Opinions posted daily on the Court's Web site. http://www.ca8.uscourts.gov/opns/opFrame.html en-us http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/01/2012 2012-05-01 10:00:05 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.

111037P.pdf    05/01/2012   United States   v.   Robert Bossany, Jr.
U.S. Court of Appeals Case No: 11-1037
U.S. District Court for the District of Minnesota - St. Paul
[PUBLISHED] [Arnold. Author, with Murphy and Gruender, Circuit Judges]
Criminal Case - sentence. District court did not clearly err in denying acceptance of responsibility reduction, as this case is not exceptional compelling a finding of acceptance of responsibility despite finding of perjury. Although district court plainly erred in imposing 90-month sentence for conspiracy that exceeded 60-month statutory maximum, error did not affect substantial rights because district court legally imposed 90 months on another count.

111744P.pdf    05/01/2012   Wilbert Johnson   v.   Ray Hobbs
U.S. Court of Appeals Case No: 11-1744
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[PUBLISHED] [Wollman, Author, with Loken and Gruender, Circuit Judges]
Habeas Corpus - equitable tolling. Because Johnson's first petition for postconviction relief was filed prematurely and he did not seek leave to file amended petitions, his petition was not timely and his time for filing a petition for writ of habeas corpus was not tolled. Johnson is not entitled to equitable tolling because he cannot show an extraordinary circumstance, external to himself and not attributed to his actions, prevented him from timely filing his application for a writ of habeas corpus. Dismissal of his petition as untimely is affirmed.

112490P.pdf    05/01/2012   United States   v.   Russell Charles Seidel
U.S. Court of Appeals Case No: 11-2490
U.S. District Court for the District of North Dakota - Bismarck
[PUBLISHED] [Per Curiam. Before Chief Judge Riley, Wollman and Smith, Circuit Judges]
Criminal Case - suppression. Warrant based on a garbage pull conducted at residence which found pay-owe sheets, a syringe, and a paper clip that tested positive for marijuana was sufficient for a finding of probable cause and district court did not err in denying motion to suppress fruits of search of residence and garage. District court did not err in relying on oral testimony of officer, in that testimony was duly sworn and recorded.

112714P.pdf    05/01/2012   Government of Ghana   v.   ProEnergy Services, LLC
U.S. Court of Appeals Case No: 11-2714
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Melloy, Author, with Loken and Bye, Circuit Judges]
Civil Case - 28 U.S.C. sec. 1782. Decision which documents must be produced in application under 28 U.S.C. sec. 1782 is governed by Federal Rules. Thus, district court's discovery ruling will not be reversed absent a gross abuse of discretion resulting in fundamental unfairness. District court's refusal to order discovery of settlement documents was not a gross abuse of discretion, as use of documents would be prohibited at trial and fundamental unfairness would not result.

113885U.pdf    05/01/2012   United States   v.   Douglas Meeks
U.S. Court of Appeals Case No: 11-3885
U.S. District Court for the Southern District of Iowa - Davenport
[UNPUBLISHED] [Per Curiam. Before Wollman, Melloy, and Smith, Circuit Judges]
Criminal Case - sentence reduction. District court did not abuse its discretion in denying reduction because Meeks was sentenced before enactment of Fair Sentencing Act and he received the statutory mandatory minimum sentence.

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083939U.pdf    05/02/2012   United States   v.   Roger Rowley
U.S. Court of Appeals Case No: 08-3939
U.S. District Court for the Northern District of Iowa - Dubuque
[UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Smith and Benton, Circuit Judges]
Criminal case - Sentencing. Defendant has discharged his sentence, and his appeal is moot.

103227P.pdf    05/02/2012   Larry Neely   v.   Dustin McDaniel
U.S. Court of Appeals Case No: 10-3227
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Colloton, Author, with Bye and Smith, Circuit Judges]
Prisoner case - habeas. Because Neely entered a voluntary and intelligent guilty plea to violation of Arkansas Code Ann. 5-14-110, he cannot challenge the constitutionality of the statue as applied to his case; void for vagueness, overbreadth and due process challenges to statute rejected.

111180P.pdf    05/02/2012   Warith Zajrael   v.   Greg Harmon
U.S. Court of Appeals Case No: 11-1180
U.S. District Court for the Eastern District of Arkansas - Helena
[PUBLISHED] [Per curiam - Before Loken, Bye and Colloton, Circuit Judges]
Prisoner case - Prisoner civil rights. Section 1983 provides no cause of action against agents of the State acting in their official capacity; sovereign immunity barred plaintiff's claim for damages under the Religious Land Use and Institutionalized Persons Act; claim for injunctive relief under the Act was mooted by plaintiff's transfer to a different institution.

