SUMMER 2007 NEWSLETTER - MUNICIPAL LAW UPDATE

By Joshua Skinner

United States Supreme Court

• Woodford v. Ngo, __ U.S. __; 126 S. Ct. 2378 (June 22, 2006)

A prisoner subject to the Prison Litigation Reform Act (“PLRA”) must exhaust his administrative remedies in accordance with the grievance deadlines imposed by the prison.

Ngo was a prisoner who was convicted of murder and serving a life sentence in the California prison system. As a result of unspecified misconduct, he was prohibited from participating in various special programs. Six months after the restriction was imposed, Ngo challenged the restriction by filing a grievance. Ngo’s grievance was rejected as untimely because it was not filed within the fifteen (15) day deadline. The district court dismissed the case, but the Ninth Circuit reversed, holding that the grievance procedures were no longer available to Ngo and therefore the PLRA no longer required him to comply with them.

The Supreme Court, reversing the Ninth Circuit, explained that the exhaustion requirement in the PLRA should be interpreted in accordance with administrative law principles. In other words, failure of a prisoner to comply with the grievance deadlines in the prison constitutes failure to exhaust available administrative remedies.

Further Note: In Jones v. Bock, __ U.S. __; 127 S. Ct. 910 (January 22, 2007), the Supreme Court held that exhaustion of remedies under the PLRA is an affirmative defense that must be pled and proved by the defendant. As a result, a court should not dismiss a case for failure to exhaust under the PLRA unless the defendant affirmatively proves that the prisoner did not exhaust his available administrative remedies.

• Beard v. Banks, __ U.S. __; 126 S. Ct. 2572 (June 28, 2006)

A prison does not violate the First Amendment rights of inmates when it restricts their access to written materials in order to motivate better behavior and where better behavior will result in a reduction and eventual elimination of the restrictions.

Prisoners with a history of misconduct had certain restrictions on their access to various things, including written materials. The most severe restriction on access to reading materials was a complete ban on access to newspapers, magazines, and personal photographs. Such inmates were permitted, however, to have legal and personal correspondence, religious and legal materials, two library books and writing paper. The prison justified its regulation on various grounds, though the Supreme Court only considered one: the need to motivate better behavior on the part of particularly difficult prisoners. The district court granted summary judgment to the prison, but the Third Circuit reversed, holding that the restrictions violated the plaintiff’s First Amendment rights.

The Supreme Court reversed the decision of the Third Circuit and held that providing increased incentives for better prison behavior is an adequate basis for the restrictive regulations. The Court noted that prison officials should be given deference in their determination of the appropriateness of specific regulations.

Further Note: In Morris v. Powell, 449 F.3d 682 (5th Cir. May 15, 2006), cert. denied, 2006 U.S. LEXIS 8734 (November 13, 2006), the Fifth Circuit reversed the grant of summary judgment to prison officials on a claim that they retaliated against Morris for exercising his First Amendment right to use the prison grievance system. The Fifth Circuit agreed with the district court that a prisoner must allege more than a de minimis retaliatory act, but disagreed with the court’s application of that standard to the facts alleged. The Fifth Circuit held that the transfer of a prisoner to a more dangerous prison as a penalty for the exercise of constitutional rights has the potential to deter the inmate from the future exercise of those rights and, therefore, meets the de minimis threshold.

• Georgia v. Randolph, 547 U.S. 103 (March 22, 2006)

A search and seizure of a home premised on the consent of a co-tenant is invalid as to a physically present occupant who expressly refuses consent and evidence discovered as a result of that search and seizure cannot be used at trial against the occupant who refused consent.

A police officer was called to the home of a married couple involved in a domestic dispute. The wife told the officer, in the presence of the husband, that there was evidence in the house of illegal drug use by her husband. The husband refused to give consent to a search of the home, but the wife did give consent to such a search. The police searched the home and seized the evidence. The husband was indicted under state law for possession of an illegal substance. He moved to suppress the evidence. The trial court, ruling that the wife had common authority to consent to the search, denied the motion. The court of appeals and Georgia Supreme Court reversed the trial court and held that the wife’s consent could not override the refusal of her husband when he was physically present.

• Wallace v. Kato, __ U.S. __; 127 S. Ct. 1091 (February 21, 2007)

The statute of limitations on a claim for false imprisonment under 42 U.S.C. § 1983 commences to run once the plaintiff is held pursuant to legal process. As a result, the statute of limitations generally begins to run when a plaintiff appears before the examining magistrate and is bound over for trial.

Wallace was taken to the police station for questioning regarding a murder. After an all night interrogation, Wallace confessed to the murder. Wallace was then taken to the examining magistrate and bound over for trial. At his criminal trial, Wallace unsuccessfully moved to suppress his confession and was convicted. On appeal, the Appellate Court of Illinois held that the confession was not admissible. On remand, the prosecutors dropped the charges against Wallace. Wallace filed suit against the officers and the City more than two years after his arrest and examination by the magistrate, but within two years of when the charges against him were dropped. The district court granted summary judgment and the Seventh Circuit affirmed, holding that his cause of action accrued at the time of his arrest, and not when his conviction was later set aside.

