STATUTE OF LIMITATIONS-CONSTITUTIONAL LAW-SEARCH & ARREST

December 6th, 2018 by Rieders Travis in Constitutional Law

Tam Thah Nguyen v. Commonwealth of Penna; Bromberg, 2018 U.S. Dist. 2-15-cv-05082 (October 2018) Bibas, J.-A claim that a search was unconstitutional accrues when the officer conducts the search, not when a court later declares it unconstitutional. So the statute of limitations runs from the time of the search, not the time of the court decision. Here, Tam Thanh Nguyen sued Pennsylvania State Trooper Jared Bromberg for a 2012 search and arrest, but only after a 2015 Pennsylvania court decision held that search unconstitutional. Nguyen’s suit thus arrives more than a year late and is time-barred, so we will affirm. 

FEDERAL TORT CLAIMS ACT-DISCRETIONARY FUNCTION TEST-INMATE HOUSING ISSUES

October 10th, 2018 by Rieders Travis in Constitutional Law

Appellant Michael Rinaldi, who at all relevant times was an inmate in custody at United States Penitentiary, Lewisburg (“Lewisburg” or the “Institution”), appeals the District Court’s dismissal of his complaint alleging that the conduct of various personnel violated his constitutional and statutory rights. His appeal requires us to resolve three matters of first impression for our Court: (1) what showing an inmate must make to establish that administrative remedies were not “available” within the meaning of the Prison Litigation Reform Act (“PLRA”); (2) whether the PLRA’s exhaustion requirement is satisfied where a prison administrator elects to resolve a procedurally improper administrative request on the merits; and (3) whether a prison’s housing and cellmate assignments meet the discretionary function exception to the Federal Tort Claims Act’s limited waiver of sovereign immunity. For the reasons that follow, we will affirm the District Court’s dismissal of Rinaldi’s complaint in part and will vacate and remand in part.  The court found the proper exhaustion in that the constitutional claims can go forward, but it also found that the discretionary right of prison authorities with respect to housing and to the Federal Tort Claims Act…

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-DUE PROCESS-ACCESS TO THE COURTS

October 10th, 2018 by Rieders Travis in Constitutional Law

Jutrowski v. Twp. of Riverdale, 3d Cir. 2018 LEXIS 25806 (September 12, 2018) Krause, Jr.  This case arises from an undisputed constitutional violation: an act of excessive force committed during the arrest of Appellant Emil Jutrowski in which he was kicked in the face, breaking his eye socket. Appellees – consisting of two Riverdale, New Jersey Police Officers and two New Jersey State Troopers involved in the arrest (the “Individual Defendants”), and their respective employers, the Township of Riverdale and the State of New Jersey (collectively, the “Defendants”) – do not dispute that one of the officers kicked Jutrowski. But each of the Individual Defendants assert he neither inflicted the blow himself nor saw anyone else do so, and Jutrowski, whose face was pinned to the pavement when the excessive force occurred, is unable to identify his assailant. He therefore brought excessive force claims against all Defendants and conspiracy claims against the four Individual Defendants under 42 U.S.C.  § 1983. The District Court, however, relying on our precedent that a defendant in a civil rights action must have “personal involvement” in the alleged wrongs, Rode v Dellarciprete, 845 F.2d 1195,…

CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE-REGULATION

September 28th, 2018 by Rieders Travis in Constitutional Law

Newark Cab Association; Newark Taxi Owner Association; Teterboro Airport Limousine Service; ABBAS ABBAS; PETRO ABDELMESSIEH; SAYEV KHELLAH; MICHAEL W. SAMUEL; GEORGE TAWFIK, individually, and by certain plaintiffs on behalf of others similarly situated v City of Newark, 2018, U.S. Court of Appeals, Third Cir., (August 20, 2018) Chagares, J.  Newark Cab Association, Newark Taxi Owner Association, Teterboro Airport Limousine Service, Abbas Abbas, Petro Abdelmessieh, Sayev Khellah, Michael W. Samuel and George Tawfik (collectively, the “plaintiffs”) filed a lawsuit under 42 U.S.C. § 1983 and New Jersey law challenging an agreement the City of Newark (the “City”) entered into with Uber Technologies, Inc. (“Uber”). They alleged inter alia, that the City violated their rights under the Takings Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment by subjecting Uber and other Transportation Network Companies (“TNCs”) to less onerous regulations than those imposed on taxi and limousine operators. The City moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court granted the motion, and dismissed the action with prejudice. This appeal followed. The City’s decision to permit TNCs to operate…

