A prisoner’s Eighth Amendment right to be free from deliberate indifference to medical needs; Qualified immunity; Clearly established constitutional right; Proper level of specificity; District of Columbia v Wesby; Howell v NaphCare, Inc; Burwell v City of Lansing; Distinguishing Tlamka v Serrell (8th Cir) & Estate of Carter v City of Detroit; Goode v Berlanga (Unpub 6th Cir)

[This appeal was from the ED-MI.] The court held that defendant-corrections officer (Falk) was entitled to qualified immunity because he did not violate a clearly established constitutional right. Case law did not put him “on notice—beyond debate—that failing to immediately respond to solely an oral complaint of chest pain violates the Eighth Amendment.” Eight minutes after complaining to Falk about bad chest pains, plaintiff-Richardson was taken to the medical wing for treatment, where he later had a heart attack. The district court denied Falk’s motion for summary judgment. On appeal, the court began by defining the asserted constitutional right in question “with the proper level of specificity.” It noted that “the core element of the inquiry” is whether, “given the officer’s particular circumstances, is the constitutional violation beyond debate?” Considering Richardson’s version of the facts, the question became whether, at the time, it was “clearly established that an officer must immediately provide medical assistance to a prisoner who merely complains of symptoms but does not display any external signs of distress? The answer is no.” Richardson contended “the right should be defined as if Falk completely denied healthcare to a heart attack victim” because he eventually had one and there was no evidence “that Falk sent him to the medical wing.” But his proposed characterization defined “the right at a highly general level that fails to account for Falk’s particular circumstances[.] Additionally, this was not a complete denial of healthcare[.]” Richardson alternatively asserted, relying on Tlamka, that even defining “the right by the eight-minute delay,” Falk violated his “clearly established rights by not immediately providing aid.” But the court found that this case was “a far cry from Tlamka[.]” It concluded that brief “complaints of symptoms, with nothing more, fall short of the obvious displays of medical issues addressed in prior caselaw; the contours of the right to be free from deliberate indifference do not clearly include Falk’s alleged shortcomings.” While Richardson also relied on Carter, his “oral complaint of chest pain, without any other sign of distress, does not stack up to the cumulative signs of a serious illness that” were ignored in Carter. Reversed and remanded for entry of judgment for Falk.

Title IX claims; 20 USC § 1681(a); “Person in the United States”; Effect of a U.S. citizen living abroad at the time of the alleged discrimination; Trump v Barbara; Mullin v Al Otro Lado; Official-capacity equal-protection claims; Sovereign immunity; Impermissible burden on a state treasury; Instatement distinguished from reinstatement; Whether the requested injunction was inconsistent with history & tradition; Novel application of Ex parte Young; Personal-capacity equal-protection claims; Qualified immunity

In an issue of first impression in this circuit, the court held that “Title IX protects only persons in the United States” and thus, a U.S. “citizen living abroad at the time of the alleged discrimination” cannot claim its protection. It also held that sovereign and qualified immunities barred plaintiff's equal-protection claims. Thus, it affirmed summary judgment for defendants. While plaintiff (a white male and a U.S. citizen) was living in the United Kingdom, he applied for an assistant professor position at defendant-University of Cincinnati. “A faculty panel recommended him for the position, but after consternation about his gender and an alleged conflict of interest, the University cancelled the job search.” He sued it and two of its administrators, asserting Title IX and equal protection claims. As to the former, the court noted “Title IX states that ‘[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’” It concluded that “the ordinary meaning of ‘person in the United States’ is a person physically located within United States territory.” The court noted that in recent examinations of language similar to that in Title IX, the Supreme Court “found that being ‘in the United States’ referred to physical presence in United States territory.” In addition, the court determined that the “usage of the phrase ‘person in the United States’ in other statutes is also consistent with this interpretation.” As to his official-capacity equal-protection claims, the court concluded they were barred “because (1) instatement is an impermissible burden on the state treasury, and (2) a suit in equity for an instatement injunction is too far removed from the suits in equity that could have been brought against a State at the Founding.” It found that history and tradition counselled against extending its “reinstatement jurisprudence to instatement actions.” Finally, it held that the individual defendants were entitled to qualified immunity on plaintiff’s individual-capacity equal-protection claims because he failed to carry “his burden of providing caselaw clearly establishing the constitutional right at issue.”

