Post-Bankruptcy Protections for Discharged Debtors Remain Strong By: Christian Strahl

Post-Bankruptcy Protections for Discharged Debtors Remain Strong 

By: Christian Strahl

            One of the more unique aspects of the American legal system is our Bankruptcy Code. A person, municipality, or business entity can petition for bankruptcy and receive a discharge of all remaining obligations at the conclusion of their bankruptcy case if they filed in good faith and complied with all other requirements.[1] This discharge is a special point of salvation for those who get so far into debt that there is no other way to become solvent; it promotes economic utility and protects consumers from permanent indebtedness. However, beyond simply discharging all remaining debts at the end of the case, there are two significant protections offered by the Bankruptcy Code. The first occurs at the beginning of the case. This is the Automatic Stay, which kicks in as soon as the bankruptcy petition is filed and prevents all collection efforts and any creditor action that would improve their position or otherwise coerce payment.[2] The second, occurs after the case is finished, when the formal discharge from bankruptcy is granted. This discharge releases the debtor from any unpaid obligations, and includes an injunction that protects the now ex-debtor from any creditor that tries to collect on a debt discharged through bankruptcy.[3] These protections are some of the most important rights of debtors, especially less sophisticated debtors. This article examines a recent case from the Bankruptcy Court for the District of Maryland that sharpened the metaphorical teeth on the protections consumers gain when granted a discharge through the bankruptcy system.

The case this article uses to demonstrate the power of consumer protections provided by the discharge is In re Alder.[4] In this case, Alder, and four other people executed a lease guaranty in support of a lease agreement between two business entities in 2008.[5] Roughly two years later, Alder filed for Chapter Seven bankruptcy relief on August 10, 2010.[6] Alder scheduled the Hannons, a married couple who were also part of the group that executed the lease guaranty, as creditors in his bankruptcy case for a potential obligation rising from an unrelated state court case.[7] Alder was granted a discharge of debts and obligations through his Chapter Seven bankruptcy case a few months after his petition was filed.[8] All creditors, including the Hannons, received notice of this discharge.[9]

However, almost five years later, the Hannons filed a civil action against Alder seeking contribution based on the lease guaranty they were all party to.[10] Alder’s attorney contacted the Hannon’s attorney, and threatened to seek sanctions if the case was not dismissed because Alder had received a discharge from the bankruptcy court.[11] The Hannons refused, maintaining that their claim had arisen after the discharge, and the discharge only satisfied pre-existing obligations as opposed to obligations arising post-discharge.[12] Shortening the facts slightly for brevity, Alder moved for sanctions on the grounds that the Hannons were in violation of the discharge injunction, and the Hannons refused to budge from their belief that they had not violated the discharge injunction; the Bankruptcy Court for the District of Maryland found that the Hannons were willfully violating the discharge injunction, and imposed sanctions on them.

The interesting point in this case is that in order for the sanctions the court imposed to be proper, there is a two part test that includes a willfulness requirement.[13] Does it seem proper, that if the Hannons did not believe they were in violation of the discharge injunction, that their violation could have been willful? The court found that the standard for willfulness is not necessarily an intentional violation, but intentional actions that violate the discharge injunction with knowledge that the discharge was granted.[14]

The Hannons maintained that the claim arose after the discharge, and thus had not been discharged through the bankruptcy case.[15] However, the court found that the “execution of the guaranty created a prepetition contingent claim in favor of the Hannons.”[16] This claim, being prepetition, was discharged through the bankruptcy case even though it had been contingent.

This demonstrates the high level of protection that the American bankruptcy system offers to debtors. Once a discharge is received, anyone that was listed as a creditor in the original petition (and any amended petition, as may apply) is notified. This means that if any of those creditors take any intentional action that violates the discharge, even if they believe that action is not a violation, then they have willfully violated the discharge injunction and opened themselves up to potential sanctions. Considering that these sanctions can include actual damages, attorney’s fees, and potentially punitive damages, this is a serious level of protection.[17]

More than anything, In re Alder seems to be an affirmation that the Bankruptcy Code balances debtor and creditor interests, but also affords the debtors it serves many rights and protections not available anywhere else in American jurisprudence. These rights and protections, rather than facing erosion, seem to be standing strong with cases like this safeguarding the rights of the financially downtrodden.

[1] 11 U.S.C.A. § 727(a), (b).

[2] 11 U.S.C.A. § 362(a)(1)-(8).

[3] 11 U.S.C.A. § 524(a)(2)-(3).

[4] In re Alder, No. 10-28229, 2016 WL 5947220 (Bankr. D. Md. Oct. 13, 2016).

[5] Id. at *1

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at *3.

[14] Id.

[15] Id. at *1.

[16] Id. at *3.

[17] Id.

“Activist athletes on college campuses” By Chris Youngpeter

“Activist athletes on college campuses” By Chris Youngpeter

To recognize the power of athletics on college campuses, one needs only to look at the highest paid public employee in each of the 50 states. In 39 states, that employee is a university coach.[1] The power of athletics collided with social activism in Columbia, Missouri in November 2015. On November 7, 2015, black football players from the University of Missouri tweeted a picture with locked arms and an accompanying message that they would no longer play football as long as university president Tim Wolfe remained at the university.[2] The next day those players were joined by dozens of their teammates (black and white) and by football coach Gary Pinkel.[3] Tim Wolfe resigned the next day.[4]

The onus for this football boycott was the buildup of racial tensions on the Missouri campus over the preceding months. The protests of the administration were kick-started by a message posted on September 12, 2015, by Missouri Students Association president Payton Head, detailing the instances of racism he had experienced while a student at Missouri.[5] Throughout September and early October, Missouri students held protests and rallies criticizing the administration’s (and Wolfe’s specifically) delayed response to the concerns raised by Head.[6] In October, the protests coalesced under the name “Concerned Student 1950” and a list of demands were made to the university, including the removal of Wolfe as university president, increased diversity in the faculty, and mandatory diversity training.[7]

