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Hardy, a 55-year old man who worked previously as a maintenance mechanic, had a discectomy in 2005 and a lumbar spinal fusion in 2006. His previous application for Disability Insurance Benefits was denied in 2012. Hardy filed another application for DIB benefits, claiming an onset date of April 2012. The agency denied Hardy’s claim; state-agency doctors reviewed Hardy’s file and determined that he had postural limitations, could frequently lift up to 10 pounds and could stand or walk for six hours during a workday so that Hardy could perform light work. His treating doctors reported that Hardy was unable to work and that his “legs give out and he tends to fall.” In concluding that Hardy was not disabled, an ALJ determined that Hardy had not engaged in substantial gainful employment since his alleged onset date; that his conditions were severe impairments; that these conditions did not equal a listed impairment; that he had the residual functional capacity to perform light work, with limitations; and that he could work as a wire assembler, assembly press operator, circuit board screener, or finish assembler. The Seventh Circuit vacated the denial of benefits. A treating doctor’s opinion generally is entitled to controlling weight if it is consistent with the record, and it cannot be rejected without a “sound explanation.” The ALJ impermissibly discounted the opinions of Hardy’s treating neurosurgeon. View "Hardy v. Berryhill" on Justia Law

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Strand, a truck driver, stopped to take a mandatory drug screening test and received permission to park his rig outside a nearby Planned Parenthood office. Officer Minchuk, working security at Planned Parenthood, in uniform, reported to work, noticed the truck, and wrote parking tickets. Strand found the tickets and tried to explain that he did not see any no‐parking signs and had received permission. Minchuk allegedly solicited a bribe. Strand used his cell phone to take pictures to contest the tickets. Minchuk ordered Strand to leave. Strand said he would leave when he finished. Minchuk admonished, “I told you to get the f*** outta here,” and slapped Strand’s cell phone to the ground. Minchuk demanded Strand’s identification; Strand refused. Minchuk grabbed Strand, resulting in Strand’s shirt tearing off his body. Minchuk attempted to push Strand, with Strand holding Minchuk’s arm. Both fell to the ground. Strand punched Minchuk in the face and placed his hands on Minchuk’s throat. Minchuk testified that this caused him to fear for his life. Strand then stood up, backed away, put his hands up, and said, “I surrender, I’m done.” Minchuk removed his gun and fired a shot, striking Strand in the abdomen. Strand was convicted of committing felony battery of a police officer. Strand sued, 42 U.S.C. 1983. The Seventh Circuit affirmed the denial of Minchuk’s motion for qualified immunity. A material question of fact exists as to whether Strand continued to pose a threat at the exact moment Minchuk fired the shot. View "Strand v. Minchuk" on Justia Law

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After its appointment as receiver for Valley Bank Illinois, the Federal Deposit Insurance Corporation (FDIC) disaffirmed a benefits agreement between Valley Bank and Bunn, a bank executive. Bunn sued the FDIC to recover a “change of control termination benefit” he claims he is entitled to receive pursuant to that agreement. The district court granted the FDIC summary judgment, finding the benefit Bunn sought was a “golden parachute payment” prohibited by federal law, 12 U.S.C. 1828(k)(4)(A)(i). The Seventh Circuit affirmed. The benefit is a contingent payment that Bunn could only receive upon his termination of employment with Valley Bank; any payment of the benefit would be after a receiver was appointed for Valley Bank. Bunn presented no evidence sufficient to establish the benefit qualifies for the bona fide deferred compensation plan exception to such a golden parachute payment. View "Bunn v. Federal Deposit Insurance Corp." on Justia Law

