source_identifier
stringlengths 99
114
| nos_code
stringclasses 151
values | nos_desc
stringclasses 104
values | cause
stringlengths 13
104
⌀ | text
stringlengths 1
2.48M
|
|---|---|---|---|---|
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_17-cv-00233/USCOURTS-caed-2_17-cv-00233-8/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RYAN BIGOSKI ODOM,
Petitioner,
v.
D.G. ADAMS,
Respondent.
No. 2:17-cv-0233 JAM AC P
ORDER
Petitioner has requested a sixty-day extension of time to file a traverse. Good cause
appearing, IT IS HEREBY ORDERED that:
1. Petitioner’s request for an extension of time (ECF No. 41) is granted; and
2. Petitioner shall have sixty days from the service of this order to file a traverse.
DATED: May 13, 2020
Case 2:17-cv-00233-TLN-AC Document 42 Filed 05/14/20 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-01942/USCOURTS-cand-3_15-cv-01942-0/pdf.json | 840 | Trademark | 15:1121 Trademark Infringement | - 1 -
PLAINTIFF GIORDANO BROS., LLC’S REQUEST FOR STAY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NATE A. GARHART (CA Bar No. 196872)
([email protected])
VIJAY K. TOKE (CA Bar No. 215079)
([email protected])
COBALT LLP
918 Parker Street, Bldg. A21
Berkeley, CA 94710
Telephone: (510) 841-9800
Facsimile: (510) 295-2401
Attorneys for Plaintiff
GIORDANO BROS., LLC
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
GIORDANO BROS., LLC, a California Limited
Liability Company,
Plaintiff,
v.
VPC PIZZA IP, LLC, a Delaware Limited
Liability Company,
Defendant.
Case No.: 3:15-cv-01942-EDL
PLAINTIFF GIORDANO BROS., LLC’S
REQUEST FOR STAY
PLEASE TAKE NOTICE that the parties to this action have reached a settlement in
principal and are in the process of reducing that settlement to writing. The parties believe they will
have a settlement agreement signed, and a stipulation to dismiss this action filed, within thirty (30)
days. Plaintiff therefore respectfully request that the Court vacate all upcoming hearings and
appearances, including the Case Management Conference currently set for July 21, 2015, pending
/ / /
/ / /
Case 3:15-cv-01942-EDL Document 14 Filed 07/17/15 Page 1 of 2
- 2 -
PLAINTIFF GIORDANO BROS., LLC’S REQUEST FOR STAY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the parties’ execution of the settlement agreement and filing of the stipulation for dismissal of this
action.
Respectfully submitted.
DATED: July 17, 2015 COBALT LLP
By: /s/ Nate A. Garhart____________
Nate A. Garhart Attorneys for Plaintiff
GIORDANO BROS., LLC
ORDER
Plaintiff’s request for stay is granted. The Case Management Conference is continued to
August 25, 2015 at 10:00 a.m. The Case Management Statement is due August 18, 2015.
Dated: July 17, 2015
Hon. Elizabeth D. Laporte
UNITED STATES MAGISTRATE JUDGE
Case 3:15-cv-01942-EDL Document 14 Filed 07/17/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_08-cv-00357/USCOURTS-cand-3_08-cv-00357-0/pdf.json | 720 | Labor Management Relations Act | 28:1441 Petition for Removal- Labor/Mgmnt. Relations | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
THERESA TOKASHIKI,
Plaintiff(s),
v.
KAISER FOUNDATION HOSPITALS,
et al.,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
No. C 08-0357 BZ
ORDER SCHEDULING
COURT TRIAL AND
PRETRIAL MATTERS
Following the Case Management Conference, IT IS HEREBY
ORDERED that the Case Management Statement is adopted, except
as expressly modified by this Order. It is further ORDERED
that:
1. DATES
Trial Date: Monday, 6/15/2009, 2 - 4 days
Pretrial Conference: Tuesday, 5/26/2009, 4:00 p.m.
Last Day to Hear Dispositive Motions: Wednesday, 3/25/2009
Last Day for Expert Discovery: Friday, 2/13/2009
Last Day for Expert Disclosure: Friday, 2/6/2009
Close of Non-expert Discovery: Friday, 1/30/2009
Exchange Initial Disclosures: Monday, 5/19/2008
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 1 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
If plaintiff wishes to amend her complaint, plaintiff shall
provide defendant with her proposed Second Amended Complaint
by May 19, 2008. Defendant will notify plaintiff by May 27,
2008 if it is willing to stipulate to plaintiff filing the
Second Amended Complaint.
2. DISCLOSURE AND DISCOVERY
The parties are reminded that a failure to voluntarily
disclose information pursuant to Federal Rule of Civil
Procedure 26(a) or to supplement disclosures or discovery
responses pursuant to Rule 26(e) may result in exclusionary
sanctions. Thirty days prior to the close of non-expert
discovery, lead counsel for each party shall serve and file a
certification that all supplementation has been completed.
In the event a discovery dispute arises, lead counsel for
each party shall meet in person or, if counsel are outside the
Bay Area, by telephone and make a good faith effort to resolve
their dispute. Exchanging letters or telephone messages about
the dispute is insufficient. The Court does not read
subsequent positioning letters; parties shall instead make a
contemporaneous record of their meeting using a tape recorder
or a court reporter.
In the event they cannot resolve their dispute, the
parties must participate in a telephone conference with the
Court before filing any discovery motions or other papers.
The party seeking discovery shall request a conference in a
letter filed electronically not exceeding two pages (with no
attachments) which briefly explains the nature of the action
and the issues in dispute. Other parties shall reply in
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 2 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
similar fashion within two days of receiving the letter
requesting the conference. The Court will contact the parties
to schedule the conference.
3. MOTIONS
Consult Civil Local Rules 7-1 through 7-5 and this
Court’s standing orders regarding motion practice. Motions
for summary judgment shall be accompanied by a statement of
the material facts not in dispute supported by citations to
admissible evidence. The parties shall file a joint statement
of undisputed facts where possible. If the parties are unable
to reach complete agreement after meeting and conferring, they
shall file a joint statement of the undisputed facts about
which they do agree. Any party may then file a separate
statement of the additional facts that the party contends are
undisputed. A party who without substantial justification
contends that a fact is in dispute is subject to sanctions.
If plaintiff decides to proceed with this case without an
attorney, she may wish to consult a manual the Court has
adopted to assist pro se litigants in presenting their case.
This manual is available in the Clerk’s Office and online at
http://www.cand.uscourts.gov.
Plaintiff is advised that "[a] motion for summary
judgment under Rule 56 of the Federal Rules of Civil Procedure
will, if granted, end your case. Rule 56 tells you what you
must do in order to oppose a motion for summary judgment.
Generally, summary judgment must be granted when there is no
genuine issue of material fact--that is, if there is no real
dispute about any fact that would affect the result of your
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 3 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
case, the party who asked for summary judgment is entitled to
judgment as a matter of law, which will end your case. When a
party you are suing makes a motion for summary judgment that
is properly supported by declarations (or other sworn
testimony), you cannot simply rely on what your complaint
says. Instead, you must set out specific facts in
declarations, depositions, answers to interrogatories, or
authenticated documents, as provided in Rule 56(e), that
contradict the facts shown in the defendant’s declarations and
documents and show that there is a genuine issue of material
fact for trial. If you do not submit your own evidence in
opposition, summary judgment, if appropriate, may be entered
against you. If summary judgment is granted, your case will
be dismissed and there will be no trial." Rand v. Rowland,
154 F.3d 952, 963 (9th Cir. 1998).
A Chambers copy of all briefs shall be e-mailed in
WordPerfect or Word format to the following address:
[email protected].
4. SETTLEMENT
This case has been referred for assignment to a
Magistrate Judge to conduct in June or July of 2008, if
possible. Counsel will be contacted by that judge's chambers
with a date and time for the conference.
6. PRETRIAL CONFERENCE
Not less than thirty days prior to the date of the
pretrial conference, the parties shall meet and take all steps
necessary to fulfill the requirements of this Order.
Not less than twenty-one days prior to the pretrial
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 4 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
conference, the parties shall: (1) serve and file a joint
pretrial statement, containing the information listed in
Attachment 1, and a proposed pretrial order; (2) serve and
file trial briefs, Daubert motions, proposed findings of fact
and conclusions of law, and statements designating excerpts
from discovery that will be offered at trial (specifying the
witness and page and line references); (3) exchange exhibits,
agree on and number a joint set of exhibits and number
separately those exhibits to which the parties cannot agree;
(4) deliver all marked trial exhibits directly to the
courtroom clerk, Ms. Scott; (5) deliver one extra set of all
marked exhibits directly to Chambers; and (6) submit all
exhibits in three-ring binders. Each exhibit shall be marked
with an exhibit label as contained in Attachment 2. The
exhibits shall also be separated with correctly marked side
tabs so that they are easy to find.
No party shall be permitted to call any witness or offer
any exhibit in its case in chief that is not disclosed at
pretrial, without leave of Court and for good cause.
Lead trial counsel for each party shall meet and confer
in an effort to resolve all disputes regarding anticipated
testimony, witnesses and exhibits. Not less than eleven days
prior to the pretrial conference, the parties shall serve and
file any objections to witnesses or exhibits or to the
qualifications of an expert witness, and any oppositions to
Daubert motions. There shall be no replies.
All motions, proposed findings of fact and conclusions of
law and trial briefs shall be e-mailed in WordPerfect or Word
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 5 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
format to the following address: [email protected].
At the time of filing the original with the Clerk's
Office, two copies of all documents (but only one copy of the
exhibits) shall be delivered directly to Chambers (Room 15-
6688). Chambers’ copies of all pretrial documents shall be
three-hole punched at the side, suitable for insertion into
standard, three-ring binders.
Dated: May 6, 2008
Bernard Zimmerman
United States Magistrate Judge
G:\BZALL\-BZCASES\TOKASHIKI\ORDER SCHEDULING COURT TRIAL AND PRETRIAL MATTERS.wpd
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 6 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
ATTACHMENT 1
The parties shall file a joint pretrial conference
statement containing the following information:
(1) The Action.
(A) Substance of the Action. A
brief description of the
substance of claims and
defenses which remain to be
decided.
(B) Relief Prayed. A detailed
statement of each party's
position on the relief
claimed, particularly
itemizing all elements of
damages claimed as well as
witnesses, documents or other
evidentiary material to be
presented concerning the
amount of those damages.
(2) The Factual Basis of the Action.
(A) Undisputed Facts. A plain and
concise statement of all
relevant facts not reasonably
disputable, as well as which
facts parties will stipulate
for incorporation into the
trial record without the
necessity of supporting
testimony or exhibits.
(B) Disputed Factual Issues. A
plain and concise statement of
all disputed factual issues
which remain to be decided.
(C) Agreed Statement. A statement
assessing whether all or part
of the action may be presented
upon an agreed statement of
facts.
(D) Stipulations. A statement of
stipulations requested or
proposed for pretrial or trial
purposes.
(3) Trial Preparation.
A brief description of the efforts the parties have
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 7 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
made to resolve disputes over anticipated testimony,
exhibits and witnesses.
(A) Witnesses to be Called. In
lieu of FRCP 26(a)(3)(A), a
list of all witnesses likely
to be called at trial, other
than solely for impeachment or
rebuttal, together with a
brief statement following each
name describing the substance
of the testimony to be given.
(B) Estimate of Trial Time. An
estimate of the number of
court days needed for the
presentation of each party's
case, indicating possible
reductions in time through
proposed stipulations, agreed
statements of facts, or
expedited means of presenting
testimony and exhibits.
(C) Use of Discovery Responses. In
lieu of FRCP 26(a)(3)(B), cite
possible presentation at trial
of evidence, other than solely
for impeachment or rebuttal,
through use of excerpts from
depositions, from
interrogatory answers, or from
responses to requests for
admission. Counsel shall
state any objections to use of
these materials and that
counsel has conferred
respecting such objections.
(D) Further Discovery or Motions.
A statement of all remaining
motions, including Daubert
motions.
(4) Trial Alternatives and Options.
(A) Settlement Discussion. A
statement summarizing the
status of settlement
negotiations and indicating
whether further negotiations
are likely to be productive.
(B) Amendments, Dismissals. A
statement of requested or
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 8 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
proposed amendments to
pleadings or dismissals of
parties, claims or defenses.
(C) Bifurcation, Separate Trial of
Issues. A statement of whether
bifurcation or a separate
trial of specific issues is
feasible and desired.
(5) Miscellaneous.
Any other subjects relevant to the trial of the action,
or material to its just, speedy and inexpensive
determination.
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 9 of 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
ATTACHMENT 2
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
JOINT Exhibit No. JOINT Exhibit No.
Date Entered Date Entered
Signature Signature
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
JOINT Exhibit No. JOINT Exhibit No.
Date Entered Date Entered
Signature Signature
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
PLNTF Exhibit No. PLNTF Exhibit No.
Date Entered Date Entered
Signature Signature
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
PLNTF Exhibit No. PLNTF Exhibit No.
Date Entered Date Entered
Signature Signature
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
DEFT Exhibit No. DEFT Exhibit No.
Date Entered Date Entered
Signature Signature
USDC USDC
Case No. CV07-06353 BZ Case No. CV07-06353 BZ
DEFT Exhibit No. DEFT Exhibit No.
Date Entered Date Entered
Signature Signature
Case 3:08-cv-00357-BZ Document 16 Filed 05/06/08 Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_13-cv-04388/USCOURTS-cand-3_13-cv-04388-16/pdf.json | 440 | Other Civil Rights | 42:1981 Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James A. Hennefer (SBN 059490)
[email protected]
HENNEFER, FINLEY & WOOD, LLP
Embarcadero West, 275 Battery Street
Second Floor, Suite 200
San Francisco, CA 94111
Telephone: (415) 421-6100
Facsimile: (415) 421-1815
Attorneys for Plaintiff
J. Augusto Bastidas, M.D.
MICHAEL LI-MING WONG (SBN 194130)
[email protected]
VANESSA A. PASTORA (SBN 277837)
[email protected]
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105-0921
Telephone: 415.393.8200
Facsimile: 415.393.8306
Attorneys for Defendants Good Samaritan Hospital LP, Good Samaritan Hospital,
LLC, Good Samaritan Hospital Medical Staff, Steven M. Schwartz, M.D., and
Bruce G. Wilbur, M.D.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
J. AUGUSTO BASTIDAS, M.D.;
Plaintiff,
vs.
GOOD SAMARITAN HOSPITAL LP,
a Delaware Limited Partnership;
SAMARITAN LLC, a Delaware limited
liability company; GOOD SAMARITAN
HOSPITAL MEDICAL STAFF,
a California unincorporated association;
HCA, Inc., a Delaware corporation;
STEVEN M. SCHWARTZ, M.D.; and
BRUCE G. WILBUR, M.D.
Defendants.
_____________________________________
CASE NO. C-13-4388-SI
JOINT STIPULATION TO CONTINUE
PRETRIAL AND TRIAL DATES AND
[PROPOSED] ORDER
Honorable Susan Illston
Complaint Filed: September 20, 2013
Trial Date: November 30, 2015
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 1 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS, the operative complaint in this action, the Third Amended Complaint, was filed
on August 6, 2014 [Doc. No. 83];
WHEREAS, theCourt issued orders continuing the hearing on Defendants’ Motion to Dismiss
the Third Amended Complaint to December 12, 2014, and continuing the Initial Case Management
Conference to December 12, 2014 [Doc. Nos. 86, 88, 91] and the Court issued its Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss on December 8, 2014 [Doc. No. 93];
WHEREAS, the answer to the Third Amended Complaint was filed on April 15, 2015 [Doc.
No. 99];
WHEREAS, under the original schedule in the Pretrial Preparation Order [Doc. No. 95], the
trial was scheduled for November 30, 2015 with dispositive motions to be heard by September 11,
2015 and expert discovery cut off as of October 30, 2015;
WHEREAS, by Joint Stipulation and Order to Extend Time to File Dispositive Motions and
Continue Related Deadlines [Doc. No. 108, Doc. No 110], on August 7, 2015, the date for filing
dispositive motions was extended to August 28, 2015, the oppositions to dispositive motions were
set for September 11, 2015, the replies were set for September 18, 2015; and the hearing on the
dispositive motions was set for October 2, 2015;
WHEREAS, by Joint Stipulation to Extend Briefing Dates and Order [Doc. No. 119 , Doc.,
No. 120] on September 10, 2015, opposition to the summary judgment was set for September 16,
2015; reply briefs for the summary judgment were set for September 28, 2015; and the hearing on
summary judgment was set for October 16, 2015;
WHEREAS, by Joint Stipulation and Order to Extend Time to File Dispositive Motions and
Continue Related Deadlines [Doc. No. 130] on October 1, 2015 the Court ordered that the Parties
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-1-
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 2 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
shall designate experts by October 26, 2015; the deadline for designating experts for rebuttal was set
for November 2, 2015; and the expert discovery cutoff date set for November 13, 2015;
WHEREAS the motion for summaryjudgement, the opposition to the summaryjudgment and
the reply briefs have all been filed;
WHEREAS, by its Order for Supplemental Briefing [Doc. No. 126] on September 30, 2015
the court ordered supplemental briefs on defendants’ motion for summary judgment to be filed
October 13, 2015 and defendants timely filed their supplemental brief;
WHEREAS, severe injuries resulting from being hit by an automobile, including fractures
of the skull, spine, rib and pelvis, put plaintiff’s counsel in the San Francisco General Hospital
Trauma Unit through October 12, 2015 and have since greatly restricted his ability to work;
WHEREAS, the parties initially agreed and the Court ordered that the plaintiff should file its
Supplemental Brief on October 26, 2015 and that the summary judgment oral argument would be
rescheduled for November 9, 2015 [Doc. No. 134];
WHEREAS the parties have further conferred and agreed, based on the continuing restrictions
on plaintiff’s counsel work, in the interests of providing adequate time for expert designation and and
discovery and pretrial preparation, subject to the Court’s approval, upon the following revised
schedule for the trial date and pretrial dates:
C Plaintiff’s Supplemental Brief, ordered bythe Court on October 26, 2015 shall be filed
November 9, 2015;
C Defendants may file a reply brief to Plaintiff’s Supplemental Brief on November 17,
2015;
C A hearing on the summary judgment motion will be held on November 20, 2015 or
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-2-
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 3 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a date thereafter that is convenient for the Court;
C The parties shall Designate their Expert Witnesses by December 7, 2015;
C Rebuttal Expert Witnesses shall be identified by December 18, 2015;
C Expert Discovery shall be completed by January 15, 2016;
C The Pretrial Conference date shall be February 17, 2016; and
C The Jury Trial date shall be February 29, 2016.
WHEREAS, these modification will not alter the dates of any other events or deadlines fixed
by any Court order.
IT IS HEREBY STIPULATED AND AGREED, subject to the Court’s approval, that:
C Plaintiff’s Supplemental Brief, ordered by the Court on October 26, 2015 shall be filed
November 9, 2015;
C Defendants may file a reply brief to Plaintiff’s Supplemental Brief on November 17,
2015;
C A hearing on the summary judgment motion will be held on November 20, 2015 or
a date thereafter that is convenient for the Court;
C The parties shall Designate their Expert Witnesses by December 7, 2015;
C Rebuttal Expert Witnesses shall be identified by December 18, 2015;
C Expert Discovery shall be completed by January 15, 2016;
C The Pretrial Conference date shall be February 17, 2016; and
C The Jury Trial date shall be February 29, 2016.
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-3-
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 4 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DATED: October 23, 2015 HENNEFER, FINLEY & WOOD, LLP
By: /s/ James A. Hennefer
James A. Hennefer
Attorneys for Plaintiff
J. Augusto Bastidas, M.D.
DATED: October 23, 2015
GIBSON, DUNN & CRUTCHER LLP
By: /s/ Michael Li-Ming Wong
Michael Li-Ming Wong
Attorneys for Defendants
Good Samaritan Hospital LP, Good
Samaritan Hospital Medical Staff,
Samaritan LLC, Steven M. Schwartz,
M.D. and Bruce G. Wilbur, M.D.
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-4-
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 5 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: _________________, 2015 By: _________________________________
HONORABLE SUSAN ILLSTON
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-5-
10/29
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 6 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FILER’S ATTESTATION
I, James A. Hennefer, hereby attest that concurrence in the filing of this Joint Stipulation
to Continue Pretrial and Trial Dates and [Proposed] Order has been obtained from each of the
other signatories listed above, each of whom authorizes me to affix their electronic signature to
this Joint Stipulation to Extend Briefing Date and Oral Argument and [Proposed] Order and to file
it electronically.
Dated: October 23, 2015 Respectfully submitted,
HENNEFER, FINLEY & WOOD, LLP
By: /s/ James A. Hennefer
James A. Hennefer
Attorneys for J. Augusto Bastidas, M.D.
_______________________________________________________________________________
JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES AND [PROPOSED] ORDER
Bastidas.v. Good Samaritan, et al. Case No. C-13-4388 SI
-6-
Case 3:13-cv-04388-SI Document 136 Filed 10/29/15 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00746/USCOURTS-caed-2_15-cv-00746-3/pdf.json | 320 | Assault, Libel, and Slander | 28:1332 Diversity-Libel,Assualt,Slander | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL RAY,
Plaintiff,
v.
AMY GAYLE WILLIAMS,
Defendant.
No. 2:15-cv-746-JAM-KJN PS
ORDER
On March 3, 2016, the court scheduled a status (pretrial scheduling) conference in this
matter for May 12, 2016, and ordered the parties to file a joint status report no later than April 28,
2016. (ECF No. 12.) The parties ultimately failed to file a joint status report by that deadline.
Consequently, on May 4, 2016, the court vacated the status conference and issued an order
directing both parties to show cause why monetary sanctions should not be imposed based on
their failure to file a joint status report. (ECF No. 14.)
Thereafter, plaintiff and defendant each filed responses to the order to show cause. (ECF
Nos. 15, 17.) The responses essentially apologized for the parties’ failure to file a timely joint
status report, and it appears that the parties are now communicating and cooperating, at least to
some extent. Notably, the parties have also filed a joint status report with suggested case
scheduling deadlines. (ECF No. 16.) As such, the court declines to impose sanctions at this
juncture and discharges the order to show cause.
Case 2:15-cv-00746-JAM-KJN Document 18 Filed 06/14/16 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
The court acknowledges the request by defendant, who proceeds without counsel, for the
court to dismiss the case, because the IP address defendant provided to plaintiff’s counsel
apparently does not match the IP addresses purportedly associated with the online defamation of
plaintiff. In turn, plaintiff notes that defendant may have used another computer and that there
are other alleged indicia that defendant may be involved. As the court has previously noted, the
court recognizes defendant’s contention that she has no knowledge regarding the alleged online
defamation, but the court cannot at this juncture make any such factual determination. Plaintiff
has filed a complaint against defendant, which defendant has already answered. At this stage, the
court must assume that the complaint was filed in good faith and that plaintiff’s counsel is well
aware of his obligations under Federal Rule of Civil Procedure 11, as well as the potential
sanctions and consequences for violating that rule. As such, the next step is for the case to be
scheduled so that discovery can commence. Plaintiff and defendant are both entitled to conduct
formal discovery regarding plaintiff’s claims and defendant’s defenses, and concerns regarding
security and misuse of information exchanged in discovery can also be addressed through an
appropriate protective order.
This case, initially filed on April 6, 2015, has lingered long enough and should now be
scheduled. The court expects the parties to communicate and cooperate in good faith to move the
action forward towards a resolution.
Accordingly, the order to show cause (ECF No. 14) is DISCHARGED. A scheduling
order will issue separately.
IT IS SO ORDERED.
Dated: June 14, 2016
Case 2:15-cv-00746-JAM-KJN Document 18 Filed 06/14/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-01630/USCOURTS-caed-1_06-cv-01630-11/pdf.json | 870 | Tax Suits | 26:7403 Suit to Enforce Federal Tax Lien | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On December 27, 2007, Defendant Charles Wayne Uptergrove filed a letter wherein he asserted that he refused 1
the Court’s order granting Plaintiff’s motion for reasonable attorney fees. Attached to the letter was a Declaration in Support
of Letter and Notice of Dismissal. (Doc. 76). On January 10, 2007, an order was issued indicating that to the extent that the
letter was a request for dismissal, that request was denied. (Doc. 79). Defendant Charles Uptergrove filed two additional
letters on January 15, 2008 (Doc. 84) and January 16, 2008 (Doc. 85) respectively. The court ordered that the two letters
be stricken from the record. (Docs. 85 and 86).
1
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, CASE NO. 1:06-CV-1630-AWI-GSA
Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION
FOR AWARD OF MONETARY SANCTIONS
(Doc. 77)
vs.
CHARLES WAYNE UPTERGROVE, et al.,
Defendants.
/
On December 18, 2007, the Court issued an order granting Plaintiff’s motion for reasonable
attorney fees and costs associated with bringing Plaintiff’s Motion to Compel, as well as for reasonable
expenses incurred in appearing for Defendants’ depositions. (Doc. 75). On January 2, 2008, Plaintiff 1
submitted a declaration indicating that the United States incurred $1,597.81 in expenses related to the
taking of the depositions in which Defendants failed to appear. (Doc. 77).
///
///
Case 1:06-cv-01630-AWI-GSA Document 88 Filed 02/01/08 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
///
Having considered the record, Plaintiff’s motion for expenses is reasonable and is hereby
GRANTED. Defendants are ORDERED to pay the United States Department of Justice the sum of
$ 1,597.81 within 30 DAYS of the date of this Order. Defendant is advised that failure to comply with
the order may result in additional sanctions including but no limited to contempt or default judgment.
IT IS SO ORDERED.
Dated: January 31, 2008 /s/ Gary S. Austin
60kij8 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-01630-AWI-GSA Document 88 Filed 02/01/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00775/USCOURTS-caed-2_15-cv-00775-0/pdf.json | 365 | Personal Injury - Product Liability | 28:1332 Diversity-Product Liability | UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: ETHICON, INC., PELVIC REPAIR
SYSTEM PRODUCTS LIABILITY LITIGATION MDL No. 2327
(SEE ATTACHED SCHEDULE)
CONDITIONAL TRANSFER ORDER (CTO −168)
On February 7, 2012, the Panel transferred 36 civil action(s) to the United States District Court for
the Southern District of West Virginia for coordinated or consolidated pretrial proceedings pursuant
to 28 U.S.C. § 1407. See 844 F.Supp.2d 1359 (J.P.M.L. 2012). Since that time, 1,280 additional
action(s) have been transferred to the Southern District of West Virginia. With the consent of that
court, all such actions have been assigned to the Honorable Joseph R Goodwin.
It appears that the action(s) on this conditional transfer order involve questions of fact that are
common to the actions previously transferred to the Southern District of West Virginia and assigned
to Judge Goodwin.
Pursuant to Rule 7.1 of the Rules of Procedure of the United States Judicial Panel on Multidistrict
Litigation, the action(s) on the attached schedule are transferred under 28 U.S.C. § 1407 to the
Southern District of West Virginia for the reasons stated in the order of February 7, 2012, and, with
the consent of that court, assigned to the Honorable Joseph R Goodwin.
This order does not become effective until it is filed in the Office of the Clerk of the United States
District Court for the Southern District of West Virginia. The transmittal of this order to said Clerk
shall be stayed 7 days from the entry thereof. If any party files a notice of opposition with the Clerk
of the Panel within this 7−day period, the stay will be continued until further order of the Panel.
FOR THE PANEL:
Jeffery N. Lüthi
Clerk of the Panel
Apr 24, 2015
4/24/2015
s/ Tina Smith
FILED
Apr 24, 2015
CLERK, U.S. DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case 2:15-cv-00775-KJM-KJN Document 6 Filed 04/24/15 Page 1 of 2
IN RE: ETHICON, INC., PELVIC REPAIR
SYSTEM PRODUCTS LIABILITY LITIGATION MDL No. 2327
SCHEDULE CTO−168 − TAG−ALONG ACTIONS
DIST DIV. C.A.NO. CASE CAPTION
CALIFORNIA EASTERN
CAE 2 15−00775 Martinez v. Ethicon, Inc. et al
VERMONT
VT 5 15−00080 French et al v. Viselli et al
Case 2:15-cv-00775-KJM-KJN Document 6 Filed 04/24/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_12-cv-02603/USCOURTS-caed-2_12-cv-02603-4/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
STEPHANIE N. ERENDS,
Petitioner,
v.
D. K. JOHNSON,
Respondent.
No. 2:12-cv-2603 CKD P
ORDER
This petition for writ of habeas corpus was denied on January 23, 2015. Documents filed
by petitioner since the closing date will be disregarded and no orders will issue in response to
future filings.
Dated: May 28, 2015
2/kly
eren2603.158
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
Case 2:12-cv-02603-CKD Document 37 Filed 05/28/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-02018/USCOURTS-cand-3_05-cv-02018-0/pdf.json | 442 | Civil Rights Employment | 28:1332 Diversity-Employment Discrimination | United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DEBORAHA SMITH,
Plaintiff,
v.
DHL EXPRESS (USA) INC.,
Defendant.
/
No. C 05-02018 TEH
ORDER
This matter came before the Court on Monday, November 14, 2005, on
Petitioner’s Petition to Vacate Arbitration Award and for Rehearing. Having carefully
considered the parties’ written and oral arguments, and the record herein, the Petition is
DENIED and this case is dismissed with prejudice.
A. BACKGROUND
Plaintiff, Deboraha Smith (“Smith”), originally filed an action in San Mateo Superior
Court against her employer, Airborne Express, Inc. (“Airborne”). The parties subsequently
entered into a “Post-Dispute Agreement to Arbitrate.” Pursuant to this agreement, the
parties agreed to have the Hon. Cecily Bond of JAMS (a retired Sacramento County
Superior Court judge) preside over an arbitration of Plaintiff’s claims. After conducting
discovery, the parties further agreed to submit a pre-arbitration summary judgment motion
to Judge Bond.
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
Airborne merged with DHL, and DHL is the only surviving operating entity.
2
On January 27, 2005, Judge Bond granted summary judgment for Airborne. On
May 9, 2005, Smith filed the instant Petition to Vacate a Contractual Arbitration Award in
San Francisco Superior Court. Thereafter, the Defendant, now denominated as DHL
Express (USA), Inc. (“DHL”),1 removed the action to this Court on grounds of diversity
jurisdiction. The case is currently before the Court on Smith’s petition to vacate Judge
Bond’s award in favor of Airborne/DHL. Notably, Smith failed to file any reply papers in
this matter.
B. DISCUSSION
Smith’s Petition to Vacate asserts that the Arbitrator’s award should be vacated
under California Code of Civil Procedure §1286.2. This provision narrowly limits parties
to four potential grounds for attacking an arbitration award, and unless one of these four
grounds is established, the award is immune from judicial review. Moncharsh v. Heily &
Blase, 3 Cal. 4th 1, 12-1, 27-28 (1992). Smith invokes the fourth ground – that the
arbitrator “refused to hear or consider evidence material to the controversy.” Calif. Code
of Civil Procedure § 1286.2(e).
The record, however, plainly fails to support this assertion. First, Judge Bond’s
ruling itself states that she has “read and considered all points and authorities, declarations
and other materials submitted in support and in opposition to said Motion” and has
“considered the arguments of counsel.” See McInerney Decl., Exh. I at 1. Smith does not
dispute that Judge Bond heard oral argument from the parties for over one hour by
telephone.
Second, Smith fails to establish that Judge Bond refused to hear any specific item
of evidence. Smith argues at length that Judge Bond “obviously disregarded” Smith’s
“extensive and exhaustive deposition testimony and her Declaration in opposition to said
Motion for Summary Judgment” because, in Smith’s view, this evidence warranted a
different result in her underlying case. See e.g. Smith’s Mem. in Support of Petition to
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Vacate Arbitration Award at 7-10. The record, however, is bereft of any basis for finding
that Judge Bond refused to hear any evidence material to the controversy. Rather, Judge
Smith’s ruling indicates that she considered the evidence but rejected Smith’s position on
the merits. Needless to say, rejecting evidence is not the same as refusing to consider it.
While Smith may vigorously disagree with Judge Bond’s decision, this is plainly not
grounds for reviewing or vacating the award. Morris v. Zuckerman, 69 Cal. 2d 686, 691
(1968) (“‘[n]either the merits of the controversy. . . nor the sufficiency of the evidence to
support the arbitrator’s award are matters for judicial review”).
Petitioner also argues that Judge Bond erroneously concluded that Smith
conceded her tenth cause of action in her underlying complaint. Even if this were true,
which seems highly unlikely based on the record before the Court, it would not be grounds
for vacating the award since this Court does not have jurisdiction to review the substance
of the award for error. Moncharsh, 3 Cal. 4th at 11; Morris, 69 Cal. 2d at 691.
In sum, Smith’s petition is essentially an attempt to reargue the merits of the
underlying case. As such, Smith has failed to establish any basis for vacating the
Arbitrator’s award under California Civil Code § 1286.2. Accordingly, the petition must
denied.
C. CONCLUSION
For the reasons set forth above, and good cause appearing, it is HEREBY
ORDERED that Smith’s Petition to Vacate Arbitration Award and for Rehearing is
DENIED, and this case is dismissed with prejudice.
IT IS SO ORDERED.
Dated: November 14, 2005
THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-03046/USCOURTS-caed-2_09-cv-03046-1/pdf.json | 440 | Other Civil Rights | 42:1981 Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT MARTINEZ,
Plaintiff,
vs. No. CIV. S-09-3046 FCD GGH PS
L. DONALDSON, et al.,
ORDER
Defendants.
_______________________________/
Plaintiff has requested an extension of time to file an amended complaint pursuant
to the court's order of March 12, 2010. Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's April 12, 2010 request for an extension of time is granted; and
2. Plaintiff is granted twenty-eight days from the date of this order in which to file and
serve an amended complaint.
DATED: May 11, 2010
/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:076
Martinez3046.36.wpd
Case 2:09-cv-03046-FCD-GGH Document 6 Filed 05/11/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-1_05-cv-00503/USCOURTS-almd-1_05-cv-00503-2/pdf.json | 442 | Civil Rights Employment | 42:12101 Americans with Disabilities Act | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILFREDO CAMACHO, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 1:05cv503-MHT-
) VPM
)
PEMCO WORLD AIR SERVICES, INC. )
)
Defendant. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Pending before the court is the defendant’s [“Pemco”] motion for summary judgment
(Doc. # 31). The plaintiff [“Camacho”] failed to respond to the motion, and the court deems
the motion to have been submitted on the date his response was due.
The plaintiff brought this action seeking compensatory and declaratory relief pursuant
to the Civil Rights Act of 1991, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964
[“Title VII”], as amended, 42 U.S.C. §§ 2000e et seq.; and the Americans with Disabilities
Act [“ADA”], 42 U.S.C. §§ 12101 et seq. (2000). Therefore, the court has jurisdiction
pursuant 28 U.S.C. §§ 1331, 1343(a)(4) and 42 U.S.C. §§ 2000e-5(f)(3), 12117(a).
Having reviewed the record and the relevant law, the Magistrate Judge concludes that
Pemco’s motion is due to be granted.
I. SUMMARY JUDGMENT STANDARD
Summary judgment can be entered on a claim only if it is shown “that there is no
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 1 of 27
2
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A dispute is genuine if the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Green v. Pittsburgh Plate
& Glass Co., 224 F. Supp. 2d 1348, 1352 (N.D. Ala. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “A judge’s guide is the same standard necessary to
direct a verdict: ‘whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.’” Id. at 259. “Credibility determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury, and therefore, the evidence of the
nonmovant is to be believed and all justifiable inferences are to be drawn in his favor.” Id.
at 255.
Because the court must evaluate the merits without the benefit of a response from
Camacho, it is extremely important for the parties to understand the movant’s burden on
summary judgment. A party’s failure to respond to a motion for summary judgment is not
fatal for that reason alone, and, notwithstanding the nonmovant’s failure, the moving party
must nevertheless demonstrate that summary judgment is “appropriate.” Fed. R. Civ. P.
56(e).
Thus, the movant must first demonstrate the absence of a genuine issue as to any
material fact and entitlement to judgment as a matter of law. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970) (“As the moving party, respondent had the burden of showing
the absence of a genuine issue as to any material fact, and for these purposes the material it
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 2 of 27
As discussed in more detail infra, Camacho vaguely testified at his deposition that two of 1
his supervisors made derogatory comments incorporating a reference to his race and/or national
origin. While indicative of potential harassment, these comments, the substance of which Camacho
could not recall, nevertheless do not amount to direct evidence of discrimination. See Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Direct evidence is
“evidence which reflects ‘a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by the
employee.’” Damon [v. Fleming Supermarkets of Am.], 196 F.3d
[1354,] 1358 [(11th Cir. 1999)] (quoting Carter v. Three Springs
Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998)). Direct
evidence is “evidence, that, if believed, proves [the] existence of [a]
fact without inference or presumption.” Burrell v. Bd. of Trs. of Ga.
3
lodged must be viewed in the light most favorable to the opposing party.” (emphasis added));
see also, e.g., Information Syss. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224
(11th Cir. 2002) (“The moving party bears the burden of proving that no genuine issue of
material fact exists.”); United States v. One (1) 1944 Steel Hull Freighter Converted
Wartime Landing Craft Utility Vessel (LCU) Shamrock, 697 F.2d 1030, 1031-32 (11th Cir.
1983) (“[W]hether or not the non-moving party has the burden of proof at trial, in a summary
judgment action the moving party has the burden of showing that there is no genuine issue
of material fact.”).
The burden shifts to the non-movant “[o]nly after the moving party has satisfied that
burden.” Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000).
II. DISCUSSION
A. Framework for Analysis
Camacho has failed to present direct or statistical evidence of discrimination;1
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 3 of 27
Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997). As . . .
precedent illustrates, “only the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of” some
impermissible factor constitute direct evidence of discrimination.
Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (quoting
Schoenfeld [v. Babbitt], 168 F.3d [1257,] 1266 [(11th Cir. 1999)]
(citations and quotations omitted); see Carter v. City of Miami, 870
F.2d 578, 582 (11th Cir. 1989). If the alleged statement suggests, but
does not prove, a discriminatory motive, then it is circumstantial
evidence. See Burrell, 125 F.3d at 1393.
Id. at 1086.
4
therefore, he must prove his claims through the introduction of circumstantial evidence,
which the court evaluates in accordance with the burden-shifting framework set forth by the
United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Durley v. APAC, Inc., 236 F.3d 651, 657 (11th Cir. 2000) (“The burden of poof for an
ADA claim is also based on the framework set forth McDonnell Douglas . . ..”); Standard
v. A.B.E.L. Svcs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Both [Title VII and 42
U.S.C. § 1981] . . . have the same requirements and use the same analytical framework . . ..”).
Consequently, the materials before the court must first establish a prima facie case.
McDonnell Douglas Corp., 411 U.S. at 802; see E.E.O.C. v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1272 (11th Cir. 2002).
If they do, the burden shifts to Pemco to produce evidence that its allegedly wrongful
actions were “taken for some, legitimate, non-discriminatory reason.” Joe’s Stone Crabs,
Inc., 296 F.3d at 1272. If Pemco succeeds, “the inquiry ‘proceeds to a new level of
specificity,’ in which the plaintiff must show that the proffered reason really is a pretext for
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 4 of 27
Although his complaint indicates that he was not provided the same equipment as those not 2
in his protected class, Camacho testified at his deposition that he did in fact receive the same
equipment as everyone else who wanted it (Pl’s Dep. 262). In the absence of any other evidence
suggesting that he did not receive the same equipment, the court considers this claim to have been
abandoned.
At his deposition, Camacho described himself as disabled due to a back injury he suffered
3
while serving in the U.S. Navy (Pl’s Dep. 268-70). His complaint did not mention this condition,
and there is no evidence in the record that his back condition is relevant to this lawsuit. Therefore,
the court declines to discuss it further.
5
unlawful discrimination.” Id. at 1273.
B. Camacho’s Claims
Camacho contends that he has been subjected to disparate treatment in the terms and
conditions of his employment with Pemco because of his race, Asian-American, and/or
national origin, Filipino (Doc. # 1, pp. 2-3). “This disparate treatment includes . . . job
assignments, unfavorable working conditions and not being given the proper safety
equipment necessary for the performance of his job” (Doc. # 1, p. 3). As a result of this 2
treatment, Camacho contends that he developed a skin condition that left him disabled, and
Pemco refused to provide reasonable accommodations despite its ability to do. Id. Finally, 3
Camacho’s complaint vaguely suggests that he was wrongfully terminated (Doc. # 1, p. 3).
C. Pemco’s Motion
Relying primarily on testimony Camacho provided at his deposition, Pemco contends
that no factual disputes of any consequence exist, and it is entitled to judgment as a matter
of law because Camacho has failed to demonstrate that (1) he is disabled as that term is
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 5 of 27
6
defined under the ADA; (2) Pemco treated him differently because of his alleged disability;
(3) Pemco failed to accommodate his alleged disability; (4) decisions Pemco made regarding
Camacho’s employment were related in any way to his race and/or national origin; and (5)
his allegations fail to establish a claim for hostile work environment.
D. ADA Claim
With respect to Camacho’s claim that he was discriminated against on the basis of his
alleged disability, the overarching issue before the court is whether, viewing the facts in his
favor, Camacho was disabled, as that term is defined under the ADA.
1. Overview of the Facts
Camacho was initially hired to work for Pemco through a sub-contractor, Airplanes,
Inc., in October 2003 (Pl’s Dep. 50). The position for which he was hired required him to
work with and around fiberglass, which he quickly noticed irritated his skin (Pl’s Dep. 55-
56).
At that time, he was not wearing any special, protective clothing (Pl’s Dep. 56).
When he complained to a Pemco supervisor, “Mr. Woods” [“Woods”], about his skin
irritation, Woods informed him where he could obtain protective “coveralls, . . . earplugs,
. . . goggles and mask, nose mask, and . . . latex gloves” and permitted him to do so (Pl’s
Dep. 57-61).
Although his job assignment changed shortly after his employment began, Camacho’s
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 6 of 27
7
exposure to fiberglass continued, and except for the few occasions when some of the safety
equipment was out of stock or the safety goggles interfered with his ability to perform a task,
he wore his protective clothing without fail (Pl’s Dep. 80, 144-47). The coveralls provided
only little comfort, however, and, despite utilizing the protective clothing, Camacho
continued to experience skin irritation (Pl’s Dep. 139-40, 150). Nevertheless, he did not at
that time seek medical treatment (Pl’s Dep. 62).
Approximately one month after he began working for Airplanes, Inc., Pemco offered
Camacho full-time employment, which he accepted, although he knew that he would
continue to work with and around fiberglass (Pl’s Dep. 62-65). Although Camacho
continued to suffer from the skin irritation, after having initially informed Woods of the
problem, he did not mention it again to anyone from Pemco’s management until 29 October
2004 during a meeting at which Camacho had been verbally reprimanded in a matter
unrelated to his ADA claim (Pl’s Dep. 91-95, 150; Def’s Ex. 6 to Pl’s Dep., Doc. # 34-4, p.
11). An incident report dated 29 October 2004 notes that Camacho had “small sores on arms
+ legs possibly from fiberglass” (Def’s Ex. 8 to Pl’s Dep., Doc. # 34-4, p. 13).
Camacho then sought medical treatment for his condition for the first time on 3
November 2004 (Pl’s Dep. 162-63). J.H. Sewell, M.D. [“Dr. Sewell”], diagnosed Camacho
with “contact dermatitis from fiberglass,” prescribed medication and instructed Camacho to
limit his exposure to fiberglass “if possible” (Def’s Ex. 11 to Pl’s Dep., Doc. # 34-4, p. 16).
Camacho returned to Pemco and notified Jim Battcher [“Battcher”], Pemco’s director
of human resources (Doc. # 34-4, p. 30), of his medical status (Pl’s Dep. 165-74). Battcher
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 7 of 27
Pemco does not expressly deny that Battcher told Camacho that his employment was 4
terminated as of 18 November, but it does not concede the point and portrays the case in such a way
as to suggest that, while Pemco “initiated the separation process on November 18, 2004,” Camacho
was not officially terminated until late December (Doc. # 32, pp. 7-9, 17-18). Notwithstanding
evidence in the record supporting Pemco’s position that Camacho was technically on leave until 20
December while Pemco attempted to determine whether he could return to work (Def’s Ex. 20 to
Pl’s Dep., Doc. 34-4, p. 38), Camacho’s testimony at his deposition, which this court must accept
as true, establishes that Camacho was terminated on 18 November (Pl’s Dep. 168-72; 184-91).
Notably, Camacho’s position also is supported by evidence in the record beyond his
testimony. Battcher’s letter reference to the possibility that Camacho be “reinstat[ed]” (Def’s Ex.
17 to Pl’s Dep., Doc. # 34-4, p. 32) and a subsequent letter from human resources manager Ramona
Segler describing Mr. Battcher as having “terminated [Camacho’s] employment” on 18 November
(Def’s Ex. 18 to Pl’s Dep., Doc. # 34-4, p. 35) strongly suggest that Camacho’s employment ended
18 November.
The court views Pemco’s post-termination actions as an effort to reinstate him, and his
apparent failure or refusal to comply with the conditions of reinstatement does not necessarily strip
him of his right to relief. Claiborne v. Illinois Cent. R.R., 583 F.2d 143, 153 (5th Cir. 1978) cited
in Stanfield v. Answering Svc., Inc., 867 F.2d 1290, 1296 (11th Cir. 1989). Pemco has not raised
8
sent Camacho home for two weeks until his first scheduled follow-up visit with Dr. Sewell
on 17 November 2004 (Pl’s Dep. 165-74). During his time away from work, Camacho was
paid through Worker’s Compensation. Id.
Although there is some dispute regarding the events following Camacho’s return visit
to Dr. Sewell, viewing the evidence in Camacho’s favor, Camacho returned to Battcher on
18 November 2004 and informed him that he could still work but he needed to limit his
exposure to fiberglass (Pl’s Dep. 182-91). Battcher then informed Camacho that he was
terminating Camacho’s employment because Pemco would not provide any extra,
nonstandard protective clothing for him beyond what the company had already made
available and there were no positions available that did not involve exposure to fiberglass
(Pl’s Dep. 168-72; 184-91).4
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 8 of 27
this issue in its motion.
It is important to note that Camacho does not claim that Pemco treated him differently than
5
anyone else on account of his alleged disability. He merely contends that Pemco failed to provide
reasonable accommodations and terminated him rather than provide those accommodations. (Doc.
# 1; Pl’s Dep. 261-62).
9
2. General Legal Principles
The ADA prohibits employers from discriminating against “a qualified individual
with a disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). More specifically, employers must make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability
who is an . . . employee, unless such [employer] can demonstrate that the accommodation
would impose an undue hardship on the operation” of the employer’s business. Id. at
12112(b)(5)(A).
In addition, an employer may not deny “employment opportunities to a[n] . . .
employee who is an otherwise qualified individual with a disability, if such denial is based
on the need of such [employer] to make reasonable accommodation to the physical or mental
impairments of the employee or applicant.” Id. at 12112(b)(5)(B). 5
In the absence of a response from Camacho, the court must determine whether the
evidence before the court establishes a prima facie case, which requires evidence that
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 9 of 27
Pemco does not argue otherwise. 6
10
Camacho “(1) has a disability, (2) . . . is a ‘qualified individual,’ which is to say, able to
perform the essential functions of the employment position that he holds or seeks with or
without reasonable accommodation, and (3) the defendant unlawfully discriminated against
him because of the disability.” Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
“The term ‘disability’ means, with respect to an individual - - (A) a physical or mental
impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. at § 12102(2).
3. Analysis
a. Camacho’s Skin Condition
As an initial matter, it bears noting that Camacho testified at his deposition that he is
not alleging that he is disabled or, for that matter, “impaired in any way” (Pl’s Dep. at 256,
257). Nevertheless, the court recognizes that Camacho is not qualified to draw conclusions
regarding legal definitions, and it is clear from his complaint that he has alleged
discrimination on the basis of a medical condition.
The materials before the court, however, fail to raise an inference that Camacho’s skin
condition, which the court assumes is an impairment for the purpose of its analysis, satisfies 6
the ADA’s definition of disability. Therefore, summary judgment is due to be granted in
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 10 of 27
11
favor of Pemco on this claim.
Camacho worked in the in the aircraft industry for more than a decade as an aviation
machinist and jet engine mechanic. He testified that he had never “worked around fiberglass
before” coming to work for Pemco as an airframe and power plant mechanic (Pl’s Dep. 12,
20-22, 24-25, 33, 77, 81). He also was not aware of his susceptibility to the irritation he
experienced upon working with the fiberglass (Pl’s Dep. 78). While he noticed his condition
almost immediately, he did not suspect that fiberglass was to blame (Pl’s Dep. 78).
When Camacho finally sought medical treatment, his treating physician diagnosed his
condition as dermatitis triggered by contact with fiberglass. (Def’s Ex. 11 to Pl’s Dep., Doc.
# 34-4, p. 16). Prior to October 2004, when he complained about his condition for a second
time nearly a year after having mentioned it the first time, Camacho did not stop working due
to the fiberglass exposure (Pl’s Dep. 62). He was at all times physically capable of working
and did not inform his supervisors otherwise (Pl’s Tr. 202-03). He did, however, have
difficulty sleeping and was only getting “three, four hours” of sleep per night while working
with Pemco (Pl’s Tr. 270-71).
