U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

December 2010 Archives

Hafed v. Fed'l. Bureau of Prisons, No. 09-1090

Motion to Appear IFP Granted

In Hafed v. Fed'l. Bureau of Prisons, No. 09-1090, a prisoner's appeal from the dismissal of his action for failure to appear for a deposition, the court granted plaintiff's motion to appear in forma pauperis where a prisoner must have alleged an imminent danger at the time he filed his complaint under the in forma pauperis statute.

Green v. Napolitano, No. 10-1156

Action Concerning Revocation of I-130 Petition

In Green v. Napolitano, No. 10-1156, an action claiming that the revocation of petitioners' I-130 petition violated their constitutional due process rights because they never had the opportunity to confront or cross-examine petitioner's former spouse, the court affirmed the dismissal of the action for lack of jurisdiction where 8 U.S.C. section 1252(a)(2)(B)(ii) stripped the district court of jurisdiction to review a section 1155 revocation.

Manzanares v. City of Albuquerque, No. 10-2011

Denial of Motion to Vacate Judgment Against Police Officer Affirmed

In Manzanares v. City of Albuquerque, No. 10-2011, an action against a city based on the alleged misconduct of a police officer, the court affirmed the district court's denial of plaintiff's Fed. R. Civ. P. 60(b)(5) motion to vacate a judgment solely against the officer, stating that his claim was moot because any potential recovery against the city would necessarily be duplicative of the damage award against defendant-officer, where, if, as Lippoldt teaches, justice did not require allowing plaintiff to proceed with a claim of nominal damages against the City, then it was surely within the discretion of the district court not to vacate its prior judgment.


Lauck v. Campbell Cty., No. 09-8085

Civil Rights Action by Deputy Sheriff

In Lauck v. Campbell Cty., No. 09-8085, a 42 U.S.C. section 1983 action claiming that plaintiff deputy sheriff was improperly transferred and constructively discharged, the court affirmed summary judgment for defendants where 1) plaintiff's claim that he was demoted and constructively discharged in violation of due process failed because he did not produce sufficient evidence that he was constructively discharged, was entitled to a hearing, or was provided an inadequate hearing; and 2) there was no merit to plaintiff's First Amendment claim because he identified only one instance of speech that may be constitutionally protected, and he did not show a causal connection between that speech and the allegedly retaliatory action by defendants.


US v. Reese, No. 10-2030

Firearm Possession Indictment Dismissal Reversed

In US v. Reese, No. 10-2030, a prosecution for possessing firearms while subject to a domestic protection order, the court reversed the dismissal of the indictment where 1) the prosecution of defendant under 18 U.S.C. section 922(g)(8) is consistent with the government's intended purpose in implementing that statute; and 2) the district court erred in focusing on the underlying protective order issued by the Hawaii Family Court instead of the challenged federal statute.

Railroad Arbitration Board Order Affirmed

In Burlington Northern & Santa Fe Rwy. Co. v. Pub. Serv. Co. of Okla., No. 09-5133, an appeal from the district court's order confirming an arbitration board's decision regarding a rail pricing dispute, the court affirmed where the district court did not err in confirming an arbitration board's decision despite appellant railroad's claims that the board misconstrued the parties' agreement and exceeded its authority by deciding a non-arbitrable issue.


Constien v. US, No. 10-6153

Dismissal Based on Failure to Serve Affirmed

In Constien v. US, No. 10-6153, plaintiff's appeal from the dismissal of her suit against the U.S. and several agencies and officials for failure to serve them with process in accordance with Federal Rule of Civil Procedure 4, the court affirmed where the only proper service effected by plaintiff was service by a deputy marshal on a U.S. attorney, but even if plaintiff was a proper person to receive service, no defendant was properly served because service on each required service by mail on the Attorney General, and the only mailing of process to the Attorney General had been by plaintiff herself, not by a nonparty, as required by Rule 4(c).

  • Lopez v. Trani, No. 10-1088

    Denial of Certificate of Appealability

    In Lopez v. Trani, No. 10-1088, an application for a certificate of appealability to appeal the district court's denial of petitioner's 28 U.S.C. section 2254 habeas petition, the court denied the application where 1) the state court's evidentiary rulings were not so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process; and 2) nor would reasonable jurists debate whether the alleged instances of prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.

    Bryson v. Oklahoma City, No. 09-6143

    Action Claiming that Plaintiff Was Wrongfully Convicted of Rape and Kidnapping

    In Bryson v. Oklahoma City, No. 09-6143, an action claiming that plaintiff was wrongfully convicted of rape and kidnapping, the court affirmed the district court's order denying defendant's motion for indemnification from Oklahoma City, and granting summary judgment in the city's favor, holding that 1) plaintiff failed to present sufficient evidence to support a finding of deliberate indifference by the city; and 2) plaintiff was not the real party in interest on an individual defendant's indemnification cross-claim.

    US Airways, Inc. v. O'Donnell, No. 09-2271

    Action to Enjoin New Mexico From Regulating Alcohol on Flights

    In US Airways, Inc. v. O'Donnell, No. 09-2271, an action in seeking to enjoin defendant New Mexico state officials from regulating, pursuant to the New Mexico Liquor Control Act (NMLCA), the alcoholic beverage service that airlines provided to passengers on flights, the court reversed summary judgment for defendants where New Mexico's regulatory scheme was impliedly preempted as it fell within the field of aviation safety that Congress intended federal law to occupy exclusively, but the Twenty-First Amendment required a balancing of New Mexico's core powers and the federal interests underlying the Federal Aviation Act.

    US v. Becker, No. 09-5154

    Child Pornography Sentence Affirmed

    In US v. Becker, No. 09-5154, the court affirmed defendant's sentence for receipt and possession of child pornography where, because 18 U.S.C. section 2252(b) must be read broadly, defendant's prior Illinois conviction plainly qualified as "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct of a minor."