10th Circuit adopts “tender rule” to determine when prisoner claims are subject to the PLRA’s exhaustion requirement

Billy May was in federal prison during an outbreak of scabies. The prison required all inmates to take Invermectin to address the problem, but May refused because he was allergic to it. The prison quarantined May in a special housing unit and treated him with permethrin cream until he could be medically cleared.

While still incarcerated, May filed a complaint in federal court alleging that the prison violated his due process rights in confining him to the special housing unit. May later moved for leave to file a second amended complaint to add prison official Juan Segovia as a defendant and assert a Bivens due process claim against him. Although he filed the motion while still in prison, the district court did not grant leave to file it until after his release.

The district court granted summary judgment to Segovia, finding that May’s claims were subject to the Prison Reform Litigation Act (PLRA) but that May had not exhausted administrative remedies.

The PLRA’s administrative-exhaustion requirement does not apply to claims filed by a non-prisoner, so May argued that was snot required to exhaust administrative remedies because the second amended complaint was not filed until after his release from prison.

In May v. Segovia, written by Judge Carolyn McHugh, the Tenth Circuit adopted the “tender rule,” recognized in several other federal circuits, which holds that if a claim is “tendered” to a district court by a plaintiff while he is still incarcerated, it is subject to the PLRA’s exhaustion requirements. The Tenth Circuit therefore rejected May’s claim.

Judge Mary Beck Briscoe concurred in the judgment. She would not relied on the tender rule, but would instead have held that the claims in May’s second amended complaint related back to those in his original complaint under Federal Rule of Civil Procedure 15(c). And because May filed his original complaint while still incarcerated, she would hold that the PLRA’s exhaustion requirement applied to his due process claims.

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10th Circuit: Detention and search of car passenger was proper

In United States v. Gurule, the Tenth Circuit reversed a district court’s order suppressing a gun found in the defendant’s pocket, and statements from the defendant admitting that he was a felon who knowingly possessed the gun.

The court rejected the defendant’s argument that he could not be detained after officers determined he had no warrants and was not dangerous. To the contrary, the Tenth Circuit held he could be detained until the conclusion of the traffic stop.

The court also upheld the officers’ decision to frisk the defendant, because one of the officers actually saw the gun in his pocket, which meant that reasonable suspicion for the frisk existed.

Chief Judge Tymkovich authored the opinion.

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Tenth Circuit to hear oral arguments in Santa Fe next week

A panel of the Tenth Circuit will be hearing oral arguments in six cases at the federal courthouse in Santa Fe next Friday, July 19, beginning at 9 a.m. Here is the argument schedule.

The panel consists of Chief Judge Tymkovich, Judge Ebel, and Judge Lucero.

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The Federalist Society chapter at UNM Law School will host a talk on “Overcriminalization and the First Step Act” on April 18

The UNM Law School Chapter of the Federalist Society will host a talk on “Overcriminalization and the First Step Act” on Thursday, April 18, at 12 noon, in Room 2401 at the law school.

The speakers will be Vikrant Reddy, a senior research fellow at the Charles Koch Institute, and UNM Law School Professor Maryam Ahranjani.

I’m planning to attend this event, and hope to see you there!

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Governor appoints Zachary Ives to the NM Court of Appeals

According to this story in the Albuquerque Journal, Governor Lujan Grisham has appointed Albuquerque lawyer Zachary Ives to the vacant seat on the New Mexico Court of Appeals.

Mr. Ives received his law degree from UNM, and clerked for the late Justice Pamela Minzner on the New Mexico Supreme Court. He has extensive appellate experience in both state and federal courts, especially in the area of criminal defense. He’s earned a reputation as a super-smart lawyer and a good writer. You can check out his resume for more information (it’s on his law firm website, which may not be online much longer).

As with any other appointed judge in New Mexico, Judge Ives will have to run in a partisan race in the 2020 general election.

Congratulations, Judge Ives!

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Governor appoints Judges Shannon Bacon and David Thomson to the NM Supreme Court

Last week, Governor Lujan Grisham appointed District Judges Shannon Bacon and David Thomson to fill the two vacant seats on the New Mexico Supreme Court.