Interestingly, despite his complaints about his condition, utilization of protective
clothing for approximately a year with the understanding that his skin condition was a result
of working with fiberglass, and his quest for medical treatment, Camacho declined to follow
Dr. Sewell’s instructions to apply a prescription skin cream during the two weeks between
his initial and follow-up visits (Pl’s Dep. 175, 179). Instead, Camacho self-prescribed a
home remedy, utilizing masking tape and cold showers (Pl’s Dep. 174-75). He would roll
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 11 of 27
12
masking tape all over his body before showering. Id.
Although he ignored Dr. Sewell’s instructions, his condition improved - though not
completely - enough to allow Camacho to conclude, independently, that his condition was
in fact related to his exposure to fiberglass (Pl’s Dep. 179). On Camacho’s return visit, Dr.
Sewell noted his noncompliance and advised Camacho that if he was not able to limit his
exposure to fiberglass, he should consider finding another job (Pl’s Dep. 180).
After he was terminated, Pemco made efforts to reinstate him. The company arranged
an appointment with a specialist, who concurred with Dr. Sewell’s assessment but concluded
that Camacho could return to work with the condition that he wear protective clothing (Pl’s
Dep. 230-32). His condition had improved noticeably, though he still had some signs of a
rash (Pl’s Dep. 231-32). Pemco then offered to let Camacho return to work, but thereafter,
Camacho never reported for work (Pl’s Dep. 233).
Since his employment with Pemco ended, Camacho has continued to work in the
aircraft industry, and he has not since been exposed to fiberglass (R. 258-59). Notably,
although he testified that his skin condition is not completely resolved and he has enjoyed
the benefit of health insurance since his termination from Pemco, as of the date of his
deposition, 19 May 2006, he had not sought medical treatment since visiting the specialist
secured by Pemco in December 2004 (Pl’s Dep. 259). In addition, at his deposition, he had
not used his skin medication in at least three months (Pl’s Dep. 259).
b. “Disability” Under the ADA
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 12 of 27
13
The ADA’s definition of disability encompasses at least two concepts that the statute
does not define further: “substantially limits” and “major life activities.” For further
guidance, the court refers to regulations interpreting the Rehabilitation Act of 1973, 87 Stat.
361, as amended, 29 U.S.C. § 701 et seq. (2000). Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 193-94 (2002) (noting also that “no agency has been given authority to issue
regulations interpreting the term ‘disability’ in the ADA” but declining to address the degree
of deference that should be afforded regulations adopted by the Equal Employment
Opportunity Commission [“EEOC”]). In addition, courts in the Eleventh Circuit have relied
on regulations adopted by the EEOC (interpreting the ADA) to guide decision making. See,
e.g., Rossbach v. City of Miami, 371 F.3d 1354, 1357 n.4 (11th Cir. 2004) (discussing the
Supreme Court’s view of the EEOC’s interpretation of the ADA as set forth in Williams and
concluding nevertheless that reliance on the EEOC’s regulations is appropriate); Hall v. WalMart Assocs., Inc., 373 F. Supp. 2d 1267, 1271 n.4 (M.D. Ala. 2005); Watson v. Hughston
Sports Med. Hosp., 231 F. Supp. 2d 1344, 1349 (M.D. Ga. 2002).
“Major Life Activities means functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45
C.F.R. § 84.3 (2005); see also 29 C.F.R. § 1630.2(i). The Court of Appeals has recognized
that an additional major life activity is sleep, which, aside from work, discussed in more
detail infra, is the only major life activity Camacho’s skin condition affects (R. 270-72). See
Rossbach, 371 F.3d at 1357.
Substantially limits means
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 13 of 27
14
(i) Unable to perform a major life activity that the average
person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1).
When determining whether someone is substantially limited in a major life activity,
the court should consider
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.
Id. at § 1630.2 (j)(2); see also Chanda v. Engelhard/ICC, 234 F.3d 1219, 1222 (11th Cir.
2000) (quoting § 1630.2(j)(2)).
Moreover,
with respect to the major life activity of working - -
(i) The term substantially limits means significantly restricted in
the ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person having
comparable training, skills and abilities. The inability to
perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.
Id. at § 1630.2 (j)(3) (Emphasis supplied).
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 14 of 27
The court’s conclusions in this regard are informed, though not governed, by Camacho’s 7
non-compliance with his doctor’s treatment plan and his failure to seek medical attention or
treatment for almost 18 months following his termination, even though he alleged that his skin
condition was not abated.
15
c. The Effect of Camacho’s Condition on Sleeping and Working
Camacho’s complaint as well as the testimony at his deposition indicate that he is
contending that his condition substantially limits his ability to sleep and work. The court
agrees with Pemco, however, that the evidence does not permit an inference that his
condition substantially limited or limits either.
With respect to Camacho’s restless nights, Pemco’s assertion to the contrary
notwithstanding, the court does not mean to suggest that a condition that limits a person to
three to four hours of sleep per night would not be sufficiently severe under different
circumstances to constitute a disability. See Rossbach, 371 F.3d at 1359 (holding that the
plaintiffs’ vague complaints that their medical conditions caused them to have difficulty
sleeping without specifying the amount of sleep lost was not sufficient to establish substantial
limitation). Camacho specifically stated that his sleep was limited to less than half of what
is commonly understood to be a full night’s sleep. Thus, this case is distinguishable from
Rossbach. Nevertheless, the evidence does not establish that Camacho’s condition was
severe, and, moreover, the nature of Camacho’s condition as well as the duration and
permanency of its impact compels the court’s conclusion. 29 C.F.R. § 1630.2 (j)(2)7
Camacho’s contact dermatitis is akin to the allergy recently confronted by the Middle
District of Georgia. Watson, 231 F. Supp. 2d at 1349. The plaintiff in Watson was a
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 15 of 27
16
registered nurse who was allergic to latex. Id. at 1346-48. She applied for employment with
the defendant, which, upon learning of the extent of her allergy, refused her employment.
Id.
Focusing on the factors set forth in 29 C.F.R. § 1630.2 (j)(2), the court concluded that
Watson’s allergy did not substantially limit her major life activity of breathing. As the court
explained,
[f]irst, the evidence reveals that, while the RAST blood test
shows that Watson has a latex sensitivity of four on a scale of
five, her reactions thus far have not been severe. Furthermore,
the only restriction placed upon her as a result of the allergy is
to avoid contact with latex at work and at home. Moreover,
Plaintiff’s allergy, while permanent, is dormant unless activated
by exposure to latex. In other words, her “impairment” does not
restrict her from engaging in the major life activity of breathing.
It simply has the possibility of doing so if she exposes herself to
latex. Just as people who are allergic to bees are not in danger
of a reaction until they are stung, Watson does not suffer any
adverse effect because of her allergy to latex unless and until she
comes in contact with it. Similarly, the permanent or long term
impact of Watson’s allergy to latex appears minimal, as long as
she avoids contact with the substance.
Id. at 1349-50.
Camacho contends that he experienced only three to four hours of sleep per night, but
he never complained about this or sought medical treatment until he was inconvenienced by
a disciplinary meeting with his supervisors. Even when he did seek medical treatment, he
did not comply with the doctor’s orders and consciously declined to use his prescribed
medicine. See D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1227 (11th Cir. 2005)
(concluding that the plaintiff’s noncompliance with her prescribed medicine “indicate[d] that
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 16 of 27
Camacho’s situation is altogether different from the complainant in E.E.O.C. v. United
8
Parcel Svc., Inc., 249 F.3d 557 (6th Cir. 2001), in which the court concluded that the complainant’s
allergy was a disability. In that case, the plaintiff’s condition was triggered by an allergen that was
present in the atmosphere throughout a large geographic region and that “impair[ed] his ability to
17
she managed her . . . symptoms adequately”); see also Sutton v. United Air Lines, Inc., 527
U.S. 471, 488 (1999) (holding that “disability under the [ADA] is to be determined with
reference to corrective measures”). Therefore, Camacho’s voluntarily, untreated skin
condition cannot be considered severe notwithstanding his loss of sleep.
Moreover, similar to Watson’s latex allergy, Camacho’s condition is contingent upon
and triggered by his actual contact with fiberglass. Thus, if any major life activity is affected,
it is his ability to work. See Rhoads v. FDIC, 257 F.3d 373, 390 (4th Cir. 2001) (“[B]ecause
Rhoads established that her abilities to breathe and engage in other life activities were limited
only by her exposure to tobacco smoke in the workplace, the proper inquiry is whether . . .
she was substantially limited in her ability to work) quoted in Tyler v. Dayton Hudson Corp.,
42 Fed. Appx. 934, 935 (9th Cir. 2002) (finding that the plaintiff’s allergy was not a
disability when triggered by material he encountered only in the work place); see also Muller
v. Costello, 187 F.3d 298, 314 (2d Cir. 1999) (finding that the plaintiff’s ability to perform
“substantial physical activity” outside of work despite suffering from a “allergen-induced”
respiratory condition that was triggered at the workplace precluded a finding that his
condition substantially limited his ability to breathe); Land v. Baptist Med. Ctr., 164 F.3d
423, 425 (8th Cir. 1999) (finding that a peanut allergy did not substantially limit the
plaintiff’s ability to eat and breathe).
8
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 17 of 27
breathe and to care for himself.” Id. at 562. Evidence in that case indicated that the plaintiff’s
“reactions to the allergen were steadily worsening, and that by the time he requested the transfer he
rarely left home and spent nearly all of his non-working hours in bed. His wife assumed
responsibility for his correspondence and household duties, while he suffered with severe nasal and
bronchial congestion, swollen eyes and nose, rashes and fever blisters over large areas of his body,
fatigue, fever, and depression.” Id. at 562-63. Moreover, the complainant’s doctor had written a
letter stating that “effective allergy medication would threaten [the complainant’s] safe operation
of his truck,” a job requirement. Id. at 563.
18
The court finds that Camacho’s condition does not substantially limit his ability to
work. First, Camacho acknowledged that he worked while the condition manifested itself
for approximately a year without medical treatment. Second, he complained about his
condition only once prior to receiving protective clothing, then once more, approximately a
year later, after having utilized the clothing. The circumstances of his complaint strongly
suggest he opportunistically complained only to detract attention from an error for which he
was being reprimanded. Third, Camacho admitted that at all times during his employment
with Pemco, he was physically capable of carrying out his responsibilities at work (Pl’s Tr.
202-03). See Durley v. APAC, Inc., 236 F.3d 651, 657 (11th Cir. 2000) (agreeing with the
district court that the plaintiff was not substantially limited in her ability to work when her
own testimony established that she was always able to perform her job “even when her
condition was allegedly being aggravated by work-related stress”).
At most - and this preliminary finding is analytically generous - he is substantially
limited in his ability to perform work that involves exposure to fiberglass. This class of jobs
is far too narrow, however, to be considered significant for ADA purposes, especially since
Camacho’s pre-Pemco employment required him to work in maintenance positions in the
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 18 of 27
19
aircraft industry for approximately 13 years without encountering fiberglass or developing
a skin condition. After leaving Pemco, he continued in this field and had not again, as of the
taking of his deposition, been exposed to fiberglass while on the job.
As the United States Supreme Court has explained,
[t]o be substantially limited in the major life activity of working
. . . one must be precluded from more than one type of job, a
specialized job, or a particular job of choice. If jobs utilizing an
individual’s skills (but perhaps not his or her unique talents) are
available, one is not precluded from a substantial class of jobs.
Similarly, if a host of different types of jobs are available, one
is not precluded from a broad range of jobs.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999); see also Cantrell v. Nashville
Elec. Svc., 173 F.3d 428, 1999 WL 68571, at *4 (6th Cir. 1999) (table) (affirming the
district court’s finding that the plaintiff’s medical restriction precluding contact with
hydraulic oil did not amount to a substantial limitation on his ability to work and noting the
plaintiff’s extensive experience in similar positions without incident); Lindloff v.
Schenectady Int’l., 972 F. Supp. 393, 395 (S.D. Tex. 1997) (finding that the plaintiff’s skin
condition, which restricted him from exposure to “phenolic compounds” did not limit “any
of Plaintiff’s major life activities”).
Therefore, Camacho’s skin condition is not a disability under the ADA.
d. The Record of Camacho’s Impairment and Pemco’s View of
Camacho’s Skin Condition
When Battcher decided to terminate Camacho’s employment, the only record
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 19 of 27
20
regarding Camacho’s medical condition established, at worst, that Camacho could not work
around fiberglass. Moreover, the evidence establishes that Pemco viewed Camacho as being
unable to work around fiberglass, and there is no evidence in the record that Pemco regarded
his condition as having broader implications. The undersigned has already concluded that
a restriction from exposure to fiberglass does not amount to a disability under the ADA;
therefore, Camacho has failed to satisfy the ADA’s alternative means of establishing a
disability. 42 U.S.C. at § 12102(2); see also Murphy v. United Parcel Svc., Inc., 527 U.S.
516, 525 (1999) (holding that being “regarded as unable to perform only a particular job . .
. is insufficient, as a matter of law, to prove that [the plaintiff] is regarded as substantially
limited in the major life activity of working”); Hilburn v. Murate Elec. N. Am., Inc., 181
F.3d 1220, 1229 (11th Cir. 1999) (noting that “the record-of-impairment standard is satisfied
only if she actually suffered a physical impairment that substantially limited one or more of
her major life activities).
In conclusion, Pemco has established the absence of a genuine, material factual
dispute. Moreover, drawing all inferences in Camacho’s favor, the undersigned concludes
that he has failed to establish that he is disabled, and he cannot therefore demonstrate a prima
facie case of discrimination under the ADA. Therfore, Pemco has met its burden of
establishing entitlement to judgment as a matter of law. Pemco is entitled to summary
judgment on Camacho’s ADA claim.
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 20 of 27
21
E. Camacho’s Claim of Race/National Origin Discrimination
Camacho contends that Pemco discriminated against him because he is an AsianAmerican and, more specifically, a Filipino. (Doc. # 1; Pl’s Dep. 83, 86, 101-04, 106, 111-
12, 132-33, 147). He contends that he was assigned undesirable tasks and that two of his
supervisors verbally harassed him. Id. Furthermore, he contends that he was disciplined
differently than a co-worker, and he arguably contends that he was wrongfully terminated.
Id.
1. Facts Relevant to Camacho’s Claims Regarding His Disparate Treatment
and Hostile Work Environment claims.
Camacho relies on the following facts, gleaned from a meticulous review of his
deposition testimony, to prove that he was the victim of race or national origin
discrimination:
1. From approximately November 2003 until May 2004, Camacho’s supervisor,
Gary Cooper [“Cooper”], made two derogatory comments to Camacho, one of
which criticized Camacho for being slow (R. 85). Other than the reference to
Camacho’s speed, Camacho does not recall the substance of the comments.
Id.
2. On Camacho’s third day working under Cooper, Cooper issued Camacho a
written warning, though Camacho provided no other details regarding the
relevant circumstances or the substance of the warning (Pl’s Dep. 89).
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 21 of 27
22
3. Cooper closely supervised Camacho and two foreign-born co-workers, who
may or may not have been the only foreign-born workers on Camacho’s work
crew, more closely than he supervised those workers whom Camacho
perceived to be Cooper’s friends (Pl’s Dep. 101-02).
4. Camacho was given a written reprimand for a mistake he made though the coworker who was also involved in the incident, Gary Riddle, with whom
Camacho frequently worked and whose race, national origin and work record
are not in evidence, received only a verbal reprimand (Pl’s Dep. 90-96).
5. Between August 2004 and November 2004, Camacho’s subsequent supervisor,
Dewayne Music [“Music”], who became Camacho’s supervisor in May 2004,
also made “one or two” derogatory comments, though Camacho does not recall
the substance of these comments (Pl’s Dep. 111).
6. Music criticized Camacho for being slow and described him as capable of
performing only menial tasks (Pl’s Dep. 115). A co-worker of Camacho’s
overheard the comment and teased Camacho for being limited to only menial
tasks (Pl’s Dep. 116).
7. During the course of supervising Camacho, when criticizing his pace, Cooper
and Music may or may not have correlated Camacho’s speed with his status
as a Filipino (Pl’s Dep. 112). Specifically, Camacho is “about 70 percent”
sure that they made reference to his national origin. Id.
8. Cooper and Music assigned Camacho and the two previously-mentioned,
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 22 of 27
23
foreign-born co-workers primarily to jobs Camacho described as the “dirtiest”
available, though others on his crew were also assigned to those jobs and
Camacho was assigned to other jobs as well (Pl’s Dep. 131-35, 139).
Camacho never specified which jobs Music assigned him to that were dirty,
but he did state that Cooper assigned him primarily “to the cargo and to areas
that are, you know, tight and uncomfortable place [sic] to be in.” (Pl’s Dep.
83).
2. Analysis
It is axiomatic that to succeed in demonstrating a prima facie case of race or national
origin discrimination, whether it is a claim of harassment or disparate treatment in work
assignments, the evidence must permit an inference that the alleged actionable employment
practices are somehow related to the protected characteristic. 42 U.S.C. § 2000e-2(a)
(prohibiting employment discrimination “because of” a person’s “race, color, religion, sex,
or national origin”); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004)
(noting the requirement that a plaintiff alleging disparate treatment demonstrate that she was
treated differently than similarly situated persons not in her protected class); Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (setting forth the
requirements for a prima facie case of a hostile work environment claim).
Without deciding whether the employment practices alleged are actually actionable
- a dubious proposition - the evidence before the court would not permit a reasonable fact
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 23 of 27
That Camacho has allowed himself to become a victim of a distorted rationale is 9
spectacularly illustrated by the following two exchanges between Camacho and Pemco’s attorney
at Camacho’s deposition:
Q. Are you contending that Mr. Cooper was giving you these job
assignments based on your national origin?
A. Yes, because that night, just being on the first day with him,
he already warned me. He was intimidating me.
Q. What do you mean by “he already warned me”?
A. He said I’m slow.
Q. Explain to me how him saying that you’re slow has anything
to do with you being Philippino [sic].
A. Well, probably because I am not born and raised in America,
the way the American individual is being raised, the tradition,
the culture, the discipline is being imparted to each and every
one. He kind of expect [sic] that from a person, to a person
like me, but since I’m foreign born, he - - to him, I do not
meet that classification. And to him, I am not worth.
Q. You are not what, I’m sorry?
A. Not worth.
Q. I don’t understand what you just said. Not - -
A. Not worth being in the same category as an American, like,
you know - -.
(Pl’s Dep. 84, 85).
A. . . . And all of a sudden [Music] said, “So you’re a big man
now?” I don’t understand. I didn’t say anything, but I was
just asking for a job. And he said, “Oh, so you’re a big man
now?” I don’t know.
Q. And that was offensive to you?
A. Yes.
Q. And did you think that had anything to do with you being
Philippino [sic]?
A. Yes.
24
finder to conclude that Camacho’s race or national origin played any role in the actions about
which Camacho now complains. On the contrary, to draw that conclusion based on the
materials before the court would require a fact finder to make assumptions and perhaps even
speculate about the motives of Camacho’s supervisors and his co-workers.
9
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 24 of 27
Q. And connect those for me, because I don’t see - -
A. Well, the perception of a foreigner is somebody probably, in
his mind or somebody’s mind who is discriminatory, that a
foreigner could not understand the work being asked, the
procedure that needs to be followed, the safety that needs to
be implemented. I believe that they could not grasp the - -
even a foreigner can outperform their abilities.
Q. And that relates to you being a big man?
A. A foreigner.
Q. A big man? Is that what that means?
A. In all the aspects that we have just discussed.
(Pl’s Dep. 206-07).
As a more basic matter, the record is not sufficient to evaluate how exactly Camacho is 10
situated let alone compare Camacho with his fellow employees.
25
To allow Camacho’s claims to proceed to a jury would expose the judiciary to the
public perception that anyone in a protected class who believes he is being treated unfairly
at work can sue his employer for discrimination with no reliable evidence that the adverse
treatment has anything to do with the protected characteristic. Cooper and Music may not
have been easy to work for, and Camacho may have been targeted for unfavorable work
assignments, but the record does not support the conclusion that Camacho’s national origin
factored into their decision making. His uncertain recollection that they may have made
comments that he was slow because he was Filipino is simply not sufficient. Moreover,
Camacho failed to identify a similarly situated worker not in his protected class who was
treated differently. In fact, Camacho actually identified two white employees (whose work 10
history is not in evidence) who shared his complaints about the work assignments Cooper
and Music doled out (276-79).
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 25 of 27
26
Also, the fact that Camacho and two foreign-born co-workers were assigned to
undesirable tasks does not implicate unlawful discrimination without, at the very least,
reliable evidence of the ethnic makeup of Camacho’s work crew. Again, Camacho expects
the fact finder to rely on his uncertainties in that regard, which this court should not allow.
Furthermore, the suggestion in his complaint and his assertion at his deposition that
his race or national origin played a role in his termination are unsupported. The record does
not allow for an inference that Battcher, whom the record identifies as the sole decision
maker with respect to Camacho’s termination, based his decision to fire Camacho on
anything other than his belief the Camacho could not work in an atmosphere that put him at
risk of exposure to fiberglass.
In summary, the undersigned has afforded Camacho the benefit of every doubt, has
resolved every possible conflict and drawn every reasonable inference in his favor, and can
only conclude that summary judgment should be granted in favor of Pemco. Pemco has met
its burden. No genuine dispute of material fact exists, and Pemco is entitled to judgment as
a matter of law.
IV. CONCLUSION
Therefore, it is the RECOMMENDATION of the Magistrate Judge that Pemco’s
motion for summary be GRANTED and that judgment be entered in its favor on all of
Camacho’s claims. It is further
ORDERED that the parties are DIRECTED to file any objections to the said
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 26 of 27
27
Recommendation on or before 27 September, 2006. Any objections filed must specifically
identify the findings in the Magistrate Judge’s Recommendation objected to. Frivolous,
conclusive or general objections will not be considered by the District Court. The parties are
advised that this Recommendation is not a final order of the court and, therefore, it is not
appealable.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar the party from a de novo determination by the District
Court of issues covered in the report and shall bar the party from attacking on appeal factual
findings in the report accepted or adopted by the District Court except upon grounds of plain
error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein
v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the
decisions of the former Fifth Circuit handed down prior to the close of business on 30
September 1981).
DONE this 13 day of September, 2006. th
/s/ Vanzetta Penn McPherson
VANZETTA PENN MCPHERSON
UNITED STATES MAGISTRATE JUDGE
Case 1:05-cv-00503-MHT-VPM Document 43 Filed 09/13/06 Page 27 of 27 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_15-cv-00709/USCOURTS-ared-4_15-cv-00709-1/pdf.json | 442 | Civil Rights Employment | 42:1983 Civil Rights (Employment Discrimination) | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PATRICK D. THOMPSON, *
*
Plaintiff, *
vs. * No. 4:15-cv-00709-SWW
*
*
HORACE WALTERS, individually *
and in his official capacity as Chief *
of Police in and for the City of *
Alexander, AR; CITY OF *
ALEXANDER, ARKANSAS, *
*
Defendants. *
OPINION AND ORDER
Patrick D. Thompson brings this pro se action against the City of Alexander,
Arkansas (the “City”), and Horace Walters, individually and in his official capacity as
Chief of Police for the City, alleging race discrimination and retaliation in violation of 42
U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq., and the Arkansas Civil Rights Act of 1993 (ACRA), Ark. Code Ann. § 16-123-
101 et seq. Thompson claims his employment with the Alexander Police Department
(APD) was terminated because of his race–African-American–and in retaliation for him
exercising his First Amendment right to free speech, i.e., his being a “witness” in a
lawsuit and a memo he sent to the Mayor of the City complaining about Walters.
The matter is before the Court on motion of defendants for summary judgment
[doc.#17]. Thompson has not responded to defendants’ motion and the time for doing so
has passed. For the reasons that follow, the Court grants defendants’ motion for summary
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 1 of 11
judgment.
I.
A.
Thompson has failed to file, pursuant to Rule 56.1 of the Local Rules of the United
States District Court for the Eastern and Western Districts of Arkansas, a statement of the
material facts as to which he contends a genuine issue exists to be tried. Thompson has
thus admitted the facts as set forth by defendants in their Statement of Undisputed Facts
[doc.#19] as to which they contend there is no genuine issue to be tried.1
Accordingly,
the facts as described in defendants’ for summary judgment are the undisputed facts of
this case. See Beavers v. Bretherick, 227 Fed.Appx. 518 (8th Cir. 2007) (per curiam)
(citing Local Rule 56.1(c) in concluding that the facts as described in unopposed motion
for summary judgment are the undisputed facts of the case).
B.
Thompson began his time with the APD as a reserve officer on May 11, 2011.
Thompson was not paid while he was a reserve officer for the APD but, rather, was
serving as a volunteer. On May 8, 2012, Thompson was hired as a Part-Time I officer
1
Local Rule 56.1(a) provides that "[a]ny party moving for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure, shall annex to the notice of motion a
separate, short and concise statement of the material facts as to which it contends there is no
genuine issue to be tried." Paragraph (b) of the rule provides that "[i]f the non-moving party
opposes the motion it shall file, in addition to any response and brief, a separate, short and
concise statement of the material facts as to which it contends a genuine issue exists to be tried."
Paragraph (c) of the rule provides that "[a]ll material facts set forth in the statement filed by the
moving party pursuant to paragraph (a) shall be deemed admitted unless controverted by the
statement filed by the non-moving party under paragraph (b)."
-2-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 2 of 11
with the APD. Walters, who is African-American, was Chief of Police for the City from
June 2010 to November 20, 2013.
During his employment with APD Thompson was disciplined twice by being
placed on administrative leave. The second time he was placed on administrative leave
occurred on August 8, 2012, and was for the following reasons: (1) Thompson’s
unauthorized traffic stop of a tractor-trailer where he did not have authority; (2)
Thompson’s change of work schedule without prior approval by Walters; (3) Thompson’s
actions involving an arrest that occurred at an address in Alexander (the “Lockard
arrest”); and (4) Thompson’s failure to file an incident report at the end of shift regarding
the Lockard arrest. In his letter informing Thompson that he was being placed on
administrative leave, Walters informed Thompson that a decision regarding his
employment would be made after the completion of an investigation.
By letter dated August 28, 2012, Walters informed Thompson that his employment
with the APD was terminated. Walters’s termination letter listed the following reasons
for Thompson’s termination: (1) Thompson pepper-sprayed a handcuffed suspect in the
rear seat of his assigned patrol unit2
; (2) Thompson consistently photographed citizens in
2
This incident occurred during the Lockard arrest. Lockard was handcuffed in the back
seat of Thompson’s patrol unit with only his legs from the knee down remaining outside his
vehicle. Lockard was kicking at Thompson from this position. Walters’s understanding of what
happened was that Lockard had already been in the back seat of the vehicle and the door was
closed, and then Thompson reopened the door for some unknown reason and pepper-sprayed
Lockard whose feet were out of the vehicle and kicking at Thompson. Walters disagreed with
Thompson’s decision to pepper-spray a suspect who was handcuffed in the back seat of a patrol
unit when only the suspect’s legs were outside of the unit.
-3-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 3 of 11
their vehicles for traffic violations after Walters warned Thompson to cease this activity;
(3) Thompson improperly and unsafely stopped a semi-tractor and trailer on I-30 outside
of Thompson’s jurisdiction; (4) Thompson manhandled and roughly pushed a handcuffed
suspect in the Saline County Detention Center3
; (5) Thompson failed to show up for a
mandatory officers’ meeting; (6) Thompson failed to report for duty and attended a
classroom instruction and did not call in, thus causing a shift to be unattended for 2 hours;
(7) Thompson improperly searched the door panel of a citizen’s vehicle for a mere traffic
stop; (8) numerous complaints from Central Communications regarding Thompson’s
radio mannerism; (9) numerous complaints from citizens about Thompson’s brash
attitude–these citizens did not want to sign a complaint form because they said they were
afraid Thompson would retaliate against them; (10) Thompson disobeyed instructions
from Walters not to drive his assigned police vehicle to and from his other job on Capital
Avenue; and (11) Thompson drove his assigned police vehicle to Camp Robinson in
North Little Rock without approval; Thompson advised Walters that while he was there,
he assisted an agency with an accident activating his blue lights and other emergency
accessories, which Walters states could have resulted in vicarious liabilities for the City.
II.
The City moves for summary judgment on the following grounds: (1) Walters was
3
This suspect was Lockard, whom Thompson had earlier arrested and pepper-sprayed.
Walters received a call from someone with the Saline County Detention Center who said
Thompson had pushed Lockard nearly to the floor in the sally port area.
-4-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 4 of 11
not served in his individual capacity; (2) Thompson’s Title VII claims are untimely; and
(3) as to Thompson’s remaining 42 U.S.C. § 1983 and ACRA claims, Thompson has not
established a prima facie case of discrimination or retaliation, and there in any case
existed legitimate, non-discriminatory and non-retaliatory reasons for terminating
Thompson’s employment with the APD.
A.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). To support an assertion that a fact cannot be or is genuinely
disputed, a party must cite “to particular parts of materials in the record,” or show “that
the materials cited do not establish the absence or presence of a genuine dispute,” or “that
an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). The inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citations
omitted). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks
omitted). However, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
-5-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 5 of 11
475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
B.
In not responding to defendants’ motion for summary judgment, Thompson has
not contested the arguments defendants have set forth in their motion that they state
entitles them to summary judgment. Accordingly, Thompson has waived those
arguments. See Satcher v. University of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d
731, 735 (8th Cir. 2009) (“failure to oppose a basis for summary judgment constitutes a
waiver of that argument”).
1. Service on Walters
Thompson presents no evidence to counter the City’s argument that Walters,
individually, has not been served and there is nothing in the record to the contrary.
Accordingly, the Court dismisses Walters, in his individual capacity, from this action.
Thompson’s claims against Walters in his official capacity are equivalent to claims
against the City. Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (citing Hafer v.
Melo, 502 U.S. 21, 25 (1991)). As such, Thompson’s official capacity claims against
Walters are a legal redundancy because the City is also a party. Gunn v. Langston, No.
3:10-cv-35-DPM, 2011 WL 3667759, at *1 (E.D. Ark. Aug. 22, 2011) (citing Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985)). Accordingly, any reference to the City that has
-6-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 6 of 11
or will be made encompasses Walters in his official capacity.
2. Timeliness of the Title VII Claims
This is a refiling of a previous action–Thompson v. Walters, et al., No. 4:14-cv00047-SWW–that, on motion of Thompson, was dismissed without prejudice on
November 14, 2014.4
Arkansas’s Savings Statute–Ark. Code Ann. § 16-56-126–gives a
plaintiff one year to refile an action after a nonsuit. Thompson timely refiled this action
as to his 42 U.S.C. § 1983 and ACRA claims on November 16, 2015.5
Title VII actions,
however, are governed by a federal statute of limitations which requires that an action be
brought within 90 days after the plaintiff receives notice of the right to sue. Garrison v.
Int’l Paper Co., 714 F.2d 757, 759 n.2 (8th Cir. 1983) (citing 42 U.S.C. § 2000e-5(f)(1)).
“Because Title VII actions are governed by a federal statute of limitations, the Arkansas
saving clause is inapplicable.” Id. (citations omitted). Accordingly, Thompson’s Title
VII claims are untimely and the City’s motion for summary judgment on those claims is
granted. But even if Thompson timely filed his Title VII claims, those claims fail on the
merits.
3. Race Discrimination
Race discrimination claims under 42 U.S.C. § 1983, Title VII and ACRA are
evaluated under the same standards. Schaffhauser v. United Parcel Service, Inc., 794
F.3d 899, 902 (8th Cir. 2015); Conyears v. Tucker, No. 2:11-cv-00094-KGB, 2014 WL
4
At the time, Thompson was represented by counsel.
5
November 14, 2015, fell on a Saturday.
-7-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 7 of 11
1171313, at *6 (E.D. Ark. March 21, 2014). To survive a motion for summary judgment
on a race discrimination claim, a plaintiff must either present admissible evidence directly
indicating unlawful discrimination, or create an inference of unlawful discrimination
under the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Macklin v. FMC Transport, Inc., 815 F.3d 425, 427 (8th Cir. 2016)
(quotation marks and citation omitted). Because Thompson has presented no direct
evidence of race discrimination,6
his claim is analyzed under the McDonnell Douglas
burden-shifting framework. Id. Under that framework, Thompson is first required to
establish a prima facie case of race discrimination by showing (1) he is a member of a
protected class, (2) he met his employer's legitimate expectations, (3) he suffered an
adverse employment action, and (4) the circumstances give rise to an inference of
discrimination (for example, similarly situated employees outside the protected class were
treated differently). Id. If Thompson establishes his prima facie case, the burden shifts to
the City to show a nondiscriminatory reason for the adverse employment action. Id. If
the City does so, the burden shifts back to Thompson to establish that the proffered
nondiscriminatory reason is pretextual. Id., at 427-28. To survive summary judgment,
Thompson must point to enough admissible evidence to raise genuine doubt as to the
legitimacy of the City’s motive. DePriest v. Milligan, 823 F.3d 1179, 1186 (8th Cir.
6 Direct evidence is evidence showing a specific link between the alleged discriminatory
animus and the challenged decision, sufficient to support a finding by a reasonable fact finder
that an illegitimate criterion actually motivated the adverse employment action. Torgerson v.
City of Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011) (quotation marks and citation omitted).
-8-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 8 of 11
2016) (citation and quotation marks omitted).
Thompson does not dispute the City’s argument that he failed to show that he was
meeting the City’s legitimate expectations and that the circumstances surrounding his
termination give rise to an inference of discrimination. Accordingly, Thompson has not
established a prima facie case of race discrimination and he in any case has not shown
that the City’s legitimate, nondiscriminatory reason for his termination–his repeated
infractions–is pretextual.
4. Retaliation
Retaliation claims under 42 U.S.C. § 1983, Title VII and ACRA are evaluated
under the same standards. Bennett v. Riceland Foods, Inc., No. 5:11cv00104, 2012 WL
481827, at *5 (E.D. Ark. Feb. 15, 2012); Wilson v. Arkansas State Highway and Transp.
Dept., No. 4:11-cv-00855-KJB, 2015 WL 520734, at *18 (E.D. Ark. Feb. 9, 2015). To
survive a motion for summary judgment on a retaliation claim, a plaintiff may either offer
direct evidence of retaliation or satisfy the McDonnell Douglas burden-shifting
framework. Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014).7
Having failed to produce
direct evidence of retaliation, Thompson must first establish a prima facie case of
unlawful First Amendment retaliation by showing (1) he engaged in protected activity,
(2) he suffered an adverse employment action, and (3) a causal connection exists between
7
“‘Direct evidence of retaliation is evidence that demonstrates a specific link between a
materially adverse action and the protected conduct, sufficient to support a finding by a
reasonable fact finder that the harmful adverse-action was in retaliation for the protected
conduct.’” Id. (citation omitted).
-9-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 9 of 11
the two. Butler v. Crittenden County, Ark., 708 F.3d 1044, 1050-51 (8th Cir. 2014);
Okruhlik v. University of Arkansas, 395 F.3d 872, 878 (8th Cir. 2005). To establish
causation, Thompson must prove “‘the desire to retaliate was the but for cause of’” the
adverse employment action–that is, “‘that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of [the City].’” Wright
v. St. Vincent System, 730 F.3d 732, 737 (8th Cir. 2013) (quoting Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. —, —, 133 S.Ct. 2517, 2528, 2533 (2013)). “‘It is not enough
that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.’”
Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016) (quoting Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 90-91 (2nd Cir. 2015)). If Thompson establishes his
prima facie case, the City must then rebut it by presenting evidence of a legitimate, nonretaliatory reason for the adverse employment action it took against Thompson. Fiero v.
CSG Systems, Inc., 759 F.3d 874, 880 (8th Cir. 2014) (citation omitted). If the City
satisfies this burden, Thompson is then obliged to present evidence that (1) creates a
question of fact as to whether the City’s proffered reason was pretextual and (2) creates a
reasonable inference that the City acted in retaliation. Id.
Thompson does not dispute the City’s argument that he has failed to present
evidence of a causal connection between any exercise of his First Amendment rights and
his termination. Accordingly, Thompson has not established a prima facie case of
retaliation and he in any case has not shown that the City’s legitimate, non-retaliatory
reason for his termination–his repeated infractions–is pretextual.
-10-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 10 of 11
III.
For the foregoing reasons, the Court grants the defendants’ motion for summary
judgment [doc.#17]. The Court will enter judgment accordingly.
IT IS SO ORDERED this 18th day of October 2016.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
-11-
Case 4:15-cv-00709-SWW Document 22 Filed 10/18/16 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01581/USCOURTS-caed-1_15-cv-01581-6/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
OUSSAMA SAHIBI,
Plaintiff,
v.
BORJAS GONZALES, et al.,
Defendants.
CASE NO. 1:15-cv-01581-LJO-MJS (PC)
ORDER GRANTING LEAVE TO FILE
SURREPLY
(ECF No. 45)
FINDINGS AND RECOMMENDATIONS TO
DENY DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
(ECF No. 31)
FOURTEEN (14) DAY OBJECTION
DEADLINE
I. Procedural History
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s
Eighth Amendment excessive force claim against Defendants Brandon Cope, Borjas
Gonzales, Mario Lozano, Howard Smith, and Stan, and on a Fourteenth Amendment
due process claim against Defendant Crounse.
Before the Court is Defendant Gonzales, Lozano, Smith, Stan, and Cope’s July 1,
2016 motion for judgment on the pleadings.
1
(ECF No. 31.) Plaintiff filed an opposition
1 Defendant Crounse did not join in the motion.
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 1 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
(ECF No. 35), and Defendants filed a reply (ECF No. 37). Plaintiff sought leave to file a
surreply and submitted a surreply therewith. (ECF No. 45.) Defendants opposed the
request and responded to the surreply. (ECF No. 47.) These matters are submitted.
Local Rule 230(l).
II. Motion for Leave to File Surreply
Absent leave of court, no briefing on Defendant’s motion is permitted beyond the
opposition and reply. However, the Court may allow a surreply where “a valid reason for
such additional briefing exists.” Thornton v. Cates, No. 1:11–cv–01145–GSA–PC., 2013
WL 2902846, at *1 (E.D. Cal. June 13, 2013); Hill v. England, No. CVF05869RECTAG,
2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005).
Here, the Court finds valid reason for allowing the surreply. The law at issue on
this motion has changed since the parties submitted their briefs. Nettles v. Grounds, No.
12-16935, 2016 WL 4072465, at *3 (9th Cir. July 26, 2016). Plaintiff’s surreply addresses
a matter pertinent to this change in law. Furthermore, Defendants have responded to the
surreply and therefore are not prejudiced by it.
Plaintiff’s motion for leave to file a surreply will be granted. Plaintiff’s surreply and
Defendants’ response is considered herein.
III. Plaintiff’s Claims
Plaintiff’s claims arise out of a July 13, 2013 incident that occurred while he was
incarcerated at California Correctional Institution. Plaintiff claims that, on that date, he
was released from his cell for Ramadan services when Defendant Gonzales began to
make disparaging remarks toward Plaintiff. An altercation occurred between Plaintiff and
Defendant Gonzales. Plaintiff was subdued and handcuffed. Plaintiff alleges various acts
by Defendant Gonzales and others were excessive. Based on these allegations, the
Court has permitted Plaintiff to proceed on an excessive force claim against Defendants
Gonzales, Smith, Cope, Lozano and Stan. Such claim, however, is limited to
Defendants’ actions after Plaintiff was handcuffed.
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 2 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Plaintiff received a Rules Violation Report (“RVR”) in relation to this incident. On
November 14, 2013, he appeared before Defendant Crounse for his disciplinary hearing.
He asked Defendant Crounse to call Defendants Gonzales, Smith, Stan, Cope and
Lozano as witnesses. Defendant Crounse told Plaintiff that he would not be calling
anyone, “as staff reports gave a full account of the incident.” Plaintiff was found guilty of
the Rules Violation.
The Court has permitted Plainitff to proceed on a Fourteenth Amendment claim
against Defendant Crounse based on the denial of his right to call witnesses at his
disciplinary hearing.
IV. Legal Standard – Motion for Judgment on the Pleadings
A Rule 12(c) motion for judgment on the pleadings may be brought at any time
after the pleadings are closed, but within such time so as not to delay trial. Fed. R. Civ.
P. 12(c). Judgment on the pleadings is appropriate when, even if all material facts in the
pleading are accepted as true, the moving party is entitled to judgment as a matter of
law. Hal Roach Studios, Inc. V. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.
1989).
V. Discussion
Defendants contend that they are entitled to judgment on the pleadings because
Plaintiff’s claims are barred by the favorable termination rule, also known as the Heck
bar, on two grounds: first, Plaintiff’s claims are inconsistent with the guilty finding
resulting from his disciplinary proceeding for Battery on a Peace Officer Resulting in
Serious Injury; and second, Plaintiff’s claims are inconsistent with his felony conviction
for assault on a peace officer engaged in the performance of his duties.
A. Heck Bar
The exclusive method for challenging the fact or duration of Plaintiff’s confinement
is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78
(2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983
action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 3 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
indirectly through a judicial determination that necessarily implies the unlawfulness of the
State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the
relief sought, if success in that action would necessarily demonstrate the invalidity of
confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)
(unless and until favorable termination of the conviction or sentence, no cause of action
under section 1983 exists).
B. Analysis
1. Disciplinary Proceedings
Plaintiff is a prisoner serving a life sentence. He contends that the loss of credits
resulting from his disciplinary proceeding will have no effect on the duration of his
confinement. Defendants offer no evidence to the contrary. Given these facts, and
pursuant to recent Ninth Circuit case law, Plaintiff’s section 1983 claims do not fall within
the “core” of habeas corpus relief and therefore are not barred by his disciplinary
proceedings. Nettles v. Grounds, No. 12-16935, 2016 WL 4072465, at *3 (9th Cir. July
26, 2016). Defendants concede as much. (ECF No. 47.)
Accordingly, Defendants’ motion for judgment on the pleadings on this ground
should be denied.
2. Felony Conviction
Defendants argue that allowing Plaintiff to proceed against them in this action
would call into question the validity of Plaintiff’s conviction for assault on a peace officer
engaged in the performance of his duties. Defendants only argument in this regard is
statutory.
Plaintiff was convicted under California Penal Code § 245(c). This provision
punishes certain assaults on a peace officer “engaged in the performance of his or her
duties.” According to Defendants, an officer utilizing excessive force is not “engaged in
the performance of his or her duties.” Therefore, an excessive force claim is absolutely
barred where an inmate has been convicted under Penal Code § 245(c). In support,
Defendants rely on case law and CDCR regulations.
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 4 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
It is true that, under California law, a person may not be convicted under Penal
Code § 245(c) if the involved officer utilized excessive force during the encounter. See
Price v. Ollison, No. CV 07-569 DSF JC, 2011 WL 1883999, at *13 (C.D. Cal. Feb. 25,
2011), report and recommendation adopted as modified, No. CV 07-569 DSF JC, 2011
WL 1883008 (C.D. Cal. May 17, 2011); People v. White, 101 Cal. App. 3d 161, 164
(1980) (“[W]here excessive force is used in making what otherwise is a technically lawful
arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense
which requires the officer to be engaged in the performance of his duties.”); Susag v.
City of Lake Forest, 94 Cal. App. 4th 1401, 1409 (Cal. Ct. App. 2002) (holding that
excessive force by a police officer is not a lawful performance of his or her duties). Thus,
Plaintiff may not proceed on any claims relating to whether Defendants used excessive
force at the time while the offense (assault on a peace officer) occurred.
Here, however, Plaintiff has been allowed to proceed only on those allegations
occurring after he was handcuffed by the involved officers. A conclusion that Defendants
used excessive force after the attack by Plaintiff and after Plaintiff was handcuffed does
not undermine Plaintiff’s conviction. See Hooper v. County of San Diego, 629 F.3d 1127,
1134 (9th Cir. 2011) (A “conviction under California Penal Code § 148(a)(1) does not bar
a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim
are based on different actions during ‘one continuous transaction.’”); Sanford v. Motts,
258 F.3d 1117, 1120 (9th Cir. 2001) (“[I]f [the officer] used excessive force subsequent
to the time Sanford interfered with [the officer’s] duty, success in her section 1983 claim
will not invalidate her conviction. Heck is no bar.”).
Defendants may wish to argue that no such actions occurred after the
commission of Plaintiff’s offense and that all of the alleged force occurred during the
commission of Plaintiff’s assault on a peace officer engaged in the performance of his
duties. However, this is contrary to Plaintiff’s allegations and thus cannot support a
motion for judgment on the pleadings. See Sturgis v. Brady, No. C 08-5363 SBA (PR),
2016 WL 924859, at *6 (N.D. Cal. Mar. 11, 2016) (denying motion for judgment on the
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 5 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
pleadings where Plaintiff claimed he already was subdued when the excessive force was
used). Instead, such matters must be resolved on summary judgment or, as is more
likely in this matter, at trial.
Accordingly, Defendants’ motion for judgment on the pleadings on this basis
should be denied.
VI. Conclusion, Order and Recommendation
Based on the foregoing, Plaintiff’s motion for leave to file a surreply (ECF No. 45)
is HEREBY GRANTED. Furthermore, it is HEREBY RECOMMENDED that Defendants’
motion for judgment on the pleadings (ECF No. 31) be DENIED.
These findings and recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.
§ 636(b)(1). Within fourteen (14) days after being served with the findings and
recommendations, the parties may file written objections with the Court. The document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
A party may respond to another party’s objections by filing a response within fourteen
(14) days after being served with a copy of that party’s objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
Dated: September 19, 2016 /s/Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Case 1:15-cv-01581-LJO-JLT Document 48 Filed 09/20/16 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_18-cv-02931/USCOURTS-cand-4_18-cv-02931-5/pdf.json | 890 | Other Statutory Actions | 47:227 Telephone Consumer Protection Act | STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE
CASE NO. 4:18-CV-02931-HSG
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Daniel C. Girard (State Bar No. 114826)
Angelica M. Ornelas (State Bar No. 285929)
Simon S. Grille (State Bar No. 294914)
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, California 94108
Telephone: (415) 981-4800
Facsimile: (415) 981-4800
[email protected]
[email protected]
[email protected]
Avi R. Kaufman (pro hac vice)
KAUFMAN P.A.
400 NW 26th Street
Miami, Florida 33127
Telephone: (305) 469-5881
[email protected]
Steven L. Woodrow (pro hac vice)
Patrick H. Peluso (pro hac vice)
Taylor Smith (pro hac vice)
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, Colorado 80210
Telephone: (720) 213-0675
Facsimile: (303) 927-0809
[email protected]
[email protected]
[email protected]
Interim Lead Plaintiffs’ Counsel
Tiffany Cheung
Lucia Xochiquetzal Roibal
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Telephone: (415) 268-7315
Facsimile: (415) 268-7522
[email protected]
[email protected]
Adam J. Hunt
Morrison & Foerster LLP
250 West 55th Street
New York, New York 10019-9601
Telephone: (212) 336-4341
Facsimile: (212) 468-7900
[email protected]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE UBER TEXT MESSAGING Case No. 4:18-cv-02931-HSG
STIPULATION AND ORDER REGARDING
BRIEFING SCHEDULE FOR DEFENDANT’S
MOTION TO COMPEL ARBITRATION AS
TO PLAINTIFF CHISTOPHER ZIERS
Judge: Hon. Haywood S. Gilliam, Jr.
Case 4:18-cv-02931-HSG Document 65 Filed 12/18/18 Page 1 of 5
STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE
Case No. 4:18-cv-02931-HSG 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs Wanda Rogers and Christopher Ziers (“Plaintiffs”) and Defendant Uber
Technologies, Inc. (“Defendant”) hereby stipulate and agree as follows, and request entry of the
below proposed order approving their stipulation.
WHEREAS, on November 1, 2018, Uber filed a Motion to Compel Arbitration as to
Plaintiffs Lucius Manning (“Manning”), Andrew Katzman (“Katzman”), and Carla Vario
(“Vario”), and to stay the action, including the claims of Plaintiffs Wanda Rogers (“Rogers”) and
Christopher Ziers (“Ziers”), pending arbitration. Dkt. No. 57. The motion is set for a hearing on
February 14, 2019. Id.;
WHEREAS, Plaintiffs Manning, Katzman, and Vario voluntarily dismissed their claims in
this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) on
November 9. Dkt. No. 58;
WHEREAS, Uber now intends to file a motion to compel Ziers to arbitrate his claims;
WHEREAS, the parties are presently scheduled to appear before this Court on February
14, 2019, for a hearing on Defendant’s previously filed Motion to Stay (Dkt. No. 56) and Motion
to Compel Arbitration (Dkt. No. 57); and
WHEREAS, the parties have met and conferred and agree that judicial efficiency will be
served by agreeing to a briefing schedule for Uber’s Motion to Compel Arbitration as to Ziers;
NOW THEREFORE, the parties hereby stipulate to and request entry of an order:
1) withdrawing Uber’s Motion to Compel Arbitration as to Plaintiffs Manning, Katzman, and
Vario (Dkt. No. 57); and 2) setting the following briefing and hearing schedule for Defendant’s
Motion to Compel Arbitration as to Ziers:
Filing/Event Deadline
Defendant’s Motion to Compel Arbitration as
to Ziers
December 17, 2018
Plaintiffs’ Opposition to Defendant’s Motion
to Compel Arbitration as to Ziers
January 11, 2019
Defendant’s Reply in Support of Defendant’s
Motion to Compel Arbitration as to Ziers
February 4, 2019
Case 4:18-cv-02931-HSG Document 65 Filed 12/18/18 Page 2 of 5
STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE
Case No. 4:18-cv-02931-HSG 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Subject to the Court’s availability and schedule for considering the parties’ briefs in advance of a
hearing, the Parties further request that the Court hear the forthcoming Motion to Compel as to
Plaintiff Ziers on February 14, 2019, the date previously noticed for the hearing on Uber’s Motion
to Compel as to Plaintiffs Manning, Katzman, and Vario (Dkt. No. 57).