112151U.pdf    05/02/2012   United States   v.   Calvin Ray Washington
U.S. Court of Appeals Case No: 11-2151
U.S. District Court for the District of Minnesota - St. Paul
[UNPUBLISHED] [Per Curiam - Before Wollman, Arnold and Smith, Circuit Judges]
Criminal case - Sentencing. Sentence imposed upon revocation of defendant's supervised release was not substantively unreasonable.

112192P.pdf    05/02/2012   Andrei Popescu-Mateffy   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-2192
Appeal from Board of Immigration Appeals
[PUBLISHED] [Per Curiam - Before Wollman, Arnold and Smith, Circuit Judges]
Petition for Review - Immigration. BIA did not err in determining petitioner's conviction for possession of drug paraphernalia in a motor vehicle rendered him ineligible for waiver of inadmissibility under Immigration and Naturalization Act, 8 U.S.C. Sec. 1182(h).

113465U.pdf    05/02/2012   United States   v.   Phillip Medley
U.S. Court of Appeals Case No: 11-3465
U.S. District Court for the Western District of Arkansas - Hot Springs
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Criminal case - Sentencing. Anders case. Sentence was substantively reasonable.

126009P.pdf    05/02/2012   Robert Johnson   v.   Richard Fink
U.S. Court of Appeals Case No: 12-6009
U.S. Bankruptcy Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Kressel, Author, with Schermer and Nail, Bankruptcy Judges]
Bankruptcy Appellate Panel. Order dismissing Chapter 13 was not an abuse of the bankruptcy court's discretion, and the order is affirmed; order confirming original plan was not timely appealed and the panel was without jurisdiction to review the order.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/02/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/03/2012 2012-05-03 10:00:07 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.

111517U.pdf    05/03/2012   United States   v.   Hector Gutierrez
U.S. Court of Appeals Case No: 11-1517
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[UNPUBLISHED] [Per Curiam - Before Gruender, Benton and Shepherd, Circuit Judges]
Criminal case - Sentencing. Any error in classifying defendant's prior conviction as an aggravated felony was harmless as defendant was subject to a 10-year maximum sentence for illegal reentry following removal subsequent to a felony conviction and his actual sentence, 41 months, was well within the applicable statutory maximum.

111952P.pdf    05/03/2012   Turkish Coalition of America   v.   Robert Bruininks
U.S. Court of Appeals Case No: 11-1952
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Gruender, Author, with Benton and Shepherd, Circuit Judges]
Civil case - First Amendment. Plaintiff Cingilli failed to plead facts sufficient to demonstrate an objectively chilling effect and had not established standing to pursue a First Amendment claim; the Coalition had standing to pursue its claim that defendants' action in labeling its website as "unreliable" and placing it on a list which included Holocaust denial sites violated its First Amendment rights and injured its reputation through stigmatizing government speech; however, the Coalition failed to state a First Amendment claim and the district court did not err in dismissing its claim under Rule 12(b)(6) as the defendants' actions did not obstruct student access to the materials or make the materials substantially unavailable at the school; defendants' website's statements regarding the deaths of Armenians during World War I were either true or subjective opinion statements and therefore were not actionable under Minnesota law governing defamation; nor could the statements be regarded as actionable allegations of scholastic fraud.

112108P.pdf    05/03/2012   Justin Shekleton   v.   Ryan Eichenberger
U.S. Court of Appeals Case No: 11-2108
U.S. District Court for the Northern District of Iowa, Waterloo
[PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Melloy, Circuit Judge]
Civil case - civil rights. A reasonable police officer would not have deployed a taser under the circumstances presented in the case (an unarmed suspected misdemeanant, who did not resist arrest, did not run and did not act aggressively towards the officer); defendant officer's use of a taser under these circumstances amounted to a clearly established constitutional violation, and the district court did not err in denying the officer's motion for summary judgment based on qualified immunity.

112400U.pdf    05/03/2012   Marvin Livingston   v.   Edward Adams
U.S. Court of Appeals Case No: 11-2400
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Civil case - civil rights. District court did not err in finding defendant did not use excessive force in light of plaintiff's aggressive actions and the actual amount of force used to subdue plaintiff.