Judge Bacon is on the Second Judicial District Court in Albuquerque. According to this story by Rick Nathanson in the Albuquerque Journal, she graduated from St. Pius X High School, and received her bachelor’s and law degrees from Creighton University in Omaha. She clerked for Judge A. Joseph Alarid on the Court of Appeals, and then worked in private practice before Governor Richardson appointed her to the district court. Her biography on the district court website reads as follows:

Judge C. Shannon Bacon was appointed to the Second Judicial District Court in 2010. Judge Bacon presides over a civil docket. Currently, Judge Bacon is the co-chair of the Second Judicial District’s pro bono committee, a Commissioner on the Access to Justice Commission, the Chair of the Supreme Court’s Rules of Evidence and serves on the Supreme Court Personnel Committee. She is also the President of the District and Metropolitan Court Judges Association. Outside of Court, Judge Bacon serves on a non-profit board that serves LBGTQ youth experiencing homelessness.

She has also been involved in efforts to reform the state’s troubled guardianship system. In addition, here is a video interview with Judge Bacon, recorded during her 2010 campaign to stay on the district court bench, in which she talks more about her personal and professional background.

Judge David Thomson was elected to the First Judicial District Court (which serves Santa Fe, Los Alamos, and Rio Arriba counties) in 2014. He attended Santa Fe High School, received his law degree from the University of Denver, and clerked for Judge Bruce Black on the federal district court in New Mexico. He then served as director of litigation and deputy attorney general under Attorneys General Patricia Madrid and Gary King. Here’s an interview that Judge Thomson gave in 2014 when he was running for the bench.

Both of the new justices will have to run to keep their seats in the 2020 general election, which will be a partisan race.

Congratulations to Justice Bacon and Justice Thomson!

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Congratulations to the new chief judge of the New Mexico Court of Appeals, M. Monica Zamora

Earlier this week, Judge M. Monica Zamora was sworn in to begin serving a two-year term as Chief Judge of the New Mexico Court of Appeals. She replaces Judge Linda Vanzi, who served as Chief Judge from 2017 to 2019.

Chief Judge M. Monica Zamora

Chief Judge Zamora was elected to the Court of Appeals in 2012. To find out more about her background, you can this interview, which was conducted before the election.

Congratulations to Chief Judge Zamora!

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10th Circuit: Securities laws apply to fraud defendant’s sales to foreign customers

The SEC brought a civil enforcement action against Charles Scoville, a resident of Utah, and his company, Traffic Monsoon, alleging that they ran a Ponzi scheme which raked in tens of millions of dollars. About 90% of his customers were located in relatively poor countries. The SEC obtained a TRO freezing the defendants’ assets and preventing them from continuing to operate the business.

Mr. Scoville argued that the federal securities laws did not reach his sales to customers outside the United States. The Tenth Circuit, in SEC v. Scoville (written by Judge Ebel) rejected this claim, and held that under the 2010 Dodd-Frank Act, Mr. Scoville’s conduct fell within the scope of the federal securities laws because he engaged in “significant conduct” within the United States to make the overseas sales. The court thus affirmed the district court’s preliminary orders.

Judge Briscoe filed a concurring opinion. In her view, the court did not need to address the extraterritorial application of the securities laws because defendants’ sales — even to foreign customers — also constituted sales within the United States.

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“Foreclosure case could change NM homeowner protections”

This story by Ryan Laughlin of KOB News describes Nava v. Wells Fargo Bank, a case now before the New Mexico Supreme Court. Apparently, the story was prompted by the filing of petitioner’s brief earlier this week.

The Court of Appeals’ opinion that the Supreme Court will be reviewing is here. Full disclosure: I was on the panel that decided the case, so I’ll be interested to see how this goes.

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NMCA: Officer’s tap on car window was not a seizure

Jennifer Simpson parked her car in a lot at a city park at 11:00 p.m. and turned off the car’s lights. A police officer saw this and believed her actions were suspicious because the park had closed an hour earlier (though the closing time was not posted). As the officer walked towards the car, Ms. Simpson turned on the car’s lights and began to drive away. The officer then reached out and tapped on the car window. Ms. Simpson stopped and rolled down her window. The officer smelled a strong odor of alcohol coming from the car, which ultimately led to a guilty plea to DWI (while reserving the right to appeal).

On appeal, Ms. Simpson argued that the officer seized her by tapping on her car window, that he lacked reasonable suspicion, and that the evidence that the officer gathered should therefore be suppressed.

In State v. Simpson, an opinion written by Judge Pro Tempore Daniel Gallegos (who is now a district judge on the Second Judicial District Court), rejected this claim, concluding that the initial encounter between Ms. Simpson and the officer was not a seizure, but was consensual.

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