Due to the lack of response from the administration to address these demands and the issue of discrimination on campus, graduate student Jonathan Butler started a hunger strike on November 2, pledging not to eat until Wolfe was removed as president.[8] Concerned Student 1950 met with Wolfe and others on November 3 and protestors later confronted Wolfe on November 6, leading Wolfe to apologize for his perceived lack of empathy about the concerns raised by the campus protestors while still retaining his position as president.[9] It was not until November 9, in the immediate aftermath of the football boycott, that Butler’s hunger strike ended with Wolfe’s resignation.[10]

These events raise the question of whether the boycott was a singular event that caused the resignation of Wolfe or whether it was the last nail in the coffin when considered with the hunger strike and the other acts of protest by Missouri students. The long-term impact of the continuing protests and hunger strike is unclear. The humiliation of the deteriorating health of Jonathan Butler and the impact of a protestor-led boycott of services at the university may have shamed the university into making the changes that were made, but the long-term harm is more speculative.[11] The administration was attempting to withstand the PR fallout in the weeks before the football boycott. The boycotting of even a single football game would have significant economic consequences for the University of Missouri, including payment of a one million dollar fine to BYU within 30 days of cancelling their weekend matchup.[12] Missing out on a bowl game in the post season likely would have deprived the university of a six-figure payout.[13] The long-term effects of a boycott are less apparent, but there is evidence that undergraduate application numbers go up with the improved play of a school’s sports programs.[14]

The broader question raised by the events at Missouri concerns the proper role of athletes as activists in the push for social change on college campuses. It may seem simple to support athletes taking a leading role in the equal treatment of all students and faculty on college campuses, but in reality the issue is complex.  Some would argue that, because fans use sports as an outlet to escape the social and political issues of everyday life, athletes should “stay in their lane” and not use the sport that they play to advocate for a political or social cause – or use less serious means to accomplish their goals. Others would pose the question of whether anything at Missouri would have changed if not for these athletes’ protest. Would Tim Wolfe have resigned or been forced out as president? Would the racial inequities at Missouri have been addressed in the same way? The fact that the resignation occurred immediately after the football boycott, even though protests and meetings with the administration had been ongoing for over a month, is a strong indication that the Missouri athletes’ activism was instrumental to those changes.

So, when and how significantly should college athletes participate in social activism on campus? A strike by athletes like the one at Missouri is an extraordinary step to take. It is not an unprecedented step though, as the football team at Grambling State boycotted games in 2013 to protest unsafe athletic facilities.[15] Many of the striking Missouri football players were on full tuition scholarships because they played football. In the aftermath of Wolfe’s resignation, Missouri state legislators proposed a bill that would strip scholarships for striking.[16] This was in large part because they “‘expect[ed] the leadership of this state institution to actually lead and not allow the students to call the shots.’”[17] This would be a purely punitive punishment in response to the fight for social equality on college campuses. Empowering students and student athletes to have their voices heard on social issues does not hurt the power of administrators to lead state institutions. Also, addressing these issues is much more important than playing football games. Wolfe and other Missouri administrators could have exhibited true leadership by working proactively with concerned students to address the racial inequities that existed on Missouri’s campus. By dragging their feet, the administrators emboldened one of the most powerful student groups on campus, football players, to take a leading role in challenging the administration to address the concerns of minority students at Missouri.

The essential factors for athlete activism should be the importance of the cause and the ability to affect change. If players were to boycott over something trivial, like wanting new uniforms or a different color Gatorade on the sideline, they would be ridiculed and it might damage any future attempts at activism. There are also causes that are too difficult for one team to accomplish. If the Northwestern football team was to boycott games in an effort to unionize, for example, that move would have such a low probability of success that it would only hurt the players. Likewise, if the Alabama football team was to threaten a boycott unless the NCAA passed a resolution allowing colleges to pay players a yearly wage, it would likely fail as a singular movement. The actions by the Missouri football team appear justifiable in comparison. Combatting the inequitable treatment of certain groups of people on college campuses is an important issue. This is evidenced by the significant, continuing protests and the fact that a student was willing to make the ultimate sacrifice to achieve his goals. The boycott was also likely to succeed. Besides the economic pressure exerted by the players, their participation in the protest attracted national media scrutiny that weighed heavily on the administration. Some changes were inevitably going to be made and it was likely that the university would accede to the most important of the protestors’ demands.

The Missouri strike does not establish a bright-line rule for determining when college athletes should become involved in social activism, but it does establish that there is a time and place for such actions in our society. In appropriate circumstances activism by athletes on college campuses should be encouraged and applauded.



[1] Cork Gaines, The highest-paid public employee in 39 US states is either a football or men’s basketball coach, Business Insider (Sep. 22, 2016),

[2] UPDATE: Black Missouri football players plan to join Wolfe protest through boycott, Missourian (Nov. 7, 2015),

[3] Emma Vandelinder, Racial climate at MU: A timeline of incidents this fall, Missourian (Nov. 6, 2915),

[4] Id.

[5] Rohan Nadkarni, Why Missouri’s football team joined a protest against school administration, Sports Illustrated (Nov. 9, 2015),

[6] Id.

[7] Ruth Serven, Departments state support for student group; group calls for Wolfe’s resignation, Missourian (Oct. 21, 2015),

[8] Vandelinder, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Phillip Bump, How the Missouri football team just took down its university president, Wash. Post (Nov. 9, 2015),

[13] Id.

[14] Sean Silverthorne, The Flutie Effect: How Athletic Success Boosts College Applications, Forbes (Apr. 29, 2013),

[15] Rohan Nadkarni, Why Missouri’s football team joined a protest against school administration, Sports Illustrated (Nov. 9, 2015),

[16] Tribune Wire Reports, Missouri bill would strip scholarships if athletes strike, Chicago Trib. (Dec. 15, 2015),

[17] Id.