A prisoner’s Eighth Amendment right to be free from deliberate indifference to medical needs; Qualified immunity; Clearly established constitutional right; Proper level of specificity; District of Columbia v Wesby; Howell v NaphCare, Inc; Burwell v City of Lansing; Distinguishing Tlamka v Serrell (8th Cir) & Estate of Carter v City of Detroit; Goode v Berlanga (Unpub 6th Cir)

[This appeal was from the ED-MI.] The court held that defendant-corrections officer (Falk) was entitled to qualified immunity because he did not violate a clearly established constitutional right. Case law did not put him “on notice—beyond debate—that failing to immediately respond to solely an oral complaint of chest pain violates the Eighth Amendment.” Eight minutes after complaining to Falk about bad chest pains, plaintiff-Richardson was taken to the medical wing for treatment, where he later had a heart attack. The district court denied Falk’s motion for summary judgment. On appeal, the court began by defining the asserted constitutional right in question “with the proper level of specificity.” It noted that “the core element of the inquiry” is whether, “given the officer’s particular circumstances, is the constitutional violation beyond debate?” Considering Richardson’s version of the facts, the question became whether, at the time, it was “clearly established that an officer must immediately provide medical assistance to a prisoner who merely complains of symptoms but does not display any external signs of distress? The answer is no.” Richardson contended “the right should be defined as if Falk completely denied healthcare to a heart attack victim” because he eventually had one and there was no evidence “that Falk sent him to the medical wing.” But his proposed characterization defined “the right at a highly general level that fails to account for Falk’s particular circumstances[.] Additionally, this was not a complete denial of healthcare[.]” Richardson alternatively asserted, relying on Tlamka, that even defining “the right by the eight-minute delay,” Falk violated his “clearly established rights by not immediately providing aid.” But the court found that this case was “a far cry from Tlamka[.]” It concluded that brief “complaints of symptoms, with nothing more, fall short of the obvious displays of medical issues addressed in prior caselaw; the contours of the right to be free from deliberate indifference do not clearly include Falk’s alleged shortcomings.” While Richardson also relied on Carter, his “oral complaint of chest pain, without any other sign of distress, does not stack up to the cumulative signs of a serious illness that” were ignored in Carter. Reversed and remanded for entry of judgment for Falk.

Loan agreement breach; Amounts still owed

The court held that, based on the evidence presented, no genuine issue of material fact existed that defendant still owed plaintiff the amounts under the parties’ loan agreements that were reflected in the trial court’s award to plaintiff. Defendant did not dispute that plaintiff made the loans and that he breached the agreements. The only evidence he offered to support his assertion that “the full amount of each loan had been repaid was a handwritten note, a copy of the quitclaim deed demonstrating his conveyance of an ownership interest in his 80-acre parcel to plaintiff, and documents and photos related to his excavator.” On the other hand, plaintiff “offered an affidavit addressing the date and amount of the loans he had provided to defendant; the amount, if any, defendant had repaid for each loan; and the outstanding amount, if any, for each loan.” In his briefing, he “also pointed out the deficiencies in defendant’s offered proofs.” The court found that defendant’s proofs as to the excavator, “at most, established his ownership of it; [he] offered nothing to establish” its value, that plaintiff removed it “as defendant claimed, or—even assuming plaintiff had removed it—that he did so as a means of offsetting defendant’s outstanding debts. Meanwhile, plaintiff stated in his affidavit that he never took [the] excavator and that, aside from defendant’s conveyance of an ownership interest in his 80-acre parcel to satisfy the promissory note’s balance, the parties never agreed to any other accord and satisfaction to pay off defendant’s remaining debts. Similarly, as to the conveyance of the ownership interest in his 80-acre parcel, defendant’s proofs established only that [it] occurred and that the parcel had not been used as security for the promissory note or loan agreement; the proofs offered nothing to create a genuine factual dispute that the conveyance was done to satisfy a debt other than that owed for the promissory note.” Further, the timing of the conveyance belied “any notion that it may have been intended to apply to the debt owed under the loan agreement.” As to the handwritten note, it was “not dated or signed by either party,” nor did it make any mention of them. Affirmed.

