandishing a firearm. In 2011, he pled guilty to a three-count superseding indictment charging him with conspiracy to commit Hobbs Act robbery in violation of 18 USC 1951(a); conspiracy to distribute heroin, cocaine, MDMA, and marijuana in violation of 21 USC 846, 841(b)(1)(A)(i), 841(b)(1)(A)(ii), (b)(1)(c), and (b)(1)(D); and use of a firearm in furtherance of robbery or drug trafficking in violation of 18 USC 924(c)(1)(A). Tavarez was sentenced to 300 months (25 years), comprising concurrent sentences of 216 months for the first two counts, and a consecutive sentence of 84 months for the third count. Tavarez identifies several circumstances that he posits are extraordinary and compelling. He contends his health—he has chronic kidney disease and is at risk of a more severe diagnosis—is one such circumstance. He contended he is the only available caregiver to his ailing mother, who has lung cancer and requires assistance caring for herself. He argued that the exceedingly harsh conditions of incarceration resulting from the COVID-19 pandemic are extraordinary and compelling circumstances and have made his sentence more punitive than was anticipated at his sentencing. Courts in this circuit can and do account for conditions such as chronic kidney disease and other ailments in considering whether multiple factors might combine to justify a reduced sentence. Tavarez's 72-year-old mother is in poor health and has lung cancer, emphysema, and other serious medical conditions, and requires help attending appointments with doctors and climbing the stairs to her third-floor apartment. With Tavarez's medical condition, the Court may consider his family circumstances in conjunction with other factors in evaluating his petition for a reduced sentence. While such conditions of incarceration may not themselves justify a sentence reduction, the Court took these conditions into account, in conjunction with Tavarez's medical condition, family circumstances, and rehabilitation. The court reduced the defendant’s sentence to 220-months.
CR.RIS/FAMILY CIRCUMSTANCES. The Middle District of Tennessee granted a CR.RIS motion in United States v. Richard Olive, 2024 U.S. Dist. LEXIS 158654 (M.D. Tenn. Sept. 4, 2024). In 2013, a jury found Richard guilty of three counts of mail fraud, four counts of wire fraud, and two counts of money laundering. Richard spearheaded a widespread fraudulent scheme related to his purported business, National Foundation of America. NFOA claimed to be a charitable organization supporting humanitarian services, but it was a family business.NFOA used "highly compensated insurance agents across the country" to offer and sell investment contracts called "Installment Plan Agreements." NFOA exchanged customers' existing annuities for one of the company's installment plans, promising higher returns that never realized. Instead, NFOAcashed out those annuities early (resulting in a substantially lower cash payout) and used the money to fund his lifestyle by paying salaries and purchasing real property. As a result of this fraudulent scheme, NFOA solicited approximately $30 million in assets from almost 200 victims. The average age of NFOA'svictims was 77. All totaled, the victims lost close to $6 million.The defendant was sentenced to 372-months. Richard asked the Court to consider his mother's medical condition, the absence of an available caregiver for her, and his rehabilitation efforts. Richard's mother, Bettye Olive, is 84-years old and lives alone in Nashville, Tennessee. In Oct. 2023, she was diagnosed with metastatic cancer. Three staff members at BOP support Richard's compassionate release motion. Richard's supervisor, R. Munoz, says that Richard is responsible and dependable at work and is a mentor and guide to the younger adults in custody. The Unit Counselor, R. Garza, believes that Richard has shown "sincere responsibility towards his working habits, rehabilitative progress, and working with other inmate on a daily basis." Finally, the Senior Officer Specialist at Federal Medical Center, A. Escobedo, wrote that Richard is a respectful person towards staff and other inmates and works every day without complaining and does what he is asked to do. On Jan. 27, 2024, Richard admitted that it took him several years before he could accept that he broke the law. He says he no longer minimizes his actions and takes responsibility for breaking the law. He wants to use the skills he has learned in custody to change for the better. Richard is employed at the Trust Fund department and serves as a Suicide Watch Companion in the Skills Program at the Federal Medical Center in Fort Worth where he has received two Certificates of Achievement and a Certificate of Appreciation. He has also attended the Inmate Companion Training and attained a diploma in Theology. He has not incurred any disciplinary infractions. The defendant’s sentence was reduced to time serverd.
