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Thread: Practicing PRO-SE

  1. #1
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    Practicing PRO-SE

    Those of you who are not aware of it may wish to have a good look at the following:

    http://www.saf.org

    It's the SECOND AMENDMENT FOUNDATION which if you have an interest in law, the 2nd Amendment, pro se or otherwise, you might just want to keep in touch with these people.

    For what it's worth, just my opinion.

    tyc
    Last edited by tyc; 01-03-2013 at 07:24 AM.

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    Last edited by tyc; 08-11-2012 at 09:00 PM.

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    Update to CITATIONS for Pro Se use / Part I

    . CITATIONS 120811


    .................................................. .................................................. ..........................................

    P A R T - I

    .................................................. .................................................. ..........................................


    XXXXXXXXXXXXXXXXX
    . 1ST AMENDMENT
    XXXXXXXXXXXXXXXXX

    . 1ST AMENDMENT: "... courts have held that the mere assertion of First Amendment rights "does not automatically require a finding of irreparable injury." Turner et al v. Whittington Civil Action No. 98-2634 (1998); Rushia v. Town of Ashburnham, 701 F.2d 7, 10 (1st Cir. 1983); see also Hohe v. Casey, 886 F.2d 69, 73 (3rd Cir.) (assertion of First Amendment right does not automatically require finding of irreparable harm), cert. denied, 493 U.S. 848 (1989).


    . 1ST AMENDMENT: Notwithstanding plaintiffs' suggestion that First Amendment allegations automatically establish irreparable harm, the requirement that a litigant establish that it will suffer irreparable injury applies no less in First Amendment cases. Turner et al v. Whittington Civil Action No. 98-2634 (1998)




    XXXXXXXXXXXXXXXXX
    . 5th AMENDMENT
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    . 5TH AMENDMENT: "The right to just compensation reflects the funding generation's view that securing property rights is one of the first duties of good government." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000;

    . 5TH AMENDMENT / PROPERTY RIGHTS: "Behind this question stands a constitutional right with deep roots in our constitutional history and traditions. The right to compensation for private property taken by the government for public use reflects one of the most widely- held political axioms of the generation of Americans who wrote and ratified the Constitution. They shared the belief that one of the highest purposes of government is to secure property rights." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000

    . 5TH AMENDMENT: The Fifth Amendment provides, "nor shall private property be taken for public use, without just compensation." U.S. Const. art. V.

    . 5TH AMENDMENT: Delegates to the Philadelphia Convention did not discuss this right, and none of the state ratifying conventions recommended its adoption.
    See The Complete Bill of Rights 375 (Neil H. Cogan ed., 1997) (Cogan).
    It became part of the Bill of Rights owing to a proposal made by James Madison on the floor of the House of Representatives on June 8, 1789. Id. at 361.


    . 5TH AMENDMENT: This right to compensation, enshrined in the Takings Clause, reflects an intellectual and political culture that considered the security of property rights as one of the chief purposes of good government. Perhaps the most influential political theory during the Founding Era is represented by the work of John Locke.


    . 5TH AMENDMENT: Locke regarded the arbitrary interference with property rights as a betrayal of those purposes that prompt people to sacrifice their natural liberty in favor of the limited but more secure civil liberty. Absolute Arbitrary Power, or Governing without settled standing Laws, can neither of them consist with the ends of Society and Government, which Men would not quit the Freedom of the state of Nature for, and tie themselves up under, were it not to preserve their Lives, Liberties and Fortunes; and by stated Rules of Right and Property to secure their Peace and Quiet.


    . 5TH AMENDMENT: John Locke, Two Treatises of Government 359 (Peter Lasletted., 1988). This philosophical view of property as one of three fundamental civil rights to "Lives, Liberties and Fortunes," id., neatly fits with Blackstone's view of property, which he regarded as an "absolute right, inherent in every Englishman." Blackstone, Commentaries *134. Blackstone explained that by this right to property he meant "the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." Id.


    . 5TH AMENDMENT: The Lockean triad of "life, liberty, property" appears repeatedly in key documents of the Founding Era. The very first paragraph of the Virginia Bill of Rights, enacted on June 12, 1776, declares the following rights "as the basis and foundation of government," Sources and Documents Illustrating the American Revolution 1764�1788, at 149 (S.E. Morrison ed., 2d ed., 1929):


    . 5TH AMENDMENT: James Madison, rightly named the "Father of the Constitution," repeatedly stated his conviction that the government owes its citizens the duty of securing property rights. "Although other classes of rights still concerned Madison, his analysis of the dangers to property was paradigmatic for the program of reform he carried to Philadelphia in 1787." Jack N. Rakove, Original Meanings 314 (1996). As one of the authors of The Federalist, Madison wrote that protecting "[t]he diversity in the faculties of men from which the rights of property originate . . . is the first object of Government ." The Federalist No. 10, at 58 (Jacob E. Cooke ed., 1961) (emphasis added).


    . 5TH AMENDMENT: "[T]he right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man." Van Horne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304 (1795); see also Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000


    . 5TH AMENDMENT: "The preservation of property then is a primary object of the social compact, and by the last Constitution of Pennsylvania, was made a fundamental law." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000

    . 5TH AMENDMENT: Chief Justice Rehnquist, writing for the majority in Dolan v. City of Tigard, 512 U.S. 374 (1994), put these concerns in perspective. "Simply denominating a governmental measure as a `business regulation' does not immunize it from constitutional challenge. . . ."
    Dolan v. City of Tigard, 512 U.S. 374 (1994) Id. at 392.


    . 5TH AMENDMENT: In words written so as not to be easily forgotten, the Chief Justice of the United States left no doubt that property rights occupy a place high in the pantheon of personal liberties. "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; see also Dolan v. City of Tigard, 512 U.S. 374 (1994) Id.


    . 5TH AMENDMENT: [T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; quoting Lynch. v. Household Finance Corp., 405 U.S. 538 (1972).



    xxxxx

    . 5TH AMENDMENT: "... a government regulation may operate as a taking, entitling the owner to compensation. The outcome of such non-categorical cases turns on "[t]he economic impact of the regulation on the claimant," "the character of the governmental action," and "the extent to which the regulation has interfered with distinct investment-backed expectations."
    Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).

    xxxxx



    . 5TH AMENDMENT: Previously it was thought that "the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy" justified the government in denying a claim for compensation and that "mandamus or declaratory relief rather than inverse condemnation is the appropriate relief." Agins v. Tiburon, 24 Cal. 3d 266, 276�77 (1979).


    . 5TH AMENDMENT: ... the Supreme Court has held that "government action that works a taking of property rights necessarily implicates the `constitutional obligation to pay just compensation.'" Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; (quoting First English Evangelical Lutheran Church v. Glendale, 482 U.S. 304, 315 (1987)) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)


    . 5TH AMENDMENT: The Court has also extended this obligation to include temporary takings. First English Evangelical Lutheran Church v. Glendale, 482 U.S. 319 (1987)


    . 5TH AMENDMENT: Whatever deference courts owe to the political branches in their regulatory decision making must be tempered by the constitutional requirement of "just compensation." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000


    . 5TH AMENDMENT: It is axiomatic that the Takings Clause "protects rather than creates property interests." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; quoting Phillips v. Washington Legal Found., 524 U.S. 156, 164 (1998).


    . 5TH AMENDMENT: "... state and local officials are free to structure property law as they wish. However, the Supreme Court has underscored that "at least as to confiscatory regulations (as opposed to those regulating the use of property)," state and local officials may not "sidestep the Takings Clause by disavowing traditional property interests long recognized under state law." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; quoting Phillips v. Washington Legal Found., 524 U.S. 156, 164 (1998) Id. at 167.


    . 5TH AMENDMENT: "... government does not have unlimited power to redefine property rights." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 (1982)).


    . 5TH AMENDMENT: Property interests are defined by state law. Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000 (quoting Phillips, 524 U.S. at 164).


    . 5TH AMENDMENT: Federal regulatory takings law defines not what is "property," but only when property has been "taken," for which "just compensation" is due. Furthermore, when a confiscatory regulation is at issue, as in this case, government officials may not "sidestep the Takings Clause by disavowing traditional property interests long recognized under state law." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000 (quoting Phillips, 524 U.S. at 167).


    . 5TH AMENDMENT: "... a confiscatory regulation presents a categorical taking, for which no messy "case-specific inquiry into the public interest advanced in support of the restraint is necessary," Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)).


    . 5TH AMENDMENT: "A regulatory takings claim, ... arises from the rule that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).


    . 5TH AMENDMENT: Regulatory takings ... occur without formal proceedings or the passage of title. ... they are characterized by "governmental action [that] affect[s] some but not all of the `bundle of rights' which constitute the `property' in question." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000 (quoting United States v. Security Industrial Bank, 459 U.S. 70, 75�76 (1982)).


    .5TH AMENDMENT: Because regulatory takings claims involve disputed liability, they are more difficult to litigate and adjudicate. Litigants must present and defend against claims based on "complex factual assessments of the purposes and economic effects of government actions." Machipongo Land and Coal Co., Inc. et al v. PA, et al No. 112 M.A.P. 2000; Yee v. City of Escondido, 503 U.S. 519, 523 (1992).


    . 5TH AMENDMENT: Two exceptions to the general complexity of regulatory takings claims may apply. An owner may stake a claim to compensation without engaging in "ad hoc, factual inquiries," Penn Central Trans. Co. v. New York City, 438 U.S. 104, 124 (1978), if he can demonstrate (1) the total deprivation of economically beneficial use, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992), or (2) the physical occupation of property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435�40 (1982).


    . 5TH AMENDMENT: But for regulatory takings, "the usual rule is that the time of the invasion constitutes the act of taking, and `[it] is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued. . . .'" Clarke, 445 U.S. at 258 (quoting United States v. Dow, 357 U.S. 17, 22 (1958)).


    . 5TH AMENDMENT: "This means that the compensation due an owner for property taken through regulation may be substantially increased by the fact that the taking occurred several years in the past and that, consequently, both compensation and interest are due.


    . 5TH AMENDMENT: "... and nothing in the Fifth Amendment compels the Commonwealth to elect to exercise its eminent domain power rather than its regulatory power. See Clarke, 445 U.S. at 257. This error alone calls for reversal on the issue of remedies. But the Commonwealth Court made, if possible, an even more serious error when it described the legal effect of ruling in favor of Machipongo and the remedy available to it. The court's statement bears repeating. "Because Coal Owners are now free to seek permits to mine the coal, any damages that they now desire to seek shall be through the normal eminent domain process for a temporary taking." Machipongo VI, Appellees' Appendix B, at 38. This understanding of temporary takings and the correct remedy for a regulatory taking are directly repugnant to the U.S. Supreme Court's decision in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).


    ... mistakenly applied regulatory power ...


    . 5TH AMENDMENT: The Court started from the premise that "government action that works a taking of property rights necessarily implicates the `constitutional obligation to pay just compensation.'" First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 315 (1987) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960))


    . 5TH AMENDMENT: It also pointed out that the duty to compensate an owner for the taking of private property is based not on any statute, but on the fact that "claims for just compensation are grounded in the Constitution itself." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
    Id.


    .5TH AMENDMENT: "... it is the Constitution that dictates the remedy for interference with property rights amounting to a taking." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 316 (1987).


    . 5TH AMENDMENT: "... many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities, and the Just Compensation Clause of the Fifth Amendment is one of them. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 321


    . 5TH AMENDMENT: First English thus contains several key lessons about the Takings Clause.

    1. Compensation, or money damages, is the remedy prescribed by the Clause. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 315.

    In reaching this conclusion, the Court rejected the California Supreme Court's reading of the Clause, holding that declaratory or injunctive relief was a sufficient remedy to satisfy the Constitution. Compare id. with Agins v. City of Tiburon, 598 P.2d 25, 31 (Cal. 1979).

    2. A claim to compensation brought under the Takings Clause is self-executing, meaning that no statutory provision is necessary for its enforcement. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 316

    3. Although the government is free to abandon the enforcement of a regulation or to repeal the regulation itself, "where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 321.



    . 5TH AMENDMENT




    . 5TH AMENDMENT







    xxxxxxxxxxxxxxxx
    11th AMENDMENT
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    The Eleventh Amendment, ratified in 1795, states that the "judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State...".

    The Amendment was passed as a reaction to Chisholm v. Georgia, 2 U.S (2 Dall.) 419, 1 L.Ed. 440 (1793), where the Supreme Court found that it had jurisdiction when the executor of a South Carolina estate brought an action to recover the debt the state of Georgia owed his decedent.

    The amendment recognizes that states have a certain degree of sovereign immunity. They are not mere subordinates to the federal government but instead virtual quasi-sovereigns. While the original Constitution gave the Supreme Court jurisdiction over States when non-citizens brought actions against them, the 11th amendment was a legitimate change to the original Constitution, ratified by three-fourths of the states and binding as a limit on judicial power. Only future amendments could abrogate such constitutional sovereign immunity.

    Originally the 11th Amendment only forbade actions by non-citizens against a defendant state. But Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) extended the doctrine of such sovereign immunity, holding that the 11th Amendment barred suit even by citizens of that defendant state. All private parties were subject to the amendment, although other states and the federal government could still bring actions against a state.

    Where Federalism had created a tension between state and federal sovereignty, the 11th amendment had tried to resolve such tension in favor of the states. The result, however, was that states became virtually immune to federal law, since private parties could not sue. To avoid such problems, the Supreme Court eventually adopted the legal fiction of the Stripping Doctrine, which recognizes that private parties can sue state officers in their official capacity for injunctive relief.

    "The judicial power"

    Federal courts derive their power (jurisdiction) from Article III of our Constitution. That article creates one Supreme Court and such inferior federal courts (trial and intermediate appellate) as Congress ordains and establishes. The power exercised by federal courts is the "judicial power", the power to hear and decide "cases and controversies" within 9 enumerated areas. For a look at the structure of judicial power under Article III see the Article III flowchart. For the limits of federal jurisdiction, see the Justiciability flowchart.

