An inmate reasonably believed that his participation in an internal investigation of his complaint that two defendant correctional officers assaulted him while he was handcuffed during his removal to another cell substantially exhausted his administrative remedies as required by the Prison Litigation Reform Act, and the 4th Circuit reverses summary judgment for one defendant officer ...
Inmate Believed Remedies Exhausted
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Contractor Has Coverage for Sub’s Acts
A trial court erred in granting summary judgment to an insurance carrier for a general contractor seeking coverage under its CGL policy for collapse of a common wall during renovations, allegedly attributable to the subcontractor hired for foundation work; the 4th Circuit says the policy endorsement creates a duty to defend the contractor where it ...
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ACCA Sentence Vacated on § 2255 Motion
On remand from the U.S. Supreme Court, the 4th Circuit says a petitioner convicted as a felon in possession of a firearm may challenge on collateral review a Simmons sentencing error that resulted in his erroneous designation as an armed career criminal. Petitioner pleaded guilty in 2005 to being a felon in possession of a ...
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Employer Could Be Liable for Racist Death Threats
The 4th Circuit vacates summary judgment for United Airlines in an African-American flight attendant’s hostile environment suit alleging the airlines failed to adequately respond to racist death threat left in her company mailbox; the district court concluded plaintiff was subjected to a racially hostile work environment, but erred in deciding on summary judgment that the ...
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Christian Inmate States Religious Claims
A Virginia prison inmate who apparently adheres to his own particular brand of Christianity based on a version of the Bible written by himself has stated claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act for defendant prison officials’ alleged total ban on the use of wine during communion, failure ...
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No COA Needed for Court Review
Under recent Supreme Court jurisprudence, the 4th Circuit holds it can review the district court’s categorization of defendant’s 22 U.S.C. § 2255 motion as an impermissible successive petition without first issuing a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c)(1)(B); because we find defendant’s motion constitutes a mixed Rule 60(b)/ § 2255 motion, we ...
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Lessor Can’t Collect ‘Future’ Rent
In this litigation involving a nursing home lease, assignment of the lease and nonpayment of rent, in which the district court awarded plaintiff owner $2.74 million for breach of the lease and abandonment of the nursing home, the lessor did not have a right to future rent, and 4th Circuit vacates the damages award and ...
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Bank Officers Face Negligence Claims
In this suit alleging that plaintiff Federal Deposit Insurance Corporation, as receiver, suffered $216 million in losses due to this North Carolina bank’s failure, the 4th Circuit says the district court erred in granting summary judgment to defendant bank officers on the FDIC-R’s claims of ordinary negligence and breach of fiduciary duty, but the court ...
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Travel Ban on Sex with Minors Upheld
The 4th Circuit upholds the constitutionality of statute criminalizing engaging in an illicit sexual act with a minor after traveling in foreign commerce, and affirms the convictions of a Lutheran pastor and acknowledged sex addict who sexually abused young girls while operating a religious center and school in Haiti. This case examines the constitutional limits ...
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No Particularized Suspicion from Defendant’s Behavior
In deciding to detain defendant, who said he came to pick up his girlfriend whose car had broken down at a late hour in a parking lot in a high-crime area, a police officer’s observations – that defendant was hurrying his girlfriend, avoided eye contact and gave low, mumbled responses to questions – were not ...
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Cell Phone Photo Not Enough to Convict
Although the 19-year-old defendant had engaged in sexual activity with his 7-year-old neighbor for several months, the government’s evidence of a single cell phone picture of their sexual activity, deleted from defendant’s phone, was not sufficient to show that defendant engaged in the sexual activity for the specific purpose of producing a visual depiction, and ...
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$2M Award Upheld in Pelvic Mesh Case
The 4th Circuit upholds a $2 million award in the first jury verdict arising from multi-district litigation involving more than 70,000 cases against proprietors of transvaginal mesh medical devices; in a case tried in West Virginia federal court, the jury awarded plaintiff $250,000 compensatory damages and $1.75 million punitive damages on a design defect and ...
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Sleeping counsel is ‘no counsel’
A lawyer who sleeps during a “substantial portion” of his client’s criminal trial is depriving his client of his Sixth Amendment right to trial. That’s the law in Virginia and other states in the 4th U.S. Circuit Court of Appeals, the court said on March 11. A court can presume the client was prejudiced by ...
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‘Virginia Law’ Supports Incumbent Choice
The 4th Circuit affirms a district court’s decision that it had no subject matter jurisdiction over a lawsuit filed by the 24th Senatorial District Republican Committee of Virginia and its committee chair challenging Virginia’s Incumbent Protection Act, which allows an incumbent state legislator to choose the method of nominating a candidate for the General Assembly. ...
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Successive Petition OK’d for Career Offender Claim
The 4th Circuit grants a petitioner’s § 2255 motion for pre-filing authorization to pursue a successive habeas petition challenging his sentencing as a career offender; petitioner has made a prima facie showing that the U.S. Supreme Court’s 2015 decision in Johnson v. U.S. might render unconstitutional the career-offender residual clause applicable at the time petitioner ...
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Inmate Has Claims for Penile Implant Removal
An inmate who alleges defendant correctional officials threatened to keep him in administrative segregation unless he consented to surgical removal of marbles he had implanted in his penis prior to his incarceration, even though a prison doctor found no medical reason for the removal, has stated claims for violation of his Fourth, Eighth and 14th ...
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Employer faces trial over anti-Arab bias
Lawyers looking for a catalogue of comments offensive to Arab-Americans in the workplace can consult a new source: a federal appeals court decision that says it’s up to a jury to decide whether remarks such as “camel people” can create a hostile work environment. After a lengthy recitation of alleged remarks endured by a bookkeeper ...
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Fee Awards Permitted Under Rule 41(d)
An award of attorney’s fees is permissible after a voluntary dismissal under Fed. R. Civ. P. 41(d), if the substantive statute underlying the lawsuit allows recovery of such fees as costs or if a court finds a plaintiff has acted vexatiously; however, the 4th Circuit vacates a district court’s award of $13,403 against a plaintiff ...
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Supervisor Comments Supported Anti-Arab Bias Claims
A property management company faces a trial on race and pregnancy bias, hostile environment and retaliation claims filed by an Arab-American former bookkeeper who alleges her supervisor made numerous racially derogatory and anti-Arab comments to her over a four-year period and fired her on the pretext of a lack of work; the 4th Circuit reverses ...
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Motion for Time Extension Works as NOA
In a 2-1 decision, a 4th Circuit panel holds that a document filed by a pro se prisoner for an extension of time to request a certificate of appealability qualifies as a notice of appeal under Fed. R. App. 3; the dissent says the majority “dramatically oversteps the bounds of liberally construing a document.” The ...
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