Archives for category: clothing

UNITED STATES OF AMERICA, Plaintiff,
v.
VU NGUYEN, Defendant.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.

This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.

There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.

Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

This case involves a “horrific” crime, the petitioner here convicted twice for the crime after the first conviction overturned for reliance on bite marks that defense counsel ineffectively failed to object to, the second conviction is reviewed here and is denied habeas relief.

CAROL MARIE EGE, Petitioner,
v.
MILLICENT WARREN, Respondent.

CASE NO. 5:11-CV-10573

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

Decided November 30, 2012 in opinion by US Magistrate Judge Paul J. Komives:

Full details of the murder are summarized from the Sixth Circuit, the relevant portion being the following quote:

Defendant [petitioner in this case] denied involvement in the murder, and said that “if she … ha[d] done it she would have dressed up like a Ninja and waited” at the victim’s home.

After review of the records, this Court concludes:

As the Michigan Court of Appeals observed on direct appeal following petitioner’s first conviction, “[t]his is a troubling case. The crime is horrific. The initial investigation was deficient. Defendant was not charged until nine years after the murder. There are others who are logical suspects. No one saw defendant at the scene the evening of the murder. No physical evidence links defendant to the crime[.]” People v. Ege, No. 173448, 1996 Mich. App. LEXIS 1805, 1996 WL 33359075, at *1 n. 1 (Mich. Ct. App. Sept., 17, 1996). Nevertheless, the standard for relief under § 2254(d) “is difficult to meet, [and] that is because it was meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011). As the Court explained, “[s]ection 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice system,’ not a substitute for ordinary error correction through appeal.” Id. (quoting Jackson, 443 U.S. at 332 n.5 (Stevens, J., concurring in the judgment)).

ANTHONY MONTEZ BROWN, Plaintiff
v.
PATROLMAN ANTHONY CALABRO, et al., Defendants

CIVIL NO. 3:12-CV-01065

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

This case is decided July 12, 2012 by recommendation of Magistrate Judge J. Andrew Smyser.
That recommendation was then adopted by order of District Judge A. Richard Caputo.
Then on appeal to the Third Circuit, per curiam opinion before Circuit Judges Scirica, Hardiman and Greenaway.

All three of these opinion make reference to the “ninja”, an allegation that this words as name-calling was defamatory.

From Judge Smyser’s version of the facts:

The plaintiff commenced this action by filing a complaint and an application to proceed in forma pauperis. The complaint named Luzerne County as the defendant. We granted the plaintiff’s application for leave to proceed in forma pauperis. After reviewing the complaint in accordance with 28 U.S.C. § 1915(e)(2), we concluded that it failed to state a claim upon which relief may be granted. We granted the plaintiff leave to file an amended complaint.

The plaintiff filed an amended complaint. The defendants are: 1) Patrolman Anthony Calabro; 2) Patrolman Jessica Bartalotta; 3) Chief Paul Porfirio; and 4) Judge David W. Lupas. The plaintiff alleges the following facts in his amended complaint.

The plaintiff told defendant Calabro that he wanted to file charges against Mark Davenport for making terroristic threats and shooting his house, his car, and the West Pittston pool with a BB gun. Defendant Bartalotta asked the plaintiff about his firearms. The plaintiff told her that his firearms had nothing to do with filing charges against Davenport, but he offered to show her his license to carry the firearms. She told him that he could lose his guns one of these days. Defendants Calabro and Bartalotta refused to file charges against Davenport. The plaintiff then called defendant Porfirio to complain about defendants Calabro and Bartalotta. Defendant Porfirio told the plaintiff that there was nothing that he could do and that if the plaintiff sued Davenport bad things would happen.

