Civil rights -- Prisoners -- Due process -- Appeal from
dismissal of prisoner's Section 1983 civil rights action alleging state
prevented him from gaining access to physical evidence for purposes of DNA
testing, in violation of his procedural due process rights, prohibition against
cruel and unusual punishment, his right to confrontation, and his right to
access to the courts compulsory process -- District court correctly determined
that it lacks jurisdiction under Rooker-Feldman doctrine over claim that Florida's
DNA access procedures as applied to facts of case fail to meet requirements of
procedural due process -- To extent plaintiff raised substantive due process
right to obtain biological evidence for DNA testing, in order to make a
conclusive showing that he is innocent, claim is without merit, because Supreme
Court's decisions in District Attorney's Office for the Third Judicial District
v. Osborne unambiguously concluded that there is no substantive due process
postconviction right to obtain evidence for DNA testing purposes --
Additionally, actual innocence claim of kind made in this case would be brought
in habeas petition and plaintiff has neither sought habeas relief based on free
standing actual innocence claim, nor has he shown that available discovery in a
habeas proceeding is facially inadequate or that it somehow would be
arbitrarily denied to him -- Claims that it is cruel and unusual punishment to
subject plaintiff to sentence of life imprisonment if there is evidence that
might exonerate him and that plaintiff is entitled to access evidence for DNA
testing under Sixth Amendment because he has a right to government's assistance
in securing favorable witnesses at trial and to put forward evidence that might
influence the determination of guilt or innocence lack merit under Osborne --
Claim that state, by denying plaintiff access to physical evidence, has
effectively deprived him of opportunity to litigate his claim, in violation of
Due Process and Equal Protection Clauses, is foreclosed by Supreme Court and
Eleventh Circuit precedent, which require a litigant asserting an access claim
to show actual injury by proving he has colorable underlying claim for which he
seeks relief, because plaintiff failed to establish in support of his access to
courts claim necessary prerequisite of an actual injury
CARL ROBERT ALVAREZ,
Plaintiff-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF FLORIDA, STATE
ATTORNEY FOR THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendants-Appellees.
11th Circuit.
Criminal law -- Concealing location of minor in violation of
court order -- Error to deny motion for judgment of acquittal where state did
not prove that defendant concealed location of child in violation of court
order, as there was no court order expressly telling defendant that she was
required to disclose location of child to court -- Statute is not ambiguous
ANALYN
MERKLE n/k/a ANALYN G. MEGISON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd
District.
Criminal law -- Fines and surcharges -- Error to impose
discretionary fines in written judgment where those fines were not orally
pronounced -- Surcharges associated with those fines were likewise improperly
imposed
MARSHALL
S. LAMOREAUX, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.
Employer-employee relations -- Employee benefit plans --
Retirement benefits -- Employee Retirement Income Security Act -- Allegations
that fiduciaries of retirement plan, which was structured both as an “eligible
individual account plan” and an “employee stock ownership plan,” breached their
fiduciary responsibilities under ERISA by continuing to purchase and failing to
sell employer's stock even though they knew based on nonpublic information that
stock price probably was inflated; provided inaccurate information to plan
participants in fiduciary communications; and failed to disclose to plan
participants certain business practices by employer that had inflated
employer's stock price -- Discussion of prudence and diversification in context
of EIAP and ESOP and of presumption described in Moench v. Robertson --
District court did not err in dismissing plaintiffs' claims that defendants
breached fiduciary duties of prudence and loyalty -- Prudence -- Although
district court improperly concluded that plaintiffs' claim that defendants
acted imprudently in acquiring and holding employer's stock was actually a
claim that defendants should have diversified the plan's investments and erred
in concluding, alternatively, that defendants had no discretion not to invest
in employer's stock, defendants' motion to dismiss prudence claim was properly
granted based on district court's second alternative holding that plaintiffs'
allegations were insufficient to rebut presumption of prudence -- Claim was not
a diversification claim where plaintiffs alleged that defendants acted
imprudently because they knew stock was overpriced, not merely that stock made
up too large a percentage of the company stock fund -- Fact that plan required
that plan be invested “primarily” in company stock did not require defendants
to invest exclusively in the stock and did not eliminate discretion to sell
company stock or stop investing in it -- ESOP fiduciary is presumed prudent for
investing in, or continuing to hold, employer securities consistently with the
terms of the plan, and that presumption can be overcome only by showing an
abuse of discretion -- Although fiduciary is generally required to invest
according to terms of plan, when circumstances arise such that continuing to do
so would defeat or substantially impair purpose of plan, a prudent fiduciary
should deviate from those terms to the extent necessary, and it is an abuse of
discretion not to do so -- It is not necessary, as district court held, that
company be on the “brink of financial collapse” in order to demonstrate abuse
of discretion -- Because abuse of discretion standard applies to fiduciary's
decision to continue to invest or remain invested in company stock in obedience
to plan's directions, abuse of discretion is element of a claim that the
fiduciary's decision was imprudent, and district court properly dismissed
prudence claim for failure to state cause of action where plaintiffs failed to
plead facts sufficient to raise plausible inference that fiduciaries abused
their discretion by following plan's directions -- Loyalty -- District court
did not err in dismissing claims that defendants violated fiduciary duty of
loyalty by making misrepresentations in SEC filings that were sent to, or were
accessible to, plan participants or by failing to inform plan participants of
employer's business practices and the effect those practices would likely have
on stock price when they became public
RAYMOND A. LANFEAR, RANDALL W. CLARK, ANTONIO FIERROS,
Plaintiffs-Appellants, TERRY CLARK, et al., Plaintiffs, v. HOME DEPOT, INC.,
ROBERT L. NARDELLI, JOHN I. CLENDENIN, MILLEDGE A. HART, III, KENNETH G.
LANGONE, et al., Defendants-Appellees, LARRY M. MERCER, et al., Defendant. 11th
Circuit.
Mortgage foreclosure -- Default -- Vacation -- Service of
process -- Defects -- Substitute service on defendant at address in foreign
state at which wife was residing was not valid where it was not shown that this
address was defendant's “usual place of abode” -- Evidence showing that
defendant and his wife had separated two months earlier, that a petition for
dissolution of marriage was pending, and that defendant was living in a
different city was sufficient to rebut presumed validity of substitute service
-- Neither copy of personal financial statement dated four days after process
was served, in which defendant listed the wife's address as his address, nor
testimony by plaintiff's vice president that defendant told him he and his wife
were reconciling was sufficient to establish that wife's address was defendant's
usual place of abode at time of service -- Error to deny motion to set aside
final judgment of foreclosure and foreclosure sale for invalid service of
process
STEPHEN
H. HECK, Appellant, v. BANK LIBERTY, SUCCESSOR IN INTEREST TO CHAMPION BANK BY
ASSET ACQUISITION FROM THE FDIC, AS RECEIVER FOR CHAMPION BANK, Appellee. 1st
District.
Torts -- Automobile accident -- Evidence -- Deposition of
defendant driver -- No abuse of discretion in allowing deposition of defendant
to be published to jury and read into record at rescheduled trial after defense
counsel filed affidavit detailing his unsuccessful efforts to locate defendant
for several weeks prior to trial and asserting that client had taken a
temporary job assignment out of state with a federal military agency, defendant
had stated to defense counsel that she was uncertain about her ability to
contact counsel while on assignment, and counsel had been unable to obtain any
information from employer about defendant's whereabouts -- Being called away
for compelling reason was sufficient to show deponent's absence was not
self-procured
TARA
ASHLEY SUZANNE HUTCHINGS, Appellant, v. PATRICIA ANN LILES, Appellee. 1st
District.
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