W.D. Pa. Notes Circuit Split Re: Exhaustion Requirement of Prison Litigation Reform Act

Per Rankinev.Sobina, 2006 WL 2974168 (W.D. Pa. Oct. 16, 2006):

The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir.2004). [FN2]

FN2. There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik, 366 F.3d 85 (2d Cir.2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir.2004), and Pozo v.. McCaughtry, 286 F.3d 1022 (7th Cir.2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir.2003).

10th Circuit Notes Possible Split Re Whether Any Sentence Calculated under the Guidelines Is Entitled to A Rebuttable Presumption of Reasonableness

Per U.S. v. Ochoa-Villarruel, 2006 WL 2868246 (10th Cir. Oct. 10, 2006):

Mr. Ochoa-Villarruel acknowledges that his sentence is within the advisory guideline sentence range of 57-71 months, and that this court is bound by our holding in United States v. Kristl, 437 F.3d 1050 (10th Cir.2006). In Kristl, we held that "any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Id. at 1054 (internal quotation marks omitted).

Mr. Ochoa-Villarruel contends that there is a circuit split as to this issue, and raises this issue to preserve it for further review. See United States v. Green, 436 F.3d 449, 457 (4th Cir.2006) (holding that "a sentence imposed within the properly calculated Guidelines range ... is presumptively reasonable") (internal quotation marks omitted); United States v. Richardson, 437 F.3d 550, 553-34 (6th Cir.2006) ("We credit a sentence such as Richardson's that falls within the advisory Guidelines range with a rebuttable presumption of reasonableness.") (internal quotation marks omitted); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006) (same); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005) (same); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.) (same); cert. denied, 126 S.Ct. 840 (2005); United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006) ("Although a within-guidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, a within-guidelines sentence is not necessarily reasonable per se."); United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (stating that "ordinarily we would expect a sentence within the Guidelines range to be reasonable"); United States v. Spencer, 150 Fed. Appx. 15 (2d Cir.2005) (unpublished) (declining to "afford[ ] a specific presumption of reasonableness to Guidelines sentences"). Before us, Mr. Ochoa-Villarruel does not attempt to rebut the presumption of reasonableness we afford to his guidelines sentence.

S.D.N.Y. Discusses Split Re: Constitutional Rights of Pro Se Defendants While Incarcerated to Access State-Financed Law Libraries

Per Wesley v. City of New York, 2006 WL 2882972 (S.D.N.Y. Oct. 10, 2006):

The Second Circuit has held that "the appointment of counsel can be a valid means of fully satisfying a state's constitutional obligation to provide prisoners, including pretrial detainees, with access to the courts" in conformity with constitutional requirements. Bourdon, 386 F.3d at 94. In other words, if a state supplies an inmate with "adequate assistance from persons trained in the law" through the provision of a court-appointed lawyer, id. at 97, it is not also obligated to give the inmate access to a legal library. Id. at 96 ("To provide the access constitutionally mandated, a state may be required to offer affirmative assistance to prisoners, but that assistance is not prescribed in narrow or specific terms or limited in form.")

The Second Circuit recently declined to rule on the issue of whether the same reasoning would apply in the context of a defendant who has elected to proceed pro se:

We express no view as to whether the appointment of counsel could adequately protect the right of access to the courts of a defendant who has ... exercised his Sixth Amendment right to waive counsel and conduct his own defense.

Id. at 94 n. 9. The circuit, however, has previously expressed deep skepticism about the proposition that "even if the state provides adequate legal services to prisoners, complete libraries must still be maintained to serve those who do not wish to be represented by counsel." Spates v. Manson, 644 F.2d 80, 84-85 (2d Cir.1981). Although the circuit recognized "that the right to represent oneself in criminal proceedings is protected by the Sixth Amendment," it stated that "the right does not carry with it a right to state-financed library resources where state-financed legal assistance is available." Id. at 85.