    The 11th Amendment does not touch on Legislative or Executive power, and states are not immune to their jurisdiction. Although the Supreme Court has never decided whether or not the 11th Amendment applies to suits against States in federal administrative courts (which do not formally exercise "judicial power"), basic principles of federalism and state sovereignty would suggest that States cannot be sued there either.

    ...of the United States...
    By its terms, the 11th Amendment applies only to suits against States in federal courts. State courts can hear such cases, although the Supreme Court has found States not suable in state court under 42 U.S.C. § 1983 (but not on 11th Amendment grounds).

    While the Supreme Court has never decided the issue, basic principles of federalism and state sovereignty would suggest States cannot be sued in federal administrative courts either (as they are federal bodies).

    "...shall not be construed to extend..."
    The 11th Amendment recognizes a degree of sovereign immunity on the parts of the States. States are immune to actions brought by citizens in federal courts against them. But while the 11th Amendment provides States with such immunity from the outset, States can choose to waive their immunity. In certain circumstances such a waiver must be unequivocally expressed, while in others mere litigation waiver will suffice (ie.the State chooses to remove the action from a state court to a federal court).

    "...to any suit in law or equity..."
    Nominally, the amendment provides immunity to States from actions in both law and equity (ie.from both money damages and injunctive relief). But with the advent of the Stripping Doctrine, which allows citizens to sue state officials, the federal courts have drawn a line between injunctive and monetary relief.

    Courts are willing to allow actions against state officers because foreclosure of such actions would ensure that no method existed of allowing enforcement of federal laws against the states. But they uphold the legal fiction that state officers can be sued in their official capacity even though they supposedly acted outside their official authority only to the extent of providing injunctive relief. Private parties cannot sue state officers in their official capacity for monetary damages, as such money would in reality come from the State treasury (depriving the states, as such, of their sovereign immunity). However, private citizens can sue state officers in their official capacity for injunctive relief and also bring monetary damage actions against them in their individual capacity.

    "...commenced or prosecuted against..."
    While States have a degree of sovereign immunity (as quasi-sovereigns), and cannot be sued in federal courts, they themselves can choose to bring actions there.

    Note that while the 11th Amendment gives States immunity from actions by private parties (ie.citizens and private corporations), other States and the United States itself can still sue a State in federal court.

    "...one of the United States..."
    A State is a broad body, with many agencies and departments. All such non-political subdivisions of a State are immune under the 11th Amendment. However, the Stripping Doctrine extends to them as well, and private parties can bring actions against the officers of a state agency.

    The 11th Amendment does not give political subdivisions of a State, such as a municipality, sovereign immunity. Private parties can bring actions against cities and their agencies. To determine whether a particular agency is an arm of the state or municipality, the courts will look to state law. In bringing such actions one has to be careful because certain agencies act in one capacity as a state agency, and in another capacity as a municipal agency; they can only be sued in their capacity as a municipal body.

    "...by Citizens of another State, or by Citizens or Subjects of any Foreign State.
    On its face, the 11th Amendment allows a State immunity from actions by non-citizens and foreigners (nominally applied to diversity suits only, but now extended to federal question jurisdiction). However, the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) extended such sovereign immunity to actions brought by citizens of the defendant state as well. Now no citizen of the United States can sue a State. To ensure that States would not escape Federal law the courts created the Stripping Doctrine which allows citizens to bring actions against state officers in their official capacity for injunctive relief.


    . 11TH AMENDMENT - INDIVIDUAL CAPACITY: Cannot be answered in the abstract ... the general rule that individual capacity cases are not barred by the amendment because no damages are sought from the state treasury, and cites cases holding that the general rule applies even if the state chooses to indemnify, or the judgment may far exceed the ability of the individual to pay. But ... the court must "consider whether it [the suit] may really and substantially be against the state." Indirect effects on the state treasury are not enough to bar individual suits, but a suit that ?demonstrably has the identical effect as a suit against the state is, we think barred. Any other position would be completely unrealistic and would make a mockery of the Supreme Court?s heightened sensitivity to state prerogatives. ... " Luder v. Endicott 2001 WL 668667 (7th Cir. June 15, 2001)








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    14th AMENDMENT
    xxxxxxxxxxxxxxxx


    CORNEL LII / US CONSTITUTION / XIV AMENDMENT

    EQUAL PROTECTION: AN OVERVIEW

    The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. See U.S. Const. amend. XIV. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. By denying states the ability to discriminate, the equal protection clause of the Constitution is crucial to the protection of civil rights. See Civil Rights and Discrimination.

    Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional. The Supreme Court has dictated the application of different tests depending on the type of classification and it's effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has "a rational basis" to a "legitimate state purpose." The Supreme Court, however, has applied more stringent analysis in certain cases. It will "strictly scrutinize" a distinction when it embodies a "suspect classification." In order for a classification to be subject to strict scrutiny, it must be shown that the state law or its administration is meant to discriminate. Usually, if a purpose to discriminate is found the classification will be strictly scrutinized if it is based on race, national
    origin, or, in some situations, non U.S. citizenship (the suspect classes).

    In order for a classification to be found permissible under this test it must be proven, by the state, that there is a compelling interest to the law and that the classification is necessary to further that interest. The Court will also apply a strict scrutiny test if the classification interferes with fundamental rights such as first amendment rights, the right to privacy, or the right to travel. The Supreme Court also requires states to show more than a rational basis (though it does not apply the strictly scrutiny test) for classifications based on gender or a child's status as illegitimate.

    The 14th amendment is not by its terms applicable to the federal government. Actions by the federal government, however, that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment.

    See U.S. Const. amend. V.



    14th amendment does a lot of things. One thing it contains is equal protection, which prohibits laws that discriminate basically. It prohibits segregated public schools for one thing. It would also prohibit a law that gives preferences to classes of people based on their race, alienage, or national origin without proper justification.


    . 14TH AMENDMENT: In both Kimel and Garrett, the Court distinguishes discrimination by age and disability, respectively, from that of gender. Gender discrimination is reviewed under a stricter test than the age and disability. The historical record clearly documents state discrimination on the basis of gender. Hence, the lack of further Congressional findings regarding gender discrimination by the states is less significant in importance. Kimel states that lack of support in findings is not determinative of the 14th Amendment issue.
    Silber-Khodr v. University of Texas Health Science Center at San Antonio 261 F. 3d 542 (5th Cir. 2001)



    . 14TH AMENDMENT: That the requirement of reasonable accommodation is neither congruent or proportional to the prescriptions of the 14th Amendment.The absence of a reasonable accommodation would be permissible under the 14th Amendment so long as there was any rational basis for the absence.
    Garcia v. S.U.N.Y. Health Science Center of Brooklyn 2001 WL 1159970 (2d Cir. Sept. 26, 2001)


    . 14TH AMENDMENT: To the extent Title VII prohibits disparate impact discrimination, it goes further than the constitutional limits on state action, but is congruent and proportional to them. Congress recognized that some employment practices lacking a discriminatory intent may be functionally equivalent to intentional discrimination. "The Title VII 'prophylactic' response to a pattern of unconstitutional state action is proportional and congruent. Okruhlik v. University of Arkansas 255 F. 3d 615 (8th Cir. 2001)

    . 14TH AMENDMENT: Gender discrimination case brought by a male employee. The state argued that Congress exceeded its 14th Amendment authority when it abrogated the state's immunity in suits brought by men. The state asserted that Congress failed to identify a pattern of discrimination by states against men in employment. The court rejected a requirement of a record of discrimination limited to men where the statute bars discrimination against both sexes. The Constitution does not require "a parsing of the legislative findings or review 'proportionality and congruity' of remedies to determine whether the Eleventh Amendment bar also has been removed with respect to Title VII actions by men. " The court noted that applying such a case specific approach would mean that only African-Americans could bring race discrimination suits against states. Maitland v. University of Minnesota 2001 WL 914196 (8th Cir. Aug. 15, 2001)


    . 14TH AMENDMENT: "The Equal Protection Clause of the Fourteenth Amendment forbids a state to 'deny to any person within its jurisdiction the equal protection of the laws.'" Myers v. Riedge et al 712 A.2d 791


    . 14TH AMENDMENT: "Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights... It is enough that there is no discrimination in favor of one as against another of the same class. ...And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." See Giozza v. Tiernan, 148 U.S. 657, 662 (1893)


    . 14TH AMENDMENT: “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 480 (1960)

    . 14TH AMENDMENT / TORT LIABILITY: Although the Court held that the City of Chicago was not liable on a respondeat superior theory [later expressly overturned in Monell et al v Dept Soc Serv City of New York, 436 U.S. 658 (1977)], the Court specifically held that the police officers were not entitled to immunity and instructed that suits brought with these civil rights claims : “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pape, 365 U.S. 167, 81 S Ct 473, 484 (1960)





    XXXXXXXXX
    . 28USC
    XXXXXXXXX

    . 28USC § 2403(a) : ... under 28 U.S.C. § 2403(a), the United States has a right to intervene to defend the constitutionality of federal statutes in lawsuits in which the federal government is not otherwise a party. Turner et al v. Whittington Civil Action No. 98-2634 (1998)


    . 28USC § 2403(a) : [i]n any action, suit or proceeding to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question, the court . . . shall permit the United States to intervene for ... argument on the question of constitutionality. Turner et al v. Whittington Civil Action No. 98-2634 (1998)

    . 28USC § 2403(a) :


    . 28USC § 2403(a) :


    . 28USC § 2403(a) :




    XXXXXXXXXXXXXXX
    42 USC SS1983
    XXXXXXXXXXXXXXX


    . 42 U.S.C. 1983: 42 U.S.C.  1983 does not explicitly refer to the "likelihood" of deprivation of federal rights, but rather imposes liability on any person who "subjects, or causes to be subjected" any other person "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002)


    .42 U.S.C. 1983: Suit under Title VII and 42 U.S.C. §§ 1981 and 1983. Board of Trustees substituted as defendant. Held, claims for color, sex and national origin are within Fourteenth Amendment Authority. Navarro v. UIC Medical Center 2001 WL 1166920 (N.D. Ill. Sept. 13, 2001)


    . 42 U.S.C. §1983: In order to assert liability under 42 U.S.C. §1983, a plaintiff must meet two threshold requirements. He must allege: 1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. Daniels v. Williams 474 U.S. 327, 330-331 (1986) see also Parratt v. Taylor 451 U.S. 527, 535 (1981)



    XXXXXXXXXXXX
    NEGLIGENCE
    XXXXXXXXXXXX


    .NEGLIGENCE: Most negligence cases depend on whether the defendant owed a DUTY to the plaintiff. A duty arises when the law recognizes a relationship between the defendant and the plaintiff, and because of the relationship the defendant has an obligation to act in a certain manner toward the plaintiff. Usually it is a judge who determines if a defendant did in fact owe a duty of care or a service to the plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances it is reasonable to expect that the court will find such a duty exists on the part of the defendant.


    . NEGLIGENCE - "Breach of Duty": A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff ... by failing to exercise reasonable care in fulfilling the duty. Unlike the question if a duty exists at all, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact.


    . NEGLIGENCE - Cause in Fact: Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury - "but-for" causation - but for the defendant's actions, the plaintiff's injury would not have occurred.


    . NEGLIGENCE - Proximate Cause: This addresses the "scope" of a defendant's responsibility in a negligence case, those harms that the defendant could have foreseen as a result of his or her actions. If a defendant has caused damages that are outside of the scope of the risks that the defendant could have foreseen then the plaintiff cannot prove that the defendant's actions were the proximate cause of the plaintiff's damages.


    . NEGLIGENCE: In a negligence case the plaintiff has to prove a "legally recognized harm" such as a physical injury to an individual or to property. It is NOT enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damage(s) to the individual to whom the defendant owed a duty of care.


    . NEGLIGENCE: It may extend to people or entities which were not directly involved in what took place. For example, using a car accident scenario; the driver of the company vehicle caused an accident while in the performance of her/her duty but there is as well possible "VICARIOUS LIABILITY" which attaches to the owner of the company the driver works for as the company is responsible for any carelessness on the part of the driver while working for the company. Note, this is done for economic purposes as the company is probably as well or better insured and better able to pay for the damages than the driver.


    . NEGLIGENCE: The concept of negligence is not limited to the action (or inaction) of an individual. Small businesses, partnerships, organizations, and large corporations may all be held legally responsible in situations where they failed to properly ensure the safety of others. This is especially true in personal injury cases that stem from defective and dangerous products (against product manufacturers, distributors, and sellers) and in "slip and fall" cases (against commercial businesses and corporate property owners).


    . NEGLIGENCE - "STRICT LIABILITY": Some injury claims go by what is known as "strict liability." Toxic chemical spills, dangerous animal injuries etc. In such cases a plaintiff need not necessarily show that the defendant was at fault. He just has to show chemicals or the animal caused the injuries.


    . NEGLIGENCE: In such claims the plaintiff (the injured party) must prove that the defendant;
    (1) that the defendant owed a legal duty to the plaintiff under the circumstances;
    (2) that the defendant failed to fulfill ("breached") the legal duty by way of action (or a failure to act) or by conduct
    (3) which as a result caused injury to the plaintiff; and
    (4) plaintiff suffered harm and/or injuries as a result.


    . NEGLIGENCE - PROOF: Usually done by two types of evidence: direct and circumstantial.
    (1) Direct Evidence - Witness, photograph or video
    (2) Circumstantial Evidence - Requires a fact-finder (Judge) to draw a reasonable inference based on evidence presented.


    . NEGLIGENCE - PROOF: Courts have formulated special rules that govern proof in specific instances. In a slip-and-fall case, where a plaintiff's injury occurs when the plaintiff slips and falls due to a condition on the defendant's property, courts require the plaintiff to prove that the condition existed for such a length of time that the defendant should have discovered and remedied the condition. Thus, a plaintiff who sues a supermarket when she slips on spilled liquid laundry soap could not recover from the supermarket without showing that the liquid had been on the floor long enough for the supermarket to have discovered it. Evidence that the soap was smeared across the floor due to the number of customers walking on the liquid may be sufficient proof in this type of case.


