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Tuesday, February 01, 2005

Ind. Decisions - 7th Circuit posts four today

Hart, Genise v. Sheahan, Michael (ND Ill.)

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. This is an appeal from the dismissal, for failure to state a claim, of a suit by female inmates of the Cook County Jail in Chicago against the jail’s superintendent and the County. The plaintiffs are pretrial detainees who complain that the defendants, by gratuitously exposing them to dangerous and degrading conditions of confinement, are depriving them of their liberty without due process of law and thus violating the Fourteenth Amendment. They seek an injunction and damages. * * *

But in objecting to what the plaintiffs have done, the defendants overlook the procedural posture. This is an appeal from the grant of a motion to dismiss for failure to state a claim, a grant that is proper only if there is no state of facts consistent with the complaint that would entitle the plaintiffs to relief. In submitting the report of the grand jury investigation, the plaintiffs were merely indicating that, yes, there may well be facts they could prove that would show they had a claim. There was no impropriety, [citations omitted], and so there is no occasion for the imposition of sanctions.
REVERSED AND REMANDED.

USA v. Johnson, Willard L. (SD Ill.)
Before POSNER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Willard L. Johnson was convicted after a jury trial on four counts of distributing, and one count of possessing with intent to distribute, “cocaine base (commonly known as ‘crack’)” within 1,000 feet of a school, 21 U.S.C. §§ 841(a)(1), 860, and sentenced to concurrent 168-month terms of imprisonment. Johnson’s sole argument on appeal is that the district court erred in finding, for purposes of applying the sentencing guidelines, that the cocaine base he distributed was in crack form. Johnson concedes that he stipulated at trial that drug exhibits introduced by the government were crack, but he contends that the court should not have relied on the stipulation at sentencing without first specifically finding that it was knowing and voluntary. We affirm. * * *

Johnson has made no argument that his sentence implicates Blakely’s application to the sentencing guidelines. See United States v. Booker, No. 04-104, 2005 WL 50108 (U.S. Jan. 12, 2005); Blakely v. Washington, 124 S.Ct. 2531 (2004). * * *

USA v. Gant, A.J. (CD Ill.)
Before FLAUM, Chief Judge, and POSNER and SYKES, Circuit Judges.
FLAUM, Chief Judge. Following a two-day trial, a jury convicted defendant-appellant Alfred James Gant of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Gant was sentenced to 188 months’ imprisonment and four years of supervised release, and now appeals his conviction. For the reasons stated herein, we affirm. * * *
Sts Constantine & He v. City of New Berlin (ED Wis.)
Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This is a suit by a Greek Orthodox church (we’ll call it the “Church”) against a small town in Wisconsin (officially a “City”) named New Berlin. There are additional parties on both sides, but there is no need to discuss them. The district court granted summary judgment for the defendants.

The suit is based on subsection (a)(1) of the cumbersomely titled Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. That subsection forbids a government agency to “impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). * * *

We held in Charles v. Verhagen, 348 F.3d 601, 610-11 (7th Cir. 2003), that RLUIPA is not unconstitutional on its face, that is, in all possible applications. The Sixth Circuit disagrees, and its case is now in the Supreme Court. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted, 125 S. Ct. 308 (2004). No constitutional issue is raised in this appeal. * * *

We are sure that with the district judge’s help the parties can work out a deal that will lift a substantial burden from the Church’s shoulders without impairing any legitimate interest of the City.
REVERSED AND REMANDED, WITH DIRECTIONS.

Posted by Marcia Oddi on February 1, 2005 01:08 PM
Posted to Ind. (7th Cir.) Decisions