CR.RIS/FAMILY CIRCUMSTANCES. The Southern District of New York granted a CR.RIS motion in United States v. Fred Elm, 2024 U.S. Dist. LEXIS 159166 (S.D. N.Y. Sept. 3, 2024).Between June 2013 and Dec. 2014, Elm defrauded investors in his private fund by failing to invest funds as promised, misrepresenting trading results and account balances, and converting investor money for his own use. Elm falsely represented that the fund leveraged relationships with leading venture capital firms in order to make pre-IPO investments in emerging technology companies. Elm, along with defendant Ahmad Naqvi, raised approximately $18 million from over fifty investors. Of the $18 million raised, just $7.1 million was actually invested, while much of the funds were withdrawn to pay for Elm's personal expenses. Moreover, $5.2 million of investor funds were used to simply make payments to earlier investors. Elm pled guilty to two counts, pursuant to a plea agreement—conspiracy to commit securities fraud and securities fraud. The Court sentenced him to 85-months. The Court entered an order of removal because Elm is a Canadian, not a U.S., citizen. The defendant’s family circumstance issue is about his son which information was redacted. The order of removal mitigates the need to protect the public from Elm's conduct.Elm's motion for compassionate release was granted and his sentence was reduced to time served.
APPEAL/2255/JURY INSTRUCTIONS. The Ninth Circuit reversed and remanded United States v. Artak Ovsepian, 2024 U.S. App. LEXIS 22281 (9th Cir. Sept. 3, 2024). Ovsepianparticipated in a healthcare fraud scheme at Manor Medical Imaging, Inc., a sham clinic in Glendale, California. The clinic generated prescriptions for unnecessary medications which were billed to Medicare and Medi-Cal. Manor employees used the identifying information of Medicare and Medi-Cal beneficiaries often without their knowledge to fill these prescriptions. Ovsepian joined the conspiracy in 2010 managing drivers who transported beneficiaries to pharmacies to fill fraudulent prescriptions. The Government charged Ovsepian with conspiracy to commit healthcare fraud and aggravated identity theft under 18 USC 1028A(a)(1). At trial, the Government narrowed the aggravated identity theft charge to the possession of one victim’s identifying information. The jury found Ovsepian guilty on all counts and he was sentenced to 180 months including a mandatory 24-month sentence for aggravated identity theft. Ovsepian’s direct appeals were unsuccessful and the Supreme Court denied his petition for a writ of certiorari. Ovsepian filed a 28 USC 2255 motion to vacate the aggravated identity theft conviction arguing actual innocence. The district court denied the motion and the Ninth Circuit initially denied a certificate of appealability. However, the Supreme Court remanded the case for reconsideration in light of Dubin v. United States, which clarified the interpretation of the aggravated identity theft statute. The Ninth Circuit reversed the district court’s denial of Ovsepian’s 2255 motion. The court held that a petitioner convicted under a divisible statute must demonstrate actual innocence only for the prong under which they were convicted. The court found that the jury instructions were erroneous because they did not convey that possession of another’s identifying information must be central to the healthcare fraud to sustain a conviction. Consequently, the Ninth Circuit vacated Ovsepian’s conviction and sentence for aggravated identity theft.
APPEAL/2254/ACTUAL INNOCENCE. The Eleventh Circuit vacated and remanded Robby Whittaker v. Secretary, Florida Department of Corrections, 2024 U.S. App. LEXIS 22723 (11th Cir. Sept. 6, 2024). In this habeas case, the court granted a certificate of appealability on one question: Whether the district court erred in concluding that Robby Whittaker failed to make a showing of actual innocence sufficient to excuse the untimely filing of his 28 USC 2254 petition. On that question the courtvacated and remanded because the district court did not consider, much less discuss, the allegedly exculpatory evidence presented by Whittaker. The court expressed no view on themerits of Whittaker’s claim of actual innocence.