    . NEGLIGENCE - Standards of Care and the "Reasonable Person": Relates only to a person's conduct, not the individuals state of mind. What would a reasonable person do in similar circumstances?


    . NEGLIGENCE - A Reasonable Person: This is legal fiction. An objective test, one not taking into account the specific abilities or lack of these in the case of the defendant. The jury generally considers the defendant's conduct in light of what the defendant actually knows, has experienced, or has perceived - the defendant would be liable for negligence only if the defendant owed a duty to the plaintiff, with a knowledge which should be common to everyone (adult) in a particular "community".


    . NEGLIGENCE - Duty to Rescue: The general rule is that a person has no duty to rescue another person who is in peril. Even in an extreme situation, however there are exceptions.


    . NEGLIGENCE - Defendant Created Peril. Where the defendant created the need for rescue the defendant is generally duty bound to rescue the plaintiff.


    . NEGLIGENCE - If a defendant begins to rescue a person but then stops, the defendant may be under a duty to continue the rescue.


    . NEGLLIGENCE - Special Relationship: Defendant may have the duty to rescue a person where the defendant has a special relationship with the victim, such as in an employer-employee or a school-student relationship.


    . NEGLIGENCE - Duty to Control: most common example, parent and child. If a parent is aware of a child's dangerous propensities, then the parent is generally under a duty to exercise reasonable care in controlling the child.


    . NEGLIGENCE - Duty to Protect: Jailors and prisoners or innkeepers and guests. Possibly landlord-tenant and business-patron relationships, but the law is less clear about duties in these instances.


    . NEGLIGENCE - To prove negligence a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes plaintiff can use circumstantial evidence to establish negligence.


    . NEGLIGENCE - Circumstantial Evidence: Judges and juries may infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience.


    . NEGLIGENCE - Res ipsa is one type of circumstantial evidence: Allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff ... no other explanation could account for the cause of the plaintiff's injuries. It allows judges and juries to apply common sense to determine whether or not the defendant acted negligently.


    xxxxx

    . NEGLIGENCE - "res ipsa loquitur" - "The thing speaks for itself": The plaintiff must prove that the event that occurred usually does not happen in the absence of negligence. The plaintiff must also prove the defendant had exclusive control of the instrument that caused injury . . . if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.

    . NEGLIGENCE - Elements of Res Ipsa Loquitur:
    (1) The event doesn't normally occur unless someone has acted negligently;
    (2) The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and
    (3) The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.

    . NEGLIGENCE - Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove it. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.

    xxxxx


    . NEGLIGENCE - Presence of Negligence: Some accidents almost never occur unless someone has acted negligently.

    Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.


    . NEGLIGENCE - Only the Defendant Is Responsible: If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then there will be no recovery under res ipsa.


    . NEGLIGENCE - Did the defendant had exclusive control over the specific instrumentality that caused the accident?


    . NEGLIGENCE - Defendant Owes the Plaintiff a Duty of Care: The defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant has no such duty then there is no liability. In many states landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.


    . NEGLIGENCE - Defenses to Negligence Claims: The defendant introduces evidence that he or she did not owe a duty to the plaintiff, exercised reasonable care, did not cause the plaintiff's damages, and so forth. In addition to negating one or more of these elements, a defendant may rely on one of a few doctrines that may eliminate or limit liability based on alleged negligence. Two of the more common doctrines are comparative fault and assumption of the risk - COMPARATIVE FAULT and ASSUMTION OF RISK.


    . NEGLIGENCE - Defense - Comparative Fault: Prove contributory negligence by the plaintiff.


    . NEGLIGENCE - Defense - A majority of states bar recovery if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant.


    . NEGLIGENCE - Defense - Assumption of the Risk: Plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity.


    . NEGLIGENCE - Contributory and Comparative Negligence: "Who was at fault?" If the defendant is able to prove the contributory negligence claim, the plaintiff may be totally barred from recovering damages or damages may be reduced to reflect plaintiff's role in the accident.


    . NEGLIGENCE: A term used to characterize conduct that creates an unreasonable risk of harm to others. In order to prevail on a negligence claim, plaintiff will have to prove several things.
    (1) The person claiming injuries will have to show that the defendant had a duty to act in a certain manner towards the injured person. The general rule is that an individual has a duty towards all persons, at all times, to exercise reasonable care for the person's physical safety and property.
    (2) A successful plaintiff must prove that the defendant failed to act in a reasonable manner.
    (3) Plaintiff must show that he or she suffered actual damages or loss as a result of the unreasonable behavior.


    . NEGLIGENCE - Contributory Negligence: Conduct that creates an unreasonable risk to one's self. Contributory negligence is a defense to a negligence action. Procedurally, negligence must be asserted and proved by the plaintiff before the defendant will be allowed to introduce evidence of contributory negligence. Contributory negligence is then proved in the same manner that the initial negligence claim was established.


    . NEGLIGENCE - Comparative Negligence: Two Approaches - "Pure" comparative negligence is the most flexible approach used to allocate fault. Under pure comparative negligence, a plaintiff's damages would be totaled and then reduced to reflect her contribution to the injury.


    . NEGLIGENCE - Comparative Negligence: Two Approaches - "Modified" Plaintiff will not recover if he or she is found to be equally responsible or more responsible for the resulting injury. Plaintiff must not be more than 50% at fault for the resulting injury. States differ regarding whether to preclude damages when the plaintiff is found to be 50% (equally responsible) or 51 % (more responsible) for the injury.


    . NEGLIGENCE - § 146.9. Comparative negligence.

    (a) Where comparative negligence is applied to a claim settlement offer or denial, insurers shall fully disclose to claimants the basis in fact or in applicable law for the offer or denial and settlement standards relating to the claims.

    (b) Insurers may not use comparative negligence claim settlement standards which are inequitable and which result in compelling claimants to litigate by offering substantially less than the amount due and ultimately recovered in actions brought by the persons. Comparative negligence should not be applied to a claim settlement to reduce amounts claimants would otherwise be entitled to but for their negligence without reasonable evidence of the negligence and its relativity to the total negligence involved. A record of the evidence and the evaluation of its effect should be maintained in the claim file.

    The provisions of this § 146.9 adopted December 15, 1978, effective December 16, 1978, 8 Pa.B. 3575.


    . NEGLIGENCE: In Pennsylvania Courts, injured parties have to prove three legal points in a personal injury case:
    (1) Negligence,
    (2) Causation and
    (3) Damages


    . NEGLIGENCE: Pennsylvania has adopted Section 286 of the Restatement of Torts Second. This Restatement provides: “The Court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment … whose purpose is found to be
    (a) exclusively or in part to protect a class of persons which includes the one whose interest is invaded, and
    (b) to protect the particular interest which is invaded, and
    (c) to protect that interest against the kind of harm which has resulted, and
    (d) to protect that interest against the particular hazard from which the harm results.

    . NEGLIGENCE: Once these four points are established, plaintiff may motion that the defendant was negligent as a matter of law. When the judge does this, the plaintiff has just moved a third of the way closer to winning their case.

    . NEGLIGENCE:






    xxxxxxxxxx
    PRACTICE
    xxxxxxxxxx


    . PRACTICE: The district court could properly deny leave to amend the complaint after it had already dismissed the action. A plaintiff's right to amend continues after the complaint is dismissed so long as the action itself has not yet been dismissed and the amended complaint would itself be timely. Newland v. Dalton No. (9th Cir.) 94-55984 (1996) quoting Allen v. Veterans Admin., 749 F.2d 1386, 1389 (9th Cir. 1984)





    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
    RIGHTS - DELIBERATE INDIFFERENCE
    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

    . RIGHTS - DELIBERATE INDIFFERENCE: Without ruling on respondents' request to stay discovery, the District Court denied petitioner's Rule 56(f) motion and granted summary judgment to respondents, concluding that there had been no deliberate indifference to petitioner's safety. The failure of prison officials to prevent inmate assaults violates the Eighth Amendment, the court stated, only if prison officials were "reckless in a criminal sense," meaning that they had "actual knowledge" of a potential danger. App. 124. Respondents, however, lacked the requisite knowledge, the court found. "[Petitioner] never expressed any concern for his safety to any of [respondents]. Since [respondents] had no knowledge of any potential danger to [petitioner], they were not deliberately indifferent to his safety." Ibid.

    The United States Court of Appeals for the Seventh Circuit summarily affirmed without opinion. We granted certiorari, 510 U. S. __ (1993), because Courts of Appeals had adopted inconsistent tests for "deliberate indifference." Compare, for example, McGill v. Duckworth, 944 F. 2d 344, 348 (CA7 1991) (holding that "deliberate indifference" requires a "subjective standard of recklessness"), cert. denied, 503 U. S. __ (1992), with Young v. Quinlan, 960 F. 2d 351, 360-361 (CA3 1992) ("[A] prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate").

    . RIGHTS - DELIBERATE INDIFFERENCE: Although we have never paused to explain the meaning of the term "deliberate indifference," the case law is instructive. The term first appeared in the United States Reports in Estelle v. Gamble, 429 U. S., at 104, and its use there shows that deliberate indifference describes a state of mind more blameworthy than negligence. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994), quoting

    . RIGHTS - DELIBERATE INDIFFERENCE: While Estelle establishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)

    . RIGHTS - DELIBERATE INDIFFERENCE: With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994) see also LaMarca v. Turner, 995 F. 2d 1526, 1535 (CA11 1993); Manarite v. Springfield, 957 F. 2d 953, 957 (CA1); Redman v. County of San Diego, 942 F. 2d 1435, 1443 (CA9 1991); McGill v. Duckworth, 944 F. 2d, at 347; Miltier v. Beorn, 896 F. 2d 848, 851-852 (CA4 1990); Martin v. White, 742 F. 2d 469, 474 (CA8 1984); see also Springfield v. Kibbe, 480 U.S. 257, 269 (1987) (O'Connor, J., dissenting). It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.

    . RIGHTS - DELIBERATE INDIFFERENCE: But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)

    . RIGHTS - DELIBERATE INDIFFERENCE: In Canton, interpreting 42 U.S.C. § 1983 we held that a municipality can be liable for failure to train its employees when the municipality's failure shows "a deliberate indifference to the rights of its inhabitants." 489 U. S., at 389 (internal quotation marks omitted). In speaking to the meaning of the term, we said that "it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id., at 390; see also id., at 390, n. 10 (elaborating). Justice O'Connor's separate opinion for three Justices agreed with the Court's "obvious[ness]" test and observed that liability is appropriate when policymakers are "on actual or constructive notice" of the need to train, id., at 396 (opinion concurring in part and
    dissenting in part). It would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)

    . RIGHTS - DELIBERATE INDIFFERENCE: it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994) Cf. 1 C. Torcia, Wharton's Criminal Law § 27, p. 141 (14th ed. 1978); Hall 115.

    Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)

    . RIGHTS - DELIBERATE INDIFFERENCE: In Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986), we held a municipality liable under 42 U.S.C. § 1983 for harm caused by the single act of a policymaking officer in a matter within his authority but not covered by a policy previously identified. The central question presented here is whether that rule applies to a single act that itself neither violates nor commands a violation of federal law. The answer is yes if the single act amounts to deliberate indifference to a substantial risk that a violation of federal law will result. Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)


    . RIGHTS - DELIBERATE INDIFFERENCE: Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), overruled Monroe v. Pape, 365 U.S. 167 (1961), insofar as Monroe had held §1983 inapplicable to governments beneath the state level ("municipal," for short). Monell, supra, at 663. At the same time that we decided Congress meant municipalities to be persons subject to §1983, however, we also concluded that municipal liability under the statute could not be based on the traditional theory of respondeat superior. 436 U. S., at 691. We said that for purposes of §1983 an act could not be attributed to a municipality merely because it was an act of a municipal agent performed in the course of exercising a power delegated to the municipality by local law, and we reasoned instead that "it is [only] when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity
    is responsible under §1983." Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) Id., at 694; see Pembaur, supra, at 480.


    . RIGHTS - DELIBERATE INDIFFERENCE: We have also held the policy requirement satisfied where no rule has been announced as "policy" but federal law has been violated by an act of the policymaker itself. In this situation, the choice of policy and its implementation are one, and the first or only action will suffice to ground municipal liability simply because it is the very policymaker who is acting. See Pembaur, supra, at 480-481; cf. Newport v. Fact Concerts, Inc., 453 U.S. 247, 250-252 (1981) (implicitly assuming that a policymaker's single act can sustain §1983 action); Owen v. Independence, 445 U.S. 622, 625-630 (1980) (same). It does not matter that the policymaker may have chosen "a course of action tailored [only] to a particular situation and not intended to control decisions in later situations," Pembaur, 475 U. S., at 481; if the decision to adopt that particular course of action is intentionally made by the authorized policymaker, "it surely represents an act of official government `policy' "
    and "the municipality is equally responsible whether that action is to be taken only once or to be taken
    repeatedly." Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) Ibid.



    XXXXX

    . RIGHTS - DELIBERATE INDIFFERENCE: We have, finally, identified a municipal policy in a third situation, even where the policymaker has failed to act affirmatively at all, so long as the need to take some action to control the agents of the Government "is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need." Canton v. Harris, 489 U.S. 378, 390 (1989).

    XXXXX



    . RIGHTS - DELIBERATE INDIFFERENCE: Where, in the most obvious example, the policymaker sits on his hands after repeated, unlawful acts of subordinate officers and that failure "evidences a `deliberate indifference' to the rights of [the municipality's] inhabitants," Id., at 389, the policymaker's toleration of the subordinates' behavior establishes a policy in practice just as readily attributable to the municipality as the one act policy in practice described above. Such a policy choice may be inferred even without a pattern of acts by subordinate officers, so long as the need for action by the policymaker is so obvious that the failure to act rises to deliberate indifference. Id., at 390, n. 10.


