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Zombie Federal Courts – first trimester 2015

April 29, 2015

The first trimester of 2015 is basically over and here’s a roundup of all the “zombie” mentions in Federal courts so far this year.

Mostly these are appeals from Social security cases (easily identifiable by the defendant name being either Commissioner of Social Security, or more frequently the name of the current commissioner, currently Ms. Colvin, and still one case named with the previous Commissioner, Mr. Astrue). Most of these social security zombie cases are quotations from the record about the claimant’s behavior and/or their feelings of incapacitation, often cause by taking some kind of prescribed pharmaceutical.

Additionally in this set, notice a case about the LA Zombies gang, a citation distinguishing the facts from the Baribeau zombie dance party case and most recently (listed last in this list), from just this past week, denial of a habeas petition on a death penalty case in Texas.

  • Tomlin v. Colvin,
    No. 4:13CV2424 SPM,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION,
    2015 U.S. Dist. LEXIS 286,
    January 5, 2015

    Plaintiff visited Dr. Gaskin on August 11, 2011, and reported that he felt like a zombie. Dr. Gaskin determined to decrease plaintiff’s Abilify. Plaintiff’s current medications included Albuterol, Allopurinol, Aripiprazole, Atenolol, Bupropion, Capsaicin, Lisinopril, Loperamide, Omeprazole, Topiramate, and Venlafaxine. Plaintiff reported no side effects. Plaintiff reported having no migraines since taking Topamax.

  • Milan v. City of Evansville,
    Cause No. 3:13-cv-1-WTL-WGH,
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, EVANSVILLE DIVISION,
    2015 U.S. Dist. LEXIS 750,
    January 6, 2015

    officers performing surveillance on Milan’s home noticed Derrick Murray, a known LA Zombies gang member and a “thorn to the police department for a while,” two houses down from Milan’s home on his mother’s front porch. Murray had a prior conviction for intimidating a police officer and had sprayed “187” on an officer’s garage.

    and

    Detective Seibert also considered a possible familial relationship between Milan and LA Zombies gang member Marc Milan, due to their shared last name.

  • Hennion v. Colvin,
    CASE NO. 3:13-cv-00268-MWB-GBC,
    UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA,
    2015 U.S. Dist. LEXIS 25466,
    January 14, 2015,
    Adopted by, Remanded by Hennion v. Colvin, 2015 U.S. Dist. LEXIS 24637 (M.D. Pa., Mar. 2, 2015)

    When Celexa made him feel like a “zombie,” he switched back to imipramine and then added Ativan.

  • Henning v. Colvin,
    Case No. 5:14cv87-CAS,
    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION,
    2015 U.S. Dist. LEXIS 6248; 211 Soc. Sec. Rep. Service 468,
    January 20, 2015

    Prior to the hearing, the claimant alleged that her medication side effects included sleepiness, increased rage, increased depression, increased suicidal thoughts, problems with attention and short-term memory, and zombie-like/comatose effects that made it hard to function. However, she admitted that she was not taking medications at times

  • Alaura v. Colvin,
    CAUSE NO. 1:13-CV-287,
    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA, FORT WAYNE DIVISION,
    2015 U.S. Dist. LEXIS 14394,
    February 6, 2015

    Alaura reported that he was experiencing excessive daytime tiredness, difficulty concentrating (“zombie-like state”), trouble falling asleep, unsteadiness and possible vertigo when he moved rapidly, fluctuating headaches, light sensitivity, and pain that increased with exertion.

  • Withrow v. Colvin,
    No. 1:14-cv-3037-FVS,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON,
    2015 U.S. Dist. LEXIS 18910; 212 Soc. Sec. Rep. Service 614,
    February 11, 2015

    Plaintiff was 24 years old at the time of the hearing. (Tr. 53.) She testified she finished the ninth grade. (Tr. 36.) She did not start tenth grade. (Tr. 37.) She started living on her own at age 16. (Tr. 37.) She testified she doesn’t really do anything during the day because she is depressed. (Tr. 41.) She sees a counselor once a month for her depression. (Tr. 41.) She has tried medication for depression, but it made her feel “like a zombie” and she would “freak out.” (Tr. 43.) She sleeps a lot. (Tr. 60.) Some days she does not get out of bed. (Tr. 60.) She has anxiety. (Tr. 44.) Plaintiff was diagnosed with ADHD as a child. (Tr. 50.) She has work experience housekeeping and at a fast food restaurant. (Tr. 51.) She feels she cannot work a 40-hour workweek because of her depression, anxiety and mood swings. (Tr. 64.) She feels like she needs to be on medicine and she needs help with her problems. (Tr. 53.) She has no friends. (Tr. 54.) She had a previous boyfriend who was abusive. (Tr. 56.) She has nightmares and feels guilty, worthless, helpless and bad about herself. (Tr. 56-57.) She does not feel safe. (Tr. 57.) She snaps at people by raising her voice and swearing. (Tr. 58-59.) She loses track of what she is doing and starts something else. (Tr. 61.) She has a hard time keeping track of things like her keys and wallet. (Tr. 61.)