Traffic stop; Pretext; Fourth Amendment; Const 1963, art 1, § 11; Whren v United States; Prolonged detention; Parolee search; MCL 791.236(19); Standing; Drug-profile testimony; Narcotics expert; Ineffective assistance of counsel; Within-guidelines sentence; Proportionality; People v Posey

The court held that defendant failed to establish error requiring suppression, ineffective assistance, improper drug-profile testimony, or a disproportionate sentence. Defendant was convicted after police used a parolee informant to arrange a drug buy, stopped the vehicle in which he was riding, and found cocaine, meth, and marijuana in the windshield-wiper cowl. On appeal, the court first rejected the pretext-stop challenge because Michigan follows Whren, under which “subjective intentions play no role in ordinary Fourth Amendment probable-cause analysis[,]” and counsel was not ineffective for failing to raise a futile argument. The court next held that the detention and search were not unconstitutional because officers had information from the informant, saw a tequila bottle in the vehicle, and all occupants were parolees. It reasoned that “‘parolees have severely diminished privacy expectations,’” and MCL 791.236(19) subjected defendant to warrantless searches. The court also rejected the drug-profile claim because the narcotics expert explained the significance of drug quantities, packaging, and lack of paraphernalia, but “did not opine that defendant was guilty.” Counsel was not ineffective because he used the testimony to show the case lacked features of a “typical” drug dealer. Finally, the court held that the within-guidelines sentences were proportionate. It reasoned that the trial court considered “the nature of the offense and the defendant’s background,” including his parole status, criminal history, community impact, and mitigation materials. Affirmed.

Medical-treatment hearsay exception; MRE 803(4); People v Meeboer; Sexual assault nurse examiner (SANE) report; Other acts evidence; MCL 768.27a; Pretrial notice; Specific unanimity instruction; People v Cooks; Due process; Ineffective assistance of counsel

The court held that defendant failed to show reversible evidentiary, notice, unanimity, or ineffective-assistance error in his CSC trial. Defendant was convicted of CSC I, CSC II, and attempted CSC I for sexually abusing his then-fiancée’s daughter over about a year. On appeal, the court first held that statements the victim made during a SANE examination were admissible under MRE 803(4), or at least not outcome determinative if admitted in error. It reasoned the challenged statements were “reasonably necessary” to determine whether she needed treatment for sexually transmitted diseases, pregnancy, trauma, psychological injury, and whether she could return to “a safe, rather than an abusive, home.” The court next rejected defendant’s claim that near-daily abuse testimony required reversal for lack of MCL 768.27a notice. It noted the complaint, information, and search-warrant affidavit gave the relevant date range and allegations, and defendant did not identify evidence that was undisclosed at least 15 days before trial or show prejudice. The court also held that a specific unanimity instruction was not required because the acts were not materially distinct and the victim described repeated abuse occurring in the same manner. It reasoned that “‘the evidence offered . . . was materially identical,’” and the jury received a general unanimity instruction. The court further rejected the related due-process and ineffective-assistance claims because the charged date range covered the allegations and any objections would have been futile or nonprejudicial given the “overwhelming evidence” of guilt. Affirmed.

Effect of defendant’s unconditional plea; United States v Abdulmutallab; Applicability of FedRCrimP 11(a)(2); United States v Johnson (Unpub 6th Cir); Sixth Amendment ineffective assistance of counsel claim on direct appeal; Application of the § 2K2.1(b)(6)(B) sentence enhancement; United States v Shanklin; Reliance on hearsay statements; United States v Armstrong

The court concluded that defendant-Williams’s Second and Fourth Amendment arguments were beyond its reach due to his unconditional guilty plea. It declined to decide his Sixth Amendment ineffective assistance of counsel claim on direct appeal, per its usual practice. That left his challenge to his sentencing enhancement for possessing a firearm in connection with a felony offense, and the court held that it was supported by ample evidence. Thus, it affirmed his FIP convictions and his 100-month sentence. He pled guilty without a plea agreement. Under Abdulmutallab, the “usual rule is that when a defendant unconditionally pleads guilty, he” may not generally later “‘raise independent claims relating to the deprivation of constitutional rights that occurred’” before entry of the plea. Rule 11(a)(2) “carves out a narrow exception.” It requires a “defendant to reserve the right to appeal specific pre-plea issues ‘in writing’ and to obtain the government’s and the district court’s consent to those reservations.” The court found that a “straightforward reading of Williams’s plea hearing transcript” showed that Abdulmutallab controlled “here. For one, there was no written plea agreement, which Rule 11(a)(2) requires. For another, neither Williams, the district court, nor the government ‘specified’ any ‘pretrial motion[s]’ for which [he] was reserving his right to appeal.” He relied on “the district court’s statement at his plea hearing that ‘there’s no plea agreement here, so you’re not waiving any of your appellate rights, other than just the fact that you end up testifying that you did what the Government said you did.’” But the court recently held in Johnson “that a district court’s use of similar language—namely, that the defendant had ‘not waived any appeal rights’—was insufficient to demonstrate that a plea was conditional.” As to a separate statement the district court made at his sentencing hearing, in this “Circuit, a district court cannot revive a defendant’s appellate rights at sentencing by erroneously stating that the defendant has preserved certain issues for appeal.” As to application of § 2K2.1(b)(6)(B), when a district court at sentencing relies on hearsay statements “there must be some ‘minimal indicium of reliability.’” In this case, where a witness gave dueling statements, a host of reasons supported the district court’s assessment that the original one “carried greater indicia of reliability.”