    . RIGHTS - DELIBERATE INDIFFERENCE: Deliberate indifference is thus treated, as it is elsewhere in the law, [n.1] as tantamount to intent, so that inaction by a policymaker deliberately indifferent to a substantial risk of harm is equivalent to the intentional action that setting policy presupposes. Compare Pembaur, supra, at 483 (plurality opinion of Brennan, J.) ("deliberate choice" by policymaker) and Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion of Rehnquist, J.) (" `policy' generally implies a course of action consciously chosen") with Canton, supra, at 389 ("Only where a municipality's failure to train its employees . . . evidences a `deliberate indifference' to the rights of its inhabitants can . . . a shortcoming be . . . city `policy or custom' . . . actionable under §1983").


    . RIGHTS - DELIBERATE INDIFFERENCE: In short, the Court's skepticism is excessive in ignoring the fact that some acts of a policymaker present substantial risks of unconstitutional harm even though the acts are not unconstitutional per se.


    . RIGHTS - DELIBERATE INDIFFERENCE: Pembaur made clear that a single act by a designated policymaker is sufficient to establish a municipal policy, see Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986), and Canton explained, as the Court recognizes, see ante, at 10-11, that evidence of a single violation of federal rights can trigger municipal liability under §1983, see Canton v. Harris, 489 U.S. 378, 390, n. 10 (1989). See infra, Part II B.


    . RIGHTS - DELIBERATE INDIFFERENCE: The United States Court of Appeals for the Seventh Circuit summarily affirmed without opinion. We granted certiorari, 510 U. S. __ (1993), because Courts of Appeals had adopted inconsistent tests for "deliberate indifference." Compare, for example, McGill v. Duckworth, 944 F. 2d 344, 348 (CA7 1991) (holding that "deliberate indifference" requires a "subjective standard of recklessness"), cert. denied, 503 U. S. __ (1992), with Young v. Quinlan, 960 F. 2d 351, 360-361 (CA3 1992) ("[A] prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate"). Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)


    . RIGHTS - DELIBERATE INDIFFERENCE: Although we have never paused to explain the meaning of the term "deliberate indifference," the case law is instructive. The term first appeared in the United States Reports in Estelle v. Gamble, 429 U. S., at 104, and its use there shows that deliberate indifference describes a state of mind more blameworthy than negligence. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994), quoting


    . RIGHTS - DELIBERATE INDIFFERENCE: While Estelle establishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)


    . RIGHTS - DELIBERATE INDIFFERENCE: With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994) see also LaMarca v. Turner, 995 F. 2d 1526, 1535 (CA11 1993); Manarite v. Springfield, 957 F. 2d 953, 957 (CA1); Redman v. County of San Diego, 942 F. 2d 1435, 1443 (CA9 1991); McGill v. Duckworth, 944 F. 2d, at 347; Miltier v. Beorn, 896 F. 2d 848, 851-852 (CA4 1990); Martin v. White, 742 F. 2d 469, 474 (CA8 1984); see also Springfield v. Kibbe, 480 U.S. 257, 269 (1987) (O'Connor, J., dissenting). It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.


    . RIGHTS - DELIBERATE INDIFFERENCE: But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)


    . RIGHTS - DELIBERATE INDIFFERENCE: In Canton, interpreting 42 U.S.C. § 1983 we held that a municipality can be liable for failure to train its employees when the municipality's failure shows "a deliberate indifference to the rights of its inhabitants." 489 U. S., at 389 (internal quotation marks omitted). In speaking to the meaning of the term, we said that "it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id., at 390; see also id., at 390, n. 10 (elaborating). Justice O'Connor's separate opinion for three Justices agreed with the Court's "obvious[ness]" test and observed that liability is appropriate when policymakers are "on actual or constructive notice" of the need to train, id., at 396 (opinion concurring in part and
    dissenting in part). It would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994)


    . RIGHTS - DELIBERATE INDIFFERENCE: it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Farmer v. Brennan (92-7247), 511 U.S. 825 (1994) Cf. 1 C. Torcia, Wharton's Criminal Law § 27, p. 141 (14th ed. 1978); Hall 115.


    . RIGHTS - DELIBERATE INDIFFERENCE: In Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986), we held a municipality liable under 42 U.S.C. § 1983 for harm caused by the single act of a policymaking officer in a matter within his authority but not covered by a policy previously identified. The central question presented here is whether that rule applies to a single act that itself neither violates nor commands a violation of federal law. The answer is yes if the single act amounts to deliberate indifference to a substantial risk that a violation of federal law will result. Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)


    . RIGHTS - DELIBERATE INDIFFERENCE: Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), overruled Monroe v. Pape, 365 U.S. 167 (1961), insofar as Monroe had held §1983 inapplicable to governments beneath the state level ("municipal," for short). Monell, supra, at 663. At the same time that we decided Congress meant municipalities to be persons subject to §1983, however, we also concluded that municipal liability under the statute could not be based on the traditional theory of respondeat superior. 436 U. S., at 691. We said that for purposes of §1983 an act could not be attributed to a municipality merely because it was an act of a municipal agent performed in the course of exercising a power delegated to the municipality by local law, and we reasoned instead that "it is [only] when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity
    is responsible under §1983." Board of County Commissioners Bryan County
    OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) see also Id., at 694; see Pembaur, supra, at 480.




    xxxxx

    . RIGHTS - DELIBERATE INDIFFERENCE: We have also held the policy requirement satisfied where no rule has been announced as "policy" but federal law has been violated by an act of the policymaker itself. In this situation, the choice of policy and its implementation are one, and the first or only action will suffice to ground municipal liability simply because it is the very policymaker who is acting. See Pembaur, supra, at 480-481; cf. Newport v. Fact Concerts, Inc., 453 U.S. 247, 250-252 (1981) (implicitly assuming that a policymaker's single act can sustain §1983 action); Owen v. Independence, 445 U.S. 622, 625-630 (1980) (same). It does not matter that the policymaker may have chosen "a course of action tailored [only] to a particular situation and not intended to control decisions in later situations," Pembaur, 475 U. S., at 481; if the decision to adopt that particular course of action is intentionally made by the authorized policymaker, "it surely represents an act of official government `policy' "and
    "the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly." Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) see also Ibid.

    xxxxx



    . RIGHTS - DELIBERATE INDIFFERENCE: We have, finally, identified a municipal policy in a third situation, even where the policymaker has failed to act affirmatively at all, so long as the need to take some action to control the agents of the Government "is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need." Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) quoting Canton v. Harris, 489 U.S. 378, 390 (1989).


    . RIGHTS - DELIBERATE INDIFFERENCE: Where, in the most obvious example, the policymaker sits on his hands after repeated, unlawful acts of subordinate officers and that failure "evidences a `deliberate indifference' to the rights of [the municipality's] inhabitants," Id., at 389, the policymaker's toleration of the subordinates' behavior establishes a policy in practice just as readily attributable to the municipality as the one act policy in practice described above. Such a policy choice may be inferred even without a pattern of acts by subordinate officers, so long as the need for action by the policymaker is so obvious that the failure to act rises to deliberate indifference. Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)
    Id., at 390, n. 10.


    . RIGHTS - DELIBERATE INDIFFERENCE: Deliberate indifference is thus treated, as it is elsewhere in the law, [n.1] as tantamount to intent, so that inaction by a policymaker deliberately indifferent to a substantial risk of harm is equivalent to the intentional action that setting policy presupposes. Compare Pembaur, supra, at 483 (plurality opinion of Brennan, J.) ("deliberate choice" by policymaker) and Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion of Rehnquist, J.) (" `policy' generally implies a course of action consciously chosen") with Canton, supra, at 389 ("Only where a municipality's failure to train its employees . . . evidences a `deliberate indifference' to the rights of its inhabitants can . . . a shortcoming be . . . city `policy or custom' . . . actionable under §1983"). Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)


    . RIGHTS - DELIBERATE INDIFFERENCE: In short, the Court's skepticism is excessive in ignoring the fact that some acts of a policymaker present substantial risks of unconstitutional harm even though the acts are not unconstitutional per se. Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997)


    . RIGHTS - DELIBERATE INDIFFERENCE: Pembaur made clear that a single act by a designated policymaker is sufficient to establish a municipal policy, see Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986), and Canton explained, as the Court recognizes, see ante, at 10-11, that evidence of a single violation of federal rights can trigger municipal liability under §1983. Board of County Commissioners Bryan County OK v. Jill Brown et al 5th Cir. No. 95-1100 (1997) see also Canton v. Harris, 489 U.S. 378, 390, n. 10 (1989). See infra, Part II B.


    . RIGHTS - DELIIBERATE INDIFFERENCE: 10. We have also employed deliberate indifference as a standard of culpability sufficient to identify a dereliction as reflective of municipal policy and to sustain a claim of municipal liability for failure to train an employee who causes harm by unconstitutional conduct for which he would be individually liable. Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) See also Canton v. Harris, 489 U.S. 378, 388—389 (1989).


    . RIGHTS - DELIBERATE INDIFFERENCE: Over 20 years ago, we observed that a municipality’s failure to provide training may be so egregious that, even without notice of prior constitutional violations, the failure “could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Canton , 489 U. S., at 390, n. 10. “[I]n light of the duties assigned to specific officers or employees,” Canton recognized, “it may happen that ... the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” Connick et al., v. Thompson No. 5th Cir. (2011) Id. , at 390.


    . RIGHTS - DELIBERATE INDIFFERENCE: In Canton , this Court spoke of circumstances in which the need for training may be “so obvious,” and the lack of training “so likely” to result in constitutional violations, that policymakers who do not provide for the requisite training “can reasonably be said to have been deliberately indifferent to the need” for such training. Connick et al., v. Thompson No. 5th Cir. (2011) 489 U. S., at 390.


    . RIGHTS - DELIBERT INDIFFERENCE: The District Court, tracking Canton's language, instructed the jury that Thompson could prevail on his “deliberate indifference” claim only if the evidence persuaded the jury on three points. First, Connick “was certain that prosecutors would confront the situation where they would have to decide which evidence was required by the Constitution to be provided to the accused.” Tr. 1099. Second, “the situation involved a difficult choice[,] or one that prosecutors had a history of mishandling, such that additional training, supervision or monitoring was clearly needed.” Ibid. Third, “the wrong choice by a prosecutor in that situation would frequently cause a deprivation of an accused’s constitutional rights.” Connick et al., v. Thompson No. 5th Cir. (2011) Ibid. ; Record 1619–1620; see Canton , 489 U. S., at 390, and n. 10; Walker v. New York , 974 F. 2d 293, 297–298 (CA2 1992). 17


    . RIGHTS - DELIBERATE INDIFFERENCE: Unquestionably, a municipality that leaves police officers untrained in constitutional limits on the use of deadly weapons places lives in jeopardy. Canton , 489 U. S., at 390, n. 10. But as this case so vividly shows, a municipality that empowers prosecutors to press for a death sentence without ensuring that those prosecutors know and honor Brady rights may be no less “deliberately indifferent” to the risk to innocent lives. Connick et al., v. Thompson No. 5th Cir. (2011)


    . RIGHTS - DELIBERATE INDIFFERENCE: 24 Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397 (1997) , reaffirmed “that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.” Connick et al., v. Thompson No. 5th Cir. (2011) Id., at 409.


    . RIGHTS - DELIBERATE INDIFFERENCE: 25 When Congress sought to render a claim for relief contingent on showing a pattern or practice, it did so expressly. See, e.g.,

    42 U. S. C. §14141(a) (“It shall be unlawful for any governmental authority ... to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights ... protected by the Constitution ... .”);

    15 U. S. C. §6104(a) (“Any person adversely affected by any pattern or practice of telemarketing ... may ... bring a civil action ... .”);

    49 U. S. C. §306(e) (authorizing the Attorney General to bring a civil action when he “has reason to believe that a person is engaged in a pattern or practice [of] violating this section”). See also

    47 U. S. C. §532(e)(2)–(3) (authorizing the Federal Communications Commission to establish additional rules when “the Commission finds that the prior adjudicated violations of this section constitute a pattern or practice of violations”). Connick et al., v. Thompson No. 5th Cir. (2011)

    . RIGHTS - DELIBERATE INDIFFERENCE: 28 If the majority reads this statement as an endorsement of respondeat superior liability, ante, at 18, n. 12, then it entirely “misses [my] point,” cf. ante, at 17.

    . RIGHTS - DELIBERATE INDIFFERENCE: Canton recognized that deliberate indifference liability and respondeat superior liability are not one and the same. 489 U. S., at 385, 388–389.

    . RIGHTS - DELIBERATE INDIFFERENCE: Connick was directly responsible for the Brady violations in Thompson’s prosecutions not because he hired prosecutors who violated Brady, but because of his own deliberate indifference. Connick et al., v. Thompson No. 5th Cir. (2011)




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    . RIGHTS - DUE PROCESS
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    . RIGHTS - DUE PROCESS: “The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235—244 [(1819)]: ‘As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.’ ” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) quoting Hurtado v. California, 110 U.S. 516, 527 (1884).


    . RIGHTS - DUE PROCESS: We have emphasized time and again that “[t]he touchstone of due process is protection of the individual against arbitrary action of government,” Wolff v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (the procedural due process guarantee protects against “arbitrary takings”), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g., Daniels v. Williams, 474 U.S., at 331 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised). While due process protection in the substantive sense limits what the government may do in both its legislative, see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965), and its executive capacities, see, e.g., Rochin v. California, 342 U.S. 165 (1952), criteria to identify what is fatally arbitrary differ depending on
    whether it is legislation or a specific act of a governmental officer that is at issue. Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998)


    . RIGHTS - DUE PROCESS: Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be “arbitrary in the constitutional sense,” Collins v. Harker Heights, 503 U.S., at 129, thereby recognizing the point made in different circumstances by Chief Justice Marshall, “ ‘that it is a constitution we are expounding,’ ” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) quoting Daniels v. Williams, supra, at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)).