112586P.pdf    05/03/2012   United States   v.   Joseph Brown
U.S. Court of Appeals Case No: 11-2586
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Wollman, Author, with Loken and Melloy, Circuit Judges]
Criminal case - Sentencing. Sentence imposed upon revocation of defendant's supervised release did not violate 18 U.S.C. Sec. 3583(b)(1) as the sentence was permitted under 21 U.S.C. Sec. 841; issue of deducting certain time imposed in defendant's first revocation had been decided in a prior appeal.

112708P.pdf    05/03/2012   Joan Burke   v.   Curtis Sullivan
U.S. Court of Appeals Case No: 11-2708
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges]
Civil case - civil rights. Based on the facts known to the defendant officers, it was reasonable for them to conclude that their warrantless entry into plaintiff's home was lawful under either the emergency aid exception or the community caretaker exception, and the district court did not err in granting their motion for summary judgment based on qualified immunity; as the officers' entry was lawful, their brief detention of plaintiff was also lawful.

112780U.pdf    05/03/2012   Donald Brancato   v.   David Heimos
U.S. Court of Appeals Case No: 11-2780
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Civil case - civil rights. Dismissal affirmed without comment.

113134P.pdf    05/03/2012   United States   v.   Bruce Troyer
U.S. Court of Appeals Case No: 11-3134
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[PUBLISHED] [Colloton, Author, with Wollman, Circuit Judge, and Hickey, District Judge]
Criminal case - Sentencing. Even assuming the district court committed plain error when it determined the extent of a downward departure under Section 5K1.1., the error was harmless as there was no reasonable probability that, but for the error, the district court would have imposed a more lenient sentence.

113303U.pdf    05/03/2012   United States   v.   Michael Kluge
U.S. Court of Appeals Case No: 11-3303
U.S. District Court for the Northern District of Iowa - Sioux City
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Criminal case - Criminal law. District court did not abuse its discretion in denying defendant's motion for new trial based on newly-discovered evidence as the evidence was insufficient to warrant a new trial.

113323P.pdf    05/03/2012   B. Andersen   v.   HUD
U.S. Court of Appeals Case No: 11-3323
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Murphy, Author, with Melloy and Gruender, Circuit Judges]
Civil case - Injunctive Relief. District court did not err in dismissing plaintiff's action for declaratory and injunctive relief as the action was time barred under 28 U.S.C. Sec. 2401(a).

113839U.pdf    05/03/2012   United States   v.   Jason Harris
U.S. Court of Appeals Case No: 11-3839
U.S. District Court for the Western District of Missouri - St. Joseph
[UNPUBLISHED] [Per curiam - Before Wollman, Bye and Shepherd, Circuit Judges]
Criminal case - Sentencing. Anders case. Sentence was not substantively unreasonable.

121139U.pdf    05/03/2012   Michael Woolman   v.   State of Nebraska
U.S. Court of Appeals Case No: 12-1139
U.S. District Court for the District of Nebraska - Omaha
[UNPUBLISHED] [Per Curiam - Before Bye, Colloton and Gruender, Circuit Judges]
Civil case - civil rights. Dismissal affirmed without comment.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/03/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/04/2012 2012-05-04 10:00:06 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.

112544U.pdf    05/04/2012   Anvarjon Zakirov   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-2544
Appeal from Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Petition for Review - Immigration. BIA did not abuse its discretion in denying petitioners' motion for reconsideration.

112597U.pdf    05/04/2012   Corey Turner   v.   David Turner
U.S. Court of Appeals Case No: 11-2597
U.S. District Court for the Western District of Arkansas - Hot Springs
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Civil case - civil rights. District court did not abuse its discretion by dismissing plaintiff's 2009 suit; plaintiff's 2010 suit remains pending in the district court.

112910U.pdf    05/04/2012   Greater St. Louis Construction   v.   Phoenix Landscape Group L.L.C.
U.S. Court of Appeals Case No: 11-2910
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Benton, Circuit Judges]
Civil case. District court erred in dismissing Phoenix's motion to set aside an order piercing Phoenix's corporate veil to permit plaintiff to reach Phoenix's assets to satisfy a judgment against defendant Benco; remanded to the district court with directions to make explicit findings as to whether Phoenix received constitutionally adequate notice and a reasonable opportunity to be heard.