The Supreme Court affirmed the judgment of the Seventh Circuit but on a slightly different basis. The Supreme Court held that the determination of the statute of limitations for claims brought under 42 U.S.C. § 1983 is a question of federal law and is determined by general common-law tort principles. Under the common law, a claim for unlawful arrest is analogous to the torts of false arrest and false imprisonment. Those torts are characterized by detention without legal process. Since the police did not have a warrant for the arrest of Wallace, he was detained without legal process. When he was turned over to the magistrate, however, Wallace was detained pursuant to legal process. From that point, unlawful detention forms part of the damages for the tort of malicious prosecution rather than false arrest or false imprisonment. A claim for malicious prosecution would, most likely, have different defendants. As a result, the statute of limitations on Wallace’s claim relating to his arrest began to run from the point he appeared before the examining magistrate and was bound over for trial.

Fifth Circuit

• Rios v. City of Del Rio, 444 F.3d 417 (5th Cir. March 27, 2006), cert. denied, 2006 U.S. LEXIS 5897 (October 2, 2006)

Even if it is possible to hold public officials liable under a “state-created danger” theory of liability, the plaintiff must prove that the public official was aware of an immediate danger facing a known victim.

Rios was struck by a City police department vehicle being driven by Avalos, an escaping prisoner. A police officer had improperly left Avalos, a individual known to the police as particularly skilled in escapes, in the backseat of the patrol vehicle with the keys in the ignition and the engine running while the officer visited a person in the neighborhood. Avalos escaped and commandeered the vehicle. In the ensuing chase, Rios was struck by the vehicle and severely injured. Rios brought suit alleging liability on the basis of a “state-created danger.” The district court denied the defendants’ motion to dismiss based on qualified immunity.

Noting that neither the Supreme Court nor Fifth Circuit has ever adopted the “state-created danger” theory of liability, the Fifth Circuit held that the facts alleged by Rios could not establish such a claim because the public officials must have been aware of an immediate danger facing a known victim. Because there was no reason to believe that the officers were aware that Rios was any more at risk that the general public, there was no awareness of a known victim.

• Fantasy Ranch et al. v. City of Arlington et al., 459 F.3d 546 (5th Cir. August 2, 2006)

A municipality can, under the First Amendment, regulate sexually oriented cabarets by imposing a buffer zone between nude employees and patrons, setting minimum stage height requirements and prohibiting direct tipping.

Various topless bars brought suit against the City challenging its ordinance because it imposed a buffer zone between nude employees and patrons, set minimum stage height requirements, and prohibited direct tipping. The district court granted summary judgment to the City and the Fifth Circuit affirmed, holding that the regulations were permissible because they helped to prevent violations of the City’s “no-touch” ordinance, which prohibits touching between nude employees and patrons. The Fifth Circuit pointed to the evidence provided by the City of the negative secondary effects of this type of sexually oriented business as well as evidence that employees and patrons were regularly violating the City’s “no-touch” ordinance.

Further Note: The Fifth Circuit has had a number of other important recent decisions relating to sexually oriented businesses and pornography. These include (1) United States v. Coil, 442 F.3d 912 (5th Cir. March 14, 2006), cert. denied, 2007 U.S. LEXIS 2174 (February 20, 2007) (holding that laws regulating the transportation of obscene materials are not unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003)); (2) Illusions v. Steen, __ F.3d __; 2007 U.S. App. LEXIS 5942 (5th Cir. March 15, 2007) (holding that the regulation of sexually oriented businesses must be justified by more than citations to cases in post-enactment briefs); and (3) H and A Land Corp. v. City of Kennedale, __ F.3d __; 2007 U.S. App. LEXIS 3941 (5th Cir. February 22, 2007) (the City provided sufficient evidence to uphold its regulation of sexually oriented bookstores that had no on-site activities).

• Martinez-Aguero v. Gonzalez, 459 F.3d 618 (5th Cir. August 4, 2006), cert. denied, 127 S.Ct. 837 (December 11, 2006)

Even if attempting to enter the country illegally, an alien physically present in the geographic confines of the United States has a constitutional right to be free from false imprisonment and the use of excessive force by law enforcement personnel.

• Staley v. Harris County, 461 F.3d 504 (5th Cir. August 15, 2006) and Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. December 15, 2006)

In Staley, the plaintiff brought suit against Harris County seeking, under the Establishment Clause, to require the County to remove a monument from the Harris County Civil Courthouse because it contains an open Bible. The district court held for the plaintiff and the Fifth Circuit affirmed, both holding that while the monument may have been constitutional when it was originally installed, it was no longer constitutional under the Establishment Clause in light of the religious motivations involved in a recent refurbishing and restoration of the monument. On November 17, 2006, the Fifth Circuit granted rehearing en banc.