Dated: December 17, 2018 Respectfully submitted,
By: /s/ Simon S. Grille
Daniel C. Girard (State Bar No. 114826)
Angelica M. Ornelas (State Bar No. 285929)
Simon S. Grille (State Bar No. 294914)
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, California 94108
Telephone: (415) 981-4800
Facsimile: (415) 981-4800
Email: [email protected]
Email: [email protected]
Email: [email protected]
Avi R. Kaufman (pro hac vice)
KAUFMAN P.A.
400 NW 26th Street
Miami, Florida 33127
Telephone: (305) 469-5881
Email: [email protected]
Steven L. Woodrow (pro hac vice)
Patrick H. Peluso (pro hac vice)
Taylor Smith (pro hac vice)
WOODROW & PELUSO, LLC
3900 East Mexico Ave., Suite 300
Denver, Colorado 80210
Telephone: (720) 213-0675
Facsimile: (303) 927-0809
Email: [email protected]
Email: [email protected]
Email: [email protected]
Interim Lead Plaintiffs’ Counsel
Dated: December 17, 2018 By: /s/ Adam J. Hunt
Case 4:18-cv-02931-HSG Document 65 Filed 12/18/18 Page 3 of 5
STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE
Case No. 4:18-cv-02931-HSG 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Tiffany Cheung
Lucia Xochiquetzal Roibal
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Telephone: (415) 268-7315
Facsimile: (415) 268-7522
[email protected]
[email protected]
Adam J. Hunt, pro hac vice
Morrison & Foerster LLP
250 West 55th Street
New York, New York 10019-9601
Telephone: (212) 336-4341
Facsimile: (212) 468-7900
[email protected]
Attorneys for Defendant Uber Technologies, Inc.
ATTESTATION
I, Simon S. Grille, am the ECF user whose identification and password are being used to
file this Stipulation and [Proposed] Order Regarding Briefing Schedule for Defendants’ Motion
to Compel Arbitration as to Ziers. I attest under penalty of perjury that concurrence in this filing
has been obtained from all signatories above.
Dated: December 17, 2018 /s/ Simon S. Grille
Case 4:18-cv-02931-HSG Document 65 Filed 12/18/18 Page 4 of 5
ORDER REGARDING BRIEFING SCHEDULE
Case No. 4:18-cv-02931-HSG 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER
This matter is before the Court on the Parties’ Stipulation and [Proposed] Order Regarding
Briefing Schedule for Defendants’ Motion To Compel Arbitration as to Ziers. The Court, having
considered the parties’ Stipulation, adopts the following briefing schedule:
Filing/Event Deadline
Defendant’s Motion to Compel Arbitration As
To Ziers
December 17, 2018
Plaintiffs’ Opposition to Defendant’s Motion
to Compel Arbitration As To Ziers
January 11, 2019
Defendant’s Reply in Support of Defendant’s
Motion to Compel Arbitration As To Ziers
February 4, 2019
Hearing on Defendant’s Motion to Stay the
Proceedings
February 14, 2019
IT IS SO ORDERED.
DATED: December 18, 2018 __________________________________
Honorable Haywood S. Gilliam, Jr.
United States District Judge
Case 4:18-cv-02931-HSG Document 65 Filed 12/18/18 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_09-cv-01028/USCOURTS-casd-3_09-cv-01028-0/pdf.json | 440 | Other Civil Rights | 28:1441 Petition for Removal | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
09cv1028
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WARREN L. BURINGTON; SANDRA
BURINGTON,
Plaintiffs,
v.
T.D. SERVICE COMPANY; et. al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil No. 09cv1028 L(NLS)
ORDER DENYING AS MOOT
MOTION TO DISMISS AND TO
STRIKE ALLEGATIONS WITHOUT
PREJUDICE [doc. #7] and DENYING
PLAINTIFFS’ MOTION FOR
LEAVE TO FILE A FIRST
AMENDED COMPLAINT AS MOOT
[doc. #13]
Defendant Bank of America, N.A. and T.D. Service Company filed a motion to dismiss
the complaint and to strike certain allegations from the complaint. [doc. #7]. Rather than address
defendants’ motion, plaintiffs filed motions for leave to file a first amended complaint and to
remand the action.
A party may amend its pleading once as a matter of course before being served with a
responsive pleading. FED. R. CIV. PROC. 15(a)(1)(A). A motion such as a motion to dismiss or a
motion to strike is not a pleading, and therefore not a responsive pleading, as the term is used in
the Federal Rules of Civil Procedure. FED. R. CIV. PROC. 7(a); see Crum v. Circus Circus
Enters., 231 F.3d 1129, 1130 n.3 (9th Cir. 2000). Accordingly, plaintiffs were able to file their
first amended complaint without seeking leave of court. See id.
An amended complaint supersedes a prior complaint as a pleading. Forsyth v. Humana,
Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). A district court may treat as moot a pending motion
Case 3:09-cv-01028-L-NLS Document 16 Filed 07/20/09 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2 09cv1028
to dismiss when an amended pleading is filed. See William W. Schwarzer et al., FED. CIV.
PROC. BEFORE TRIAL ¶ 9:262 (2009).
Accordingly, defendants’ motion to dismiss and to strike allegations are DENIED AS
MOOT AND WITHOUT PREJUDICE. Plaintiffs’ motion for leave to file a first amended
complaint is DENIED AS MOOT. Plaintiffs’ shall file their amended complaint within three
days of the filing of this Order. Defendants shall file a response to the first amended complaint
within the time provided in Rule 15(a)(3). Plaintiffs’ motion to remand [doc. #14] remains set
for hearing on September 14, 2009 at 10:30 a.m.
IT IS SO ORDERED.
DATED: July 20, 2009
M. James Lorenz
United States District Court Judge
COPY TO:
HON. NITA L. STORMES
UNITED STATES MAGISTRATE JUDGE
ALL PARTIES/COUNSEL
Case 3:09-cv-01028-L-NLS Document 16 Filed 07/20/09 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-02585/USCOURTS-caed-2_15-cv-02585-0/pdf.json | 950 | Constitutionality of State Statutes | 28:1332 Diversity-Petition for Removal | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 STIPULATED REQUEST FOR DISMISSAL WITH PREJUDICE; ORDER THEREON
- 1
T. JAMES FISHER
1721 Court Street
P.O. Box 990460
Redding, CA 96099-0460
Telephone No. 530/244-0909
Facsimile No. 530/244-0923
[email protected]
Attorney for Plaintiff
SUSAN TONKEL
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SUSAN TONKEL,
Plaintiff,
vs.
ALL STAR LABOR AND STAFFING, LLC,
RAMONA MATHANY,
JOHN JONES, and DOES 1-50 inclusive,
Defendants.
Case No.: 2:15-CV-02585-MCE-CMK
STIPULATED REQUEST FOR
DISMISSAL WITH PREJUDICE; ORDER
THEREON
IT IS HEREBY STIPULATED by and between the parties hereto through
their respective attorneys to dismiss the above-referenced case with prejudice pursuant
to the Settlement Agreement and Release of All Claims fully executed by the parties
and their counsel.
LAW OFFICES OF T. JAMES FISHER
DATED: August 17, 2016
By:__________/S/____________________________
T. JAMES FISHER
Attorney for Plaintiff
Case 2:15-cv-02585-MCE-CMK Document 13 Filed 08/22/16 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 STIPULATED REQUEST FOR DISMISSAL WITH PREJUDICE; ORDER THEREON
- 2
SUSAN TONKEL
LITTLER MENDELSON, P.C.
DATED: August 17, 2016
By:__________/S/___________________________
BARBARA A. BLACKBURN
Attorney for Defendants
ALL STAR LABOR AND STAFFING, LLC
RAMONA MATHANY AND JOHN JONES
ORDER
Based on the foregoing stipulation and good cause therefore, IT IS HEREBY
ORDERED that this entire action be dismissed in its entirety, with prejudice. The Clerk
of Court is directed to close the case.
IT IS SO ORDERED.
Dated: August 19, 2016
Case 2:15-cv-02585-MCE-CMK Document 13 Filed 08/22/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_15-cv-04417/USCOURTS-cand-4_15-cv-04417-3/pdf.json | 830 | Patent | 35:271 Patent Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST
sf-3604626
JAMES P. BENNETT (CA SBN 65179)
[email protected]
RACHEL KREVANS (CA SBN 116421)
[email protected]
BARBARA BARATH (CA SBN 268146)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendant
APPLE INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ZEROCLICK, LLC, a Texas limited liability
company,
Plaintiff,
v.
APPLE INC., a California corporation,
Defendant.
Case No. 3:15-CV-04417-JST
ESI STIPULATION AND
[PROPOSED] ORDER
Date: January 13, 2016
Time: 2:00 PM
Place: Courtroom 9, 19th Floor
Judge: Jon S. Tigar
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 1 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 1
sf-3604626
Upon the stipulation of the parties, the Court ORDERS as follows:
1. This Order supplements all other discovery rules and orders. It streamlines
Electronically Stored Information (“ESI”) production to promote a “just, speedy, and inexpensive
determination of this action, as required by Federal Rule of Civil Procedure 1.”
2. Proportionality and ESI Guidelines. To further the application of the
proportionality standard set forth in Fed. R. Civ. P. 26(b)(2(C), requests for production of ESI and
related responses should be reasonably targeted, clear, and as specific as practicable. Where the
discovery request is potentially burdensome to the responding party, the parties should consider
options such as staging discovery and sampling, in an attempt to reduce the costs of production.
3. As in all cases, costs may be shifted for disproportionate ESI production requests
pursuant to Federal Rule of Civil Procedure 26. Likewise, a party’s nonresponsive or dilatory
discovery tactics are cost-shifting considerations. A party’s meaningful compliance with this
Order and efforts to promote efficiency and reduce costs will be considered in cost-shifting
determinations.
4. The parties are expected to comply with the District’s E-Discovery Guidelines
(“Guidelines”) and are encouraged to employ the District’s Model Stipulated Order Re: the
Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer
regarding Electronically Stored Information.
5. General ESI. General ESI production requests under Federal Rules of Civil
Procedure 34 and 45 shall not include email or other forms of electronic correspondence
(collectively “Email”). The limits discussed in Paragraphs 3 to 5 above shall apply to General
ESI. Nothing contained herein, however, shall limit any party’s obligation to disclose any
document that that party intends to rely upon to support any claim or defense, regardless of
whether such document constitutes ESI, General ESI or Email.
6. Email. To obtain Email, parties must propound specific requests. Email
production requests shall only be propounded for specific issues, rather than general discovery of
a product or business.
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 2 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 2
sf-3604626
7. Email production requests shall be phased to occur after the parties have
exchanged initial disclosures and basic documentation about the patents, the prior art, the accused
instrumentalities, and the relevant finances. While this provision does not require the production
of such information, the Court encourages prompt and early production of this information to
promote efficient and economical streamlining of the case.
8. Email production requests shall identify the custodian, search terms, and time
frame. The parties shall cooperate to identify the proper custodians, proper search terms and
proper timeframe as set forth in the Guidelines. The parties shall make good faith efforts to
identify appropriate email custodians and produce email on the agreed upon schedule, but reserve
the right to seek email from additional email custodians identified through discovery.
9. The parties shall meet and confer to reach agreement on the list of custodians for
purposes of collection, review and production of Email. In connection with the meet and confer
process, each party shall provide a proposed list of individual custodians who are knowledgeable
about and were involved with the core issues or subjects in this case (e.g., the asserted patents, the
development, design and operation of the accused products, and sales, marketing and other
damages-related information for the accused products). The parties then shall meet and confer to
reach agreement on document custodians. Each requesting party shall limit its Email production
requests to a total of five custodians per producing party for all such requests. The parties may
jointly agree to modify this limit without the Court’s leave. The Court shall consider contested
requests for additional custodians, upon showing a distinct need based on the size, complexity,
and issues of this specific case. Cost-shifting may be considered as part of any such request.
Email, shall be collected for each individual custodian from the personal computers, network
resources, and other electronic devices that those individuals use for work purposes.
10. The parties shall also meet and confer to reach agreement on search terms to be
used for electronic searches of the files from those custodians. Each requesting party shall limit
its Email production requests to a total of five search terms per custodian per party. The parties
may jointly agree to modify this limit without the Court’s leave. The Court shall consider
contested requests for additional search terms per custodian, upon showing a distinct need based
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 3 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 3
sf-3604626
on the size, complexity, and issues of this specific case. The Court encourages the parties to
confer on a process to test the efficacy of the search terms. The search terms shall be narrowly
tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its
product name, are inappropriate unless combined with narrowing search criteria that sufficiently
reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g.,
“computer” and “system”) narrows the search and shall count as a single search term. A
disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the
search, and thus each word or phrase shall count as a separate search term unless they are variants
of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged
to limit the production and shall be considered when determining whether to shift costs for
disproportionate discovery. Notwithstanding prior agreement on the search terms to be used for
electronic searches, should a search produce an unreasonably large number of non-responsive or
irrelevant results, the parties shall (at the producing party’s request) meet and confer to discuss
application of further negative search restrictions (e.g., if a single search was for “card” and
ninety percent of the resulting documents came from the irrelevant term “credit card,” a negative
limitation to ignore documents only returned as a result of “credit card” may be applied to remove
these documents). The party receiving production shall not unreasonably oppose such further
restrictions designed to filter immaterial search results. Should a party serve Email production
requests with search terms beyond the limits agreed to by the parties or granted by the Court
pursuant to this paragraph, this shall be considered in determining whether any party shall bear all
reasonable costs caused by such additional discovery.
11. Nothing in this Order prevents the parties from agreeing to use technology assisted
review and other techniques insofar as their use improves the efficacy of discovery. Such topics
should be discussed pursuant to the District’s E-Discovery Guidelines.
12. Format for production of documents – documents existing in electronic
format. Except as otherwise provided for in this Stipulation, all documents existing in electronic
format shall be produced in multiple page, searchable PDF format at a resolution of at least 300
dpi in accordance with the following:
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 4 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 4
sf-3604626
A. PDF files shall be produced along with Concordance/Opticon image load
files that indicate the beginning and ending of each document.
B. For documents which already exist in PDF format prior to production (i.e.,
which the producing party receives from a client or third party in PDF format), the producing
party may provide them in that same PDF format, whether searchable or non-searchable. For
documents converted to PDF format prior to production, the producing party shall make
reasonable efforts to convert to searchable PDF.
C. Metadata. Load files should include, where applicable, the information
listed in the Table of Metadata Fields, attached as Exhibit A. However, the parties are not
obligated to include metadata for any document that does not contain such metadata in the
original, if it is not possible to automate the creation of metadata when the document is collected.
The parties reserve their rights to object to any request for the creation of metadata for documents
that do not contain metadata in the original.
D. Production media and encryption of productions. Unless otherwise
agreed, the parties shall provide document productions in the following manner: The producing
party shall provide the production data on CDs, DVDs, external hard drives, or SFTP, as
appropriate. The producing party shall encrypt the production data using WinRAR encryption,
and the producing party shall forward the password to decrypt the production data separately
from the CD, DVD, external drive, or SFTP on which the production data is saved.
13. Format for production of documents – hardcopy or paper documents. All
documents that are hardcopy or paper files shall be scanned and produced in the same manner as
documents existing in electronic format, above.
14. Source code. This Stipulation does not govern the format for production of source
code, which shall be produced pursuant to the relevant provision of the Protective Order.
15. Parent and child emails. The parties shall produce email attachments
sequentially after the parent email.
16. Native files. The parties will meet and confer to discuss requests for the
production of files in native format, on a case-by-case basis. If the parties are unable to reach
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 5 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 5
sf-3604626
agreement with regard to requests for additional documents in native-file format, the parties
reserve the right to seek relief from the Court. Documents produced natively shall be represented
in the set of imaged documents by a slipsheet indicating the production identification number and
confidentiality designation for the native file that is being produced.
17. Databases. Certain types of databases are dynamic in nature and will often
contain information that is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence. Thus, a party may opt to produce relevant and responsive information from
databases in an alternate form, such as a report or data table. These reports or data tables will be
produced in a static format.
The parties agree to identify the specific databases, by name, that contain the relevant and
responsive information that parties produce.
18. Requests for hi-resolution or color documents. The parties agree to respond to
reasonable and specific requests for the production of higher resolution or color images. Nothing
in this Stipulation shall preclude a producing party from objecting to such requests as
unreasonable in number, timing or scope, provided that a producing party shall not object if the
document as originally produced is illegible or difficult to read. The producing party shall have
the option of responding by producing a native-file version of the document. If a dispute arises
with regard to requests for higher resolution or color images, the parties will meet and confer in
good faith to try to resolve it.
19. Foreign language documents. All documents shall be produced in their original
language. Where a requested document exists in a foreign language and the producing party also
has an English-language version of that document that it prepared for non-litigation purposes
prior to filing of the lawsuit, the producing party shall produce both the original document and all
English-language versions. In addition, if the producing party has a certified translation of a
foreign-language document that is being produced, (whether or not the translation is prepared for
purposes of litigation) the producing party shall produce both the original document and the
certified translation. Nothing in this agreement shall require a producing party to prepare a
translation, certified or otherwise, for foreign language documents that are produced in discovery.
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 6 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 6
sf-3604626
20. Document preservation. The parties shall preserve all hardcopy documents and
reasonably accessible ESI relating to the issues relevant to this action. The parties shall exercise
reasonable diligence to ensure that document retention notices are distributed to custodians who
are likely to have relevant documents. Furthermore, the parties shall not intentionally destroy any
relevant documents that they know or reasonably suspect contain relevant information. The
parties shall meet and confer regarding any reasonable additional document preservation
measures that may be required to ensure that relevant information is not destroyed during the
pendency of this litigation.
Dated: February 12, 2016 MORRISON & FOERSTER LLP
/s/ Barbara Barath Barbara Barath
Attorneys for Defendant
APPLE INC.
Dated: February 12, 2016 RUSS AUGUST & KABAT
/s/ Brian Ledahl
Brian Ledahl
Attorneys for Plaintiff
ZEROCLICK, LLC
IT IS SO ORDERED.
Dated: February ____, 2016
Hon. Jon S. Tigar
United States District Court
17
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
IT IS SO ORDERED
Judge Jon S. Tigar
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 7 of 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ESI STIPULATION AND [PROPOSED] ORDER
Case No. 3:15-CV-04417-JST 7
sf-3604626
ATTESTATION OF E-FILED SIGNATURE
I, Barbara Barath, am the ECF User whose ID and password are being used to file this
ESI Stipulation and [Proposed] Order. In compliance with Local Rule 5-1(i)(3), I hereby attest
that Brian Ledahl has concurred in this filing.
Dated: February 12, 2016 By: /s/ Barbara Barath
BARBARA BARATH
Attorneys for Apple Inc.
Case 4:15-cv-04417-JST Document 39 Filed 02/17/16 Page 8 of 8 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_03-cv-02607/USCOURTS-caed-2_03-cv-02607-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHNNY GRAVES,
Petitioner, No. CIV S-03-2607 GEB GGH P
vs.
JAMES YATES, Warden, et al.,
Respondent. FINDINGS AND RECOMMENDATIONS
/
I. Introduction
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for assault with
means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), a gang
enhancement (Cal. Penal Code § 186.22(b)(1)) and two prior conviction enhancements (Cal.
Penal Code § 667, 1170.12.). Petitioner is serving a sentence of nine years.
Petitioner challenges his conviction on the following grounds: 1) violation of the
Confrontation Clause; 2) insufficient evidence; 3) trial court erred in denying his motion to
substitute counsel. After carefully considering the record, the court recommends that the petition
be denied.
/////
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 1 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The AEDPA applies to this petition for habeas corpus which was filed after the
AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy,
117 S. Ct. 2059 (1997). The AEDPA “worked substantial changes to the law of habeas corpus,”
establishing more deferential standards of review to be used by a federal habeas court in
assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error.
Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme
Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion
for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy
between “contrary to” clearly established law as enunciated by the Supreme Court, and an
“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies
to two situations: (1) where the state court legal conclusion is opposite that of the Supreme
Court on a point of law, or (2) if the state court case is materially indistinguishable from a
Supreme Court case, i.e., on point factually, yet the legal result is opposite.
“Unreasonable application” of established law, on the other hand, applies to
mixed questions of law and fact, that is, the application of law to fact where there are no factually
on point Supreme Court cases which mandate the result for the precise factual scenario at issue.
Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the
AEDPA standard of review which directs deference to be paid to state court decisions. While the
deference is not blindly automatic, “the most important point is that an unreasonable application
of federal law is different from an incorrect application of law....[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at
1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 2 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
objectively unreasonable nature of the state court decision in light of controlling Supreme Court
authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated
awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.
Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is
contrary to, or an unreasonable application of, established Supreme Court authority. Id. An
unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has
occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the
established Supreme Court authority reviewed must be a pronouncement on constitutional
principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules
binding only on federal courts. Early v. Packer, 123 S. Ct. at 366.
However, where the state courts have not addressed the constitutional issue in
dispute in any reasoned opinion, the federal court will independently review the record in
adjudication of that issue. “Independent review of the record is not de novo review of the
constitutional issue, but rather, the only method by which we can determine whether a silent state
court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.
2003).
In reviewing a state court’s summary denial of a habeas petition, the court “looks
through” the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234
F.3d 1072, 1079 n. 2 (9th Cir. 2000)(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct.
2590 (1991)). In the instant case, the California Supreme Court issued a summary denial of
petitioner’s petition for review, which raised the claims raised in the instant petition.
Respondent’s Answer, Exhibit F. Accordingly, the court looks through to the reasoned decision
of the California Court of Appeal.
/////
/////
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 3 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
III. Factual Background
Sacramento Police Officer Christian Prince testified that on November 10, 2001,
at 11:40 p.m. he responded to a call at the Quick Stop Market at 3296 Marysville Boulevard. RT
at 176. When he arrived, Officer Prince observed a man who identified himself as Richard
Connor standing in front of the market dressed primarily in red. RT at 176, 177. He had cuts on
his face and blood was splattered on him. RT at 176. Connor told Prince that four Crips had
walked up to him, asked him where he was from and then started beating him up. RT at 179.
Connor said he did not want to report anything. RT at 179. He just wanted a medic. RT at 179.
Connor would not give Officer Prince any additional information about the suspects. RT at 179.
Officer Prince testified that inside the store a display rack was knocked over and there was blood
on the floor. RT at 178.
The court played for the jury the videotape taken from the market on the night of
the incident. RT at 186.
Sacramento Police Department Detective Laura Gracia testified that the Quick
Stop Market where the assault occurred was part of the turf of the Nogales Gangster Grips. RT
at 192. The Crips claim blue as their identifying color. RT at 195. Persons associated with the
Blood gang wear red clothing. RT at 196.
Gracia testified that she observed tattoos on petitioner that were indicative of
membership in the Crips. RT at 211. Gracia also spoke with a gang expert in San Bernardino
County who told her that petitioner was a validated gang member of the Pimp Player Hustler
Gangster Crips out of San Bernardino. RT at 212. She testified that petitioner’s gang name was
“jack move.” RT at 213. In 1998 petitioner told Gracia that he was a member of the Crips. RT
at 214.
Gracia watched the videotape taken from the store of the crime. RT at 215-216.
She recognized petitioner on the tape. RT at 216. Gracia testified that she believed that the
purpose of the assault on Connor was to benefit the Crips. RT at 217. The basis of this opinion
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 4 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5
was that the victim was dressed from head to toe in red, which was indicative of membership in
the Bloods gang. RT at 217. In addition, the area where the assault occurred was a Crips area.
RT at 218. Gracia identified the other assailants as Kenyata Hudson and Lamont West,
petitioner’s brother, both validated Crips members. RT at 219.
Dr. Hallam who worked in the emergency room at Sutter Hospital testified that he
examined Connor on the night of the assault. RT at 232. Connor told Hallam that he had been
jumped by gang members and struck on the left side of the face with a soda can. RT at 232.
Hallam testified that Connor had a laceration near his cheek and discomfort in his shoulder area.
RT at 232, 233. The laceration on Connor’s cheek was half an inch. RT at 233. Hallam closed
it with five stitches. RT at 233.
Against the advice of counsel, petitioner testified. Petitioner testified that he went
to the Quick Stop Market to get gas. RT at 292-293. At that time, he was with Larry, whose last
name he did not recall. RT at 296, 305. Petitioner saw Connor walk into the store. RT at 295.
As petitioner went to get into his car, Connor walked toward him and said something to
petitioner. RT at 297. Connor insisted that petitioner was somebody else and then took a swing
at him, hitting petitioner in the face. RT at 297-98. Petitioner swung back at Connor and chased
him into the store. RT at 299. Petitioner testified that he did not know Kenyata Hudson, who
Detective Gracia had identified on the tape. RT at 300. Petitioner testified that his brother was
not at the store on the night of the incident. RT at 301.
Petitioner testified that he did not ask Connor where he was from, as testified by
Officer Gracia. RT at 302. Petitioner denied that his actions toward Connor were gang related.
RT at 303. During the course of the incident, petitioner felt that he was defending himself. RT
at 304.
On cross-examination, petitioner was asked if he saw in the video taken from the
market himself and the other two men involved in the beating jump into his car and take off. RT
at 306. Petitioner denied that the video depicted this scene. RT at 307. During crossCase 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 5 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
6
examination, petitioner testified that some man he did not know joined in with him on the assault
of Connor. RT at 307. Petitioner did not deny that he had previously been involved in the Crips.
RT at 308.
On cross-examination, petitioner was asked whether Connor was trying to hold
the door of the store closed as petitioner and the other two men tried to push open the door, as
apparently depicted on the video. RT at 316. Petitioner testified that only he was trying to push
the door open. RT at 316. Petitioner testified that he wanted to get into the store to hit Connor in
retaliation for Connor hitting him. RT at 316. Petitioner testified that he was the only person
who inflicted any injuries on Connor. RT at 320.
IV. Discussion
A. Confrontation Clause
The trial court admitted Connor’s statements to Dr. Hallam and Officer Prince
pursuant to Cal. Evid. Code § 1170, which permits unavailable witness’s statements to be
introduced at trial if the statement describes the infliction of an injury, was made at or near the
time of the injury, and was made to a physician or law enforcement officer. Answer, Exhibit D,
pp. 6-7. Petitioner argues that admission of Connor’s statements violated the Confrontation
Clause.
Pursuant to the Confrontation Clause, and subject to the Crawford case below,
hearsay is admissible when the statement bears “indicia of reliability” and the witness is
“unavailable.” Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537 (1980). Reliability can
be inferred where the evidence falls within a firmly rooted hearsay exception or the evidence
bears particularized guarantees of trustworthiness. Id. at 68, 100 S. Ct. at 2540.
In Crawford v. Washington, 541 U.S. 36, 59-60, 124 S. Ct. 1354, 1369 (2004), the
Supreme Court held that testimonial statements of witnesses absent from trial are admissible only
where the declarant is unavailable and only where the defendant has had a prior opportunity to
\\\\\
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 6 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
In Bockting v. Bayer, 399 F.3d 1010, 1012-1013 (9th Cir. 2005), as amended on denial
of rehearing, ___ F.3d ___, 2005 WL 1278821 (9th Cir. June 1, 2005), the Ninth Circuit held that
Crawford applies retroactively. A petition for hearing en banc is pending in Bockting.
7
cross-examine.1 For the following reasons, the court finds that Crawford is not applicable in the
instant case because the statements made by Connor to Dr. Hallam and Officer Prince were not
testimonial.
In Crawford, the Supreme Court declined to define what constitutes testimonial
evidence. However, it did give some examples of what would constitute testimonial evidence:
An accuser who makes a formal statement to government officers bears testimony
in a sense that a person who makes a casual remark to an acquaintance does not.
The constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type of outof-court statement.
Various formulations of this core class of “testimonial” statements exists: “ex
parte in-court testimony or its functional equivalent–that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially,” Brief for Petitioner 23; “extrajudicial
statements...contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions,” White v. Illinois, 502 U.S. 346, 365,
112 S.Ct. 736, 116 L.Ed.2d 848 (1992)(Thomas, J., joined by Scalia, J.,
concurring in part and concurring in judgment); “statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial,”...
541 U.S. at 51-52, 124 S. Ct. at 1364.
Connor’s statements to Dr. Hallam were not made under circumstances which
would lead an objective witness to reasonably believe that the statements were made for
testimonial purposes. See Evans v. Luebbers, 371 F.3d 438, 445 (8th Cir. 2004) (hearsay
statements admissible as statements for purposes of obtaining medical diagnosis and as evidence
of mental state are not testimonial for purposes of Crawford analysis). Petitioner’s statements to
Officer Prince were not testimonial because “voluntary statements made by a victim to police,
without the stress of interrogation, are not testimonial for purposes of Crawford. Leavitt v.
Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004). For these reasons, Crawford is inapplicable.
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 7 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
8
Applying the test set forth in Ohio v. Roberts, the court first considers whether
Connor was unavailable. A witness is considered unavailable if “the prosecutorial authorities
have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 725,
88 S. Ct. 1318, 1322 (1968). “The lengths to which the prosecution must go to produce a
witness...is a question of reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531,
2543 (1980). Petitioner argues that Connor was not unavailable because the prosecution did not
make a good faith effort to locate him.
Before admitting Connor’s statements, the trial court held a hearing to determine
what steps the prosecution had taken to locate Connor. At this hearing, Todd Stewart, a process
server for the Sacramento County District Attorney’s Office, testified regarding his efforts to
locate Connor. Stewart testified that Connor was a transient. RT at 57. The only information he
had was Connor’s birthday. RT at 57. He began his search for Connor by checking “known
persons,” a computer system in the district attorney’s office that identifies persons with contact
with law enforcement. RT at 58. “Known persons” contained an address for Connor on Dry
Creek Road. RT at 58. When Stewart went to this address, he found a vacant house. RT at 58-
59.
Stewart next checked with the Sacramento Municipal Utility District (SMUD) and
voter registration with no luck. RT at 59. Stewart checked the jails to see if Connor was in
custody, which he was not. RT at 59. Stewart then checked with “known persons” again and
found the name of Connor’s mother, Kathy Connor. RT at 59-60. The record showed her
address as the vacant house on Dry Creek Road. RT at 60. Stewart did a D.M.V. check on
Kathy Connor and found that she had surrendered her license to the state of Michigan. RT at 60.
Because Connor was a transient, Stewart checked Loaves and Fishes to see if he
had registered there at any time. RT at 60. Stewart checked welfare to see if Connor was
receiving any aid. RT at 61. These checks were unsuccessful.
/////
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 8 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
9
The trial court questioned whether due diligence required the prosecution to
search for Connor in Michigan. Answer, Exhibit D, p. 9. The court gave defense counsel one
day to provide authority on this issue, which he did not do. Id.
The efforts described above demonstrate a good faith attempt by the prosecution
to locate Connor. The court agrees with the California Court of Appeal that “[g]iven what little
information was available, the prosecution actively attempted to locate the victim through the
most likely resources available to it.” Answer, Exhibit D, p. 11.
In his state appeal, petitioner argued that the prosecution should have searched the
streets near the Quick Stop the victim allegedly frequented as a homeless transient. The state
appellate court rejected this claim:
However, nothing in the record indicated the victim frequented the Quick Stop. It
was also reasonable for the prosecution to believe the victim, if he was a Blood,
would likely not be seen on the streets of Crip turf after he had already been
beaten and bloodied there once. The prosecution investigated locations and
agencies that would likely have information on a transient. These efforts satisfied
the requirements of due diligence.
Id.
For the reasons stated by the California Court of Appeal, the court finds that
prosecution was not unreasonable for failing to search the streets near the Quick Stop for Connor.
The court now considers whether Connor’s statements to Officer Prince and Dr.
Hallam bore indicia of reliability. These statements were admitted pursuant to Cal. Evid. Code §
1370(a):
(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay
rule if all of the following conditions are met:
(1) The statement purports to narrate, describe, or explain the infliction or threat
of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to Section 240.
(3) The statement was made at or near the time of the infliction or threat of
physical injury. Evidence of statements made more than five years before the
filing of the current action or proceeding shall be inadmissible under this section.
4. The statement was under circumstances that would indicate its trustworthiness.
5. The statement was made in writing, was electronically recorded, or made to a
physician, nurse, paramedic or to a law enforcement official.
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 9 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
Because § 1370 does not require statements to be made spontaneously, statements
admitted pursuant to this section do not fall under the firmly rooted exception for spontaneous
declarations. See Respondent’s Answer, Exhibit D, p. 11-12 (§ 1370 is different from
spontaneous declaration exception); White v. Illinois, 502 U.S. 346, 356 n. 8, 112 S. Ct. 736, 742
(1992) (spontaneous declaration exception is firmly rooted).
10
The only firmly rooted hearsay exception that has any similarity to § 1370 is for
statements made for purposes of medical diagnosis or treatment. White v. Illinois, 502 U.S. 346,
356 n. 8, 112 S. Ct. 736, 742 (1992).2 However, § 1370 does not fit squarely within this
exception because not all statements admitted pursuant to this action are necessarily made for the
purposes of medical diagnosis or treatment.
In any event, it is clear that Connor’s statements to Dr. Hallam were made for
purposes of medical diagnosis or treatment. Connor statements to Dr. Hallam were made at the
hospital while he was describing how his injuries occurred. Accordingly, these statements bore
indicia of reliability because they were admitted pursuant to a firmly rooted hearsay exception.
In contrast, Connor’s statements to Officer Prince were not made for purposes of
medical diagnosis or treatment. Rather, they were made in response to Officer Prince’s informal
questioning of Connor regarding the incident. Because these statements were not admitted
pursuant to a firmly rooted hearsay exception, the court must determine whether they bore
particularized guarantees of trustworthiness. The particularized guarantees of trustworthiness
“must be shown from the totality of the circumstances...” Idaho v. Wright, 497 U.S. 805, 819,
110 S. Ct. 3139, 3148 (1990). The “relevant circumstances include only those that surround the
making of the statement and that render the declarant particularly worthy of belief.” Id. There is
no mechanical test for determining reliability nor a prescribed list of reliability elements, see
Barker v. Mooris, 761 F.2d 1396, 1400-03 (9th Cir. 1985), and “courts have considerable leeway
in their consideration of appropriate factors.” Wright, 497 U.S. at 822, 110 S. Ct. at 3149. The
reliability of the out-of-court statements cannot be established “by bootstrapping on the
trustworthiness of other evidence.” Id., at 823, 110 S. Ct. at 3150.
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 10 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
11
The California Court of Appeal found that Connor’s statements were made under
circumstances that indicated their trustworthiness:
The statements were made at or near the time of the crime. They were not made
while the victim was in custody or in response to leading questions. There was no
evidence the victim was under the influence of alcohol or drugs when he made the
statements.
Moreover, the statements were not made in contemplation of pending or
anticipated litigation in which the victim was interested. As we have already
indicated, the victim impliedly expressed his desire that no action be taken against
defendant by requesting no police report be taken. (Evid. Code, § 1370, subd.
(b)(1).)
Respondent’s Answer, Exhibit D, p. 15.
This court agrees with the reasoning of the California Court of Appeal that
Connor’s statements to Officer Prince were reliable. The most persuasive reason supporting this
finding is Connor’s desire for no police report to be taken.
For the reasons discussed above, the court finds that the admission of Connor’s
statements to Officer Prince and Dr. Hallam did not violate the Confrontation Clause. The denial
of this claim by the California Court of Appeal was not an unreasonable application of clearly
established Supreme Court authority.
Even if admission of these statements violated the Confrontation Clause, any error
was harmless. A Confrontation Clause violation is subject to harmless error analysis. Whelchel
v. Washington, 232 F.3d 1197, 1205-1206 (9th Cir. 2000). The California Court of Appeal found
that admission of the statements, if wrongly admitted, was harmless error:
Even if the statements were wrongly admitted, we conclude it is beyond a
reasonable doubt the outcome would not have been different had the statements
not been admitted. (Chapman v. California (1967) 386 U.S. 18 [L.Ed.2d 705].)
Defendant admitted he pursued the victim inside the Quick Mart with the intent to
hit the victim back. The videotape shows the defendant acted on that intent with
sufficient force. Detective Gracia’s testimony established the crime was gangrelated. The evidence was sufficient to establish the conviction.
Respondent’s Answer, Exhibit D, pp. 15-16.
/////
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 11 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
12
The California Court of Appeal’s harmless error determination was not contrary to
established federal law. See Medina v. Hornung, 386 F.3d 872, 878 (9th Cir. 2004) (applying
AEDPA standard to harmless error analysis).
For the reasons discussed above, petitioner’s Confrontation Clause claim should
be denied.
B. Insufficient Evidence
Petitioner alleges that there was insufficient evidence to support his conviction for
assault likely to cause great bodily injury.
When a challenge is brought alleging insufficient evidence, federal habeas corpus
relief is available if it is found that upon the record evidence adduced at trial, viewed in the light
most favorable to the prosecution, no rational trier of fact could have found “the essential
elements of the crime” proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Under Jackson, the court reviews the entire record when the
sufficiency of the evidence is challenged on habeas. Adamson v. Ricketts, 758 F.2d 441, 448 n.
11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev’d, 483
U.S. 1 (1987). It is the province of the jury to “resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts.” Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789. “The question is not whether we are personally convinced beyond a reasonable
doubt. It is whether rational jurors could have reached the same conclusion that these jurors
reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).
If the trier of fact could draw conflicting inferences from the evidence, the court in
its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465,
469 (9th Cir. 1994). The fact that petitioner can construct from the evidence alternative scenarios
at odds with the verdict does not mean that the evidence was insufficient, i.e., that no reasonable
trier of fact could have found the conviction scenario beyond a reasonable doubt.
/////
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 12 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
13
In reviewing the sufficiency of the evidence supporting a conviction, we search
the record to determine “whether a reasonable jury, after viewing the evidence in
the light most favorable to the government, could have found the defendants
guilty beyond a reasonable doubt of each essential element of the crime charged.”
United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986). The relevant
inquiry is not whether the evidence excludes every hypothesis except guilt, but
whether the jury could reasonably arrive at its verdict. United States v.
Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S. Ct.
464, 74 L. Ed.2d 614 (1982); United States v. Federico, 658 F.2d 1337, 1343 (9th
Cir.1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255,
1259 (9th Cir.1984) (en banc). United States v. Mares, 940 F.2d 455, 458 (9th Cir.
1991) (emphasis added).
Superimposed on these already stringent insufficiency standards is the AEDPA
requirement that even if a federal court were to initially find on its own that no reasonable jury
should have arrived at its conclusion, the federal court must also determine that the state
appellate court not have affirmed the verdict under the Jackson standard in the absence of an
unreasonable determination. Juan H. v. Allen, __ F.3d __, 2005 WL 1301570 (9th Cir. 2005).
The California Court of Appeal denied this claim on the following grounds:
“Section 245, subdivision (a)(1), punishes assaults committed by the following
means: ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any
means of force likely to produce great bodily injury.’ One may commit an assault
without making actual physical contact with the person of the victim; because the
statute focuses on use of a deadly weapon or instrument or, alternatively, on force
likely to produce great bodily injury, whether the victim in fact suffers any harm is
immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176.) That the use of
hands or fists alone may support a conviction of assault ‘by means of force likely
to produce great bodily injury’ is well established (ibid.; People v. Armstrong
(1992) 8 Cal.App.4th 1060, 1066; see People v. Duke (1985) 174 Cal.App.3d 296,
302-303 [when hands, fists and feet are employed in an assault, normally the
charge will be assault with force likely to produce great bodily injury]; 1 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 420, p.
482)...” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, italics in original.)
“Both the ‘weapon or instrument’ clause of the statute and the ‘force likely’ clause
look to the probability or capability of producing great bodily injury.” (People v.
Aguilar, supra, 16 Cal.4th at p. 1033.) Witkin explains the relevance of the
victim’s actual injuries in determining whether the force used had the capability of
producing great bodily injury. “[A]n assault or battery that does not result in any
physical injury and does not come within the scope of any other felonious assault
is unlikely to support anything more than a simple misdemeanor conviction....And
the cases tend to bear out this assumption, for almost invariably they involve
blows and physical injuries. If a deadly weapon is used to inflict them, the charge
can be assault with a deadly weapon....But if hands, fists, feet, or the like are the
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 13 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
14
means employed, the charge will ordinarily be assault with force likely to produce
great bodily injury. And the nature and extent of the injuries inflicted will often
be the controlling factor in determining that the force used was of that character.
(See People v. Schmidt (1944) 66 Cal.App.2d 253, 255 [woman choked, beaten
on head and neck with fists]; People v. Carnavacci (1953) 119 Cal.App.2d 14, 16
[man struck with firsts on face and head, knocked down, kicked in back, stomach,
and face, dragged from ground up against automobile bumper]; People v. Hooker
(1955) 130 Cal.App.2d 687, 689 [kicks in stomach, back, and groin; blow on head
with 14-inch long steel spring shaft]; People v. Kinman (1955) 134 Cal.App.2d
419 [woman hit in face and kicked; teeth loosened, eyes blackened, nose and eye
cut, spine bruised]; People v. Pierre (1960) 178 Cal.App.2d 585, 588 [woman’s
arms pulled backward, both humeri fractured, head pounded on floor]; People v.
Roberts (1981) 114 Cal.App.3d 960, 962 [kicks to head and torso causing cuts,
bruises, large welt, and unconsciousness]; 5 A.L.R.5th 243 [sufficiency of bodily
injury to support charge of aggravated assault].)” (1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Crimes Against the Person, § 37, p. 661.)
Here the evidence demonstrates defendant and his two accomplices hit the victim
in the face with a soda can with sufficient force to cause a laceration requiring five
stitches. They also hit him in the upper body with another object from behind.
The video showed the victim being attacked by three persons, one of whom was
identified as defendant, as they fell into a store display. This evidence constitutes
substantial evidence in support of the jury determining the defendant assaulted the
victim with force likely to cause great bodily injury.
Respondent’s Answer, Exhibit D, pp. 16-17.
For the reasons stated by the California Court of Appeal, the court finds that there
was sufficient evidence on which a reasonable jury could find petitioner guilty. Because the
denial of this claim by the California Court of Appeal was not an unreasonable application of
clearly established Supreme Court authority, this claim should be denied.
C. Denial of Motions for Substitute Counsel
Petitioner argues that the trial court improperly denied his motions to substitute
counsel, brought pursuant to People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156 (1970). “[T]o
compel one charged with [a] grievous crime to undergo a trial with the assistance of an attorney
with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective
assistance of counsel whatsoever.” Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). “[I]t
is well established and clear that the Sixth Amendment requires on the record an appropriate
inquiry into the grounds for such a motion, and that the matter be resolved on the merits before
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 14 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
15
the case goes forward.” Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc).
The trial court heard petitioner’s first Marsden motion on April 9, 2002.
Following discussions with the court and counsel, petitioner withdrew this motion. RT at 9.
During further pretrial proceedings, petitioner later requested that he be permitted to represent
himself. RT at 81-82. Petitioner withdrew this request after the court denied his request for a
continuance. RT at 101.
Petitioner later made a second Marsden motion. RT at 121. At the hearing on
this motion, petitioner told the court that he did not trust his lawyer, his lawyer did not tell him
what was going on in the case and that they did not get along. RT at 123. In response,
petitioner’s counsel stated that petitioner tried to talk to him during voir dire, which made it
difficult for him to focus on prospective jurors. RT at 124. Counsel also stated that while
petitioner stated that what took place was an act of self-defense, counsel did not think that the
jurors would believe that after watching the videotape. RT at 125. Counsel stated that he
thought the better defense would be to argue that what happened was a misdemeanor rather than
a felony. RT at 125. Counsel also stated that he advised petitioner not to testify because the
jurors would then hear about his prior conviction. RT at 126.
Petitioner also objected that his counsel had failed to file a motion to suppress
Connor’s statements. RT at 131. The court told petitioner that his counsel had made all the
motions he could regarding admission of Connor’s statements. RT at 132. The court went on to
discuss in more detail petitioner’s version of events in more detail with counsel. RT at 134-136.
Counsel again reiterated that he told petitioner that “self-defense is not going to fly in this case.”
RT at 136. Counsel also discussed how the investigation of the case did not support petitioner’s
version of events. RT at 136-137.
In denying the motion, the court told petitioner:
There’s going to be plenty of time between today, Thursday, and when this case
resumes on Monday for you and your attorney to sit down and talk about whether
or not you’re going to testify and more of the details about what you will be
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 15 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
16
claiming happened and how that fits in with the videotape and so forth and his
then recommendations about whether you should testify or not, and then you can
decide whether to testify or not.
The rest of what you have argued about not getting along with your attorney, those
are not sufficient enough for me to grant your request to discharge Mr. Johnson.
RT at 148.
When petitioner protested that he did not trust his lawyer, the court told him,
The mere fact that you cannot trust Mr. Johnson is not itself enough for me to
remove Mr. Johnson. A lot of defendants have made that argument in a lot of
Marsden motions. It depends upon what you base it on.
RT at 149.
During the prosecution’s closing argument, petitioner sent the court which stated,
Your Honor, I would like to get on the stand ‘cause I want to defend my own butt.
I never said I wasn’t not [sic] going to get on the stand. My attorney is telling me
now, but I want to. He’s violating my rights.
RT at 258.
The court held a brief in camera hearing to discuss petitioner’s complaint that his
lawyer did not call the witnesses he wanted. RT at 267-270. At this hearing, petitioner
complained that he wanted to view the videotape from the store at the jail where he could see it
“up close.” RT at 267. The court made arrangements for petitioner to view the tape at the
courthouse “up close.” RT at 267-268.
After the verdict, petitioner filed a writ with the court complaining, in part, about
counsel’s representation of him during trial. In this motion, petitioner again objected that the
prosecutor had been permitted to introduce Connor’s statements. RT at 409. Petitioner also
complained that his counsel failed to make a Wheeler motion during jury selection. RT at 412.
The court held a brief in camera hearing regarding petitioner’s writ. During this
hearing, petitioner’s counsel told the court that he had explained to petitioner how many
challenges the prosecution got during jury selection. RT at 415. The court then explained to
petitioner the jury selection process. RT at 417. After going back on the record and having
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 16 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
17
further discussion with the parties, the court denied the writ. RT at 422.
At his sentencing hearing, petitioner told the court that he wanted to fire his
counsel. RT at 424. Petitioner claimed that his counsel had called him a “nigger,” which
counsel denied. RT at 424. The court denied petitioner’s request. RT at 425.
The record indicates that the trial court held several hearings where petitioner’s
complaints regarding counsel were adequately explored. Petitioner’s main conflict with his
counsel concerned trial tactics as well as petitioner’s misunderstanding of the law. This type of
dispute is not sufficient to warrant substitution of counsel. See United States v. Corona-Garcia,
210 F.3d 973, 977 n. 2 (9th Cir. 2000) (explaining that even if the court were to conclude that a
conflict with respect to trial tactics was severe, it would be “disinclined to reverse on that ground
because trial tactics are clearly within the realm of powers committed to the discretion of defense
counsel in any event”) (citing United States v. Watsworth, 830 F.3d 1500, 1509 (9th Cir. 1987)
(“[A]ppointed counsel, and not his client, is in charge of the choice of trial tactics and the theory
of defense.”). Moreover, the Sixth Amendment right to counsel does not guarantee a
“meaningful relationship” between the accused and his counsel. Morris v. Slappy, 461 U.S. 1,
11-12, 103 S. Ct. 1610, 1616 (1983).
At sentencing, petitioner accused his counsel of using a racial slur. The court
questioned counsel regarding the incident and determined that it did not occur. Use of a racial
slur by either a defendant or his counsel could result in an irreconcilable conflict. However, in
the instant case, petitioner made his allegation after having been convicted and repeatedly
complaining about counsel’s trial strategy. The trial court apparently determined that petitioner’s
allegation was false and motivated by “sour grapes.” These circumstances did not warrant
appointing new counsel.
Because the denial of this claim by the California Court of Appeal was not an
unreasonable application of clearly established Supreme Court authority, this claim should be
denied.
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 17 of 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
18
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for
a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty
days after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
shall be served and filed within ten days after service of the objections. The parties are advised
that failure to file objections within the specified time may waive the right to appeal the District
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: 7/1/05
/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
ggh:kj
gra2607.157
Case 2:03-cv-02607-GEB-GGH Document 16 Filed 07/01/05 Page 18 of 18 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-02547/USCOURTS-caed-2_04-cv-02547-7/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID CHARLES THATCHER, No. CIV S-04-2547-MCE-CMK-P
Plaintiff,
vs. FINDINGS AND RECOMMENDATIONS
M. PENNER, et al.,
Defendants.