Criminalizing Juvenile Female Sexuality By Alexis Killough

Criminalizing Juvenile Female Sexuality

By Alexis Killough

It is an all-too-familiar story in modern American society. A teenage girl falls for the attractive young coach at her high school and the relationship soon turns sexual.[1] Inevitably, her parents discover the relationship and object to the seven-year age difference.[2] In this case, however, the girl ends up entering the criminal justice system as a child in need of supervision when her father files a petition with the court.[3] Because she is sixteen, this is not a case of statutory rape, so bringing the girl under the control of the court is the only way to force the relationship to end.[4]

Alabama’s juvenile justice system allows a juvenile court to declare a juvenile to be a child in need of supervision if that juvenile “disobeys the reasonable and lawful demands of his or her parent…and is beyond the control of the parent.”[5] At that point, the juvenile is labeled a status offender under Alabama law and is subject to the control of the court, much like a juvenile who is adjudicated delinquent.[6] While this process comports nicely with the idea of protecting juveniles and allowing the juvenile justice system to assist parents in need, it has been warped to allow the criminalization of sexuality in juvenile girls by “transforming female sexual interest and activity into female delinquency”.[7] The standards used by the status offense system, in Alabama and across the United States, criminalize sexual activity in girls, using the legal system to shame and force them to comply with social norms as determined by the prior generation.

From its inception, the juvenile justice system has functioned as a place where society engages in “largely unchecked and curiously intrusive social control strategies.”[8] Specifically, this has included subjecting juvenile girls to decisions that reflect and reinforce traditional ideas of gender and age appropriate behavior.[9] As part of their traditional role as parens patriae, juvenile courts take a very protective view over teenage girls, declaring them a child in need of supervision for being ungovernable due to sexual activity.[10] Courts reserve heaviest judgement for young girls who “stray from the feminine ideal,” most often by becoming sexually active and losing the perception of virginal innocence.[11] Society usually sees these girls as having a “deeper set of problems” that can only be cured by the intervention of the juvenile justice system.[12] The system then tries to reform them into more “‘appropriate’ young women,” by punishing their sexual behavior.[13]

Girls face a confounding double standard in juvenile courts.[14] Of the juveniles referred to courts for the status offense of ungovernability, the majority are girls being referred for taking part in sexual behavior that their parents percieve as promiscuous.[15] Society generally condemns female promiscuity while celebrating the same behavior in males.[16] The sexual activity leading to the reports is not usually considered extreme or deviant when engaged in by teenage boys.[17] This shifting standard could be an explanation for the disparities between male and female status offenders. A 1995 survey found that 27.5% of arrests of girls were for status offenses, but only 10.5% of arrests of boys were based on status offenses.[18] A study in Connecticut showed that nearly twice as many girls faced status offender cases for sexual activity than boys, though Connecticut law does not specify between the sexes in its status offense law relating to sexual activity.[19] An inordinate number of girls are entering the juvenile justice system for being sexually active while boys taking part in the same activities are left to continue with their childhood uninterrupted.

The status offense system is used to control girls whom their parents suspect of promiscuous behavior.[20] Generally, juvenile status offender cases against sexually active girls start when a parent refers their own child to the courts.[21] These parents experience what has been referred to as a “reflexive reliance” on the courts to straighten out the girls.[22] This ideal is complicated by the function of the juvenile system itself, wherein juveniles are deprived of their liberty like an adult in the traditional criminal system, but they are also treated as children in the deprivation of due process rights.[23]

Once they enter the system for a status offense, it is all too easy for a girl to be adjudicated delinquent. Juveniles who commit status offenses cannot be incarcerated, but judges often “bootstrap” charges and incarcerate girls for violating court orders, transforming them from a status offender to a traditional delinquent.[24] The status offense court order will typically include provisions relating to attending school, following a curfew, and obeying parental authority, but judges have discretion to include “almost anything” in those orders, as long as it fits with the admittedly broad standards of the best interests of the child.[25] Girls who fail to comply fully with the status offender system are subjected to “increasingly punitive interventions” from the court, allowing charges to stack up against them.[26] Something as simple as staying out a few minutes past curfew or skipping class can lead to a girl being incarcerated as a delinquent, right alongside other juvenile delinquents.[27] The process of “bootstrapping” by juvenile judges has transformed the status offense system into a quasi-criminal system throughout most of the United States.[28]

Sexually active girls can quickly be labeled juvenile delinquents just by nature of being sexually active, while sexually active boys still receive a “boys will be boys” treatment regarding their own sexual activity. It is unacceptable to treat girls any differently than boys, just because society expects boys to be sexually active and girls to remain pure and innocent. That double-standard is impossible to enforce and leads to girls being shamed for a natural part of growing-up.

[1] See, e.g., Dixon v. State, 579 So. 2d 29 (Ala. Crim. App. 1990).

[2] Id.

[3] Id.

[4] Id.; Ala. Code § 13A-6-62(a)(1) (LexisNexis 2016).

[5] Ala. Code § 12-15-102(4) (LexisNexis 2016).

[6] Ala. Code § 12-15-201(4) (LexisNexis 2016).

[7] Kim Taylor-Thompson, Girl Talk – Examining Racial and Gender Lines in Juvenile Justice, 6 Nev. L.J. 1137, 1154 (2006).

[8] Id. at 1138.

[9] Id.

[10] Soma R. Kedia, Creating An Adolescent Criminal Class; Juvenile Court Jurisdiction Over Status Offenders, 5 Cardozo Pub. L. Pol’y & Ethics J. 543, 552 (2007).

[11] Taylor-Thompson, supra note 7, at 1138-39.

[12] Id. at 1140.

[13] Cynthia Godsoe, In Search of Meaningful Systemic Justice for Adolescents in New York: Contempt, Status, and the Criminalization of Non-Conforming Girls, 35 Cardozo L. Rev. 1091, 1109 (2014).

[14] Taylor-Thompson, supra note 7, at 1138.

[15] Kedia, supra note 10, at 546.

[16] Taylor-Thompson, supra note 7, at 1144.

[17] Kedia, supra note 10, at 552.

[18] Joyce London Alexander, Aligning the Goals of Juvenile Justice With The Needs of Young Women Offenders: A Proposed Praxis For Transformational Justice, 32 Suffolk U.L. Rev. 555, 569 (1999).

[19] Godsoe, supra note 13, at 1102.

[20] Taylor-Thompson, supra note 7, at 1144.

[21] Kedia, supra note 10, at 557-58.

[22] Taylor-Thompson, supra note 7 at 1139.