Months later the plaintiff reported that Charles Hughes Jr. had committed a crime, but the plaintiff was falsely accused of the crime that he had reported. Defendant Calabro released Hughes, who was under the influence of drugs and alcohol and who had a gun. Defendant Bartalotta told the plaintiff that she was not going to process him because she did not like him. Defendant Porfirio then started to process the plaintiff. He threatened the plaintiff and told him to put his hat and face mask on for his mug shot. He also told an FBI agent that the plaintiff was a ninja, thereby defaming his character. Although the plaintiff wished to remain silent and to have a lawyer, defendant Calabro completed a police report and made the plaintiff sign it.

Defendant Lupas dismissed the plaintiff’s Rule 600 motion. During a court proceeding, he allowed everyone to speak except the plaintiff and he refused to let the plaintiff see a doctor.

The plaintiff is seeking compensatory damages, dismissal of his criminal charges, the return of his firearms, and restoration of his gun permit.

And in discussion:

Although the plaintiff seeks return of his firearms, he does not allege that the named defendants seized his firearms. Nor does he allege anything regarding the circumstances of any seizure of his firearms.

The plaintiff is seeking to hold defendant Porfirio liable for making him put his hat and facemask on for his mug shots. But he has not alleged how that violated his rights.

The plaintiff claims that defendant Porfirio’s statement to an FBI agent that the plaintiff is a ninja defamed his character. It is doubtful that such a statement could be seen as defamatory. But, even assuming for the sake of argument that the statement was defamatory, it was not a violation of the plaintiff’s constitutional rights.

The plaintiff claims that defendant Calabro prepared a police report and made him sign it even though he had wished to remain silent and to have a lawyer. The plaintiff has not alleged that any statements in the police report were used against him during a trial. Thus, he fails to state a claim upon which relief may be granted. See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)(holding that a plaintiff may not base a § 1983 claim on the mere fact that police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial).

This Magistrate Judge recommendation for dismissal was adopted by District Judge A. Richard Caputo who wrote in opinion October 3, 2012:

Months later, Mr. Brown reported a crime that Charles Hughes, Jr. allegedly committed, but Mr. Brown was falsely accused of the crime. Defendant Calabro then discriminated against Plaintiff and released Mr. Hughes while he was under the influence of alcohol and possessed a gun. Plaintiff was then told by Defendant Bartalotta that he would not be processed because she did not like him. Defendant Porfirio then started to process Mr. Brown, but he was required to wear a hat and face mask for his mug shot. Defendant Porfirio also told an FBI agent that Mr. Brown was a ninja. Additionally, Mr. Brown wished to exercise his right to remain silent, but Defendant Calabro completed a police report and required Plaintiff to sign it.

and

Magistrate Judge Smyser also concludes that Mr. Brown’s claim seeking return of his firearm should be dismissed because he fails to allege that the named Defendants seized his firearms “nor does he allege anything regarding the circumstances of any seizure of his firearms.” (Id. at 8.) Additionally, the Magistrate Judge recommends dismissal of the claims against Defendant Porfirio because Plaintiff does not explain how being required to wear a hat and facemask during a mug shot violated his constitutional rights. Additionally, the Magistrate Judge concludes that Defendant’s Porfirio’s alleged statement that Plaintiff was a ninja did not amount to a constitutional violation. (Id.)

On subsequent appeal to the Third Circuit, the unanimous three judge panel writes:

Because the appeal presents no substantial question, we will summarily affirm the District Court’s order.

and

In the complaint, as amended, he claimed that the defendants – three Luzerne County police officers and one Court of Common Pleas judge – committed various forms of alleged misconduct, including: failing to arrest his neighbor for shooting a BB gun at Brown’s house; failing to arrest a driver for driving while intoxicated; defaming Brown by referring to him as a “ninja“; filing a police statement on Brown’s behalf under false pretenses; and prosecuting Brown for a crime committed by someone else.

and specific to the defamation claim:

[D]efamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 701-12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987) (“Absent the alteration or extinguishment of a more tangible interest, injury to reputation is actionable only under state defamation law.”) (internal citation omitted). Here, Brown alleged only that Defendant Porfiro referred to him as a ninja. Brown did not allege that he suffered the extinguishment of a right or status guaranteed by state law or the Constitution, and has not stated a civil rights action for defamation.

