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Nye Frank

Adult Protective Services - General - 0 views

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adult protective services general

shared by Nye Frank on 11 Nov 09 - Cached
  • Nye Frank on 11 Nov 09
     
    "Page 1 DEPARTMENT OF HUMAN SERVICES SENIORS AND PEOPLE WITH DISABILITIES DIVISION OREGON ADMINISTRATIVE RULES CHAPTER 411 DIVISION 20 ADULT PROTECTIVE SERVICES -- GENERAL 411-020-0000 Purpose and Scope of Program (Effective 7/1/2005) (1) Responsibility: The Department of Human Services (DHS) Seniors and People with Disabilities (SPD) has responsibility to provide Adult Protective Services to older adults and to adults with disabilities whose situation is within its jurisdiction to investigate. (2) Intent: The intent of the program is to provide protection and intervention for adults who are unable to protect themselves from harm and neglect. (3) Scope of Services: The scope of services includes: (a) Receiving reports of abuse, neglect or self-neglect; (b) Providing and documenting risk assessment of reported victims; (c) Conducting and documenting investigations of reported wrongdoing; and (d) Providing appropriate resources for victim safety. (4) Availability: Adult Protective Services are available from the Department to any adult resident of a DHS-licensed facility, to Nursing Facility residents regardless of age, and to any adult residing in the community who meets the eligibility criteria listed in OAR 411-020-0015. Page 1 of 27 Page 2 (5) Statutory and Administrative Rule Guidance: Oregon has adopted laws and administrative rules to address different types of abuse or neglect to vulnerable adults. See Section 411-020-0010, Authority and Responsibility. (6) Intervention Model: (a) As a human services agency, the Department embraces a social model of intervention with a primary focus on offering safety and protection to the reported victim. The over-arching ethical value in Adult Protective Services is the obligation to balance the duty to protect older adults and adults with disabilities with the duty to protect their rights to self-determination. (b) The Department relies upon other key sources, such as law enforcement, legal, medical, and regulatory professi
Nye Frank

An Elder Fights the Denial of Medicaid by Division of Medical Assistance and the Hearin... - 0 views

www.falseallegations.com/elderly-medical-assistance.htm

denial of medicaid constitutional rights

shared by Nye Frank on 16 Mar 10 - Cached
  • Nye Frank on 16 Mar 10
     
    STANDARD OF REVIEW When determining a motion to dismiss a complaint for failure to state a claim, allegations of the complaint, as well as any reasonable inferences [and annexed exhibits] which may be drawn therefrom in plaintiff's favor, are to be taken as true. Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 321 (1998). Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991) and cases cited. See also Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979); Nader v. Citron, 372 Mass. 96, 98 (1977). Dismissal is also not appropriate where GiGi is entitled to any form of relief for any wrong or injury. Brum, at 321. Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). Massachusetts Declaration of Rights, article XI. "A complaint is not subject to dismissal if it could support relief on any theory of law" [Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 89 (1979)], "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted). "A complaint should [also] not be dismissed simply because it asserts a new or extreme theory of liability or improbable facts." Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 934 (1983). "[I]t is important that new legal theories be explored and assayed in light of actual facts rather than a pleader's suppositions." New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 30 (1988) quoting 5 Wright & Miller, Federal Practice and Procedure, §1357 at 603 (1969 and supp. 1987). Patriarca v. Center for Living and Working, Inc., 1999 WL 791888 at 4 (Mass.Super. Sept. 8, 1999) (Wernick, J.). ARGUMENTS 1.Where Article V of the Massachusetts Declaration of Rights requires all public employees of the three branches of the government of the Commonwealth of Massachusetts to be accountable to the people at all times, this court is precluded from applying
Nye Frank

due process: West's Encyclopedia of American Law (Full Article) from Answers.com - 0 views

www.answers.com/due-process

due process CONSTITUTIONAL

shared by Nye Frank on 31 Dec 09 - Cached
  • Legal proceedings carried out fairly and in accord with established rules and principles. Due process standards are sometimes referred to as either substantive or procedural. Substantive due process refers to a requirement that laws and regulations be related to a legitimate government interest (e.g., crime prevention) and not contain provisions that result in the unfair or arbitrary treatment of an individual. The 5th Amendment to the Constitution of the United States states that "no person shall…be deprived of life, liberty, or property, without due process of law." This right was extended to the states by the 14th Amendment (1868). Fundamental to procedural due process are adequate notice before the government can deprive one of life, liberty, or property, and the opportunity to be heard and defend one's rights. The boundaries of due process are not fixed and are the subject of endless judicial interpretation and decision making. See also rights of the accused; double jeopardy. For more information on due process, visit Britannica.com.
Nye Frank