[23] Alecia Humphrey, The Criminalization of Survival Attempts: Locking Up Female Runaways and Other Status Offenders, 15 Hastings Women’s L.J. 165. 169 (2004).

[24] Id. at 1093-1100.

[25] Id. at 1100-01.

[26] Id. at 1093.

[27] Id. at 1101.

[28] Id. at 1104.

Female Coaches Are On the Verge of Extinction in College Sports By Barry Burkett

Female Coaches Are On the Verge of Extinction in College Sports

By Barry Burkett

Over this past summer, our nation mourned the loss of the legendary women’s basketball coach and human being Pat Summit. Never settling for the status quo, she inspired young men and women to give the best of themselves in the classroom, their communities, and on the playing field.[1] Her intensity and competitiveness were unrivaled by any coach whether male or female, proven by her eight national championship victories at the University of Tennessee. [2]

We have seen the impact that women in head coaching positions have made in their respective sports and the NCAA in general. So, the big question to ask now is: Why do we not see more women coaching on the sidelines at the collegiate level? Unfortunately, some women who continue to ask this question and challenge the current structure of collegiate athletics are either labeled as feminists or ignored. Now, it is time for men as well to start challenging colleges and universities to stop brushing this question aside and address the inequities faced by women who seek jobs in coaching or those already situated in coaching positions.

It is unacceptable that this problem persists because Title IX of the Education Amendments of 1972 is in place to prevent gender inequities that women face in educational institutions.[3] From a positive perspective, Title IX has been powerful for female student-athletes in their pursuit to make huge strides in collegiate athletics. As of 2015, around 209,472 female student-athletes are competing in collegiate athletics[4] compared to less than 30,000 in 1972[5] and this number will continue to climb. For female coaches, the inverse has actually happened. Since 1972, the number of women in head coaching positions has decreased from 90 percent to 40.2 percent, and only 43 percent of women’s teams are coached by women.[6] In fact, for all the college hoops fan who watched the 2016 NCAA Women’s Division I Basketball Tournament, you may have noticed that all of the teams that advanced to the final four were coached by men.[7] These are not the only top programs that have male coaches hoisting trophies for women’s teams, click here to see what some of the other top Division I athletic programs score in gender equity for coaching.[8]

Certainly, there is nothing wrong with male coaches aspiring to lead a team of young women. Nevertheless, there are inequities when our female coaches face strong barriers to entry if they want to coach for men’s teams and must clear huddles just to coach women’s teams.[9] It is true that a number of factors can be attributed to men making up the majority of the coaching positions for men’s and women’s teams than discrimination per se. Women’s sports have become more lucrative to men as schools create more employment opportunities and the earning potential continues to rise.[10] However, it would be naïve to deny that gender does not play a substantial factor in hiring decisions for athletic directors when only 20.3 percent of collegiate athletic directors are women.[11] Another justification for men dominating coaching positions that has been proposed for years is that women just do not have the same level of interest as men to coach.[12] This justification is definitely without merit given the growing participation rate for female student-athletes in collegiate athletics meaning female interest in coaching should be growing as well.

For the women already in head coaching positions, the current system is far from being a utopia. Over the last decade, several women have claimed that they were fired for speaking up about their athletic department’s discriminatory practices like unequal pay or coaching standards compared to their male counterparts.[13] A recent illustration is the former University of Iowa’s hockey coach Tracey Grisbaum who was fired for the alleged verbal abuse of two female student-athletes although there was “insufficient evidence to substantiate a violation of university policy”.[14]

Grisbaum has a pending lawsuit against the University of Iowa claiming gender discrimination, but the pending Title IX lawsuit filed by four of her former players against the university may prove more groundbreaking for collegiate athletics.[15] The players assert that firing a female coach for using the exact same coaching methods as a male coach compromises the right of female student-athletes to receive the same experience as male athletes due to their sex and/or their coach’s sex.[16] Not only are they brave, these young women are playing an instrumental role in the push for equality in collegiate athletics by raising awareness regarding the different standards set for female coaches to actually coach their players.[17]

Finally, some people may question why increasing the number of women in coaching positions matters. There are several reasons but I will only highlight one. Today, the same inequities that exists in athletics and coaching, like unequal pay and opportunities to lead, are true for women in other male-dominated industries as well where the status quo continues to be accepted. If our colleges and universities can come together and work toward shattering the status quo in collegiate athletics, which has historically been littered with gender stereotypes, there will be positive spillover effects for women in other professional industries.

As we watch our favorite college teams compete this year, we should support our female coaches just as we did the legendary Pat Summit and celebrate them for the competiveness that they contribute to collegiate athletics.


[1] Kate Fagan, Whether or Not You Played for Her, Pat Summit Inspired a Generation of Basketball Players, Espn: Espn W (June 28, 2016),


[2] Id.


[3] Title IX, Education Amendments of 1972, 20 U.S.C. § 1681 (1972) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”).


[4] Sports Sponsorship and Participation Research, Nat’l Collegiate Athletic Ass’n, (last visited Sept. 18, 2016).


[5] Title IX and Athletics Proven Benefits, Unfounded Objection, The Nat’l Coal. For Women And Girls In Educ. 2 (2012),


[6] Mary Pilon, Less Than Half of Women’s College Sports Teams Are Coached by Women, Fortune (September 14, 2015),


[7] John Walters, You’ve Got Male: For the First Time, Only Men Are Coaching the Women’s Final Four Teams, Newsweek (March 30, 2016),


[8] Annie Brown, A Man’s Game: Inside the Inequality that Plagues Women’s College Sports, Reveal (May 5, 2016),


[9] Erin E. Buzuvis, Barriers to Leadership for Women in College Athletics, Introduction to Intercollegiate Athletics, at 275-76 (Eddie Comeaux, ed., 2015).


[10] Pilon, supra note 6.


[11] Alexandria Vollman, Female Athletic Directors: A Scarce but Positive Influence, Insight Into Diversity, (last visited Oct. 19, 2016).


[12] Buzuris, supra note 9, at 281.


[13] Brown, supra note 8.


[14] Brown, supra note 8.


[15] Kate Fagan, Why the Iowa Field Hockey Title IX Complaint Is a Huge Deal, Espn: Espn W (Feb. 5, 2015),


[16] Id.