/
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment
(Doc. 30), filed on February 24, 2006. Plaintiff has not filed a response.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ /
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 1 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
I. STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when it is demonstrated that there exists “no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party
. . . always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,” which it believes demonstrate the absence of a
genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the
nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on the ‘pleadings, depositions,
answers to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial. Id. at 322. “[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as
whatever is before the district court demonstrates that the standard for entry of summary
judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the
opposing party to establish that a genuine issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of this factual dispute, the opposing party may not rely upon the
allegations or denials of its pleadings but is required to tender evidence of specific facts in the
form of affidavits, and/or admissible discovery material, in support of its contention that the
dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party
must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 2 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and
that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict
for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party
need not establish a material issue of fact conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing
versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary
judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a
genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory
committee’s note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See
Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.
Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to
produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen
Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.
1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply
show that there is some metaphysical doubt as to the material facts . . . . Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
On May 18, 2005, the court advised plaintiff of the requirements for opposing a
motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154
F.3d 952 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 3 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4
II. DISCUSSION
Plaintiff claims that defendants violated his rights under the Eight Amendment by
acting with deliberate indifference to his medical needs. Plaintiff alleges that defendant Penner,
who was at the times mentioned in the complaint a prison doctor, failed to treat him for back and
knee pain and Hepatitis C upon his transfer from another prison and thereafter. The complaint
does not contain any allegations specifically linking defendant Kernan, the prison warden, to a
constitutional violation.
The treatment a prisoner receives in prison and the conditions under which the
prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth
Amendment “. . . embodies broad and idealistic concepts of dignity, civilized standards,
humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates
the Eighth Amendment only when two requirements are met: (1) objectively, the official’s act or
omission must be so serious such that it results in the denial of the minimal civilized measure of
life’s necessities; and (2) subjectively, the prison official must have acted unnecessarily and
wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the
Eighth Amendment, a prison official must have a “sufficiently culpable mind.” See id.
Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at
105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental
health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is
sufficiently serious if the failure to treat a prisoner’s condition could result in further significant
injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d
1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).
Factors indicating seriousness are: (1) whether a reasonable doctor would think that the
condition is worthy of comment; (2) whether the condition significantly impacts the prisoner’s
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 4 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5
daily activities; and (3) whether the condition is chronic and accompanied by substantial pain.
See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
The requirement of deliberate indifference is less stringent in medical needs cases
than in other Eighth Amendment contexts because the responsibility to provide inmates with
medical care does not generally conflict with competing penological concerns. See McGuckin,
974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to
decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
1989). The complete denial of medical attention may constitute deliberate indifference. See
Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical
treatment, or interference with medical treatment, may also constitute deliberate indifference.
See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also
demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
Negligence in diagnosing or treating a medical condition does not, however, give
rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a
difference of opinion between the prisoner and medical providers concerning the appropriate
course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,
90 F.3d 330, 332 (9th Cir. 1996).
In this case, defendants assert that there is no genuine issue of material fact as to
deliberate indifference. Specifically, they contend they were not deliberately indifferent in any
way and that plaintiff cannot produce any evidence to the contrary. In support of their position,
defendants offer their individual declarations. In his declaration, defendant Penner states, among
other things, the following:
1. He was responsible for providing medical care to inmates;
2. He recalls that, on or about April 6, 2004, he reviewed plaintiff’s
administrative appeal and personally interviewed plaintiff and concluded
that plaintiff was suffering from chronic low back and knee pan and
Hepatitis C;
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 5 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
6
3. He put plaintiff in a priority position for further medical treatment and, in
the meantime, prescribed medication for plaintiff’s pain symptoms;
4. At no time did he refuse or fail to provide medical care or treatment to
plaintiff; and
5. He never knowingly or intentionally caused plaintiff pain or suffering of
any kind or disregarded a risk to plaintiff’s health.
Defendant Kernan states:
1. He was the prison warden;
2. He does not recall ever meeting plaintiff and has no knowledge of him;
and
3. He never intentionally or deliberately caused plaintiff pain or suffering or
disregarded a risk to plaintiff’s health.
The court is satisfied that defendants have met their burden under the summary
judgment standards of informing the court of their position and identifying the absence of a
genuine issue of material fact. The burden now shifts to plaintiff to point to evidence which
creates a dispute of fact. Plaintiff, however, has not responded to defendants’ summary
judgment motion and the allegations in the complaint, without some supporting evidence, cannot
create a dispute of fact. In light of defendants’ declarations, the best plaintiff can argue is
professional negligence. Such a claim would not be cognizable under § 1983 as a matter of law.
III. CONCLUSION
Based on the foregoing, the undersigned recommends that:
1. Defendants’ motion for summary judgment be granted; and
2. The Clerk of the Court be directed to enter judgment and close this file.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days
after being served with these findings and recommendations, any party may file written
objections with the court. The document should be captioned “Objections to Magistrate Judge's
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 6 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7
Findings and Recommendations.” Failure to file objections within the specified time may waive
the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: April 25, 2006.
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:04-cv-02547-MCE -CMK Document 32 Filed 04/26/06 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_16-cv-02786/USCOURTS-azd-2_16-cv-02786-0/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Arthur F. Gerth,
Plaintiff,
v.
C. Foster, et. al.,
Defendants.
No. CV 16-02786-PHX-DJH (ESW)
REPORT AND RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT
JUDGE:
On August 18, 2016, Arthur F. Gerth (“Plaintiff”), who was then confined in the
Fourth Avenue Jail in Phoenix, Arizona filed a pro se Civil Rights Complaint (Doc. 1)
pursuant to 42 U.S.C. § 1983. On August 18, 2016, the Clerk of Court mailed a Notice of
Assignment (Doc. 4) to Plaintiff’s address of record. It is assumed that Petitioner
received the Notice of Assignment (Doc. 4) as it was not returned as undeliverable.
On November 2, 2016, the Court issued an Order directing service of the
Complaint (Doc. 1) on certain defendants. (Doc. 5). The Court also issued an Order for
Payment of Inmate Filing Fee (Doc. 6). Those two Orders were returned to the Court as
undeliverable, with a notation that Plaintiff is no longer in custody.1
(Doc. 7).
1 The undersigned typed in Plaintiff’s name in the Arizona Department of
Case 2:16-cv-02786-DJH Document 8 Filed 03/14/17 Page 1 of 4
- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Local Rule of Civil Procedure 83.3(d) requires parties to submit a notice of change
of address within seven days. At the top of the court-approved form on which Plaintiff
filed his Complaint (Doc. 1) is the language: “Failure to notify the Court of your change
of address may result in dismissal of this action.”
Plaintiff has the general duty to prosecute this case. See Fidelity Phila. Trust Co.
v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978) (“It is a well established
rule that the duty to move a case is on the plaintiff and not on the defendant or the
court.”). The Court does not have an affirmative obligation to locate Plaintiff. “A party,
not the district court, bears the burden of keeping the court apprised of any changes in his
mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff’s failure
to keep the Court informed of his new address constitutes failure to prosecute.
Federal Rule of Civil Procedure 41(b) provides that “if the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S.
626, 629-31 (1962), the Supreme Court recognized that a federal district court has the
inherent power to dismiss a case sua sponte for failure to prosecute, even though the
language of Federal Rule of Civil Procedure 41(b) appears to require a motion from a
party. Moreover, in appropriate circumstances, the Court may dismiss a pleading for
failure to prosecute even without notice or hearing. Link, 370 U.S. at 633.
In determining whether Plaintiff’s failure to prosecute warrants dismissal of the
case, the Court must weigh the following five factors: “(1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of
these factors favor the imposition of sanctions in most cases, while the fourth factor cuts
Corrections’ Inmate Datasearch website (https://corrections.az.gov/public- resources/inmate-datasearch), but no records were found.
Case 2:16-cv-02786-DJH Document 8 Filed 03/14/17 Page 2 of 4
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
against a default or dismissal sanction. Thus the key factors are prejudice and availability
of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s
failure to keep the Court informed of his address prevents the case from proceeding in the
foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth
factor requires the Court to consider whether a less drastic alternative is available.
Without Plaintiff’s current address, certain alternatives are bound to be futile. Here, as in
Carey, “[a]n order to show cause why dismissal is not warranted or an order imposing
sanctions would only find itself taking a round trip tour through the United States mail.”
856 F.2d at 1441.
The undersigned finds that only one less drastic sanction is realistically available.
Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication
upon the merits “[u]nless the dismissal order states otherwise.” In this case, the
undersigned finds that a dismissal with prejudice would be unnecessarily harsh. The
undersigned therefore recommends that this action be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
For the above reasons,
IT IS RECOMMENDED that the Court dismiss the Complaint (Doc. 1) without
prejudice for failure to prosecute.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules
of Appellate Procedure, should not be filed until entry of the district court’s judgment.
However, pursuant to Rule 72(b), Fed. R. Civ. P., the parties shall have fourteen days
from the date of service of a copy of this recommendation within which to file specific
written objections with the Court. Thereafter, the parties have fourteen days within
which to file a response to the objections. Failure to file timely objections to any factual
determinations of the Magistrate Judge may be considered a waiver of a party’s right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
Case 2:16-cv-02786-DJH Document 8 Filed 03/14/17 Page 3 of 4
- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Magistrate Judge’s recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 14th day of March, 2017.
Case 2:16-cv-02786-DJH Document 8 Filed 03/14/17 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_01-cv-01986/USCOURTS-caed-2_01-cv-01986-4/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ARMAND FLOREZ,
Plaintiff, No. CIV S-01-1986 LKK PAN P
vs.
CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendant. ORDER
/
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On June 8, 2005, the magistrate judge filed findings and recommendations herein
which were served on all parties and which contained notice to all parties that any objections to
the findings and recommendations were to be filed within twenty days. Neither party has filed
objections to the findings and recommendations.
The court has reviewed the file and finds the findings and recommendations to be
supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY
ORDERED that:
Case 2:01-cv-01986-LKK -PAN Document 129 Filed 07/22/05 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
1. The findings and recommendations filed June 8, 2005, are adopted in full; and
2. Plaintiff’s September 13, 2004, request for a temporary restraining order and
preliminary injunction is denied.
DATED: July 22, 2005.
/s/Lawrence K. Karlton
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT
/flor1986.801(4)
Case 2:01-cv-01986-LKK -PAN Document 129 Filed 07/22/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_12-cv-00553/USCOURTS-almd-2_12-cv-00553-0/pdf.json | 442 | Civil Rights Employment | 42:2000 Job Discrimination | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
VALERIE Y. BROWN, )
)
Plaintiff, )
)
v. ) CASE NO. 2:12-CV-553-WKW
) [WO]
MONTGOMERY SURGICAL )
CENTER, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Valerie Y. Brown brings this employment discrimination and
retaliation action against her former employer, the Montgomery Surgical Center. She
alleges interference and retaliation under the Family Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601–2654, and discrimination and retaliation under the Americans
with Disabilities Act (“ADA”), see 42 U.S.C. §§ 12101–12117. Before the court is
the Montgomery Surgical Center’s Motion to Dismiss Plaintiff’s Amended
Complaint, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 28.)
The issues raised in the motion are whether the FMLA required her employer to
reinstate her in her job with a reasonable accommodation after her return from FMLA
leave and whether Ms. Brown failed to exhaust her administrative remedies under the
ADA. After careful consideration of the arguments of counsel, the relevant law, and
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 1 of 30
the pleadings, the court finds that the issues resolve in favor of Defendant and that,
therefore, the motion to dismiss is due to be granted.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
In ruling on a Rule 12(b)(6) motion to dismiss, courts “must accept the well
pleaded facts as true and resolve them in the light most favorable to the plaintiff.”
Paradise Divers, Inc. v. Upmal, 402 F.3d 1087, 1089 (11th Cir. 2005) (citation and
internal quotation marks omitted). To survive Rule 12(b)(6) scrutiny, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists
“when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Moreover, when on the basis of a dispositive issue of
law, a plaintiff is precluded from maintaining a cause of action on the facts alleged,
a court may dismiss a complaint under Rule 12(b)(6). See Day v. Taylor, 400 F.3d
1272, 1275 (11th Cir. 2005).
2
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 2 of 30
Finally, in addition to considering the properly pleaded allegations of the
complaint, on a motion to dismiss, the court can consider exhibits attached to the
complaint. See Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir.
2005). The court also can consider “an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” Speaker v. U.S. Dep’t of
Health &Human Servs. Ctrs. for DiseaseControl &Prevention, 623 F.3d 1371, 1379
(11th Cir. 2010).
III. BACKGROUND
Ms. Brown worked for the Montgomery Surgical Center nearly a decade until
her termination on September 8, 2010. At all material times, Ms. Brown worked as
a Central Sterile Technician (sometimesreferred to by the parties as “CSS Technician
II”). In this position, among other things, Ms. Brown assembled, wrapped, and
sterilized instrument trays for surgery, and unloaded and loaded carts. (Am. Compl.
¶ 9.)
On February16, 2010,theMontgomery SurgicalCenter approved Ms. Brown’s
FMLA leave for a “serious health condition” pertaining to Ms. Brown’s “back-related
problems.” (Am. Compl. ¶¶ 14, 16.) On April 21, 2010, nine weeks and one day into
her FMLA leave, Ms. Brown wanted to return to work. She provided her employer
with a doctor’s excuse that restricted her from lifting more than twenty-five pounds
3
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 3 of 30
and that required her to “alternate sitting and standing during the performance of her
job duties.” (Am. Compl. ¶¶ 15–16, 24.) Ms. Brown requested the Montgomery
Surgical Center to reinstate her in her position and reasonably accommodate her job
restrictions, “pursuant to her rights” under the ADA. (Am. Compl. ¶ 16.) But the
Montgomery Surgical Center “refused to allow [Ms. Brown] to return to work until
she was fully released by her doctor.” (Am. Compl. ¶ 18.)
On May 10, 2010, Ms. Brown’s FMLA leave expired because the Montgomery
Surgical Center refused “to allow [her] to return to work during her FMLA leave.”
(Am. Compl. ¶ 34.) Also on May 10, the Montgomery Surgical Center filled Ms.
Brown’s position. (Am. Compl. ¶ 35.) Two days later on May 12, 2010, upon
learning that someone else was performing her job, Ms. Brown filed a charge of
discrimination against the Montgomery Surgical Center with the Equal Employment
Opportunity Commission (“First EEOC Charge”).
On the First EEOC Charge, Ms. Brown checked the box for “disability” as the
basis for discrimination and indicated that the dates of discrimination occurred
between April 21, 2010, and May 12, 2010. She described her claim as follows:
I am . . . a qualified individual with a disability as defined by Americans
with Disabilities Act of 1990, as amended. I have been employed since
September 4, 2000. My position is Central Sterile Technician. I have
been off work because of my disability since February 16, 2010. Upon
attempting to return to work on April 21, 2010, with my doctor’s excuse
stating my limitations, I requested a reasonable accommodation. My
4
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 4 of 30
request was denied. I am able to perform the essential functions of my
job with a reasonable accommodation. I have even informed the
employer of different methods of how I could be accommodated; my
requests continue to be denied. I have been on a personal leave of
absence on short term disability without pay since May 12, 2010,
subsequent to my Family Medical Leave expiring.
Debbie McWilliams informed me that I could not return to work until
I can return to normal duties with no limitations.
I believe that I have been discriminated against because of my disability
in violation of the Americans with Disabilities Act of 1990, as amended.
(First EEOC Charge 1 (Ex. A to Am. Compl).) Ms. Brown never returned to work,
and four months after she filed her First EEOC Charge, on September 8, 2010, the
Montgomery SurgicalCenter “formally terminated” Ms. Brown’s employment. (Am.
Compl. ¶ 37.)
Believing that her termination was retaliatory, on March 22, 2011, Ms. Brown
filed another EEOC charge against the Montgomery Surgical Center with the EEOC
(“Second EEOC Charge”). Ms. Brown checked the box for “retaliation” as the basis
of discrimination and designated that the discrimination occurred on September 8,
2010. In that charge, Ms. Brown alleged the particulars of her claim as follows:
I worked as a CSS Technician II. I filed a previous charge (846 2010
47989). I was discharged on September 8, 2010, and I believe it was in
retaliation for filing the previous charge. Sherry Harris, Human
Resources, denied me emergency assistance. I was also denied my
unemployment compensation.
(Second EEOC Charge 1 (Ex. D to Am. Compl.).)
5
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 5 of 30
On April 4, 2012, the EEOC mailed two right-to-sue letters to Ms. Brown, one
for the First EEOC Charge, and the other for the Second EEOC Charge. The letters
informed Ms. Brown that she had to file any federal-law lawsuit based on her EEOC
charges within 90 days of her receipt of the notices. (Exs. B & E to Am. Compl.)
Eighty-four days later, on June 27, 2012, Ms. Brown filed the instant lawsuit
against the Montgomery Surgical Center. Proceeding pro se and with the aid of a
Complaint form, Ms. Brown alleged that her employer fired her in retaliation for her
“filing a charge with the EEOC.” She described the nature of her claim against the
Montgomery Surgical Center as follows:
I worked as a CSS Technician II. I filed a previous charge (846-2010-
47989) with EEOC. I was denied my unemployment compensation
[and] also employee emergency assistance. I was discharged on
September 8, 2010. I believe I have been discriminated against in
retaliation for filing a previous charge in violation of Title VII of the
Civil Rights Act of 1964, as amended.
(Compl. 2.) Attached to the Complaint was Ms. Brown’s Second EEOC Charge
alleging retaliation and the EEOC’s right-to-sue letter pertaining to that charge to the
Complaint.
On August 9, 2012, Ms. Brown filed an Amended Complaint, this time with
the assistance of counsel. The Amended Complaint, the operative pleading here,
containsfour counts. Count One is an FMLA interference claim. Ms. Brown alleges
that with a reasonable accommodation for her lifting and standing restrictions, she
6
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 6 of 30
“could have performed the essential functions of her job . . . .” (Am. Compl. ¶ 17.)
She contends that the Montgomery Surgical Center interfered with her FMLA rights
by refusing “to allow [her] to return to work until she was fully released by her
doctor. . . .” (Am. Compl. ¶ 18.) Count Two alleges a claim for failure to
accommodate under the ADA, which is grounded on the same facts as the FMLA
interference claim.
Count Three is an FMLA retaliation claim. Ms. Brown alleges that she had a
right under the FMLA to return to work with an ADA reasonable accommodation, but
that the Montgomery Surgical Center “refused to allow [her] to return to work unless
she was ‘one hundred percent.’” (Am. Compl. ¶¶ 28, 32.) Count Four alleges an
ADA retaliation claim, arising from Ms. Brown’s filing of her First EEOC Charge
and her subsequent termination.
1
IV. DISCUSSION
CountsI and III allege FMLA interference and retaliation claims. Count II and
IV allege ADA discrimination and retaliation claims. The court first addresses the
FMLA claims and then the ADA claims.
The Amended Complaint does not pursue a Title VII retaliation claim, as alleged in the 1
original Complaint.
7
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 7 of 30
A. FMLA Interference and Retaliation Claims
The FMLA claims fail as a matter of law. Under the FMLA, an employee has
“two distinct rights: the right to take leave for the treatment of a serious health
condition . . . and the right to be reinstated to the former position or an equivalent
position at the end of leave.” Geromanos v. Columbia Univ., 322 F. Supp. 2d 420,
427 (S.D.N.Y. 2004) (quoting 29 U.S.C. §§ 2516(a)(1), 2614(a)). To protect these
rights, the FMLA prohibits employers from interfering with, restraining, or denying
“the exercise of or the attempt to exercise” these rights guaranteed under the Act. 29
U.S.C. § 2615(a)(1). Under § 2615(a), there are two types of claims: “interference
claims, in which an employee assertsthat his employer denied or otherwise interfered
with his substantive rights under the Act; and retaliation claims, in which an
employee asserts that his employer discriminated against him because he engaged in
an activity protected by the Act.” Pereda v. Brookdale Senior Living Cmtys., Inc.,
666 F.3d 1269, 1272 (11th Cir. 2012).
1. FMLA Interference Claim
To state an FMLA interference claim, Ms. Brown need only allege that the
Montgomery Surgical Center denied her an FMLA right. See Schaaf v. Smithkline
2
Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010).
The Montgomery Surgical Center does not contest Ms. Brown’s allegations that at all 2
material times, it was an FMLA-covered employer, Ms. Brown was an FMLA-eligible employee,
and Ms. Brown had a serious health condition. (Am. Compl. ¶¶ 5–7, 14.)
8
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 8 of 30
The Montgomery Surgical Center contends that the sole right that Ms. Brown
claims she was denied under the FMLA is the right to reinstatement with an ADA
reasonable accommodation. The Montgomery Surgical Center contends that the
FMLA’s right to reinstatement does not encompass reinstatement with an ADA
reasonable accommodation or preclude an employer from discharging an employee
who, after the expiration of FMLA leave, is unable to perform an essential function
of her job. Therefore, the Montgomery Surgical Center argues that Ms. Brown fails
to allege the denial of a right guaranteed by the FMLA.
Ms. Brown does not refute the Montgomery Surgical Center’s characterization
of her FMLA interference claim. The court accepts this characterization as well.
3
Rather, Ms. Brown argues that her claim presents a “novel question of law”
concerning when “an employee can leave work on FMLA leave and return as a
disabled employee.” (Doc. # 30, at 4.) She contends that her FMLA interference
claim should be “allowed to go forward with the overlapping ADA claim because
both Acts of Congress cover two classifications of people that Congress intended to
Consistent with the Montgomery Surgical Center’s characterization, as to the rights 3
alleged, Ms. Brown does not allege that she was denied FMLA leave. To the contrary, she
alleges that her employer “approved” her FMLA leave request. (Am. Compl. ¶ 14.) She further
alleges that she received twelve weeks of FMLA leave, although she avers that she wanted to
return earlier with a reasonable accommodation. (Am. Compl. ¶ 34.) It is Ms. Brown’s claimed
right to reinstatement under the FMLA with an ADA reasonable accommodation that is at issue.
9
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 9 of 30
protect.” (Doc. # 30, at 4.) For the reasons that follow, Ms. Brown’s argument is not
as novel as she suggests.
The FMLA permits an eligible employee to take up to twelve weeks of unpaid
leave each year for reasons enumerated in the statute, including a “serious health
condition” that renders the employee unable to perform an essential function of her
position. See 29 U.S.C. § 2612(a)(1)(D). After an employee’s qualifying FMLA
absence, a covered employer must reinstate the employee to his or her former position
or an alternate one with equivalent pay, benefits, and working conditions. 29 U.S.C.
§ 2614(a)(1); 29 C.F.R. § 825.214. The right to reinstatement, however, “is not
absolute.” Schaaf, 602 F.3d at 1241. For example, “[i]f the employee is unable to
perform an essential function of the position because of a physical or mental
condition, . . . the employee has no right to restoration to another position under the
FMLA.” 29 C.F.R. § 825.216(c). In that situation, “[t]he employer’s obligations
may, however, be governed by the Americans with Disabilities Act (ADA), as
amended. See § 825.702, state leave laws, or workers’ compensation laws.” Id.
Moreover, the EleventhCircuit has observed that “[t]he leave provisions of the
FMLA are ‘wholly distinct from the reasonable accommodation obligations of
employers covered under the ADA.’” Gilliard v. Ga. Dep’t of Corr., No. 12-11751,
2012 WL 6115913, at *2 (11th Cir. Dec. 7, 2012) (quoting 29 C.F.R. § 825.702(a)).
In Gilliard, the Eleventh Circuit concluded that “[t]o the extent that [the employee]
10
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 10 of 30
argues that the failure to provide her with extended leave at the conclusion of her
FMLA leave denied her of a reasonable accommodation, the reasonableaccommodation requirement under the ADA is distinct from[an] FMLA interference
claim.” Id. Gilliard rejected, therefore, the employee’s attempt to read a reasonable
accommodation requirement into the FMLA. Similarly, the Eleventh Circuit has
concluded that an employee who is unable to perform an essential job function is not
entitled to reinstatement upon returning fromFMLA leave. See Grace v. Adtran, Inc.,
470 F. App’x 812, 816 (11th Cir. 2012) (“Because Grace was still restricted from
lifting more than 10-pounds at the end of her FMLA leave, she remained unable to
perform an essential function of her position and, thus, was unentitled to return to her
position.”); see also Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (“We
have held that ‘an employer does not violate the FMLA when it fires an employee
who is indisputably unable to return to work at the conclusion of the 12-week period
of statutory leave.’” (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 506–07 (6th
Cir. 2006)).
The Third and Eighth Circuits also have addressed an employer’s FMLA
obligation to reinstate a returning employee to his or her same or an equivalent job
with an ADA reasonable accommodation. Rejecting this conflation of the FMLA’s
and ADA’s standards, the Eighth Circuit has held that “the FMLA omits any
requirement that employers seek to reasonably accommodate employees who cannot
11
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 11 of 30
perform the essential function of their respective positions.” Battle v. United Parcel
Serv., Inc., 438 F.3d 856, 865 (8th Cir. 2006) (citing former 29 C.F.R. § 825.214(b) ). 4
The Third Circuit similarly has concluded that “[t]he FMLA does not require ‘an
employer to provide a reasonable accommodation to an employee to facilitate his
return to the same or equivalent position at the conclusion of his [FMLA] medical
leave.’” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012) (quoting
Rinehimer v. Cemcolift, Inc., 292 F.3d 375 (3d Cir. 2002)); see also Tardie v. Rehab.
Hosp. of R.I., 168 F.3d 538, 544 (1st Cir. 1999) (observing that the former
§ 825.214(b), unlike the ADA, “omits the qualifying ‘with or without reasonable
accommodation’ language” and “does not import the ‘reasonable accommodation’
qualifier into the FMLA”).
Here, based upon the foregoing authority, the court finds that Ms. Brown fails
to allege that the Montgomery Surgical Center denied her a right guaranteed her by
the FMLA. The FMLA right she asserts is restoration to her job with an ADA
reasonable accommodation. But there was no FMLA obligation imposed on the
Montgomery Surgical Center to reinstate Ms. Brown to her position with modified
duties to accommodate the lifting and standing restrictions imposed by her doctor.
The Department of Labor amended the FMLA implementing regulations, effective 4
January 16, 2009. While paragraph (b) of § 825.214 now is paragraph (c) of § 825.216(e), it
remains substantially unchanged. Compare 29 C.F.R. §§ 825.214(b) (2006), with 29 C.F.R.
§ 825.216 (2009).
12
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 12 of 30
That obligation arose, if at all, under the ADA. Instead, the FMLA guaranteed Ms.
Brown the ability to return to her position as a Central Sterile Technician or its
equivalent upon her return from FMLA leave, but that guarantee existed only if she
was able to perform the job’s essential functions. By pleading that she requested to
return to work with an ADA reasonable accommodation, Ms. Brown effectively
admits that she was not able to perform the essential functions of her job. And Ms.
Brown does not allege or argue that at any time between February 16, 2010 (the date
her employer approved her FMLA leave) and September 10, 2010 (the date of her
termination), she was able to perform the essential functions of her job.
On these facts, the Montgomery Surgical Center could not have interfered with
Ms. Brown’s FMLA rights. Ms. Brown’s failure to plead a right guaranteed by the
FMLA requires dismissal of the FMLA interference claim.
2. FMLA Retaliation Claim
In an FMLA retaliation case, the “employee asserts that [her] employer
discriminated against [her] because [s]he engaged in activity protected by the”
FMLA. Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d
1199, 1206 (11th Cir. 2001). The Montgomery Surgical Center argues that, just like
the FMLA interference claim, the FMLA retaliation claim cannot survive Rule
12(b)(6) review because it rests “solely on an alleged failure to ‘accommodate’ [Ms.
13
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 13 of 30
Brown’s] medically-related work restrictions.” (Doc. # 29, at 20.) Ms. Brown’s
arguments mimic the onesshe made in opposition to the motion to dismiss her FMLA
interference claim. Those arguments again fail.
In the FMLA retaliation count, Ms. Brown alleges that she “exercised her
rights under the FMLA to return to work” conditioned upon her employer providing
her a reasonable accommodation. (Am. Compl. ¶ 28.) In Part IV.A.1., the court
rejected Ms. Brown’s legal theory that the right to reinstatement with a reasonable
accommodation is a right protected under the FMLA. For the same reasons, the court
findsthatfor purposes of her retaliation claim, Ms. Brown did not engage in protected
activity under the FMLA when she asked to return to work with an ADA reasonable
accommodation. Thus, her retaliation claimpredicated upon an FMLA right to return
to work with a reasonable accommodation fails.
Additionally, nowhere in her Complaint (or in her brief for that matter) does
Ms. Brown plausibly suggest that the Montgomery Surgical Center refused to
reinstate her and ultimately fired her because she took FMLA leave. Rather, her legal
theory is that her employer did not allow her to return to work because it refused “to
reasonably accommodate [her] in accord with her Plaintiff’s doctor’s instructions.”
(Am. Compl. ¶ 31.) Taken as true, the facts establish that her employer refused to
reinstate her (and ultimately terminated her) not because she availed herself of FMLA
14
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 14 of 30
leave, but because she could not performan essential function of her job. While these
allegations may have the makings of a promising ADA claim, they do not allege an
FMLA retaliation claim as a matter of law. Ms. Brown urges again for a blended
FMLA/ADA theory, this time for an FMLA retaliation claim that incorporates the
ADA’s reasonable accommodation requirements. With no other theory advanced, the
FMLA retaliation claim, as pleaded and argued, fails just as the FMLA interference
claim did.
B. ADA Discrimination and Retaliation Claims
The ADA claims are subject to dismissal for Ms. Brown’s failure to exhaust her
administrative remedies. TheADAincorporates Title VII’s proceduralrequirements. 5
See 42 U.S.C. § 12117(a). In Alabama, a non-deferral state, “an ADA plaintiff must
file a charge complaining about an allegedly unlawful employment practice . . . with
the EEOC within 180 days of the employment practice.” Maynard v. Pneumatic
Prods. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001) (citing 42 U.S.C. § 2000e5(e)(1)); see also Price v. M & H Valve Co., 177 F. App’x 1, 9 (11th Cir. 2006)
(recognizing that Alabama is a non-deferral state). Once a plaintiff has received
The court need not reach, therefore, the Montgomery Surgical Center’s alternative 5
argument that the Amended Complaint does not allege sufficient facts of a qualifying disability
to support her ADA claims. Likewise, the court need not address Ms. Brown’s contention that
the proposed Second Amended Complaint, which is attached as an exhibit to her brief but
unaccompanied by a motion to amend, cures any pleading deficiencies as to the substantive
elements of her claims.
15
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 15 of 30
notice that the EEOC has dismissed the charge, he or she has 90 days to file suit. See
Bryant v. U.S. Steel Corp., 428 F. App’x 895 (11th Cir. 2011); Zillyette v. Cap. One
Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999). The Eleventh Circuit strictly
enforces the ninety-day deadline.
Moreover, “[p]rocedural requirements established by Congress for gaining
access to the federal courts are not to be disregarded by courts out of a vague
sympathy for particular litigants.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (per curiam)). “‘[I]n the long run, experience teaches that strict
adherence to the procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.’” Id. (quoting Mohasco Corp. v.
Silver, 447 U.S. 807 (1980)). Hence, with limited exceptions, a plaintiff’s failure to
adhere to the filing deadlines requires dismissal of the untimely claim. See E.E.O.C.
v. Summer Classics, Inc., 471 F. App’x 868, 870 (11th Cir. 2012).
1. ADA Discrimination Claim
a. 90-Day Filing Deadline
The Montgomery Surgical Center argues that Ms. Brown’s ADA failure-toaccommodate claimistime barred because Ms. Brown did not bring this claimwithin
90 days of receiving her right-to-sue letter from the EEOC on the Second EEOC
Charge. Ms. Brown concedesthat her Amended Complaint, which debuted the ADA
16
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 16 of 30
failure-to-accommodate claim, was filed outside the required 90-day period. She
argues, however, that her ADA failure-to-accommodate claim is timely because it
relates back to her original Complaint, which alleged a Title VII retaliation claim and
which she undisputedly filed within the 90-day deadline.
b. Relation Back
“Rule 15(c) of the Federal Rules ofCivil Procedure governs when an amended
pleading ‘relates back’ to the date of a timely filed original pleading and is thus itself
timely even though it was filed outside an applicable statute of limitations.” Krupski
v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2489–90 (2010). The rule provides that an
amended pleading “relates back” to the date of the original pleading when “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out – or attempted to be set out – in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B). “[T]he critical issue in Rule 15(c) determinations is whether the
original complaint gave notice to the defendant of the claim now being asserted.”
Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citation and internal quotation
marks omitted)). Ultimately, “[s]o long as the original and amended [complaints]
state claims that are tied to a common core of operative facts, relation back will be in
order.” Mayle v. Felix, 545 U.S. 644, 664 (2005). On the other hand, “[w]hen new
or distinct conduct, transactions, or occurrences are alleged as grounds for recovery,
17
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 17 of 30
there is no relation back, and recovery under the amended complaint is barred by
limitations if it was untimely filed.” Moore, 989 F.2d at 1131 (citation and internal
quotation marks omitted).
Furthermore, Ms. Brown’s pro se status at the commencement of this suit
provides no basis for leniency in the application of Rule 15(c)(1)(B). Pro se litigants
remain “subject to the relevant law and rules of court, including the Federal Rules of
Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). However,
because Ms. Brown was unrepresented when she filed her original Complaint, the
original Complaint receivesliberal construction. See Estelle v. Gamble, 429 U.S. 97,
106 (1976) (“[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]” (internal quotations
omitted)). Even under liberal construction of the original Complaint, however, Rule
15(c)(1)(B)’s requirements are not met.
The analysis focuses on a comparison of the two pleadings – the original
Complaint and the Amended Complaint – in search of a common core of operative
facts between the original and newly asserted claims. As the factual basis for the
ADA failure-to-accommodate claim in the Amended Complaint, Ms. Brown alleges
that on April 21, 2010, she would have been able to perform the essential functions
of her job with a reasonable accommodation. She contends, however, that the
18
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 18 of 30
Montgomery Surgical Center “refused to restore [her] to the position that she held
prior to seeking such accommodation,” in violation of the ADA. (Am. Compl. ¶ 25.)
In her original Complaint, Ms. Brown restricts her allegations to facts indicating
retaliatory treatment by her employer. On the form Complaint, she indicates in
paragraph 4 that she is complaining of “retaliation” and her “termination.” (Compl.
1.) In paragraph 9, Ms. Brown alleges that the Montgomery Surgical Center denied
her unemployment compensation and employee emergency assistance and then fired
her, all “in retaliation for filing a previous charge . . . .” (Compl. 2.) Ms. Brown also
attaches the Second EEOC Charge (and the attendant right-to-sue letter) to her
original Complaint. While the court deems the Second EEOC Charge as part and
parcel of the original Complaint, see, e.g., Clark v. Huntleigh Corp., 119 F. App’x
666, 667 (5th Cir. 2005) (observing that “because of Clark’s pro se status, our
precedent compels us to examine all of his complaint, including the attachments”),
it, like the four corners of the Complaint, issilent with respect to any facts or conduct
relevant to Ms. Brown’s present allegations of disability discrimination and failure
to accommodate. For its part, the Second EEOC Charge substantially mirrors the
original Complaint.
Neither the Complaint nor the Second EEOC Charge mentions any facts
suggesting that the Montgomery Surgical Center discriminated against Ms. Brown
19
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 19 of 30
based upon a disability. There is no hint in either the Complaint or the Second EEOC
Charge that Ms. Brown had a medical condition (much less an ADA-qualifying
disability), that she had any physical limitations, or that she needed a reasonable
accommodation with respect to her duties in order to perform an essential function
of her job. Both focus solely on conduct pertinent to alleged retaliatory treatment.
The court is compelled, thus, to find that the ADA failure-to-accommodate claim
alleged for the first time in the Amended Complaint raises conduct that is new and
distinctfromthe conduct alleged in the originalComplaint. There is no common core
of operative facts between the two pleadings.
The court also has considered that the original Complaint references the
“previous charge,” which isthe First EEOC Charge, for the purpose ofidentifying the
activity that triggered the alleged retaliatory treatment. But problematic for even the
pro se litigant is that there is no description, mention, or attempted incorporation of
the allegations underlying that EEOC charge. Cf. Ackerman v. City of Harvey Police
Dep’t, No. 96-c-4363, 1998 WL 67632, at *3 (N.D. Ill. Jan. 29, 1998) (finding Rule
15’s relation-back principles satisfied where, although the pro se plaintiff failed to
include in her complaint allegations pertaining to her later-filed religious
discrimination claim, she had attached copies of the relevant EEOC charges to her
original complaint). Any factual basis for an ADA failure-to-accommodate claim is
20
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 20 of 30
wholly missing from the original Complaint (and its attachments). The original
Complaint (and its attachments) are insufficient to place the Montgomery Surgical
Center on notice that Ms. Brown was attempting to assert conduct that might later
serve as the basis for an ADA failure-to-accommodate claim. This finding is all the
more compelling where Ms. Brown presumably had both notice-of-rights letters in
hand when she filed her original Complaint (as the letters indicate that they were
mailed on the same date), yet she avoided both the mention of the nature of the First
EEOC Charge and its inclusion. See Pearson v. PeopleScout, Inc., No. 10-c-5542,
2011 WL 1575990, at *2 (N.D. Ill. Apr. 26, 2011) (making this same point in its
analysis and rejecting the application of Rule 15(c)(1)(B)’s relation back principle).
There is no manner in which to construe the original Complaint as asserting or
attempting to assert facts thatsupport the newly alleged ADA failure-to-accommodate
claim.
Advocating a contrary position, however, Ms. Brown points to paragraph 8 of
her pro se Complaint, where she penned that the “alleged discrimination occurred”
between “February 16, 2010 [and] April 21, 2010.” (Compl. ¶ 8.) She argues that
6
paragraph 8 is an attempt to set out conduct underlying her ADA failureto-accommodate claim. Ms. Brown cites no authority where a court permitted
As alleged, February 16 is the date that Ms. Brown commenced her approved FMLA
6
leave, and April 21 is the date she requested, but was denied, a reasonable accommodation.
21
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 21 of 30
relation back where the original complaint and its attachments omitted entirely any
statement about the nature of the conduct underlying the new claim. The dates
supplied in paragraph 8 cannot be viewed in a factual vacuum. Without any facts in
the original Complaint providing even a glimpse of conduct suggesting a potential
ADA failure-to-accommodate claim, the dates themselves are insufficient to satisfy
Rule 15(c)(1)(B)’s “conduct, transaction, or occurrence” requirement.
Finally, Ms. Brown contends that because her First EEOC Charge alleging
ADA discrimination referenced the February and April 2010 dates, she should not be
penalized because she “did not staple” the First EEOC Charge to her original
Complaint. (Doc. # 30, at 1.) But the text of Rule 15(c) provides that the pleading
relates back only where the new claim arises “out of the conduct transaction or
occurrence set out . . . in the original pleading.” Fed. R. Civ. P. 15(c). In Mayle, the
Supreme Court held that “[t]he original pleading to which Rule 15 refers is the
complaint in an ordinary civil case.” 545 U.S. at 655. Relying on Mayle, the Tenth
Circuit has rejected a plaintiff’s “argument that her new claim relate[d] back because
it was included in her EEOC charge.” Hernandez v. Valley View Hosp. Ass’n, 684
F.3d 950, 962 (10th Cir. 2012). The court rejects Ms. Brown’s similar argument.
In sum, the ADA failure-to-accommodate claim in the Amended Complaint
does not satisfy Rule 15(c)(1)(B) and, thus, does not relate back to Ms. Brown’s
22
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 22 of 30
original Complaint. The ADA failure-to-accommodate is due to be dismissed astime
barred.
2. ADA Retaliation Claim
a. 180-Day Filing Deadline
The Montgomery SurgicalCenter argues that the ADA retaliation claimistime
barred by the 180-day rule. It is undisputed and clear from the face of the Amended
Complaint, as well asthe EEOC documents attached to it, that Ms. Brown did not file
her Second EEOC Charge alleging retaliation until March 22, 2011, which was 195
days after her termination. (See Am. Compl. ¶¶ 44, 46.) Ms. Brown argues, however,
that her Second EEOC Charge “grew out of” her First EEOC Charge alleging
disability discrimination and, therefore, did not require independent administrative
exhaustion. (Doc. # 30, at 9.) Ms. Brown relies upon the concept of ancillary
jurisdiction announced in Gupta v. East Texas State University, 654 F.2d 411 (5th
Cir. Aug. 28, 1981). Alternatively, Ms. Brown suggests that her ADA retaliation 7
claim is timely based upon equitable tolling.
b. Gupta
In Gupta, the former Fifth Circuit held that a plaintiff need not “exhaust
administrative remedies prior to urging a retaliation claim growing out of an earlier
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh 7
Circuit adopted as binding precedent decisions of the Fifth Circuit rendered before October 1,
1981.
23
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 23 of 30
charge; the district court has ancillary jurisdiction to hear such a claim when it grows
out of an administrative charge that is properly before the court.” 654 F.2d at 414; 8
accord Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 762 (11th Cir. 1995). Courts
have debated Gupta’s continuing vitality in light of the Supreme Court’s decision in
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding
that “discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges”). See Sapp v. Potter, 413 F. App’x
750, 752 n.2 (5th Cir. 2011) (“Some circuits have . . . held that the Supreme Court’s
Morgan decision abolished or narrowed the Gupta exception.” (collecting cases));see
also Bennett v. Chatham Cnty. Sheriff Dep’t, 315 F. App’x 152, 162 n.7 (11th Cir.
2008) (noting the circuits’ disagreement asto whether after Morgan “discrete acts of
retaliation must be exhausted” (collecting cases)). The court need not decide whether
The plaintiff in Gupta timely filed an EEOC charge alleging that his employer 8
discriminated against him based on his national origin and religion. After he received a right-tosue letter from the EEOC, the plaintiff timely filed a lawsuit based on the claims asserted in his
EEOC charge. See 654 F.2d at 412–13. Subsequently, the plaintiff’s employer notified him of
his contract non-renewal. The plaintiff amended his complaint to allege that the non-renewal of
his contract was in retaliation for filing his earlier EEOC charge. He did not file, however, a
separate charge with the EEOC alleging retaliation.
The employer argued that the retaliation claim was subject to dismissal for failure to
exhaust administrative remedies, but the Gupta court rejected that argument. It concluded that
the plaintiff’s retaliation claim was ancillary to the earlier EEOC charge that was validly before
the court and that jurisdiction over the claim was proper, notwithstanding the plaintiff’s failure to
exhaust his retaliatory discharge claim administratively. See id. at 414. The court reasoned, “It
is the nature of retaliation claims that they arise after the filing of the EEOC charge.” Id.
“Requiring prior resort to the EEOC would mean that two charges would have to be filed in a
retaliation case – a double filing that would serve no purpose except to create additional
procedural technicalities when a single filing would comply with the intent of Title VII.” Id.
24
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 24 of 30
Gutpa remains good law after Morgan because the facts of this case do not warrant
its application.
Ms. Brown emphasizes that, like the plaintiff in Gupta, she timely filed an
EEOC charge alleging disability discrimination (i.e., the First EEOC Charge). Ms.
Brown omits mentioning, however, that unlike the plaintiff in Gupta, she did not
timely file her suit with respect to her ADA discrimination claim. As explained in
PartIV.B.1., Ms. Brown’s underlying ADA discrimination claimistime barred based
upon her failure to bring suit within 90 days of her receipt of the EEOC’s right-to-sue
letter on the First EEOC Charge. In Gupta, the plaintiff timely filed both the
underlying EEOC charge and the lawsuit alleging the underlying discrimination.
Assuming without deciding that Gupta remains intact, the court finds that it is
distinguishable where, as here, the plaintiff administratively exhausts the underlying
discrimination claim before the EEOC, but then failsto file suit timely. At least three
courts have found Gupta inapplicable on sufficiently analogous facts, and their
reasoning is persuasive. See Lightfoot v. OBIM Fresh Cut Fruit Co., No. 4:07cv608,
2008 WL 4449512, at *3 (N.D. Tex. Oct. 2, 2008) (dismissing the plaintiff’s
unexhausted retaliation claim where, although raised in a timely EEOC charge, the
underlying race and disability discrimination claims were “not properly before” the
court, given that the EEOC had not issued a right-to-sue letter on those claims);
Leonard v. Rumsfeld, 146 F. Supp. 2d 1227, 1237 (M.D. Ala.) (dismissing the
25
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 25 of 30
plaintiff’s unexhausted retaliation claims because she had failed to file suit “within
90 days of receipt of the final agency decision on her underlying discrimination
claims”), aff’d without op., No. 01-13847, 2001 WL 1690557 (11th Cir. 2001);
Wilson v. Shell Oil Co., No. 94-3693, 1995 WL 311911, at *3 (E.D. La. May 18,
1995) (finding that the plaintiff did not have a discrimination claim “properly before
the court” because he had never filed suit on his timely-filed EEOC charge of
discrimination and, thus, there was “no discrimination charge to which his retaliation
claim c[ould] attach” (citation and internal quotation marks omitted)).
On these facts, Ms. Brown’s ADA retaliation claim does not qualify for
Gupta’s exception to the exhaustion requirement. Ms. Brown’s First EEOC Charge
never was “properly before the court,” Gutpa, 654 F.2d at 414, because Ms. Brown
did not timely file suit on that charge and, thus, there never was an EEOC charge to
which Ms. Brown could attach her unexhausted retaliation claim. Accordingly, Ms.
Brown’s ADA retaliation claim is due to be dismissed as time barred.
c. Equitable Tolling
Ms. Brown alludes to, but does not specifically mention, the doctrine of
equitable tolling. She argues that, although she filed her Second EEOC Charge
outside the 180-day statutory period, her delay in filing is “the fault of a government
bureaucracy.” (Doc. # 30, at 10.) In her Amended Complaint, Ms. Brown alleges
that she contacted the EEOC on September 8, 2010, to “report the termination,” but
26
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 26 of 30
that the EEOC did not mail her a “Retaliation Charge Draft” until March 21, 2011,
which was more than 180 days after her termination. (Am. Compl. ¶¶ 44–46.) Ms.
Brown alleges that she acted promptly by filing the Second EEOC Charge on March
22, 2011.
The 180-day time limit for filing charges with the EEOC is not a jurisdictional
prerequisite but “is subject to . . . equitable tolling.” Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982). Equitable tolling is “‘appropriate when a movant
untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.’” Bhd. of Locomotive Eng’rs &
Trainmen Gen. Comm. of Adjustment v. CSX Transp., Inc., 522 F.3d 1190, 1197 (11th
Cir. 2008) (quoting Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)). “The
plaintiff bears the burden of showing that such extraordinary circumstances exist.”
Arce, 434 F.3d at 1261. Extraordinary circumstances do not arise, for example, from
a plaintiff’s “pro se status” or “ignorance of the judicial process,” or from “slow
administrative proceedings.” Hunt v. Ga. Dep’t ofCmty. Affairs, No. 12-10935, 2012
WL 4074568, at *2 (11th Cir. Sept. 18, 2012) (citing Wakefield v. R.R. Ret. Bd., 131
F.3d 967, 969–70 (11th Cir. 1997)). And where the complaint’s allegations facially
demonstrate that the claim is untimely and omit allegations to support equitable
tolling, the plaintiff generally cannot survive a motion to dismiss on tolling grounds.
27
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 27 of 30
Cf. Henderson v. Reid, 371 F. App’x 51, 54 (11th Cir. 2010) (holding that 12(b)(6)
dismissal was appropriate where the plaintiff filed suit outside the limitations period
and his complaint did not “plausibly allege any facts showing that he [was] entitled
to equitable tolling”);Quina v.Owens-Corning FiberglasCorp., 575 F.2d 1115, 1119
(5thCir. 1978) (affirming dismissal oflawsuit where the plaintifffailed to allege facts
of timely filing of an EEOC charge for age discrimination claim or facts that justified
equitable tolling).
As a threshold matter, Ms. Brown does not argue that her oral communication
with the EEOC on September 8, 2010, notifying it of her allegedly retaliatory
termination, is a proper substitute for the required written charge. See 42 U.S.C.
§2000e-5(b) (providing that EEOC charges must be filed in “writing”). Even if she
had, the court found no authority that would support that contention. Cf. Vela v.
Village of Sauk Village, 218 F.3d 661, 664–65 (7th Cir. 2000) (holding that oral
communications with an EEOC intake officer were insufficient to preserve a claim
not contained in the EEOC charge); Martin v. Pa. Dep’t of Corrs., No. 07cv587, 2008
WL 4279761, at *5 (W.D. Pa. Sept. 12, 2008) (rejecting assertion that telephone call
to EEOC satisfied Title VII’s written charge requirement).
Ms.Brown’s argument comes closest to those cases permitting equitable tolling
where the EEOC misled the employee, but the argument finds no support in the
28
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 28 of 30
allegations. In Chappel v. Emco Mach. Works, 601 F.2d 1295 (5th Cir. 1975), the
former Fifth Circuit recognized that “equitable modification is appropriate when the
EEOC misleads a complainant about the nature of his rights.” Id. at 1303; accord
Jones v. Wynne, 266 F. App’x 903, 906 (11th Cir. 2008). To successfully invoke
equitable tolling, plaintiffs generally must show “some affirmative misconduct, such
as deliberate concealment.” Jackson v. Astrue, 506 F.3d 1349, 1354 (11th Cir. 2007)
(citation and internal quotation marks omitted).