This is a petition for writ of habeas corpus for a convicted attempted murder in California. Petitioner was sentenced “to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years”. Petition for habeas is denied. This crime was a gang-related shooting. One gang member, “Hankie”, is described wearing a hooded sweatshirt and bandana: “ninja style”.

ninja style hoodie bandana

WILLIAM T. TUCKER, Petitioner,
v.
MATTHEW CATE, Secretary, Respondents.

Civil No. 10-CV-2272-BGS

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Decided June 12, 2012 by U.S. Magistrate Judge Bernard G. Skomal:

Quotes the facts from the California Court of Appeal, Fourth District, Division One:

At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O’Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade. Although Wright did not claim membership in any street gang, his brother had been a member of the O’Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was “Finny Boy.”

and

“Hankie”—identified at trial as Scott by Scott’s girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, “Ninja style” with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making “trembling” noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.

This decision is on defendant’s motion to dismiss for summary judgment under Rule 12(b)(6). The motion is denied. The facts refer to a ninja-like mask worn by an FBI drug task force executing a search warrant.

GARY A. ADAMS, DENISE ADAMS, SHAQUEL ADAMS RILEY, TAILON ADAMS, GARY A. ADAMS, on behalf of BRYA ADAMS, a minor, and SHAQUEL ADAMS RILEY on behalf of her minor children, SAVON RILEY, SHANE ADAMS, SURRON ADAMS, STEFON ADAMS, TERREL JACKSON and SERENITY WEST, Plaintiffs,
v.
KAREN SPRINGMEYER, JOHN DOE 1-11, Defendants.

Civil Action No. 11-790

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Decided May 22, 2012 by U.S. District Judge Nora Barry Fischer.

The Statement of Facts (citations to the record removed):

A drug task force supervised by Defendant Springmeyer forcibly entered Plaintiffs’ home to execute an arrest warrant for Sondra Hunter, a suspect who was entirely unrelated to Plaintiffs. Plaintiffs claim that Defendants knew or had reason to know that Hunter did not reside at the home, as she had moved out of the house several months before the Plaintiffs leased the same residence on June 5, 2010. Living in the home at the time of the incident were Gary A. Adams, his wife Denise Adams, and their minor daughter, Bryna Adams. Tailon Adams, Shaquel Adams Riley, and Ms. Riley’s minor children, Savon Riley, Shane Adams, Surron Adams, Stefon Adams, Terrel Jackson, and Serenity West, also resided in the home at that time. When the incident occurred, Plaintiffs ranged in ages from three to fifty-eight. [Footnote#6: According to the caption of the Amended Complaint, seven of the thirteen plaintiffs are minors.] The Amended Complaint also states that Plaintiffs are “law abiding citizens of the United States, who have no record of criminal activity.”

At approximately 5:30 a.m. on March 3, 2011, Plaintiff Gary Adams was awakened by screams from the first floor of his home. When he descended the stairs from the second floor to the first floor, he observed a battering ram “violently” knock down the front door, and Defendants “stormed into the house pointing assault rifles at [him] and plaintiff Denise Adams and Shane Adams[,] who were on the first floor” at the time. Defendants then aimed red laser targeting beams at Plaintiff Gary Adams’s head, which “plac[ed] [him] in immediate fear that he was about to be shot in the head.” Plaintiffs did not know that Defendants were law enforcement officers and instead believed that Defendants were “criminals breaking into their home in a ‘home invasion.'”