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-RAP SONG

September 27th, 2018 by Rieders Travis in Constitutional Law

Commonwealth v Knox, 2018, LEXIS 4272 (August 21, 2018) Saylor J.  In this appeal by allowance, we address whether the First Amendment of the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers. While criminal drug charges were pending, Appellant and Brasley wrote and recorded a rap song entitled, “F—k the Police,” which was put on video with still photos of Appellant and Beasley displayed in a montage. In the photos, the two are looking into the camera and motioning as if firing weapons. The view was uploaded to YouTube by a third party, and the YouTube link was placed on a publicly-viewable Facebook page entitled “Beaz Mooga,” which the trial evidence strongly suggested belonged to Beasley. In terms of the songs effects, Officer Kosko testified that when he heard it he was “shocked” and it made him “nervous.” He cited it as one of the reasons he decided to leave the Pittsburgh police force and relocate. See id. at 107, 109. For his part, Detective Zeltner stated he found the video “very…

CONSTITUTIONAL LAW-FIRST AMENDMENT-RETALIATION

September 24th, 2018 by Rieders Travis in Constitutional Law

Kelly Conard v Penna. State Police, Penna. State Police Human Resources, Sgt. Joseph Tripp, Sgt. Dennis Hile, 2018 U.S. Court of Appeals, Third Cir., (August 28, 2018).  Plaintiff Kelly Conard appeals from the July 12, 2016 order of dismissal of a civil rights action that she brought under 42 U.S.C. § 1983 against her former employer, the Pennsylvania State Police, and her former State Police Supervisors, Sergeants Joseph Tripp and Dennis Hile. The District Court held that the bulk of Conard’s claims were barred because they had been adjudicated in a prior action which she initiated after she unsuccessfully sought reemployment by the State Police after she voluntarily resigned. The Court also dismissed her separate claim that defendants retaliated against her for having filed that prior action by giving her negative employment references as it held that the complaint failed to state a claim upon which relief could be granted. For the reasons set forth below, we will reverse the order dismissing Conard’s First Amendment retaliation claim. 

CONSTITUTIONAL LAW-FIRST AMENDMENT-RELIGION-CONTRACT SUIT WITH MINISTER

September 24th, 2018 by Rieders Travis in Constitutional Law

Lee v Sixth Mt. Zion Baptist Church of Pittsburgh, 2018 U.S. App. LEXIS 25152 (September 5, 2018) Shwartz, J.  Reverend Dr. William David Lee was terminated from his position as pastor of the Sixth Mount Zion Missionary Baptist Church (“the Church”) and sued the Church for allegedly breaching his employment contract. The District court granted summary judgment in the Church’s favor because the adjudication of Lee’s contract claim would impermissibly entangle the Court in religious doctrine in violation of the First Amendment’s Establishment Clause. We agree and will affirm.

CONSTITUTIONAL LAW-FIFTH AMENDMENT-TAKINGS CLAUSE

September 14th, 2018 by Rieders Travis in Constitutional Law

PA. Prof’l Liab. Joint Underwriting Ass’n v Wolf , 1308 U.S. Dist. LEXIS 119438 (July 18, 2018) Conner, C. Pennsylvania attempts to take over Joint Underwriting Assoc. Board transferred 200 million dollars to the General Fund of the Commonwealth violates Takings Clause of the Fifth and Fourteenth Amendment to the Federal Constitution. This is a taking of private property without due process and without compensation. The private funds of a private entity, in spite of an attempt by the General Assembly to take over the Association and make it public. The monies were previously put into the fund. A preliminary injunction was granted. Apparently part of this is on appeal of previous decision to the 3rd Circuit and of course there will have to be a final hearing on the instant matter. 

CONSTITUTIONAL LIVE IN PENNA. CONSTITUTION – ARTICLE III

September 14th, 2018 by Rieders Travis in Constitutional Law

§4. Washington v Dept. of Pub. Welfare of Pa., 2018, Pa. Supreme Court, LEXIS 3695 (July 18, 2018) J. Todd. This section of the Constitution requires that a bill’s language from its first consideration to its third and final consideration be the same language in order for Article III, §4 requirements to be met. In this case, the bill in question addressing public welfare code did not comply. The provisions of House Bill 1261, printer’s number 1385, were entirely removed from the bill by the Senate. There had already been enacted by a different piece of legislation. Thus, since the original provisions were gone when the new provisions were added by the Senate, it was factually and legally impossible for the new provisions to work together with the deleted provisions to accomplish a single purpose. Indeed, the purpose of the original provision sought to achieve had already been accomplished by other legislative means. We hold that amendments and such in Feebled legislation are not germane as a matter of law. Consequently, the Senate amendments were not germane and accordingly the passage of House Bill 1261, printer’s number 1385, were passed…

CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-UNIONIZATION BY PUBLIC EMPLOYEES

July 12th, 2018 by Rieders Travis in Constitutional Law

Janus v. American Federation of State, County and Municipal Employees, 2018 U.S. LEXIS 4028 (S. Ct. June 27, 2018) Alito, J. Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” The total chargeable amount for nonmembers was 78.06% of full union dues. Id., at 34a.  In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because…