Estate of Lockett v Fallin

Estate appealed the dismissal of its constitutional claims against Fallin and other defendants arising from Lockett’s execution. The panel, with one judge concurring, affirmed. The majority held the private doctor involved in placing the IV line is eligible for qualified immunity as executing criminal punishment is a government activity and a government doctor would be immune here and thus immunity should extend to the doctor here to serve the purposes of the doctrine. It held there was no claim for torture or deliberate indifference as the alleged harm to Lockett rose from the failure to get the execution drugs into Lockett’s system not any effort on Oklahoma’s part to cause Lockett pain and the death penalty ah been declared not cruel by the United States Supreme Court. It held there was no factual support for a claim that Lockett was repeatedly stabbed trying to get the IV in and the majority declined to take judicial notice of newspaper articles or a dissenting opinion in another appeal as the facts alleged were not publicly known or beyond dispute. It held there was no clearly established right to have Lockett’s death hastened during the execution and no claim based on the time it took to complete the execution as it was an isolated mishap not intended to cause pain. It held that any claim form the use of midazolam failed as it was not used by Oklahoma to cause pain and there must be a constitutional way to execute Lockett when drugs previously used were unavailable. It affirmed dismissal of the failure to train claim holding there was no established law setting out minimal constitutional standards for how to train executioners and Oklahoma did adopt some safeguards including use of a doctor. It finally held there was no clearly established right to execution using quick acting drugs or the right to an attorney to challenge an execution as it occurs. The concurrence argued that the midazolam claim because the claim made at the district court was not in the brief and the briefed claim was not raised in the district court and thus should not have been addressed; the torture claim failed for lack of identified controlling precedent as to lethal injection so the discussion of the claim was improper; that the deliberate indifference claim was not in the complaint and the facts were not subject to judicial notice and discussion of the claim by the majority was improper; and that discussion of current Oklahoma practice was irrelevant and thus puzzling.Gutierrez v Maynes

Gutierrez appealed summary judgment to Maynes on her 1983 action claims of excessive force, unlawful seizure and unlawful entry. The panel affirmed. It affirmed on the excessive force count because Gutierrez made no effort to prove a constitutional violation of clearly established law and indeed cited no cases and made no legal argument in the district court. It affirmed on unlawful entry as Maynes had justification for the entry into the apartment as he was in hot pursuit of Gutierrez and the law as of the date of the entry (and today as well) is unclear on whether hot pursuit of a person suspected of misdemeanors violates the 4th Amendment. It affirmed on unlawful seizure as Gutierrez provided no case law or other support for theory that tasing her mother was a seizure. It held that the district court did not abuse its discretion in denying Gutierrez’s motions for additional discovery because one was three months late and the other failed to specify how the information sought was essential to her ability to oppose Maynes’ summary judgment motion.

Durkee v Minor and Hochmuth

Minor and Hochmuth appealed the denial of their qualified immunity motions. The panel reversed as to Minor and affirmed as to Hochmuth. On Hochmuth, the panel held that the facts which the district court found could be accepted by a jury, namely that Hochmuth knew that an inmate had threatened Durkee, acknowledged that eth two inmate could not be together, saw Durkee in a room adjacent to where he unshackled the other inmate and the other inmate disobeyed orders to go to his cell and attacked, would sustain a verdict for Durkee and because the issue is factual not legal, it is for the jury to determine. It reversed as to Minor because there was no evidence of direct, personal knowledge or responsibility as the practice of unshackling inmates in a room next to the visiting area was not problematic on its face nor in practice as the incident is the only attack to have occurred and Minor’s post-attack review could not have caused the attack or any constitutional violation.

Acha v Department of Agriculture

Acha petitioned for review of the Merit System Protection Board’s rejection of his whistleblower claim arising from a disclosure to his supervisor. The panel vacated and remanded with instructions to dismiss. It held that under 5 USC 1214(a)(3), Acha was required to exhaust his administrative remedies by filing a complaint with the Office of Special Counsel, he only mentioned the disclosure to his supervisor as background information in his complaint about a later disclosure to another office and thus failed to provide information sufficient for special counsel to determine if an investigation is needed as the two disclosures were separate and at the time the disclosure to the supervisor could not provide a basis for relief. It held that 1214(a)(3) is jurisdictional and lacks a futility exception and the fact Acha’s complaint would have been futile does not provide a basis to excuse failure to file a complaint about the disclosure. It noted he could file a new complaint now as there is no time limit on his claim.

United States v Gilmore

Gilmore appealed the dismissal of his motion for a reduced sentence. The panel affirmed. It held that Gilmore’s sentence was not “based on” sentencing guidelines as it was the result of negotiations after Gilmore’s habeas petition was granted for ineffective assistance of counsel at sentencing and the agreement specifically stated the parties agreed his 168-month sentence was appropriate and thus the district court lacked jurisdiction to reduce the sentence.

Penden v State Farm Mutual Automobile Insurance Company

Pended appealed summary judgment to state farm on her unreasonable handling of her claim. The panel reversed. T held that under Colorado statutory and common law, a jury could find that state Farm acted unreasonably because it could infer that additional investigation of whether or not Penden assumed the risk by getting into the van in question by interviewing the other passengers about whether a trip was anticipated and whether anyone knew the driver was drunk and because State Farm read too much into a questionnaire characterization of the trip as a “joyride” without asking in the questionnaire if the ride was intended to occur. The panel reversed on the issue of investigation of damages because it did not consult with a physician, have Penden submit to an examination or interviewed her about her noneconomic damages and failed to do any of these things before offering an amount with $0 in noneconomic damages and Penden provided medical and other records in support of her demand. It held that compliance with Colorado regulations does not mean State Farm acted reasonably and held State Farm waived its estopel theory by not raising it in the answer or appellate brief. It finally held that Penden’s motion for summary judgment of her statutory claim is no longer moot given the reversal here.

United States v Boisseau

Boisseau appealed his tax evasion conviction. The panel affirmed. It held that evidence Boisseau set up a law firm owned by his father in law, had the firm pay his expenses directly instead of paying him wages after the tax levy hit and lying to the IRS investigator about how he was paying his bills was sufficient to prove both an affirmative act directed at evasion and willfulness. It held the district court found Boisseau acted in a misleading way or in a way intend to conceal income and treated affirmative act and willfulness as aspirate issues and thus Boisseau’s legal standards arguments failed.