OPINIONS ARE POSTED DAILY BETWEEN 10:00 and 11:00 a.m.
Today is: [ Thursday July 02, 2009 ]
The most recent opinions are for: [ 07/02/2009 ] 
DISCLAIMER: The following unofficial case summaries are prepared by the clerk's office
as a courtesy to the reader. They are not part of the opinion of the court.
073780P.pdf 07/02/2009 Julie Roubideaux, etc. v. ND Dept. of Corrections, etc.
U.S. Court of Appeals Case No: 07-3780
District of North Dakota - Bismarck
[PUBLISHED] [Hansen, Author, with Murphy and Riley, Circuit Judges]
Prisoner case - prisoner civil rights. In suit alleging North Dakota prison system and its officials had discriminated against female inmates by failing to provide them programs and facilities equal to those provided male inmates, the female inmates had standing to challenge the constitutionality of two gender-explicit statutes which allegedly facilitated their transfer to the Dakota Women's Correction and Rehabilitation Center; the evidence in the record raises no inference of gender discrimination in the decision-making process because the statutes in question substantially relate to the important government objective of providing adequate segregated housing for female inmates; there is no evidence to suggest that any resulting differences in the programming from this permissible segregation are caused by gender discrimination; any equal protection claim arising out the inmates' previous housing in other facilities was mooted by their transfer to the Correction and Rehabilitation Center; prison industry assignments were not subject to Title IX as the primary purpose of the program is employment, not education; vocational education programs were within the scope of Title IX, and the district court did not err in finding that any differences in the programs offered men and women were a function of the location of the facilities and not a result of gender discrimination. 082067P.pdf 07/02/2009 Kip Kaler v. Susan Bala U.S. Court of Appeals Case No: 08-2067 Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit [PUBLISHED] [Loken, Author, with Melloy and Benton, Circuit Judges]
Civil case - Bankruptcy. Bankruptcy court had equitable discretion to modify the prospective application of its Subordination Order under clause (iii) of Rule 60(b)(5); the bankruptcy court did not err in vacating the equitable Subordination Order concerning debtors' administrative claim after her criminal conviction was vacated by this court. 082448P.pdf 07/02/2009 Eddie Howard v. Ryan Bronner U.S. Court of Appeals Case No: 08-2448 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Bye, Author, with Colloton and Gruender, Circuit Judges]
Civil case - civil rights. District court did not err in denying defendant police officers' motion for summary judgment based on qualified immunity on plaintiff's claims they used excessive force in detaining him when he tried to obtain their assistance after he was shot; viewing the facts in the light most favorable to plaintiff, the officers used excessive force in violation of plaintiff's rights when they restrained him on hot asphalt on a 100 degree day; forcing a victim to lie without a shirt on the hot asphalt, thereby causing second-degree burns, was objectively unreasonable, and the officers had fair warning that such conduct was not objectively reasonable. Judge Gruender, dissenting. 082584P.pdf 07/02/2009 David Boyle v. American Auto Service, Inc. U.S. Court of Appeals Case No: 08-2584 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Smith, Author, with Riley and Shepherd, Circuit Judges]
Civil case - civil procedure. Federal Rule of Civil Procedure 41(b) applied to situation where plaintiff timely failed to serve the complaint before the case was removed from state to federal court; the district court did not abuse its discretion in dismissing the case based on a 44-month delay in service as the delay was unexcused. 082586P.pdf 07/02/2009 Bill M. v. Nebraska Dept. of HHS etc. U.S. Court of Appeals Case No: 08-2586 District of Nebraska - Lincoln [PUBLISHED] [Colloton, Author, with Bright and Wollman, Circuit Judges]
Civil case - Civil rights. In action claiming defendants had violated the ADA, the Rehabilitation Act and Medicaid statutes and regulations by inadequately funding developmental disability services, the parties reached a settlement agreement which did not require district court approval, incorporation in a court order or retention of jurisdiction for future oversight and enforcement; as a result, the settlement lacked the necessary judicial imprimatur to confer upon the plaintiffs prevailing party status, and the district court did not err in denying their request for an award of attorneys' fees under the applicable federal fee-shifting statutes. 082856U.pdf 07/02/2009 Malkhaz Devadze v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 08-2856 Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Bye, Hansen and Benton, Circuit Judges]
Petition for Review - Immigration. Substantial evidence supported the Immigration Judge's decision to deny petitioner withholding of removal as his claims that his life or freedom would be threatened on the basis of his political affiliation were not supported by credible evidence. 082860P.pdf 07/02/2009 United States v. Tony Lee U.S. Court of Appeals Case No: 08-2860 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Smith, Author, with Gruender and Benton, Circuit Judges]
Criminal case - Sentencing. Defendant's argument that the district court erred in overruling his objections to sentencing enhancements without requiring the government to present any evidence is without merit as there was sufficient evidence in the record to support each of the enhancements; district court did not err in imposing an enhancement under Guidelines Sec. 2B3.1(b)(4)(B) as one of his accomplices struck a woman attempting to leave the post office during the robbery, thereby physically restraining the victim. 083093P.pdf 07/02/2009 United States v. Jason Schmidt U.S. Court of Appeals Case No: 08-3093 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Riley, Author, with Smith and Colloton, Circuit Judges]