[17] Id.


Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama by Gonzalo E. Rodriguez

Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama

by Gonzalo E. Rodriguez


On December 22, 2008, the Kingston Fossil Plant–a coal-burning power plant operated by the Tennessee Valley Authority–became the site of what experts coined “the largest environmental disaster of its kind.”[1] The containment dike of a waste landfill collapsed, releasing 5.4 million cubic yards of coal ash–a coal-burning byproduct containing carcinogenic toxics such as mercury, cadmium, and arsenic, which can pollute both water and air.[2] Nearby towns were forced to evacuate, the delivery of electricity and gas was disrupted, and 300 acres of the Watts Bar Reservoir were covered with toxic sludge.[3]


In 2010, the Environmental Protection Agency, tasked with overseeing the coal ash cleanup efforts, identified the Arrowhead Landfill as the ideal disposal site for the toxic sludge.[4] Approximately three million cubic yards of coal ash were to be transported 350 miles from Kingston, TN, a predominantly white town, to Uniontown, AL, a poor and over 91 percent black town in the Black Belt.[5] Concerned for their well-being and with the intent to oppose the decision to turn their town into a toxic dumpsite, several Uniontown residents formed Black Belt Citizens Fighting for Health and Justice.[6]


On April 6, 2016, Green Group Holdings, LLC, and Howling Coyote, LLC, owners and operators of the Arrowhead Landfill, filed a complaint before the District Court of the Southern District of Alabama against Black Belt Citizens and its members.[7] The complaint sought $30 million in damages for libel and slander, alleging that certain posts published in Black Belt Citizens’ Facebook page were false and defamatory.[8] This lawsuit was filed as a result of Black Belt Citizens’ refusal to enter into a proposed settlement offered by Green Group.[9] The proposed settlement stipulated that Green Group would not bring legal action against the Uniontown residents in exchange for access to their electronic devices and access to the group’s social media pages.[10] The proposed settlement would have also required Black Belt Citizens to disclose information about their membership, release all communication with all other environmental groups, and the withdrawal of a pending Title VI claim filed in connection to the landfill permit application.[11]


These types of legal actions have become so commonplace as to earn their own catchy acronym: SLAPPs–Strategic Lawsuits Against Public Participation. The purpose of a SLAPP is simple: to “deny vocal citizens their constitutional right to petition the government.”[12] While many states have passed anti-SLAPP statutes to prevent this sort of coercion, Alabama remains silent.[13] This silence not only jeopardizes the Constitutional speech protections of Uniontown residents, but potentially the very health and well-being of every Alabamian.


The Anatomy of a SLAPP


SLAPPs are frivolous lawsuits often filed by large organizations with deep pockets in order to silence citizen groups whose political activism threatens the organization’s business interests.[14] Typically, SLAPPs involve legal claims such as libel or slander, conspiracy, or a tort action for economic interference.[15] The ultimate goal of a SLAPP is not to seek judicial remedy, but rather to send a message to activists: “that there is a ‘price’ to pay for speaking out politically.”[16] As George Pring–one of the scholars who coined the term–said, the price paid by SLAPP defendants is “a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”[17] This price is not only paid by the immediate defendants to a SLAPP but also by the public at large, as the looming threat of legal action is intended to have a chilling-effect on public participation.[18]


Block and Counter: Anti-SLAPP and SLAPPback Statutes


A majority of states have enacted statutes aimed at protecting private individuals and citizen groups from SLAPPs. Recognizing that the inherent danger of SLAPPs lays in their ability to force defendants into costly litigation, Anti-SLAPP statutes allow defendants to file a special motion to strike the complaint.[19] Once the defendant files the special motion to strike, all discovery is suspended–absent a showing of good cause by the plaintiff–until the court rules on the motion.[20] Further, most Anti-SLAPP statutes provide for the recovery of attorney fees and costs to a prevailing SLAPP defendant.[21]


California, often regarded as having the strongest Anti-SLAPP protections, also provides defendants with a proverbial sword. Intended to deter SLAPP plaintiffs from bringing such actions in the future, a prevailing SLAPP defendant may file a SLAPPback action for punitive damages.[22] SLAPPback awards have been anything but nominal. In the case of a hospital worker who was SLAPPed for criticizing the incinerator operations of an infectious-waste disposal company, the jury awarded punitive damages of $86.5 million.[23]


Insufficient Measures: The Alabama Litigation Accountability Act (“ALAA”)


In 1987, the Alabama legislature passed the ALAA, empowering courts to award attorney’s fees and costs against an attorney or party who brings an action “without substantial justification.”[24] The ALAA, however, fails to protect private individuals and citizen groups from SLAPPs for several reasons. First, a SLAPP defendant may not receive ALAA relief until the lawsuit is adjudicated.[25] This leaves SLAPP defendants who do not possess sufficient resources to mount a legal defense no option but to hope for benevolent pro-bono counsel to save the day. Second, an award under the ALAA depends on an affirmative finding by the court that the plaintiff’s claim was asserted “without substantial justification.”[26] This requirement focuses on the plaintiff’s motive, instead on protecting the SLAPP defendant’s First Amendment rights.[27] Lastly, the mere threat of attorneys’ fees may ultimately be a reasonable business cost for the SLAPP plaintiff to bear in exchange for discouraging future public participation.