APPEAL/2254/COMPETENCY. The Second Circuit reversed and remanded Mohamed Musaid v. Kirkpatrick, 2024 U.S. App. LEXIS 22401 (2d Cir. Sept. 4, 2024). In 2007, Mohamed Musaid was arrested for the murder of a relative and confessed to the crime. However, his trial was delayed for over eight years due to repeated findings of incompetence to stand trial attributed to his long history of mental illness. Musaid was found incompetent on ten occasions and competent on five with his competency dependent on his compliance with antipsychotic medication. Each time he was found competent and transferred to Rikers Island he would refuse medication and regress to incompetence. The trial court eventually allowed Musaid's trial to proceed nearly ten months after a final finding of competency without re-evaluating his mental state. During the trial, Musaid exhibited erratic behavior, raising questions about his competency. Despite this, the trial court did not conduct a further inquiry into his mental state. Musaid was convicted and sentenced to 25-years to life for second-degree murder and five years for criminal possession of a weapon. Musaid appealed arguing that the trial court's failure to reassess his competency before trial violated his due process rights. The Appellate Division affirmed the conviction stating there was no indication that Musaid was unable to understand the proceedings or assist in his defense. Musaid then sought habeas corpus relief in the Southern District of New York which was denied. The Second Circuit found that the trial court's failure to conduct a minimal inquiry into Musaid's competency just before trial was objectively unreasonable given his history of mental illness and the time elapsed since the last competency evaluation. The court reversed the district court's decision and remanded with instructions to grant a conditional writ of habeas corpus allowing the state courts to determine whether it is possible to reconstruct Musaid's competency at the time of trial based on evidence proximate to the trial.
APPEAL/2254/IAC/CONFRONTATION CLAUSE. The Third Circuit affirmed the granting of habeas relief in Eddie Williams v. Superintendent Greene SCI, 2024 U.S. App. LEXIS 20301(3d Cir. Aug. 13, 2024). In 2015, Eddie Williams was prosecuted in Pennsylvania for crimes related to a dispute over illegal drug profits, resulting in one death and one serious injury. Williams along with Rick Cannon and Akeita Harden was implicated in the incident. Cannon pled guilty to multiple charges, including homicide, and Williams was tried jointly with Harden. During the trial the judge read Cannon's Criminal Information which included charges naming Williams as a co-conspirator to the jury. Williams was found guilty on all counts and sentenced to life imprisonment plus additional years.Williams filed a Post-Conviction Relief Act (PCRA) petition in 2017, arguing ineffective assistance of counsel due to his attorney's failure to object to the reading of Cannon's Criminal Information. The PCRA court denied the petition, and the Pennsylvania Superior Court affirmed. The Pennsylvania Supreme Court denied further appeal. Williams then filed a habeas corpus petition in the Middle District of Pennsylvania which granted relief finding a violation of the Confrontation Clause and ineffective assistance of counsel. The Third Circuit held that the reading of Cannon's Criminal Information which included testimonial statements implicating Williams violated the Confrontation Clause. The court also found that Williams's counsel was ineffective for failing to object to the reading which prejudiced Williams's defense. The Third Circuit affirmed the District Court's decision to grant habeas relief, concluding that the errors had a substantial and injurious effect on the jury's verdict. The case was remanded for the District Court to issue a writ of habeas corpus.
APPEAL/BREACH PLEA AGREEMENT. The Eleventh Circuit vacated and remanded United States v. Bobby Mathis, 2024 U.S. App. LEXIS 22605 (11th Cir. Sept. 5, 2024). Mathisappealed his sentence of 11-months imprisonment and 2 years supervised release imposed upon revocation of his original term of supervised release. Mathis filed a joint motion for summary reversal in which he and the Government agreed that the Government breached the plea agreement when it recommended a sentence of six-months imprisonment instead of time served.
The Government promised, but failed to recommend, a sentence of time served at Mathis’ sentencing hearing which violated the plea agreement.
APPEAL/RESENTENCE. The Ninth Circuit vacated and remanded United States v. Jesus Gomez, 2024 U.S. App. LEXIS 22457 (9th Cir. Sept. 4, 2024). Gomez was sentenced to 188-months in prison for distributing methamphetamine. The district court applied a career offender enhancement which significantly increased his sentence. This enhancement was based on Gomez's prior conviction for assault with a deadly weapon under California Penal Code 245(a)(1) which the district court classified as a "crime of violence." The Central District of California found that Gomez's prior conviction qualified as a crime of violence thus applying the career offender enhancement. This decision was based on previous rulings that had classified California Penal Code 245(a)(1) as a crime of violence. Gomez did not object to this classification at the time of sentencing but raised the issue on appeal. The Ninth Circuit vacated Gomez's sentence and remanded for resentencing. The Ninth Circuit held that in light of the Supreme Court's decision in Borden v. United States, 593 U.S. 420 (2021), California Penal Code 245(a)(1) does not qualify as a crime of violence. The court reasoned that the statute includes reckless uses of force, which do not meet the elements clause of the career offender guideline requiring a mens rea more culpable than recklessness. The court also rejected the Government's argument that the conviction could be classified as aggravated assault under the enumerated offenses clause as this too requires a mensrea greater than extreme recklessness. Consequently, the district court's application of the career offender enhancement was deemed improper.