Criminal case - criminal law and sentencing. Defendant's possession of a firearm manufactured in Belgium and ammunition manufactured in Missouri and either Connecticut or Arkansas was sufficient to satisfy 18 U.S.C. Sec. 922(g)(1)'s required nexus to interstate commerce; sentence was not unreasonable. 083407P.pdf 07/02/2009 Mwape Chibwe, etc. v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 08-3407 Board of Immigration Appeals [PUBLISHED] [Arnold, Author, with Murphy and Gruender, Circuit Judges]
Petition for Review - Immigration. This court does not have jurisdiction to review the agency's decision that petitioner's asylum application was untimely; petitioners fail to cite any evidence in the record which would support a finding that they faced a threat on an enumerated ground if they were returned to Zambia or Malawi, and the agency did not err in denying their request for withholding of removal. 083535P.pdf 07/02/2009 Clarendon Natl. Ins. Co. v. United Fire & Casualty Co. U.S. Court of Appeals Case No: 08-3535 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Bye, Author, with Hansen and Benton, Circuit Judges]
Civil case - insurance. Defendant's demand for plaintiff to be involved in the defense of anticipated suits by injured parties is enough to create an actual controversy and give plaintiff the right to bring this declaratory judgment action to determine priority of coverage; district court did not err in determining that defendant's policy provided primary coverage for the accident and that its umbrella policy would also be triggered before the policy issued by plaintiff came into play. 083536P.pdf 07/02/2009 United States v. Uneal Davis U.S. Court of Appeals Case No: 08-3536 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Shepherd, Author, with Riley and Benton, Circuit Judges]
Criminal case - Criminal law. Warrantless search of vehicle was a lawful search incident to arrest, and firearm found in vehicle was admissible; the search was also lawful under the automobile exception to the requirement that a search be authorized by a warrant. 091191P.pdf 07/02/2009 United States v. Jason Pepper U.S. Court of Appeals Case No: 09-1191 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Riley, Author, with Smith and Colloton, Circuit Judges]
Criminal case - Sentencing. For the court's most recent opinion in the series of appeal involving Pepper's sentence, see United States v. Pepper, 518 F.3d 949 (8th Cir. 2008), cert. denied 129 S.Ct. 138 (2008). This court's remand did not require the district court to reduce Pepper's advisory Guidelines sentence by at least 40% pursuant to Guidelines 5K1.1; district court did not abuse its discretion by refusing to grant more than a 20% reduction based on Pepper's substantial assistance; district court did not abuse its discretion by denying Pepper's request for a downward variance based on his post-sentencing rehabilitation and the cost of his incarceration; sentence was not substantively unreasonable.
Prisoner case - prisoner civil rights. In suit alleging North Dakota prison system and its officials had discriminated against female inmates by failing to provide them programs and facilities equal to those provided male inmates, the female inmates had standing to challenge the constitutionality of two gender-explicit statutes which allegedly facilitated their transfer to the Dakota Women's Correction and Rehabilitation Center; the evidence in the record raises no inference of gender discrimination in the decision-making process because the statutes in question substantially relate to the important government objective of providing adequate segregated housing for female inmates; there is no evidence to suggest that any resulting differences in the programming from this permissible segregation are caused by gender discrimination; any equal protection claim arising out the inmates' previous housing in other facilities was mooted by their transfer to the Correction and Rehabilitation Center; prison industry assignments were not subject to Title IX as the primary purpose of the program is employment, not education; vocational education programs were within the scope of Title IX, and the district court did not err in finding that any differences in the programs offered men and women were a function of the location of the facilities and not a result of gender discrimination. 082067P.pdf 07/02/2009 Kip Kaler v. Susan Bala U.S. Court of Appeals Case No: 08-2067 Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit [PUBLISHED] [Loken, Author, with Melloy and Benton, Circuit Judges]
Civil case - Bankruptcy. Bankruptcy court had equitable discretion to modify the prospective application of its Subordination Order under clause (iii) of Rule 60(b)(5); the bankruptcy court did not err in vacating the equitable Subordination Order concerning debtors' administrative claim after her criminal conviction was vacated by this court. 082448P.pdf 07/02/2009 Eddie Howard v. Ryan Bronner U.S. Court of Appeals Case No: 08-2448 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Bye, Author, with Colloton and Gruender, Circuit Judges]
Civil case - civil rights. District court did not err in denying defendant police officers' motion for summary judgment based on qualified immunity on plaintiff's claims they used excessive force in detaining him when he tried to obtain their assistance after he was shot; viewing the facts in the light most favorable to plaintiff, the officers used excessive force in violation of plaintiff's rights when they restrained him on hot asphalt on a 100 degree day; forcing a victim to lie without a shirt on the hot asphalt, thereby causing second-degree burns, was objectively unreasonable, and the officers had fair warning that such conduct was not objectively reasonable. Judge Gruender, dissenting. 082584P.pdf 07/02/2009 David Boyle v. American Auto Service, Inc. U.S. Court of Appeals Case No: 08-2584 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Smith, Author, with Riley and Shepherd, Circuit Judges]