Ms. Brown’s Amended Complaint is noteworthy for what it does not allege.
It does not allege that the EEOC misled Ms. Brown about her filing rights when she
called on September 8 or otherwise deceived her into missing the 180-day deadline.
It also does not allege that the EEOC discouraged or prevented Ms. Brown fromfiling
a separate EEOC charge based upon retaliation. At best, the Amended Complaint and
attached documentsreveal Ms. Brown’s September 8 telephone call to the EEOC and
the EEOC’s letter, dated after the expiration of the 180-day time period, that noted
Ms. Brown’s “recent inquiry” and attached a draft charge for Ms. Brown to sign.
There are no allegations divulging the reason for the delay between Ms. Brown’s
phone call and the EEOC’s letter, and on this complaint, speculation, not liberal
construction, would be required to guess the reason. It suffices to say that there are
no allegations that suggest that the EEOC engaged in any affirmative misconduct.
29
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 29 of 30
Finally, even if the EEOC had contributed to Ms. Brown’s filing delay, the Amended
Complaint contains no allegations that in the six-month interimbetween Ms. Brown’s
phone call and the EEOC’s letter, Ms. Brown acted diligently in pursuing her claim.
The Amended Complaint simply is silent as to what, if anything, Ms. Brown did to
pursue her claim.
Accordingly, Ms. Brown fails to allege any extraordinary circumstances
beyond her control and unavoidable with diligence that prevented her from filing an
EEOC charge within 180 days of her termination. The facts do not warrant, therefore,
the application of equitable tolling. Ms. Brown’s ADA retaliation claim is time
barred and subject to dismissal.
V. CONCLUSION
The Amended Complaint fails to set forth facts sufficient to support a
cognizable legal theory under the FMLA, and Ms. Brown’s ADA claims are time
barred. Accordingly, Defendant Montgomery Surgical Center’s Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. # 28) is GRANTED.
A separate judgment will be entered.
DONE this 20th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
30
Case 2:12-cv-00553-WKW-CSC Document 32 Filed 03/20/13 Page 30 of 30 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_09-cv-02387/USCOURTS-azd-2_09-cv-02387-0/pdf.json | 442 | Civil Rights Employment | 28:1441 Petition for Removal - Employment Discrimination | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Terry Lincoln, an individual,
Plaintiff,
vs.
Arizona Department of Public Safety, and
Gila County Sheriff’s Office,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CIV-09-2387-PHX-MHB
ORDER
Pending before the Court is Plaintiff Terry Lincoln’s Motion for Leave to Amend
Complaint (Doc. #30). After considering the arguments raised by the parties in their briefing,
the Court now issues the following ruling.
BACKGROUND
At all times relevant to this cause of action, Plaintiff was an employee of the Arizona
Department of Public Safety (“DPS”). In 2007, she was assigned to the Gila County
Narcotics Task Force, a joint operation between DPS and the Gila County Sheriff’s Office
(“GCSO”). In 2009, the sergeant position she occupied on the Task Force was abolished for
alleged budgetary reasons and Plaintiff was assigned to a vacant sergeant position on the
Highway Patrol.
In May 2009, Plaintiff (through her attorney) sent a notice of claim to DPS, the
Arizona Attorney General, and the Gila County Attorney. On October 22, 2009, Plaintiff
filed her Verified Complaint in Superior Court, alleging five causes of action: (1) Disparate
Treatment/Title VII; (2) Sexual Harassment and Hostile Work Environment/Title VII; (3)
Case 2:09-cv-02387-MHB Document 36 Filed 05/10/10 Page 1 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 2 -
Retaliation/Title VII; (4) Equal Pay Act; and (5) Arizona Civil Rights Act (“ACRA”). The
named Defendants were DPS and GCSO. The action was removed to federal court on
November 16, 2009.
The parties subsequently consented to Magistrate Judge jurisdiction, and on February
4, 2010, the Court issued its Case Management Order. Then, on March 8, 2010, Plaintiff
moved for leave to amend her Verified Complaint.
In her proposed First Amended Complaint, Plaintiff withdraws the claim alleged
pursuant to the Equal Pay Act, and proposes to add three new state-law tort claims in addition
to her claims alleged pursuant to Title VII and ACRA: Tortious Interference with
Contractual Relations (Count V); Aiding and Abetting Tortious Conduct (Count VI), and
Blacklisting (Count VII). She also proposes to add thirteen more Defendants: the State of
Arizona, Roger Vanderpool, Gila County, the Gila County Board of Supervisors (specifically
including Shirley Dawson, Tommie Cline Martin, and Michael Pastor), John Armer, the Gila
County Narcotics Task Force, Jaime Escobedo, Jimmy Oestmann, Johnny Sanchez, and Dean
Nyhart.
On March 23, 2010, GCSO filed its response, and on March 25, 2010, DPS filed its
response. Plaintiff filed her Reply on April 2, 2010.
DISCUSSION
In her Motion, Plaintiff contends that she seeks amendment in good faith in order to
ensure complete adjudication of all related claims, and against all Defendants, in one action.
Plaintiff states that this is her first request, and that the proposed amendment will not unduly
prejudice any of the Defendants. Plaintiff also asserts that the proposed amendment is not
futile because it timely raises legitimate claims against both existing and new Defendants.
In its response, GCSO first argues that Plaintiff’s proposed amendment “lacks
decipherable facts to determine who is being sued and what theories are being advanced
against them.” GCSO also contends that the proposed amendment is futile as to John Armer
and Johnny Sanchez claiming (1) that Title VII precludes liability against individual
Case 2:09-cv-02387-MHB Document 36 Filed 05/10/10 Page 2 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 3 -
supervisors, and (2) that Plaintiff failed to serve a notice of claim pursuant to A.R.S. § 12-
821.01. Additionally, GCSO asserts that the proposed amendment is futile as to Gila County,
the Gila County Board of Supervisors, and the Gila County Narcotics Task Force stating (1)
that Plaintiff failed to serve a notice of claim concerning Counts V-VII, and (2) that the
doctrine of respondeat superior prohibits actions against the master where the actions cannot
lie against the servants. Lastly, GCSO alleges that the proposed inclusion of Counts V and
VII are futile because said Counts fail to state a claim.
In its separate response, DPS argues that the proposed amendment to add Roger
Vanderpool, Jaime Escobedo, Jimmy Oestmann, and Dean Nyhart is futile. Specifically,
DPS asserts that the existing claims of discrimination and retaliation pursuant to Title VII
and ACRA against these proposed Defendants fail since Title VII is inapplicable to
individuals. DPS also contends the proposed state law tort claims against these individuals
fail because Plaintiff did not serve a notice of claim on each of them. Finally, DPS alleges
that “all of Plaintiff’s proposed tort claims are doomed” as the proposed Amended Complaint
contains “conclusory recitation[s]” of the required elements.
Federal Rule of Civil Procedure 15(a) declares that “[t]he court should freely give
leave [to amend] when justice so requires.” The Ninth Circuit has noted that “Rule 15’s
policy of favoring amendments should be applied with extreme liberality.” Eldridge v.
Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation omitted). A court may deny a motion
to amend, however, if there is a showing of undue delay or bad faith on the part of the
moving party, undue prejudice to the opposing party, or futility of the proposed amendments.
See Foman v. Davis, 371 U.S. 178, 182 (1962). The party opposing amendment bears the
burden of showing prejudice, futility, or one of the other recognized reasons for denying a
motion to amend. See DCD Programs, LTD. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
Having reviewed Plaintiff’s proposed First Amended Compliant, the Court agrees in
part with GCSO and finds that sufficient doubt exists regarding which claims asserted in the
Amended Complaint apply to which Defendants. Specific identification of the parties to the
Case 2:09-cv-02387-MHB Document 36 Filed 05/10/10 Page 3 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 4 -
activities alleged by Plaintiff is required to enable Defendants to plead intelligently. The
Court will allow Plaintiff to correct this issue.
Further, to the extent Plaintiff asserts claims pursuant to Title VII and ACRA against
individual Defendants, putting aside the fact that the proposed Amended Complaint includes
virtually no specific allegations regarding the alleged conduct of each individual, it is wellestablished that “individual defendants cannot be held liable for damages under Title VII.”
Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993); see Holly D. v. Cal. Inst.
of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (“We have consistently held that Title VII does
not provide a cause of action for damages against supervisors or fellow employees.”). As
such, it would be futile to permit Plaintiff to amend her Complaint to allege Title VII claims
for damages against individual Defendants named in her proposed Amended Complaint. The
Court, however, will give Plaintiff the opportunity to correct this deficiency.
Next, both GCSO and DPS appear to assert a futility argument stating that the
proposed amendment is futile in light of Plaintiff’s failure to file a notice of claim pursuant
to A.R.S. § 12-821.01. Although the requirement of filing a notice of claim with the State
is a mandatory prerequisite to Plaintiff’s state law claims, these requirements are procedural,
rather than jurisdictional. See Pritchard v. State, 788 P.2d 1178, 1183 (Ariz. 1990). Thus
an allegation of compliance with the notice of claim is not required, and the failure to comply
with these nonjudicial remedies that are not jurisdictional should be treated as a matter in
abatement, and resolved through an appropriate motion to dismiss, if applicable. Similarly,
GCSO and DPS’ contention that the proposed amendment fails to state a claim or is
“doomed” as it contains “conclusory recitation[s]” of the required elements is unpersuasive.
The merits or facts of a controversy are not properly decided in a motion for leave to amend
and should instead be attacked by a motion to dismiss for failure to state a claim or for
summary judgment.
\\\
\\\
Case 2:09-cv-02387-MHB Document 36 Filed 05/10/10 Page 4 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 5 -
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Leave to Amend Complaint (Doc. #30)
is GRANTED;
IT IS FURTHER ORDERED that Plaintiff shall file a First Amended Complaint
that shall contain the corrections identified in the body of this Order no later than May 28,
2010.
DATED this 6th day of May, 2010.
Case 2:09-cv-02387-MHB Document 36 Filed 05/10/10 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_17-cv-00241/USCOURTS-casd-3_17-cv-00241-5/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983pr Prisoner Civil Rights | 1
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LEANDRO LEONEL GONZALEZ,
CDCR #V-74928,
Plaintiff,
vs.
CORRECTIONAL OFFICER
M. DeGUZMAN, et al.,
Defendants.
Case No.: 3:17-cv-00241-GPC-BGS
ORDER GRANTING DEFENDANT
DEGUZMAN’S MOTION FOR
SUMMARY JUDGMENT
PURSUANT TO
Fed. R. Civ. P. 56
[ECF No. 67]
Currently before the Court is a Motion for Summary Judgment filed pursuant to
Fed. R. Civ. P. 56 by Defendant M. DeGuzman (ECF No. 67). After he was notified of
the requirements for opposing summary judgment pursuant to Rand v. Rowland, 154 F.3d
952, 962-63 (9th Cir. 1998) (ECF No. 67-4), and granted an extension of time (ECF No.
70), Plaintiff filed his Opposition (“Opp’n”) (ECF No. 71). DeGuzman filed no Reply.
On June 10, 2019, the Court found the matter suitable for disposition on the
moving papers and ordered the matter submitted without oral argument pursuant to S.D.
Cal. CivLR 7.1.d.1 (ECF No. 72). On June 18, 2019, the Court vacated its pretrial
briefing schedule pending resolution of Defendant’s Motion (ECF No. 74).
///
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 1 of 22
2
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
For the reasons explained, the Court GRANTS Defendant’s Motion for Summary
(ECF No. 67), DIRECTS the Clerk of the Court to enter judgment in favor of
DeGuzman, and terminates the case.
I. Procedural Background
On February 8, 2017, Plaintiff filed a Complaint under 42 U.S.C. § 1983 alleging
that Correctional Officers DeGuzman1 and Rodrin violated his Eighth Amendment rights
while he was incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) on
April 6, 2015, by closing a cell door on his hand and failing to provide him medical care
afterward. (See ECF No. 1 at 8-13, 23-24.) On April 18, 2017, the Court granted Plaintiff
leave to proceed in forma pauperis, screened his Complaint pursuant to 28 U.S.C.
§ 1915(e)(2) and § 1915A, and directed U.S. Marshal service on his behalf. (See ECF No.
4.)
On August 16, 2017, Plaintiff filed a First Amended Complaint (“FAC”). (See ECF
No. 18.) On November 14, 2017, the Court granted Defendant Rodrin’s Motion to
Dismiss Plaintiff’s FAC, denied DeGuzman’s Motion for Joinder as moot, and granted
Plaintiff leave to amend (ECF No. 33). On December 8, 2017, Plaintiff filed a Second
Amended Complaint (“SAC”), re-naming Defendants Rodrin and DeGuzman, and adding
O. Calderon as a Defendant. (See ECF No. 34.) On December 21, 2017, Rodrin and
DeGuzman filed a Motion to Dismiss Plaintiff’s SAC, see ECF No. 36, and after being
served, Calderon quickly followed suit. (See ECF No. 44.)
On April 12, 2018, the Court dismissed all Eighth Amendment claims alleged in
Plaintiff’s SAC as to Rodrin and Calderon, and any conspiracy claims alleged as to all
Defendants pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 49). Only the Eighth
Amendment claims alleged as “Count 1” in Plaintiff’s SAC against DeGuzman remain.
(See id. at 16; SAC at 17-18.)
1 Plaintiff initially misspelled Defendant DeGuzman’s name as Gusman, but later corrected
it. (See ECF No. 1 at 1, 2.)
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 2 of 22
3
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On April 26, 2018, DeGuzman filed an Answer to Plaintiff’s SAC (ECF No. 50).
The parties later submitted a joint discovery plan (ECF No. 60), and on May 9, 2019,
after being granted an ex parte extension of time, DeGuzman filed a Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56. (See ECF No. 67.)
II. Plaintiff’s Claims & Evidence
In both his SAC,2 and in his sworn declaration in Opposition to Defendant’s
Motion, Plaintiff claims to have reported Correctional Officer Orosco3 to the Office of
the Inspector General4 in March 2015, alleging that Orosco had “tried to batter[] and kill
[him] with the help of other C/Os” while he was housed in RJD’s Building #15. (See
SAC at 5 ¶ 10; Pl.’s Decl. in Opp’n to Def.’s Mot. for Summ. J., ECF No. 71 [hereafter
“Pl.’s Decl.”] at 4 ¶ 4.) After that, Plaintiff moved to “the most far building” in RJD’s
2
Unlike Plaintiff’s Declaration, see Opp’n at 3-8, Plaintiff’s SAC is not verified under
penalty of perjury pursuant to 28 U.S.C. § 1746, although both recount the same factual
allegations practically verbatim. Verified complaints may be used as opposing affidavits
under Rule 56, so long as the allegations contained therein are based on personal
knowledge and set forth specific facts admissible in evidence. See Fed. R. Civ. P. 56(c)(4);
Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454,
460 (9th Cir. 1995) (accepting the verified complaint as an opposing affidavit because the
plaintiff “demonstrated his personal knowledge by citing two specific instances where
correctional staff members ... made statements from which a jury could reasonably infer a
retaliatory motive.”). Therefore, the Court will consider the unsworn allegations in
Plaintiff’s SAC only insofar as they provide additional background for, are consistent with
his verified declaration, and to the extent they proffer testimony that could be admitted at
trial. See e.g., Tidwell v. Gallagher, No. CV 14-5072-AG(E), 2017 WL 2801095, at *4
(C.D. Cal. Apr. 24, 2017), report and recommendation adopted, No. CV 14-5072-AG(E),
2017 WL 2800859 (C.D. Cal. June 27, 2017), aff’d, 723 F. App’x 520 (9th Cir. 2018).
3
Correctional Officer Orosco is not, and never has been named as a party to this case.
4 The California Office of Inspector General “safeguard[s] the integrity of the State’s
correctional system by providing oversight and transparency through monitoring,
reporting, and recommending improvements to the California Department of Corrections
and Rehabilitation.” See https://www.oig.ca.gov/about-us/ (last visited Aug. 8, 2019).
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 3 of 22
4
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“C” Facility, Building #11, and was assigned to cell #201, which he shared with Juan
Rocha. (See SAC ¶¶ 11, 13; Pl.’s Decl. ¶¶ 4-6.)
“Since the first day in cell #201” Plaintiff claims to have “observed that the door
... did not work good,” and that “when the officer in the control booth tried to open the
door, [it] opened about 5 or 6 inches and shackled.” Plaintiff claims to have “informed
the floor officers of ... Building 11 regard[ing] the problem,” and “request[ed] they send
staff to repair[] [it].” (See Pl.’s Decl. ¶ 7; SAC at ¶ 14.) But “every time” he and Rocha
went out of the cell, Plaintiff “had to insert[] [his] right hand in the little space of 5 or 6
inches,” in order to “pull the door ... open.” (Pl.’s Decl. ¶ 8; SAC ¶ 15.)
On April 6, 2015, at approximately 7:20 a.m., and after having lived in cell # 201
for approximately one week, Plaintiff claims DeGuzman, who was “working that day in
the control [booth] ... of Building #11,” opened the door “about 5 or 6 inches.” (SAC ¶
17; Pl.’s Decl. ¶ 11.) Plaintiff claims he “heard the shackle when the door stopped, ...
saw the little space opened, [and] ... inserted [his] right hand [in the space] with the
purpose to pull the door open as [he] did in past days.” (Pl.’s Decl. ¶ 11; SAC ¶ 20.)
Plaintiff denies having any appointment that day, claims he “did not request five to ten
minutes to get ready ... because no appointment [e]xisted,” and that there was “no
reason” for DeGuzman to open his door at 7:20 a.m.” (Pl.’s Decl. ¶¶ 10, 18.) However,
Plaintiff alleges he and Rocha “were ready to go to the dining room to eat the breakfast”
when the door started to open. (Id. ¶¶ 9, 11; SAC ¶ 28; see also Opp’n at 38 [hereafter
“Rocha Decl.”].)
“When Defendant DeGuzman saw [his] right hand trying to pull the door, he
closed the door clinching [Plaintiff’s] right hand.” (Pl.’s Decl. ¶ 12; SAC ¶ 21.) Plaintiff
claims DeGuzman “saw [his] right hand trying to pull the door, because [Plaintiff] seen
[sic] in direction to him when [Plaintiff] inserted [his] right hand in the little space to
make sure he was ready to keeping open the door with [Plaintiff’s] help.” (Pl.’s Decl.
¶ 12.) Plaintiff claims the “blunt force impact in [his] right hand with the iron door was
strong,” the “pain in [his] right hand and arm was unbearable (a[n] agonizing pain),’” and
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 4 of 22
5
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
he “vociferated ‘Open the Door[!]’ to Defendant DeGuzman a couple times until he
opened the door again.” (Pl.’s Decl., ¶¶ 13, 18; SAC at ¶ 22; Rocha Decl. at 39.)
In his SAC, Plaintiff alleges DeGuzman “knew about the problem with [his] door”
and “actually knew about the substantial risk of serious harm from the very fact that if he
close[d] the door when Plaintiff inserted his right hand to pull the door to open, the risk to
cause serious injuries was obvious.” (SAC ¶¶ 17, 18.) Plaintiff also claims that “[a]fter
[his] right hand was harm[ed],” DeGuzman “revealed ... his malicious and sadistic plan,”
because he “made a sign corroborating his intentional ‘setting up’ enjoying his act,” see
Pl.’s Decl. ¶ 15, and “enjoying his crime[].” (SAC ¶ 25.)
After the door opened and Plaintiff was able to remove his right hand, he “saw
[his] fingers with deep cuts bleeding,” and “waited a couple minutes expecting ...
DeGuzman [to] provide him with emergency care services,” to “call[] the nurse to the
building,” or to let him go to the clinic. (SAC ¶ 33.) “After some minutes,” Plaintiff
“understood that DeGuzman d[id] not want[] to help,” (id.), so he called a porter,
“showed [his] injuries” through the cell window, and asked the porter to “explain to C/O
Rodrin that [he] had a medical emergency.” (Pl.’s Decl. ¶¶ 14, 17; SAC ¶ 33-34.)
Plaintiff claims he saw the porter speak to Rodrin, but Rodrin also “did nothing to get
care for [him].” (Pl.’s Decl. ¶ 16; SAC ¶ 34.)5
After about an hour, Plaintiff claims that instead of releasing the inmates in
Building 11 to “walk[] to the dining hall” for breakfast that day, kitchen staff delivered
breakfast trays to the building. DeGuzman then opened all the building’s cell doors so all
inmates could pick up their trays. (Pl.’s Decl. ¶ 18; SAC ¶ 35.)
Plaintiff came out from his cell, picked up his tray with his left hand, and stopped
to show Rodrin his “open wounds” and “still bleeding ... fingers.” (Pl.’s Decl. ¶ 19; SAC
¶ 36.) He requested “immediate health care services,” but Rochin “ordered [him] back to
5 Plaintiff’s Eighth Amendment claims related to Rodrin’s alleged indifference to his
injuries were dismissed on April 12, 2018. See ECF No. 49.
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 5 of 22
6
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[his] cell.” (Pl.’s Decl. ¶ 19; SAC ¶ 36.) Plaintiff remained in his cell “suffering ... a
prolonged, manifest and agonizing pain,” see SAC ¶ 37, until “suddenly” at
“approximately 9:00 a.m.,” “[t]he door opened again.” (id.; Pl.’s Decl. ¶ 20.) Plaintiff
again approached Rodrin and requested immediate help, but Rodrin “refused to assist[].”
Plaintiff then asked for the name of the control booth officer, and Rodrin replied,
“DeGuzman.” (Pl.’s Decl. ¶ 20; SAC ¶ 37.)
Later that afternoon, Plaintiff submitted two “HCSRF (medical request)” forms,
describing his “health problem[s]” as a result of the “battery.” (Pl.’ Decl. ¶ 21, SAC at
42, 43.) In one, Plaintiff reported to suffer “shame, humiliation, and mental distress
because [at] about 7:00 am Officer [DeGuzman] working in the control clinch[ed] [his]
right hand intentional[ly] cutting part of [his] fingers” and “after that ... insinuate[d] that
he put [Plaintiff] [in] a trap.” (See SAC at 42.) In another, Plaintiff reported his “nerves
received damage[] and [his] arm’s bones [were] in pain.” (Id. at 43.) Both these requests
were classified as “routine,” and on the next day, April 7, 2015,6 Plaintiff was summoned
to the clinic, interviewed, and examined by a nurse, Defendant O. Calderon. (Pl.’s Decl.
¶¶ 24-25; SAC at 43.)7 Calderon’s encounter notes indicate Plaintiff was ambulatory, and
he presented with swelling, bruising, and discoloration on his right hand, but was “able to
make a fist.” (SAC at 43, 62; Pl.’s Decl. ¶ 26.) Calderon also noted several “small” 1⁄2 cm
lacerations on his 2d, 3rd & 4th digits, recommended Plaintiff follow up with his primary
care physician “as scheduled,” advised him to continue on a previously prescribed dose
of Naproxen, and told him: “It will heal.” (Pl.’s Decl. ¶ 26; SAC ¶ 62.) Calderon’s April
6
Plaintiff’s HCSRFs are dated April 7, 2015, but in his Declaration, he claims he was not
examined by Calderon until April 8, 2015, and that she “made a fabrication” and
“perpetrat[ed] [a] lie” as to “some ... parts of [her] medical report.” See Pl.’s Decl. ¶¶ 27-
31; SAC ¶ 51.
7 Plaintiff’s Eighth Amendment claims against Defendant Calderon, like those alleged
against Defendant Rodrin, were dismissed together with Plaintiff’s conspiracy claims as to
all Defendants, on April 12, 2018. See ECF No. 49.
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 6 of 22
7
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7, 2015 encounter form further notes Plaintiff “state[d] [the] cell door got closed on his
hand,” and “then stated the cell door was stuck and he pulled it and it closed on his
hand.” (SAC at 43.)
During the second week of April, another inmate, Efren Silva, claims he saw
Plaintiff “walk[ing] around the yard,” and asked him to do pull-ups. (See Opp’n at 49
[hereafter “Silva Decl.”].) Plaintiff told Silva “no because he had serious injuries on the
fingers of his right hand,” and Plaintiff reported to Silva he could “not use his right hand
and arm.” (Id.) Silva attests he saw “deep cuts” on Plaintiff’s fingers at the time. (Id.) “At
the beginning of May,” Silva “talked with [Plaintiff] again,” and when Plaintiff “showed
... [him] his right hand, the cuts on his fingers were healing.” (SAC at 49.)
On September 27, 2015, Plaintiff submitted another HCSRF form complaining that
even after “5 months and 3 weeks,” “the bones of [his] hand were still in pain.” (Pl.’s
Decl. ¶ 31; SAC at 45.) He was evaluated the following day, his musculoskeletal
complaint was classified as “routine,” and he was again referred to his primary care
physician “as scheduled.” (SAC at 45.)
Almost two years later, on July 25, 2017, Plaintiff submitted an additional HCSRF
claiming he “still had problems with the mobility in [his] fingers,” and requesting that
Rodrin “stop the pattern of wanton misconduct” in “den[ying] ... [him] health care
services.” (Pl.’s Decl. ¶ 32; SAC at 80.) On October 19, 2017, he was evaluated by Dr.
Richard N. Gray, via a telemedicine conference held at Mule Creek State Prison. (SAC at
81; Pl.’s Decl. ¶ 34.) Gray noted Plaintiff reported suffering from “headaches, cLBP,
testicular disfunction, myopia, and a seizure disorder,” but an interim hospitalization and
antibiotics had resolved his testicular infection. (SAC at 81.) Plaintiff also complained of
10 years of progressive back pain, to have suffered a seizure in 2016, and reported having
his right hand “slammed in a door” two years earlier in 2015. (Id.) Gray’s Medical
Progress Notes indicate Plaintiff reported his hand pain had resolved, but that he “did not
have control” or “use of that hand that he has previously.” (Id.) Gray noted Plaintiff’s
right hand grip as “decreased at IV/V.” (Id.)
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 7 of 22
8
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. Defendant’s Claims & Evidence
Correctional Officer M. DeGuzman was working overtime as the second watch
control booth officer assigned to RJD’s Facility “C” Housing Unit #11 on April 6, 2015.
(See Def.’s P&As, Declaration of M. DeGuzman in Supp. of Mot. for Summ. J., ECF No.
67-8 [hereafter “DeGuzman Decl.”], ¶ 2.) Second watch lasts from 6:00 a.m. to 2:00 p.m.
(Id.) As the control booth officer, DeGuzman was responsible for “the coverage of
correctional officers and the supervision of inmates” assigned to the Unit. (Id. ¶ 3.) His
responsibilities also include: the “overall health, welfare and custody of all inmates in the
building; the accountability and maintenance of all equipment under [his] control; the
alert supervision of inmate activities within [his] scope of vision; the prevention of
escape or escape attempts; ... the control of inmate movement[,] ... [and] the inventory
and inspection of all weapons and ammunition.” (Id.) Guzman is not “allowed to leave
the control tower during [his] shift.” (Id.)
On the morning of April 6, 2015, DeGuzman claims Unit #11 “floor officers”
received a phone call at the podium of the Unit informing them that Plaintiff “had an
appointment outside of the housing unit that he had to attend.” (Id. ¶ 4.) Rodrin attests he
was working as “Floor Officer #2” at the time. (See Def.’s P&As, Declaration of L.
Rodrin in Supp. of Mot. for Summ. J., ECF No. 67-10 [hereafter “Rodrin Decl.”], ¶ 2.)
As a Floor Officer, Rodrin was “responsible for arranging for inmates to leave the
housing unit” for appointments such as “medical and dental appointments.” (Id. ¶ 3.)
“One of the floor officer[s] shouted up to DeGuzman in the control booth to open
cell 201 so [Plaintiff] could leave the cell and attend the appointment.” (DeGuzman Decl.
¶ 4.) DeGuzman “began opening the cell door, but then the floor officer shouted up to
[him] that [Plaintiff] requested five to ten minutes to get ready for the appointment.” (Id.)
DeGuzman attests this is a “common” occurrence. (Id.)
DeGuzman does not, however, recall hearing anyone yelling that Plaintiff’s hand
was caught between the closed door and the door frame on April 6, 2015, and “did not
witness [Plaintiff’s] hand get caught.” (Id. ¶ 5.) Rodrin also does not recall hearing
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 8 of 22
9
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
anyone yell that Plaintiff’s hand was caught in his cell door, did not see Plaintiff’s hand
caught in the door, and testifies that Plaintiff neither informed him of the incident
afterward, nor asked him for medical attention. (Id.) In short, Rodrin claims he does not
recall “any such event occurring in the housing unit on April 6, 2015, or at any other
time,” and posits that he “would have remembered if [it] had because that would have
been a very unusual occurrence.” (Id. ¶ 4.)
Both DeGuzman and Rodrin further contend it is practically “impossible” for an
inmate to “have his hand caught between the cell door and the doorframe” as Plaintiff
claims, because the cell doors move slowly when closing and opening, “it takes
approximately four seconds for the door to fully open or close,” and “there is the sound
of metal engaging the closing mechanism” which provides a warning that the door is
about to close and puts the inmates “on notice.” (DeGuzman Decl. ¶ 6; Rodrin Decl. ¶ 6.)
“[E]ven if it was open only five to six inches when the inmate put his hand on the door,”
as Plaintiff claims happened on April 6, 2015, both DeGuzman and Rodrin claim it would
be “nearly impossible” for him to be unable to remove it when the door began to close.
(Id.)
DeGuzman further attests it is “practically impossible” for him to have seen
Plaintiff’s hand in between the cell door and frame on April 6, 2015, because he was
assigned to cell 201, which is the furthest cell from the control booth and difficult to see
from the control panel, which is situated in the center of the U-shaped housing unit.
(DeGuzman Decl. ¶¶ 5, 7.) As he faces the control panel, cell 201 is “in the far corner
and over [his] left shoulder. (Id.; see also Ex. A, ECF No. 67-9 at 3.) DeGuzman
contends he must face the control panel, press the button correlating with a cell number,
and hold it down in order to open or close the automated cell door. (DeGuzman Decl.
¶ 6.) The door stops moving if he takes his finger off the button, and therefore DeGuzman
claims there “is no way [he] could have known if [Plaintiff’s] hand was in danger of
being caught” on April 6, 2015, because it is “nearly impossible for [him] to view cell
201 over [his] left shoulder” while he was also pressing the cell door’s button. (Id. ¶ 7.)
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 9 of 22
10
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Neither DeGuzman nor Rodrin “had [or] have [any] knowledge that there was a
problem” with cell 201’s door and both testify they were unaware of any “malfunction.”
(Id. ¶ 8; Rodrin Decl. ¶ 7.) DeGuzman further claims to have re-opened door 201
approximately five to ten minutes after Plaintiff claims to have been injured “without any
incident or ... report that [Plaintiff] was injured.” (DeGuzman Decl. ¶ 7.) DeGuzman
swears he “did not intentionally close the cell door on [Plaintiff’]s hand,” “never had any
animosity toward [Plaintiff] and did not make any sign to him that [he] intentionally ‘set
[Plaintiff] up.’” (Id. ¶ 9.) Instead, DeGuzman claims he “simply opened the cell door as
requested by the floor officer.” (Id.)
Former Defendant O. Calderon was the registered nurse at RJD and was on duty on
April 7, 2015. (See Decl. of O. Calderon in Supp. of Def.’s Mot. for Summ. J., ECF No.
67-5 (hereafter “Calderon Decl.”), ¶ 2.) At 8:00 a.m. on April 7, 2015, Calderon
examined Plaintiff’s right hand and documented her findings on the CDCR HCSRF 7362
Plaintiff submitted the day before. (Id. ¶¶ 2-3, see also Ex. A, ECF No. 67-6 at 3.)
Calderon’s encounter notes indicate Plaintiff presented with a “small laceration to his
second, third, and fourth digits that were only a half a centimeter long.” (Id. ¶ 3.)
However, Plaintiff was able to make a fist, his “vital signs, [] circulation, sensation, and
movement were within normal limits,” and she “saw no swelling, no bruising, no
discoloration, [...] no gross deformity. ...[and] no bleeding or sign of infection.” (Id.)
Calderon advised Plaintiff to continue taking the naproxen he had already been
prescribed to treat an unrelated condition if necessary, and found his injuries did not
require referral to a primary care physician, but directed Plaintiff to seek medical
attention if his condition worsened. (Id. ¶ 4.)
Calderon’s review of Plaintiff’s medical records also confirm that he reported
continued pain in the second, third, and fourth fingers on his right hand on July 26, 2017,
and while he was incarcerated at Mule Creek State Prison. (Id. ¶ 5.) The nurse who
examined Plaintiff at MCSP also recorded “no abnormalities,” and found Plaintiff was
able to “close and open R hand, able to move all digits freely w/o any difficulties.” (Id.
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 10 of
22
11
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
¶ 5; Ex. B, ECF No. 67-6 at 5-7.) Plaintiff was prescribed ibuprofen, and instructed to
follow up in the RN clinic in 72 hours if his symptoms persisted. (Id.)
IV. Defendant’s Motion for Summary Judgment
A. Standard of Review
Summary judgment is appropriate when the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The “purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether there is a genuine need for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citations omitted).
As the moving party, Defendant DeGuzman “initially bears the burden of proving
the absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144
v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir.
2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). He may accomplish
this by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admission, interrogatory
answers, or other materials” or by showing that such materials “do not establish the
absence or presence of a genuine dispute, or that the adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56 (c)(1)(A), (B).
While Plaintiff bears the burden of proof at trial, DeGuzman “need only prove that
there is an absence of evidence to support [Plaintiff’s] case.” Oracle Corp., 627 F.3d at
387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed,
summary judgment should be entered, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other facts
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 11 of
22
12
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long
as whatever is before the district court demonstrates that the standard for entry of
summary judgment ... is satisfied.” Id. at 323.
If DeGuzman as the moving party meets his initial responsibility, the burden then
shifts to Plaintiff to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co., 475 U.S. at 586. In attempting to establish the
existence of this factual dispute, Plaintiff may not rely upon the allegations or denials of
his pleadings, but is instead required to tender evidence of specific facts in the form of
affidavits, and/or admissible discovery material, to support his contention that the dispute
exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. “A [p]laintiff’s
verified complaint may be considered as an affidavit in opposition to summary judgment
if it is based on personal knowledge and sets forth specific facts admissible in evidence.”
Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc).
Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact
that might affect the outcome of his suit under the governing law, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a verdict for him. See Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
Finally, district courts must “construe liberally motion papers and pleadings filed
by pro se inmates and ... avoid applying summary judgment rules strictly.” Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, if Plaintiff “fails to properly
support an assertion of fact or fails to properly address [Defendant’s] assertion of fact, as
required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the
motion ....” Fed. R. Civ. P. 56(e)(2). Nor may the Court permit Plaintiff, as the opposing
party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d
457, 459 (9th Cir. 1986). A “motion for summary judgment may not be defeated ... by
evidence that is ‘merely colorable’ or ‘is not significantly probative.’” Anderson, 477
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 12 of
22
13
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
U.S. at 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006);
Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“‘[M]ere allegation and
speculation do not create a factual dispute for purposes of summary judgment.’”)
(quoting Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996)) (brackets in
original)).
B. Defendant’s Arguments
DeGuzman seeks summary judgment as to Plaintiff’s Eighth Amendment claims
arguing: (1) no evidence in the record shows he intentionally closed the cell door on
Plaintiff’s hand with any malicious or sadistic intent; (2) no evidence further shows he
acted with deliberate indifference to Plaintiff’s injuries; and (3) he is entitled to qualified
immunity. (See Def.’s Mem. of P&As in Supp. of Mot. for Summ. J., [“P&As”], ECF
No. 67-1 at 14-21.)
C. Plaintiff’s Opposition
Plaintiff contends DeGuzman is not entitled to summary judgment because “his
factual allegations are not correct,” and there exist material factual disputes as to his
Eighth Amendment claims. (See Opp’n, ECF No. 71 at 3, 12-19.) Specifically, Plaintiff
argues the testimony proffered in both his sworn Declaration, (id. at 3-8), together with
the sworn declaration of his cellmate, Juan Rocha, (id. at 38-39), are “squarely
contradictory [with DeGuzman’s] as to whether or not [he] suffered a battery,” and they
provide the “proof or evidence that ... DeGuzman intentionally closed the cell door on
his hand sadistically and maliciously for the sole purpose of harming [him].” (Id. at 16.)
Plaintiff further contends the medical records attached to his Opposition8 are sufficient to
8 Although unauthenticated, Plaintiff’s medical records could be rendered admissible at
trial and DeGuzman does not challenge their authenticity. See Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial may be
considered on summary judgment); see also Aholelei v. Hawaii Dept. of Public Safety, 220
Fed. Appx. 670 (9th Cir. 2007); Foster v. Statti, 2013 WL 5348098, at *12 (E.D. Cal. Sept.
23, 2013), adopted, 2014 WL 931830 (E.D. Cal. Mar. 7, 2014) (considering
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 13 of
22
14
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
show he suffers from “significant and permanent injuries in his right hand from the blunt
force impact between the cell door and the door frame,” (id. at 19), and the “fact that
force was used unnecessar[ily] against [him] ... is in itself evidence that ... DeGuzman
was acting ‘maliciously and sadistically.’” (Id.)
D. Cruel and Unusual Punishment
As an initial matter, the Court notes that the Eighth Amendment violations alleged
against DeGuzman in Count 1 of Plaintiff’s SAC are twofold. First, he claims DeGuzman
committed an act of “battery” against him by closing his cell door with malicious and
sadistic intent to do harm. (See SAC at 17 ¶¶ 79, 84.) Second, Plaintiff contends
DeGuzman acted with “deliberate indifference” by “creat[ing] an unreasonable risk of
serious harm“ and “fail[ing] to respond reasonably” to the danger posed by his
malfunctioning cell door. (Id. ¶¶ 80, 83, 85.)
In general, an Eighth Amendment violation occurs only when an inmate is
subjected to the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S.
312, 319 (1986); Jeffers v. Gomez, 267 F.3d 895, 900 (9th Cir. 2001). Negligence is
insufficient to constitute cruel and unusual punishment because “[i]t is obduracy and
wantonness, not inadvertence or error in good faith, that characterize the conduct
prohibited by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.
Accidents alone are not constitutional violations. See Estelle v. Gamble, 429 U.S. 97, 106
(1976) (“An accident, although it may produce added anguish, is not on that basis alone
to be characterized as wanton infliction of unnecessary pain.”);
Thus, with respect to Plaintiff’s first claim that DeGuzman “battered” him with the
cell door, the “core judicial inquiry” is “whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and sadistically for the very purpose of
unauthenticated prison medical records on summary judgment because the documents
could be made admissible at trial).
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 14 of
22
15
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
causing harm.” Hudson v. McMillian, 503 U.S. 1, 6 (1992) (extending Whitley’s Eighth
Amendment analysis from prison riots to “whenever guards use force to keep order.”);
Wilkins v. Gaddy, 559 U.S. 34, 40 (2010). In making this determination, courts consider
factors such as: (1) extent of the injury, (2) need to use the force, (3) relationship between
the need and the amount of force used, (4) the threat “reasonably perceived” by the
officials, and (5) “any efforts made to temper the severity” of the force. Hudson, 503 U.S.
at 7 (citations omitted).
Ultimately, however, Plaintiff must show more than “merely objectively
unreasonable force,” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002), in order to
prove that DeGuzman acted in bad faith with the intent to harm him. Wilkins, 559 U.S. at
37; Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 795 (9th Cir. 2018); Hoard v.
Hartman, 904 F.3d 780, 790 (9th Cir. 2018). “[T]he phrase ‘maliciously and sadistically’
serves a predominantly rhetorical function. Rather than create additional elements for
[the] plaintiff[] to satisfy, the use of these two terms emphasizes the cruelty inherent in
harming an inmate for no other reason than to cause harm.” Hoard, 904 F.3d at 789
(citing Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 n.1
(3d Cir. 2001) (explaining that “[t]he use of the term ‘sadistic’ in this standard is
something of a misnomer,” because “[p]recedent does not require that the alleged
offender take pleasure or satisfaction from the injury, as the term entails, but rather only
that the offender intended harm.”); see also Jeffers v. Gomez, 267 F.3d 895, 912 (9th Cir.
2001) (affirming summary judgment on behalf of correctional officers because there was
an “absence of evidence showing that either officer acted purposely to injure” and the
officers’ actions did not suggest “malice or sadism or otherwise create an inference of
impermissible motive.”).
With respect to Plaintiff’s claim that DeGuzman failed to “respond reasonably”
and acted with “deliberate indifference” to his “Eighth Amendment [r]ights,” see SAC at
17 ¶¶ 80, 85, he must prove that DeGuzman was not only “aware of the facts from which
the inference could be drawn that a substantial risk of serious harm exist[ed],’” but also
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 15 of
22
16
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that DeGuzman “also dr[e]w the inference.’” Toguchi v. Chung, 391 F.3d 1051, 1057,
1060 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837).
Thus, DeGuzman may be held liable under the Eighth Amendment only if
evidence suggests he closed cell door 201 with conscious disregard of a “substantial risk”
that Plaintiff would suffer serious injury as a result. Farmer, 511 U.S. at 834 (citing
Helling v. McKinney, 509 U.S. 25, 35 (1993)); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th
Cir. 2009). If, on the other hand, the evidence merely suggests DeGuzman “should have
been aware of the risk, but was not, then [he] has not violated the Eighth Amendment, no
matter how severe the risk.” Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th
Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060
(9th Cir. 2016). Plaintiff must point to evidence sufficient to show a genuine dispute as to
whether DeGuzman was “subjectively aware of the risk” posed by his cell door; “it is not
enough that [DeGuzman] objectively should have recognized the danger but failed to do
so.” Jeffers, 267 F.3d at 914 (citing Farmer, 511 U.S. at 838).
In short, deliberate indifference, like the malicious and sadistic intent required to
support an excessive force claim, is a “high legal standard,” above that required to
establish liability for negligence. Toguchi, 391 F.3d at 1060; Farmer, 511 U.S. at 835
(deliberate indifference requires evidence of “a state of mind more blameworthy than
negligence” and “‘more than ordinary lack of due care for the prisoner’s interests or
safety.’” (quoting Whitley, 475 U.S. at 319).
E. Discussion
Based on the evidence in the record before it, and in light of the relevant law, the
Court finds, for the reasons set forth below, that no genuine dispute exists as to whether
DeGuzman closed Plaintiff’s cell door on April 6, 2015 with the malicious and sadistic
intent necessary to support an Eighth Amendment violation. Hudson, 503 U.S. at 6. The
Court further finds no genuine dispute as to whether DeGuzman acted with deliberate
indifference to a serious risk to Plaintiff’s health or safety when he closed Plaintiff’s cell
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 16 of
22
17
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
door.
9 Farmer, 511 U.S. at 834. Therefore, Defendant DeGuzman is entitled to summary
judgment pursuant to Fed. R. Civ. P. 56(a).
DeGuzman attests he opened cell door 201 on April 6, 2015, at the request of one
the floor officers, so Plaintiff could leave to attend an appointment, and then closed it
after he was informed the inmate in cell 201 needed more time to get ready.10
(DeGuzman Decl. ¶ 4.) Both DeGuzman, the officer charged with the responsibility to
control all inmate movement in Housing Unit #11, and Rodrin, the floor officer who
authorized the release of individual inmates educated to attend appointments elsewhere,
9
The Court notes that a portion of DeGuzman’s Motion assumes Plaintiff’s Eighth
Amendment “deliberate indifference” claims are premised on an alleged failure to provide
adequate medical care for his injuries. (See Def.’s P&As at 17-19.) While it is true Plaintiff
alleges to have “waited a couple minutes expecting ... DeGuzman [to] provide[] him with
emergency medical care services,” see SAC at 8 ¶ 33, the gravamen of his Eighth
Amendment claims as alleged against DeGuzman in “Count 1” focus primarily on
DeGuzman’s “battery,” and his “use [of] the [cell] door as a deadly weapon.” (SAC ¶ 27.)
While he contends DeGuzman acted with both malicious and sadistic intent and with
deliberate indifference when he closed cell door 201 on April 5, 2015, see id. ¶¶ 78-90,
Plaintiff’s Eighth Amendment inadequate medical care claims are alleged solely against
Correctional Officer Rodrin and RN Calderon. (See id., “Second Cause of Action” ¶¶ 91-
101.) All claims as to both those parties have already been dismissed. (See ECF 49 at 15-
16.)
10 Plaintiff contends he had no appointment on that day, and did not request five to ten
minutes to get ready “because no appointment [e]xisted.” (See Pl.’s Decl. ¶ 10.) Instead,
both he and Rocha claim that when the cell door opened 5 or 6 inches at approximately
7:20 a.m., they “were ready to go the dining room to eat ... breakfast.” (Id. ¶ 11; Rocha
Decl., ECF No. 71 at 38.) While it is true the parties offer differing justifications as to why
DeGuzman opened cell door 201 that morning, this factual dispute is not material as to
whether DeGuzman violated the Eighth Amendment when he closed the door and caused
Plaintiff’s injury. See Anderson, 477 U.S. at 248 (“Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). “[M]ere disagreement or the bald assertion that a genuine issue of
material fact exists” does not preclude summary judgment. Harper v. Wallingford, 877
F.2d 728, 731 (9th Cir. 1989); Disney Enterprises, Inc. v. VidAngel, Inc., 371 F. Supp. 3d
708, 714 (C.D. Cal. 2019).
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 17 of
22
18
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
deny having any knowledge of a cell door malfunction either before or after April 6,
2015. (See DeGuzman Decl. ¶ 8; Rodrin Decl. ¶ 7.) Even if Plaintiff “informed ... the
officers of the building about the problem with his door,” he does not identify either
DeGuzman or Rodrin as one of those officers. (See Pl.’s Decl. ¶ 14). And while
Plaintiff’s cellmate J. Rocha corroborates his claims that the “door d[id] not work good,”
and that “everytime [they] ha[d] to get out of [their] cell, ... [they] ha[d] to pull it open,”
(Rocha Decl., ECF No. 71 at 38-39), Rocha offers no independent or corroborating
testimony to substantiate Plaintiff’s claims that DeGuzman knew the door was broken,
actually witnessed Plaintiff “trying to pull the door,” or saw or was in a position from
which he could see Plaintiff’s hand was in danger of being “clinched” by the door when
he closed it from his post in Housing Unit #11’s control booth. (Cf. Pl.’s Decl. ¶ 12.)
Both DeGuzman and Rodrin further attest that the mechanical cell doors in
Housing Unit #11 “move[] slowly when opening and closing,” that “[i]t takes
approximately four seconds for the door to fully open or close,” and that “there is a sound
of metal engaging the closing mechanism warning the inmate that the door is about to
close.” (DeGuzman Decl. ¶ 6; Rodrin Decl. ¶ 6.) Both also swear that “even if [the cell
door] was open only five to six inches when the inmate put his hand on the door,” as
Plaintiff claims happened here (see Pl.’s Decl. ¶ 11), “it would be nearly impossible for
[him] to be unable to remove his hand ... if it began to close.” (DeGuzman Decl. ¶ 6;
Rodrin Decl. ¶ 6.) These sworn allegations are uncontroverted; in fact, Plaintiff himself
offers testimony that arguably corroborates Defendant’s description as to the warning
noise the cell door makes when the closing mechanism engages. He admits under penalty
of perjury that he “heard the door shackle” before he inserted his hand in the cell door
opening, and he offers no contrary testimony and points to no evidence in the record
which shows why or whether he was unable to remove his hand in the time both
DeGuzman and Rodrin attest it takes for the cell door to fully shut. (See Pl.’s Decl. ¶ 11.)
Although “[t]he evidence of [non-movant] is to be believed, and all justifiable inferences
are to be drawn in his favor,” Plaintiff “must do more than simply show that there is some
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 18 of
22
19
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., 475 U.S.
at 587. He cannot avoid summary judgment by relying solely on conclusory allegations
unsupported by admissible facts in the record. See Taylor v. List, 880 F.2d 1040, 1045
(9th Cir.1989); see also Romero v. Nevada Dep’t of Corr., No. 2:08-CV-808-JAD-VCF,
2013 WL 6206705, at *10 (D. Nev. Nov. 27, 2013) (summary judgment warranted where
pro se prisoner failed to offer admissible evidence to contradict prison official’s verified
interrogatory responses as to a material dispute).
Plaintiff also points to no evidence to contradict DeGuzman’s testimony that as the
Control Booth Officer, it was “nearly impossible for [him] to fully view cell 201 over
[his] left shoulder” while he was simultaneously facing the control panel in the center of
the Housing Unit, and pressing and holding the cell door button down. (DeGuzman Decl.
¶ 6.) In his Opposition Plaintiff argues that DeGuzman “did not need[] to face the control
panel when opening a cell door,” and that DeGuzman’s claims are “contrary to the
standard used by the rest of the officer[s] working in the control[] booth[s].” (See ECF
No. 71 at 15.) But these allegations are not included in his sworn Declaration, and
Plaintiff points to no other admissible evidence in the record to contradict DeGuzman’s
sworn testimony as to either the mechanics of the control booth’s door operation or the
physical floor plan of Housing Unit #11, which offers further corroboration of
DeGuzman’s description of cell 201’s location and his line of vision. (See ECF No. 67-
9.) “[L]egal memoranda and oral argument are not evidence, and they cannot by
themselves create a factual dispute sufficient to defeat a summary judgment motion
where no dispute otherwise exists.” British Airways Bd. v. Boeing Co., 585 F.2d 946, 952
(9th Cir. 1978); see also Perez v. VITAS Healthcare Corp. of California, No.