Plaintiffs claim that approximately eleven individuals, presumably John Does 1-11, entered the home through both the front and back doors. Defendants were “dressed in tactical ninja[-]like uniforms” [Footnote#8: At argument, Counsel for Plaintiffs further described these uniforms as having hoods that obscured the identities of the individuals participating in the raid.] and shouted profanities at Plaintiffs, including “get the fuck down on the ground” and “shut the fuck up.” While Defendants pointed assault rifles at Plaintiffs, Defendants gathered Plaintiffs on the first floor of the house but refused to answer any questions regarding why they had broken into their home. Defendants then escorted Plaintiffs outside to the sidewalk even though Plaintiffs were dressed only in their bedtime clothing or underwear. [Foonote#9: Only Plaintiff Shaquel Adams Riley, who was in her “her twenties . . . [or] [m]aybe early thirties” at the time of the home invasion, was forced to stand outside in her underwear.] It was “freezing cold” outside at the time of this incident. In the course of the home invasion, Defendants also searched all of the rooms in Plaintiffs’ home.

“At some point [during the raid],” Defendant Springmeyer identified herself as the supervising agent and explained that Defendants had entered Plaintiffs’ home to execute an arrest warrant on Hunter. Plaintiffs state that “[a]t all times relevant hereto, [D]efendant Springmeyer participated in[,] directed, approved, and/or with knowledge of its unconstitutionality acquiesced in the conduct and actions, of other law enforcement officials, including ones acting as federal agents and/or ones acting under color of state law.”

Plaintiff Gary Adams told Springmeyer that they were not associated with Hunter and that she lived in their home before they rented it. Furthermore, Plaintiffs claim that “[D]efendants knew or had reason to believe that [Plaintiffs] were the actual residents at the address appearing on any arrest warrant and likewise knew or had reason to believe that [P]laintiffs had no association whatsoever with the alleged suspect [Hunter].” Plaintiffs state that they “openly occupied and resided” in their home, which “was easily verifiable by anyone interested in determining who resided in such property.”

As a consequence of this incident, Plaintiffs plan to vacate their home, as “their continued presence therein serves as a constant reminder of the events” that occurred. [Footnote#10: As of the time of the hearing on Defendant Springmeyer’s Motion to Dismiss, which occurred on March 26, 2012, Plaintiffs had not yet vacated their home. Counsel for Plaintiffs stated that one Plaintiff “may have left and relocated for a period of time” and may or may not have returned to the residence.

In deciding that adequate facts had been alleged to state a claim the opinion again refers to:

“tactical ninja-like uniforms” that obscured their identities. Plaintiffs only learned of Springmeyer’s identity because she introduced herself and stated that she supervised the raid. Given the nature and circumstances of this incident, it would be difficult for Plaintiffs to plead the facts in their Amended Complaint with any more specificity. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (stating, “The Third Circuit has held that a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible”) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)).

and

it is evident from Plaintiffs’ Amended Complaint that Defendant Springmeyer, along with the eleven John Doe Defendants, was responsible for the excessive force that was allegedly used against Plaintiffs. Again, based on the nature and circumstances of the home invasion and the “tactical ninja[-]like uniforms” worn by Defendants during the raid that obscured their identities, it would be unreasonable to require Plaintiffs to plead these facts with further specificity at this time.

Affiliate web sales subjects defendant to personal jurisdiction and venue in retailers’ state.

MuscleDriver USA, LLC, Plaintiff,
vs.
Robert Chandler Smith and Web Ninjas, LLC, Defendants.

C/A No. 0:11-1777-MBS-PJG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, ROCK HILL DIVISION

2012 U.S. Dist. LEXIS 69446

May 17, 2012, Decided

Opinion by Chief United States District Judge Margaret B. Seymour:

On July 22, 2011, Plaintiff MuscleDriver USA, LLC, filed an action against Defendants Robert Chandler Smith (“Smith”) and Web Ninjas, LLC (“Web Ninjas”). On September 19, 2011, default was entered against Web Ninjas. Because Smith is represented pro se, this action was referred to United States Magistrate Judge Paige J. Gossett for pretrial handling pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), D.S.C.