In Doe, the plaintiffs brought suit against the school board seeking, under the Establishment Clause, to enjoin its practice of saying a prayer at the commencement of school board meetings. The district court granted a permanent injunction against the school board from saying prayers at the beginning of school board meetings. The school board appealed and, in a divided opinion, the Fifth Circuit panel narrowed the injunction, holding that the specified sectarian prayers may not be said at school board meetings. On February 9, 2007, the Fifth Circuit granted rehearing en banc.

• Knowles v. City of Waco, 462 F.3d 430 (5th Cir. August 24, 2006)

In a suit brought by individuals protesting near an abortion clinic, the Fifth Circuit held that City ordinances regulating demonstrations near schools and parades were unconstitutional because they were not narrowly tailored to target and eliminate no more than the exact source of the “evil” they were designed to remedy. The Fifth Circuit held that the ordinances, which permitted demonstrations when the individuals were a “wingspan” apart, arbitrarily penalized a small group of individuals demonstrating close together while ignoring the effect of a large group where each individual was a “wingspan” apart. Since the City’s justification for the ordinance was the distraction to drivers, the Court held that the ordinance was not narrowly tailored.

• Gobert v. Caldwell, 463 F.3d 339 (5th Cir. August 29, 2006); Easter v. Powell, 467 F.3d 459 (5th Cir. October 5, 2006) and Longoria v. Texas, 473 F.3d 586 (5th Cir. December 21, 2006)

In Gobert, the Fifth Circuit reversed the denial of summary judgment to Doctor Caldwell based on his allegedly inadequate treatment of the plaintiff during his incarceration. The Fifth Circuit held that even if the evidence was sufficient to raise a fact question as to whether Dr. Caldwell was negligent, the constant medical treatment received by Gobert made it clear that Dr. Caldwell was not deliberately indifferent.

In Easter, the Fifth Circuit affirmed the denial of summary judgment to Nurse Powell based on her allegedly inadequate treatment of the plaintiff during his incarceration. The Fifth Circuit noted that Easter raised a fact question as to whether Powell was deliberately indifferent by putting forth evidence that she knew he had a heart condition, that he was experiencing severe chest pain and that he did not have his prescribed medication. Despite this knowledge, Powell refused to provide Easter with his medication and had him returned to his cell, where his condition worsened.

In Longoria, the Fifth Circuit reversed in part the denial of summary judgment to various prison officials based on allegations that they were deliberately indifferent to Longoria’s safety. Longoria was an informant for the prison officials and claimed that because they were aware that he was an informant and allowed him to remain in a cell with individuals who would harm him if they learned that he was an informant, the prison officials were deliberately indifferent. The Fifth Circuit rejected this argument, explaining that simply knowing that Longoria would be in danger if his cellmates learned of his activities was insufficient to establish that they were deliberately indifferent by letting him remain in the same cell.

• Oscar Renda Contracting, Inc. v. City of Lubbock, 463 F.3d 378 (5th Cir. August 31, 2006)

A local government violates the First Amendment if it rejects a bid by a contractor in retaliation for the contractor’s exercise of its free speech rights, even when the contractor had no preexisting relationship with the local government.

Texas Supreme Court

• City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770 (Tex. March 3, 2006)

A municipality cannot be estopped from enforcing its zoning ordinance against a property owner, even when City officials mistakenly approved a site plan that did not conform to the ordinance.

Super Wash purchased a piece of property that the City had previously zoned to require a continuous six-foot wooden fence between the commercial establishment and the nearby neighborhood. Because the City’s zoning map, however, did not list the fence requirement, Super Wash’s site plan was initially approved by the City. When residents of the neighborhood brought the issue to the attention of the City, it informed Super Wash that it would need to comply with the ordinance. Super Wash brought suit against the City to estop the City from enforcing its ordinance. The trial court granted summary judgment to the City, but the Fort Worth Court of Appeals reversed. The Texas Supreme Court reversed the decision of the Court of Appeals and held that the City could not be estopped from enforcing its fence requirement against Super Wash.

• City of Grapevine v. Sipes, 195 S.W.3d 689 (Tex. February 15, 2006)

Under the Texas Tort Claims Act, a governmental unit retains immunity from claims based on the absence of a traffic signal unless the absence is not corrected by the governmental unity within a reasonable time after notice. “Absence,” however, requires the prior presence of a traffic signal. As a result, the City retained immunity, even though it had decided to install a traffic signal but had not done so within a reasonable time.

• Texas v. Shumake, 199 S.W.3d 279 (Tex. June 23, 2006)

While the recreational use statute provides for a heightened burden of proof in premises defect claims against governmental entities, it does not reinstate governmental immunity for premises defect cases. This decision overturned decisions from the Fort Worth, Houston [14th Dist], Amarillo and Waco courts of appeals which held that the recreational use statute essentially reinstates government immunity for premises defect cases.

• Ben Bolt-Palito Blanco Consolidated Ind. Sch. Dist. v. Tex. Political Subidivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320 (Tex. December 29, 2006)

Self-insurance funds created pursuant to inter-local agreements are governmental entities and therefore entitled to governmental immunity to the extent it has not been waived by statute. Claims relating to insurance coverage disputes, however, fall within the statutory waiver of governmental immunity for contract disputes.
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