112917U.pdf    05/04/2012   United States   v.   Esteban Huizar
U.S. Court of Appeals Case No: 11-2917
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[UNPUBLISHED] [Per Curiam - Before Bye, Beam and Benton, Circuit Judges]
Criminal case - Sentencing. District court did not err by denying defendant's request for a two-level mitigating role reduction under Guidelines Sec. 3B1.2 as defendant was deeply involved in the offense.

113236U.pdf    05/04/2012   United States   v.   Brandon Davis
U.S. Court of Appeals Case No: 11-3236
U.S. District Court for the Western District of Arkansas - Fayetteville
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Criminal case - Sentencing. Anders case. Sentence was not substantively unreasonable.

113250U.pdf    05/04/2012   Oksana Revenkova   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-3250
Appeal from Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Petition for Review - Immigration. BIA correctly determined petitioner was statutorily ineligible for asylum or cancellation of removal based on her prior conviction for attempted burglary.

113360U.pdf    05/04/2012   Edvin Gonzalez-Hernandez   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-3360
Appeal from Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Petition for Review - Immigration. Substantial evidence supported the denials of asylum and withholding of removal.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/04/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/07/2012 2012-05-07 10:00:06 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.

111285P.pdf    05/07/2012   United States   v.   Sylvester Gayekpar
U.S. Court of Appeals Case No: 11-1285
                                              and No: 11-1333
U.S. District Court for the District of Minnesota - St. Paul
[PUBLISHED] [Colloton, Author, with Bye and Smith, Circuit Judges]
Criminal Case - conviction and sentence. District court did not abuse its discretion in admitting evidence of prior conviction for possession of altered obligations of the United States with intent to defraud under Rule 404(b) to prove knowledge in trial for conspiracy to possess altered currency with intent to defraud. There was no plain error in admitting testimony by agent. Without a limiting instruction, admission of codefendant's statement incriminating Gayekpar plainly violated Gayekpar's Sixth Amendment rights, but Gayekpar did not object to the failure to give the limiting instruction and there was no reasonable probability that a proper limiting instruction would have resulted in a different outcome for Gayekpar and thus no plain error. Considering totality of circumstances, Boe's waiver of rights under Miranda was voluntary, knowing and intelligent. District court did not clearly err in denying minor participant downward adjustment for either Gayekpar or Boe and district court did not commit procedural error in sentence.

111421P.pdf    05/07/2012   United States   v.   A. J. Kelly
U.S. Court of Appeals Case No: 11-1421
U.S. District Court for the District of Nebraska - Omaha
[PUBLISHED] [Beam, Author, with Chief Judge Riley and Bye, Circuit Judges]
Criminal Case - special condition of supervised release. Condition prohibiting control of material containing child pornography or photographic depictions of child nudity or of children engaged in any sexual activity is upheld. Condition is not overbroad, as it is limited to child nudity and district court made individual findings concerning defendant's recent history. Judge Beam, concurs specially. Judge Bye dissents.

111817P.pdf    05/07/2012   Professional Firefighters Asso   v.   James C. Zalewski
U.S. Court of Appeals Case No: 11-1817
                                              and No: 11-3253
U.S. District Court for the District of Nebraska - Omaha
[PUBLISHED][Chief Judge Riley, Author, with Beam and Bye, Circuit Judges]
Civil Case - class action settlement. Counsel for retired firefighters challenged approval of settlement of class action. District court did not abuse its discretion by certifying the class and allowing same counsel to represent both active and retired employees and otherwise ensuring fair and adequate representation for the entire class by means other than appointing separate counsel for each subclass. District court did not abuse its discretion in approving settlement and in failing to hold a special hearing on the ability of class counsel to represent the subclasses.

111838U.pdf    05/07/2012   United States   v.   Juan Rodriguez-Gonzalez
U.S. Court of Appeals Case No: 11-1838
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam. Before Loken, Bowman, and Benton, Circuit Judges]
Criminal Case - Anders. Sentence was not substantively unreasonable. Government did not breach plea agreement or offer false testimony. Challenge to plea agreement waiver is without merit.

112147U.pdf    05/07/2012   Douglas Edwards   v.   R.G. Edmondson
U.S. Court of Appeals Case No: 11-2147
Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit
[UNPUBLISHED] [Per Curiam. Before Murphy, Arnold, and Shepherd, Circuit Judges]
Bankruptcy Appellate Panel - bankruptcy. Bankruptcy court's findings were not clearly erroneous and BAP did not deny due process of law by declining to consider new issues not presented to bankruptcy court.