On October 11, 2011, Smith filed a motion to dismiss for lack of personal jurisdiction and for improper venue, or, in the alternative, to transfer the action to the Western District of Texas. On April 17, 2012, the Magistrate Judge issued a Report and Recommendation recommending that Smith’s motion be denied. … The court adopts the Report and Recommendation and incorporates it herein by reference.

According to that April 17 report by Magistrate Judge Paige J. Gossett, this case is about:

The Plaintiff, MuscleDriver USA, LLC (“MuscleDriver”) filed this action against Defendant Robert Chandler Smith (“Smith”), who is self-represented, and Defendant Web Ninjas, LLC (“Web Ninjas”), alleging false designation of origin and unfair competition in violation of the Lanham Act, § 43(a), 15 U.S.C. § 1125(a), as well as state law claims for unfair trade practices under S.C. Code Ann. §§ 39-5-10, et seq., common law unfair competition, and injunction.

and

This case arises out of an internet business relationship gone bad. At some point prior to 2009, Smith, who attests that he has never been to South Carolina, created and began operating a website at the domain www.buyweightliftingshoes.com. (Smith Decl. ¶¶ 3, 20, ECF No. 14-2 at 1, 2.) Smith states that on the website, “I drafted and posted reviews of various weightlifting shoes. The site also contained ‘affiliate’ links to the sellers of the reviewed shoes through the sellers’ affiliate programs.” (Id. at ¶ 21, ECF No. 14-2 at 2.) Under affiliate programs, a party seeking to become an affiliate generally signs up with a retailer online, is given a tracking code, and collects a commission from the retailer on “click-through” sales that flow from the affiliate site. (Id. at ¶ 22, ECF No. 14-2 at 2.) In November 2009, Smith contacted MuscleDriver by e-mail, and the parties exchanged information about the MuscleDriver affiliate program. (ECF No. 18-1 at 8, 9.) Thereafter, Smith states that “I entered into an affiliate agreement with plaintiff . . . by signing up online then by agreeing to [MuscleDriver]’s Affiliate Terms and Conditions by clicking a check-box at the bottom of the page.” (Smith Decl. ¶ 23, ECF No. 14-2 at 3.) Although MuscleDriver’s location and address is identified on its website that Smith visited to establish the affiliate agreement, Smith states that he “only learned that [MuscleDriver] was in South Carolina after receiving his first commission check,” which was mailed from the MuscleDriver headquarters. (Id. at ¶ 25, ECF No. 14-2 at 3.) He had periodic communications with MuscleDriver and received monthly commission checks. (Id. at ¶ 11, ECF No. 14-2 at 2.) In 2010, Smith initiated a second, separate wholesale agreement with MuscleDriver in which he received commissions for advertising and selling MuscleDriver products from a different website, www.musclesandcurves.com. In March 2011, a dispute arose between the parties over a product review posted on http://www.buyweightliftingshoes.com, and MuscleDriver terminated its relationship with Smith. (Id. at ¶¶ 28-30, ECF No. 14-2 at 3.) In response to the termination and communications about the dispute, Smith removed some content from http://www.buyweightliftingshoes.com, but continued to post other content related to MuscleDriver and its products on the site, as well as the disputed review. (Id. at ¶ 32, ECF No. 14-2 at 4.) He also then formed Web Ninjas, LLC on March 16, 2011. (Id. at ¶ 33, ECF No. 14-2 at 4.) Five months later, on August 15, 2011, Smith took http://www.buyweightliftingshoes.com offline. (Id. at ¶ 34, ECF No. 14-2 at 4.) During the eighteen-month relationship between the parties, Smith’s websites generated more than $100,000 in sales of MuscleDriver’s products, all for products that shipped from MuscleDriver’s facility in South Carolina. Some of the sales through Smith’s websites were to customers in South Carolina. (Hess Decl. ¶¶ 5, 7-8, ECF No. 18-1 at 4; Invoices, ECF No. 18-1 at 15-26.) MuscleDriver majority owner and president Brad Hess further attests that all of its witnesses and documents related to this case are in South Carolina. (Hess Decl. ¶¶ 14-16, ECF No. 18-1 at 5-6.)

