6th Cir. Published Decisions for Week of Apr. 2 - 6, 2007 (No Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0119p.06	2007/04/02	Humphrey v. Mabry     Southern District of Ohio at Columbus OBERDORFER, District Judge. This civil rights action, brought under 42 U.S.C. § 1983, arises out of a traffic stop, forcible seizure at gun point, search and brief restraint of the plaintiff, who was driving a car mistakenly identified by Columbus, Ohio police officers as a wanted car driven by a dangerous, gun-bearing suspect. The plaintiff’s complaint alleges that three Columbus police officers and the City of Columbus are liable for violating his constitutional rights, specifically the Fourth Amendment’s prohibition against unreasonable seizures and the use of excessive force.  We conclude that Humphrey’s complaint sufficiently alleges, and a reasonable jury could find, that Columbus police officers did violate his Fourth Amendment rights. But we also conclude that, because a reasonable officer in the shoes of the individual officer defendants, in the particular circumstances here, could have reasonably believed that his actions were constitutional, we REVERSE the denial of qualified immunity for the three individual officer defendants and REMAND for further proceedings consistent with this opinion.
07a0120p.06	2007/04/03	Okoro v. Hemingway     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Ralphael Okoro, proceeding pro se, appeals a district court order denying his motion for relief from judgment filed pursuant to Fed. R. Civ. P. 60(b). This case has been referred to a panel of this Court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). Okoro is an inmate housed at the Federal Correctional Institution in Milan, Michigan. In January, 2005, he filed a “mandamus complaint” against various prison officials, alleging that his constitutional rights had been violated by the defendants’ enforcement of a policy that declared court documents to be contraband and required immediate destruction of such documents....
07a0121p.06	2007/04/03	Center Const. Co. v. NLRB     National Labor Relations Board Agency JOHN R. GIBSON, Circuit Judge. Center Construction Co. petitions for review of the National Labor Relations Board’s order finding Center committed numerous unfair labor practices to combat the organization of Center’s two-man plumbing staff by Local 370 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Local 370 intervened to oppose Center’s petition and also petitions for review of the one claim on which the Board reversed the ALJ, finding Center had not committed an unfair labor practice. The Board cross-petitions for enforcement. We deny Center’s petition for review, grant Local 370’s petition, and grant the Board’s petition for enforcement except insofar as the Board held that Center had not committed an unfair labor practice in threatening the sheet metal workers with loss of jobs.
07a0122p.06	2007/04/03	Riley v. Berghuis     Eastern District of Michigan at Detroit R. GUY COLE, JR., Circuit Judge. In 1998, Petitioner-Appellee Robert Riley was convicted in Michigan state court of aiding and abetting the felony murder of Mark Seaton, and sentenced to life in prison without parole. On direct appeal, Riley argued that he was deprived of the effective assistance of counsel because his trial attorney failed to move for a directed verdict of acquittal at the close of the State’s case-in-chief. The Michigan Supreme Court rejected Riley’s claim, holding that Riley’s counsel was not deficient within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), for failing to move for a directed verdict, because the evidence adduced by the State was sufficient to support Riley’s conviction. Thereafter, Riley filed a petition for a writ of habeas corpus in the district court. The district court granted the petition, concluding that the Michigan Supreme Court unreasonably applied the Strickland test to the facts of Riley’s case. For the reasons set forth below, we REVERSE the judgment of the district court.
07a0123p.06	2007/04/03	Rochow v. Life Ins Co     Eastern District of Michigan at Detroit OBERDORFER, District Judge. Daniel Rochow, the former President of Arthur J. Gallagher & Co. (“Gallagher”), currently suffers from HSV-Encephalitis, a rare and severely debilitating disease. The question in this case is whether or not the insurer, Life Insurance Company of North America (“LINA”) acted arbitrarily and capriciously when it concluded that Rochow was not disabled on the date that he left his job, therefore denying his claim for disability benefits. The district court held that LINA’s determination was arbitrary and capricious and unsupported by the administrative record. For the reasons hereinafter stated, we AFFIRM that decision.
