Opinions July 28, 2021 – The Indiana Lawyer
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Gorgi Talevski, by next friend Ivanka Talevski v. Health and Hospital Corporation of Marion County, et al.
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses the dismissal of Gorgi Talevski’s lawsuit on the grounds that he failed to state a claim upon which relief can be granted because the Federal Nursing Home Reform Act does not private right of action that may be redressed under 42 U.S.C. § 1983. Finds the plaintiff meets the test as outlined in Blessing v. Freestone, 520 U.S. 329 (1997), and that 42 U.S.C. sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) “unambiguously confer individually enforceable rights on nursing-home residents.” Also finds that because the plaintiff satisfied the Blessing criteria, the right is presumptively enforceable under Section 1983, and that precedent has not provided a categorical rule that statutes passed under the Spending Clause never support a private action. Finally, finds the district court can develop and rule accordingly if the doctors chemically restrained Talevski for medical reasons for convenience.
Indiana Court of Appeals
Gregory Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission v. Betty Jo Wilkening
Civil plenary. Reverses the Lake Superior Court’s grant of judgment on the evidence in favor of Betty Jo Wilkening and against Gregory L. Wilson Sr. in his capacity as the executive director of the State of Indiana Civil Rights Commission. Finds that the trial court erred in granting Wilkening’s motion because it misinterpreted the “shall” in Indiana Code § 22-9.5-6-8 to be mandatory rather than directory in a housing discrimination suit brought against her. Remands for a new trial.
Jerry Jones, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Jerry Jones Jr.’s convictions for Level 2 felony dealing in methamphetamine, Level 6 felony unlawful possession of a syringe, Class A misdemeanor carrying a handgun without a license and Class A misdemeanor driving while suspended. Finds the Jackson Circuit Court did not abuse its discretion in admitting evidence.
Eric M. Winship v. State of Indiana (mem. dec.)
Criminal. Affirms Eric M. Winship’s 18½- year sentence for Level 3 felony leaving the scene of an accidents during or after the commission of operating a motor vehicle while intoxicated causing death and Level 6 felony unlawful possession of a syringe. Finds the Bartholomew Circuit Court did not abuse its discretion in finding that Winship’s drug addiction and remorse were not mitigators. Also finds Winship has not proven that the nature of the offenses and his character render his sentence an outlier.
Thomas A. DeCola v. Starke County Council (mem. dec.)
Miscellaneous. Affirms the Starke Circuit Court’s grant of the motion to dismiss Thomas A. DeCola’s amended complaint. Finds DeCola failed to support his arguments on appeal with cogent reasoning and citations to authority as required by Appellate Rule 46.
Lonnie Garner, Jr. v. Marion County Prosecutor, Ryan Mears, and the Indiana Bureau of Motor Vehicles (mem. dec.)
Miscellaneous. Dismisses Lonnie Garner’s appeal of the Marion Circuit Court’s denial of both his petition for judicial review and his summary judgment motion after the temporary suspension of his driver’s license by the Indiana Bureau of Motor Vehicles. Finds Garner’s petition for judicial review is moot because the suspension of his driving privileges expired March 23, 2020, and the Court of Appeals cannot now render any effective relief.
Larry C. Perry, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms the Larry Perry Jr.’s conviction for Level 6 felony invasion of privacy. Finds that even if the Allen Superior Court erred under Indiana Evidence Rule 404(b) when it admitted evidence of other acts, such error was harmless.
Michael Steele v. State of Indiana (mem. dec.)
Criminal. Affirms Michael Steele’s conviction of Class A misdemeanor invasion of privacy in Marion Superior Court. Finds the state presented sufficient evidence to sustain Steele’s conviction.
E.R. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)
Agency action. Affirms the decision of the Review Board of the Indiana Department of Workforce Development which affirmed an administrative law judge’s dismissal of E.R.’s case. Finds E.R. failed to follow appellate rules in several respects and therefore his arguments on appeal are waived. Waiver notwithstanding, also finds E.R. did not attend the hearing for which he received notice and, therefore, cannot now claim error in the process in which he did not participate.
Robert E. Ward, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms the Decatur Circuit Court’s revocation of Robert E. Ward Jr.’s probation and the order revoking part of Ward’s previously suspended sentence. Finds the trial court did not abuse its discretion.