This view accords with those of most other circuits, which have found that defendants who voluntarily decline publicly funded counsel and choose to represent themselves have no constitutional right of access to a law library. See, e.g., United States v. Smith, 907 F.2d 42, 45 (6th Cir.1990); United States ex rel. George v. Lane, 718 F.2d 226, 231 (7th Cir.1983); and United States v. Chatman, 584 F.2d 1358, 1360 (4th Cir.1978). But see Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir.2000) (citation omitted) ("An incarcerated criminal defendant who chooses to represent himself has a constitutional right to access law books or other tools to assist him in preparing a defense.). [FN4] Because the Second Circuit is unlikely to find that the right asserted by Wesley is guaranteed by the Constitution, his claim will be dismissed.

FN4. The Supreme Court recently acknowledged that there was a Circuit split on this issue but declined to resolve it. Kane v. Garcia Espitia, --- U.S. ----, 126 S.Ct. 407, 408 (2005).

Second Circuit Notes Split Re Whether a Federal Regulation by Itself Can Create a Right Enforceable Under § 1983

Per D.D. ex rel. V.D. v. New York City Bd. of Educ., 2006 WL 2922093 (2nd Cir. Oct. 12, 2006):

This Court has yet to determine whether a federal regulation, standing alone, can create a right enforceable via § 1983. See Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir.1999) (assuming arguendo that Medicaid regulations can create a right enforceable under § 1983); King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir.1998) (per curiam) (noting the issue, but declining to resolve it); see also Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 437, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (O'Connor, J., dissenting) (describing as "troubling" the question of whether regulations alone can create a federal right enforceable under § 1983). Although the circuits are divided on the question, the majority have determined that where a regulation's enforcing statute confers no federal right, the regulation alone cannot create a right enforceable under § 1983. Compare Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir.2006) (holding a federal regulation alone cannot create a right enforceable through § 1983); [FN12] Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir.2003) (holding "regulations cannot independently create rights enforceable through § 1983"); S. Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771, 790 (3d Cir.2001) (same); Harris v. James, 127 F.3d 993, 1008 (11th Cir.1997) (same); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987) (same); with Samuels v. District of Columbia, 770 F.2d 184, 199 (D.C.Cir.1985) (holding a federal regulation can create a federal right enforceable via § 1983).

We need not address the question here because § 300.342(b)(1)(ii), standing alone, does not create a federal right. Instead, it is the IDEA that creates the right to a free appropriate public education enforceable through § 1983. Section 300.342(b)(1)(ii) merely defines the scope of that right with respect to the requisite time frame for implementing an IEP. See Wright, 479 U.S. at 430-32 (low-income housing tenants could maintain a suit under § 1983 for alleged violations of the rent ceiling provision of the Housing Act of 1937 together with its implementing regulations); see also S. Camden Citizens, 274 F.3d at 783 ("[T]he Wright Court located the alleged right in the statutory provision and then relied upon the implementing regulations to define and interpret that right."); Harris, 127 F.3d at 1009 (reading Wright to indicate "that so long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further defines or fleshes out the content of that right, then the statute--in conjunction with the regulation--may create a federal right as further defined by the regulation" (internal quotation marks omitted)).

Fifth Circuit Notes Split Re: Standard of Review for Fourth Amendment Curtilage Determination

Per Mack v. City of Abilene, 461 F.3d 547 (5th Cir. Aug. 16, 2006):

The focus of this case is whether Appellant Christopher Mack's Fourth Amendment rights were violated by a series of warrantless vehicle searches.

. . .

The circuits are split on the appropriate standard of review on a curtilage determination. [FN3] In civil cases, however, all courts agree that antecedent facts found by the district court pursuant to such a determination are reviewed for clear error. Here, we need not decide the correct review of a district court's constitutional determination because the district court declined to decide the constitutional curtilage question.