NCEA: Clearinghouse on Abuse and Neglect of the Elderly (CANE) - 0 views

www.ncea.aoa.gov/...CANE.aspx

Crime victims elder abuse

shared by Nye Frank on 16 Mar 10 - Cached
  • Nye Frank on 16 Mar 10
     
    9 Table of Contents Page I. Adult Protective Services Cases 11 II. Introduction 11 A. Definition of Adult Protective Services 12 B. Background 12 C. Attempts at a Nationwide Picture 12-13 III. Purpose 13-14 IV. Methods 14 A. Sample 14 B. Procedure 14 C. Data Collection Instrument 15 D. Study Limitations 15 V. Findings 15 A. Statutory and Program Information 15-16 B. Statutorily Authorized Populations Served by APS 17 C. Program Administration 17-18 D. Investigatory Authority 18-19 E. Reporters of Elder/Adult Abuse 19-20 F. Failure to Report Abuse 20-21 G. Timeframes for Failure to Report Abuse 22 H. Prosecution Rates for Failure to Report 22 VI. Investigatory Requirements 22 A. Time Frames for Beginning an Investigation 22-23 B. Length of Investigation 23 C. Categories of Alleged Mistreatment Investigated by APS 24 VII. Reports Received, Reports Investigated, and Reports Substantiated 24 A. Total Number of Reports Received 24-25 B. Numbers of Reports by Complainant 25-26 C. Total Number of Reports Investigated 26 D. Total Number of Reports Substantiated 27-29 E. Substantiated Reports by Age Categories 29-30 F. Allegations Substantiated by Category 30-31 VII. The Victims in the Reports 31 A. Gender 31-32 B. Race/Ethnicity of Victims 32 C. Age of Victims 33-34 D. Reports/Investigations by Setting 34-35
Nye Frank

FindLaw | Cases and Codes - 0 views

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1983 indifference minimum in standard case