CV161681DSFAJWX, 2017 WL 5973294, at *1 (C.D. Cal. Mar. 29, 2017), aff’d sub
nom. Perez v. Vitas Healthcare Corp., 739 F. App’x 405 (9th Cir. 2018).
Finally, Plaintiff attests he looked in DeGuzman’s direction when he inserted his
hand in the cell door opening in order to “make sure he was ready to keep[] the door
open,” and he claims DeGuzman “revealed ... his malicious and sadistic plan” by
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 19 of
22
20
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“ma[king] a sign” indicating that he enjoyed “setting [him] up.” (Pl.’s Decl. ¶ 15.)
Plaintiff does not describe DeGuzman’s “sign” however, and his cellmate Rocha, who
swears to have witnessed the incident, does not corroborate Plaintiff’s claims that
DeGuzman made any such gesture. (Cf. Rocha Decl., ECF No. 71 at 38-39.) Plaintiff
speculates that DeGuzman’s actions were “premeditated” and that he “wanted to hurt
[him]” as part of a “buddy system ... where most all Correctional Staff ... side with one
another ... against prisoners who are viewed as ... troublemakers, or those [who] write
grievances against staff.” (FAC at 3-4 ¶ 5.) Plaintiff further suggests the letter he wrote to
the Inspector General regarding Correctional Officer Orosco in March 2015 is related to
his April 6, 2015 injury, because “weeks after, [he wrote it he] was battered [by]
defendant M. DeGuzman.” (Id. at 4-5 ¶¶ 5, 10-11.)
But bare and unsworn assertions such as these, which are not supported by any
other admissible evidence in the record, do not preclude summary judgment. California
Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th
Cir. 1987). Moreover, DeGuzman swears he made no such “sign” and he attests he never
had any animosity toward Plaintiff whatsoever. (DeGuzman Decl. ¶ 9.) In fact, Plaintiff
admitted during his deposition testimony that he had no prior interactions with
DeGuzman and “ha[d] no proof” of any connection between Officer Orosco in Building
15 and DeGuzman in Building 11. Plaintiff further admitted under penalty of perjury that
he “never s[aw] Officer [Oro]sco talking to Officer DeGuzman,” and he “d[idn’t] know if
they are friend[s].” (See ECF No. 67-2, Ex. A “Deposition of Leandro Leonel Gonzalez”
at 4-5.)
“Unsupported speculation as to [a] defendants’ intent toward plaintiff is wholly
insufficient to support a claim at summary judgment.” Lawson v. Tehama Cty., No. 2:17-
CV-01276-TLN-CKD-PS, 2019 WL 636852, at *6 (E.D. Cal. Feb. 14, 2019). A
“[p]laintiff’s characterization of defendant’s actions, and speculation about defendant’s
intent, do not constitute admissible evidence and [may] be disregarded.”); Kessler v.
Hight, No. 2:16-CV-01930-TLN-AC-PS, 2018 WL 1806460, at *3 (E.D. Cal. Apr. 17,
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 20 of
22
21
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2018); Lawrence v. City & Cty. of San Francisco, 258 F. Supp. 3d 977, 993 (N.D. Cal.
2017) (finding plaintiff lacked personal knowledge to competently testify about the
meaning behind defendant’s smile, and granting summary judgment because plaintiff
offered only “simpl[e] speculation” but no other corroborating admissible facts as to
defendant’s intent). “[M]ere speculation for the critical facts, without a showing of
foundation in personal knowledge[ ] for the facts claimed to be at issue,” is an
insufficient basis upon which a reasonable jury could return a verdict in Plaintiff’s favor.
John M. Floyd & Assoc., Inc. v. Tapco Credit Union, 550 Fed. App’x. 359, 360 (9th Cir.
2013); see also Matsushita Elec. Indus. Co., 475 U.S. at 586-87 (the non-movant “must
do more than simply show that there is some metaphysical doubt as to the material facts”
by “com[ing] forward with ‘specific facts showing that there is a genuine issue for
trial.’”); Dark v. Curry County, 451 F.3d 1078, 1082 (9th Cir. 2006) (“[T]he nonmoving
party simply is required to show specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.”). “[A] complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex, 477 U.S. at 322.
Therefore, based on the evidence presented, the Court finds no reasonable trier of
fact could conclude that DeGuzman knew Plaintiff had placed his hand in cell 201’s door
opening on April 5, 2015, and intentionally closed it either with deliberate indifference to
a serious risk to Plaintiff’s health or safety, or with malicious and sadistic intent to cause
Plaintiff harm. Accordingly, DeGuzman is entitled to summary judgment as to Plaintiff’s
Eighth Amendment claims.
11
11 Because the Court finds no genuine dispute as to any Eighth Amendment violation, it
need not further decide whether DeGuzman is also entitled to qualified immunity. See
Greisen v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019) (“In resolving whether a
government official is entitled to qualified immunity, a court ‘must decide whether the
facts that a plaintiff has alleged or shown make out a violation of a constitutional right,’
and, if so, ‘whether the right at issue was “clearly established” at the time of defendant’s
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 21 of
22
22
3:17-cv-00241-GPC-BGS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
V. Conclusion and Order
In light of the above, the Court GRANTS Defendant’s Motion for Summary
Judgment pursuant to Fed. R. Civ. P. 56(a) [ECF No. 67] and DIRECTS the Clerk of the
Court to enter judgment in favor of Defendant M. DeGuzman and to close the file.
IT IS SO ORDERED.
Dated: September 4, 2019
alleged misconduct.’””) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citations
omitted); Saucier v. Katz, 533 U.S. 194, 201 (2001)). However, when “[t]aken in the light
most favorable to the party asserting the injury, ... the facts alleged [do not] show the
officer’s conduct violated a constitutional right,” Saucier, 533 U.S. at 201, “the question
of immunity becomes moot.” Gonzalez v. City of Anaheim, 747 F.3d 789, 798 (9th Cir.
2014) (citing Pearson, 555 U.S. at 236); see also Lacey v. Maricopa Cty., 693 F.3d 896,
915 (9th Cir. 2012) (“If [the court] answer[s] the first of the two inquiries in the negative,
then the officer’s conduct was constitutional, and there can be no violation of § 1983. The
officer has no need for immunity; he is innocent of the alleged infractions.”).
Case 3:17-cv-00241-GPC-BGS Document 75 Filed 09/04/19 PageID.<pageID> Page 22 of
22 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-01868/USCOURTS-caed-2_04-cv-01868-2/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LORENZO CARL PAYNES,
Plaintiff, No. CIV S-04-1868 MCE KJM P
vs.
D.L. RUNNELS, et al.,
Defendants. ORDER
/
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action
filed pursuant to 42 U.S.C. § 1983. By order filed May 5, 2005, plaintiff's complaint was
dismissed with leave to file an amended complaint. Plaintiff has now filed an amended
complaint.
The amended complaint states a cognizable claim for relief under 42 U.S.C.
§ 1983 and 28 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven,
plaintiff has a reasonable opportunity to prevail on the merits of this action.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following defendants: Runnels, Woodford,
Tuttin, and Felker.
/////
Case 2:04-cv-01868-MCE -KJM Document 10 Filed 12/30/05 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
2. The Clerk of the Court shall send plaintiff four USM-285 forms, one
summons, an instruction sheet and a copy of the amended complaint filed May 23, 2005.
3. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form for each defendant listed in number 1
above; and
d. Five copies of the endorsed amended complaint filed May 23, 2005.
4. Plaintiff need not attempt service on defendants and need not request waiver of
service. Upon receipt of the above-described documents, the court will direct the United States
Marshal to serve the above-named defendants as provided by Federal Rule of Civil Procedure 4
without payment of costs.
DATED: December 29, 2005.
______________________________________
UNITED STATES MAGISTRATE JUDGE
2
payn1868.1amd
Case 2:04-cv-01868-MCE -KJM Document 10 Filed 12/30/05 Page 2 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LORENZO CARL PAYNES,
Plaintiff, No. CIV S-04-1468 MCE KJM P
vs.
D.L. RUNNELS, et al., NOTICE OF SUBMISSION
Defendants. OF DOCUMENTS
/
Plaintiff hereby submits the following documents in compliance with the court's
order filed :
1 completed summons form
4 completed USM-285 forms
5 copies of the 5/23/05
Amended Complaint
DATED:
Plaintiff
Case 2:04-cv-01868-MCE -KJM Document 10 Filed 12/30/05 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_15-cv-00098/USCOURTS-almd-2_15-cv-00098-0/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | 1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JESSIE LEE HOWELL, #183 960, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:15-CV-98-MHT
) [WO]
RICHARD ALLEN, et al., )
)
Defendants. )
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, an inmate incarcerated at the Limestone Correctional Facility in Harvest,
Alabama, filed this complaint on February 5, 2015. Subsequently, and prior to the filing
of an answer and special report, Plaintiff filed a document which the court considers a
notice of dismissal. Doc. No. 12.
Under Federal Rule of Civil Procedure 41(a)(1)(A), “the plaintiff may dismiss an
action without a court order by filing: (i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment; or (ii) a stipulation of
dismissal signed by all parties who have appeared in the action.” “Ordinarily, a Rule
41(a)(1)(A) voluntary dismissal is effective immediately and requires no action by the
district court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999).
Because a voluntary dismissal is self-executing, it may precede any analysis of subjectmatter jurisdiction and moots all pending motions. Id.
Case 2:15-cv-00098-MHT-WC Document 13 Filed 04/13/15 Page 1 of 3
2
A plaintiff may properly effect a Rule 41(a)(1)(A) dismissal by filing a “notice of
dismissal.” Fed. R. Civ. P. 41(a)(1)(A)(i). The court, therefore, will consider Plaintiff’s
April 9, 2015, pleading, captioned as a Notice, as a notice of dismissal within the
meaning of Fed. R. Civ. P. 41(a)(1)(A)(i).
In light of the foregoing, the court concludes this case is due to be dismissed
without prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i).
Accordingly, it is
ORDERED that Plaintiff’s April 9, 2015, pleading (Doc. No. 12) is considered a
notice of dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i).
It is the RECOMMENDATION of the Magistrate Judge that this case be
DISMISSED without prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i). See Doc. No. 12.
It is further
ORDERED that Plaintiff may file any objections to the said Recommendation on
or before April 27, 2015. Any objections filed must specifically identify the findings in
the Magistrate Judge’s Recommendation to which the party is objecting. Frivolous,
conclusive, or general objections will not be considered by the District Court. Plaintiff is
advised that this Recommendation is not a final order of the court and, therefore, it is not
appealable.
Failure to file written objections to the proposed findings and recommendations in
the Magistrate Judge’s report shall bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar the party from attacking on
appeal factual findings in the report accepted or adopted by the District Court except
Case 2:15-cv-00098-MHT-WC Document 13 Filed 04/13/15 Page 2 of 3
3
upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404
(5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see
also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as
binding precedent all of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981).
Done this 13th day of April, 2015.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
Case 2:15-cv-00098-MHT-WC Document 13 Filed 04/13/15 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_21-cv-01403/USCOURTS-caed-2_21-cv-01403-5/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICHARD GOSZTYLA,
Plaintiff,
v.
FRENCH, et al.,
Defendants.
No. 2:21-cv-01403-TLN-EFB P
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in this action brought under 42
U.S.C. § 1983. Defendants seek dismissal of the case, arguing that plaintiff’s claim fails as a
matter of law. ECF No. 18. For the reasons that follow, the court finds that the motion must be
denied.
I. Plaintiff’s Allegations
In his complaint, plaintiff alleges:
On March third 2018 Officer French and Officer Pfeifer stormed my residence
without announcing themselves and kicked in the bedroom door occupied by my
wife and myself. After they kicked the door in, these two defendants ordered my
wife and myself to the ground, we immediately complied. While I was face down
on the ground, Officer French kicked me on my left side causing serious injury.
Immediately after this, Officer Pfeifer kicked me in the face.
After taking turns beating and kicking me, Officer Pfeifer struck me in the back of
my head with his rifle. At no time did my wife or I put up a struggle or resist in
any way. At the same time all of this was going on, Officer Burnett watched as
his partners beat and kicked me without so much as a word to his partners to stop.
ECF No. 1 at 5.
Case 2:21-cv-01403-DJC-EFB Document 24 Filed 04/22/22 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
II. The Motion to Dismiss
A. Legal Standards Governing Motions to Dismiss
A complaint may be dismissed for “failure to state a claim upon which relief may be
granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability
requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully.
Iqbal, 556 U.S. at 678.
Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal
theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d
at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the
claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In resolving a Rule
12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to
the plaintiff and accept all well-pleaded factual allegations as true (and any reasonable inference
supported by the facts). Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
For purposes of dismissal under Rule 12(b)(6), the court generally considers only
allegations contained in the pleadings, exhibits attached to the complaint, and matters properly
subject to judicial notice, and construes all well-pleaded material factual allegations in the light
most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710
F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
B. Analysis
Defendants seek to dismiss plaintiff’s complaint because plaintiff asserted his excessive
force claim against them under the Eighth Amendment and that Amendment does not govern
excessive force claims brought by arrestees.
/////
Case 2:21-cv-01403-DJC-EFB Document 24 Filed 04/22/22 Page 2 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
The fact that plaintiff cited the wrong constitutional amendment in his complaint is not a
legitimate basis for dismissal. The Constitution does not sanction excessive force by officers
against arrestees simply because they have not yet been jailed or convicted. Such claims, while
not governed by the Eighth Amendment, are governed by the Fourth Amendment’s prohibition
on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989). Federal Rule of Civil
Procedure 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Plaintiff’s complaint meets this standard. See, e.g., Tennyson v. Hatton, No.
6:16-cv-1206, 2020 U.S. Dist. LEXIS 900971, at *8 (E.D. Tex. Apr. 2, 2020) (“[T]he fact that a
pro se plaintiff may have cited the wrong constitutional provision does not provide a basis upon
which to dismiss the claim in light of the liberality accorded to pro se pleadings.”); Stewart v.
Kinch, No. 12-1509, 2012 U.S. Dist. LEXIS 180614, at *17 n.4 (E.D. Pa. Dec. 20, 2012) (same).
Here, plaintiff has alleged enough factual content to allow the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged as excessive force. It is clear that
if the factual allegations are true, those actions would violate the Fourth Amendment’s
prohibition of excessive force. See Graham, 490 U.S. at 394.
III. Recommendation
For the reasons provided above, it is hereby RECOMMENDED that defendants’ February
28, 2022 motion to dismiss (ECF No. 18) be denied.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
within the specified time may waive the right to appeal the District Court’s order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: April 21, 2022.
Case 2:21-cv-01403-DJC-EFB Document 24 Filed 04/22/22 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_07-cv-00227/USCOURTS-cand-4_07-cv-00227-2/pdf.json | 422 | Bankruptcy Appeals Rule 28 USC 158 | 28:1334 Bankruptcy cases and proceedings under title 11 | -1-
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Motion for Administrative Relief to Consider Whether Cases Should be Related or a
Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been
filed. The time for filing an opposition or statement of support has passed. As the judge
assigned to the earliest filed case below that bears my initials, I find that the more recently filed
case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall
be reassigned to me. Any cases listed below that are not related to the case assigned to me are
referred to the judge assigned to the next-earliest filed case for a related case determination.
C 06-06105 PJH Lakusta v. Evans et al
C 07-00227 WHA Lakusta v. US Trustee
I find that the above case is related to the case assigned to me. _________
ORDER
Counsel are instructed that all future filings in any reassigned case are to bear the initials
of the newly assigned judge immediately after the case number. Any case management
conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the
dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly.
Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR
Local Rules remain in effect; and any deadlines established in a case management order continue
to govern, except dates for appearance in court, which will be rescheduled by the newly assigned
judge.
Dated:________________
Judge Phyllis J. Hamilton
Case 4:07-cv-00227-SBA Document 12 Filed 06/26/07 Page 1 of 2
-2-
CLERK’S NOTICE
The court has reviewed the motion and determined that no cases are related and no
reassignments shall occur.
Richard W. Wieking, Clerk
DATED: 5/26/07 By:
Deputy Clerk
Copies to: Courtroom Deputies
Case Systems Administrators
Counsel of Record
Entered into Assignment Program: (date)
Case 4:07-cv-00227-SBA Document 12 Filed 06/26/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-02728/USCOURTS-caed-2_04-cv-02728-14/pdf.json | 190 | Other Contract Actions | 28:1332 Diversity-Contract Default | DLA PIPER RUDNICK
GRAY CARY US LLP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
[PROPOSED] ORDER SEALING THE DECLARATION OF SCOTT W. PINK
CASE NO. S-04-2728 FCD DAD
SCOTT W. PINK (Bar No. 122383)
MATTHEW G. JACOBS (Bar No. 122066)
DLA PIPER RUDNICK GRAY CARY US LLP
400 Capitol Mall, Suite 2400
Sacramento, CA 95814-4428
Tel: 916.930.3200
Fax: 916.930.3201
DAVID PRIEBE (Bar No. 148679)
DAVID BANIE (Bar No. 217924)
RAJIV DHARNIDHARKA (Bar No. 234756)
DLA PIPER RUDNICK GRAY CARY US LLP
2000 University Avenue
East Palo Alto, CA 94303-2248
Tel: 650.833.2000
Fax: 650.833.2001
Attorneys for Plaintiff and Counter Defendant
Meridian Project Systems, Inc.
and Counter Defendant JOHN BODROZIC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MERIDIAN PROJECT SYSTEMS, INC.,
Plaintiff,
v.
HARDIN CONSTRUCTION COMPANY,
LLC, COMPUTER METHODS
INTERNATIONAL CORP.,
Defendants.
AND RELATED COUNTERCLAIM
CASE NO. S-04-2728 FCD DAD
ORDER SEALING THE DECLARATION
OF SCOTT W. PINK
Judge: Hon. Dale A. Drozd
PDF created with pdfFactory trial version www.pdffactory.com
Case 2:04-cv-02728-FCD-DAD Document 179 Filed 05/10/06 Page 1 of 2
DLA PIPER RUDNICK
GRAY CARY US LLP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
[PROPOSED] ORDER SEALING THE DECLARATION OF SCOTT W. PINK
CASE NO. S-04-2728 FCD DAD
At approximately 5:05 p.m. on May 9, 2006, Meridian Project Systems, Inc. filed the
Declaration of Scott W. Pink in Support of Plaintiff’s Motion to Compel Discovery, Document
175 on the docket. This declaration inadvertently contained an attachment containing material
produced as “Confidential” under the terms of the Stipulated Protective Order, entered by the
Court on April 15, 2006. Meridian immediately attempted to contact the Court to have the
declaration removed from the docket.
For good cause appearing, IT IS HEREBY ORDERED that the Declaration of Scott W.
Pink in Support of Plaintiff’s Motion to Compel Discovery, Document 175, is SEALED.
Dated: May 10, 2006
Ddad1/orders.civil/meridian2728.sealingord
PDF created with pdfFactory trial version www.pdffactory.com
Case 2:04-cv-02728-FCD-DAD Document 179 Filed 05/10/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00582/USCOURTS-caed-2_15-cv-00582-4/pdf.json | 863 | Social Security - DIWC/DIWW (405(g)) | 42:405 Review of HHS Decision (DIWW) | STIPULATION & ORDER CASE NO. 2:15-CV-0582-AC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
KATHLEEN MELSON PEART,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CIVIL NO. No.: 2:15-CV-0582-AC
STIPULATION AND ORDER FOR
VOLUNTARY REMAND
PURSUANT TO SENTENCE FOUR OF
42 U.S.C. § 405(g) AND ENTRY OF
JUDGMENT
IT IS HEREBY STIPULATED by the parties, through their undersigned attorneys, and with the
approval of the Court, that Carolyn W. Colvin, Acting Commissioner of Social Security (Defendant or
the Commissioner) has agreed to voluntarily remand this case for further administrative proceedings,
pursuant to sentence four of 42 U.S.C. section 405(g). On remand, the Appeals Council will remand the
case to an administrative law judge (ALJ) for a new hearing and decision. The Appeals Council will
instruct the ALJ to consult a medical advisor to assist in the determination of the appropriate disability
onset date consistent with Social Security Ruling 83-20. The parties further request that the Clerk of the
Case 2:15-cv-00582-AC Document 26 Filed 02/12/16 Page 1 of 2
STIPULATION & ORDER CASE NO. 2:15-CV-0582-AC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court be directed to enter a final judgment in favor of Kathleen M. Peart (Plaintiff), and against
Defendant, reversing the Commissioner’s final decision.
Respectfully submitted,
Dated: February 9, 2016 JESSE S. KAPLAN ATTORNEY AT LAW
By: /s/ Jesse S. Kaplan*
JESSE S. KAPLAN
(*As authorized by e-mail on February 9, 2016)
Attorneys for Plaintiff
Dated: February 9, 2016 BENJAMIN B. WAGNER
United States Attorney
DEBORAH LEE STACHEL
Acting Regional Chief Counsel, Region IX
Social Security Administration
By: /s/ Sharon Lahey
SHARON LAHEY
Special Assistant United States Attorney
Attorneys for Defendant
ORDER
Pursuant to stipulation, and for good cause shown, IT IS SO ORDERED.
DATED: February 11, 2016
Case 2:15-cv-00582-AC Document 26 Filed 02/12/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_06-cv-04543/USCOURTS-cand-4_06-cv-04543-7/pdf.json | 710 | Fair Labor Standards Act | 29:201 Fair Labor Standards Act | UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
IT IS SO ORDERED
Judge Phyllis J. Hamilton
5/29/07
Case 4:06-cv-04543-PJH Document 65 Filed 05/29/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_05-cv-01438/USCOURTS-caed-1_05-cv-01438-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DONALD C. BACHMAN,
Plaintiff,
vs.
M.MELO, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
1:05-CV-1438 OWW LJO P
FIRST INFORMATIONAL ORDER
Plaintiff Donald C. Bachman (“plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. In litigating this action, the parties must
comply with the Federal Rules of Civil Procedure (Fed. R. Civ. P.) and the Local Rules of the United
States District Court, Eastern District of California (Local Rules). This order highlights specific rules
of which the parties should take particular note. FAILURE TO COMPLY WITH THE FEDERAL
RULES, LOCAL RULES, OR A COURT ORDER, INCLUDING THIS ORDER, WILL BE
GROUNDS FOR APPROPRIATE SANCTIONS, UP TO AND INCLUDING DISMISSAL OF THIS
ACTION. Local Rule 11-110; Fed. R. Civ. P. 41(b).
1. Documents intended to be filed with the court by pro se litigants must be mailed to the Clerk
of the Court. Local Rule 5-133(d)(1). All documents improperly mailed to a judge’s chambers will be
Case 1:05-cv-01438-OWW -GSA Document 9 Filed 12/14/05 Page 1 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
When a document is stricken, it becomes a nullity and is not considered by the court for any purpose.
1
2
stricken from the record. A document requesting a court order must be styled as a motion, not a letter. 1
Fed. R. Civ. P. 7.
2. Each document submitted for filing must include the original signature of the filing party or
parties. Local Rule 7-131; Fed. R. Civ. P. 11(a). All documents submitted without the required
signature(s) will be stricken. Each separate document must be bound separately at the top left corner.
Local Rule 7-130(b). If a document is bound behind another document, it will not be filed and will not
enter the court docket.
3. All paper documents filed with the court must be submitted with an additional legible
conformed copy for the court’s use. Local Rule 5-133(d)(2). If the filing party wishes the court to
return a file-stamped copy, he or she must include an additional copy for that purpose (i.e., submit an
original and two copies, one for the court’s use and one to be returned) AND a pre-addressed postage
paid envelope. The court cannot provide copy or mailing service for a party, even for an indigent
plaintiff proceeding in forma pauperis. Copies of documents from the court file may be obtained at the
cost of fifty cents per page.
4. After defendants have appeared in an action by filing a response to the complaint (i.e., an
answer, a motion to dismiss, or a motion for summary judgment), all documents filed with the court
must include a certificate of service stating that a copy of the document was served on the opposing
party. Fed. R. Civ. P. 5; Local Rule 5-135. A document submitted without the required proof of service
will be stricken. Where a party is represented, service on the party’s attorney of record constitutes
effective service.
5. All filings must bear the file number assigned to the action, followed by the initials of the
District Court Judge and the Magistrate Judge to whom the case is assigned and the letter "P." Where
plaintiff simultaneously pursues more than one action, he or she must file separate original documents
and the appropriate number of copies in each action to which the document pertains. Documents
submitted listing more than one case number in the caption will be stricken.
Case 1:05-cv-01438-OWW -GSA Document 9 Filed 12/14/05 Page 2 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 3
6. The court cannot serve as a repository for the parties’ evidence (i.e., prison or medical records,
witness affidavits, etc.). The parties may not file evidence with the court until the course of litigation
brings the evidence into question (for example, on a motion for summary judgment, at trial, or when
requested by the court). Evidence improperly submitted to the court will be stricken.
7. The Eastern District of California converted to an electronic filing, service, and storage
system, effective January 3, 2005. Pro se litigants are exempt from the electronic filing requirement and
must submit all documents to the court in paper. Local Rule 5-133(b)(2). Paper documents submitted
by pro se litigants for filing will be scanned into the electronic court file by the Clerk’s Office. After
being scanned into the electronic court file, the paper documents will be retained in the Clerk’s Office
for a limited period of time and then discarded. Local Rule 39-138(d). For this reason, pro se litigants
are cautioned not to send original exhibits to the court. When it is appropriate for pro se litigants to
submit exhibits to the court (see paragraph 6), the litigants shall retain their original exhibits and send
photocopies to the court.
8. After an answer is filed, the court will issue an order opening discovery, and setting the
deadlines for completing discovery, amending the pleadings, and filing pre-trial dispositive motions.
No discovery may be conducted without court permission until an answer is filed and the court issues
the discovery order. Discovery propounded on a party is self-executing, and must be served directly on
the party from whom discovery is sought; parties should not file copies of their discovery with the court.
Local Rules 33-250, 34-250, 36-250. Discovery documentsinappropriately submitted to the court will
be stricken. Where the response to discovery is unsatisfactory, the party seeking discovery may file a
motion to compel discovery, including a copy of the discovery propounded and the response thereto.
Fed. R. Civ. P. 37. A motion to compel must be accompanied by “a certification that the movant has
in good faith conferred or attempted to confer with the party not making the disclosure in an effort to
secure the disclosure without court action.” Fed. R. Civ. P. 37(a)(2)(A). A discovery motion that does
not comply with all applicable rules will be stricken and may result in imposition of sanctions.
9. Because plaintiff is incarcerated and proceeds pro se, all pre-trial motions will be submitted
without a hearing. Local Rule 78-230(m). The parties are referred to Local Rule 78-230(m) for the
Case 1:05-cv-01438-OWW -GSA Document 9 Filed 12/14/05 Page 3 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 4
briefing schedule on motions.
10. All court deadlines will be strictly enforced. Requests for time extensions must state the
reason the extension is needed and must be filed with the court before the deadline in question. Local
Rule 6-144.
11. A pro se plaintiff has an affirmative duty to keep the court and opposing parties apprised of
his or her address. Local Rule 83-182(f). If a plaintiff moves and fails to file a notice of change of
address, service of court orders at plaintiff's prior address shall constitute effective notice. Id. If mail
directed to plaintiff is returned by the U.S. Postal Service as undeliverable, the court will not attempt
to re-mail it. If the address is not updated within sixty days of the mail being returned, the action will
be dismissed for failure to prosecute. Local Rule 83-183(b).
12. The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court
must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous
or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). The court will direct
the United States Marshal to serve plaintiff’s complaint only after the court has screened the complaint
and determined that it contains cognizable claims for relief against the named defendants. The court has
a large number of prisoner civil rights cases pending before it and will screen plaintiff’s complaint in
due course.
IT IS SO ORDERED.
Dated: December 14, 2005 /s/ Lawrence J. O'Neill
i0d3h8 UNITED STATES MAGISTRATE JUDGE
Case 1:05-cv-01438-OWW -GSA Document 9 Filed 12/14/05 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-02829/USCOURTS-cand-3_09-cv-02829-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JAMES LaVELL HARRIS a/k/a
SMILEY JAMES HARRIS,
Petitioner,
v.
STATE OF CALIFORNIA; et al.,
Respondents. /
No. C 09-2829 SI (pr)
JUDGMENT
This action is dismissed without prejudice to petitioner filing a new habeas action after
he exhausts state court remedies for all the claims he wishes to present in a federal habeas
petition.
IT IS SO ORDERED AND ADJUDGED.
DATED: April 1, 2010
SUSAN ILLSTON
United States District Judge
Case 3:09-cv-02829-SI Document 9 Filed 04/01/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-07-30822/USCOURTS-ca5-07-30822-0/pdf.json | 510 | Prisoner Petitions - Vacate Sentence | null | United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
CHARLES R. FULBRUGE III
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
May 20, 2008
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc
No. 07-30778 USA v. James
USDC No. 2:05-CR-59-2
2:06-CV-5970
----------------------------------------------
Enclosed is a copy of the court's decision. The court has entered
judgment under FED. R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to
attach to your petition for panel rehearing or rehearing en banc an
unmarked copy of the court's opinion or order. Please read carefully
the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40
and 5TH CIR. R. 35 for a discussion of when a rehearing may be
appropriate, the legal standards applied and sanctions which may be
imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a
stay of mandate under FED. R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay or
clearly demonstrate that a substantial question will be presented to
the Supreme Court. Otherwise, this court may deny the motion and issue
the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on
appeal, and are considering filing a petition for certiorari in the
United States Supreme Court, you do not need to file a motion for stay
of mandate under FED. R. APP. P. 41. The issuance of the mandate does
not affect the time, or your right, to file with the Supreme Court.
Sincerely,
CHARLES R. FULBRUGE III, Clerk
By:
Joseph Armato, Deputy Clerk
Enclosure
Mr Mike James
Mr Stephen A Higginson
Mr Maurice Landrieu
Case: 07-30822 Document: 005170130 Page: 1 Date Filed: 05/20/2008 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_03-cv-00545/USCOURTS-almd-2_03-cv-00545-1/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA OF
NORTHERN DIVISION
ANTOINE WARREN, #176283, )
)
Petitioner, )
v. ) CASE NO. 2:03-cv-545-F
) WO
RALPH HOOKS, et al., )
)
Respondents. )
O R D E R
There being no objections filed to the Recommendation of the Magistrate Judge
entered on May 24, 2005 (Doc. #15), said Recommendation is hereby ADOPTED and it is
the ORDER, JUDGMENT and DECREE that the petition for habeas corpus relief pursuant
to 28 U.S.C. § 2254 is DENIED and that the costs of this proceeding are taxed against the
petitioner.
DONE this 23rd day of June, 2005.
/s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE
Case 2:03-cv-00545-MEF-CSC Document 16 Filed 06/23/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_13-cv-04734/USCOURTS-cand-4_13-cv-04734-2/pdf.json | 863 | Social Security - DIWC/DIWW (405(g)) | 42:405 Review of HHS Decision (DIWC) | United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CLARENCE WALKER, JR.,
Plaintiff, No. C 13-4734 PJH
v. ORDER RE MOTIONS
FOR SUMMARY JUDGMENT
CAROLYN W. COLVIN,
Defendant.
_______________________________/
Plaintiff Clarence Walker Jr. (“Walker”) seeks judicial review of the decision by the
Commissioner of Social Security (“the Commissioner”) denying his claim for disability
benefits. This action is before the court on the parties’ cross-motions for summary
judgment. Having carefully reviewed and considered the papers, administrative record,
and relevant legal authority, the court DENIES Walker’s motion for summary judgment, and
GRANTS the Commissioner’s cross-motion for summary judgment as follows.
BACKGROUND
Walker previously filed an application for social security disability insurance (“SSDI”)
benefits on April 1, 2006. (Administrative Record (“A.R.”) 15.) Walker alleged that he
became disabled on November 1, 2005, as a result of injuries to his back, neck, and
shoulders caused by a motor vehicle accident. (A.R. 15.) The Commissioner denied this
prior claim in November 2006. (A.R. 213.) Walker did not appeal, but rather, filed the
current claim on October 29, 2007, alleging the same onset date of disability of November
1, 2005. (A.R. 15.) The claim was initially denied on January 31, 2008, and upon
reconsideration on June 2, 2008. (A.R. 102.) Thereafter, Walker filed a written request for
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 1 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
a hearing on July 31, 2008. Id. Walker, represented by an attorney, appeared and testified
at a hearing held on October 20, 2009, before the Administrative Law Judge (“ALJ”). Id. In
a written decision dated December 30, 2009, the ALJ found that Walker was “not disabled”
within the meaning of the Social Security Act (“the Act”). (A.R. 109.)
Walker appealed, and on May 27, 2011, the Appeals Council granted his Request
for Review, remanding the matter to the ALJ with instructions to give further consideration
to Walker’s maximum residual functional capacity (“RFC”) and provide rationale with
specific references to evidence of record in support of the assessed limitations. (A.R. 115.)
The ALJ was further instructed to obtain supplemental evidence from a vocational expert to
clarify the effect of the assessed limitations (of the claimant’s) on his occupational base. Id.
On September 26, 2011, Walker appeared again at a hearing before the ALJ. (A.R. 31).
By written decision dated November 4, 2011, the ALJ denied Walker’s claim, finding that he
was not disabled. (A.R. 26.)
On January 4, 2012, Walker filed a Request for Review of Hearing Decision. (A.R.
10.) On June 25, 2013, the Appeals Council denied the request for review, making the
ALJ’s decision the final decision of the Commissioner. On October 8, 2013, Walker
brought this action seeking judicial review of the ALJ’s decision pursuant to 42 U.S.C.
§ 405(g).
STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act provides for the payment of disability insurance benefits to
people who have contributed to the social security system and who suffer from a physical
or mental disability. See 42 U.S.C. § 423(a)(1). To evaluate whether a claimant is disabled
within the meaning of the Act, the ALJ is required to use a five-step analysis. See 20
C.F.R. § 404.1520. The ALJ may end the analysis at any step when it is determined that
the claimant is or is not disabled. Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990).
At step one, the ALJ determines whether the claimant is engaged in any “substantial
gainful activity,” which would automatically preclude the claimant from receiving disability
benefits. See 20 C.F.R. § 404.1520(a)(4)(i). If not, at the second step, the ALJ must
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 2 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
consider whether the claimant suffers from a severe impairment which “significantly limits
[the claimant’s] physical or mental ability to do basic work activities.” See 20 C.F.R.
§ 404.1520(a)(4)(ii). The third step requires the ALJ to compare the claimant’s impairment
to a listing of impairments in the regulations. If the claimant’s impairment or combination of
impairments meets or equals the severity of any medical condition contained in the listing,
the claimant is presumed disabled and is awarded benefits. See 20 C.F.R.
§ 404.1520(a)(4)(iii).
If the claimant’s condition does not meet or equal a listing, the ALJ must proceed to
the fourth step to consider whether the claimant has sufficient residual functional capacity
to perform his past work despite the limitations caused by the impairment. See 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant cannot perform his past work, the Commissioner is
required to show, at step five, that the claimant can perform other work that exists in
significant numbers in the national economy, taking into consideration the claimant’s
residual functional capacity, age, education, and work experience. See 20 C.F.R.
§ 404.1520(a)(4)(v).
Overall, in steps one through four, the claimant has the burden to demonstrate a
severe impairment and an inability to engage in his previous occupation. Andrews v.
Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the analysis proceeds to step five, the
burden shifts to the Commissioner to demonstrate that the claimant can perform other
work. Id.
ALJ’s FINDINGS
The ALJ determined that Walker was not under a disability within the meaning of the
Act from November 1, 2005, through the date last insured. Beginning at step one, the ALJ
found that Walker had not engaged in any substantial gainful activity from his alleged onset
date of November 1, 2005, through his date last insured of December 31, 2010. (A.R. 17.)
At step two, the ALJ determined Walker had the following severe impairments: cervicalgia
with radiculitis, chronic back pain, shoulder bursitis, headaches, and obesity. (A.R. 17.)
The ALJ also found that Walker suffered from nonsevere impairments, including tinnitus
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 3 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
with mild sensorineural hearing loss at 3-4 kHz, asthma, mild sleep apnea, and depression.
(A.R. 20.)
At step three, the ALJ determined that Walker did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in
20 C.F.R., Part 404, Subpart P, Appendix 1. (A.R. 21.)
At step four, the ALJ found that Walker had the RFC “to perform light work as
defined in 20 C.F.R. 404.1567(b) except he is limited to occasional reaching out and
overhead.” (A.R. 21.) After determining Walker’s RFC, the ALJ assessed whether Walker
could perform any past relevant work. The ALJ found that Walker had past relevant work
as a carpenter, which was performed at the heavy exertion level per Walker’s testimony.
The ALJ opined that, as Walker was limited to less than the full range of light work, Walker
was unable to perform his past relevant work. (A.R. 25.)
Proceeding to step five, the ALJ determined that, considering Walker’s age,
education, work experience, and residual functional capacity, there were jobs that existed
in significant numbers in the national economy that Walker could perform. (A.R. 25.) In
support of this determination, the ALJ noted that Walker was 52 years old on the date last
insured, had a limited education and was able to communicate in English, and had
acquired work skills from past relevant work that were transferable. Id.
The ALJ called a vocational expert (“VE”) and asked whether jobs existed in the
national economy for an individual with Walker’s age, education, work experience and
RFC. Id. The VE responded positively, identifying three jobs: (1) surveillance monitor,
(2) lobby reception type security, and (3) a host position. (A.R. 25-26.) The VE testified
that there were 6,000 surveillance monitor positions in the regional economy, 6,000 lobby
reception type security positions in the regional economy, and 5,300 host positions in the
regional economy. Id.
The ALJ noted that the VE relied upon statistics released by the Department of
Labor and EDD as well as her expertise for determining the qualifications and number of
positions available in the regional economy for lobby reception type security positions.
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 4 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
(A.R. 26.) In the written decision, the ALJ stated, “[p]ursuant to SSR 00-4p, the
undersigned has determined that the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles.” (A.R. 26.) The ALJ
concluded that though Walker was not able to perform the full range of light work,
considering Walker’s age, education and transferable work skills, Walker was “not disabled”
under the framework of the Medical-Vocational Guidelines, Rule 202.19 and Rule 202.12.
(A.R. 26.) See 20 C.F.R. Part 404, Subpart P, Appx. 2.
STANDARD OF REVIEW
This court has jurisdiction to review a final decision of the Commissioner pursuant to
42 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the ALJ’s findings are
“supported by substantial evidence and if the [ALJ] applied the correct legal standards.”
Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citing Tackett v. Apfel, 180
F.3d 1094, 1097 (9th Cir. 1999)). Substantial evidence “‘means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (quoting Desrosiers v. Sec’y
of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). The evidence must be
“more than a mere scintilla,” but may be “less than a preponderance”. Id. (quoting
Desrosiers, 846 F.2d at 576).
If the evidence is susceptible to more than one rational interpretation, the court must
uphold the ALJ’s findings if they are “‘supported by inferences reasonably drawn from the
record.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)). The court may not
reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674
F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050,
1055-56 (9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556
U.S. 396, 409 (2009)).
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 5 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
ISSUES
Walker seeks reversal of the Commissioner’s denial of benefits on the following
grounds:
(1) At step five, the ALJ failed to resolve the conflicts between the
Dictionary of Occupational Titles (“DOT”) and the vocational expert’s
testimony regarding the availability of alternate occupations for
Walker, as required by Social Security Ruling 00-4p.
(2) The ALJ relied on the VE’s erroneous testimony misidentifying the
host occupation.
DISCUSSION
I. Alleged Conflicts Between DOT and VE’s Testimony
A. Surveillance Monitor Job
1. Alleged Discrepancy
Walker argues that the DOT defines the occupation of surveillance system monitor
to require sedentary work, but that the VE testified that the “job is light,” implying that the
job requires “light work” exertion. Pl’s Mot. at 14. See DOT 379.367-010, 1991 WL 673244
(Surveillance-system Monitor; “STRENGTH: Sedentary Work”). Walker contends that the
ALJ erred in failing to ask the VE about the variance between the sedentary work
requirement for the surveillance system monitor job described in the DOT, and the VE’s
testimony that the job requires light work. The record demonstrates, however, that both the
VE and the ALJ stated that the surveillance monitor job is “sedentary.” (A.R. 25, 53.) The
VE did not, therefore, misstate the exertion level of the surveillance monitor job, and there
was no discrepancy between the vocational testimony and the DOT.
2. Harmless Error
Walker also argues that the ALJ failed to ask the VE whether her testimony was
consistent with the DOT and failed to address any discrepancy. Pl’s Mot. at 16-18. Walker
cites out of circuit authority for the proposition that “before an ALJ may rely on expert
vocational evidence as substantial evidence to support a determination of nondisability, the
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 6 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
ALJ must ask the expert how his or her testimony as to the exertional requirement of
identified jobs corresponds with the [DOT], and elicit a reasonable explanation for any
discrepancy on this point.” Pl’s Mot. at 16 and n.117 (citing Poppa v. Astrue, 569 F.3d
1167, 1173 n.6 (10th Cir. 2009)). Walker contends that the ALJ’s failure to make this
inquiry prevents the court from determining whether substantial evidence supports the
ALJ’s finding that Walker can perform other work, suggesting that the ALJ’s failure to ask
the VE this specific question should, per se, render the ALJ’s decision unsupported by
substantial evidence.
In Massachi v. Astrue, the Ninth Circuit recognized the procedural requirements of
SSR 00-4p:
SSR 00–4p unambiguously provides that “[w]hen a [vocational
expert] ... provides evidence about the requirements of a job
or occupation, the adjudicator has an affirmative responsibility
to ask about any possible conflict between that [vocational
expert] ... evidence and information provided in the [Dictionary
of Occupational Titles ].” SSR 00–4p further provides that the
adjudicator “will ask” the vocational expert “if the evidence he
or she has provided” is consistent with the Dictionary of
Occupational Titles and obtain a reasonable explanation for
any apparent conflict.
Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). “The procedural
requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a
vocational expert's testimony, particularly in cases where the expert's testimony conflicts
with the Dictionary of Occupational Titles.” Id. at 1153.
The Commissioner concedes that the ALJ did not expressly ask the VE whether his
testimony was consistent with the DOT, but contends that the error was harmless because
there was no actual conflict. Def.’s Opp./Cross-Mot. at 3 (citing Massachi, 486 F.3d at
1154 n.9). Because the record demonstrates that there was no actual conflict between the
VE’s testimony and the DOT listing as to the exertional requirement of the surveillance
monitor job, the ALJ’s failure to question the VE about the consistency was harmless
procedural error. See Massachi, 486 F.3d at 1154 n.19; Poppa 569 F.3d at 1173
(“Although we agree that the ALJ erred by not inquiring about whether there were any
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 7 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
conflicts between the VE's testimony about the job requirements for the jobs identified and
the job descriptions in the DOT, we conclude that this error was harmless because there
were no conflicts.”).
3. Sedentary Exertional Level
Walker argues that because he was found able to perform “light work,” the ALJ could
not properly rely on the VE’s testimony about a “sedentary work” occupation to deny his
claim. Pl’s Reply at 3. The regulations provide, however, that “[i]f someone can do light
work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20
C.F.R. § 404.1567. Here, Walker was found to have an RFC to perform light work, and has
not identified any limiting factors that would prevent him from doing sedentary work, which
requires less physical exertion than light work. Thus, the ALJ did not err by relying on the
VE testimony to find that Walker could perform the sedentary occupation of surveillance
monitor.
Furthermore, the VE’s testimony that there were 6,000 such jobs in the regional
economy provided substantial evidence to support the ALJ’s step five finding that Walker
was able to do other work and was not disabled. See Gutierrez v. Comm'r of Soc. Sec.,
740 F.3d 519, 528 (9th Cir. 2014) (the ALJ's finding of 2,500 jobs in the state satisfied the
statutory standard for significant number of jobs); Barker v. Sec'y of Health & Human
Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (holding that 1,266 regional jobs constituted
“significant” number).
B. Lobby-Type Security Guard
Walker contends that the VE’s testimony conflicted with the DOT with respect to the
frequency of reaching required by the occupation of lobby security guard. The ALJ found
that Walker was limited to only “occasional reaching out and overhead,” but “no problem
with the hands in front of you, whether it be sitting or standing.” (A.R. 21, 52, 53.) The
DOT listing for the occupation of security guard indicates that the job involves reaching
“frequently - [e]xists from 1/3 to 2/3 of the time.” DOT No. 372.667-034, 1991 WL 673100.
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 8 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
Available at
http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR85-15-di-02.html.
9
Walker argues that this occupation cannot sustain the Commissioner’s burden at step five
because the VE’s testimony that Walker could perform this job was inconsistent with the
DOT, without persuasive evidence to support the deviation. Pl’s Mot. at 18 and n.124
(citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (“an ALJ may rely on expert
testimony which contradicts the DOT, but only insofar as the record contains persuasive
evidence to support the deviation”)). Walker notes that Social Security Ruling 85-15
defines “reaching” as “extending the hands and arms in any direction.” SSR 85-15.1
The Commissioner contends that the ALJ did not restrict Walker’s general ability to
reach at all, only limiting his ability to reach out or overhead to be occasional. Def’s
Opp./X-Mot. at 3-4. The Commissioner argues that the DOT is silent as to the types of
reaching required to perform the job, and that where the DOT is silent, there is no apparent
conflict with the VE’s testimony. The Commissioner concedes that the Ninth Circuit has not
issued precedential rulings on the question whether the DOT’s silence on an issue creates
an apparent conflict with a VE’s testimony. The Commissioner does not cite relevant
authority addressing limitations on reaching, but cites district court decisions holding that a
VE’s testimony with respect to a sit/stand option did not create a conflict with the DOT
which is silent on the availability of sit/stand options. Id. at 4-5 (citing authorities).
Notwithstanding the authorities recognizing that the DOT does not address sit/stand
options, Walker has demonstrated that the DOT occupational listing specifies limitations on
reaching, though not enumerating the possible directions or types of reaching.
Walker has demonstrated an apparent conflict between the VE’s testimony and the
DOT listing for the lobby security occupation, which requires frequent, not occasional,
reaching. The record is not clear as to why the ALJ relied on the VE’s testimony that
Walker could perform the job of security jobs, “mainly lobby reception type security,”
without explaining the conflict between the expert's testimony and the DOT. Massachi, 486
F.3d at 1153-54. See also Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006) (“It is
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 9 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
not clear to us whether the DOT's requirements include reaching above shoulder level, and
this is exactly the sort of inconsistency the ALJ should have resolved with the expert's
help.”).
The Commissioner contends that the ALJ may reasonably rely on the VE’s
professional qualifications and experience, as shown by the VE’s use of labor market
reports or surveys. Def’s Opp./X-Mot. at 6. The record shows that Walker’s attorney
questioned the VE about the source of her information and job number projections (A.R.
54-55), but the Commissioner concedes that there is no record of the VE’s qualifications
and experience. See Def’s Opp./X-Mot. at 6. The Commissioner also suggests that it is
“common sense” that the security guard position would not require frequent or constant
reaching out or overhead, but there is no evidence in the record that the ALJ made this
common sense assumption. It would be reasonable to infer that the VE considered that
Walker was limited to occasional reaching and opined that the lobby or reception security
job would not require more than occasional reaching in light of the record that the VE ruled
out “light work” occupations that required more than occasional reaching. (A.R. 53.)
However, there is not substantial evidence in the record to show that the ALJ made this
inference or relied on the VE’s qualifications and professional experience and research to
conclude that the lobby reception type security occupation would only require occasional
reaching out and overhead, and that Walker could perform that job. See Molina v. Astrue,
674 F.3d 1104, 1121 (9th Cir. 2012) (“we may not uphold an agency's decision on a ground
not actually relied on by the agency”).
The Commissioner suggests that the matter should be remanded to establish the
VE’s qualifications to support the ALJ’s reliance on his testimony. Def’s Opp./X-Mot. at 6
(citing Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 628-29 (9th Cir. 2011) (finding that
the VE addressed and explained the conflict between the DOT, which does not discuss a
sit/stand option, and the VE’s determination that the recommended jobs would allow for a
sit/stand option, based on his own labor market surveys, experience, and research)). The
court determines, however, that remand is not warranted here because the ALJ’s step five
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 10 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
determination was supported by the finding that Walker could perform the occupation of
surveillance monitor with jobs existing in significant numbers in the national and regional
economy. Thus, the vocational testimony about Walker’s ability to perform the lobby
reception security job was not necessary to the step five finding that Walker could perform
other work and therefore was not disabled. See Yelovich v. Colvin, 532 Fed. Appx. 700,
702 (9th Cir. 2013) (affirming denial of claim for disability benefits where the VE “incorrectly
referenced two of the three occupations he deemed [the claimant] was capable of
performing” and was only accurate with respect to one occupation).