FN3. See United States v. Breza, 308 F.3d 430, 435 (4th Cir.2002) (holding that the question of "curtilage is ultimately a legal one, and thus is subject to de novo review, while antecedent factual findings are reviewed for clear error"); United States v. Diehl, 276 F.3d 32, 38 (1st Cir.2002) (same); United States v. Johnson, 256 F.3d 895, 911-913 (9th Cir.2001) (same); Bleavins v. Bartels, 422 F.3d 445, 449 (7th Cir.2005) (stating that, in the context of a civil case evaluating a curtilage question, the grant of summary judgment is reviewed de novo); Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir.1998) (same). But see United States v. Benish, 5 F.3d 20, 24 (3d Cir.1993) ("[T]he question of the extent of curtilage is essentially factual and therefore we review only for clear error.") (internal quotation marks and citation omitted); United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (same).

Second Circuit Mentions Split Re: Sentencing Enhancement; Declines to Decide

Per United States v. Blackburn, 461 F.3d 259 (2nd Cir. July 26, 2006):

Blackburn's sole argument on appeal is that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no "effectual relief," United States v. Quattrone, 402 F.3d 304, 308 (2d Cir.2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn's claim. At sentencing, the district court acknowledged that there is a split among the circuits that have considered the applicability of the enhancement in similar factual circumstances and that this Court has not addressed the issue.

Under the post-Booker sentencing regime, district courts have a "continuing duty to consider [the Guidelines], along with the other factors listed in [18 U.S.C. § ] 3553(a)," United States v. Crosby, 397 F.3d 103, 111 (2d Cir.2005) (internal quotation marks omitted). The Courts of Appeals likewise have a continuing duty to review the district courts' application of sentencing enhancements. See United States v. Agudelo, 414 F.3d 345, 347 (2d Cir.2005). The sentencing issue raised here is an important one, over which there is a split of authority among the circuits. The importance of the issue, however, and the temptation to decide it can have no bearing on our assessment of its justiciability. Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 213 (2000).

Second Circuit Analyzes Split Re: Class Certification as to Specific Issues under Rule 23(c)(4)(A); Agrees with Ninth Circuit

Per In re Nassau County Strip Search Cases, 461 F.3d 219 (2nd Cir. Aug. 24, 2006):

Whether a court may employ Rule 23(c)(4)(A) to certify a class as to a specific issue where the entire claim does not satisfy Rule 23(b)(3)'s predominance requirement is a matter of first impression in this Circuit. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 n. 12 (2nd Cir. 2001) (identifying question as one of first impression and declining to resolve it). It also is a matter as to which the Circuits have split. Id.

The Fifth Circuit has adopted a "strict application" of Rule 23(b)(3)'s predominance requirement. Id. Under this view, "[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial." Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). The Ninth Circuit holds a different view. Pursuant to that court's precedent, "[e]ven if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues." Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996); cf. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 439 (4th Cir.2003) (holding that courts may employ Rule 23(c) to certify a class as to one claim even though all of plaintiffs' claims, taken together, do not satisfy the predominance requirement).

We agree with the Ninth Circuit's view of the matter. First, the plain language and structure of Rule 23 support the Ninth Circuit's view. . . . Second, the Advisory Committee Notes confirm this understanding. . . . In addition, as the Fourth Circuit has noted, the Fifth Circuit's view renders subsection (c)(4) virtually null, which contravenes the "well-settled" principle "that courts should avoid statutory interpretations that render provisions superfluous." State St. Bank & Trust Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir.2003). . . . Finally, we note that the commentators agree that courts may use subsection (c)(4) to single out issues for class treatment when the action as a whole does not satisfy Rule 23(b)(3). See 7AA Wright & Miller, Federal Practice & Procedure § 1790 (3d ed.2005).

For those reasons, we hold that a court may employ subsection (c)(4) to certify a class as to liability regardless of whether the claim as a whole satisfies Rule 23(b)(3)'s predominance requirement.