112388P.pdf    05/07/2012   Juan Carlos Camarillo-Jose   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-2388
Appeal from Board of Immigration Appeals
[PUBLISHED] [Smith, Author, with Chief Judge Riley and Wollman, Circuit Judges]
Petition for Review - immigration. Denial of motion to reopen claim for cancellation of removal based on new evidence is affirmed. We cannot say BIA did not consider new evidence or improperly distort the substance of the evidence. BIA was within its discretion in determining that the new evidence did not warrant reopening the case.

113262U.pdf    05/07/2012   Ashaunti Prowell   v.   Dr. Andrew Schock
U.S. Court of Appeals Case No: 11-3262
U.S. District Court for the District of Minnesota - Minneapolis
[UNPUBLISHED] [Per Curiam. Before Murphy, Arnold, and Shepherd, Circuit Judges]
Civil Case - civil rights. Dismissal of civil rights complaint is summarily affirmed.

113564U.pdf    05/07/2012   United States   v.   Faustino Toj-Granados
U.S. Court of Appeals Case No: 11-3564
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[UNPUBLISHED] [Per Curiam. Before Loken, Bowman, and Benton, Circuit Judges]
Criminal Case - Anders. District court did not abuse its discretion in sentencing Toj-Granados and sentence is not substantively unreasonable.

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093764P.pdf    05/08/2012   Remcey Peeples   v.   CRST Van Expedited, Inc.
U.S. Court of Appeals Case No: 09-3764
                                              and No: 09-3765
                                              and No: 10-1682
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[PUBLISHED] [Smith, Author, with Murphy and Benton, Circuit Judges]
Civil case - Employment discrimination. In an action by the EEOC alleging CRST subjected approximately 270 female employees to a hostile work environment in violation of Title VII, the district court did not err in dismissing the EEOC's claims as to 67 women because the EEOC failed to meet its statutory pre-suit obligations to investigate and conciliate their claims; district court did not abuse its discretion by judicially estopping two employees from pursuing their respective claims insofar as they may seek to subsequently intervene in the EEOC's action or otherwise seek relief individually; district court abused its discretion in judicially estopping the EEOC from suing its own name to correct any discriminatory employment practices that CRST allegedly perpetrated against three female employees; in CRST's work environment, a lead driver is not a supervisory employee and CRST is not vicariously liable for any harassment its lead drivers allegedly perpetrated against female trainees; with respect to several female employees, the district court did not err in finding that the harassment they allegedly suffered was neither sufficiently severe nor pervasive to support a hostile work-environment claim; however, the harassment suffered by one employee named Tillie Jones did meet the standard, and it was error to grant CRST summary judgment on her claims; with respect to another group of female employees, summary judgment for CRST was appropriate because of the EEOC's failure to fulfill its investigation and conciliation obligations; with respect to a larger group of 21 female employees, CRST lacked actual knowledge of harassment as to ten of them because they either failed to report harassment or did not report it timely; CRST also lacked constructive knowledge of the harassment; with respect to the remaining 11 employees, CRST took prompt and effective action once it became aware of the harassment; CRST's summary judgment on plaintiff Peeple's Title VII and Iowa Civil Rights Act claims is affirmed; attorneys' fees award against EEOC vacated. Judge Murphy, concurring in part and dissenting in part.

112421U.pdf    05/08/2012   Spencer Pierce   v.   John Baldwin
U.S. Court of Appeals Case No: 11-2421
U.S. District Court for the Southern District of Iowa - Des Moines
[UNPUBLISHED] [Per Curiam - Before Bye, Colloton and Gruender, Circuit Judges]
Prisoner case - Prisoner civil rights. Defendant's summary judgment affirmed without comment.

112839P.pdf    05/08/2012   Earl Ringo, Jr.   v.   George Lombardi
U.S. Court of Appeals Case No: 11-2839
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges]
Prisoner case - prisoner civil rights. Challenge to Missouri's lethal- injection protocol was moot as the Department of Corrections could not carry out the protocol because of changes in the availability of sodium thiopental; claim did not fall within the "capable of repetition, yet evading review" exception to mootness.

113348U.pdf    05/08/2012   Betty Drye   v.   University of AR for Medical
U.S. Court of Appeals Case No: 11-3348
U.S. District Court for the Eastern District of Arkansas - Little Rock
[UNPUBLISHED] [Per Curiam - Before Loken, Bowman and Benton]
Civil case - Employment Discrimination. Defendants' summary judgment affirmed without comment.