APPEAL/RESENTENCE. The Seventh Circuit vacated and remanded United States v. Travis Montgomery, 2024 U.S. App. LEXIS 22030 (7th Cir. Aug. 29, 2024). Travis Montgomery pled guilty to distributing methamphetamine. At his sentencing hearing the Government proved that Montgomery had stowed methamphetamine (as well as other drugs), cash, and drug trafficking paraphernalia in an off-site storage unit leased by his sister. Finding that Montgomery had used the storage unit primarily to facilitate his drug operation the district court added a two-level enhancement pursuant to USSG 2D1.1(b)(12). USSG 2D1.1(b)(12) (requiring two-level increase where a defendant “maintained a premises for the purpose of … distributing a controlled substance”). Because the present record falls short of establishing that a primary use of the storage unit was drug distribution the court vacated and remanded to the district court for resentencing without regard to 2D1.1(b)(12)’s enhancement.
APPEAL/SENTENCE. The Fifth Circuit vacated and remanded United States v. Christopher Nelson, 2024 U.S. App. LEXIS _______ No. 23-50449 (5th Cir. Sept. 6, 2024). Nelson pled guilty to one count of possession of child pornography. The Presentence Investigation Report revealed that Nelson possessed 3,699 images, including 196 images of his seven-year-old daughter and 25 images of his five-year-old daughter. Nelson admitted to downloading child pornography and taking images of his older daughter but denied producing images of his younger daughter. He also attempted to obstructing justice by hiding a laptop and cellphone containing evidence. Nelson's total offense level under the U.S. Sentencing Guidelines was 43, and he filed objections to the PSR. The Western District of Texas sentenced Nelson to 240 months in prison, a $250,000 fine, additional restitution and special assessments totaling $10,100, and supervised release for life. The court imposed mandatory and standard conditions of supervised release and added discretionary special conditions barring Nelson’s access to the Internet. Nelson objected to these special conditions and the court’s written judgment contained less severe versions of the Internet-related conditions. Nelson timely appealed. The Fifth Circuit affirmed the district court's denial of a sentencing reduction for acceptance of responsibility, finding no abuse of discretion. The court also found that the written judgment conflicted with the oral pronouncement regarding Internet restrictions holding that the oral pronouncement controls. Finally, the court held that the district court abused its discretion by imposing a lifetime Internet ban without exceptions as it was not narrowly tailored. The court affirmed Nelson’s sentence except for the special conditions of supervised release andvacated the Internet-related conditions, and remanded for further proceedings.
APPEAL/THREE STRIKES. The Third Circuit vacated and remanded Quintez Talley v. Pillai, 2024 U.S. App. LEXIS 22670(3d Cir. Sept. 6, 2024). Talley sought in forma pauperis (IFP) status to appeal without prepaying filing fees. The appellees argued that the "three strikes" provision of the Prison Litigation Reform Act (PLRA) barred Talley from proceeding IFP, claiming that three of his previous cases were dismissed on grounds that qualify as strikes under the PLRA. Talley contended that only one of these cases constituted a strike. The Western District of Pennsylvania dismissed Talley's federal claim for failure to state a claim and his medical malpractice claim for not complying with Pennsylvania procedural rules. The court did not dismiss the entire action on strike-qualifying grounds so this case did not count as a strike. In another case the Eastern District of Pennsylvania dismissed Talley's complaint for failure to state a claim but granted him leave to amend. Talley did not amend within the deadline but the court did not formally close the case before Talley filed his notice of appealso this case also did not count as a strike. In a third case, the same court dismissed Talley's claims for failure to state a claim and noted his failure to file a certificate of merit for his medical malpractice claim. This dismissal was on strike-qualifying grounds making it a strike. The Third Circuit reviewed the case and determined that only one of Talley's previous cases constituted a strike. The court held that the dismissal of the medical malpractice claim for procedural non-compliance did not qualify as a strike and the case where Talley was given leave to amend but did not do so was not formally closed, thus not a strike. The court granted Talley's motion to proceed IFP andallowed him to appeal without prepaying filing fees.