2d Circuit Discusses Circuit Split Re Ability of Title VII Plaintiff to File Suit in Federal Court Seeking Relief Unavailable in State Proceeding

Per Nestor v. Pratt & Whitney, --- F.3d ----, 2006 WL 2827236 (2nd Cir. Oct. 4, 2006):

Plaintiff-Appellant Gale Nestor ("Nestor") filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CCHRO") against her former employer, United Technologies Corporation, Pratt & Whitney Division ("Pratt"), alleging that her employment had been terminated by reason of her sex. She prevailed in the CCHRO, prevailed as well on the appeals taken by Pratt in the Connecticut state courts, and she collected damages of back pay and interest. She later filed this action in the United States District Court for the District of Connecticut (Covello, J.), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), seeking damages that were unavailable in the CCHRO proceedings: attorney's fees, compensatory damages for emotional distress, and punitive damages (collectively referred to as "additional relief"). Pratt successfully moved for summary judgment on the ground that Nestor's action is barred by Connecticut's doctrine of res judicata (or "claim preclusion"). We vacate the judgment and remand for further proceedings consistent with this opinion.

The issue presented on appeal is whether a Title VII plaintiff who prevailed on her discrimination claims before a state administrative agency and in appeals of the agency decision to state court can subsequently file suit in federal court seeking relief that was unavailable in the state proceedings. This issue has split our sister circuit courts. Compare Jones v. Am. State Bank, 857 F.2d 494 (8th Cir.1988) (holding that Title VII plaintiff may bring suit to recover attorney's fees after successfully litigating before a state administrative body), Patzer v. Bd. of Regents, 763 F.2d 851, 858 (7th Cir.1985) (holding that state court judgment affirming an administrative decision did not bar a subsequent federal action for additional relief because of "national policy that Title VII remedies be available to supplement state remedies for employment discrimination"), Lewis v. Ames Dept. Stores, Inc., No. 3:97CV1214 (CFD), 1999 WL 33116610 (D.Conn. Mar.31, 1999) (same); with Chris v. Tenet, 221 F.3d 648 (4th Cir.2000) (holding that federal court lacked jurisdiction to hear plaintiff's suit solely seeking attorney's fees incurred in a prior administrative action).

Pratt urges . . . that after the state administrative decision withstood appeal and became final, additional relief was no longer available. Pratt offers two reasons: [i] subject matter jurisdiction does not exist over a "damages only" action; and [ii] the doctrine of res judicata bars relitigation, including relitigation of different claims to relief. We disagree with both arguments, and reverse the district court's grant of summary judgment. Her federal action . . . entails litigation of substantive issues: for example, whether Nestor suffered any emotional distress caused by Pratt's discrimination and whether Pratt's conduct was malicious. Thus, it is not simply that Nestor seeks to recover for expenses incurred elsewhere; Nestor's federal action seeks to adjudicate substantive issues regarding Pratt's discriminatory conduct and its consequences. The judgment is vacated, and the case is remanded for further proceedings.

D. Puerto Rico Mentions Split Re Whether 47 U.S.C. § 605 Proscribes Theft of Cable Services Transmitted by Wire

Per Don King Productions, Inc. v. Comite Partido Popular Democratico, 441 F. Supp. 2d 370 (D. P.R. July 31, 2006):

Plaintiff Don King Productions, Inc., ("DKP") brought suit against co-defendant Comité PPD and others pursuant to Section 705 of the Communications Act of 1934, 47 U.S.C. § 605. (Docket Nos. 1, 31). DKP was the producer and copyright holder of the closed-circuit telecast of the October 2-3, 2004, championship boxing match between Félix "Tito" Trinidad v. Ricardo Mayorga, including all related preliminary bouts ("the boxing match"). Parties interested in the receipt, transmission and broadcast of the boxing match were legally required to purchase said rights and obtain contractual authorization from DKP. According to DKP, co-defendant Comité PPD violated Section 705 by intercepting and displaying to their patrons transmission of the boxing match without authorization, causing substantial damage to DKP.