Environmental Injustice: Maintaining the Status Quo


In Uniontown, a town with barely 2,500 residents and a median income per capita of $8,000,[28] a $30M lawsuit stands as a reminder of the State’s failure to protect the rights of the most vulnerable. Residents of frontline communities such as Uniontown may not have the financial wherewithal nor the political power to influence the State legislature. Our legal and regulatory framework provides these individuals certain avenues through which they may demand their right to breathe clean air, drink water free of deadly contaminants, and raise their children in a safe environment. Yet, without protection from SLAPPs, the voices of frontline communities are silenced. Anti-SLAPP protections stand for the proposition that private individuals and citizen groups should be protected from harassment and intimidation when voicing their concerns in regards to matters of public interest. These protections are particularly crucial to frontline, low-income communities of color, who are often the unwilling hosts of toxic waste dumps and “bear the most severe consequences of environmental degradation and pollution.”[29]


“We are tired of being taken advantage of in this community. The living around here can’t rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can’t rest because of the desecration of their resting place.”[30] Even though Green Group claims this statement to be false and defamatory,[31] the everyday impacts that the coal ash landfill has had on Uniontown residents are undeniable. As Esther Calhoun, a life-long resident of Uniontown and defendant in the lawsuit said: “It used to be that living in the country you could sit on the front porch, hang your clothes out to dry, [and] barbecue. All that has changed since the landfill.”[32]

[1] Shaila Dewan, Tennessee Ash Flood Larger Than Initial Estimate, N.Y. Times (Dec. 26, 2009),

[2] Coal Ash Basics, EPA, (last visited Oct. 4, 2016).

[3] Sites in Reuse – TVA Kingston Removal Site, EPA, (last visited Oct 4, 2016).

[4] Frequently Asked Questions Regarding the Disposal of Coal Ash at the Perry County Arrowhead Landfill – Union Town, Alabama, EPA, (last visited Oct. 4, 2016).

[5] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016),

[6] See Our History, Black Belt Citizens, (last visited Oct. 4, 2016).

[7]  Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 (S.D. Ala. Apr. 6, 2016).

[8] See Id. at 11-14.

[9] Id.

[10] Green Group Holdings v. Schaeffer – Proposed Settlement Previously Offered to Defendants at 3, ACLU, (last visited Oct. 4, 2016).

[11] Id. at 3-4.

[12] Victor J. Cosentino, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, 27 Cal. W. L. Rev. 399, 400 (1991).

[13] See SLAPP Stick: Fighting Frivolous Lawsuits Against Journalists, The Reporters Comm. for Freedom of the Press 1, 4 (2011),

[14] See Consentino, supra note 12 at 402.

[15] Id. at 401.

[16] George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 6 (1989).

[17] Id.

[18] Consentino, supra note 12 at 404-05.

[19] The defendant may make a special motion to strike the complaint, unless the court determines that the plaintiff has established a probability that the claim will prevail. Additionally, Anti-SLAPP statutes set time limits for the court to rule on the special motion to strike. See, e.g., LSA-C.C.P. Art. 971(A)(1); Cal. Civ. Proc. Code § 425.16(g); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, 005 (referring to the motion as a “motion to dismiss”).

[20] See, e.g., LSA-C.C.P. Art. 971(D); Cal. Civ. Proc. Code § 425.16(b)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c).

[21] See, e.g., LSA-C.C.P. Art. 971(B); Cal. Civ. Proc. Code § 425.16(c)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).

[22] Cal. Civ. Proc. Code § 425.18.

[23] George W. Pring et al., “Strategic Lawsuits Against Public Participation (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L. Rev. 937, 955 (1992).

[24] Ala. Code § 12-19-272(a).

[25] See Id. (stating that “the court shall award, as part of its judgment and in addition to any other costs assessed, reasonable attorneys’ fees and costs[.]”) (emphasis added).

[26] Ala. Code § 12-19-272(a).

[27] See Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L. J. 665,722 (2000).

[28] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016),

[29] Rachel Massey, Environmental Justice: Income, Race, and Health, Global Dev. and Env’t Inst. – Tufts Univ. page number? (last visited: Oct. 5, 2016).

[30] Id. (statement by Benjamin Eaton, defendant in the lawsuit).

[31] Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 at 8 (S.D. Ala. Apr. 6, 2016).

[32] Teague, supra note 28.

Medicaid Waivers: Internal Threats to the Entitlement By Zachary King

Medicaid Waivers: Internal Threats to the Entitlement

By Zachary King 

Over fifty years ago, the new Medicaid statute created a statutory right to health insurance coverage for some of the most medically vulnerable populations of Americans, even for those without the financial ability to obtain such coverage in the private insurance market.[1] Over the past decade, Congress and the Obama administration have taken steps to increase access to health insurance even further. The Affordable Care Act (ACA) effected much of this change, revolutionizing the private health insurance market for the middle class.[2]

The ACA also included a new Medicaid eligibility category, guaranteeing medical assistance to all Americans below an income threshold.[3] In 2012, however, the Supreme Court gutted this provision, finding that the new eligibility category illegally coerced states into covering populations against their will.[4]

Since NFIB, many states have tried to leverage the Centers for Medicare and Medicaid Services (CMS) into approving illegal funding for programs that are advertised as alternatives to Medicaid expansion.[5] These programs are usually state demonstration plans, or “§ 1115 waivers” (so called because they were passed as § 1115 of the Social Security Act).[6] However, states are using  demonstration plans in ways that are clearly contrary to the program’s purpose of providing coverage to medically and financially needy individuals and families, and CMS often faces a choice between an illegal demonstration plan covering part of the population to a less than ideal extent, or no Medicaid coverage at all for that population.

State Demonstration Plans

Demonstration plans allow states to receive federal matching funds to test new mechanisms and aspects of Medicaid while ignoring some of the program’s usual requirements. Plans can only ignore certain Medicaid requirements.[7] Further, plans are only permissible if they are “likely to assist in promoting the objectives of” the Medicaid program.[8] Because federal funding is involved, CMS oversees demonstration plans, and plans require the bureau’s approval.

State demonstration plans are not ACA Medicaid expansion. Medicaid expansion is a specific program creating an eligibility category for people living below 133 percent of the federal poverty level (FPL) who are not otherwise eligible for Medicaid, as described above. The federal government pays almost all of the cost for state implementation of Medicaid expansion.[9] In contrast, federal matching for state demonstration plans are negotiated between CMS and the state government, but the state can expect to be responsible for a greater portion than if they implemented Medicaid expansion.

Dangerous Precedents and Recent Developments

Some demonstration plans proposed by states include waiver requests for some of Medicaid’s most fundamental requirements; even more disturbingly, CMS has approved some of these requests.[10] Waivers that CMS has approved negate the requirements that eligible individuals be enrolled in the program with reasonable promptness, that benefits be comparable for all enrollees, and that enrollees living in poverty not be charged premiums.[11]

Indiana, which received approval for the above waivers for its Healthy Indiana 2.0 program, previously had a state demonstration project in place with fewer waivers.[12] It is possible that the political threat of discontinuing the existing program unless CMS approved additional waivers proved too serious for the bureau to enforce the law and deny the proposal.