shared by Nye Frank on 29 Jul 09 - Cached
  • To sustain a S 1983 civil rights action, a plaintiff must show "(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that [such] conduct deprived the plaintiff of a federal constitutional or statutory right." 2 Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990). Here, it is undisputed that defendants were acting under color of state law. At issue here is whether Officer Smith, the Sacramento County Sheriff's Department, or Sacramento County engaged in conduct that deprived Lewis of a federally protected righ
    • Nye Frank
      Nye Frank on 29 Jul 09
  • F.2d 272 (6th Cir. 1990) (noting that the Supreme Court's reasoning in Tennessee v. Garner, 471 U.S. 1 (1985), likely "preserve[d] Fourteenth Amendment substantive due process analysis for those instances in which a free citizen is denied his or her constitutional right to life through means other than a law enforcement official's arrest, investigatory stop or other seizure"), cert. denied, 498 U.S. 851 (1990).
  • But when a law enforcement officer arbitrarily acts to deprive a person of life and personal security in the course of pursuing his official duties, constitutional due process rights may be implicated. Daniels, 474 U.S. at 331 ("The touchstone of due process is protection of the individual against arbitrary action of government."). Section 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels, 474 U.S. at 330 . See Daniels, 474 U.S. at 330 . The underlying constitutional rights at issue here are substantive due process rights to life and liberty or personal security. In Daniels, the Supreme Court held that where an official's or government entity's conduct constitutes mere negligence, no substantive due process violation occurs. Daniels, 474 U.S. at 328 . Daniels expressly left open the question whether something less than intentional conduct such as recklessness or gross negligence would suffice "to trigger the protections of the Due Process Clause." Id. at 334 n.3. But in City of Canton v. Harris, 489 U.S. 378 (1989), the Court held that nonintentional government conduct can violate the Due Process Clause and thus lead to S 1983 liability. City of Canton held that a municipality may be liable for a failure to train its employees when such failure demonstrates "deliberate indifference to rights of persons with whom police come into contact." Id. at 388.
  • ...9 more annotations...
  • Five circuits have addressed S 1983 liability in the context of high-speed pursuits. These circuits have applied various labels to the standard of conduct that may lead to liability. See, e.g., Fagan v. City of Vineland, 22 F.3d 1296 (3rd Cir. 1994) (en banc) (overruling previous reckless indifference standard and adopting shocks the conscience standard); Medina v. City and County of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992) (reckless disregard); Temkin v. Frederick County Comm'rs, 945 F.2d 716, 723 (4th Cir. 1991) (shocks the conscience), cert. denied, 502 U.S. 1095 (1992); Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir. 1989) (holding gross negligence insufficient but not stating what standard should be applied); Jones v. Sherrill, 827 F.2d 1102, 1106 (6th Cir. 1987) (holding gross negligence or outrageous conduct sufficient in some circumstances). 4
  • In one such due process case, we held that either "gross negligence, recklessness, or `deliberate indifference'" was sufficient to state a substantive due process violation. Wood v. Ostrander, 851 F.2d 1212, 1214 (9th Cir. 1988) ("Wood
  • I"), reh'g granted and opinion modified by, 879 F.2d 583 (9th Cir. 1989) ("Wood II"), cert. denied, 498 U.S. 938 (1990). Relying on the standard set out in Wood I, we later held that "grossly negligent or reckless official conduct that infringes upon an interest protected by the Due Process Clause is actionable under S 1983." Fargo v. City of San Juan Bautista, 857 F.2d 638 (9th Cir. 1988). But Fargo's grossly negligent standard was explicitly based on Wood I, which was modified on rehearing and superseded by Wood II. In Wood II, we stepped back from the grossly negligent standard. We noted that an intervening Supreme Court decision, City of Canton, 489 U.S. 378 , had called into question this standard as set forth in Wood I and Fargo. Wood II, 879 F.2d at 588.
  • In Fargo, we defined gross negligence as "`more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.'" Fargo, 857 F.2d at 641 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts S 34, at 212 (5th ed. 1984)). We also noted that an officer's state of mind is not an issue in a claim based on gross negligence, "although the contrary may be true where the claim involves recklessness." Id. at 642. Although we declined to decide whether an innocent state of mind would negate recklessness or "whether recklessness may be presumed conclusively from conduct," we did note that recklessness and deliberate indifference are equivalent in the sense that they both generally refer to conduct involving "a `conscious disregard' of public safety." Id. at 642 n.7. We also said that, "where state officials have notice of the possibility of harm, `negligence can rise to the level of deliberate indifference to or reckless disregard for' the victim." Id. (quoting Davidson v. Cannon, 474 U.S. 344, 357 (1986) (Blackmun, J., dissenting)). Because we concluded that a triable issue of fact remained as to whether the police officer's conduct might have been grossly negligent, we found it unnecessary to determine whether the officer's conduct might have risen to the more culpable standard of recklessness. Id. at 643
  • In Wood II, we redefined the standard forS 1983 substantive due process violations by police officers. As explained above, we recognized that the Supreme Court's decision in City of Canton, 489 U.S. 378 , had called into question our decisions in Wood I and Fargo that gross negligence was sufficient. Wood II, 879 F.2d at 588. Analyzing the facts in Wood under City of Canton's deliberate indifference standard, we concluded that there remained a genuine issue of material fact as to whether the police officer in Wood had been deliberately indifferent to the plaintiff's interest in her personal security. Id. at 588.
  • Wood II makes clear that, in this circuit, an officer can be held liable for a S 1983 claim if that officer's conduct is delib erately indifferent to or in reckless disregard of a person's right to life and personal security.
  • Here, plaintiffs have alleged that Officer Smith violated the Sacramento County Sheriff's Department General Order regarding pursuits ("General Order")6 by instituting and then continuing the pursuit even when a reasonable officer would have known that to do so was in reckless disregard of Lewis's and Willard's safety. A violation of police procedures is relevant to determine whether a substantive due process violation has occurred. Fargo, 857 F.2d at 642. Police procedures are designed, in part, to guide officers when they engage in conduct that poses a serious risk of harm to either a suspect or to the general public. See id.
  • The General Order requires an officer to communicate his intention to pursue a vehicle to the sheriff's department dispatch center. But defendants concede that Smith did not contact the dispatch center. The General Order requires an officer to consider whether the seriousness of the offense warrants a chase at speeds in excess of the posted limit. But here, the only apparent "offense" was the boys' refusal to stop when another officer told them to do so. The General Order requires an officer to consider whether the need for apprehension justifies the pursuit under existing conditions. Yet Smith apparently only "needed" to apprehend the boys because they refused to stop. The General Order requires an officer to consider whether the pursuit presents unreasonable hazards to life and property. But taking the facts here in the light most favorable to plaintiffs, there existed an unreasonable hazard to Lewis's and Willard's lives. The General Order also directs an officer to discontinue a pursuit when the hazards of continuing outweigh the benefits of immediate apprehension. But here, there was no apparent danger involved in permitting the boys to escape. There certainly was risk of harm to others in continuing the pursuit.
  • In City of Canton the Supreme Court held that deliberate indifference was the minimum standard of culpability necessary to maintain a S 1983 due process action against a municipality for a policy or custom of inadequate training of police officers. City of Canton, 489 U.S. at 388 . The Court reasoned that a municipality's inadequate training of its employees can only constitute a "policy or custom" when such inadequate training "evidences a `deliberate indifference' to the rights of its inhabitants." Id. at 389. But the Court also specified that the deliberate indifference standard "does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation." Id. at 388 n.8. City of Canton thus did not explicitly overrule our decisions in either Wood I or Fargo because they involved claims of substantive due process violations against individual police officers.
  • Nye Frank on 29 Jul 09
     