We note, Comité PPD's reference to the case of Charter Communications Entertainment I, LLC v. Burdulis, 367 F.Supp.2d 16, 21 (D.Mass.2005), which holds that Section 605 proscribes unauthorized interception of radio, not cable, transmissions. The Charter Court recognizes that the First Circuit has not yet decided the issue as to whether Section 605 proscribes the theft of cable services transmitted by wire, and that there is a split among the circuit and district courts which have visited the issue. We pause only to restate our own precedent, as laid out in Century ML-Cable Corp. v. Carrillo Díaz, 39 F.Supp.2d 121 (D.P.R.1999), that Section 605 applies to the unauthorized interception of cable programming services, and is thus applicable to this action, and that plaintiff DKP has properly pleaded a claim under Section 605(a).

Sixth Circuit Notes Split Re Role of Federal Courts in Reviewing Substantive Due Process Arbitrary and Capricious Claims in the Zoning Context

[Note: this is a repost of a split that was previously posted in August under the wrong case name]

Per Turner v. City of Englewood, Slip Copy, 2006 WL 2329375 (6th Cir. Aug. 11, 2006):

We also find that the magistrate judge properly dismissed Plaintiff's substantive due process claim. Zoning ordinances, like the one at issue, "must find their justification in some aspect of the police power, asserted for the public welfare." Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387 (1926). "The segregation of industries, commercial pursuits, and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety and general welfare of the community." Id. at 392. In substantive due process claims, like the present action, the "[p]laintiff claims that the zoning regulation is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals, or general welfare." Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir.1992). The federal circuits are divided on the role of federal courts in reviewing substantive due process arbitrary and capricious claims in the zoning context, and the Supreme Court has failed to provide a definitive standard of review, but the "Court has explicitly observed, however, that citizens have a substantive due process right not to be subjected to arbitrary or irrational zoning decisions." Id. at 1217. (citing Arlington Heights, 429 U.S. at 263); Richardson v. Township of Brady, 218 F.3d 508, 512 (6th Cir.2000).

C.D. Cal. Addresses Circuit Split; Declines to Apply 11 U.S.C. § 548 Extraterritorially

Per In re Bankruptcy Estate of Midland Euro Exchange Inc., 347 B.R. 708 (C.D. Cal. Aug. 16, 2006):

Next, the Court needs to address whether Congress intended universal extraterritorial application of the fraudulent transfer provisions codified in § 548. This is an issue of first impression in the Ninth Circuit, with a split of opinion in the other circuits and a petition for writ of certiorari pending with the Supreme Court, asking, inter alia, to clarify congressional intent on this issue. Most recently, the Fourth Circuit upheld extraterritorial application of § 548. See In re French, 440 F.3d 145 (4th Cir.2006), cert. petition pending, --- U.S. ---- (filed May 15, 2006). A bankruptcy court in the Second Circuit, however, dealing with the Trustee's avoidance power under the similar preferential transfer statute--11 U.S.C. § 547--held that the lack of clearly expressed congressional intent prevents its extraterritorial application. See In re Maxwell Comm'n. Corp., 170 B.R. 800, 814 (Bankr.S.D.N.Y.1994), aff'd on other grounds, In re Maxwell, 93 F.3d 1036 (2nd Cir.1996).

…

Since neither the plain language of the statute nor its reading in conjunction with other parts of the Code establish congressional intent to apply § 548 extraterritorially, I now turn to other considerations.

D.N.J. Notes Split Re Whether ERISA Preempts State Law on the Issue of Substantial Compliance

Per Garvin v. A.B., Slip Copy, 2006 WL 2830966 (D.N.J. 2006):

Plaintiff claims that he is entitled to the life insurance proceeds of the policies at issue because Decedent substantially complied with the requirements of the insurance policies to change the beneficiary and made every reasonable effort to effectuate such a change. The insurance plan at issue is governed by ERISA, which preempts "any and all State laws insofar as they may not or thereafter relate to any employee benefit plan" subject to ERISA. 20 U.S.C. § 1144(a). There is a split among the Circuits regarding whether ERISA preempts state law on the issue of substantial compliance. [FN1]

FN1. The Ninth and Tenth Circuits have determined that ERISA does not preempt state law regarding substantial compliance. The Fourth and Seventh Circuits have determined that ERISA does preempt state law on this issue and have applied federal common law to address such disputes.

