Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Erickson v. Pardus, the U.S. Supreme Court reversed the dismissal of a prisoner’s § 1983 action arising from his removal from treatment program for hepatitis C. The 10^th Circuit had affirmed the dismissal, finding the prisoner’s allegations too conclusory to state a claim.  In the per curiam decision, the Supreme Court held the allegations that the prisoner had just started a treatment program that was to last one year, had been removed from the program in a disciplinary action, and that such removal endangered his life was sufficient to state a claim.  The court noted the fact that the prisoner proceeded pro se was significant in determining the sufficiency of the allegations.

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In Weilberg v. Shapiro, the Ninth Circuit ruled that a § 1983  alleging violations of extradition procedures in an extradition from Arizona to Illinois may proceed.  The district court had sua sponte dismissed the complaint, finding that a § 1983 claim could be brought only where the underlying conviction had been overturned. The trial court relied upon Heck v. Humphrey, 512 U.S. 477 (1994), which had held that §1983 suits seeking damages for wrong results in a conviction required the conviction in question to have been overturned. The Ninth Circuit held this rule is limited to suits that rely upon a claim of conduct that would render the underlying conviction invalid, not to suits concerning procedure related to extradition.  

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In Whittaker v. Garcetti, the Ninth Circuit dismissed civil rights claims brought under 42 U.S.C. § 1983 by several persons convicted of drug elated offences, but allowed the § 1983 claim of an attorney to proceed. 

The facts underlying the case involve a wire tapping “hand off.” A “hand off” occurs when one investigative unit obtains information regarding criminal activity through a wire tap, and conveys the information to another investigative unit without mention of the wire tap. The second unit is advised to proceed to the location given and “investigate” the alleged criminal activity. This allows the second unit to independently observe he activity, and allows a case to proceed to prosecution without the defendant ever knowing about the wire tapping.

The criminal investigations of the convicted persons originated with information obtained from wiretapping of the attorney and his clients. The claims of these parties that their rights were violated are barred by existing precedent that forbids civil action that implicitly challenge the validity of  criminal convictions that have not been overturned through criminal review processes.

However, because the attorney had never been charged with, let alone convicted of,  any crime, his § 1983 claim arising from the wiretapping may proceed against the defendants alleged to have participated in those events.   

The Court expressed no opinion on the constitutionality of the hand off procedure, finding he claim not properly before the district court.

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