    . RIGHTS - DUE PROCESS: Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials “ ‘from abusing [their] power, or employing it as an instrument of oppression.’ ” 503 U.S., at 126 Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 196 (quoting Davidson v. Cannon, 474 U.S., at 348)).


    . RIGHTS - DUE PROCESS: Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (reiterating that conduct that “ ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process); Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998)


    . RIGHTS - DUE PROCESS: Whitley v. Albers, 475 U.S. 312, 327 (1986) (same); United States v. Salerno, 481 U.S. 739, 746 (1987) (“So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ . . . or interferes with rights ‘implicit in the concept of ordered liberty’ ” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U.S. 319, 325—326 (1937)


    . RIGHTS - DUE PROCESS: Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998)


    . RIGHTS - DUE PROCESS: While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, “poin[t] the way.” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) Johnson v. Glick, 481 F.2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973).8


    . RIGHTS - DUE PROCESS: It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams, 474 U.S., at 331 (“Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property” Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998)


    . RIGHTS - DUE PROCESS: 5. As in any action under §1983, the first step is to identify the exact contours of the underlying right said to have been violated. Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) See also Graham v. Connor, 490 U.S. 386, 394 (1989).


    . RIGHTS - DUE PROCESS: 14. To say that due process is not offended by the police conduct described here is not, of course, to imply anything about its appropriate treatment under state law. See Collins v. Harker Heights, 503 U.S. 115, 128—129 (1992) (decisions about civil liability standards that “involve a host of policy choices … must be made by locally elected representatives [or by courts enforcing the common law of torts], rather than by federal judges interpreting the basic charter of Government for the entire country”). Sacramento, et al v. Lewis 9th Cir No. 86-1337 (1998) Cf. Thomas v. City of Richmond, 9 Cal. 4th 1154, 892 P.2d 1185 (1995) (en banc) (discussing municipal liability under California law for injuries caused by police pursuits).





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    . RIGHTS - EX PARTE YOUNG
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    . RIGHTS - EX PARTE YOUNG: Prospective Relief: Plaintiff seeks only prospective relief against future payments due the state. The payment to plaintiffs would not come from the state treasury because plaintiffs seek relief enjoining future payments that fall due from going to the treasury. If the state were violating federal law by retaining the full payment, there is an ongoing violation of federal law to which EPY applies.

    . Special Sovereignty Interest: None of the interests asserted by the state qualify as special sovereignty interests. (1) determining nature and extent of programs; (2) revenue source (3) appropriation prerogatives; (4) authority to fashion remedy in law enforcement actions.

    Special Sovereignty Interest: Facts: Plaintiff class of Medicaid recipients sue to recover a portion of the tobacco settlement money allegedly due them under the Medicaid Act.Defendants include state official sued in their official capacity. Held, EPY applies and suit not barred by 11th Amendment. [but plaintiffs on the merits]. Harris v. Owens 264 F. 3d 1282 (10th Cir. 2001)

    . RIGHTS - EX PARTE YOUNG: Governor sued for injunctive relief in official capacity. Complaint alleges Governor "commandeered" plaintiff's electricity and that a federal law preempted his authority to do so. Governor moved to dismiss based on the 11th Amendment.

    . RIGHTS - EX PARTE YOUNG: Special Sovereignty Interest: Unlike Couer d'alene, where the state would lose all control of some of its territory, here the relief sought is simply to enjoin a specific executive order preempted by federal law. The Governor retains his executive powers to deal with the electricity crisis. There is a difference between enjoining a specific state activity and depriving a state of all regulatory authority.

    . RIGHTS - EX PARTE YOUNG Prospective Relief: The contracts which were commandeered require delivery in the future and hence the violation is ongoing and EPY relief is appropriate.

    . RIGHTS - EX PARTE YOUNG Alternate Remedies: The exception to EPY based on alternative remedies is based solely on claims under federal statutes, because it refers to Congressional intent to preclude other remedies. The claim here is under the Constitution, namely the Supremacy Clause. Further, the remedy in the federal energy statute does not immunize state officials when they seek to act in an area preempted by state law. Duke Energy Trading & Marketing, L.L.C. v. Davis 267 F. 3d 1042 (9th Cir. 2001)

    . RIGHTS - EX PARTE YOUNG: Since there is only claim for declaratory relief, the suit falls under EPY. There is no special state sovereignty issue that precludes application of EPY under Couer d'Alene, This is not a case to quiet title. Mississippi retains title and control of the land and may tax the leasehold. The claim on the merits merely restricts its ability to raise the rent. Lipscomb v. The Columbus Municipal Separate School District 269 F. 3d 494 (5th Cir. 2001)

    . RIGHTS - EX PARTE YOUNG: Waiver of Immunity: In the district court, the defendants first asserted sovereign immunity defense, then withdrew it. Nevertheless, the district court dismissed based on the 11th Amendment, stating that it would not enforce an unconstitutional statute. On appeal, held the District Court should not have undertaken to impose the defense on the state when it was unequivocally withdrawn.

    However, on appeal the state reasserted the defense. The court states that it may be raised for the first time on appeal. Defendants did not waive the defense by withdrawing in the district court because under Maryland law, the Attorney General was not authorized to waive immunity.

    . RIGHTS - EX PARTE YOUNG Prospective Relief: To the extent plaintiff seeks injunctive relief for restoration to her original job, the suit may proceed under Ex parte Young.

    . RIGHTS - EX PARTE YOUNG Individual Capacity Suit: "Normally, of course, the Eleventh Amendment does not bar claims by private plaintiffs against individual officers in their individual capacities. But this court has recently held in Lizzi [v. Alexander, 255 F. 3d 128 (4th Cir.2001)] that the state is the real party in interest when an official is sued for damages for official acts under the FMLA.? Hence, the damage claims against defendants in their individual capacities are barred by the 11th Amendment. Montgomery v. State of Maryland 266 F 3d 334 (4th Cir. 2001)


    . EX PARTE YOUNG, Prospective Relief: An injunction revoking a permit issued by state agency is prospective relief. South Camden Citizens in Action v. New Jersey Dep't of Environmental Protection 2001 WL 491965 (D. N.J., May 10, 2001)


    . EX PARTE YOUNG: "... Ex parte Young "enables a plaintiff to circumvent the Eleventh Amendment." Frazier v. Simmons 2001 WL 748050 (10th Cir. July 3, 2001)


    . EX PARTE YOUNG, Prospective Relief: Plaintiff?s request for declaratory judgment based on past events, without request for injunctive relief, is beyond the scope of Young and is retroactive relief. Doe v. Division of Youth and Family Services 2001 WL 708444 (D. N.J. June 25, 2001)

    . EX PARTE YOUNG, Prospective Relief: Although suit cannot be brought against the Commission, it may proceed under Young against the Commissioners. The potential for adverse action by the Commission is sufficiently threatening as to allow Young to be invoked. Pacific Gas and Electric Co. v. California Public Utilities Comm. 2001 WL 664758 (Bankr. Ct., N.D. Cal. June 1, 2001)

    . EX PARTE YOUNG, Special Sovereignty Interest: An action to restrain two paragraphs in a long order of the Commission does not undermine any sovereignty interest of the state. Pacific Gas and Electric Co. v. California Public Utilities Comm. 2001 WL 664758 (Bankr. Ct., N.D. Cal. June 1, 2001)


    . EX PARTE YOUNG: Prospective Relief: Defendant must be shown to be engaging in a course of activity in violation of federal law. The bankruptcy proceeding itself is not a suit against the state, barred by the 11th Amendment. But the state is bound by the federal law discharging the tax debt. By seeking to collect on the debt, defendant is engaged in ongoing conduct in violation of federal law. Although the state may not be sued in an adversary proceeding, the suit here may lie under Ex parte Young to enjoin defendant from collecting the tax. Goldberg v. Ellett 254 F. 3d 1135 (9th Cir. 2001)

    . EX PARTE YOUNG: Special Sovereignty Interest: Merely enjoining collection of tax does not interfere with a special state sovereignty interest as was the case in Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997). Although the state treasury is affected by the injunction, the suit is not barred. Young suits may have an ancillary effect on the state treasury. Goldberg v. Ellett 254 F. 3d 1135 (9th Cir. 2001)

    . EX PARTE YOUNG: Prospective Relief: State defendants argued that state officials cannot be sued under Young because local assessors make the final decision on taxation valuation, so state officials are not connected to any unlawful act. Court finds local adherence to state determinations, while not universal, is so common that state defendants are connected to the unlawful results. CSX Transportation, Inc. v. New York State Office of Real Property Services 2001 WL 789264 (S.D.N.Y.July 10, 2001).


    . EX PARTE YOUNG: Prospective Relief: 1983 claim must be dismissed since it involves a damage claim and there is no waiver of immunity attached to 1983. Patricia N v. Lemahieu 141 F. Supp.2d 1243 (D. Haw. 2001)


    . EX PARTE YOUNG: Alternative Remedies: Seminole Tribe involved a limited and detailed remedial scheme.ADA and 504 have broad remedial schemes.Section 504 allows - any appropriate relief, and ADA incorporates 504.There is no bar to suing under Young. Doe v. Sylvester 2001 WL 1064810 (D. Del. Sept. 11, 2001)



    E N D P A R T I


    TYC

  4. #4
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    CITATIONS 120811

    P A R T - II

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    . RIGHTS - LICENSEE
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    . RIGHTS - LICENSEE: Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. See Bell v. Burson, 402 U.S. 535 (1971) 402 U.S. 535. See also ); Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).



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    . RIGHTS - MALICIOUS INTENT
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    . RIGHTS - MALICIOUS INTENT: Last Term in Wood v. Strickland, 420 U.S. 308 (1975), we held that school officials, in the context of imposing disciplinary penalties, were not liable so long as they could not reasonably have known that their action violated students' clearly established constitutional rights, and provided they did not act with malicious intention to cause constitutional or other injury. Imbler v. Pachtman, 424 U.S. 409 (1976) quoting Scheuer v. Rhodes, 416 U.S. 247 (1974), see also O'Connor v. Donaldson, 422 U.S. 563, 577 (1975).




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    . RIGHTS - STRIPPING DOCTRINE
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    . RIGHTS, STRIPPING DOCTRINE: In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court provided an important exception to the 11th Amendment sovereign immunity States enjoy: the Stripping Doctrine.

    The Stripping Doctrine is a legal fiction which allows injunctive relief against what are essentially state actions. While the 11th Amendment immunizes States from actions by private parties, the Stripping Doctrine argues that when a state officer takes an unconstitutional action, she acts beyond the scope of her authority, as no State could have authorized her to act unconstitutionally. When acting outside such authority the officer was "stripped" of her official power and cannot invoke the State's immunity, although she remains subject to the consequences of her official conduct.

    The doctrine is a legal fiction because the officer, in acting unconstitutionally, was outside her official duties, but the citizen can now sue her for injunctive relief in her official capacity. Unless a citizen can enjoin the action the officer took in her official capacity, no remedy could be provided for an otherwise unconstitutional action (as the State itself is immune from prosecution).


    . RIGHTS, STRIPPING DOCTRINE, SUITS NAMING STATE OFFICERS: While actions brought by private parties cannot name States as defendants, they can name State officers as defendants. The Stripping Doctrine provides that since a State could not authorize its agent to act unconstitutionally, the agent was acting outside her authority and cannot invoke the State's sovereign immunity, even though they remain responsible for their official conduct.




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    . ACTIONS NAMING STATES
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    . ACTIONS NAMING STATE: Our federal government is one of enumerated powers, and those powers not given to it either by the Constitution or the by nature of federal sovereign power are retained by the states. As such, states are virtual quasi-sovereigns in our system. While tension exists between state and federal government due to the nature of our dual-sovereign system, the 11th amendment resolves a part of that conflict in favor of the states.

    While the Framers disagreed on whether Article III abrogated state sovereignty, framers such as James Madison and Alexander Hamilton argued that states could not, in certain circumstances, be hailed into federal court. In the wake of Chisholm v. Georgia, 2 U.S (2 Dall.) 419, 1 L.Ed. 440 (1793), where the Supreme Court found it had jurisdiction over a State in an action brought by a non-citizen, the 11th amendment was enacted to prevent such future results.

    Unless abrogated by an action brought under the 14th Amendment, the 11th Amendment provides these quasi-sovereigns with sovereign immunity: private parties cannot bring actions, in law or equity, against States without the State's consent.



    . INJUNCTIVE RELIEF: The Supreme Court's decisions in Ex Parte Young, 209 U.S. 123 (1908), and Edelman v. Jordan, 415 U.S. 651 (1974), hold that federal courts may grant injunctions against unconstitutional actions taken by State officers. Since the officers were acting outside the scope of what a State could authorize them to do they were stripped of their power, and their official actions are as such void. Such relief is necessary to protect the Constitution's Supremacy Clause; otherwise, immune states could take unconstitutional actions with impunity, invalidating the supremacy of our Constitution.


    . DAMAGES: The Supreme Court's decision in Edelman v. Jordan, 415 U.S. 651 (1974) held that when private parties sue State officers in their official capacity, federal courts could not award retroactive monetary relief (ie.money damages). Courts refuse to extend the legal fiction of the Stripping Doctrine to monetary relief since awarding damages would eliminate the constitutional immunity States have under the 11th Amendment. The damages would be coming from the coffers of the State Treasury. Injunctive relief against future conduct provides effective protection of the Supremacy Clause, and courts see money damages as prohibited by the 11th Amendment.


    . FEDERAL QUESTION CLAIM: While the Supreme Court has recognized that states have a degree of sovereign immunity, the Court continues to uphold the supremacy of federal law. The Court has held that States cannot be sued in federal court even on federal question claims without their consent. But while the 11th Amendment may shield the state from suits in federal court, the amendment cannot bar review of state court judgments in a federal question context. The Supremacy Clause by its nature requires that the Supreme Court be capable of reviewing federal questions, and the 11th Amendment cannot immunize a state from such review.