E.D. Michigan Notes Split Re Burden of Proof for Imposition of Daily Penalties Under ERISA

Per Hamilton v. Publicis Groupe Short Term Disability Plan, No. 04-74993, 2006 WL 2771742, (E.D. Mich. Sept. 25, 2006):

ERISA requires plan administrators to provide certain plan information upon written request:

(4) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence. 29 U.S.C.A. § 1024(b)(4).

A court has the discretion to impose a penalty of $110 per day for an administrator's failure to comply within 30 days of such a request. 29 U.S.C. § 1132(c)(1) (authorizing $100 fine which was raised to $110 for violations after July 29, 1997, see 62 Fed.Reg. 40,696). The Sixth Circuit has held that mere violations of procedural requirements of ERISA, such as incomplete summary plan descriptions, do not give rise to substantive remedies, the only remedy available being the $110 maximum per day per violation penalty. Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 550 (6th Cir.1989); Lewandowski v. Occidental Chemical Corp., 986 F.2d 1006, 1008 (6th Cir.1993). Circuits have split on whether actual detrimental reliance on a SPD [Summary Plan Description] or simply prejudice (i.e., the beneficiary was likely to be harmed by the error) or neither is required in order to impose the penalty. See Burke, 336 F.3d at 112, 113 (holding after reviewing the positions of the various Circuits that a prejudice standard served "ERISA's objective to protect employees against inadequate SPDs").

The Sixth Circuit, in dicta, has stated that neither detrimental reliance nor prejudice is required, Edwards, 851 F.2d at 137 (6th Cir.1988).

[FN10] Yet, imposition of the penalty remains discretionary. Bartling v. Fruehauf Corp., 29 F.3d 1062, 1068-1069 (6th Cir.1994).FN10. A later Southern District of Ohio opinion indicates that plaintiffs must show: "a substantial lack of compliance with ERISA's reporting and disclosure requirements, with resulting substantial harm to the employees, before a nondisclosure violation of § 1021(a) is subject to redress as arbitrary and capricious behavior. See Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.1984). Mere technical noncompliance with no showing of substantial harm or egregious behavior on the part of the employer does not entitle plaintiffs to relief. Simmons v. Diamond Shamrock Corp., 844 F.2d 517 (8th Cir.1988)." Rinard v. Eastern Co. 769 F.Supp. 1416, 1429 (S.D.Ohio 1991) rev on other grounds, 978 F.2d 265 (6th Cir.1992).

E.D. Cal. Discusses Circuit Split Re Ability of Third Party Defendants to Remove on the Basis of 28 U.S.C. § 1441(c)

Per Foster Poultry Farms, Inc. v. International Business Machines Corp., 2006 WL 2769944 (E.D. Cal. Aug. 1, 2006):