116083P.pdf    05/08/2012   Kent Bushnell   v.   Bank of the West
U.S. Court of Appeals Case No: 11-6083
U.S. Bankruptcy Court for the District of Nebraska - Omaha
[PUBLISHED] [Schermer, Author, with Kressel, Chief Judge, and Federman, Bankruptcy Judge]
Bankruptcy Appellate Panel. Order granting relief from the automatic stay to the bank is affirmed as the bank was the party in interest for purposes of Section 362(d) and the order was not an abuse of the bankruptcy court's discretion.

121152U.pdf    05/08/2012   Billy Tyler   v.   Joseph Caniglia
U.S. Court of Appeals Case No: 12-1152
U.S. District Court for the District of Nebraska - Lincoln
[UNPUBLISHED] [Per Curiam - Before Bye, Colloton and Gruender, Circuit Judges]
Civil case - civil rights. Preservice dismissal affirmed without comment.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/08/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/09/2012 2012-05-09 10:00:04 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.

113806U.pdf    05/09/2012   United States   v.   Michael Collins
U.S. Court of Appeals Case No: 11-3806
U.S. District Court for the Western District of Arkansas - Hot Springs
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Criminal case - Sentencing. Anders case. The district court did not err in sentencing defendant as a career offender, and the sentence imposed was not substantively unreasonable.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/09/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/10/2012 2012-05-10 10:00:05 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.

111383P.pdf    05/10/2012   Gary Close   v.   United States
U.S. Court of Appeals Case No: 11-1383
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Loken, Author, with Wollman and Melloy, Circuit Judges]
Prisoner case - habeas. For the court's opinion in Close's direct appeal, see U.S. v. Close, 518 F.3d 617 (8th Cir. 2008). While the prosecutor's closing argument improperly vouched for a government witness, defense counsel's decision not to object was not constitutionally deficient under Strickland; further, the failure to object did not prejudice Close's defense; failure to object to the instruction on possession of a weapon in furtherance of a drug crime did not constitute ineffective assistance of counsel.

111735P.pdf    05/10/2012   J & K Market Centerville   v.   United States
U.S. Court of Appeals Case No: 11-1735
U.S. District Court for the Southern District of Iowa - Des Moines
[PUBLISHED] [Shepherd, Author, with Bright and Loken, Circuit Judges]
Civil case - Supplemental Nutrition Assistance Program. Department of Agriculture's Food and Nutrition Service's denial of J&K's application to participate in the food stamp program was not arbitrary or capricious; permanent denial of participation was an appropriate sanction given J&K's owner's involvement in a prior food stamp trafficking violation.

112264P.pdf    05/10/2012   Edward McDonald   v.   City of Saint Paul
U.S. Court of Appeals Case No: 11-2264
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and Smith, Circuit Judge]
Civil case - Civil Rights. Plaintiff had no protected property interest in the position of director of the City's Department of Human Rights and Equal Economic Opportunity as nothing in the resolution concerning appointment of the position mandated defendants to strictly apply the City charter sections governing other positions, precluded the selection committee from certifying additional finalists or prohibited the mayor from considering additional finalists; plaintiff presented no evidence that he was treated differently from similarly situated candidates or that he was the victim of intentional or purposeful discrimination, and his equal protection claim failed; plaintiff failed to establish a conspiracy to deny his civil rights; status as a whistleblower does not entitle one to protection under 42 U.S.C. Sec. 1985; with respect to Title VII and the Minnesota Human Rights Act, plaintiff failed to establish a prima facie case of retaliation; Title IX claim was properly rejected; appointment of another to the position did not constitute extreme and outrageous behavior for purposes of the tort of intentional infliction of emotional distress.

112947U.pdf    05/10/2012   Joshua Israel   v.   U.S. Dept. of Labor
U.S. Court of Appeals Case No: 11-2947
Department of Labor (except OSHA)
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Petition for Review - Department of Labor. Administrative Review Board's decision rejecting Israel's claim that his employer retaliated against him for activities protected under the Surface Transportation Assistance Act is affirmed without comment.

113116P.pdf    05/10/2012   Wesley Hemphill   v.   Andrew Hale
U.S. Court of Appeals Case No: 11-3116
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Civil case - civil rights. On claim that defendant used force to coerce plaintiff into consenting to a search, the district court did not err in denying defendant's motion for summary judgment based on qualified immunity as officers do not have the right to use any degree of force to coerce a person to consent to a warrantless search of their home, and a reasonable officer would have known that use of force to obtain consent was unreasonable

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/10/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/11/2012 2012-05-11 10:00:06 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.