  • Whistler v. Colvin,
    Case No. CIV-13-388-RAW-KEW,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA,
    2015 U.S. Dist. LEXIS 35152,
    February 17, 2015,
    Adopted by, Remanded by Whistler v. Colvin, 2015 U.S. Dist. LEXIS 34194 (E.D. Okla., Mar. 19, 2015)

    She reported discontinuing the Remeron because it made her “feel like a Zombie the next day.” Claimant continued to feel very depressed, very anxious, and was having lots of panic attacks. Dr. Farrow diagnosed Claimant with bipolar disorder and PTSD.

  • Zerbst v. Comm’r of Soc. Sec.,
    CIVIL ACTION NO. 14-cv-10754,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION,
    2015 U.S. Dist. LEXIS 37857,
    February 20, 2015,
    Adopted by, Summary judgment granted, in part, summary judgment denied, in part by, Remanded by Zerbst v. Comm’r of Soc. Sec., 2015 U.S. Dist. LEXIS 36288 ( E.D. Mich., Mar. 24, 2015)

    During the day he mainly stays in his room because he does not like to deal with anything or anybody. T 44. He does not sleep well at night because numbness and tingling in his arms wakes him up at night, and his medication makes him sleep periodically throughout the day as it makes him “extremely drowsy.” T 44. Wellbutrin turns him into a “zombie,” and Xanax “knocks [him] out cold.” T 49. He does not walk the dog because he does not like to get too far from his house. T 44. He tried to go to the grocery store by himself, but halfway through the trip he felt like he could not breathe; but he can go with his mother or girlfriend because he feels like they provide a buffer. T 45.

  • Coleman v. Colvin,
    Case No.: 3:13-cv-23805,
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, HUNTINGTON DIVISION,
    2015 U.S. Dist. LEXIS 21000,
    February 23, 2015,

    Nurse Kearns restarted Prozac and discontinued Trazodone, which caused Claimant to feel like a “zombie.” Claimant was instructed to continue with therapy.

  • Fisher v. Dir. of OPS of CDCR,
    Case No.: 1:14-cv-00901-BAM PC,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA,
    2015 U.S. Dist. LEXIS 26597,
    March 4, 2015,

    While in the hospital, Plaintiff was injected with some drug for refusing his medication. It made him lethargic. Plaintiff also was given Zyprexa, which had him walking around like a zombie. Plaintiff alleges that he was overmedicated for the EOP program. He alleges that a Kehea hearing on February 25 came as a surprise to him. (ECF No. 18, p. 7.) Plaintiff met with Inmate Counsel Christopher Reid, who asked if Plaintiff had been served his copies. Plaintiff alleges that he had not in violation of his Fourteenth Amendment rights. The lawyer was aware and they clashed. The lawyer also treated adversarial staff and the judge with deference. The judge dismissed Plaintiff’s Fourteenth Amendment claim.

    Plaintiff contends that the doctors are insensitive to his basic needs and he is overmedicated like a zombie. Plaintiff asserts that his clinician has threatened him with a Department of Mental Health Crisis Bed if he does not attend therapy, which is in a small cage. Plaintiff alleges that the medication he is forced to take gives him tremors, nausea and lethargy. He disagrees with the type of treatment he is receiving.

  • Brady v. Colvin,
    No. 4:13CV2076 RLW,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION,
    2015 U.S. Dist. LEXIS 26910,
    March 5, 2015,

    Plaintiff reported previously taking psychotropic medications, but they made her feel like a “zombie.”

  • Pentakota v. Colvin,
    CA 14-0190-C,
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION,
    2015 U.S. Dist. LEXIS 27387,
    March 6, 2015,

    The claimant alleges disability because of various mental conditions including problems with anxiety, insomnia, manic depression, bipolar disorder, having hallucinations, and being hospitalized for mental problems. According to testimony, she has problems concentrating. She was placed on medications that make her sleepy. She testified that her medications make her feel like a zombie and make her sleep.

    *This Pentakota case also ends with a wonderful footnote about plaintiff counsel’s use of the phrase “atmospheric extraction”

  • White v. Perkins,
    CIVIL ACTION NO. 3:14CV-223-CRS,
    UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY,
    2015 U.S. Dist. LEXIS 29515,
    March 10, 2015

    The Ashbaugh affidavit recites that after the accident “Paul White’s whole person seemed to change…After the wreck, Paul White was like a zombie. His memory got bad, he did not seem to focus on details like he used to about anything…After the wreck, due to these changes, it was not safe for Paul White to work on the property equipment.”