    . PENDANT STATE CLAIM: The Supreme Court held in Penhurst State School & Hospital v. Halderman, 456 U.S. 89, 104 S.Ct. 900, 79 L.Ed. 2d 67 (1984) that supplemental state claims that States have violated State law cannot be heard by federal courts. The basis for the Stripping Doctrine was that it was necessary to protect the supremacy of the Constitution. "A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law". The Court concluded that the Stripping Doctrine is inapplicable in an action against a state or a state officer based on state law; as such, states are immune from prosecution in federal court in such actions.


    . RIGHTS, STRIPPING DOCTRINE, OFFICER NAMED IN INDIVIDUAL CAPACITY: While the Supreme Court has held that only injunctive relief can be awarded against a state officer sued in his official capacity, retroactive monetary relief can be granted against an officer sued in his individual capacity. Bringing an action against an officer in his individual capacity does not implicate state sovereignty.


    . OFFICER NAMED IN OFFICIAL CAPACITY: The 11th Amendment grants states sovereign immunity, but the Stripping Doctrine allows State officers to be sued in their official capacities. When an officer acts unconstitutionally, he acts outside what a state could have authorized him to do, and has been "stripped" of his power.

    To effectuate the Supremacy Clause, state officers can be sued in their official capacity over their official conduct (even though at the time stripped of their power), so long as the plaintiffs seek only injunctive relief. Where state officers are sued in their official capacities, federal courts cannot award monetary relief, since doing so would strip the states of their sovereign immunity (the money is coming from their treasuries).


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    . EXPLICIT STATE WAIVER: While the 11th Amendment provides States with sovereign immunity to prosecution by private parties in federal courts, States can choose to waive their immunity. In certain circumstances such a waiver must be unequivocally expressed, while in others mere litigation waiver will suffice (ie.the State chooses to remove the action from a state court to a federal court).

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    . EXPLICIT § 5 OVERIDE: The original Constitution allowed States to be hauled into federal courts by private parties. But that constitution was amended with the consensus of three-fourths of the states in 1798, when the 11th Amendment was adopted. The 11th Amendment specifically removed such authority from federal courts.

    But the Constitution was amended again in 1868 to protect various civil rights, and § 5 of that Amendment granted Congress the power to enforce, by appropriate legislation, the provisions of that amendment. The courts have recognized that this new amendment, again a consensus of the people, abrogates the immunity provided by the 11th amendment. When Congress enacts legislation under the auspices of §5 of the 14th Amendment they can specifically abrogate 11th amendment immunity, and states can under such federal statutes be prosecuted in federal courts.

    However, in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Supreme Court said that while Congress can use its 14th Amendment power to override a State's 11th Amendment protection, it must speak clearly. "General authorization for suit in a federal court is not the kind of unequivocal statutory language sufficient to abrogate the 11th Amendment. When Congress chooses to subject the states to federal jurisdiction it must do so specifically."

    Note that those powers given to Congress in the original Constitution cannot be used to abrogate 11th Amendment immunity. The people chose to amend that Constitution to limit federal power, and, for example, Congress cannot use its power to regulate interstate commerce to abrogate 11th Amendment immunity, as that power was amended in 1798.


    . PERMITTED: When an action brought by private parties names a state officer in her official capacity as a defendant, federal courts have the jurisdiction to hear it and grant injunctive relief. Courts permit such actions and such relief to protect the supremacy of the federal Constitution.


    . BARRED: The 11th Amendment recognizes that states are quasi-sovereigns who possess a degree of sovereign immunity, and that they cannot be hauled into federal court by private parties. When an action names a State as a defendant, or seeks monetary relief from a State officer in her official capacity, federal courts are barred by the 11th Amendment from hearing such an action.






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    . DEMURRER
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    . DEMURRER: "In ruling on preliminary objections in the nature of a demurrer, this court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom." Eldride v. Vaughn et al No 1195 M.D. 1996

    . DEMURRER: "In ruling on a preliminary objection in the nature of a demurrer, this Court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom." Hugie v. Horn et al No. 972 M.D. 1997; see also Stone and Edwards Insurance Agency v PADOI, 616 A.2d 1060 (Pa. Cmwlth. 1992)

    . DEMURRER: "The question presented by a demurer is whether, on the facts averred, the law says with certainty that no recovery is possible." Hugie v. Horn et al No. 972 M.D. 1997; Jackson v. Garland, 622 A.2d 969 (P. Super. 1993)





    XXXXXXXXXXXXXXX
    . DUE PROCESS
    XXXXXXXXXXXXXXX

    . DUE PROCESS: "The duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998)


    . DUE PROCESS: "Due process is a flexible notion, and its requirements depend on the circumstances of each case; however, its essential requirements are notice and a meaningful opportunity to be heard." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998); see also PADOT v. Clayton, 546, Pa. 342, 684 A.2d 1060 (1996)


    . DUE PROCESS, ESSENTIAL ELEMENTS: "The essential elements of due process are notice and opportunity to be heard and to defend oneself in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction over the matter." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Soja v. PA State Police, 500 Pa. 188, 193, 455 A.2d 613, 615 (1989)


    . DUE PROCESS: The United States Supreme Court has held that "an essential principle of due process is that a deprivation of life, liberty or property be preceded by notice and an opportunity for a hearing appropriate to the nature of the case." Eldride v. Vaughn et al No 1195 M.D. 1996


    . DUE PROCESS: "We have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.'" Eldride v. Vaughn et al No 1195 M.D. 1996


    . DUE PROCESS: "This principal require 'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment" Eldride v. Vaughn et al No 1195 M.D. 1996


    . DUE PROCESS: "The constitutional minimum may be satisfied where the licensee has access to the material upon which the charge is based and the opportunity to respond to the charge ..." Eldride v. Vaughn et al No 1195 M.D. 1996


    . DUE PROCESS: In Matthew's v. Eldgride, 424 U.S. at 335, the United States Supreme Court set forth three (3) factors to be considered when determining whether a particular procedure satisfies due process:
    . [First] The United States Supreme Court has recognized the 'severity of depriving a person of the means of a livelihood." Brock v Roadway Express, 481 U.S. 252, 263 (1987)
    . [Second] the risk of erroneous deprivation of such interest through the procedures used, and the probably value, if any, of additional substitute procedural safeguards;
    . [Third] the government's interest, including the function involved, and the fiscal and administrative burdens that the additional or substitute procedural requirement will entail."





    XXXXXXXXXXXXXXXXXXX
    . FORUM SELECTION
    XXXXXXXXXXXXXXXXXXX

    . FORUM SELECTION: "The Okkerse court stated that the plaintiff should not be deprived of his original choice of forum." Cheeseman v. Lethal Exterminator Inc 701 A.2d 156 (1997)


    " FORUM SELECTION: Unless the defendant clearly adduces facts that "either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors [but] unless the balance is bly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Cheeseman v. Lethal Exterminator Inc 701 A.2d 156 (1997)


    see PA Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997

    . FORUM SELECTION: "The standard of review in cases of forum non conveniens is abuse of discretion." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997


    . FORMUM SELECTION: Pa RCP 1006(d)(1) "A petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997





    XXXXXXXXXXXX
    . IMMUNITY
    XXXXXXXXXXXX

    . IMMUNITY: "No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882)


    . IMMUNITY: The U.S. Supreme Court has stated that "no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it". Cooper v. Aaron 358 U.S. 1, 78 S. Ct. 1401 (1958) See also Sawyer 124 U.S. 200 (188); U.S. v. Will 449 U.S. 200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L. Ed 257 (1821).


    . IMMUNITY: “The courts are not bound by an officer's interpretation of the law under which he presumes to act." Hoffsomer v. Hayes/, 92 Okla 32, 227 F. 417


    . IMMUNITY: “The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.” Mitchell v Forsyth, 472 U.S. 523(1985)


    . IMMUNITY: In Harlow, the Court made clear that “a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. 819.


    . IMMUNITY: Thus, “[p]rosecutors whose out-of-court acts cause injury only to the extent a case proceeds will be brought to heel adequately by the court,” 919 F2d at 1243-44.


    . IMMUNITY: “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies” Monroe v Pape, 365 U.S. 167, 81 S Ct 473, 480 (1960)

    . IMMUNITY: Although the Court held that the City of Chicago was not liable on a respondeat superior theory [later expressly overturned in Monell et al v Dept Soc Serv City of New York, 436 U.S. 658 (1977)], the Court specifically held that the police officers were not entitled to immunity and instructed that suits brought with these civil rights claims : “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Pape, 365 U.S. 167, 81 S Ct 473, 484.


    . IMMUNITY: In Howerton v Garcia, 708 F 2d 380 (9th Cir. 1983) the Federal Court of Appeals for the Ninth Circuit ruled that landlords who evicted a plaintiff without proper eviction procedures could make no legitimate claim to immunity: “...there is no good faith immunity under section 1983 for private parties who act under color of state law to deprive an individual of his or her constitutional rights” 708 F 2d 380, 381.


    . IMMUNITY: Indeed, in Scheuer v Rhodes, 416 US 232 (1974) the Supreme Court turned aside arguments for immunity as it applied to governors.

    . IMMUNITY: In Wood v Strickland, 420 US 308 (1975) the Supreme Court refused to give immunity to members of school boards,

    . IMMUNITY: in Hazo v Geltz, 537 F2d 747 (3d Cir. 1976) the federal court insisted that court personnel performing many of their functions were entitled to only "good faith immunity".

    . IMMUNITY: In recent years, the court has refused to expand the concept of immunity to prison directors, Procunier v Navarette, 434 US 555 (1978) and to cabinet officers as well as their principle subordinates Butz v Economou, 98 S.Ct. 2894 (1978).

    . IMMUNITY: In Board of Educ. of A.A. Co. v. Barbano 45 Md App 27 [19 "No man in this country," this court has said, "is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee 106 U.S. 196, 220.'. Burton v. United States 202 U.S. 344 [1906].

    . IMMUNITY: As stated by the highest court in Maryland, "Where a limited tribunal goes beyond its jurisdiction, its decision amounts to nothing and does not create the necessity for an appeal." Mayor of Baltimore v. Porter 18 Md. 284:

    . IMMUNITY: `As Mr. Justice Brandeis once observed: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipotent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious, If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face." Miranda v. Arizona 384 U.S. 436 [1966], see also Olmstead v. United States, 277 U.S. 479 (1928)(dissenting opinion)


    . IMMUNITY: Plaintiff sued under Section 1983 for $50 million in damages against state officials in their individual capacity for violation of due process. Not barred by the Eleventh Amendment by virtue of impracticability of expecting officials sued in their individual capacity, as opposed to the State, to pay $50 million in claimed damages. A state's voluntary decision to indemnify state officials sued in their individual capacity does not convert the case to one against the state. Huang v. Johnson 251 F. 3d 65 (2dCir.2001)


    . IMMUNITY: Claims for negligence in the course of employment cannot be brought against state employees in federal court because Maryland would pay the judgment under state law. However, intentional torts and claims not arising from employment (sexual harassment) may be brought in federal court. Maidy v. Guerzon 2001 WL 830579 ((D. Md. July 23, 2001)


    . IMMUNITY:





    XXXXXXXXXXXXXXXXXXX
    . IMMUNITY WAIVED
    XXXXXXXXXXXXXXXXXXX

    . IMMUNITY WAIVED: State waives 11th Amendment immunity by removing case to federal court. Sanders v. State of Utah 2001 WL 90914 (10th Cir. Aug. 13, 2001) (Unpublished Opinion)


    . IMMUNITY WAIVED: Suit by Medicaid recipients under Medicaid statute for a portion of tobacco settlement money. The settlement agreement acknowledges the jurisdiction of the federal court, that the court retains jurisdiction to implement and enforce the agreement and the parties agree to present a any disputes under the settlement agreement to the federal district court. These provisions constitute a waiver of 11th Amendment immunity. Watson v. Texas 2001 WL 883533 (5th Cir. Aug. 7, 2001)


    . IMMUNITY WAIVED: Removal from state to federal court by state of claims barred by the 11th Amendment is not waiver of 11th Amendment. Barred claims are dismissed without prejudice. Cuno v. DaimlerChrysler, Inc. 154 F. Supp.2d 1196 (N.D. Oh. 2001)


    . IMMUNITY WAIVED: Waiver of Immunity: State constitutional provision that suits "may be brought against the State in such manner and in such courts as shall be directed by law" does not waive 11th Amendment immunity because no reference to suit in federal court. Demshki v. Monteith 255 F. 3d 986 (9th Cir. 2001)



    . IMMUNITY WAIVED:






    XXXXXXXXXXXX
    . MANDAMUS
    XXXXXXXXXXXX

    . MANDAMUS: "Mandamus is based upon a duty by an agency to follow a law and is available only when, under a correct interpretation of that law, the agency has an absolute ministerial duty - NO CHOICE - to act in a certain way..." Eldride v. Vaughn et al No 1195 M.D. 1996


    . MANDAMUS: "Mandamus is a relief sought to cure a statutory or extraordinary harm, which cannot be cured through any mechanism other than an order that the statute be followed or that extraordinary harm be corrected." Burns v. Uniontown Area School District (yyyy)?


    . MANDAMUS: "Mandamus will lie only where the petitioning party demonstrates his clear right to relief, a correspondingly clear duty on the part of the party against whom mandamus is sought, and the want of any other adequate remedy." Hugie v. Horn et al No. 972 M.D. 1997; see also Francis v. Carleto, 418 Pa. 417, 211 A.2d 503 (1965)


    . MANDAMUS: Mandamus is an action at law, which requires filing a complaint that sets forth the following:
    .1. the plaintiff and all party defendants;
    .2. the facts upon which the plaintiff relies for the relief sought;
    .3. the act or duty the defendant is required to perform and the refusal to perform it;
    .4. the interest of the plaintiff in the result;
    .5. the damages if any;
    .6. the want of any other adequate remedy at law;

    Burns v. Board Dir. Uniontown Area School Dist. (No. 1250 C.D. 2000)


    . MANDAMUS:




    XXXXXXXXXXXXXXX
    . MISBEHAVIOR
    XXXXXXXXXXXXXXX



    . MISBEHAVIOR - JUDICIAL: Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the supreme law of the land. The judge is engaged in acts of treason.