111277P.pdf    05/11/2012   Genesis Insurance Company   v.   City of Council Bluffs
U.S. Court of Appeals Case No: 11-1277
                                              and No: 11-1741
U.S. District Court for the Southern District of Iowa - Council Bluffs
[PUBLISHED] [Smith, Author, with Bye and Colloton, Circuit Judges]
Civil case - Insurance. In action seeking a declaratory judgment as to whether the policy Genesis issued to the City of Council Bluffs covered civil rights actions brought by persons claiming their constitutional rights were violated by what they contended were malicious prosecutions, the injuries sued upon became apparent no later than 1977, the year in which the persons bringing the civil rights suits were charged with murder; as a result, the claimed injuries occurred, for insurance purposes, before Genesis's policy was in place, and it was not liable.

112070P.pdf    05/11/2012   Kenneth Graham   v.   Hartford Life Insurance Co.
U.S. Court of Appeals Case No: 11-2070
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Bye, Author, with Loken and Melloy, Circuit Judges]
Civil case - insurance. In an action to recover under an accidental death and dismemberment policy, Arkansas's statute of limitations for contract actions applied, and the district court erred in applying the shorter limitations period contained in the policy; reversed and remanded for further proceedings.

112435U.pdf    05/11/2012   Ishmael Obama   v.   Danny Burl
U.S. Court of Appeals Case No: 11-2435
U.S. District Court for the Eastern District of Arkansas - Helena
[UNPUBLISHED] [Per Curiam - Before Colloton, Bowman and Gruender, Circuit Judges]
Prisoner case - prisoner civil rights. Claims for injunctive relief were mooted by plaintiff's transfer; plaintiff failed to state a claim for inadequate medical care; claim that plaintiff was forced to sleep on the floor without a mattress did not state a constitutional violation where plaintiff admitted he slept on the floor voluntarily because it was cooler; however, plaintiff's claims regarding constant lighting and inadequate food portions were sufficient to survive preservice dismissal, and those portions of the dismissal order are reversed.

112935U.pdf    05/11/2012   Javier Vega Guerrero   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 11-2935
Appeal from Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy, and Smith, Circuit Judges]
Petition for Review - Immigration. Court lacked jurisdiction to review determinations regarding the timeliness of petitioner's asylum application or the absence of changed or extraordinary circumstances to excuse his untimely filing; substantial evidence supports the denial of withholding of removal; BIA did not abuse its discretion by denying petitioner's claim of ineffective assistance of counsel.

113312U.pdf    05/11/2012   Michael Daugherty   v.   The Heights
U.S. Court of Appeals Case No: 11-3312
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Civil case - Civil Rights. Defendants' summary judgment on plaintiff's public accommodation claims under Title II of the Civil Rights Act affirmed without comment.

113359U.pdf    05/11/2012   United States   v.   Eric Reedus
U.S. Court of Appeals Case No: 11-3359
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Wollman, Melloy and Smith, Circuit Judges]
Criminal case - Sentencing. Anders case. Defendant waived his right to challenge the reasonableness of his sentence as part of his plea agreement, and his appeal is dismissed on the basis of his appeal waiver.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/11/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/14/2012 2012-05-14 10:00:06 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.

111999P.pdf    05/14/2012   United States   v.   Salvador Mendoza
U.S. Court of Appeals Case No: 11-1999
U.S. District Court for the Southern District of Iowa - Davenport
[PUBLISHED] [Riley, Author, with Beam and Bye, Circuit Judges]
Criminal case - criminal law and sentencing. Officers had probable cause to conduct a Fourth Amendment seizure based on defendant's erratic driving and traffic violations; having made a lawful stop, officers were justified in detaining defendant for a time reasonably necessary to conduct a limited investigation; drug dog sniff did not extend the scope or duration of the seizure and did not violate the Fourth Amendment; the district court did not err in finding that, on balance, defendant's behavior leading up to and including the warrantless search of his home was consistent with a finding that he voluntarily consented to the search; district court did not err in calculating drug quantity.