APPEAL/RLUIPA. The Third Circuit reversed and remanded Fernando Nunez v. Wolf, 2024 U.S. App. LEXIS 21772 (3d Cir. Aug. 27, 2024). Fernando Nunez, Jr., an inmate in Pennsylvania filed a lawsuit against officials of the Pennsylvania Department of Corrections under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Nunez, a devout Muslim claimed that the DOC violated his religious rights by denying him accommodations to consummate his marriage and have ongoing conjugal visits, engage in congregate prayer with visitors, and undergo a religious circumcision. The Middle District of Pennsylvania granted summary judgment in favor of the DOC. The court concluded that the DOC had compelling interests in denying Nunez's requests and that there were no less restrictive alternatives available. The court relied on affidavits from DOC officials, which cited concerns about safety, security, health, and resource constraints. The court found that Nunez failed to disprove that the DOC's policies were the least restrictive means of furthering these interests. The Third Circuit reviewed the case and found the District Court did not properly hold the DOC to its burden under RLUIPA. The Third Circuit concluded the DOC failed to provide sufficient evidence to support its claims of compelling interests and did not adequately consider less restrictive alternatives. The court emphasized that RLUIPA requires a rigorous and fact-intensive inquiry, and that the DOC's "mere say-so" was insufficient to meet this standard. The Third Circuit vacated the District Court's judgment and remanded the case for further proceedings allowing the DOC to supplement the record to meet its burden under RLUIPA.
APPEAL/EX-FELONS IN POSSESSION. The Eighth Circuit affirmed the district court in United States v. State of Missouri, 2024 U.S. App. LEXIS 21490 (8th Cir. Aug. 26, 2024). In 2021, Missouri enacted the Second Amendment Preservation Act which declared certain federal firearms regulations as infringements on the right to keep and bear arms and invalid within the state. The Act prohibited state officials from enforcing these federal laws and allowed private citizens to sue state entities that did so imposing penalties for violations. The United States sued Missouri arguing that the Act violated the Supremacy Clause of the U.S. Constitution.
The Western District of Missouri denied Missouri's motions to dismiss for lack of standing and failure to state a claim. The court granted summary judgment in favor of the United States ruling that the Act violated the Supremacy Clause and enjoined its implementation and enforcement. Missouri appealed the decision. The Eighth Circuit reviewed the case and affirmed the district court's judgment. The appellate court held that the United States had standing to sue because the Act caused concrete and particularized injury by impairing federal law enforcement efforts. The court also ruled that the Act's attempt to invalidate federal law was unconstitutional under the Supremacy Clause. The court found that the Act was not severable, as its provisions were fundamentally interconnected with the invalidation of federal law. Consequently, the injunction against the Act's implementation and enforcement was upheld.
APPEAL/BIVENS. The Ninth Circuit reversed and remanded Kekai Watanabe v. Derr, 2024 U.S. App. LEXIS 22696 (9th Cir. Sept. 6, 2024). Kekai Watanabe is an inmate at the Federal Detention Center in Honolulu who was severely injured during a gang-related assault in July 2021. Despite his serious injuries, including a fractured coccyx and bone chips in surrounding tissue, the prison nurse only provided over-the-counter medication and refused to send him to a hospital. Watanabe was kept in solitary confinement for over two months and repeatedly requested medical attention which was largely ignored. He was not properly diagnosed until February 2022 and had not seen a specialist by the time of the court proceedings. The District of Hawaii initially allowed Watanabe’s claim against the nurse to proceed but later dismissed it concluding that no Bivens remedy existed for his Eighth Amendment claim. Watanabe appealed the dismissal. The Ninth Circuit reviewed the case and reversed the district court’s dismissal. The Ninth Circuit held that Watanabe’s claim did not present a new Bivens context as it was not meaningfully different from the Supreme Court’s decision in Carlson v. Green, where an implied damages action was recognized under the Eighth Amendment for deliberate indifference to an inmate’s serious medical needs. The court found that Watanabe’s allegations were sufficiently similar to those in Carlson, thus allowing his Bivens claim to proceed.Additionally, the Ninth Circuit construed Watanabe’s request for injunctive relief related to his ongoing medical care as standalone claims for injunctive relief not under Bivens. The court remanded the case to the district court to address whether Watanabe may amend his request for injunctive relief and to address any such claims in the first instance.
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