Two states recently submitted proposals similar to Indiana’s. The Kasich administration in Ohio proposed a plan, the terms of which were largely dictated by the state legislature, that CMS rejected this month. The Healthy Ohio Plan included requests for waivers of Medicaid’s requirements that eligible applicants be enrolled into the program with reasonable promptness and that they have the opportunity for a fair hearing, among others.[13] Combined with eligibility provisions, these requirements form the backbone of due process in the Medicaid application and enrollment processes. [14] Without the protection these requirements provide, states would have no statutory obligation to enroll people eligible for Medicaid, despite the clear intent of the statute.[15]

Fortunately, CMS rejected Ohio’s proposal, and at least some of the rights inherent in the Medicaid program remain intact.[16] Ohio is notable because it has implemented Medicaid expansion, and rejection of the Healthy Ohio Plan had no effect on the expansion.[17] So, Ohio’s proposed demonstration plan would have rolled back Medicaid coverage, rather than covering more people, and CMS’s rejection protected existing enrollees.

Kentucky also recently proposed a new demonstration plan, which included a request for approval of a work requirement for enrollees to enjoy the full benefits of the program (effectively a waiver of 42 U.S.C. § 1396a(a)(10)(A)).[18] At present, CMS has not decided to approve or disapprove Kentucky’s proposal. Like Ohio, Kentucky has expanded Medicaid.[19] However, Kentucky’s governor ran on the platform of repealing the expansion.[20] So, CMS must choose between approving dangerous waivers, or likely sitting by idly as thousands of Kentuckians lose their health insurance coverage.

Constitutional Overcorrection

If the NFIB Court feared coercion of the state government, they have created an environment that allows for coercion of the federal government. The NFIB decision was meant to allow states to decide whether their Medicaid programs would cover the new statutory population (those with household income below 133% FPL). It did not remove the new population from the statute, and programs are required to cover all members of a statutorily described eligibility group.[21] However, states are able to use demonstration plans that are clearly contrary to the objective of the Medicaid program to cut back coverage, or impose cost and work requirements on enrollees. While this goes on, CMS must either sign its approval of the corruption of a successful, decades old program or sit by helplessly as it watches Medicaid reform, which is still the law of the land, simply disappear state-by-state.

[1] See generally Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended in scattered sections of 42 U.S.C.).

[2] See generally Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (codified as amended in scattered sections of 26 and 42 U.S.C.)

[3] 42 U.S.C. § 1396(a)(10)(A)(i)(VIII) (2015).

[4] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2607 (2012) (“[T]he Secretary cannot apply § 1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion.”).

[5] See, e.g., H.B. 64, 131st Gen. Assemb. §§ 5166.40-409 (Ohio 2015).

[6] See generally Leonardo Cuello, Medicaid Expansion Section 1115 Demonstrations Update, Health Advocate, Aug.  2016, (follow “Download Publication” hyperlink).

[7] See 42 U.S.C. § 1315(a)(1) (2014).

[8] 42 U.S.C. § 1315(a) (2014).

[9] 42 U.S.C. § 1396d(y) (2012).

[10] See Cuello, supra note 6, at 1-2.

[11] Id.

[12] Maureen Groppe, Indiana lawmakers OK bill to protect Healthy Indiana Plan, Indy Star (Mar. 11, 2016),

[13] See Ohio Dep’t of Medicaid, Healthy Ohio Program 1115 Demonstration Waiver 39 (2016), (follow the “Healthy Ohio Program 1115 Demonstration Waiver – Final Submission). See generally 42 U.S.C. § 1396a(3), (8) (2015).

[14] See 42 U.S.C. § 1396a(3), (8), (10) (2015).

[15] National Health Law Program, Comment Letter on Healthy Ohio Program Section 1115 Demonstration (Aug. 5, 2016), (follow the “Download Publication hyperlink). [then proceed with the quote

[16] See Jim Provance, U.S. rejects Ohio proposal to require Medicaid premiums, Toledo Blade (Sept. 9, 2016),

[17] Status of State Action on the Medicaid Expansion Decision, Kaiser Family Found (July 7, 2016),,%22sort%22:%22asc%22%7D.

[18] See Ky. Dep’t of Medicaid Services, Kentucky HEALTH 26, 37 (2016), (Kentucky follow the “waiver application” hyperlink).

[19] Status of State Action on the Medicaid Expansion Decision, supra note 17.

[20] Gov. Matt Bevin: Medicaid overhaul will be in place by start of 2017, Lexington Herald-Leader (Dec. 30, 2015),

[21] 42 U.S.C. § 1396a(a)(10)(A)(i) (2015).

“I’m Sorry, We’re Only Giving You Ibuprofen” A Critical Analysis of the Unenforceable Standard of Care in Prison By Ashley Austin

“I’m Sorry, We’re Only Giving You Ibuprofen”

A Critical Analysis of the Unenforceable Standard of Care in Prison

By Ashley Austin

The Eighth Amendment states that “cruel and unusual punishments” shall not be inflicted.[1]  In the past, this phrase had been originally construed to include “proscribing tortures and other barbarous methods of punishment.”[2] Starting in the 1900s, the Supreme Court began interpreting the Eighth Amendment in a more “flexible and dynamic manner.”[3] It has been stated that “(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[4] Furthermore, cruel and unusual punishment has been expressed as an “unnecessary and wanton infliction of pain.”[5] It was not until 1976 that the Court formally addressed medical treatment of prisoners in the context of the Eighth Amendment.[6]