    . MISBEHAVIOR - JUDICIAL: "An abuse of discretion occurs when the judge misapplies the law or exercises his judgment in a manner that is manifestly unreasonable or the result of bias, prejudice or ill will." Dulaney v. Consoliated Rail Corporation No. 4572 Philadelphia 1997


    . MISBEHAVIOR - NEGLIGENCE: "If he alleges gross negligence and can establish even ordinary negligence on the part of the hospital, then it is for the jury to decide." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159


    . MISBEHAVIOR -NEGLIGENCE: "... We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference.. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159


    . MISBEHAVIOR -NEGLIGENCE: "The Bloom Court stated whether an act or failure to act constitutes negligence, of any degree, when viewing all the evidence is a determination for the jury and may be decided as a matter of law ONLY when the case is entirely free from doubt, with no possibility that a reasonable jury could find negligence." Albright v. Abington / 548 Pa. 268, 696 A.nd 1159


    . MISBEHAVIOR -NEGLIGENCE: "The definition of flagrant is extremely or deliberately conspicuous; notorious; shocking. The American Heritage Dictionary of the English Language (Second Printing 1969) Albright v. Abington / 548 Pa. 268, 696 A.nd 1159





    XXXXXXXXXXXXXXX
    . PREEMPTIONS
    XXXXXXXXXXXXXXX

    . STATE LAWS PREEMPTED: "State Law is preempted to the extent is actually conflicts with federal law. English v. General Electric, 496 U.S. 72 (1990)





    XXXXXXXXXXXXX
    . PLEADINGS
    XXXXXXXXXXXXX

    . PLEADINGS: "Additionally, the record is devoid of any reference to Petitioner as a dangerous offender and sexual predator, and, because this Court is required to accept all well pled allegations as true, we are compelled to address Petitioner's assertion on this issue." Hugie v. Horn et al No. 972 M.D. 1997

    PA Myers v. Riedge et al 712 A.2d 791

    . PLEADINGS: "The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief." Myers v. Riedge et al 712 A.2d 791; see also Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976)





    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    . RIGHTS - PROPERTY INTEREST
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

    . RIGHTS, PROPERTY INTEREST: "Once obtained, a (medical professional) has a property interest in his or her medical license." Eldride v. Vaughn et al No 1195 M.D. 1996





    XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    . CONSTITUTIONAL VIOLATIONS
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

    . CONSTITUTIONAL VIOLATION: "In order to determine that a constitutional violation has occurred, this court must first determine whether a protected liberty [right] interest exists." Myers v. Riedge et al 712 A.2d 791; see also Wilder v. PADOC 673 A.2d 30 (Pa. Cmwlth. 1996)




    XXXXXXXXXXXXXXXXXXXX
    . POLICY STATEMENT
    XXXXXXXXXXXXXXXXXXXX

    . POLICY STATEMENT: "A general statement of policy, on the other hand, does not establish a 'binding norm' ... A policy statement announces the Agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Pacific Gas & Electric Co v. Federal Power Commission, 506 F.2d 33, 38 (D.C. Cir 1974)




    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    . PRO SE (FOUND AT JUDICIAL IMMUNITY WEBSITE)
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

    . PRO SE: Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); see also Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; see also Pucket v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA), 456 2nd 233; see also Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson (Justice Black); Haines v. Kerner, 404 U.S. 520 (1971)

    . PRO SE: "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

    . PRO SE: It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer. Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson and Justice Black.

    . PRO SE: The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities." Picking v. Pennsylvania Railway, 151 F.2d. 240, (3rd Cir.) (19___)

    . PRO SE: "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law." Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)

    . PRO SE: "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights." Sherar v. Cullen, 481 F. 2d 946 (1973)

    . PRO SE: "The practice of law cannot be licensed by any state/State." Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. :

    . PRO SE: "The practice of law is an occupation of common right." Sims v. Aherns, 271 SW 720 (1925)

    . PRO SE: "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905

    . PRO SE: Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)

    . PRO SE: Plaintiff who consulted defendants' law firms regarding workers' compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff's representation was limited only to filing workers' compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim. Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)

    . PRO SE: Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in
    litigants' misrepresentation of pro se status in violation of ethical rules.
    Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994)

    . PRO SE: Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to
    ghostwrite pleadings for pro se plaintiffs abused additional leeway given
    to pro se filings. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)

    . PRO SE: Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.
    U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)

    . PRO SE: In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order. Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)

    . PRO SE: Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant's pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules. Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)

    . PRO SE: Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility. Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)

    . PRO SE: Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record. Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)

    . PRO SE: Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation. Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)

    . PRO SE: In a lawsuit, plaintiff’s counsel of record requested that another firm make a "special appearance" at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance". Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)

    . PRO SE: Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct. Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)

    . PRO SE: Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing. Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)

    . PRO SE: Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent. Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)

    . PRO SE: Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.
    Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.
    App.)

    . PRO SE: Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official "attorney of record". The court found that it was not bound by agreements made between client and attorney and that a court may "require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct". The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal. Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)

    . PRO SE: In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not "abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant". Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)

    . PRO SE: In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina. Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)

    . PRO SE: Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
    Future Lawn, Inc v. Steinberg, 2008 Ohio 4127


    . PRO SE: Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); see also Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; see also Pucket v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA), 456 2nd 233; see also Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson (Justice Black); Haines v. Kerner, 404 U.S. 520 (1971)

    . PRO SE: "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

    . PRO SE: It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer. Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA); see also Conley v. Gibson and Justice Black.

    . PRO SE: The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities." Picking v. Pennsylvania Railway, 151 F.2d. 240, (3rd Cir.) (19___)

    . PRO SE: "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law." Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)

    . PRO SE: "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights." Sherar v. Cullen, 481 F. 2d 946 (1973)

    . PRO SE: "The practice of law cannot be licensed by any state/State." Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. :

    . PRO SE: "The practice of law is an occupation of common right." Sims v. Aherns, 271 SW 720 (1925)

    . PRO SE: "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905



    . PRO SE: Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)

    . PRO SE: Plaintiff who consulted defendants' law firms regarding workers' compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff's representation was limited only to filing workers' compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim. Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)

    . PRO SE: Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in
    litigants' misrepresentation of pro se status in violation of ethical rules.
    Johnson v. Board of County Comm'rs, 868 F.Supp. 1226 (D. Colo. 1994)

    . PRO SE: Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to
    ghostwrite pleadings for pro se plaintiffs abused additional leeway given
    to pro se
    filings. Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)

    . PRO SE: Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney's duty of candor to the court, interferes with the court's ability to supervise the litigation, and misrepresents the litigant's right to more liberal construction as a pro se litigant.
    U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)

    . PRO SE: In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order. Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)

    . PRO SE: Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant's pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules. Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)

    . PRO SE: Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of "ghost writing," which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of "unbundled" or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility. Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)

    . PRO SE: Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record. Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)

    . PRO SE: Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation. Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)

    . PRO SE: In a lawsuit, plaintiff’s counsel of record requested that another firm make a "special appearance" at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance". Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)

    . PRO SE: Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct. Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)

    . PRO SE: Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney's assistance to the court upon filing. Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)

    . PRO SE: Attorney, with matrimonial client's consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent. Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)

    . PRO SE: Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.
    Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.
    App.)

    . PRO SE: Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official "attorney of record". The court found that it was not bound by agreements made between client and attorney and that a court may "require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct". The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal. Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)

    . PRO SE: In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not "abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant". Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)

    . PRO SE: In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina. Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)

    . PRO SE: Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.
    Future Lawn, Inc v. Steinberg, 2008 Ohio 4127

    . PRO SE: In regards to compliance with evidentiary rules, per se, one supreme court has commended a trial judge for his conduct in "relax[ing] the rules of evidence and mak[ing] a special effort to facilitate the [pro se] plaintiff’s presentation of his case." Austin v. Ellis, 119 N.H. 741, 743 (1979). The court in Austin followed a recommendation of an ABA committee in declining to set any firm parameters regarding how far a judge should go to assist a pro se litigant:

    . PRO SE: The court is confronted by an especially difficult task when one of the litigants chooses to represent himself. The court’s essential function to serve as an impartial referee comes into direct conflict with the concomitant necessity that the pro se litigant’s case be fully and completely presented.

    . PRO SE: The proper scope of the court’s responsibility [to a pro se litigant] is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by a specific formula [citing ABA Standards, Comm. On Standards of Judicial Administration, Sec. 2.23, at 45-47 (1976)]

    . PRO SE: For example, the court may substitute the appropriate statute for an omitted or incorrect statute if the facts arguably support a claim under the law. Foster v. Murphy 686 F.Supp.471,474 (1988); O'Connor v. United States (1987) 669 F. Supp. 317,324.






    XXXXXXXXXXXXXXXXX
    . RIGHT TO KNOW
    XXXXXXXXXXXXXXXXX

    . RIGHT TO KNOW: "The Right to Know Law does NOT bar a party in a civil action from discovering relevant information from the files of a government agency." Starr v PA State Board of Medicine No. 3146 C.D. 1997; see also Kauffman, 605 A.2d at 1243


    . RIGHT TO KNOW: Section 1 defines "public record" as ... [a[ny account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal or services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, that the term "public records" shall not men any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties ... ; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of Court, or which would operate to the prejudice or impairment of person's reputation or personal security ..."
    Starr v PA State Board of Medicine No. 3146 C.D. 1997


    . RIGHT TO KNOW: "The right to know law provides that every public record of an agency shall be open to examination and inspection by any citizen of the Commonwealth." Starr v PA State Board of Medicine No. 3146 C.D. 1997


    . RIGHT TO KNOW: "in Hendrickson v. State Board of Medicine, 529 A.2d 78 (Pa. Cmwlth. 1987), we recognized that we would modify a Board's order if the penalty was unduly harsh." Starr v PA State Board of Medicine No. 3146 C.D. 1997




    XXXXXXXXXXXXXXXXXXXX
    . OFFICIAL RECORDS
    XXXXXXXXXXXXXXXXXXXX

    . OFFICIAL RECORDS: "Official records as certified by the legal custodian of the records do not constitute inadmissible hearsay." Telang v. PABPOA No. 1992 C.D. 1997 (Filed 1998); see also Commonwealth v. Smith 563 A.2d 905 (Pa. Super. 1989) af'd, 528 Pa. 380, 598 A.2d 268 (1991)




    XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    . RIGHTS, PROPERTY, LICENSE
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

    . RIGHTS, PROPERTY, LICENSE: Has or is Plaintiff "Acting in such manner as to present an immediate and clear danger to pubic health or safety."? Starr v PA State Board of Medicine No. 3146 C.D. 1997

    . RIGHTS, PROPERTY, LICENSE: PA BPOA argues that notice and an opportunity to be hard are required ONLY when the Board takes an action against a licensee. It concedes that the act of suspending or revoking a license infringes upon a legitimate protected property right thereby requiring notice and a hearing." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999; see also Lee v. PAREV Bureau of State Lotteries, 492 a.2D 451 (Pa. Cmwlth. 1985)

    . RIGHTS, PROPERTY, LICENSE: It (PA BPOA) contends however, that the root requirement of due process requires ONLY that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999; see also Firman v. PADOS, State Board of Medicine, 697 A.2d 291 (Pa. Cmwlth. 1997)

    . RIGHTS, PROPERTY, LICENSE: "Unless a legitimate property interest is infringed, the lack of notice and a hearing are of no constitutional moment." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999

    . RIGHTS, PROPERTY, LICENSE: BPOA argues that, since the constitutional obligation to serve notice and hold a hearing is only triggered by the taking of an action which results in the infringement of a legitimate, protected right the Board was not required to hold a hearing ..." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999

    . RIGHTS, PROPERTY, LICENSE: "We do not base our determination on BPOA's argument that a holding by this Court requiring a hearing would open the floodgates to numerous requests an unduly burden the Board's resources. Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999

    . RIGHTS, PROPERTY, LICENSE: If we determined that the Board had to afford hearings in cases such as the one at bar, the Board would have to comply. Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999

    . RIGHTS, PROPERTY, LICENSE: Due process is never cheap and the finances involved in affording it should not be considered. Process is either due or it is not." Wolfe v. PA State Board of Osteopathic Medicine No. 1248 C.D. 1999


    . RIGHTS, CONSTITUTIONAL: "Constitutional 'rights' would be of little value if they could be indirectly denied." Gomillion v. Lightfoot/, 364 U.S. 155 (1966) See also Smith v. Allwright, 321 U.S. 644


    . RIGHTS, CONSTITUTIONAL: "An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425 p. 442



    . RIGHTS, INJUNCTION: First, it is a bedrock “principle[] of equity” that “‘[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.’” Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002) Farmer v. Brennan, 511 U.S. 825, 845 (1994) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)).


    . RIGHTS, INJUNCTION: Requiring Proof of Actual Harm as a Condition to Injunctive Relief Misconceives the Purpose of, and Is Contrary to the Equitable Nature of, an Injunction. Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002)


    . RIGHTS - INJUNCTION: For example, 42 U.S.C.  1983 does not explicitly refer to the "likelihood" of deprivation of federal rights, but rather imposes liability on any person who "subjects, or causes to be subjected" any other person "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Mosley v. Secret Catalogue, Inc. et al., No. 01-1015 USSC (2002) (Emphasis added).