II. Misidentification of Host Occupation
Walker contends that the ALJ relied on the VE’s erroneous testimony that there were
5,300 regional jobs as a host “such as in a coffee shop,” by referring to a DOT listing for the
obsolete occupation of a head host/hostess of a dance hall (DOT 349.667-014; 1991 WL
672884), rather than the DOT listing for a host of a restaurant (DOT 310.137-010; 1991 WL
672671). Walker argues that there is little reason to believe that there are 5,300 dance hall
host/hostess jobs in the region. Mot. at 19-20 (citing Farias v. Colvin, 519 Fed. Appx. 439,
440 (9th Cir. 2013)). In Farias, the court held that it was unreasonable to accept the VE's
testimony that there were as many as 3,600 head dance hall hostess positions in the local
economy, and reasoned that “[t]he most plausible explanation appears to be that the VE
properly testified that a person with [the claimant’s] characteristics and RFC could perform
the job requirements of head dance hall hostess but erroneously provided employment
data for restaurant hostess - an occupation that exists in far larger numbers.” 519 Fed.
Appx. at 440.
The Commissioner concedes that the VE misidentified the DOT number, but argues
that this error was harmless because the job numbers given by the VE were accurate and
plausible for the occupation of coffee shop host. The Commissioner cites no supporting
evidence to demonstrate that the VE was accurate in stating that there were 5,300 coffee
shop host jobs (rather than dance hall host jobs) in the region, but the court in Farias
recognized that the VE’s testimony that there were 3,600 dance hall host jobs in the local
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 11 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
economy and 342,000 in the national economy was consistent with the employment
numbers for the occupation of restaurant host reported by the Bureau of Labor Statistics.
Farias, 519 Fed. Appx. at 440 (citing http://www.bls.gov/oes/current/oes359031.htm). In
light of the reasoning in Farias, there is substantial evidence in the record to support the
ALJ’s reliance on the VE’s testimony that Walker could perform the occupation of host,
such as in a coffee shop, of which there were 5,300 positions in the regional economy.
See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is
susceptible to more than one rational interpretation, we must uphold the ALJ's findings if
they are supported by inferences reasonably drawn from the record.”).
Walker does not challenge the VE’s testimony that Walker could perform the job of a
coffee shop host, but suggests that the VE intended to refer to the dance hall host
occupation and not the restaurant host occupation. Pl’s Reply at 6. Walker also points out
that there is no DOT code for a coffee shop host, but concedes that the closest DOT listing
is “Host/Hostess, Restaurant”. Id. (citing DOT 310.137-010). In light of the evidence that
the VE expressly identified the occupation of a “host, such as in a coffee shop,” without
reference to a dance hall, and where the VE relied on sources used by the Department of
Labor, which lists the occupation of host/hostess for restaurant, lounge and coffee shop
collectively, the VE’s error in identifying the DOT code for dance hall host, rather than
restaurant host, was inadvertent and harmless. (A.R. 53-55.) See Molina, 674 F.3d at
1111 (“we may not reverse an ALJ's decision on account of an error that is harmless”).
The VE’s error in misstating the DOT occupational code is distinguishable from the error
found in Farias, where the VE testified that the plaintiff could perform the occupation of
dance hall hostess but gave erroneous testimony about the number of available dance hall
hostess jobs by relying on the number of jobs for the occupation of restaurant hostess.
In the alternative, even if the VE’s failure to identify the correct DOT code for the
host occupation was not merely harmless error, the court determines that remand would
not be warranted because there was substantial evidence in the record to support the ALJ’s
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 12 of 13
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
finding that Walker could perform other work with respect to the surveillance monitor
occupation.
CONCLUSION
For the reasons set forth above, Walker’s motion for summary judgment is DENIED
and the Commissioner’s motion for summary judgment is GRANTED. The Clerk shall enter
judgment and close the file.
IT IS SO ORDERED.
Dated: February 2, 2015 ______________________________
PHYLLIS J. HAMILTON
United States District Judge
Case 4:13-cv-04734-PJH Document 23 Filed 02/02/15 Page 13 of 13 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-5_07-cv-00770/USCOURTS-alnd-5_07-cv-00770-0/pdf.json | 864 | Social Security - SSID Title XVI | 42:405 Review of HHS Decision (SSID) | UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES VAN PELT, )
)
Claimant, )
)
vs. ) Civil Action No. CV-07-S-770-NE
)
MICHAEL J. ASTRUE, )
Commissioner, Social Security )
Administration, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Claimant James Van Pelt commenced this action on April 27, 2007, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
denying his claim for a period of disability and disability insurance benefits. For the
reasons stated herein, the court finds that the Commissioner’s ruling is due to be
affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
FILED
2007 Dec-17 AM 09:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 5:07-cv-00770-CLS Document 12 Filed 12/17/07 Page 1 of 4
Tr. at 13. 1
2
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly considered the subjective symptoms
associated with his post-traumatic stress disorder (PTSD). Upon review of the record,
the court concludes this contention is without merit.
To demonstrate that pain or another subjective impairment renders him
disabled, claimant must “produce ‘evidence of an underlying medical condition and
(1) objective medical evidence that confirms the severity of the alleged pain arising
from that condition or (2) that the objectively determined medical condition is of such
severity that it can be reasonably expected to give rise to the alleged pain.’” Edwards
v. Sullivan, 937 F. 2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). Further, claimant alleges disability as of December 31,
1988, and he last met the insured status requirements of the Social Security Act on
December 31, 1993. Claimant therefore bore the burden of proving disability on or
1
prior to December 31, 1993. See 42 U.S.C. § 423(a) and (c); 20 C.F.R. §§ 404.101,
404.130, and 404.131; Ware v. Schweiker, 651 F. 2d 408, 411 n.3 (5th Cir. July
Case 5:07-cv-00770-CLS Document 12 Filed 12/17/07 Page 2 of 4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh 2
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
See Tr. at 105, 230-32. 3
See Tr. at 235-37, 407-37. 4
Tr. at 230-32. 5
Tr. at 232. 6
Tr. at 115, 118. Even if the VA had assessed complete disability, its assessment would not 7
be binding on the Commissioner. See 20 C.F.R. § 404.1504 (“A decision by any nongovernmental
3
1981).
2
The ALJ concluded that, while claimant suffered from medically determinable
impairments that could reasonably have been expected to produce his alleged
symptoms, his statements concerning the intensity, persistence and limiting effects
of those symptoms were not entirely credible. He also concluded that the medical
evidence prior to December 31, 1993 did not support a finding of disability. The
record amply supports those conclusions.
Claimant reports that his nightmares and othersymptoms of PTSD began prior
to December 31, 1993, and the medical records do make some reference to possible
symptoms occurring prior to that date. Even so, the medical records from that period 3
of time do not indicate that claimant’ssymptoms rose to a disabling level of severity.4
Indeed, claimant did not even receive a diagnosis of PTSD until 1998. At that time, 5
the examining physician rated claimant’s PTSD as moderate, and the Department of 6
Veterans Affairs assigned him only a 50% service-connected disability. At no time 7
Case 5:07-cv-00770-CLS Document 12 Filed 12/17/07 Page 3 of 4
agency or any other governmental agency about whether you are disabled or blind is based on its
rules and is not our decision about whether you are disabled or blind. We must make a disability or
blindness determination based on social security law. Therefore, a determination made by another
agency that you are disabled or blind is not binding on us.”).
Medical providers have at times stated that the severity of claimant’s PTSD is difficult to 8
determine because of his alcohol abuse. See, e.g., Tr. at 124, 127, 232.
4
did any medical source characterize claimant’s PTSD symptoms as any more than
moderate. Further, claimant alleges that his PTSD symptoms all originate from his 8
service in the Vietnam War, yet he continued to work for several years after the war.
This indicates that claimant’s PTSD has not always been disabling, and the court
cannot rely upon the presence of a few symptoms to support a finding of disability,
absent any medical evidence that the symptoms rose to a disabling severity during the
relevant time period.
Based on the foregoing, the court concludes the ALJ’s decision was based upon
substantial evidence and in accordance with applicable legal standards. Accordingly,
the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE this 17th day of December, 2007.
______________________________
United States District Judge
Case 5:07-cv-00770-CLS Document 12 Filed 12/17/07 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_06-cv-02455/USCOURTS-casd-3_06-cv-02455-4/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | Case 3:06-cv-02455-BEN-RBB Document 45 Filed 09/16/08 Page 1 of 3
Case 3:06-cv-02455-BEN-RBB Document 45 Filed 09/16/08 Page 2 of 3
Case 3:06-cv-02455-BEN-RBB Document 45 Filed 09/16/08 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_15-cv-00264/USCOURTS-ared-4_15-cv-00264-3/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TRENCIE V. OLIVER, PLAINTIFF
ADC #115208
v. 4:15CV00264-SWW-JTK
S. WATSON and THOMAS MAJOR DEFENDANTS
JUDGMENT
Pursuant to the Order entered in this matter on this date, it is Considered, Ordered and
Adjudged that this case be, and it is hereby, DISMISSED without prejudice. The relief sought is
denied.
IT IS SO ADJUDGED this 15th day of December, 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
1
Case 4:15-cv-00264-SWW Document 29 Filed 12/15/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-09-01279/USCOURTS-ca10-09-01279-0/pdf.json | 110 | Insurance | null | FILED
United States Court of Appeals
Tenth Circuit
August 16, 2010
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
VALLEY FORGE INSURANCE
COMPANY, a Pennsylvania insurance
company; ZURICH AMERICAN
INSURANCE, successor in interest to
Zurich Insurance Company (U.S.
Branch),
Plaintiffs-Appellees/
Cross-Appellants,
v.
HEALTH CARE MANAGEMENT
PARTNERS, LTD., d/b/a O’Hara
Regional Center for Rehabilitation;
ORCR, INC., d/b/a O’Hara Regional
Center for Rehabilitation; SOLOMON
HEALTH MANAGEMENT, LLC,
d/b/a Solomon Health Services, LLC;
HERSCH “ARI” KRAUSZ; DAVID
SEBBAG; V. ROBERT SALAZAR,
Defendants-Appellants/
Cross-Appellees.
Nos. 09-1251, 09-1263
09-1264, 09-1265
09-1278, 09-1279
Appeal from the United States District Court
for the District of Colorado
(D.C. Nos. 1:05-CV-374-RPM and 1:05-CV-835-RPM)
Richard B. Podoll of Podoll & Podoll, P.C., Greenwood Village, Colorado
(Gregory G. Sapakoff of Podoll & Podoll, P.C., Greenwood Village, Colorado; and
T. Jeffrey Fitzgerald and Marie Elizabeth Williams of Faegre & Benson, LLP,
Denver, Colorado, with him on the briefs) for Defendants-Appellants/CrossAppellees.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 1
*
Honorable Richard D. Cudahy, U.S. Senior Circuit Judge, Seventh
Circuit, sitting by designation.
- 2 -
J. Robert Hall of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, Illinois
(Michael M. Marick of Meckler Bulger Tilson Marick & Pearson LLP, Chicago,
Illinois; Michael L. O’Donnell and Sean D. Baker of Wheeler Trigg O’Donnell
LLP, Denver, Colorado; Patrick W. Kennison, Jr. of Kutak Rock LLP, Omaha,
Nebraska; and Kelly Sue Kilgore of Kutak Rock LLP, Denver, Colorado, with him
on the brief) for Plaintiffs-Appellees/Cross-Appellants.
Before GORSUCH, McKAY, and CUDAHY*
, Circuit Judges.
GORSUCH, Circuit Judge.
When the government sued them for allegedly engaging in Medicare and
Medicaid fraud, the appellants asked their insurance companies to provide them
with a defense. The insurers promptly and unequivocally disputed their obligation
to do so. Still, they agreed to supply a defense, subject to a reservation of rights
permitting them to challenge their duty to defend at a later stage and, if successful
in that challenge, to recoup the costs they incurred in defending the appellants.
Consistent with their reservation of rights, the insurers eventually brought
this lawsuit seeking two things: a declaratory judgment that they had no duty to
provide the appellants with a defense under the terms of the applicable insurance
policies, and reimbursement of the defense costs they had already expended. The
district court ruled that the insurers had no duty to defend, and this court affirmed.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 2
- 3 -
Later, on remand, the district court awarded the insurers full reimbursement of
their defense costs. Now on appeal once more, the appellants challenge the
propriety of this latest ruling. The insurers cross-appeal, submitting that the
district court erred in declining to add prejudgment interest to their awards.
Finding none of the parties’ various challenges to the district court’s judgment
persuasive, we affirm.
I
A
In approaching the case before us, a little background about its parent
lawsuit helps. Following an audit of the billing practices of O’Hara Regional
Center for Rehabilitation, a long-term care facility in Denver, federal and state
officials came to the view that various individuals and entities associated with the
Center had provided substandard care to Medicare and Medicaid patients, and had
submitted false and fraudulent claims for the care they did provide. Eventually,
the relevant governmental agencies brought suit. See United States of America, et
al. v. Health Care Mgmt. Partners, Ltd., et al., No. 04-CV-2340-REB-BNB (D.
Colo. 2004). The defendants included Health Care Management Partners, Ltd.;
ORCR, Inc.; Solomon Health Management, LLC; Hersch “Ari” Krausz; David
Sebbag; and V. Robert Salazar (collectively, the O’Hara Defendants).
In short order, the O’Hara Defendants contacted their insurance carriers —
Zurich, Valley Forge, and certain underwriters at Lloyd’s of London — demanding
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 3
- 4 -
that the carriers provide them with a defense. Lloyd’s refused to defend the
O’Hara Defendants, disclaiming coverage. Zurich and Valley Forge, too, took the
position that their policies didn’t afford coverage but, even so, they agreed to
provide a defense. At the same time, Valley Forge and Zurich reserved the right
to seek reimbursement for all expenses they incurred in defending the O’Hara
Defendants, should a court later agree that their policies imposed on them no duty
to defend.
To reserve its rights, Valley Forge sent the O’Hara Defendants a letter
stating that, while it “does not believe that its defense obligations have been
triggered, it has decided for now to provide a defense . . . subject to a reservation
of rights, [including] . . . the right to seek a judicial determination of its coverage
obligations in advance of the conclusion of the underlying matter, and to recover
defense costs it has spent in the event it is determined that it had no defense
obligation.” App. Vol. 11 at 2607-08. Zurich sent a similar letter, saying it
“reserves its right to deny, reject, contest or disclaim any duty to defend [the
O’Hara Defendants]”; “to withdraw from the defense of the . . . [l]awsuit in the
event it is determined there is no coverage; and to seek and obtain reimbursement
of any damages and/or defense[] costs [it] paid.” App. Vol. 11 at 2579. The
O’Hara Defendants accepted the defense the insurance companies supplied and
apparently never objected to the reservation of rights letters they received. It also
appears the O’Hara Defendants were generally aware of the expenses accrued in
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 4
- 5 -
defending them because, for example, they received copies of their counsels’
litigation budgets.
B
That brings us to the case now before us. While the government’s lawsuit
against the O’Hara Defendants carried on, Zurich, Valley Forge, and Lloyd’s filed
complaints against the O’Hara Defendants, seeking declarations that they had no
duty to defend the O’Hara Defendants against the government’s claims. Zurich
and Valley Forge also sought reimbursement of the defense costs that by then they
had already expended. The district court consolidated these various cases and,
ultimately, issued a declaratory judgment holding that the government’s claims
against the O’Hara Defendants were not covered by the relevant insurance
policies, so there was no duty to defend (or indemnify). On appeal, this court
affirmed the district court’s declaratory judgment and remanded the matter back to
the district court to resolve what, if any, amounts Zurich and Valley Forge should
recoup for the defense costs they had advanced. See Zurich Am. Ins. Co. v.
O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916 (10th Cir. 2008).
After extensive summary judgment briefing on remand, the district court
held Zurich and Valley Forge entitled to recoup all of the costs they had incurred
on behalf of the O’Hara Defendants. The district court rejected, however, Zurich
and Valley Forge’s claim that they were also entitled to prejudgment interest on
those recovered sums. The O’Hara Defendants now appeal, asking us to hold that
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 5
- 6 -
the district court erred in granting summary judgment to the insurance companies.
For their part, Zurich and Valley Forge cross-appeal the district court’s denial of
prejudgment interest. We first address the O’Hara Defendants’ appeal, before
turning to Zurich and Valley Forge’s cross-appeal.
II
The O’Hara Defendants’ appeal proceeds in two essential movements. First,
they say, an insurer cannot recoup the defense costs it expended under a
reservation of rights letter unless a right of recoupment is also expressly
mentioned in the parties’ underlying insurance policy. And, they say, the
insurance policies they signed with Valley Forge and Zurich contain no language
discussing the recoupment of defense costs in these circumstances. Accordingly,
the O’Hara Defendants conclude, Zurich and Valley Forge may not, as a matter of
law, recover the defense funds they spent — even though, as the district court and
this court have already held, the insurance contracts never required them to
provide a defense in the first place. Second, assuming the insurers are lawfully
entitled to recoup something, the O’Hara Defendants argue that genuine issues of
material fact still remain over the amount the insurers are owed, thus precluding
the entry of summary judgment.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 6
- 7 -
A
In the O’Hara Defendants’ view, Zurich and Valley Forge cannot recover
the defense costs they expended for the simple reason that no provision in the
parties’ insurance contracts contemplates that possibility. This result pertains, the
O’Hara Defendants argue, even though the insurance companies did send
“reservation of rights” letters when they agreed to provide a defense — and even
though the O’Hara Defendants do not dispute the clear import of those letters,
apparently never objected to them at the time, and accepted the defense their
insurers provided. This result pertains because, in the O’Hara Defendants’ view,
“[a]llowing an insurer to recover defense costs expended under a reservation of
rights, without a contractual basis in its insurance policy providing a right of
recoupment, would be contrary to Colorado law and public policy.” Opening Br.
23. In support of their position, the O’Hara Defendants point us to General Agents
Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 828 N.E.2d 1092
(Ill. 2005), where the Illinois Supreme Court reasoned that an insurer’s reservation
of rights letter could only reserve the rights contained within an insurance policy
and could not create new rights. Id. at 1102-03; see also Shoshone First Bank v.
Pac. Employers Ins. Co., 2 P.3d 510 (Wyo. 2000); Gen. Star Indem. Co. v. V.I.
Port Auth., 564 F. Supp.2d 473 (D.V.I. 2008).
Zurich and Valley Forge respond that Colorado has taken a different tack
than Illinois and the other jurisdictions cited by the O’Hara Defendants. To
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 7
- 8 -
balance the interests of insureds and insurers, Zurich and Valley Forge say,
Colorado law requires an insurer to pay defense costs, but at the same time
provides the insurer with this assurance: if it pays defense costs pursuant to a
reservation of rights letter, as Zurich and Valley Forge did here, the insurer may
later seek and obtain recoupment of its defense costs if the facts at trial prove the
claim against the insured wasn’t covered by the policy. Zurich and Valley Forge
submit that this much can be discerned from a pair of Colorado Supreme Court
decisions, Hecla Mining Co. v. New Hampshire Insurance Co., 811 P.2d 1083
(Colo. 1991), and Cotter Corp. v. American Empire Surplus Lines Insurance Co.,
90 P.3d 814 (Colo. 2004). And, the insurers suggest, Hecla and Cotter are hardly
anomalies; at least some other states take the same view. See, e.g., United Nat’l
Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. 2002) (applying Ohio law);
Colony Ins. Co. v. G & E Tires & Serv., Inc., 777 So. 2d 1034 (Fla. Dist. Ct. App.
2000).
From all this, it can be fairly gleaned that state courts are divided on how
best to handle insurers’ recoupment claims. The O’Hara Defendants urge us to
adopt their view, and that of the Illinois courts, as the sounder one. But this case
comes to us through diversity jurisdiction, 28 U.S.C. § 1332, and the parties agree
Colorado’s substantive law controls its resolution. So the question we must
answer isn’t what we think to be the better rule of law, but what Colorado law says
on the subject. And on that score, Zurich and Valley Forge have the sounder view.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 8
- 9 -
Hecla and Cotter clearly indicate that the Colorado Supreme Court recognizes an
insurer’s entitlement to reimbursement of defense costs in the event it is later
determined the insurer did not have a duty to defend. And Hecla and Cotter both
premise the insurer’s entitlement to reimbursement on its having reserved that
right when it provided a defense to its insured, not on any reimbursement
provision in the insurance contract itself.
In Hecla, the Colorado Supreme Court held as a matter of state law that,
where the allegations in a complaint against an insured state a claim that
“potentially or arguably [falls] within the policy coverage,” “the insurer must
accept the defense of the claim.” 811 P.2d at 1089 (emphasis added and quotation
marks omitted). This is so, the court emphasized, even if the “duty to defend is
not apparent from the pleadings in the case against the insured.” Id. “[F]or an
insurer who believes that it is under no obligation to defend,” the court explained,
the “appropriate course of action” “is to provide a defense to the insured under a
reservation of its rights to seek reimbursement should the facts at trial prove that
the incident resulting in liability was not covered by the policy, or . . . file a
declaratory judgment action after the underlying case has been adjudicated.” Id.
Hecla thus clearly directs insurers to provide a defense under a reservation of
rights. And it gives no intimation that an insurer must also include a reservation
of rights in its underlying insurance contract.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 9
- 10 -
The O’Hara Defendants protest that Hecla spoke only of permitting an
insurer to seek reimbursement based on a reservation of rights letter. This, they
say, is different than recognizing an entitlement to reimbursement. And so, they
argue, it remains an open question whether an insurer must also reserve the right
of recoupment in its underlying insurance contract in order to recover its defense
costs. But this strikes us as an unduly parsimonious reading of Hecla. The Hecla
court expressly considered and contemplated a condition to reimbursement — a
reservation of rights letter. The fact that it did not mention any other comparable
condition — such as specific contractual language — cannot be so easily ignored.
It’s the dog that didn’t bark. Cf. Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991)
(noting that silence on the issue can be probative evidence of legislative intent);
United States v. Lopez, 518 F.3d 790, 798 n.2 (10th Cir. 2008); Sir Arthur Conan
Doyle, Silver Blaze, in The Memoirs of Sherlock Holmes (1894).
More clues confirming the point appear in Hecla’s successor, Cotter. There,
the Colorado Supreme Court explained that
[I]n Hecla . . . [w]e attempted to balance the interest of both the insurers
and insureds by ensuring that the broad rule basing the duty to defend
on the complaint will not require insurers to pay defense costs if
coverage ultimately does not exist under the policies . . . . [W]e . . .
attempted to create a remedy for insurers that provided defenses to
insureds when coverage ultimately did not exist.
90 P.3d at 828 (emphasis added). Cotter thus again strongly suggests Colorado
recognizes a pair of interlocking legal entitlements. On the one hand, in an effort
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 10
- 11 -
to protect insureds, Colorado law imposes a duty on insurers to advance funds
toward the defense of claims that may ultimately turn out not to be covered under
the insurance policies. Id. at 827. On the other hand, the state recognizes a
corresponding legal remedy, allowing insurers to obtain reimbursement when
coverage is found not to exist, so long as they reserve (at least by letter) the right
to do so. Id. at 828. In this way, this pair of complementary entitlements is
intended “to balance the interests of both the insurers and the insureds” by
ensuring that insureds will receive a defense and that insurers won’t be left
holding the bag if it turns out they had no duty to provide one. Id. Nothing in
these rules or their underlying rationales appears to turn on whether a reservation
of rights clause does or doesn’t appear in a particular insurance contract.
The O’Hara Defendants reply that Hecla and Cotter’s discussions about the
legal rights and remedies of insureds and insurers are, at best, no more than dicta.
But even supposing that’s a fair characterization, our task in diversity cases is to
predict how the state supreme court would rule. See Vanover v. Cook, 260 F.3d
1182, 1186 (10th Cir. 2001). And when we carry out that duty, Colorado Supreme
Court dicta, which represents the court’s own comment on the development of
Colorado law, surely can be instructive. See Carl v. City of Overland Park, Kan.,
65 F.3d 866, 872 (10th Cir. 1995). This is particularly true where, as here, the
dicta is recent, clear, and repeated. Cf. Gaylor v. United States, 74 F.3d 214, 217
(10th Cir. 1996) (discussing United States Supreme Court dicta). So it is that we
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 11
1
The O’Hara Defendants ask us to certify to the Colorado Supreme Court
the reimbursement question they raise in this appeal. Because, as we explain
above, Hecla and Cotter provide clear guidance on this question, we deny that
request. See Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007) (“When
we see a reasonably clear and principled course, we will seek to follow it
ourselves.”).
- 12 -
agree with the district court that the Colorado Supreme Court’s statements in
Hecla and Cotter, even if dicta, unmistakably indicate that Colorado law would
allow an insurer to recover defense costs from its insured where it reserved the
right to do so by letter, regardless whether the insurer also reserved that right in
the underlying insurance policy itself.1
Perhaps seeing the writing on the wall, the O’Hara Defendants reply that, at
the very least, Hecla and Cotter require an insurer to wait until after the
underlying case against the insured is resolved before seeking a declaratory
judgment that it owes no duty to defend and deserves reimbursement. And, they
add, Zurich and Valley Forge failed to do this much; instead, the insurers sought a
declaration that they had no duty to defend while the underlying MedicareMedicaid fraud suit against the O’Hara Defendants was still pending. This failure
to follow the procedure outlined in Hecla and Cotter, the O’Hara Defendants
submit, bars Zurich and Valley Forge from recouping their defense costs.
Again, we cannot agree. Zurich and Valley Forge emphasize that the
O’Hara Defendants didn’t raise this particular argument in the district court and
ask us to disregard it on that basis. But whether the failure to present this
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 12
- 13 -
argument earlier amounts to waiver or forfeiture, we need not decide. We also
don’t have to decide the question, unbriefed by the parties but surely lurking
behind the scenes, whether a state law rule purporting to prevent parties from
seeking a declaratory judgment until a specified time could bind a federal district
court and limit its congressionally-granted authority under the Declaratory
Judgment Act. See Farmers Alliance Mut. Ins. v. Jones, 570 F.2d 1384, 1386
(10th Cir. 1978); Addison Ins. Co. v. Rippy, No. 08-237, 2009 WL 723322 (D.
Colo. Mar. 18, 2009) (unpublished). All this is because the argument itself rests
on a mistaken premise. Even under Colorado law, it isn’t always the case that an
insurer must wait for the underlying lawsuit to end before seeking a declaration
concerning its duty to defend. The Colorado Supreme Court has said that it is
“within the sound discretion of the trial court” whether to permit an insurer to seek
such a declaration before the underlying litigation against the insured has come to
an end. Constitution Assocs. v. N.H. Ins. Co., 930 P.2d 556, 561 (Colo. 1997). In
making such a determination, the Colorado Supreme Court has emphasized that the
“potential prejudice” to the insured is a primary consideration. Id. at 562. For
this reason, a declaratory judgment action is permissible if it concerns issues that
are “independent of and separable from those in the underlying action,” because,
as the court explained, it then would not “unduly prejudice the insured in the
underlying action.” Id.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 13
- 14 -
Despite this clear rule, the O’Hara Defendants have not identified any
prejudice they suffered from the alleged prematurity of Zurich’s and Valley
Forge’s suits. Neither do the O’Hara Defendants dispute that the insurers’
declaratory judgment actions were “independent of and separable from” the
government’s suit against them. Id. In this light, then, we can discern no possible
error on the part of the district court in permitting the declaratory judgment actions
to proceed before resolution of the underlying suit, and then awarding Zurich and
Valley Forge reimbursement.
Finally, the parties expend considerable time and effort debating what
doctrinal label best describes Colorado’s rule permitting insurers to recoup their
costs when they reserved the right to do so by letter. Is the rule best viewed as an
equitable one, based on the fact that allowing an insured to retain the benefits of
an unbargained-for defense would constitute unjust enrichment, as some courts
elsewhere have suggested? See, e.g., Cincinnati Ins. Co. v. Grand Pointe, LLC,
501 F. Supp.2d 1145, 1168-69 (E.D. Tenn. 2007). Or is the rule better viewed as a
legal one, based on the fact that the insurer’s reservation of rights letter and the
insured’s acceptance of the defense without objection created a new contract
between the parties, or at least an implied-in-fact contract, as courts in other states
have suggested? See, e.g., SST Fitness Corp., 309 F.3d at 919-21 (applying Ohio
law). Or might the rule simply be a matter of Colorado public policy? Or
something else still? Hecla and Cotter do not answer these questions. A future
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 14
- 15 -
case might. But for our purposes, none of this matters. Regardless whether the
Colorado courts situate the rule in equity, contract, policy, rule of court, or
someplace else — whatever doctrinal pigeonhole best fits — one thing is clear:
Colorado permits insurers to recoup defense costs in the circumstances before us.
We need not venture more than that to decide this case. Judicial restraint, after
all, usually means answering only the questions we must, not those we can. See
PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment) (“[I]f it is not necessary to
decide more, it is necessary not to decide more.”).
B
Having decided this much, one question in the O’Hara Defendants’ appeal
remains: how much can the insurers lawfully recoup under Hecla and Cotter’s
rule? Put differently, are they entitled to recover all of the defense costs they
actually expended? Or might the amount be limited in some way? The O’Hara
Defendants argue that Zurich and Valley Forge should, at most, be permitted to
recover “reasonably and necessarily incurred” defense costs, Response and Reply
Br. 36-37, or perhaps only the “fair value” of the defense provided, App. Vol. 11
at 2650. Zurich and Valley Forge counter they are entitled to recoup everything
they spent. See generally Century Sur. Co. v. 350 W.A., LLC, No. 05-1548, 2008
WL 4402919, at *4-5 (S.D. Cal. Sept. 26, 2008) (unpublished) (discussing similar
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 15
- 16 -
challenge and holding that California law entitles insurer to recoup all defense
costs, without a showing of reasonableness).
While Hecla and Cotter do not appear to address this question, at least
squarely, its answer makes no difference to the outcome of the case before us and
so (once again) we need not and will not decide it. Even assuming (without
deciding) that the O’Hara Defendants are entitled to contest the reasonableness, or
the fair value, of the expenses incurred in their defense, this case comes to us on
summary judgment and, reviewing the record de novo as we must, we discern no
genuine dispute of fact suggesting that the fees the insurers actually incurred in
this case shouldn’t be repaid.
The O’Hara Defendants seek to suggest otherwise by pointing to an affidavit
submitted by their expert witness. Having considered that summary judgment
affidavit de novo, however, we do not see how it raises any material dispute of
fact. To be sure, a party can oppose summary judgment by submitting an affidavit
that “set[s] out specific facts showing a genuine issue for trial.” Fed. R. Civ. P.
56(e)(2). But the affidavit before us simply identifies various materials one might
consider and questions one might ask when assessing the reasonableness of an
attorney’s bills. So, for example, the affidavit notes that Zurich and Valley Forge
separated the O’Hara Defendants into different groups and appointed different
attorneys for each group; the affidavit then proceeds to state that discovery could
reveal whether work was duplicated. But the affidavit does not opine that any
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 16
2
In their reply brief, the O’Hara Defendants argue for the first time that
the declaration of Mr. Salazar, one of the individual defendants, creates a genuine
issue of fact over the reasonableness of Zurich and Valley Forge’s decision to
engage three different law firms to represent the O’Hara Defendants. Reply Br. at
35. In that declaration, Mr. Salazar submits that he “believe[s] . . . a single
lawyer could have represented all of the Defendants in the Underlying Action.”
Vol. 12 at 2680. Even assuming this argument hasn’t been waived by its tardy
appearance in these proceedings, see Hill v. Kemp, 478 F.3d 1236, 1250-51 (10th
Cir. 2007), such a “conclusory and self-serving” affidavit is insufficient to create
a factual dispute, Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991); Murray
v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995). On appeal, the O’Hara
Defendants also assert that Mr. Salazar did not receive a copy of either Zurich’s
or Valley Forge’s reservation of rights letter, and so argue he shouldn’t be bound
by them. Opening Br. at 44, 53. Though Mr. Salazar presented that fact to the
district court, he didn’t argue its purported legal consequence before that court,
thus forfeiting the argument. And we decline to exercise our discretion to review
that issue because the O’Hara Defendants do not suggest, and we do not see, how
the error alleged “seriously affect[ed] the fairness, integrity or public reputation
of [these] judicial proceedings.” Employers Reinsurance Corp. v. Mid-Continent
Cas. Co., 358 F.3d 757, 769-70 (10th Cir. 2004) (quotation marks omitted)
(describing plain error test).
- 17 -
work was actually and unreasonably duplicated, nor does it provide any facts to
support such a conclusion. Most tellingly, in the final paragraph of the affidavit,
the O’Hara Defendants’ expert states that “the above described discovery must be
undertaken before I will be able to . . . prepare an expert report setting forth my
opinion as to the overall reasonableness and necessity of the fees charged.” App.
Vol. 11 at 2651 (emphasis added).2
Perhaps recognizing this infirmity, the O’Hara Defendants submit that their
expert’s affidavit, at the very least, complied with Fed. R. Civ. P. 56(f) and thus
required the district court to defer decision on summary judgment to allow for the
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 17
- 18 -
discovery the expert sought. Zurich and Valley Forge disagree; the affidavit, they
argue, did not comply with the requirements of Rule 56(f).
We review a district court’s decision denying a Rule 56(f) discovery request
for abuse of discretion. Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783
(10th Cir. 2000). As Judge Kane has noted, the abuse of discretion standard
implies a degree of “[d]iscretion invested in judges [to render] a decision based
upon what is fair in the circumstances and guided by the rules and principles of
law.” In re Bueno, 248 B.R. 581, 582 (D. Colo. 2000). And whatever decision we
might’ve made ourselves were we behind the district court’s bench, we can’t say
that the district court’s decision to deny discovery in the face of the O’Hara
Defendants’ Rule 56(f) affidavit constituted such an abuse by “exceed[ing] the
bounds of the rationally available choices given the facts and the applicable law in
the case at hand.” Shook v. Bd. of County Comm’rs of County of El Paso, 543
F.3d 597, 603 (10th Cir. 2008) (quotation omitted).
In this circuit, a party seeking to defer a ruling on summary judgment under
Rule 56(f) must provide an affidavit “explain[ing] why facts precluding summary
judgment cannot be presented.” Comm. for the First Amendment v. Campbell, 962
F.2d 1517, 1522 (10th Cir. 1992) (citation omitted). This includes identifying (1)
“the probable facts not available,” (2) why those facts cannot be presented
currently, (3) “what steps have been taken to obtain these facts,” and (4) “how
additional time will enable [the party] to” obtain those facts and rebut the motion
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 18
- 19 -
for summary judgment. Id.; see also Price, 232 F.3d at 783 (“Rule 56(f) does not
operate automatically. Its protections . . . can be applied only if a party satisfies
certain requirements.”).
The affidavit before us falls short against this yardstick. The affidavit lists
various additional materials and information the O’Hara Defendants seek. But the
affidavit fails to identify what efforts the O’Hara Defendants had made already to
obtain the information they sought, or why at least some of that information
wasn’t already available to them. The affidavit, for example, requests additional
time to study the “nature and length of the professional relationship” between the
O’Hara Defendants and the attorneys who represented them. App. Vol. 11 at
2651. And the affidavit seeks the engagement letters between the O’Hara
Defendants and their retained counsel. Yet the affidavit makes no attempt to
explain why the O’Hara Defendants lack this evidence or how they’ve tried but so
far failed to obtain it.
The affidavit doesn’t explain, for example, why the O’Hara Defendants were
themselves unable to provide the expert with evidence about the nature and length
of their relationship with their attorneys, or to supply copies of their engagement
letters. Neither does it explain what, if anything, prevented the O’Hara
Defendants from asking their defense attorneys, who owe them certain duties of
communication and candor, to supply the information they sought. Though the
O’Hara Defendants believe they could have unearthed persuasive evidence had the
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 19
- 20 -
district court granted their Rule 56(f) request, we simply cannot say in these
circumstances that it was an abuse of discretion for the court to deny their request.
See, e.g., Garcia v. U.S. Air Force, 533 F.3d 1170, 1180 (10th Cir. 2008);
Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006).
III
Having resolved the O’Hara Defendants’ appeal, we still face Zurich and
Valley Forge’s cross-appeal. There, the insurers contend the district court erred as
a matter of law when it denied their request for prejudgment interest on the
amounts it awarded in reimbursement. Zurich and Valley Forge submit that
Section 5-12-102(1) of the Colorado Revised Statutes expressly authorizes
prejudgment interest in these circumstances. That section provides, in relevant
part, that “creditors shall receive [prejudgment] interest” at eight percent “[w]hen
money . . . has been wrongfully withheld.” C.R.S. § 5-12-102(1). Because the
O’Hara Defendants had no right to the defense funds expended on their behalf,
Zurich and Valley Forge argue, the defense costs they (the insurers) spent were
effectively and “wrongfully withheld” from them since the time those costs were
incurred.
In support of their argument, Zurich and Valley Forge emphasize that money
can be “wrongfully withheld,” and so subject to prejudgment interest, even if the
withholding party did nothing tortious or otherwise opprobrious in taking it. In
this vein, the insurers point us to Mesa Sand & Gravel Co. v. Landfill, Inc., where
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 20
- 21 -
the Colorado Supreme Court directed that Section 5-12-102(1) should be given a
“liberal construction,” and held that the phrase “wrongfully withheld” does not
require proof of “tortious conduct” on the part of the withholding party. 776 P.2d
362, 364-66 (Colo. 1989). The insurers also rely on Goodyear Tire & Rubber Co.
v. Holmes, where the Colorado Supreme Court clarified that “wrongfully withheld”
means simply that “the aggrieved party lost or was deprived of something to which
she was otherwise entitled.” 193 P.3d 821, 825 (Colo. 2008). Finally, Zurich and
Valley Forge draw our attention to the facts of Rodgers v. Colorado Department of
Human Services. There, the Colorado Court of Appeals held that Section
5-12-102(1) entitled an employer to prejudgment interest on back pay and benefits
it had paid to an employee pursuant to an administrative agency’s order that was
later reversed — thus requiring the employee to reimburse the employer. 39 P.3d
1232, 1238 (Colo. App. 2001). The court rejected the employee’s argument that
“he could not have been wrongfully withholding the money because he received”
the back pay and benefits “pursuant to the [administrative agency’s] order.” Id.
As the court reasoned, the employee had “demanded and received money from” his
employer that a court ultimately held he “was never entitled to” “as a matter of
law” and, thus, the employee had “been wrongfully withholding [that money] since
the time he received it.” Id.
We do not question that Zurich and Valley Forge’s view, that Section
5-12-102 applies equally in the circumstances now before us, is at least a plausible
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 21
- 22 -
reading of the statute. But neither can we dispute that it lacks a meaningful
rejoinder. The O’Hara Defendants point out that Zurich and Valley Forge have not
cited us a single Colorado case that has awarded prejudgment interest to an insurer
recovering defense costs. What’s more, awarding prejudgment interest in such
cases might, at least arguably, conflict with the rationale underlying the Colorado
Supreme Court’s Hecla and Cotter rule. Those cases, after all, impose on insurers
a broad duty to defend in order to protect, even in questionable cases, an insured’s
“legitimate expectation of a defense.” Hecla, 811 P.2d at 1090. As the Hecla
court reasoned, “[r]equiring the average auto accident victim, or the average home
owner to bear the onerous financial burden of proving that they are entitled to a
defense from liability claims asserted against them would deny the insured the
protection afforded by a liability policy.” Id. at 1090 n.11. The reading of
Section 5-12-102(1) that Zurich and Valley Forge urge on us would increase the
costs to insureds of seeking the defense coverage Hecla and Cotter guarantee
them. It would require an insured, when submitting a claim to his or her insurer,
to assume the risk of having to repay not only any defense costs advanced but also
eight percent interest on that money in the event a court later holds there was no
duty to defend. This would, at least to a certain degree, disincentivize insureds
from exercising their rights under Hecla and Cotter, and instead push them to
shoulder their own defense costs. And that result is seemingly at odds with the
purpose animating those cases — namely, the protection of an insured’s
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 22
- 23 -
“reasonabl[e] expectat[ion] that he will not be required to furnish the cost of
defending actions that facially fall within the terms of his policy.” Cotter, 90 P.3d
at 828. It is at least possible then, as the O’Hara Defendants stress, that
prejudgment interest has not yet been awarded in a recoupment case like this one
because Section 5-12-102(1) is inapplicable in light of Hecla and Cotter.
It is notable, too, that Rodgers, on which Zurich and Valley Forge heavily
rely, may be distinguishable from this case – or at least arguably so. Rodgers
dealt with an employer’s payment of money to its employee pursuant to an
administrative order that was later reversed, and the court’s award of prejudgment
interest was premised on the fact that the employee “was never entitled to” that
money. 39 P.3d at 1238 (emphasis added). Here, by comparison, Zurich and
Valley Forge made defense payments for the O’Hara Defendants pursuant to the
Colorado Supreme Court’s command in Hecla and Cotter that they provide a
defense in the first instance. This command remains good law. One could argue,
then, that the O’Hara Defendants were entitled to the defense payments under
Hecla and Cotter, at least until the moment a court held there was no duty to
defend.
In the absence of any Colorado authority applying Section 5-12-102(1) to an
insurer’s recoupment claim, and in light of the parties’ plausible conflicting
arguments about the statute’s applicability, we are unable to conclude that the
insurers have met their burden of establishing that Colorado law requires an award
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 23
- 24 -
of prejudgment interest in these circumstances. This isn’t to prejudge how the
Colorado courts or legislature may decide the question. It is to say only that, in
these murky circumstances, “we believe it proper to leave any further development
of [state] law on this point to” state authorities. Russo v. Ballard Med. Prods., 550
F.3d 1004, 1023 (10th Cir. 2008).
* * *
The judgment of the district court is
Affirmed.
Appellate Case: 09-1279 Document: 01018477680 Date Filed: 08/16/2010 Page: 24 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_23-cv-01906/USCOURTS-caed-2_23-cv-01906-7/pdf.json | 195 | Contract Product Liability | 28:1332 Diversity-Product Liability | U.S. District Court – Pro Hac Vice Application
Revised July 6, 2021
Page 1
/
Plaintiff(s)
V.
United States District Court
Eastern District of California
Case Number:
APPLICATION FOR PRO HAC VICE
AND ORDER
Defendant(s)
Pursuant to Local Rule 180(b)(2) of the United States District Court for the Eastern District of California,
hereby appliesfor permission to appear and participate as
counsel in the above entitled action on behalf of the following party or parties:
On (date), I was admitted to practice and presently in good standing in the
(court). A certificate of good standing from that court is
submitted in conjunction with this application. I have not been disbarred or formally censured by a court of
record or by a state bar association; and there are not disciplinary proceedings against me.
I have I have not concurrently or within the year preceding this application made a pro hac vice
application to this court. (If you have made a pro hac vice application to this court within the last year, list
the name and case number of each matter in which an application was made, the date of application and
whether granted or denied.)
Date: Signature of Applicant: /s/
Case 2:23-cv-01906-WBS-SCR Document 36 Filed 08/30/24 Page 1 of 2
U.S. District Court – Pro Hac Vice Application
Revised July 6, 2021
Page 2
Pro Hac Vice Attorney
Applicant's Name:
Law Firm Name:
Address:
City: State: Zip:
Phone Number w/Area Code:
City and State of Residence:
Primary E-mail Address:
Secondary E-mail Address:
I hereby designate the following member of the Bar of this Court who is registered for ECF with whom the
Court and opposing counsel may readily communicate regarding the conduct of the case and upon whom
electronic notice shall also be served via the Court’s ECF system:
Local Counsel'sName:
Law Firm Name:
Address:
City: State: Zip:
Phone Number w/Area Code: Bar #
ORDER
Dated: August 29, 2024
Case 2:23-cv-01906-WBS-SCR Document 36 Filed 08/30/24 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-00871/USCOURTS-caed-2_04-cv-00871-27/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MERRICK JOSE MOORE,
Plaintiff, No. CIV S-04-0871 MCE EFB P
vs.
J. SLOSS, et al.,
Defendants. ORDER & WRIT OF HABEAS CORPUS
/ AD TESTIFICANDUM
C. Gibson, inmate # H-39349, a necessary and material witness in proceedings in
this case on September 7, 2010, is confined in California State Prison- Corcoran, Corcoran,
California, in the custody of the Warden; in order to secure this inmate's attendance it is
necessary that a Writ of Habeas Corpus ad Testificandum issue commanding the custodian to
produce the inmate in Court, 14th Floor, Courtroom 7, United States Courthouse, 501 I Street,
Sacramento, California on September 7, 2010, at 9:00 a.m.
ACCORDINGLY, IT IS ORDERED that:
1. A Writ of Habeas Corpus ad Testificandum issue, under the seal of this court,
commanding the Warden to produce the inmate named above to testify in United States District
Court at the time and place above, and from day to day until completion of court proceedings or
as ordered by the court; and thereafter to return the inmate to the above institution;
2. The custodian is ordered to notify the court of any change in custody of this
inmate and is ordered to provide the new custodian with a copy of this writ; and
3. The Clerk of the Court is directed to serve a courtesy copy of this order and
writ of habeas corpus ad testificandum on the Out-To-Court Desk.
WRIT OF HABEAS CORPUS AD TESTIFICANDUM
To: Warden Raul Lopez, California State Prison, Corcoran, 4001 King Avenue, P.O. Box
8800, Corcoran, California, 93212:
WE COMMAND you to produce the inmate named above to testify before the
United States District Court at the time and place above, and from day to day until completion of
the proceedings or as ordered by the court; and thereafter to return the inmate to the above
institution.
FURTHER, you have been ordered to notify the court of any change in custody
of the inmate and have been ordered to provide the new custodian with a copy of this writ.
DATED: August 3, 2010.
Case 2:04-cv-00871-MCE -EFB Document 153 Filed 08/04/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_14-cv-00765/USCOURTS-almd-2_14-cv-00765-1/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CLARENCE EDWARD JONES, #203 947, )
)
Plaintiff, )
)
vs. ) CASE NO. 2:14cv-765-WHA
)
ROBERT BENTLEY, et al., ) (WO)
)
Defendants. )
ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #10),
entered on October 7, 2014. There being no timely objection filed to the Recommendation, and
after a review of the file, the Recommendation is ADOPTED, and it is hereby
ORDERED that this case is DISMISSED without prejudice for failure of the Plaintiff to
pay the requisite fees or provide the court with financial information in compliance with the
orders of the court. Final Judgment will be entered accordingly.
DONE this 29th day of October, 2014.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
Case 2:14-cv-00765-WHA-TFM Document 11 Filed 10/29/14 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_15-cv-02151/USCOURTS-cand-5_15-cv-02151-0/pdf.json | 870 | Tax Suits | 26:7402 IRS: Petition to Enforce IRS Summons | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
*E-Filed: May 14, 2015*
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
UNITED STATES OF AMERICA,
Petitioner,
v.
DAN OLIA,
Respondent.
)
)
)
)
)
)
)
)
)
)
No. CV 15-02151 HRL
ORDER TO SHOW CAUSE RE
ENFORCEMENT OF INTERNAL
REVENUE SERVICE SUMMONS
Good cause having been shown by the petitioner upon its petition filed in the above-entitled
proceeding on May 13, 2015, it is hereby:
ORDERED that respondent DAN OLIA appear before this Court on July 7, 2015, at 10:00 a.m.
in Courtroom No. 2, 5th Floor, United States District Court, 280 South 1st Street, San Jose, California,
and then and there show cause, if any, why respondent should not be compelled to appear and provide
documents and testimony as required by the summons heretofore served upon respondent as alleged and
set forth in particular in said petition; and it is further
ORDERED that a copy of this Order to Show Cause, together with a copy of the aforesaid
petition, be served upon said respondent in accordance with Rule 4 of the Federal Rules of Civil
Procedure at least thirty-five (35) days before the return date of this Order above specified; and it is
further:
//
Case 5:15-cv-02151-HRL Document 3 Filed 05/14/15 Page 1 of 2
US v. OLIA
No. CV-15-02151 2
ORDER TO SHOW CAUSE
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDERED that within twenty-one (21) days before the return date of this Order, respondents
may file and serve a written response to the petition, supported by appropriate affidavit(s) or
declaration(s) in conformance with 28 U.S.C. ' 1746, as well as any motion respondent desire to make,
that the petitioner may file and serve a written reply to such response, if any, within fourteen (14) days
before the return date of this Order; that all motions and issues raised by the pleadings will be
considered on the return date of this Order, and only those issues raised by motion or brought into
controversy by the responsive pleadings and supported by affidavit(s) or declaration(s) will be
considered at the return of this Order, and any uncontested allegation in the petition will be considered
admitted.
IT IS SO ORDERED.