In Estelle v. Gamble, a landmark 8-1 Supreme Court decision, the Court was tasked with determining under what circumstances withholding or mismanaging medical care constitutes a violation of the Eighth Amendment.[7]  In this case, the Court found that the government has an obligation to provide medical care for those currently incarcerated, stating that “[a]n inmate must rely on prison authority to treat his medical needs; if the authorities fail to do so, those needs will not be met.”[8] By applying Gregg v. Georgia’s standard of “unnecessary and wanton infliction of pain” to the government’s obligation to provide medical care, the Court in Estelle addressed what kind of medical treatment, or lack of medical treatment, could constitute a violation of the Eighth Amendment and result in a 42 U.S.C. §1983 claim alleging a violation of constitutional rights by a government agency.[9] Here, the court refused to consider anything less than “deliberate indifference to serious medical needs” as enough to amount to a constitutional violation.[10] They confirmed that, although prisoners are entirely reliant on the prisons to provide medical care, a simple failure to provide adequate care would not be sufficient to establish a claim.[11] Prisoners are required to allege acts or omissions directly relevant to showing deliberate indifference to medical needs.[12] Even negligence in diagnosing or treating an illness would not amount to a constitutional violation.[13] The Court made clear their view that “medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”[14]

This position, concerned with preventing courts from being overflowed with multiple §1983 claims, stands on the ground that prisoners remain able to challenge negligent medical treatment under state tort claims.[15] This division reserves only the most extreme cases for evaluation in federal court where both knowledge of a medical need and deliberate—or intentional—indifference toward the prisoner’s well-being and leaves every day malpractice to state courts. In a perfect society, this would be an acceptable replacement for challenging individual medical treatment that does not meet the necessary standard of care. However, the modern difficulties of bringing medical malpractice claims prevent prisoners from being able to successfully litigate a claim.

Medical malpractice is a medical professional’s “failure to exercise the same degree of care and skill that [other professionals] of the same medical specialty would use under similar circumstances.”[16] Every state has tort law provisions providing the statutory ability to bring claims against a professional for medical malpractice. However, it is commonly required that a plaintiff present expert testimony to show that the defendant’s treatment failed to meet the statutory standard of care.[17]

Many circuits have held that prisoners are not entitled to post-conviction counsel while incarcerated unless directly related to a conviction appeal.[18] Furthermore, any post-conviction claims brought not directly regarding the appeal of their conviction is considered civil in nature and does not require appointed counsel for indigent individuals, regardless of incarceration. As a result, most §1983 claims and medical malpractice claims brought by prisoners are brought pro se with the only assistance coming from prison self-help litigation manuals and the prison law library. As a pro se litigant, many prisoners are unable to afford to hire attorneys, much less expert witnesses required for successful medical malpractice claims.

Fortunately, there are services available in some states to assist prisoners in post-conviction litigation, either pertinent to their case or to the conditions of confinement. There are very few organizations that represent prisoners on post-conviction civil litigation. Two organizations that specialize in post-conviction representation of prisoners are the Prisoners’ Legal Services of Massachusetts and North Carolina Prisoner Legal Services. However, these organizations are extremely uncommon as many prisoner’s rights organizations do not represent individual clients. The organizations representing individual clients are often only focused on claims of innocence. These groups, commonly called Innocence Projects, are located throughout the United States and focus on proving actual innocence of the convicted through evidence unconsidered at the time of the conviction.

Outside of the discussed procedural barriers to allowing individual inmates to challenge their medical treatment, the standard established in Estelle is unlike many other standards established in constitutional challenges. The dissent in Estelle, authored by Justice Stevens, points out the extremely unique approach the majority takes in reversing the Fifth Circuit’s finding.[19] In the Fifth Circuit, the Court found that Gamble had alleged enough information for a §1983 claim to be brought in reversing the District Court’s dismissal on failure to state a claim.[20] The majority reversed this decision, finding that on the information provided alone, considered in the light most favorable to the plaintiff, was insufficient to establish deliberate indifference. Justice Stevens criticizes the standard established, while agreeing with the conclusion in this case. In his dissent Justice Stevens writes that “whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it.”[21] Justice Stevens highlights that, typically, constitutional standards are not concerned with the “indifference” of the individuals violating a right, just simply that the right is violated.

It is on this point that I stand with Justice Stevens. The requirement of establishing deliberate indifference, instead of extreme recklessness or negligence, allows for the mishandling of inmate healthcare to go effectively unchallenged in court. If we are to ask pro se inmate litigants to hire an attorney and expert witnesses to ensure their medical treatment is given to them by the government obligated to care for them, instead of providing pathways for the prisons to be held more accountable, we may as well require prisoners to pay for their own medication.

[1] U.S. Const. amend. VIII.

[2] Gregg v. Georgia, 428 U.S. 153, 169 (1976) (internal citations omitted).

[3] Id. at 170.

[4] Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

[5] Gregg, 428 U.S. at 173.

[6] Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).

[7] See id.

[8] Id.

[9] Id. at 104.

[10] Id.

[11] Id. at 105 (Here, the court examines Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) and adopts Justice Reed’s argument that an “unforeseeable accident” is not a violation of the eighth amendment.).

[12] See id. at 104 (Examples given include deliberate indifference of the doctors to a medical need, prison guards denying or delaying access to care, or interference with prescribed treatment.).

[13] Id. at 105-06 (stating that “in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.”).

[14] Id. at 106.

[15] Id. at 107. (stating that “[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act.”)

[16] Black’s Law Dictionary (10th ed. 2014).

[17] See, e.g., Lightsey v. Bessemer Clinic, 495 So.2d 35 (Ala. 1986); Curtis v. Santa Clara Valley Med. Ctr., 2 Cal.Rptr.3d 73 (Cal. Ct. App. 2003); Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F. Supp. 2d 334 (S.D.N.Y. 2005); White v. Vanderbilt Univ., 21 S.W.3d 315 (Tenn. Ct. App. 1999).

[18] See, e.g., U.S. v. Webb, 565 F.3d 789 (11th Cir. 2009); U.S. v. Legree, 205 F.3d 724 (4th Cir. 2000); U.S. v. Reddick, 53 F.3d 462 (2d Cir. 1995).

[19] Estelle, 429 U.S. at 109 (Stevens, J., dissenting).

[20] See Gamble v. Estelle, 516 F.2d 937, 941 (5th Cir. 1975), rev’d, 429 U.S. 97 (1976).

[21] Estelle, 429 U.S. at 116 (Stevens, J., dissenting).

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