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Bolin was charged with possession of sexually explicit material involving minors, 18 U.S.C. 2252(a)(4)(B), 2252(b)(2). The court approved Bolin's financial affidavit and appointed him counsel. Bolin pleaded guilty. His plea agreement included a “Waiver of Right to Appeal,” with a paragraph stating: The defendant understands that the defendant has a statutory right to appeal the conviction and sentence imposed and the manner in which the sentence was determined. Acknowledging this right, and in exchange for the concessions made by the Government in this Plea Agreement, the defendant expressly waives the defendant’s right to appeal the conviction imposed in this case on any ground, including the right to appeal conferred by 18 U.S.C. 3742.… This blanket waiver of appeal specifically includes all provisions of the guilty plea and sentence imposed, including the length and conditions [of] supervised release and the amount of any fine. The court determined that Bolin was competent and capable of entering into an informed plea. The PSR explained that Bolin faced fines but recommended that the court not impose any fine but impose $100 for the mandatory special assessment and $5,000 for the additional special assessment. It did not elaborate as to its reasoning. The court sentenced Bolin to 120 months of imprisonment plus 15 years of supervised release with the mandatory and additional special assessments (18 U.S.C. 3013, 3014). Bolin argued that he is indigent. The Seventh Circuit affirmed, finding Bolin has waived this claim. View "United States v. Bolin" on Justia Law

Posted in: Criminal Law

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The Real Estate Settlement Procedures Act, 12 U.S.C. 2605 (RESPA), requires that a loan servicer, no later than 30 days after receiving a borrower's “qualified written request” for information, take one of three specific actions and provides a private right of action for actual damages resulting from violations. Wis. Stat. 224.77 prohibits mortgage brokers from violating "any federal or state statute.” Terrence purchased his house in 2006 with a Deutsche Bank mortgage, serviced by Wells Fargo. His wife, Dixie, used an inheritance to help buy the house but was never named on the title, mortgage, or promissory note. Despite a forbearance plan and two loan modifications, Terrance defaulted. Deutsche Bank filed a second foreclosure action. In 2012, the Wisconsin court entered a foreclosure judgment. Terrance filed for Chapter 13 bankruptcy, resulting in an automatic stay. In 2015, the parties entered into a third modification. Terrance again failed to make payments and converted to a Chapter 7 bankruptcy, triggering another stay. In 2016 the bankruptcy court entered a discharge. The sheriff’s sale was rescheduled. In August 2016, Terrance sent Wells Fargo a letter, asking 22 wide-ranging questions about his account. Wells Fargo confirmed receipt immediately, indicating that it would respond on September 30. Two days before the RESPA deadline for response, the owners moved to reopen the foreclosure case and obtained another stay. They also filed a federal suit under RESPA and state law. The Seventh Circuit affirmed dismissal. Dixie lacked standing. Terrance failed to show that he suffered out-of-pocket expenses as a result of any alleged RESPA violation. View "Moore v. Wells Fargo Bank, N.A." on Justia Law

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In 2001, Plaza-Ramirez entered the U.S. from Mexico without inspection or admission. In 2010, he was apprehended by Border Patrol agents. He sought asylum, withholding of removal, and protection under the Convention Against Torture, citing an attack he suffered in 1999 at a dance club in his hometown in Mexico. He was followed into the restroom by Los Negros gang members, who, mistakenly thinking he was affiliated with his cousin’s rival gang, beat him with a metal pipe. They subsequently threatened him repeatedly but did not attack him again. Afraid of retaliation, he never filed any police reports. Plaza-Ramirez argued that he was targeted because he is a member of a particular social group: his own family (8 U.S.C. 1101(a)(42)(A)). The IJ denied relief. The asylum claim was untimely because Plaza-Ramirez did not apply until over a decade after his first year of entry, 8 U.S.C. 1158(a)(2)(B). Plaza-Ramirez had failed to show that the 1999 attack occurred because of his family membership, and the attack did not rise to the level of persecution. The BIA affirmed, finding that Plaza-Ramirez failed to show sufficient persecution and failed to show any nexus between the 1999 attack and his membership in a particular social group. The Seventh Circuit denied a petition for review, finding the denials supported by substantial evidence. View "Plaza-Ramirez v. Sessions" on Justia Law