112069P.pdf    05/14/2012   United States   v.   Meggan Alexander
U.S. Court of Appeals Case No: 11-2069
U.S. District Court for the Northern District of Iowa - Ft. Dodge
[PUBLISHED] [Shepherd, Author, with Bright and Loken, Circuit Judges]
Criminal case - criminal law and sentencing. The government failed to show the banking organizations were FDIC-insured, and therefore failed to meet the jurisdictional prong for a prosecution under 18 U.S.C. Sec. 1014; as a result, defendant's three convictions for violating 18 U.S.C. Sec. 1014 must be set aside; conviction under 18 U.S.C. Sec. 1010 affirmed; amount-of-loss calculations affirmed; restitution order affirmed; remanded for resentencing as the opinion will affect defendant's base offense level.

113066P.pdf    05/14/2012   United States   v.   James Bailey
U.S. Court of Appeals Case No: 11-3066
U.S. District Court for the Western District of Arkansas - El Dorado
[PUBLISHED] [Per Curiam - Before Loken, Bye and Melloy, Circuit Judges]
Criminal case - Criminal law. The government's actions at sentencing did not violate the plea agreement as the agreement, in which the government agreed not to file an information under 21 U.S.C. Sec. 851, did not preclude the government supporting the PSR's recommendation for an enhancement under Guidelines Sec. 4B1.1(a); no error in sentencing defendant as a career offender.

113069U.pdf    05/14/2012   Hilda L. Solis   v.   Hill Country Farms, Inc.
U.S. Court of Appeals Case No: 11-3069
U.S. District Court for the Southern District of Iowa - Davenport
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Civil case - Fair Labor Standards Act. Secretary's summary judgment affirmed without comment.

113268U.pdf    05/14/2012   United States   v.   Ronald Hernandez-Zetino
U.S. Court of Appeals Case No: 11-3268
U.S. District Court for the Western District of Arkansas - Ft. Smith
[UNPUBLISHED] [Per Curiam - Before Murphy, Arnold and Shepherd, Circuit Judges]
Criminal case - Sentencing. Anders case. The district court committed no procedural error in determining defendant's sentence and the sentence is substantively reasonable.

113495P.pdf    05/14/2012   Bobby Hankins   v.   Standard Insurance Company
U.S. Court of Appeals Case No: 11-3495
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Melloy, Author, with Riley, Chief Judge and Murphy, Circuit Judge]
Civil case - ERISA. Denial of benefits was supported by substantial evidence.

113619P.pdf    05/14/2012   United States   v.   Kevin Martin
U.S. Court of Appeals Case No: 11-3619
U.S. District Court for the Western District of Missouri - Joplin
[PUBLISHED] [Melloy, Author, with Arnold and Gruender, Circuit Judges]
Criminal case - Sentencing. Defendant's sentence, the statutory maximum for a SORNA offense, did not violate the Eighth Amendment's prohibition on cruel and unusual punishment.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/14/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/15/2012 2012-05-15 10:00:04 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.

111822P.pdf    05/15/2012   Amber Shelton   v.   AR Dept. of Human Services
U.S. Court of Appeals Case No: 11-1822
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED][Melloy, Author, with Wollman and Loken, Circuit Judges]
Civil case - Civil Rights. In action alleging defendants failed to meet their duty of care to plaintiff's decedent who committed suicide while voluntarily hospitalized at the Arkansas State Hospital, the defendants did not owe a constitutional-level duty of duty of care to the deceased patient; a claim based on an allegedly improper medical treatment decision cannot be brought pursuant to either the Americans with Disabilities Act or the Rehabilitation Act.

113654U.pdf    05/15/2012   United States   v.   Rashod James
U.S. Court of Appeals Case No: 11-3654
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Melloy, Arnold and Gruender, Circuit Judges]
Criminal case - Sentencing. The district court did not err in imposing an enhancement under Guidelines Sec. 2K2.1(b)(6) for possession of the firearm in connection with another felony offense (resisting arrest); sentence was not substantively unreasonable.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/15/2012 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=05/16/2012 2012-05-16 10:00:04 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.

093031U.pdf    05/16/2012   United States   v.   Jonathon Curry
U.S. Court of Appeals Case No: 09-3031
U.S. District Court for the Western District of Arkansas - Ft. Smith
[UNPUBLISHED] [Per curiam - Before Riley, Chief Judge, and Colloton and Benton, Circuit Judges]
Criminal case - Criminal law. On remand from the Supreme Court for further consideration in light of Reynolds v. United States, 132 S. Ct. 975 (2012). For the court's prior opinion in the matter, see United States v. Curry, 627 F.3d 312 (8th Cir. 2010). Remanded to the district court for consideration of Curry's non-delegation challenge to SORNA; Curry's other challenges to the indictment are rejected for the reasons stated in the court's prior opinion.

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