  • Gilmore v. City of Minneapolis,
    Civil No. 13-1019 (JRT/FLN),
    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA,
    2015 U.S. Dist. LEXIS 32090,
    March 16, 2015

    This case is also different than in Baribeau, where the Eighth Circuit, interpreting the same Minnesota disorderly conduct statute, concluded that the police did not have probable cause to arrest a group of anti-consumerism protestors. 596 F.3d at 478. The court first held that the Minnesota Supreme Court’s narrowing construction of the disorderly conduct statute — which holds that the statute only proscribes expressive language or speech that amount to “fighting words” — also applies to expressive conduct as well. Id. at 477. In other words, expressive conduct is only barred under the disorderly conduct statute if it has an effect similar to fighting words — conduct that inflicts injury or tends to incite an immediate breach of the peace. Id. at 475, 477. The plaintiffs in Baribeau were engaged in expressive conduct in order to protest consumerism: they were dressed as zombies, playing loud music, walking around, and coming up close to other members of the public. Id. at 471. The court concluded that the officer defendants did not have arguable probable cause to arrest the protestors, because they were engaged in expressive conduct that “did not amount to fighting words.” Id. at 478. In this case, however, Gilmore does claim that all of his alleged conduct and statements fall under the umbrella of expressive conduct. Indeed, the reports from witnesses of Gilmore’s threat against Glazer, and angry advances and statements against Glazer and the two women, describe combative, threatening, and disruptive conduct that led to a large crowd of people gathering and attempting to intervene. They do not describe the type of expressive conduct at issue in Baribeau.

  • Jackson v. Colvin,
    CASE NO. 5:13-CV-1890-KOB,
    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA, NORTHEASTERN DIVISION,
    2015 U.S. Dist. LEXIS 34158,
    March 19, 2015

    During the evaluation, the claimant told Dr. Rogers that “‘I take so much medication, I fell like a zombie.'” She also stated that her medication side effects impair her ability to function.

  • Meyen v. Colvin,
    Civil No.: 3:13-cv-00936-JE,
    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON,
    2015 U.S. Dist. LEXIS 53957,
    March 19, 2015

    Plaintiff’s weekly injection of pegylated interferon (peg IFN) “knocks [him] out” for three or four days. During that time he is like “a zombie,” moving slowly and feeling “drained.” He spends most of the day lying in bed or in a chair. Before starting treatment he experienced fatigue but it was less severe.

  • Howell v. Comm’r of Soc. Sec.,
    Case No. 13-cv-13444,
    UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION,
    2015 U.S. Dist. LEXIS 36513,
    March 24, 2015

    The treatment notes consistently indicate that he was staying sober and working hard on his treatment, and that although he was prescribed psychiatric drugs, he refused to take them. He told one of his treatment providers: “he took one or two doses of his medication and felt like a zombie and didn’t like the feeling at all, would prefer to be without them. States he doesn’t feel like the problem is present when he is not using street drugs.”

  • Marconi v. Colvin,
    CASE NO. 1:13-cv-02531-GBC,
    UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA,
    2015 U.S. Dist. LEXIS 39195,
    March 27, 2015

    Plaintiff’s husband also testified that he set out a daily list of chores for Plaintiff to do, otherwise, “[s]he’d sit in front of the TV all day long like a zombie.”

  • Carey v. Astrue,
    Civil Action No. 10-413 GMS,
    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE,
    2015 U.S. Dist. LEXIS 39851,
    March 30, 2015

    Carey reported to her therapist on May 10, 2006 that she stopped taking Wellbutrin because she felt like a “zombie” and the medication was hindering her ability to clean. (Id. at 12, 272.) On May 17, 2006 Carey reported to Dr. Nixon that she stopped taking the Wellbutrin because it made her irritable, and the Ritalin was not helping. (Id. at 270.) Instead, she took Xanax, which was provided by a friend. (Id.)

  • Denny v. Colvin,
    Case No. 14-3143-CV-S-ODS,
    UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, SOUTHERN DIVISION,
    2015 U.S. Dist. LEXIS 47836,
    April 13, 2015

    In January 2012 Plaintiff discussed with Dr. Wang the need for him to complete a Medical Source Statement (“MSS”). It was also during this meeting that Plaintiff discussed (apparently for the first time) that the “zombie apocalypse is ready to begin” and she was “prepared to survive.” Dr. Wang diagnosed her as suffering from migraine headaches (resolved), mild polysubstance abuse, and disassociative disorder not otherwise specified.

  • Davila v. Stephens,
    Civil Action No. 4:13-CV-506-O (death-penalty case),
    UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION,
    2015 U.S. Dist. LEXIS 51854,
    April 21, 2015

    Regarding Davila, Olivas testified that he was diagnosed with ADHD5 when he was a child and had very poor vision. Id. at 69:22-24. He additionally had a difficult time controlling his temper. Id. at 99:22-25. Although he was prescribed Ritalin for his ADHD, Olivas quit administering the medication to him because “[w]hen he took it, . . . he was like a zombie.” Id. at 70:12-17. As a student, Davila “had good grades until high school.” Id. at 71:1-2. When he was twelve or thirteen, Davila began wearing colored clothing suggesting that he was involved in gang activity. Id. at 71:14-25. Olivas often picked Davila up from school and he was “beat up.” Id. at 82:14-15. His teachers additionally reported that Davila “was exhibiting behaviors that are unacceptable in the classroom, and at times [was] endangering the lives of other students in [the] classroom.” Id. at 100:4-8.

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