Recently, the U.S. Supreme Court held that a counterclaim can not be the basis of federal jurisdiction. Holmes Group, Inc. v. Vornado Air Circulation Sys., 535 U.S. 826, 830 (2002). There is a longstanding circuit split on the related issue of whether third party defendants can remove a case to federal court based on the substance of a third party claim. The Sixth, Seventh, and Eighth Circuits have held that third party defendants can not remove on the basis of 28 U.S.C. § 1441(c). First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 465 (6th Cir.2002) (concluding the same holds true for § 1441(a) as well); Thomas v. Shelton, 740 F.2d 478, 488 (7th Cir.1984); Lewis v. Windsor Door Co., Div. of Ceco Corp., 926 F.2d 729, 733 (8th Cir.1991). The Fifth Circuit has held that "a third-party indemnity defendant may remove a case to federal court pursuant to § 1441(c)." Texas by & through Board of Regents of the Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 816 (5th Cir.1998); Accord N. Natural Gas Co. v. Sheerin, SA-03-CA-304-RF, 2003 U.S. Dist. LEXIS 20049, at *14 (W.D.Tex., Oct. 20, 2003) (third party defendant removed, "in determining relatedness to the Enron bankruptcy, the Court examines only the third party claims against Lay"). The Third Circuit has noted the divide but has expressed no opinion. Cook v. Wikler, 320 F.3d 431, 437 (3rd Cir.2003). "The Ninth Circuit has yet to reach the 'interesting question' whether third-party defendants are 'defendants' for the purposes of section 1441 and thus may remove cases to federal court. However, the great weight of district court authority within this circuit indicates that third-party defendants lack such a right." Ciolino v. Ryan, NO. C03-1396 TEH, 2003 U.S. Dist. LEXIS 11639, at * 9-10 (N.D.Cal., July 9, 2003), citing O'Halloran v. University of Washington, 856 F.2d 1375, 1381 (9th Cir.1988) ("we need not address the issue whether a third-party defendant can base its petition for removal on an alleged federal question presented in the complaint between the original parties").

D.S.C. Notes Split Re Exhaustion Requirement of PLRA in Section 1983 Cases

Per Nicholas v. Ozmint, Slip Copy, 2006 WL 2711852, (D.S.C. Sep. 20, 2006):

The Magistrate Judge recommended granting the defendants' motion for summary judgment on the unexhausted claims as well as the grooming claim under the rule of complete exhaustion. Under that legal rule, where some claims have been exhausted and others have not, the exhaustion requirement of the PLRA requires dismissal of all claims, both exhausted and unexhausted. Therefore, assuming without deciding that the grooming issue has been exhausted, under this doctrine the entire complaint would need to be dismissed where the plaintiff has not exhausted his administrative remedies as to all claims.

It does not appear that the Fourth Circuit has taken a position as to the doctrine of complete exhaustion in Section 1983 cases. See Johnson v. True, 125 F.Supp.2d 186, 188 (W.D.Va.2000) (Motion to dismiss on basis of total exhaustion rule denied: "[T]he defendants do not provide a viable reason why the habeas total exhaustion analysis of Rose v. Lundy should be applied to a § 1983 civil rights action.") The undersigned believes after a review of the cases from other circuits and the United States Supreme Court, that the partial exhaustion rule should be applied to section 1983 cases such as the case at bar and not the doctrine of complete exhaustion. Therefore, all unexhausted claims should be dismissed, but any claims which are exhausted should remain viable.

The circuit courts of appeal are split regarding this doctrine. The Tenth Circuit has adopted the rule of complete exhaustion. See Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir.2004). The Second Circuit rejected complete exhaustion in Ortiz v.. McBride, 380 F.3d 649 (2nd Cir.2004). Other circuits which have addressed the issue have adopted the partial exhaustion rule. In Kozohorsky v. Harmon, 332 F.3d 1141 (8th Cir.2003), the Eighth Circuit allowed the plaintiff to cure his complaint by deleting unexhausted claims. The Ninth Circuit has held that when a plaintiff files a "mixed" complaint, where some claims are exhausted and some are not, but they are closely related factually, the plaintiff should be allowed to amend his complaint to allege only fully exhausted claims. Where the unexhausted and exhausted claims are not factually intertwined, the court should dismiss the unexhausted claims and proceed with the exhausted claims. Lira v. Herrera, 427 F.3d 1164 (9th Cir.2005), Petition for Certiorari filed, 74 U.S.L.W. 3425 (Jan. 6, 2006).

Therefore, the Court finds that the unexhausted claims should be dismissed and that the case shall proceed only on the grooming claim asserted in his original complaint, now a part of the Amended Complaint by Order of Judge Hendricks.