    XXXXXXXXXXXXXXXXXXXXX
    . MOTION TO DISMISS
    XXXXXXXXXXXXXXXXXXXXX

    . MOTION TO DISMISS: "... in a "motion to dismiss, the material allegations of the complaint are taken as admitted". From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (see /Conley v. Gibson/, 355 U.S. 41 (1957)). Walter Process Equipment v. Food Machinery/, 382 U.S. 172 (1965)






    XXXXXXXXXXXXXXX
    . SOVEREIGNTY
    XXXXXXXXXXXXXXX

    . SOVEREIGNTY: Supreme Court Justice Field, "There is no such thing as a power of inherent sovereignty in the government of the United States... In this country, sovereignty resides in the people, and Congress can exercise power which they have not, by their Constitution, entrusted to it. All else is withheld." Juliard v. Greeman/, 110 U.S. 421 (1884)








    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    . TRO (TEMPORARY RESTRAINING ORDER) CASE LAW
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

    A. Standards for Granting a TRO or Preliminary Injunction

    . TRO: "The grant of emergency relief, whether in the form of a temporary restraining order or a preliminary injunction, is "a drastic and unusual judicial measure." Turner et al v. Whittington Civil Action No. 98-2634 (1998); see also Marine Transport Lines, Inc. v. Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985).


    . TRO: To obtain such "extraordinary" relief a party must always "prove that

    (1) it has a substantial likelihood of succeeding on the merits;
    (2) it will suffer irreparable harm if the injunction is not granted;
    (3) other interested parties will not suffer substantial harm if the injunction is granted; and
    (4) the public interest will be furthered by the injunction."

    Turner et al v. Whittington Civil Action No. 98-2634 (1998); see also (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988); National Treasury Employees Union v. United States, 927 F.2d 1253, 1254 (D.C. Cir. 1991), quoting in part Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C. Cir. 1989).


    . TRO: Even in a First Amendment case, "[a] significant failure of proof with respect to any element may warrant the refusal of pendente lite relief . . . ."
    Time Warner Entertainment Co., L.P. v. FCC, 810 F. Supp. 1302, 1304 (D.D.C. 1992).


    . TRO: The purpose of a TRO or preliminary injunction is to preserve the status quo until a court can rule on the merits of a claim. Turner et al v. Whittington Civil Action No. 98-2634 (1998); See also University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).


    . TRO: Plaintiffs must overcome the extreme reluctance of federal courts to interfere with the operation of an Act of Congress -- even one said to violate the First Amendment -- while litigation is pending. (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988)) See Turner Broadcasting System, Inc. v. FCC, , 113 S. Ct. 1806, 1807 (1993) (Rehnquist, C.J., in chambers) (citations omitted); (the "judicial power to stay an act of Congress, like judicial power to hold that act unconstitutional, is an awesome responsibility calling for the utmost circumspection in its exercise"); Katzenbach v. McClung, 85 S. Ct. 6, 7 (1964) (Black, J., in chambers); (it is "an established rule that courts of equity will not exercise their power to enjoin the enforcement of an act of Congress except under the most impressive or exigent circumstances").

    The Supreme Court has consistently recognized that because Acts of Congress are presumptively constitutional, they "should remain in effect pending a final decision on the merits by [the] Court." (Public Citizen v. Nat'l Advisory Comm. on Microbiological Criteria for Foods, 708 F. Supp. 359, 362 (D.D.C. 1988)); Turner Broadcasting, 113 S. Ct. at 1807; see also Rostker v. Goldberg, 448 U.S. 1306, 1310 n. 3 (1980) (Brennan, J., in chambers); Northeastern Florida Chapter, Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11h Cir. 1990);


    . TRO: (preliminary injunctions of legislative enactments must be granted reluctantly and only upon clear showing that injunction before trial is definitely demanded by the Constitution and other strict legal and equitable principles that restrain courts). Turner et al v. Whittington Civil Action No. 98-2634 (1998

    B. Plaintiffs Will Not Suffer Immediate Irreparable Harm


    . TRO: Apparent diversity case against county. If preliminary injunction is not issued, plaintiff would suffer irreparable harm because damages could not be recovered against county under state law. Synagro-WWT, Inc. v. Louisa County 2001 WL 868638 (W.D. Va. July 17, 2001)



    TYC

  5. #5
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    Quote Originally Posted by tyc View Post
    X
    New "file dump" to be posted late today or tomorrow.

    tyc

  6. #6
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    Thanks Tyc,

    Can you just provide a link to the original source. Hopefully a PDF version that can be printed off for offline reading.

    Its a bit too much material for a forum thread.

  7. #7
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by OC4me View Post
    Thanks Tyc,

    Can you just provide a link to the original source. Hopefully a PDF version that can be printed off for offline reading.

    Its a bit too much material for a forum thread.
    Actually it is entirely too much. The forum limits such to not waste band width and this effort of breaking down to several posts is an end run around such restrictions. That and, as you say, people are not normally going to wade through a wall of text.

    Strongly recommend providing a short descriptive paragraph for each section together with a link(s) as suggested above. Otherwise the information will be lost in part of whole when it is subjected to editing by others. This would be best if done by the OP as an edit.

    Understand that your efforts are appreciated, but the formatting w/o links is quite unnecessary.
    Last edited by Grapeshot; 10-27-2012 at 07:08 PM. Reason: clarified
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  8. #8
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    Quote Originally Posted by Grapeshot;1843916
    Actually it is entirely too much. The forum limits such to not waste band width and this effort of breaking down to several posts is an end run around such restrictions. That and, as you say, people are not normally going to wade through a wall of text.

    Strongly recommend providing a short descriptive paragraph for each section together with a link(s) as suggested above. Otherwise the information will be lost in part of whole when it is subjected to editing by others. This would be best if done by the OP as an edit.

    Understand that your efforts are appreciated, but the formatting w/o links is quite unnecessary.
    There was no intent to "end run". The intent here was to get the volume of information out for all to see and if they wish, use - without restrictions of any type or kind.

    As for the "links" you speak of, there are no links or to put it another way - I am the "link". The case law citations you see above were assembled by me over the years and as such the format presented has proven to be very efficient with respect to employing citations when filing a complaint or when answerng one or when filing a motion or answering one.

    The case law shown above is now used here on almost a daily basis and as was noted earlier, those who wish to engage in the practice of law, especially those operating as Pro Se are most welcome to the formatting method employed as well as the citations themselves.

    You might note that I will soon be publishing my own web site, one specifically aimed at non-attornies who wish to practice pro-se here in Pennsylvania as experience has repeatedly shown me that such efforts should be encouraged. As is the case with our present state of politics, law is much too importaint to be left to the lawyers.

    tyc
    Last edited by tyc; 10-28-2012 at 07:58 AM.

  9. #9
    Moderator / Administrator Grapeshot's Avatar
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    Thumbs up

    Quote Originally Posted by tyc View Post
    --snip--
    You might note that I will soon be publishing my own web site, one specifically aimed at non-attornies who wish to practice pro-se here in Pennsylvania as experience has repeatedly shown me that such efforts should be encouraged. As is the case with our present state of politics, law is much too importaint to be left to the lawyers.
    tyc
    That will be a very good thing from many POV - good luck with those efforts.

    I admit to some profound hesitancy to proceeding pro se in but the simplest of circumstances (have done so). Attorneys are seldom free, but then again the cost of losing is not w/o dramatic personal expense either.

    Choices, informed choices, are never a bad thing. Appreciate what you are doing.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  10. #10
    Regular Member Gil223's Avatar
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    Quote Originally Posted by Grapeshot View Post
    That and, as you say, people are not normally going to wade through a wall of text.
    Agreed... I chose to swim for shore, rather than drown in a sea of legal verbiage. Although we can all appreciate the time and effort tyc put into collecting - and especially posting - this mountain of information, it is seriously overkill. Reading the post for understanding looks like an all-day task. How about removing it as is, and perhaps posting it as an attachment for those of us who may have some need/interest in pro se proceedings can peruse the information at our leisure? Pax...
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  11. #11
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    Tyc,

    Convert your original document (i.e. Word file) into PDF format. There are many free online PDF converters. My favorite is http://www.pdfonline.com/convert-pdf/.

    Upload the PDF file to a server somewhere and then paste a link to that file here.

    Thank you!

    A Pro-Se guide on various legal subjects is sorely needed. Thank you for your efforts!

    In my own experience acting as a Pro-Se, the problem areas are:

    1) Not knowing what you don't know (there are things that you need to know but would never think to ask)
    2) Finding example documents (complaints, motions, discovery requests, etc) - Less of a problem now with the internet.
    3) Those darn "Rules of the Court" i.e. Federal, State, local Court and even for each particular judge. Very easy to overlook these and in my experience these rules are very difficult to understand.
    4) Those darn unwritten rules. Pro Se litigants don't have the experience that a lawyer has to know when the above rules of the court can be bent or outright ignored (almost always to their detriment).
    5) The number one problem for Pro Se litigants is the 'good ole boys network'. All the Judges and lawyers seem to know each other, socialize with each other, etc. and you the Pro Se litigant are the outsider.
    6) Know how (and when) to object and file an appeal when the other side (either opposing counsel or the judge) doesn't follow the rules or you believe that the applicable law wasn't applied in your case.
    7) Case law: how to research it, knowing which case law applies in your jurisdiction, and finally how to properly cite case law inside your brief.

    If you are acting Pro Se in a civil case, i.e. some scoundrel owes you money and has skipped town, and they don't bother to even show up in court, your chances of a judgement in your favor are quite good (and acting as a Pro Se in just such a situation can be a good learning experience....an ideal opportunity to get your feet wet, so to speak). You don't really want to be a first-time Pro Se litigant facing another attorney until you have a very good idea how the system works for and against you.
    Last edited by OC4me; 10-28-2012 at 02:29 PM.

  12. #12
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    Quote Originally Posted by Gil223 View Post
    ... it is seriously overkill. Reading the post for understanding looks like an all-day task.... peruse the information at our leisure? Pax...
    Don't take this as an insult as it is not intended as such but if one can misunderstand what was done here, others can as well.

    It was not intended that the file dump be read while on line. Rather it was intended that the files be downloaded and once downloaded they can then be read, reviewed, researched, while off-line.

    Expeience has shown me that the initial experience which caused the interest in pro se leads one to realize that the overall knowledge can easily be applied to other causes as well, so it's not a "one time deal."

    tyc

  13. #13
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    Quote Originally Posted by OC4me View Post
    Tyc,

    Convert your original document (i.e. Word file) into PDF format. There are many free online PDF converters. My favorite is http://www.pdfonline.com/convert-pdf/.

    Upload the PDF file to a server somewhere and then paste a link to that file here.

    Thank you!

    A Pro-Se guide on various legal subjects is sorely needed. Thank you for your efforts!

    In my own experience acting as a Pro-Se, the problem areas are:

    1) Not knowing what you don't know (there are things that you need to know but would never think to ask)
    2) Finding example documents (complaints, motions, discovery requests, etc) - Less of a problem now with the internet.
    3) Those darn "Rules of the Court" i.e. Federal, State, local Court and even for each particular judge. Very easy to overlook these and in my experience these rules are very difficult to understand.
    4) Those darn unwritten rules. Pro Se litigants don't have the experience that a lawyer has to know when the above rules of the court can be bent or outright ignored (almost always to their detriment).
    5) The number one problem for Pro Se litigants is the 'good ole boys network'. All the Judges and lawyers seem to know each other, socialize with each other, etc. and you the Pro Se litigant are the outsider.
    6) Know how (and when) to object and file an appeal when the other side (either opposing counsel or the judge) doesn't follow the rules or you believe that the applicable law wasn't applied in your case.
    7) Case law: how to research it, knowing which case law applies in your jurisdiction, and finally how to properly cite case law inside your brief.

    If you are acting Pro Se in a civil case, i.e. some scoundrel owes you money and has skipped town, and they don't bother to even show up in court, your chances of a judgement in your favor are quite good (and acting as a Pro Se in just such a situation can be a good learning experience....an ideal opportunity to get your feet wet, so to speak). You don't really want to be a first-time Pro Se litigant facing another attorney until you have a very good idea how the system works for and against you.
    The data is intentionally offered in ASCII format as it can readily be pulled up with a low-level word processor and the citations of interest can then be copied and pasted into a working document which is also open in a different window.

    As for offering the citations in PDF, I can't see doing that but then keep in mind I come from a computer tme when 4 KRAM was typical and 16K RAM was a big deal. Also, PDF files require considerably more RAM to display as well as store.

    As for not knowing what you don't know. I understand that - all too well.

    If you think District Courts or state appellet and state supreme courts can be difficult, have a look at the document requirements for appeals to the US Supreme Court.

    And experience has shown me that the best way to learn the law, pro se or otherwise, is to get in there and have at it. You will make mistakes but the "trick" is to learn from them and not repeat them; like riding a bicycle, once you learn how to do it and the more you do it, the better you get at it.

    The citations presented, the format used came from years of trial and error. Most of those currently practicing law still review the entire case, just to get a specific citation. What I've offered here is a beginning volume of "condensed case law", ready to be added to a document currently being created. While it may not work for all, so far I've found this format to be very practical.

    tyc
    Last edited by tyc; 10-28-2012 at 08:06 PM.

  14. #14
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    www.westlaw.com

    and the old "monkey see-monkey do" approach

  15. #15
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    www.westlaw.com

    and the old "monkey see-monkey do" approach
    Nice find. I was not familiar with that particular site.
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  16. #16
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    Westlaw, I've known of them but have never used their "services." ... if I'm not mistaken it is a site for "customers"; i.e., paying customers.

    tyc

  17. #17
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by tyc
    it was intended that the files be downloaded and once downloaded they can then be read, reviewed, researched, while off-line.
    I don't see any document to download, just a couple of VERY long posts.
    The suggestion of conversion to a PDF & posting a link to it would have created what you described.
    Maybe I'll come back here someday when I have more time & patience, & my eyes aren't threatening to cross from reading all that.
    Quote Originally Posted by MLK, Jr
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    Quote Originally Posted by Proverbs 27:12
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