A schizophrenic prisoner was sent to disciplinary segregation and claims violation of due process. Court disagrees. Ninja is in reference to the style of shoes provided to prisoners in segregation – “ninja-style soft shoes”

DEJUAN HAYWOOD HAGGINS, Plaintiff,
v.
MN COMMISSIONER OF CORRECTIONS, JOHN KING, MICHELLE SMITH, GREG LINDELL, JESSICA SYMMES, MARY MCCOMBS, PETER PUFFER, TERRY JORGESON, KENT GRANDLIENARD, & TOM SHOLES, Defendants.

Civil No. 10-1002 (DWF/LIB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

2012 U.S. Dist. LEXIS 39029

Decided February 14, 2012

Opinion by US Magistrate Judge Leo I. Brisbois:

Facts Relating to Plaintiff

Plaintiff suffers from paranoid schizophrenia and schizoaffective disorder. (Amended Compl. [Docket No. 15], p. 2.) Initially, Plaintiff was incarcerated in MCF-St. Cloud in December 2008. (Id). Plaintiff has been incarcerated at MCF-Oak Park Heights (MCF-OPH) and MCF-Stillwater since January 2009. (McComb Aff. [Docket No. 41], Ex. A). While at MCF-OPH and MCF-Stillwater, Plaintiff spent time in the administrative control unit. Id.

Throughout his time incarcerated, Plaintiff has received a number of disciplinary violations. (Green Aff. [Docket No. 80], Ex. D). From December 2008 to the filing of Plaintiff complaint on March 29, 2010, Plaintiff has been involved in 19 separate disciplinary incidents. Id. These violations have resulted in lengthy stays in disciplinary segregation for the Plaintiff. Id. One violation that occurred on November 23, 2009 required Plaintiff to spend 240 days in disciplinary segregation. Id. Other punishments, however, have been shorter. Plaintiff only received five days in administrative segregation for one of his violations. Id. [Footnote1: Plaintiff’s major disciplinary violations have also added approximately 370 days to his incarceration. (Green Aff.)]

Regarding due process claims:

the Court finds that this case mirrors the claim in Johnson v. Beard, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034 (M.D. Pa. June 27, 2008). In that case, the prisoner raised an identical claim to that of the Plaintiff’s now before this Court. Specifically, the prisoner in Johnson alleged that “Defendants violated his due process rights by placing him in punitive segregation lock-down for at least 1090 days as punishment for the symptoms of his mental illness.” Johnson, 2008 U.S. Dist. LEXIS 113616, 2008 WL 2594034, at * 6. However, the Court found that placing a prisoner in punitive segregation, even if he suffered from a mental illness, did not constitute an atypical and significant hardship creating a liberty interest protected by the due process clause. 2008 U.S. Dist. LEXIS 113616, [WL] at * 7. In the instant case, like in Johnson, the Plaintiff contends that his placement in punitive segregation for 19 months was punishment for having a mental illness. But, such placement does not create a protected liberty interest.