07a0124p.06	2007/04/05	Cress v. Palmer     Western District of Michigan at Lansing MARTHA CRAIG DAUGHTREY, Circuit Judge. The petitioner, Thomas Cress, is a Michigan state prisoner serving a life sentence for first-degree felony murder. He appeals from the district court’s order dismissing his second habeas petition, filed pursuant to 28 U.S.C. § 2254. The petitioner contends that his due process rights were violated when (1) physical evidence related to his case was destroyed after his appeals were completed, (2) the state post-conviction court rejected as incredible the recantation evidence that he proffered, and (3) the state post-conviction court did not grant him relief based on evidence indicating his innocence. The district court denied relief onthe merits. Because the record establishes that the etitioner’s claims are not cognizable on habeas review, we conclude that the district court should have dismissed the petition for lack of jurisdiction, and we therefore affirm the order of dismissal, but for a different reason from that given by the district court.
07a0125p.06	2007/04/05	Tapia-Martinez v. Gonzales     Board of Immigration Appeals SUHRHEINRICH, Circuit Judge. Petitioner, Dolores Tapia-Martinez, seeks judicial review of a decision of the Board of Immigration Appeals (“BIA”), denying her second motion to reopen as numerically barred under 8 C.F.R. § 1–3.2(c)(2). Petitioner asserts that because her second motion to reopen is based on ineffective assistance of counsel, equitable tolling should apply. Petitioner also argues that review by a three-member panel pursuant to 8 C.F.R. § 1003.1(e)(6)(v) is warranted. We AFFIRM
07a0126p.06	2007/04/06	USA v. Nance     Western District of Tennessee at Jackson JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Richard Nance was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court determined that Nance was an armed career criminal and sentenced him to 235 months, which was at the bottom of the advisory guidelines range. Nance appeals his conviction and sentence. For the following reasons, we affirm the district court’s judgment.
07a0127p.06	2007/04/06	Nields v. Bradshaw     Southern District of Ohio at Cincinnati RONALD LEE GILMAN, Circuit Judge. In 1997, an Ohio jury convicted Richard Nields of aggravated murder with prior calculation and design, aggravated felony murder, and aggravated robbery. At the conclusion of the penalty phase, the state trial court imposed the jury’s recommended sentence of death. Nields appealed, but both the Ohio Court of Appeals and the Ohio Supreme Court found his claims to be without merit. Subsequently, Nields filed a petition for a writ of habeas corpus in federal district court that raised 30 alleged constitutional errors in the state-court proceedings. Adopting the Report and Recommendation of the designated magistrate judge in its entirety, the district court both denied the petition and declined to certify any of Nields’s claims for appeal. This court, however, granted Nields a Certificate of Appealability (COA) as to five of his claims. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0128p.06	2007/04/06	NLRB v. Local 334     National Labor Relations Board Agency JULIA SMITH GIBBONS, Circuit Judge. The National Labor Relations Board (“NLRB” or “Board”) seeks enforcement of an order that directs Local 334, Laborers International Union of North America, AFL-CIO, (“Local 334”) and Kvaerner Songer, Inc., (“Kvaerner”) to cease and desist unfair labor practices and interference with employees’ rights under the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. Local 334 and Kvaerner cross-petition for review of the NLRB’s order. For the following reasons, we deny Local 334’s and Kvaerner’s petitions for review and enforce the NLRB’s order.
07a0129p.06	2007/04/06	Fielden v. CSX Trans     Southern District of Ohio at Columbus ROGERS, Circuit Judge. This appeal concerns the scope of the expert report requirement of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. In particular, the issue is whether a plaintiff pursuing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq., must file an expert report before the plaintiff’s treating physician can testify as to the cause of the plaintiff’s carpal tunnel syndrome. In this case, Jesse Fielden did not file a timely expert report from his treating physician about the cause of Fielden’s carpal tunnel syndrome. The district court held that Rule 26(a)(2)(B) required the filing of the expert report and refused to consider the treating physician’s testimony that Fielden’s use of a "plate jack" while working at CSX Transportation caused Fielden’s carpal tunnel syndrome. Without the treating physician’s testimony, there was no expert evidence that CSX Transportation caused Fielden’s injury, and the district court therefore granted summary judgment for the defendant. Because Rule 26(a)(2)(B) did not require the filing of an expert report in this case, we reverse the district court’s grant of summary judgment.