Civil case - civil procedure. Federal Rule of Civil Procedure 41(b) applied to situation where plaintiff timely failed to serve the complaint before the case was removed from state to federal court; the district court did not abuse its discretion in dismissing the case based on a 44-month delay in service as the delay was unexcused. 082586P.pdf 07/02/2009 Bill M. v. Nebraska Dept. of HHS etc. U.S. Court of Appeals Case No: 08-2586 District of Nebraska - Lincoln [PUBLISHED] [Colloton, Author, with Bright and Wollman, Circuit Judges]
Civil case - Civil rights. In action claiming defendants had violated the ADA, the Rehabilitation Act and Medicaid statutes and regulations by inadequately funding developmental disability services, the parties reached a settlement agreement which did not require district court approval, incorporation in a court order or retention of jurisdiction for future oversight and enforcement; as a result, the settlement lacked the necessary judicial imprimatur to confer upon the plaintiffs prevailing party status, and the district court did not err in denying their request for an award of attorneys' fees under the applicable federal fee-shifting statutes. 082856U.pdf 07/02/2009 Malkhaz Devadze v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 08-2856 Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Bye, Hansen and Benton, Circuit Judges]
Petition for Review - Immigration. Substantial evidence supported the Immigration Judge's decision to deny petitioner withholding of removal as his claims that his life or freedom would be threatened on the basis of his political affiliation were not supported by credible evidence. 082860P.pdf 07/02/2009 United States v. Tony Lee U.S. Court of Appeals Case No: 08-2860 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Smith, Author, with Gruender and Benton, Circuit Judges]
Criminal case - Sentencing. Defendant's argument that the district court erred in overruling his objections to sentencing enhancements without requiring the government to present any evidence is without merit as there was sufficient evidence in the record to support each of the enhancements; district court did not err in imposing an enhancement under Guidelines Sec. 2B3.1(b)(4)(B) as one of his accomplices struck a woman attempting to leave the post office during the robbery, thereby physically restraining the victim. 083093P.pdf 07/02/2009 United States v. Jason Schmidt U.S. Court of Appeals Case No: 08-3093 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Riley, Author, with Smith and Colloton, Circuit Judges]
Criminal case - criminal law and sentencing. Defendant's possession of a firearm manufactured in Belgium and ammunition manufactured in Missouri and either Connecticut or Arkansas was sufficient to satisfy 18 U.S.C. Sec. 922(g)(1)'s required nexus to interstate commerce; sentence was not unreasonable. 083407P.pdf 07/02/2009 Mwape Chibwe, etc. v. Eric H. Holder, Jr. U.S. Court of Appeals Case No: 08-3407 Board of Immigration Appeals [PUBLISHED] [Arnold, Author, with Murphy and Gruender, Circuit Judges]
Petition for Review - Immigration. This court does not have jurisdiction to review the agency's decision that petitioner's asylum application was untimely; petitioners fail to cite any evidence in the record which would support a finding that they faced a threat on an enumerated ground if they were returned to Zambia or Malawi, and the agency did not err in denying their request for withholding of removal. 083535P.pdf 07/02/2009 Clarendon Natl. Ins. Co. v. United Fire & Casualty Co. U.S. Court of Appeals Case No: 08-3535 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Bye, Author, with Hansen and Benton, Circuit Judges]
Civil case - insurance. Defendant's demand for plaintiff to be involved in the defense of anticipated suits by injured parties is enough to create an actual controversy and give plaintiff the right to bring this declaratory judgment action to determine priority of coverage; district court did not err in determining that defendant's policy provided primary coverage for the accident and that its umbrella policy would also be triggered before the policy issued by plaintiff came into play. 083536P.pdf 07/02/2009 United States v. Uneal Davis U.S. Court of Appeals Case No: 08-3536 U.S. District Court for the Western District of Missouri - Springfield [PUBLISHED] [Shepherd, Author, with Riley and Benton, Circuit Judges]
Criminal case - Criminal law. Warrantless search of vehicle was a lawful search incident to arrest, and firearm found in vehicle was admissible; the search was also lawful under the automobile exception to the requirement that a search be authorized by a warrant. 091191P.pdf 07/02/2009 United States v. Jason Pepper U.S. Court of Appeals Case No: 09-1191 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Riley, Author, with Smith and Colloton, Circuit Judges]
Criminal case - Sentencing. For the court's most recent opinion in the series of appeal involving Pepper's sentence, see United States v. Pepper, 518 F.3d 949 (8th Cir. 2008), cert. denied 129 S.Ct. 138 (2008). This court's remand did not require the district court to reduce Pepper's advisory Guidelines sentence by at least 40% pursuant to Guidelines 5K1.1; district court did not abuse its discretion by refusing to grant more than a 20% reduction based on Pepper's substantial assistance; district court did not abuse its discretion by denying Pepper's request for a downward variance based on his post-sentencing rehabilitation and the cost of his incarceration; sentence was not substantively unreasonable.