Plaintiff has not presented any admissible evidence that his time spent in punitive segregation was so restrictive that it was atypical and significant in relation to the ordinary incidents of prison life. [Footnote4: Plaintiff contends that the restrictions of punitive segregation are more onerous than those of administrative segregation and prisoners in punitive segregation are allowed $20 dollars to purchase items from the canteen, only receive “county jail-like ‘pajama’ clothes,” receive “ninja-style soft shoes,” must use communal underwear and socks, are not allowed photographs, newspapers, and magazines, and cannot receive visits. (Pl’s Mem. in Opp’n, p. 18). However, these limitations do not give constitute a significant and atypical hardship. See Emil v. Crawford, 125 Fed.Appx. 112, 112-13 (9th Cir. 2005) (finding that the denial of canteen privileges does not trigger due process rights); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997) (holding that administrative segregation for six months with vermin; human waste; flooded toilet; unbearable heat; cold food; dirty clothing, linens, and bedding; longer periods in cell; no outside recreation; no educational or religious services; and less food was not so atypical as to impose significant hardship); Ind v. Colorado Dept. of Corrs., 2011 U.S. Dist. LEXIS 151833, 2012 WL 161418 (D. Colo. Jan. 19, 2012)(restrictions on books and magazines does not violate a constitutional right); Gordon v. Downs, 175 Fed.Appx. 798, 798-99 (9th Cir. 2006)(affirming district court’s finding that suspending visitation rights without a disciplinary hearing did not create an “atypical and significant hardship in relation to the ordinary incidents of prison life”); Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (“loss of visitation privileges is within the ordinary incidents of confinement and cannot be considered an atypical and significant hardship”).]

Plaintiff has, therefore, not created a genuine issue of material fact that he has a protected liberty interest to not be placed in segregated confinement for disciplinary infractions which would give rise to a right to due process before being placed in segregation. On this claim, the Court recommends that the Defendants’ summary judgment motion be granted.

The Magistrate Judge recommendations were adopted by District Judge Donovan Frank on 3/22/2012

MARVIN BRYANT, Petitioner,
v.
T. FELKER, Warden, Respondent.

No. C 06-0005 CW (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

2011 U.S. Dist. LEXIS 9091

Decided January 24, 2011
Opinion by District Judge Claudia Wilken:

Petitioner waived his right to a jury trial and was convicted of attempted murder, residential robbery, assault with a firearm, and residential burglary. (Resp. Memo. at 1.) On May 2, 2003, the trial court sentenced Petitioner to twenty-eight years. (Second Amended Petition (SAP) at 2.) The trial court found true the allegations of personal use of a firearm, intentional discharge of a firearm, and infliction of great bodily injury.

Quoting from The California Court of Appeal description of the facts:

Defendant was released because his clothing did not match the dispatch description of Raman’s attacker.

but

While being transported to the hospital Raman told police about the argument between Turner and Pamela, that three men had come to the door and he was not sure he could identify his attacker. He did say his attacker wore black clothing and a black beanie

and

Testifying on his own behalf, defendant admitted: vandalizing a car at age 14, an auto theft conviction at age 16, a 1997 arrest for possessing a “Ninja-rock,” used to break car windows, a 1998 arrest for stealing a video game, and a 1999 allegation of domestic violence by his girlfriend. Defendant said he was at Turner’s apartment when she came home upset that Pamela had called her a “black bitch.” He admitted he went with Westbrook and two other men to Pamela’s apartment to demand an apology. He said Westbrook, Raman and Pamela argued outside the Khannas’s apartment. Defendant denied saying anything or threatening the Khannas. He also denied returning to the Khannas’s apartment and having any involvement in the crimes committed.

Holding:

the petition for a writ of habeas corpus is denied.

Affirmed by, Bryant v. Felker, 464 Fed. Appx. 562, (9th Cir. Cal. 2011)

RORY DOLAN, Petitioner,
-against-
JOHN J. DONELLI, Respondent.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

06-CV-5891(JS)
2010 U.S. Dist. LEXIS 137406

Decided December 30, 2010 by Judge Joanna Seybert:

On the morning of November 17, 1988, Petitioner raped Mary Jean Sherin.

Brandishing a knife, he forcibly entered her home with a pillowcase cloaking his facial features.

and

During the follow-up police investigation Mrs. Cabo described the rape, the Nissan truck which made an appearance on both November 19 and December 12, the assailant’s appearance (his clothing was reminiscent of a ninja‘s) and had a rape kit performed. (T2. 31; 1392-94.) On December 12, 1990 Mrs. Cabo picked Dolan out of a photospread lineup; presented with another lineup identification on July 14, 1991, she singled him out once more. Separately, Nancy Modica, a neighbor of Cabo’s, identified Dolan in a photo array as the Nissan truck’s driver who was seen near the Cabo house on the morning of the rape. (T2. 1416-21; 1427; 1446-47; 1509-13; 1536; 1682-84; 1716; 1753; 1962-64; 2037; 2040; 2505-23.)

concluding:

the Court DENIES Petitioner’s writ of habeas corpus in its entirety. The Clerk of the Court is directed to mark this matter as CLOSED.

