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April 24, 2007

Comments

arizonalawdawg

I don't know what the district court was smoking in its "sanction" of dismissing a case because it is not pled to that particular district court judge's satisfaction. I assume the mother filed the initial Complaint pro se? If not, pleading mistakes are almost universally answered by the court with an order to Amend (and maybe a grant of attorney fees to Defendant if one was involved). If the mother was litigating pro se, then the federal courts must grant even more leeway; in the 9th Circuit (Ariz.D.): to the extent of screening the Complaint and filing a "Screening Order" that identifies the remaining colorable claims that require an Answer on behalf of the remaining Defendants. However, the district court erred when it dismissed the federal sec. 1983 claims, but after it did that it is customary to dismiss any pendent state/PR district claims. The mother's problem, I would speculate, on the malpractice claims is that the behavior of the prison doctors and surgeons might be found reasonable when judged under the standard of reasonableness of other doctors and surgeons in Puerto Rico. She also faces a tough road to hoe on her sec. 1983 claim because regarding the medical issues she will have to prove "deliberate indifference" - which is a far more difficult standard than in a medical malpractice claim. A death that occurs in a prison does not always = $$$

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