Title IX claims; 20 USC § 1681(a); “Person in the United States”; Effect of a U.S. citizen living abroad at the time of the alleged discrimination; Trump v Barbara; Mullin v Al Otro Lado; Official-capacity equal-protection claims; Sovereign immunity; Impermissible burden on a state treasury; Instatement distinguished from reinstatement; Whether the requested injunction was inconsistent with history & tradition; Novel application of Ex parte Young; Personal-capacity equal-protection claims; Qualified immunity

In an issue of first impression in this circuit, the court held that “Title IX protects only persons in the United States” and thus, a U.S. “citizen living abroad at the time of the alleged discrimination” cannot claim its protection. It also held that sovereign and qualified immunities barred plaintiff's equal-protection claims. Thus, it affirmed summary judgment for defendants. While plaintiff (a white male and a U.S. citizen) was living in the United Kingdom, he applied for an assistant professor position at defendant-University of Cincinnati. “A faculty panel recommended him for the position, but after consternation about his gender and an alleged conflict of interest, the University cancelled the job search.” He sued it and two of its administrators, asserting Title IX and equal protection claims. As to the former, the court noted “Title IX states that ‘[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’” It concluded that “the ordinary meaning of ‘person in the United States’ is a person physically located within United States territory.” The court noted that in recent examinations of language similar to that in Title IX, the Supreme Court “found that being ‘in the United States’ referred to physical presence in United States territory.” In addition, the court determined that the “usage of the phrase ‘person in the United States’ in other statutes is also consistent with this interpretation.” As to his official-capacity equal-protection claims, the court concluded they were barred “because (1) instatement is an impermissible burden on the state treasury, and (2) a suit in equity for an instatement injunction is too far removed from the suits in equity that could have been brought against a State at the Founding.” It found that history and tradition counselled against extending its “reinstatement jurisprudence to instatement actions.” Finally, it held that the individual defendants were entitled to qualified immunity on plaintiff’s individual-capacity equal-protection claims because he failed to carry “his burden of providing caselaw clearly establishing the constitutional right at issue.”

Reasonable reunification efforts; Accommodation of a respondent’s intellectual disability; Americans with Disabilities Act (ADA); In re Hicks/Brown; Effect of the DHHS’s lack of knowledge of the disability; Identifying other appropriate services; In re Sanborn; Child’s best interests; Weight given to the parent-child bond & a parent’s progress

Holding that respondent-mother showed no reversible error in the trial court’s findings that the DHHS made reasonable reunification efforts and that termination was in the child’s best interests, the court affirmed the termination order. She contended that, in providing services, the DHHS “made no effort to accommodate her intellectual disability as required under” the ADA. But the court noted the “DHHS ‘cannot accommodate a disability of which it is unaware,’ and it must have knowledge that a parent is disabled before it is required to provide reasonable accommodations for that disability under the ADA.” Apart from “making conclusory assertions, respondent” did not show that she suffered “from an intellectual disability or that, even if she did, DHHS was aware of that disability” when providing her with services. It noted that “neither the psychological evaluation nor the evaluator diagnosed respondent with any cognitive or intellectual disabilities requiring ADA accommodations.” In addition, “and more fundamentally,” a respondent challenging the offered services bears the burden “to identify other ‘services that would have been appropriate in light of such disability or how the services offered were deficient’ and to demonstrate that he or ‘she would have fared better if other services had been offered.’” Respondent failed to do so. As to the child’s best interests, the record belied the claim that the trial “court failed to adequately account for the parent-child bond” and respondent’s progress in services. The record showed that it properly weighed all the available evidence, including testimony and documentary evidence that established “respondent refused to participate in any of the recommended parenting-education courses; was still using and testing positive for substances; was not consistently participating in mental-health treatments and” continued to be in a relationship with a man who “was selling, and providing her with, drugs.”