    The Supreme Court has held that "[w]here a particular amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266 , 114 S. Ct. 807, 813 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
Nye Frank

721 F.2d 1062 - 0 views

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1983 question law court redress damages color of

shared by Nye Frank on 18 Sep 09 - Cached
  • Nye Frank on 18 Sep 09
     
    The primary question before us in this damage suit under 42 U.S.C. Sec. 1983 (1976) for deprivation of property under color of state law without due process, is whether plaintiff must plead and prove the absence ofadequate state damage remedies as an element of the constitutional tort. We conclude under the authority of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that in section 1983 damage suits for deprivation of property without procedural due process the plaintiff has the burden of pleading and proving the inadequacy of state processes, including state damage remedies to redress the claimed wrong. The plaintiff in this case has failed to carry this burden. The judgment of the court below awarding damages to plaintiff is therefore reversed.
Nye Frank

Notable Court Cases Concerning Constitutional Issues - 0 views

www.lectlaw.com/lws48.htm

constitution

shared by Nye Frank on 31 Dec 09 - Cached
  • CON Argument: The constitution does not provide explicitly for Supreme Court review of state court decisions. Since it must have been foreseen by the drafters that conflicts would arise, the omission is evidence that the framers felt that such a powerful tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy. Thus, once an action is brought in state court, the federal court's sole remedy is to shift it to a lower federal court before it gets to the final court of the state, or simply to advise the high state court that they have improperly interpreted the constitution. The states are dually sovereign with the federal government, and not subject to the laws of Congress which limit their sovereignty.
  • Procedural Posture: The Virginia court, in the original case, found for Hunter The Supreme Court reversed, ordering the Virginia court to enter judgment for Martin under the authority granted by Section 25 of the Judiciary Act which gave the Supreme Court the power to review final decisions of the highest state courts rejecting claims based on federal law. The Virginia state court refused to comply with the order, claiming that Section 25 was unconstitutional, and the Supreme Court had no constitutional right to review the final decisions of the state courts. The case is again being reviewed by the Supreme Court
  • The statute prescribed how the court should decide an issue of fact, and it denied effect to a Presidential Pardon, thus violating the separation of powers.
  • ...1 more annotation...
  • Issue: Whether the Supreme Court has jurisdiction to review state court judgments which concern federal issues, and which are not clearly based on an adequate and independent state law grounds. 5. Holding: Yes. If the state court decision does not] indicate clearly and expressly by means of a "plain statement" that it is alternatively based on bona fide separate, adequate, and independent grounds the Supreme Court has appellate jurisdiction to review the state court ruling.
Sarah Usher

Pass the Police Recruitment Process in One Attempt - 1 views

I was so happy PoliceRecruitmentUK provided me a lot of information about the police recruitment process! They showed me tips and information on what to expect during the selection process. That ...

police jobs

started by Sarah Usher on 08 Jun 11 no follow-up yet
Nye Frank

LegalTips.ORG: State Constitution of California (ARTICLE 6) - 0 views

www.legaltips.org/...article_6.aspx

evidence supreme court mandamus

shared by Nye Frank on 20 May 09 - Cached
  • ARTICLE 6 JUDICIAL SEC. 13. No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
    • Nye Frank
      Nye Frank on 20 May 09
       
      No judgement set aside before entire package reviewed
Nye Frank

Federal Rules of Civil Procedure - 0 views

74.125.155.132/custom

federal rules of court 56 judgement how to summary

shared by Nye Frank on 24 Jul 09 - Cached
  • Nye Frank on 24 Jul 09
     
    le 12. Defenses and Objections - When and How Presented - by Pleading or Motion - Motion for Judgment on the Pleadings 1. Defendant shall answer within 20 days of service or, if service was waived, within 60 days after request for waiver was sent 2. Every defense shall be asserted in the responsive pleading except that the following defenses may be made by motion: 1. Lack of jurisdiction over subject matter 2. Lack of jurisdiction over person 3. Improper venue 4. Insufficiency of process 5. Insufficiency of service of process 6. Failure to state a claim upon which relief can be granted 7. Failure to join a party under Rule 19 Ü If (6) is asserted and matters outside the pleading are consider, goes to Rule 56, summary judgment. 3. Judgment on the Pleadings - mainly used by Π when Δ's responsive pleading doesn't dispute Π's claim 7. Consolidation of Defenses in Motion - If a Rule 12 motion is made, any defense or objection is waived unless exception in (h)(2) 8. Waiver or Preservation of Certain Defenses
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