Posted in: Immigration Law

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Snapchat user “Snappyschrader” identified himself as a 31-year-old male and agreed to assist a 14-year-old female in purchasing undergarments. He was actually communicating with Altoona Detective Baumgarten. After agreeing to meet at a supermarket, officers identified “Snappyschrader,” actually, Brixen, arrested him, and seized his phone. To illustrate to Brixen that he had been communicating with an undercover detective, Baumgarten sent a message to Brixen’s phone from the undercover Snapchat account. Brixen witnessed the notification appear on his phone screen. Brixen moved to suppress this evidence arguing it constituted an unreasonable search of his cell phone. The Seventh Circuit affirmed the denial of the motion, noting that Brixen conceded that evidence recovered under a subsequent search warrant remains admissible because even after excision of the tainted evidence from the supporting affidavit, it still establishes probable cause. Upon arrest, Brixen no longer had a right to keep his phone in his pocket; once the phone was seized the notification projected on the screen was plain to see. Disabling notifications that automatically appear on the phone would have preserved the message as private but Brixen simply had no reasonable expectation of privacy in a conspicuous notification once his phone was seized. View "United States v. Brixen" on Justia Law

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Two armed men robbed three Indianapolis area check cashing stores while wearing 1970s-themed disguises. An anonymous tip led law enforcement to Jett and McKissick, and a third man, Walker, who officers believed was involved in planning a fourth robbery. The government charged all three men with conspiracy in violation of the Hobbs Act, 18 U.S.C. 1951(a). and attempted bank robbery, with respect to the planned fourth robbery. A jury convicted them on both counts. The Seventh Circuit reversed in part, finding error with respect to the sufficiency of the evidence on the attempted-robbery count but otherwise affirmed. Law enforcement arrested McKissick and Walker before they had an opportunity to approach the Credit Union they planned to rob, and Jett never neared the Credit Union that day. With respect to the conspiracy convictions, the judge’s decision not to instruct the jury on an overt-act requirement was proper. The government presented sufficient evidence to convict Walker of conspiracy. He was caught with a coconspirator circling a cash-and-check store, in a stolen car, with a duffle bag and ski mask in the car. When law enforcement attempted to pull Walker over, he evidenced guilt by leading them on a high-speed and dangerous chase. View "United States v. Jett" on Justia Law

Posted in: Criminal Law

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Dvorak’s suits contend that the defendants mishandled a capital call for a limited partnership in which he had invested. Dvorak’s first suit, in federal court, claiming diversity jurisdiction, named the partnership among the defendants. His lawyer failed to investigate the citizenship of other partners and overlooked that the suit did not come within federal subject-matter jurisdiction. Dvorak refiled the suit in state court. A state judge dismissed one of his claims on the merits. Rather than wait for a decision on his remaining claims, Dvorak dismissed the state suit and filed this third action in federal court, omitting both the partnership and the theory on which he had lost in state court. The district judge deemed Illinois law applicable and dismissed the third suit with prejudice. A plaintiff may dismiss a federal suit once without prejudice to refiling: “[I]f the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits,” Fed. R. Civ. P. 41(a)(1)(B). Illinois follows the same rule, 735 ILCS 5/13-217. The Seventh Circuit affirmed the dismissal. The stipulated dismissal of Dvorak’s first federal suit counts under section 5/13-217, making the current suit his third. View "Dvorak v. Granite Creek GP Flexcap I, LLC" on Justia Law

Posted in: Civil Procedure

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Young enlisted in the Army in 1977. During a 1978 training exercise, he suffered a back injury when his jeep crashed. Young later took part in a parachute training exercise. Years later, he claimed that he was traumatized when he witnessed a fellow soldier’s death in the jump. After his 1981 discharge, Young worked in various manufacturing positions. After denying having any medical or mental health conditions, Young enlisted in the Wisconsin Army National Guard. In 1990, Young first sought VA compensation for his back injuries; he later claimed Post‐Traumatic Stress Disorder. He was eventually found to be unemployable, was assigned a combined 100% compensation rate, and obtained additional compensation, to adapt his house to accommodate his allegedly increasing disability. Young pleaded guilty to wire fraud, 18 U.S.C. 1343, for defrauding the VA regarding the extent of his injuries. The district court sentenced Young to 21 months in prison, in the middle of the Sentencing Guideline range calculated based on the loss amount stipulated by the parties--$201,521.41. The Seventh Circuit affirmed. Young waived any objection to the loss amount. This was not merely a forfeiture—an inadvertent failure to raise an issue—but an intentional waiver that was part of a broad compromise of potentially disputed sentencing issues. View "United States v. Young" on Justia Law

Posted in: Criminal Law