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Wednesday, April 14, 2004
Indiana Decisions - 7th Circuit Opinions Posted Today
Among the 7th Circuit opinions posted today are LEHN, DONALD A. v. HOLMES, MICHAEL L. (4/14/04 USCA 7th Cir.) and KIJONKA, HENRY S. v. SEITZINGER, MICHAEL (4/14/04 USCA 7th Cir.) In LEHN, a pro se prisoner appeal from the SD Ill., the opinion by Judge Diane P. Wood begins:
Donald Lehn knows a lot about the ill effects of exposure to second-hand tobacco smoke. He has a Ph.D. in biochemistry and is a former Resident Research Assistant in the Laboratory of Molecular Carcinogenesis in the Division of Cancer Etiology, National Cancer Institute, which is affiliated with the National Institutes of Health, in Bethesda, Maryland. Lehn’s current interest in smoke is, however, personal rather than professional. He is currently serving time in the Illinois Department of Corrections (IDOC), and he has sued to challenge both certain IDOC practices that allegedly are denying him his right of access to the courts and IDOC policies that tolerate excessively high levels of environmental tobacco smoke (ETS) in the state’s prisons. Lehn’s pro se complaint was dismissed by the district court because the judge believed his claims were either rendered moot after Lehn was transferred to a different prison facility or were unripe for adjudication. In the alternative, the court granted the prison officials’ motion to dismiss Lehn’s access-to-courts claim for failure to state a claim under FED. R. CIV. P. 12(b)(6). We agree with Lehn that his access claim is ripe for judicial consideration and that both the access-to-courts and the ETS parts of his complaint state claims for which relief may be granted. Therefore, we reverse and remand this case for further proceedings.In KUONKA, where the panel affirms in part, reverses in part, and remands, Judge Posner quickly begins to sketch the "implausible fact situation":
Fact is often stranger than fiction because most writers of fiction try to make their stories plausible. The events out of which Kijonka’s suit arises, though fact, are implausible. About a decade ago, Kijonka, then a state trooper, first became acquainted with Berle “Peanut” Shoulders, Jr.— an ex-con and bad boy of tiny Lawrenceville (population 5,000)—when Kijonka arrested him for a traffic violation. Despite this inauspicious beginning, their relationship blossomed. Shoulders drummed up votes for Kijonka when the latter ran successfully for mayor in 1997, and Kijonka rewarded him by making him the city dog catcher. Shoulders’ city employment, however, proved to be turbulent. Allegations that he used a weapon unlawfully, was involved in drug deals, threatened Kijonka and others, and, worst of all, obtained payment for dogs that he didn’t catch (the city dog catcher is paid on a per-dog-caught basis) caused Shoulders to be fired. In revenge he took to stalking Kijonka—driving slowly by his house and shouting threats and obscenities.
Posted by Marcia Oddi on April 14, 2004 04:19 PM
Posted to Indiana Decisions