Oop. Gotta watch GBBO so I'm ready for my call with Ma this weekend.
Gabriel Malor
@gabrielmalor.bsky.social
22K followers 215 following 13K posts
Oklahoman in Virginia. Appellate attorney. I talk about federal court decisions. A lot. Sometimes the most you can do is the best you can do. gabriel.malor@gmail.com
![This is not, as AUSA Chupp argues, an instance of “weak” evidence; it is an instance of no evidence. (Doc. 26 at 6). While AUSA Chupp may have desired to “preserve an argument based on an inference,” that inference was wholly unreasonable, unsupported by the evidence, and antithetical to the ethical rules that guide attorney conduct. That AUSA Chupp’s subsequent “withdrawal” of the accusation would have been “curative” had Petitioner brought a Rule 11 Motion (rather than the Court sua sponte) does not excuse his Rule 11 obligations here. In his April 4, 2026 Sur-Response, AUSA Chupp “concede[d] that no obstruction took place in December” not because of any “new](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreidqznirrd6vo3nsc24dm5jaieexvtucbx7sxt5rojrfts3tvs646e)
![All told, the Supreme Court’s decision to stay the district court’s vacatur order in D.V.D. must “inform how [we] should exercise [our] equitable discretion in like cases.” Boyle, 145 S. Ct. at 2654. And this is not just a like case; in some respects, it is the same one. We understand Ojukwu’s frustration with these events. A district court involuntarily forced her into a class action in a faraway venue and thereby undermined her ability to pursue her own equitable relief in a court closer to her Ohio home. The choice to certify the class also “foreclos[ed] adjudication by a number of different courts and judges” (which could have helped the Supreme Court render its ultimate decision) and increased “the pressures on [that] Court’s docket.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). So courts should always exercise caution when certifying a “nationwide” class action. Id. Perhaps the Supreme Court will soon clarify whether the district court properly exercised that caution in D.V.D. In the meantime, though, the Court has made clear that the equities favor the government. We must reach the same result in this similar case. Therefore, the motion for a stay of removal is DENIED.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreiclljqoghg4qsue4mcbplowrr5mmcsd4n4vdekqe3hi74hqrft5nm)
![Neither case clearly established that the Eighth Amendment required Pancheri to transfer Miles-El to a prison without a dog program. In Hunt, despite the prisoners’ pulmonary and heart disease, we remanded to determine whether tobacco-smoke exposure posed a sufficiently serious threat to their health. 974 F.2d at 735–36. Here, Miles-El’s chronic-care report did not specifically address any dog dander allergy. It documented only his asthma generally and identified “animals” as one of several aggravating factors, along with “change in weather, exercise and pollen.” R. 1-1, Chronic Care Report, PageID 21. Such a broad description of Mile-El’s asthma, encompassing a list of things that everyone encounters in life, gives us pause before concluding that the report could have given prison officials sufficient notice that MilesEl’s exposure to dogs in particular would constitute an infliction of “cruel and unusual punishment[].” U.S. Const. amend. VIII. Even focusing only on the mention of “animals,” the report did not indicate how severely animal exposure affected him or what kinds of animals or degree of exposure triggered his symptoms. And notably, the report also indicated that inhalers](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreid6fl2h6c35fib3p4dp455uzuyhv4nbn52lz73enprxhb5ktyhhwm)
![Byrum’s specific factual allegations regarding the total failure of the jail staff to identify and respond to Lewis’s obvious drug-related medical emergency and to follow the jail’s own policies permit the reasonable inference that the County’s training was inadequate. This is not a situation where the failure to recognize and respond to Lewis’s needs was consistent with “an otherwise sound program” that was “negligently administered,” nor a scenario where “adequately trained officers” made the “occasional[] . . . mistake[].” Dissent at 29 (quoting City of Canton, 489 U.S. at 391). As alleged, this was a comprehensive failure to provide medical treatment and follow clear jail policies to screen and monitor detainees with medical needs by every single member of the jail staff. The combined force of the factual allegations contained in the complaint plausibly establish that the staff was not adequately trained on how to identify and respond to drug-related medical emergencies, and to follow the jail’s own screening and monitoring protocols. This reasoning is not novel—it is rooted in the ordinary standards for assessing the sufficiency of a complaint on a Rule 12(b)(6) motion to dismiss.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreif7gzv5m3nt254nlwkqxxj3szvdpurr53jdgdsob44rclf3igjyzm)
![Document Number
Date FiledDescription
35
Oct 8, 2026
COURT ORDER filed denying Motion for stay pending appeal [33]. Copies to all parties. [1002071090] [26-2230] AW
Main Document
Court order filed](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:24vva42nxim6zbcmnozegoef/bafkreig4sohpq4lj46twaal6woxclsfhgm55jrhoj557v4juj7mld6bn2y)
![Here, most importantly, Defendants have not identified any process Plaintiff received before they removed him to Equatorial Guinea. Their declarant attests only that
Equatorial Guinea provided diplomatic assurances, that the State Department found them
credible, and that ICE followed the Guidance. No. CV-26-02888-PHX-JCH, Doc. 15-1
¶¶ 5–8. Under the Guidance, those assurances permit removal “without the need for further
procedures.” (Doc. 9-1 at 2–3.) Defendants maintain that “the government has in fact
implemented procedures to protect [Plaintiff’s] interest” because the Guidance prohibits
removal absent either credible assurances or an individual hearing. (Doc. 9 at 5.) But the
assurance route is the absence of individualized process: it provides no notice of the
country of removal and no opportunity to be heard. The Court finds this insufficient to
abide by due process prior to removing Plaintiff to a third country. See Smith, No. CV-26-
04065-PHX-SHD (JFM), Doc. 19 at 6 (holding that reliance on diplomatic assurances “is
insufficient process before removing Petitioner to a third country”).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:2vtbmhmrwzbqcfv4we4uxzzt/bafkreiglijejdqoympsywdoytshknwipvcbhndri77v4mae2cpgeyeudcu)
![Defendants also contend Plaintiff “focuses on the lack of notice regarding the
country of removal as if [his] fear depends on receiving that notice.” (Doc. 9 at 11.) But
notice is the predicate for the opportunity to be heard; a person cannot raise a fear-based
claim against removal to a country he does not know he will be sent to. In any event,
Plaintiff did express fear and ask for a fear interview prior to removal, and he was refused.
(Doc. 1 ¶ 1; Doc. 1-1 at 27.)
The Court’s conclusion rests on binding Ninth Circuit authority and does not depend
on the D.V.D. judgment. It is, however, consistent with that judgment, which declared that
class members have the right to meaningful notice and a meaningful opportunity to raise a
country-specific claim before removal to any third country, 821 F. Supp. 3d 102, and which
the First Circuit affirmed, D.V.D., 2026 WL 2797801.
Accordingly, Plaintiff has established actual success on Count One. Plaintiff’s
removal to Equatorial Guinea without notice and a meaningful opportunity to raise a
country-specific claim against removal there violated the Due Process Clause of the Fifth
Amendment. Andriasian, 180 F.3d at 1041.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:2vtbmhmrwzbqcfv4we4uxzzt/bafkreiceeuxgrjplhokrat6kv2qsso5lhsbs3rtftuyxlwhhxbmk6ynhma)