It is unusual for the federal courts to be involved in custody disputes but in this case an emergency order was sought after the mother too the 7 year old to the emergency psychiatric hospital and did not tell the father. Also this case involves a parent living in another country and the Hague Convention:

SAVVAS CHARALAMBOUS, Petitioner,
v.
ELIZABETH ROHNERT CHARALAMBOUS, Respondent.

Docket no. 2:10-cv-375

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

751 F. Supp. 2d 255

Decided November 16, 2010 by US District Judge George Z. Singal:

Before the Court is the Emergency Motion to Modify Stay (Docket # 101), which was filed by Petitioner/Appellee Savvas Charalambous (“Father” or “Savvas”). The Motion was transferred to this Court by the First Circuit. (See Nov. 10, 2010 Order of Court (Docket # 100).) Pursuant to the First Circuit’s Order, this Court is to make necessary factual findings and rule upon three specific requests in Petitioner’s Emergency Motion

and

In accordance with this Court’s November 10, 2010 Procedural Order, this Court held a conference of counsel on November 15, 2010. Attorney David Abramson appeared for the Father, Petitioner Savvas Charalambous. Attorney Judith Potter appeared for Respondent Elizabeth Rohnert Charalambous (“Mother” or “Elizabeth”).

and

Based on the record and the stipulations provided by the parties, the Court makes the following findings regarding post-judgment developments:

1. On October 18, 2010, this Court set a November 2, 2010 deadline for Mother to turnover the Children to Father. As of October 20, 2010, Mother, the appellant before the Court of Appeals, had filed a motion to further extend this turnover date and stay judgment pending resolution of her appeal by the First Circuit.

2. On October 26, 2010, Savvas had one of his regularly scheduled after-school visits with his son, N.C. During this visit, Savvas provided N.C. with a ninja costume and play numchucks as part of a Halloween costume.

3. On the evening of October 26th, after returning from this visit, N.C. argued with his Mother. Elizabeth was unable to get N.C. to go to bed. Elizabeth ultimately called 911 for assistance.

4. At 9:21 PM, Deputy Delbert Mason of the Androscoggin County Sheriff’s Department was dispatched to the Mother’s home on a report of “a 7 year old child that was out of control and violent.” (Mason Aff. ¶ 2.)

5. Upon arrival, Deputy Mason met Elizabeth and N.C., who was still wearing a ninja costume. N.C. appeared calm. As noted by the Deputy, N.C.’s grandmother was also present at the house.

6. Ultimately, Elizabeth requested that the Deputy call for an ambulance to transport N.C. to St. Mary’s hospital in Lewiston, Maine. N.C. did exhibit violence towards his Mother while resisting attempts to be taken to the ambulance. With the assistance of Deputy Mason, N.C. was secured in the ambulance by seatbelt and his Mother rode with him to St. Mary’s hospital.

7. At no point in the evening was Savvas contacted to inform him of the difficulties N.C. was having or of the need to have him transported to the hospital.

The Court concludes:

Based on this Court’s examination of the above-summarized factual record and the representations of counsel, the troubling events that led to N.C. being hospitalized at NMMC appear to reflect a panicked parent seeking to avoid the then-pending November 2, 2010 turnover date. Even with no definite turnover date on the horizon, the parents are struggling to engage in the communication necessary to co-parent two children while they are living apart. This failure to communicate does a disservice to their Children and disrespects the important role that each parent plays in the life of N.C. and A.C.