Thursday, May 16, 2013
As the National Law Journal’s Tony Mauro phrased it earlier this week, “the Supreme Court's running feud with the U.S. Sixth Circuit Court of Appeals resumed Monday, May 13th., with the justices' decision to grant review in a Tennessee case involving civil rights complaints filed by prison inmates, and it's also taking the unusual step of granting that review -- filed an indigent former inmate -- without any response from the Memphis police officers he sued…"
The case, Burnside v. Walters, asks the Court whether the Sixth Circuit was correct in its ruling that federal rules of civil procedure prohibit indigent civil rights plaintiffs from amending their complaints before they are dismissed. Mauro’s article says defendant William Burnside’s lawyers assert 11 other federal circuits have ruled the other way. (Burnside's Petition for certiorari )
Burnside was arrested by Memphis police in 2008, being charged with making false 911 calls – which he denied. He was none-the-less jailed for 10 days before the charges were dropped and subsequently filed suit under 42 U.S.C. 1983, claiming the arrest violated his civil rights.
The District Court for Western Tennessee dismissed the complaint “in its entirety, pursuant to
28 U.S.C.§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim on which relief may be granted. It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal in forma pauperis. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. If Plaintiff files a notice of appeal, he must also pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the United States Court of Appeals for the Sixth Circuit within thirty (30) days…”
The Journal’s article commented that “last term, the Supreme Court reversed all five of the Sixth Circuit’s rulings it reviewed, sometimes using sharp language to criticize the circuit's failure to abide by precedent.” Here again, “the Sixth Circuit upheld the District Court dismissal, invoking the Prison Litigation Reform Act's saying complaints that fail to state a claim in which relief may be granted ‘shall’ be dismissed. Other appeals courts have taken a more lenient approach, allowing plaintiffs to amend their complaints in such circumstances. In the 2007 Supreme Court case Jones v. Bock—also from the Sixth Circuit and cited by both sides—the justices ruled that prison complaints should not be treated differently under procedural rules in most circumstances.”
“In an effort to address the large number of prisoner complaints filed in federal court,” the Supreme Court had stated in Bock, “ Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U. S. C. § 1997e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 28 U. S. C. § 1915A; 42 U. S. C. § 1997e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role.”
Wednesday, May 15, 2013
The Ohio Supreme Court will be accepting public comment on probate court forms relating to Medicaid estate recovery, real property certificates of transfer, foreign adoption, and disinterment applications until June 11, 2013.
The Supreme Court’s news service relates that the following three existing probate court forms would be revised, under the proposed amendments:
•Form 7.0 (Certification of Notice to Administrator of Medicaid Estate Recovery) would be used by the estate administrator to notify the probate court that notice of the receipt of Medicaid benefits has been filed.
•Form 12.0 (Application for Certificate of Transfer) complies with recent legislative changes requiring that the form provide the domicile instead of the residence of the decedent, indicate whether spousal elections have been exercised, and indicate whether any disclaimers or assignments have been filed.
•Form 12.1 (Certificate of Transfer) would identify the person who prepared the certificate to conform with a statutory provision allowing for the inclusion of additional information that, in the opinion of the probate court, should be included.
Additionally, there are 10 proposed new probate court forms under consideration:
•Form 7.0(A) (Notice to Administrator of Medicaid Estate Recovery) would be used by the estate administrator to notify the administrator of the Medicaid Estate Recovery Program of the receipt of Medicaid benefits.
•Form 19.2 (Petition to Recognize Foreign Adoption) would be used by practitioners to provide a probate court with the necessary information for the recognition of a foreign adoption.
•Form 19.3 (Order for Ohio Birth Record for Foreign Born Child) would be used by the probate court to make a finding that a petitioner has complied with the statutory requirements for recognition of a foreign adoption and to order the issuance of a new birth record for the child.
•Form 25.0 (Application for Order to Disinter Remains) would be used by an applicant to petition a probate court for an order to disinter the remains of an individual.
•Form 25.1 (Judgment Entry Setting Hearing on Application for Disinterment) would be used by a probate court to set the date, time, and location for the hearing on an application for disinterment.
•Form 25.2 (Notice on Hearing for Disinterment) would be used by a disinterment applicant to notify individuals of the hearing on the application.
•Form 25.3 (Affidavit of Service of Notice of Hearing on Application for Disinterment) would be used by a disinterment applicant to affirm that the applicant has notified all persons interested in the application as required by law.
•Form 25.4 (Verification of Reinterment) would be signed by a cemetery verifying that the remains of the decedent were reinterred.
•Form 25.5 (Waiver of Notice of Application to Disinter Remains) would be signed by individuals who waive their right to be notified of an applicant for disinterment.
•Form 25.6 (Order to Disinter Remains) would be used by the probate court to order the disinterment of the decedent.
Language of All Forms
Comments should be submitted in writing to:
John VanNorman, Policy and Research Counsel
Ohio Supreme Court
65 South Front Street, Seventh Floor
Columbus, OH 43215
Or via e-mail to firstname.lastname@example.org
Tuesday, May 14, 2013
A bill was introduced in the Ohio House last week that would “require persons subject to civil or criminal domestic violence temporary protection orders surrender all firearms in their immediate possession or control to a law enforcement agency or federally licensed firearms dealer.
Collaborating provisions& include that:“Within five days after the expiration of an order (here) described, a law enforcement agency having custody of a firearm surrendered pursuant to the order shall return the firearm to the defendant, unless another protection order has been issued that prohibits the defendant from possessing a firearm or the agency determines that the firearm has been stolen or that the defendant is prohibited from possessing a firearm under state or federal law.
“(a) If a law enforcement agency determines that the defendant is the legal owner of any firearm deposited with the agency and is prohibited from possessing any firearm, the defendant may (sell) all the defendant's firearms that are in the custody of the agency to a federally licensed firearms dealer while the order remains in effect, and within five days after a dealer presents the agency with a bill of sale indicating that the defendant has sold to the dealer all of the defendant's firearms that are in the agency's custody, the agency shall give possession of those firearms to the dealer.
“(b) If a law enforcement agency determines that the defendant is not the legal owner of any firearm deposited with the agency, the agency shall make a reasonable attempt to identify and return the firearm to the legal owner. If the agency cannot identify the legal owner or if the owner is prohibited from possessing a firearm, the agency shall treat the firearm as unclaimed property and dispose of it accordingly….”
“….. If the defendant notifies the court that the defendant owns a firearm that is not in the defendant's immediate possession, the court may limit the order to exclude that firearm if the court is satisfied the defendant is unable to gain access to that firearm while the protective order is in effect. “
“…. If the defendant refuses to relinquish possession of any firearm on the grounds that such relinquishment would constitute self-incrimination in violation of the United States Constitution or Ohio Constitution, the court may grant use immunity for the act of relinquishing the firearm.”
Text of Bill as Introduced