Dated: May 14, 2015
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
Case 5:15-cv-02151-HRL Document 3 Filed 05/14/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_06-cv-04206/USCOURTS-cand-3_06-cv-04206-12/pdf.json | 830 | Patent | 28:1338 Patent Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED JOINT REQUEST AND [PROPOSED] ORDER TO PERMIT PARTIES TO BRING
EQUIPMENT INTO THE COURTROOM FOR THE 3/21/07 CLAIM-CONSTRUCTION HEARING
Case No. C 06-04206 (WHA) 391866.01
John F. Sweeney (appearance pro hac vice)
Gerard A. Haddad (appearance pro hac vice)
Tod M. Melgar (appearance pro hac vice)
Danielle V. Tully (appearance pro hac vice)
MORGAN & FINNEGAN, LLP
3 World Financial Center
New York, NY 10281-2101
Telephone: 212-415-8700
Facsimile: 212-415-8701
[email protected]
[email protected]
[email protected]
[email protected]
George Tacticos (Bar No. 60089)
MORGAN & FINNEGAN, LLP
44 Montgomery Street, Suite 2550
San Francisco, California 94104
Telephone: 415-318-8800
Facsimile: 415-676-5816
[email protected]
Attorneys for Defendant
FINISAR CORPORATION
KEKER & VAN NEST, LLP
Daralyn J. Durie - #169825
David J. Silbert - #173128
Ajay S. Krishnan - #222476
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiff
COMCAST CABLE COMMUNICATIONS, LLC
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
COMCAST CABLE COMMUNICATIONS )
CORPORATION )
)
Plaintiff and Counterclaim )
Defendant, )
)
v. )
)
FINISAR CORPORATION, )
)
Defendant and Counterclaim )
Plaintiff. ) ____________________________________
Case No. C-06-04206-WHA
STIPULATED JOINT REQUEST AND
[PROPOSED] ORDER TO PERMIT
PARTIES TO BRING EQUIPMENT INTO
THE COURTROOM FOR THE 3/21/07
CLAIM-CONSTRUCTION HEARING
Date: March 21, 2007
Time: 1:30 p.m.
Place: Courtroom: 9, 19th Floor
Judge: The Hon. William Alsup
Case 3:06-cv-04206-WHA Document 81 Filed 03/16/2007 Page 1 of 2 Case 3:06-cv-04206-WHA Document 82 Filed 03/19/07 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED JOINT REQUEST AND [PROPOSED] ORDER TO PERMIT PARTIES TO BRING
EQUIPMENT INTO THE COURTROOM FOR THE 3/21/07 CLAIM-CONSTRUCTION HEARING
Case No. C 06-04206 (WHA) 391866.01
Defendant and Counterclaim Plaintiff, Finisar Corporation, hereby requests permission to
bring into Courtroom 9 on March 21, 2007, the following equipment necessary for the claimconstruction hearing in this case scheduled for 1:30 P.M. on that day:
1. 2 laptops, each with a portable (wireless) mouse;
2. 1 projector;
3. 1 screen, with stand and skirt;
4. 1 set of speakers;
5. 1 video switch box and amplifier; and
6. Various extension cords, audio and video cables, and power strips.
Plaintiff and Counterclaim Defendant, Comcast Cable Communications, LLC, hereby
requests permission to bring into Courtroom 9, for the same proceeding, the following necessary
equipment:
1. 1 laptop, with a portable mouse;
2. 1 projector, with stand;
3. 1 screen, with stand and skirt;
4. 1 audio/visual cart;
5. 1 set of speakers;
6. 1 video switch box and amplifier;
7. Various extension cords, audio and video cables, and power strips; and
8. 2 easels
Each party aOVRKHUHE\VWLSXODWHVWRWKHRWKHU¶VUHTXHVW
Dated: March 16, 2007 MORGAN & FINNEGAN, LLP
By: /s/ Tod M. Melgar
Tod. M. Melgar
Attorneys for Defendant FINISAR
CORPORATION
Dated: March 16, 2007 KEKER & VAN NEST, LLP
By: /s/ Ajay S. Krishnan
Ajay S. Krishnan
Attorneys for Plaintiff COMCAST
CABLE COMMUNICATIONS, LLC
PURSUANT TO STIPULATION, IT SO ORDERED.
Dated: ________________________ _______________________________________
Honorable William H. Alsup
United States District Judge
Case 3:06-cv-04206-WHA Document 81 Filed 03/16/2007 Page 2 of 2
March 19, 2007
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge William Alsup
Case 3:06-cv-04206-WHA Document 82 Filed 03/19/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-15-07974/USCOURTS-ca4-15-07974-0/pdf.json | 510 | Prisoner Petitions - Vacate Sentence | null | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7974
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACOB A. BOLDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:99-cr-00074-MR-1)
Submitted: April 19, 2016 Decided: April 21, 2016
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacob A. Bolden, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 15-7974 Doc: 10 Filed: 04/21/2016 Pg: 1 of 3
2
PER CURIAM:
Jacob A. Bolden seeks to appeal the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
We have reviewed the record and find no reversible error.
According, we affirm for the reasons stated by the district
court.
Additionally, we construe Bolden’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion. United States v. Winestock, 340 F.3d 200, 208
(4th Cir. 2003). In order to obtain authorization to file a
successive § 2255 motion, a prisoner must assert claims based on
either:
(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h). Bolden seeks relief under Johnson v.
United States, 135 S. Ct. 2551 (2015). We conclude that Johnson
would entitle Bolden to no relief because Bolden’s prior
conviction for breaking and entering under North Carolina law
constitutes burglary and thus was unaffected by Johnson. 135 S.
Ct. at 2563; see United States v. Mungro, 754 F.3d 267, 272 (4th
Appeal: 15-7974 Doc: 10 Filed: 04/21/2016 Pg: 2 of 3
3
Cir.); cert. denied, 135 S. Ct. 734 (2014); United States v.
Thompson, 588 F.3d 197, 202 (4th Cir. 2009). Therefore, we deny
authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
Appeal: 15-7974 Doc: 10 Filed: 04/21/2016 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_17-cv-01070/USCOURTS-casd-3_17-cv-01070-0/pdf.json | 440 | Other Civil Rights | 28:1331cv Fed. Question: Other Civil Rights | 1
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MONTOREY DANYELL HARPER,
Military Leader UNI Star General,
Plaintiff,
v.
FED EX, SAN DIEGO, SAN DIEGO
POLICE DEPARTMENT, FBI, US, UN
Defendants.
Case No.: 3:17-cv-01070-GPC-MDD
ORDER:
(1) DENYING PLAINTIFF’S
REQUEST TO PROCEED IN
FORMA PAUPERIS
AND
(2) DISMISSING PLAINTIFF’S
COMPLAINT FOR LACK OF
SUBJECT MATTER JURISDICTION
AND FAILURE TO STATE A
CLAIM PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)
On May 23, 2017, Plaintiffs Montorey Danyell Harper (“Plaintiff” or “Harper”),
proceeding pro se, filed a Complaint against Fed Ex, the City of San Diego, the San
Diego Police Department, the Federal Bureau of Investigation (“FBI”), the United States
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 1 of 6
2
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of America, and the United Nations (collectively, “Defendants”).
1
(Dkt. No. 1.) Plaintiff
concurrently filed a motion to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) For the
reasons set forth below, the Court DENIES Plaintiff’s motion to proceed in forma
pauperis and DISMISSES Plaintiff’s Complaint for failure to state a claim pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject matter jurisdiction.
DISCUSSION
I. Motion for Leave to Proceed In Forma Pauperis
All parties instituting any civil action, suit or proceeding in a district court of the
United States, except an application for writ of habeas corpus, must pay a filing fee of
$400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit
demonstrating his inability to pay the filing fee, and the affidavit must include a complete
statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the affiant’s
poverty must be stated “with some particularity, definiteness, and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves to
proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s financial
resources alone and then independently determines whether to dismiss the complaint”
pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 745 F.2d 1221,
1226 n.5 (9th Cir. 1984). IFP status may be acquired and lost during the course of
litigation. Wilson v. Dir. of Div. of Adult Insts., No. CIV S–06–0791, 2009 WL 311150,
at *2 (E.D. Cal. Feb. 9, 2009) (internal citation omitted).
1 Although Montorey, LLC is listed as a Plaintiff in the Complaint, (Dkt. No. 1 at 2), a review of the
Complaint and Harper’s application to proceed in forma pauperis suggests that Harper is the sole
Plaintiff in this case.
2
In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
(eff. Dec. 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to
proceed IFP. Id.
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 2 of 6
3
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Here, Plaintiff has supplied an affidavit in support of his application to proceed in
forma pauperis. (Dkt. No. 2.) Plaintiff declares that his average monthly income amount
during the past twelve months totaled to approximately $4231. (Id. at 2.) Plaintiff has
$50 in cash and $830 in the form of a pre-paid debit card. (Id.) Plaintiff’s monthly
income exceeds his total monthly expenses, which amount to $3125. (Id. at 5.)
The Court concludes that Plaintiff can afford the $400 filing fee. Accordingly, the
Court DENIES Plaintiff’s request to proceed in forma pauperis.
II. Sua Sponte Screening
A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a),
is additionally subject to mandatory sua sponte screening. The Court must review
complaints filed by all persons proceeding IFP and must sua sponte dismiss any
complaint, or any portion of a complaint, which is frivolous, malicious, fails to state a
claim, or seeks damages from defendants who are immune. See 28 U.S.C. §
1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (§
1915(e)(2)).
All complaints must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are
not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id.
The “mere possibility of misconduct” falls short of meeting this plausibility standard.
Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
“When there are well-pleaded factual allegations, a court should assume their
veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(“[W]hen determining whether a complaint states a claim, a court must accept as true all
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 3 of 6
4
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
allegations of material fact and must construe those facts in the light most favorable to
the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”).
However, while the court “ha[s] an obligation where the Plaintiff is pro se,
particularly in civil rights cases, to construe the pleadings liberally and to afford the
Plaintiff the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
“supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of
the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Moreover, the federal court is one of limited jurisdiction. Lowdermilk v. U.S. Bank
Nat’l Ass’n, 479 F.3d 994, 997 (9th Cir. 2007). It possesses only that power authorized
by the Constitution or a statute. See Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986). It is constitutionally required to raise issues related to federal subject
matter jurisdiction and may do so sua sponte. Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 93–94 (1998); see Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th
Cir. 1990).
Here, Plaintiff’s Complaint is defective in multiple respects. The entirety of
Plaintiff’s Complaint is as follows:
THE CITY OF SAN DIEGO AND SAN DIEGO POLICE DEPARTMENT
COULD HAVE PREVENTED THE ASSAULT, THE LOCATION INSIDE THE
STORE, A BALL WAS ROLLED TO HIT THE PLAINTIFF IN THE FOOT.
SAN DIEGO HAS A NUMBER OF COMPLAINTS AND ENOUGH
COMPLAINTS TO HAVE PREVENTED THE ASSAULT. BOTH THE CITY
AND THE POLICE DEPARTMENT. FEDEX DOES NOT ALLOW ROLLING
OF BALLS ECT [SIC], SO IT WAS THE CITY AND THE POLICE
DEPARTMENT WHO CHOULD HAVE PREVENTED THE ASSAULT. NO
EMPLOYEES INSTRUCTED THOSE IN THE STORE ROLLING BALLS ECT
[SIC] TO STOP THEREFORE LIABILITY IS WITH FEDEX AS WELL FEDEX
IS AT FAULT. THE LAWSUIT THE PLAINTIFF HAD WAS ALSO HIT SO
THE LAWSUIT WAS ASSAULTED AND THAT IS ALSO A LIABILITY, SAN
DIEGO KNEW. CONSPIRACY SURROUNDS THE ASSAULT BECAUSE IT
INCLUDES FEDEX LIABILITY. FRAUD CENTERS AROUND THE
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 4 of 6
5
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT BECAUSE IT SURROUNDS THE US, THE UNITED STATES
OF AMERICA. THE PLAINTIFF HAS A NUMBER OF SUITS SINCE THE
SUITS WERE HIT THEN THE CONSPIRACY AND THE FRAUD IS
ALLOWED.
(Dkt. No. 1 at 2.)
Although unclear, Plaintiff’s Complaint appears to center on an alleged tort (“a ball
was rolled to hit the Plaintiff in the foot”) which occurred within a Fed Ex store. (Dkt.
No. 1 at 2.) A number of problems plague Plaintiff’s Complaint. First, Plaintiff fails to
state a claim against Defendants the United States, the FBI, and the United Nations.
Beyond ambiguous allegations that “fraud . . . surrounds the US,” (id.), Plaintiff has not
alleged how the United States, the FBI, and the United Nations were involved in
perpetrating the allegedly wrongful conduct underlying Plaintiff’s Complaint. Second, as
for Plaintiff’s claim against the remaining Defendants, Plaintiff does not provide any
allegations of the circumstances surrounding the “ball rolling” incident—the Complaint
does not even specify who committed the allegedly tortious act. Third, even liberally
construing Plaintiff’s claim as a tort claim, the Court lacks original jurisdiction to
entertain Plaintiff’s state law claim. See 28 U.S.C. § 1331. Nor has Plaintiff alleged any
information showing that the Court has diversity jurisdiction in this case. 28 U.S.C. §
1332. Moreover, Plaintiff’s Complaint cannot be construed to allege a 42 U.S.C. § 1983
claim, as Plaintiff does not allege a deprivation of a right protected by the Constitution or
created by federal statute. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).
The Court DISMISSES Plaintiff’s Complaint, because the Court lacks jurisdiction
to entertain Plaintiff’s state law claim, and because Plaintiff’s Complaint is frivolous and
fails to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
3
/ / / /
/ / / /
3 Because Plaintiff does not specify whether he intends to seek monetary relief, the Court does not reach
the question of whether the Defendants are immune from monetary relief.
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 5 of 6
6
3:17-cv-01070-GPC-MDD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion to proceed in
forma pauperis and DISMISSES Plaintiff’s Complaint for lack of subject matter
jurisdiction and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS SO ORDERED.
Dated: June 12, 2017
Case 3:17-cv-01070-GPC-MDD Document 3 Filed 06/12/17 PageID.<pageID> Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_04-cv-03026/USCOURTS-cand-5_04-cv-03026-0/pdf.json | 890 | Other Statutory Actions | 15:1692 Fair Debt Collection Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
E-FILED on 4/28/05
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
SUSANNE M. PALMER and SHARON
HAMMER, On Behalf of Themselves and Others
Similarly Situated,
Plaintiff,
v.
PAUL R. STASSINOS,
Defendant.
No. C-04-03026 RMW
ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER
DISMISSING UCL CLAIMS FOR
RESTITUTION AND DISGORGEMENT
[Re Docket No. 40]
SUSANNE M. PALMER, On Behalf of Herself
and Others Similarly Situated,
Plaintiff,
v.
FAR WEST COLLECTION SERVICES, INC.,
Defendant.
No. C-04-03027 RMW
ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER
DISMISSING UCL CLAIMS FOR
RESTITUTION AND DISGORGEMENT
[Re Docket No. 39]
SUSANNE M. PALMER, On Behalf of Herself
and Others Similarly Situated,
Plaintiff,
v.
I.C. SYSTEM, INC.; and B. BROWN.,
Defendant.
No. C-04-03237 RMW
ORDER DENYING MOTION FOR
RECONSIDERATION OF ORDER
DISMISSING UCL CLAIMS FOR
RESTITUTION AND DISGORGEMENT
[Re Docket No. 33]
Case 5:04-cv-03026-RMW Document 71 Filed 04/28/05 Page 1 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 1 Proposition 64 was approved by the voters on November 2, 2004 and became effective
on November 3, 2004. United Investors Life Ins. Co. v. Waddell & Reed, Inc., 125 Cal. App. 4th
1300, 1303 (2005).
2
Plaintiffsmovedforreconsiderationinrelated cases Palmer v. Stassinos, C-04-3026 RMW;Palmer
v. Far West Collection Services, Inc., C-04-3027 RMW; and Palmer v. I.C. System, Inc., C-04-3237
RMW, of the court's December 14, 2004 order dismissing plaintiffs' representative claim for restitution and
disgorgement ofprofits underCalifornia's Unfair CompetitionLaw ("UCL"),Cal. Bus. & Prof. Code § 17200.
The Ninth Circuit has espoused three grounds uponwhicha motionfor reconsideration may be based: (1) an
intervening change incontrolling law;(2) the availabilityofnew evidence; or, (3) the need to correct clear error
or prevent manifest injustice. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th
Cir. 1989).
There has been an intervening change in controlling law, however, that change inlawdoes not change
the outcome of the court's analysis with regard to plaintiffs' lack of Article III standing. The passage of
Proposition 64,1"amended the UCL by limiting standing to the Attorney General, certain local public
prosecutors, and any person who 'has suffered injuryinfact and has lost money or property'", Frey v. Trans
Union Corp., 127 Cal. App. 4th 986, 994 (2005) (citing § 17204), thereby eliminating "private attorney
general" standing under the UCL. Because, as set forth in the court's order dismissing the disputed claims,
neither plaintiffpaid anyofthe requested fees, plaintiffs necessarily relied uponprivate attorneygeneralstanding
to assert their representative claim forrestitutionand disgorgement ofprofits. It is clear this amendment to the
UCLappliesto pending cases. Id. at 998; Benson v. Kwikset Corp., 126 Cal. App. 4th887, 897-98 (2005)
(amendmentsto theUCLenactedbyapprovalofProposition64 applied to pending actiononappeal); Lytwyn
v. Fry's Electronics, Inc., 126 Cal. App. 4th 1455, 1479-80 (2005) (same); Bivens v. Corel Corp., 126
Cal. App. 4th 1392, 1404 (2005). Having suffered no injury in fact that would entitle them to restitution or
disgorgement under the UCL, plaintiffs cannot by law obtain the relief they seek and thus have no standing.
As set forth above, it is even clearer that plaintiffs do not have standing to seek restitution or
disgorgement under the UCL. Further, plaintiffs do not contend there is additional evidence and the
Case 5:04-cv-03026-RMW Document 71 Filed 04/28/05 Page 2 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
court does not find reconsideration is required to "correct clear error" or "prevent manifest injustice." Thus,
plaintiffs' motion for reconsideration is DENIED.
DATED: 4/27/05 /s/ Ronald M. Whyte
RONALD M. WHYTE
United States District Judge
Case 5:04-cv-03026-RMW Document 71 Filed 04/28/05 Page 3 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Notice of this document has been electronically sent to:
Counsel for Plaintiff(s):
Ronald Wilcox [email protected]
O. Randolph Bragg [email protected]
Paul Arons [email protected]
Counsel for Defendant(s):
Andrew Steinheimer [email protected]
Mark Ellis [email protected]
Counsel are responsible for distributing copies of this document to co-counsel that have not registered for
e-filing under the court's CM/ECF program.
Dated: 4/28/05 /s/ MAG
Chambers of Judge Whyte
Case 5:04-cv-03026-RMW Document 71 Filed 04/28/05 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-02426/USCOURTS-caed-2_14-cv-02426-0/pdf.json | 440 | Other Civil Rights | 42:12101 Americans with Disabilities Act | 1
Joint Stipulation for Dismissal Case: 2:14-CV-02426-JAM-CKD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SCOTT JOHNSON,
Plaintiff,
v.
M & J INVESTMANET CO PTP,
an Oregon General Partnership;
REXEL, INC., a Delaware
Corporation; and Does 1-10,
Defendants.
Case: 2:14-CV-02426-JAM-CKD
JOINT STIPULATION FOR
DISMISSAL PURSUANT TO
F.R.CIV.P. 41 (a) (1); & ORDER
THEREON
ORDER
The Court, having considered the Stipulation of Voluntary Dismissal
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) jointly filed by
the Parties, finds that this action shall be dismissed with prejudice. Each
party is to bear its own fees and costs.
Dated: 2/12/2015 /s/ John A. Mendez________________________
HONORABLE JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE
Case 2:14-cv-02426-JAM-CKD Document 12 Filed 02/12/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-00717/USCOURTS-caed-1_06-cv-00717-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 Effective April 9, 2006, the statutory filing fee for all civil actions except applications for writs of habeas corpus
1
is 350.00. 28 U.S.C. § 1914(a).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL J. SMITH, 1:06-CV-00717-OWW-DLB-P
Plaintiff,
vs. ORDER TO SUBMIT APPLICATION TO
PROCEED IN FORMA PAUPERIS
K. SCRIBNER, Warden, OR PAY BALANCE OF FILING FEE
Defendants.
/
Plaintiff is a state prisoner proceeding pro se in a civilrights action pursuant to 42 U.S.C.
§ 1983. On May 5, 2006, the United States District Court, Northern District, received and filed
plaintiff's complaint, and issued a receipt number 3385303, for plaintiff's $5.00 partial filing fee.
Plaintiff's case was transferred to and received in the Eastern District on June 8, 2006.
Pursuant to 28 U.S.C. § 1915(b) (1), plaintiff is required to pay the statutory filing fee
of $350.00 for this action. Plaintiff is required to pay the balance of $345.00 for the filing fee, or 1
submit an application to proceed in forma pauperis on the appropriate form pursuant to 28 U.S.C. §
1915. Plaintiff’s application to proceed in forma pauperis filed on June 23, 2006 did not include the
required original signature by an authorized officer of the institution of incarceration. Additionally,
plaintiff has not filed a certified copy of his prison trust account statement for the six month period
Case 1:06-cv-00717-OWW -DLB Document 5 Filed 07/06/06 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be
provided the opportunity to submit a new application to proceed in forma pauperis and a certified copy
of his trust account statement, or to pay the $345.00 balance of the filing fee.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk’s Office shall send to plaintiff the form for application to proceed in forma
pauperis.
2. Within thirty days of the date of service of this order, plaintiff shall submit a
completed application to proceed in forma pauperis, or in the alternative, pay the balance of $345.00,
for a total of $350.00, filing fee for this action. Failure to comply with this order will result in a
recommendation that this action be dismissed.
IT IS SO ORDERED.
Dated: July 6, 2006 /s/ Dennis L. Beck
3c0hj8 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-00717-OWW -DLB Document 5 Filed 07/06/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_06-cv-06280/USCOURTS-cand-5_06-cv-06280-5/pdf.json | 890 | Other Statutory Actions | 15:1692 Fair Debt Collection Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER, page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IRMA SANCHEZ, et al.,
Plaintiffs,
v.
CLIENT SERVICES, INC., et al.,
Defendants.
__________________________________
)
)
)
)
)
)
)
)
)
)
Case No.: C 06-6280 PVT
ORDER SETTING DEADLINE FOR
DEFENDANT KARLA DAVIS TO FILE
EITHER A “CONSENT TO PROCEED
BEFORE A UNITED STATES MAGISTRATE
JUDGE,” OR ELSE A “DECLINATION TO
PROCEED BEFORE A UNITED STATES
MAGISTRATE JUDGE AND REQUEST FOR
REASSIGNMENT”
Defendant Karla Davis made her first appearance in this action on March 14, 2007. All
other parties previously consented to Magistrate Judge jurisdiction. Defendant Karla Davis has
not yet filed either a “Consent to Proceed Before a United States Magistrate Judge,” or else a
“Declination to Proceed Before a United States Magistrate Judge and Request for
Reassignment.” Therefore,
IT IS HEREBY ORDERED that no later than April 2, 2007, Defendant Karla Davis shall
file either a “Consent to Proceed Before a United States Magistrate Judge,” or else a “Declination
to Proceed Before a United States Magistrate Judge and Request for Reassignment.” Both forms
are available from the clerk of the court, or on the court’s website at www.cand.uscourts.gov in
the forms (civil) section.
Dated: 3/19/07
_________________________
PATRICIA V. TRUMBULL
United States Magistrate Judge
Case 5:06-cv-06280-PVT Document 24 Filed 03/19/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-19-40889/USCOURTS-ca5-19-40889-0/pdf.json | 290 | Other Real Property Actions | null | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-40889
Summary Calendar
PAMELA ZIOLKOWSKI MARGOLIS,
Plaintiff - Appellant
v.
JAMES B. NUTTER & COMPANY; BENJAMIN S. CARSON, SR.,
SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CV-162
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
Appellant Pamela Ziolkowski Margolis appeals the dismissal of her
claims against James B. Nutter & Company (“JBNC”). For the following
reasons, we AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020
Lyle W. Cayce
Clerk
Case: 19-40889 Document: 00515375989 Page: 1 Date Filed: 04/08/2020
No. 19-40889
2
A. Background
In 2008, Margolis, her mother, and her husband acquired property
together. They sought a home equity conversion mortgage (“HECM”), also
known as a reverse mortgage, through which homeowners who are sixty-two
or older borrow against their accumulated home equity and receive cash
payments secured by a lien against their home while protecting their ability to
live in the home. See generally 12 U.S.C. § 1715z-20. Margolis, not yet sixtytwo, assigned her property interest to her mother and husband, who obtained
an HECM.
After Margolis’s mother and husband passed away, Margolis became the
property’s sole owner. In 2016, JBNC, which held the promissory note secured
by the property,1 notified Margolis that the promissory note had become due
and payable upon her husband’s death. Through counsel, Margolis demanded
that JBNC seek to assign the HECM to the U.S. Department of Housing and
Urban Development (“HUD”) pursuant to the Mortgagee Optional Election
(“MOE”) Program.2 In response, JBNC reviewed Margolis’s file, sought
additional documentation, and notified Margolis that it would “submit her
documentation to HUD for final review and approval” and that “[i]f HUD
approve[d] the application, Mrs. Margolis [would] be able to continue to occupy
the property.”
Meanwhile, in May 2017, Margolis received notice of JBNC’s intent to
foreclose on the property. In August 2017, JBNC communicated to Margolis
1 Griffin Financial Mortgage originally held the interest but transferred it to JBNC.
2 The MOE Program gives lenders the option to assign to HUD eligible HECMs that
were obtained before August 4, 2014—like Margolis’s—but does not “interfere[] with any
right of the mortgagee to enforce its private contractual rights under the terms of the HECM.”
U.S. DEP’T OF HOUSING AND URB. DEV., Mortgagee Letter 2015-15, at 7 (June 12, 2015).
Case: 19-40889 Document: 00515375989 Page: 2 Date Filed: 04/08/2020
No. 19-40889
3
that the application had been denied because Margolis’s “[p]roperty tax
statement indicate[d] delinquent taxes” but that once JBNC received relevant
documentation, it would resubmit the MOE program application. Margolis
paid the property taxes and provided additional documentation to JBNC so
that it could resubmit her application to HUD.
Margolis filed suit against JBNC and later added Ben Carson, the
Secretary of HUD, as a defendant. Margolis alleged several causes of action;
relevant here, she alleged negligence, negligent misrepresentation, and
promissory estoppel. JBNC filed a motion to dismiss for failure to state a
claim, which the district court granted after wholly adopting the magistrate
judge’s recommendation. Margolis’s claims against Carson were later
dismissed for lack of subject-matter jurisdiction. Margolis now appeals the
dismissal of her claims against JBNC only.
B. Discussion
We review the district court’s dismissal for failure to state a claim de
novo. Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir.
2014). Under Rule 12(b)(6), the plaintiff’s complaint must contain sufficient
factual allegations to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Margolis attached a number of documents, including
letters from JBNC, to her complaint, so we can consider them in evaluating
whether the motion to dismiss was properly granted. See United States ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003).
For the following reasons, we affirm the district court’s dismissal of Margolis’s
claims.
First, Margolis contends that the district court erred in interpreting
HUD regulations because it assumed that HUD had discretion to deny an
eligible loan. She argues that HUD has no such discretion and that, since HUD
Case: 19-40889 Document: 00515375989 Page: 3 Date Filed: 04/08/2020
No. 19-40889
4
was required to accept an eligible loan, it should be presumed that JBNC failed
to timely submit the correct paperwork to HUD. However, as demonstrated by
the attachments to the complaint, Margolis’s argument fails. “HUD
regulations govern the relationship between the reverse-mortgage lender and
HUD as insurer of the loan” and “do not give the borrower a private cause of
action unless the regulations are expressly incorporated into the lenderborrower agreement.” Johnson v. World All. Finan. Corp., 830 F.3d 192, 196
(5th Cir. 2016). The regulations were not expressly incorporated here and
thus, as a matter of law, Margolis does not have a private cause of action.
Second, Margolis asserts that, relevant to her negligence claim, the
district court erred in determining that JBNC did not owe a duty to Margolis
because she was not actually a borrower on the loan but instead a nonborrowing spouse. According to Margolis, JBNC had a duty in tort,
independent from the contract, to avoid foreseeable injury to Margolis.
However, she fails to cite any supporting authority for this overbroad
assertion. She also fails to cite any legal authority for her claim of damages—
that she paid ad valorem taxes she owed but otherwise wouldn’t have paid.3
Her negligence claim was properly dismissed.4
3 Although she stated that she was not the borrower, she also claims to be the property
owner which makes the taxes her obligation. See A. J. Robbins & Co. v. Roberts, 610 S.W.2d
854, 855 (Tex. App.–Amarillo 1980, writ ref’d N.R.E.) (noting that “[t]he obligation for ad
valorem taxes on real estate is by statute imposed on the owner of the realty.”).
4 Additionally, under Texas law, “[t]he nature of the injury most often determines”
whether the action is one in contract or tort, and “[w]hen the injury is only the economic loss
to the subject of a contract itself, the action sounds in contract alone.” Jim Walter Homes,
Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Thus, her negligence claim fails. We note that
Texas courts have allowed tort recovery for negligent misrepresentation in limited situations,
but we conclude none of them apply here. See LAN/STV v. Martin K. Eby Constr. Co., 435
S.W.3d 234, 245 (Tex. 2014). In any event, as we discuss more fully, there are other problems
with her negligent misrepresentation claim.
Case: 19-40889 Document: 00515375989 Page: 4 Date Filed: 04/08/2020
No. 19-40889
5
Third, Margolis argues that the district court erred in determining that
she failed to plausibly allege that JBNC’s statements were false and therefore
did not sufficiently allege a claim for negligent misrepresentation. The
elements of negligent misrepresentation are:
(1) the representation is made by a defendant in the course of his
business, or in a transaction in which he has a pecuniary interest;
(2) the defendant supplies “false information” for the guidance of
others in their business; (3) the defendant did not exercise
reasonable care or competence in obtaining or communicating the
information; and (4) the plaintiff suffers pecuniary loss by
justifiably relying on the representation.
Fed. Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991). In addition
to issues with the fourth element, Margolis cannot prevail on the second
element. She contends that JBNC negligently misrepresented that her HEMC
was eligible for the MOE program and would be assigned to the program if she
paid her property taxes. Reviewing the relevant documentation attached to
the complaint, it shows that JBNC never guaranteed that HUD would accept
her application after it was submitted. JBNC said only that it would resubmit
her application, and JBNC had made clear that Margolis’s application was
subject to HUD’s “final review and approval.” There was no falsity in that
statement.
Fourth and finally, Margolis argues that the district court erred in
determining that she had not alleged a plausible promissory estoppel claim.
“Under Texas law, the requisites of promissory estoppel are: (1) a promise,
(2) foreseeability of reliance thereon by the promisor, and (3) substantial
reliance by the promisee to his detriment.” MetroplexCore, L.L.C. v. Parsons
Transp., Inc., 743 F.3d 964, 977 (5th Cir. 2014) (per curiam) (cleaned up).
Margolis asserts that she relied on JBNC’s assertion that if she paid her
property taxes, her MOE application would be approved. But, as discussed
Case: 19-40889 Document: 00515375989 Page: 5 Date Filed: 04/08/2020
No. 19-40889
6
above, JBNC never promised that HUD would accept Margolis’s application;
JBNC stated only that it would resubmit it. Because JBNC did not promise
that the application would be accepted, Margolis cannot have reasonably relied
on such a promise.
AFFIRMED.
Case: 19-40889 Document: 00515375989 Page: 6 Date Filed: 04/08/2020 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-05-02773/USCOURTS-ca8-05-02773-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | null | 1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 05-2773/3163
___________
Otha Smith, *
*
Appellant, *
* Appeals from the United States
v. * District Court for the
* District of Nebraska.
Harold Clarke; Patrick Colerick, *
*
Appellees. *
__________
Submitted: March 17, 2006
Filed: August 7, 2006
___________
Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,1
District Judge.
___________
ARNOLD, Circuit Judge.
Inmate Otha Smith sued Dr. Patrick Colerick and Harold Clarke, the director
of the Nebraska Department of Correctional Services, for violation of his civil rights
and for negligence. The district court granted the defendants' motion for summary
judgment. We affirm in part and reverse in part.
Appellate Case: 05-2773 Page: 1 Date Filed: 08/07/2006 Entry ID: 2075307
-2-
I.
After Mr. Smith accidentally splashed cleaning fluid in his left eye while he was
working in the kitchen of a Nebraska prison in March, 1999, he complained of pain
and asked to see a doctor. The record reflects that an eye examination was scheduled
for him in June of that year, but he was not examined at that time. In November,
Dr. Colerick conducted an examination and determined that the response of
Mr. Smith's pupils to light was normal; the doctor told Mr. Smith that his vision
trouble was caused by a cataract. Six months later, Mr. Smith complained about
redness in the eye, and Dr. Colerick examined him again. Dr. Colerick attributed the
redness to Mr. Smith's age and exposure to the sun.
In May, 2001, Dr. Colerick examined Mr. Smith's eye for a third time. At this
examination, the doctor observed that Mr. Smith's pupils were not reacting normally,
and he referred him to an opthamologist. The opthamologist determined that a tumor
on Mr. Smith's pituitary gland was pinching his optic nerve. Although Mr. Smith had
the tumor surgically removed, he was left without the use of his left eye.
Mr. Smith filed this action, claiming, under 42 U.S.C. § 1983, that Mr. Clarke
and Dr. Colerick violated his constitutional rights by failing to treat the tumor in a
timely manner. He also claimed that the defendants were negligent under Nebraska
law. The district court granted summary judgment to the defendants. Regarding the
§ 1983 claims, the court determined that Mr. Smith failed to produce any evidence
indicating that Dr. Colerick knew of the tumor before May, 2001, and that there was
no evidence that Mr. Clarke was involved in the medical treatment of inmates. The
district court also determined that Mr. Clarke and Dr. Colerick were both state
employees and thus Mr. Smith's negligence claims were barred because he had failed
to file an administrative claim against them before proceeding in court. See Neb. Rev.
Stat. § 81-8,213.
Appellate Case: 05-2773 Page: 2 Date Filed: 08/07/2006 Entry ID: 2075307
-3-
After Mr. Smith filed a notice of appeal, he moved to reopen the district court's
judgment under Fed. R. Civ. P. 60(b). In that motion, Mr. Smith offered evidence that
he had indeed filed an administrative claim before filing his lawsuit and maintained
that he therefore should be allowed to proceed on his negligence claims. The district
court denied the motion on the ground that Mr. Smith had the burden of presenting
this evidence prior to judgment in response to the defendants' summary judgment
motion.
II.
We consider first whether the defendants were entitled to summary judgment
on Mr. Smith's civil rights claims. We review de novo the district court's order
granting summary judgment. Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006).
Mr. Smith maintained that the failure to detect the tumor on his eye, despite his
repeated complaints, amounted to "deliberate indifference to serious medical needs,"
in violation of the eighth and fourteenth amendments. Estelle v. Gamble, 429 U.S. 97,
105-06 (1976). To succeed on a deliberate-indifference claim, an inmate must show
that the defendant "knew of and disregarded a serious medical need." Phillips v.
Jasper County Jail, 437 F.3d 791, 795 (8th Cir. 2006). The defendants concede that
the pituitary tumor was a serious medical need. We focus, then, on whether Mr. Smith
presented any evidence that the defendants knew of and disregarded the tumor. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994). We review the evidence in the light
most favorable to Mr. Smith, the nonmoving party. Parsons v. Pioneer Seed Hi-Bred
Int'l, Inc., 447 F.3d 1102, 1104 (8th Cir. 2006).
Although Mr. Clarke is the chief administrator of Nebraska's prison system, we
have repeatedly held that a supervisor cannot be held liable for an eighth amendment
violation if he or she is neither aware of the conduct nor "personally involved in the
violation." Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002); Camberos v.
Branstad, 73 F.3d 174, 176 (8th Cir. 1995). There is no evidence that Mr. Clarke was
Appellate Case: 05-2773 Page: 3 Date Filed: 08/07/2006 Entry ID: 2075307
-4-
personally aware of Mr. Smith's health problems or his medical treatment. The only
evidence that Mr. Smith presented in support of his eighth-amendment claim against
Mr. Clarke were copies of grievances and other communications that he filed with the
prison staff and responses from prison employees. Mr. Smith contends that because
one of the forms that he completed was answered by a "subordinate" of Mr. Clarke,
a factfinder could conclude that Mr. Clarke knew of Mr. Smith's condition. We think
that inference is impermissible, particularly given the absence of evidence that
Mr. Clarke was aware of the correspondence or that he regularly reviewed such
communications. Cf. Boyce v. Moore, 314 F.3d 884, 889 (7th Cir. 2002); Vance v.
Peters, 97 F.3d 987, 994 (7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997).
As for Dr. Colerick, the evidence reveals that he examined Mr. Smith on three
different occasions, each time performing tests on Mr. Smith's eyes. Dr. Colerick
stated in an affidavit that until the third examination there was no reason to believe
that Mr. Smith's eye problems could stem from a tumor. Dr. Colerick also presented
the affidavit of the doctor who removed Mr. Smith's tumor; that doctor said that
Mr. Smith received appropriate diagnostic care and treatment and that the tumor in
question was difficult to detect in an ordinary examination. Mr. Smith did not present
any other evidence that suggested Dr. Colerick inferred the existence of the tumor
prior to May, 2001, or that he delayed Mr. Smith's treatment after that examination.
Malpractice alone is not actionable under the eighth amendment. Estelle, 97 U.S. at
106. Without evidence that Dr. Colerick was aware of facts from which the inference
of the tumor's existence could be drawn and that he drew that inference, see Farmer,
511 U.S. at 837, the district court correctly granted Dr. Colerick summary judgement
on Mr. Smith's constitutional claim. Cf. Johnson v. Quinones, 145 F.3d 164, 168-70
(4th Cir. 1998).
III.
In the second and third counts of his amended complaint, Mr. Smith laid
negligence claims against Mr. Clarke and Dr. Colerick based on Nebraska law. The
Appellate Case: 05-2773 Page: 4 Date Filed: 08/07/2006 Entry ID: 2075307
-5-
district court, exercising its supplemental jurisdiction over these claims, see 28 U.S.C.
§ 1367, granted the defendants' summary judgment motion. The court concluded that
Mr. Smith failed to show that he had exhausted the administrative remedies for claims
against state employees as required by the Nebraska State Tort Claims Act (NSTCA).
Because we find significant differences between Mr. Clarke's and Dr. Colerick's status
under the NSTCA, we address the claims against them separately.
A.
As director of the Nebraska Department of Correctional Services, Mr. Clarke
clearly qualifies as an "employee of the state" under the NSTCA. See Neb. Rev. Stat.
§ 81-8,210(3). The NSTCA requires those with tort claims against state employees
to file a claim with the State Tort Claims Board before filing an action in court. See
Neb. Rev. Stat. § 81-8,213. Mr. Smith's allegations of negligence qualify as "tort
claims" under the Act. See Neb. Rev. Stat. § 81-8,210(4).
In their summary judgment motion, the defendants contended that Mr. Smith
had not filed a complaint with the state Tort Claims Board before bringing his federal
action, and Mr. Smith concedes that he presented no evidence of his administrative
filing in response to the defendants' motion. After the district court granted summary
judgment, however, Mr. Smith apparently recalled that he had, in fact, filed a
complaint with the Board prior to initiating the court case, and so he filed a Rule 60(b)
motion asking the district court to set aside its judgment. While conceding that he was
partly responsible for failing to bring the administrative claim to the court's attention,
Mr. Smith argued that the state should have been aware of the filing and that its
employees should not be allowed to prevail on the strength of an incorrect assertion
made in their summary judgment motion. The district court declined to set aside its
judgment. We review that decision for an abuse of discretion. Miller v. Baker
Implement Co., 439 F.3d 407, 414 (8th Cir. 2006).
Appellate Case: 05-2773 Page: 5 Date Filed: 08/07/2006 Entry ID: 2075307
-6-
Given Mr. Smith's failure to bring his administrative filing to the attention of
the district court, we cannot say that the court abused its discretion in declining to set
aside the judgment. A party's failure to produce evidence that was available to it at
the time that the matter was before the court is not the kind of mistake or neglect that
will support granting the extraordinary relief provided by Rule 60(b). See Mas
Marques v. Digital Equip. Corp., 637 F.2d 24, 29-30 (1st Cir. 1980); Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001); Jarrett v. US Sprint Commun.
Co., 22 F.3d 256, 262 n.4 (10th Cir. 1994), cert. denied, 513 U.S. 951 (1994). Nor
does the record yield any deliberate fraud by the state attorney general's office when
it incorrectly asserted that Mr. Smith had not filed a complaint as required by the
NSTCA. Without clear and convincing evidence that the misrepresentation was
knowing and intentional, see E.F. Hutton & Co. v. Berns, 757 F.2d 215, 216-17 (8th
Cir. 1985), the district court had no obligation to grant the motion.
B.
The district court concluded that Dr. Colerick also qualified as a state employee
under the NSTCA. Mr. Smith contends that Dr. Colerick is an independent contractor,
not a state employee, and therefore the negligence action against him is not subject to
the requirements of the NSTCA. We agree.
The district court determined that the Nebraska legislature intended to include
Dr. Colerick in the NSTCA's definition of employee, based on the language of Neb.
Rev. Stat. § 81-8,239.08: "Any person who, at the request of the director of a state
agency, provides medical ... services" to a state prisoner "may be represented by the
Attorney General in the same manner as a state officer or employee ... in any civil
action under ... 42 U.S.C. § 1983, which arose as a result of providing such services."
The provision also authorizes the indemnification of such providers "for liability for
violations of civil rights in the same manner as a state officer or employee." Neb.
Rev. Stat. § 81-8,239.08. The district court read this statute to bring providers of
Appellate Case: 05-2773 Page: 6 Date Filed: 08/07/2006 Entry ID: 2075307
-7-
prison medical services, such as Dr. Colerick, within the full spectrum of protection
provided by the NSTCA.
We think that the scope of § 81-8,239.08 is much narrower. By its terms, the
statute does not say that medical services providers are "employees" for purposes of
the NSTCA. In fact, it intimates quite plainly that they are not state employees. The
statute merely authorizes the Nebraska Attorney General to represent medical
providers who are sued under the federal civil rights laws and provides state
indemnification if the providers are found liable for violating those laws. The right
to state representation and indemnification in § 1983 actions is not equivalent to the
wider procedural and substantive protections that state employees receive under the
NSTCA. If the Nebraska legislature intended to extend the full scope of NSTCA's
protection to medical services providers like Dr. Colerick, it could have done so very
easily by including them in the definition of "employee of the state" contained in § 81-
8,210(3). Instead, § 81-8,239.08 affords medical services contractors only a few of
the NSTCA's protections and then only in cases arising under § 1983.
Legislative history supports our construction of the statute. The Nebraska
attorney general's office has reviewed § 81-8,239.08 and noted that the "[l]egislative
staff who presented the bill to the Committee on the Judiciary informed the committee
that the bill was narrowly tailored to address only the civil rights act and not medical
malpractice." Neb. Op. Att'y Gen. 04016, 2004 WL 858921, at *1 (April 14, 2004)
(emphasis added) (citing Neb. Comm. on Judiciary, L.B. 560, Feb. 28, 1991, p. 26).
The legislative history indicates that § 81-8,239.08 was enacted to address the specific
fear that the state would be unable to find any medical services practitioners willing
to care for its prisoners unless it protected those practitioners from federal civil rights
actions that might arise. Att'y Gen. Op. at *1 (citing Neb. Comm. on Judiciary, L.B.
560, Feb. 28, 1991, p.27). This explains why the benefits that § 81-8239.08 bestows
Appellate Case: 05-2773 Page: 7 Date Filed: 08/07/2006 Entry ID: 2075307
-8-
upon medical services providers are limited to actions arising under § 1983, and do
not cover ordinary negligence claims like the one that Mr. Smith made against Dr. Colerick.
In the district court, Dr. Colerick relied entirely on § 81-8,239.08 to
demonstrate that he should be considered an "employee" for purposes of the NSTCA.
Because we hold that this section does not provide contracted medical service
providers the full scope of protection offered by the NSTCA, summary judgment was
proper only if Dr. Colerick qualifies as an "employee of the state" pursuant to § 81-
8,210(3). Nebraska courts look at the totality of the circumstances to decide whether
one is an employee or an independent contractor. See Reeder v. State, 11 Neb. App.
215, 221-22, 649 N.W.2d 504, 511-12 (2002). The record before the district court
established that Dr. Colerick was not a regular, full-time state employee, but was
instead hired on a contract basis. The pleadings indicate that he kept a separate place
of business. Dr. Colerick had considerable freedom to schedule appointments,
prescribe any necessary medicine, and diagnose and treat the inmates whom he saw.
We believe that for purposes of the NSTCA, Dr. Colerick was not "an employee of
the state" at the relevant time as a matter of law, and therefore the NSTCA is
inapplicable to Mr. Smith's negligence action against him. We thus find it necessary
to reverse the order of summary judgment with respect to this claim. We note that
Dr. Colerick moved for summary judgment on grounds other than the one on which
the district court granted judgment, and that the district court may on remand consider
those grounds. We note, too, that the district court may reconsider whether it should
continue to assert supplemental jurisdiction over Mr. Smith's state-law action against
Dr. Colerick. See 28 U.S.C. § 1367(c).
IV.
For the reasons stated, we affirm the judgment with respect to Mr. Smith's
claims against Mr. Clarke, and with respect to his federal claim against Dr. Colerick.
We reverse the summary judgment entered in favor of Dr. Colerick on Mr. Smith's
state-law claims, and we remand for further proceedings consistent with this opinion.
______________________________
Appellate Case: 05-2773 Page: 8 Date Filed: 08/07/2006 Entry ID: 2075307 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_06-cv-01303/USCOURTS-ared-4_06-cv-01303-1/pdf.json | 110 | Insurance | 29:1132 E.R.I.S.A.-Employee Benefits | Case 4:06-cv-01303-JMM Document 14 Filed 11/06/06 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-02757/USCOURTS-caed-2_09-cv-02757-43/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL BAKER,
Plaintiff,
v.
WARDEN PEREZ, Et al.,
Defendants.
No. 2:09-cv-2757 MCE KJN P
ORDER
On June 18, 2015, the undersigned presided over a settlement conference in this action
which resulted in a settlement of all remaining claims. The essential terms of that settlement
agreement were placed on the record in open court.
During the settlement conference the court was advised that the trial of this action had
been set to commence on January 12, 2015. However, that trial date was vacated on the eve of
trial. Plaintiff advised the court that in connection with that anticipated trial date his mother, on
his behalf, had forwarded to the U.S. Marshal the required witness fees and travel expenses in the
form of money orders to be served with five trial subpoenas issued on his behalf. (See ECF Nos.
198-1 and 199.) According to plaintiff, when his trial subpoena issued to a Dr. Harrison was
quashed by court order prior to the scheduled trial, his mother received back the witness fee and
travel expenses in connection with that subpoena. However, with respect to subpoenas issued to
Dr. J. Nepomuceno, R.N. John Clark, SPT L. St. Laurent and one other current or former
Case 2:09-cv-02757-MCE-KJN Document 256 Filed 06/24/15 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
employee at High Desert State Prison, plaintiff had assumed that the witness fees and travel
expenses were retained due to the anticipated re-scheduling of the trial date.
Now that the case has settled, there will be no trial and the four witnesses previously
subpoenaed by plaintiff will not be required to travel or appear to testify at trial. Accordingly, the
undersigned requests that the California Department of Corrections and Rehabilitation and the
California Attorney General’s Office make inquiry as to whether all or part of the witness fees
and travel expenses advance by plaintiff’s mother in connection with those trial subpoenas may
be refunded to her.
Accordingly, IT IS HEREBY ORDERED that:
1. The offices referred to above make the requested inquiry and report the results of that
inquiry to the court.
2. The Clerk of the Court is directed to serve a copy of this order on Monica Anderson,
Supervising Deputy Attorney General at the California Attorney General’s Office.
Dated: June 24, 2015
dad1.civilrights
baker09cv2757.witnessfees
Case 2:09-cv-02757-MCE-KJN Document 256 Filed 06/24/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01030/USCOURTS-caed-2_16-cv-01030-0/pdf.json | 440 | Other Civil Rights | 42:1983 Civil Rights Act | {01561491.DOCX} 1
JOINT STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PORTER | SCOTT
350 University Ave., Suite 200
Sacramento, CA 95825
TEL: 916.929.1481
FAX: 916.927.3706
A PROFESSIONAL CORPORATION
Stephen E. Horan, SBN 125241
Adam DeBow, SBN 305809
350 University Avenue, Suite 200
Sacramento, California 95825
TEL: 916.929.1481 • FAX: 916.927.3706
Bruce S. Alpert, SBN 75684
OFFICE OF THE COUNTY COUNSEL
COUNTY OF BUTTE
25 County Center Drive, Suite 201
Oroville, CA 95965
TEL: 530.538.7621 • FAX: 530.538.6891
Attorneys for Defendant, COUNTY OF BUTTE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CAROL CRANE,
Plaintiff,
v.
COUNTY OF BUTTE, TIMOTHY HILL
former Butte County Correctional Officer;
KORY L. HONEA, Butte County SheriffCoroner, DOES 1-20,
Defendants.
___________________________________/
CASE NO.: 2:16-cv-01030-TLN-CMK
JOINT STIPULATION AND ORDER TO
EXTEND TIME TO RESPOND TO
COMPLAINT
Complaint Filed: 3/16/15
Plaintiff CAROL CRANE and Defendant COUNTY OF BUTTE HEREBY STIPULATE
AND AGREE that Defendant COUNTY OF BUTTE and all other Defendants may have until
August 20, 2016, to file a responsive pleading to Plaintiff’s Complaint. This extension will allow
all parties the opportunity to conduct a settlement conference on August 5, 2016 in front of United
States Magistrate Judge Kendall J. Newman. This is the first stipulation for an extension of time
between the parties.
///
///
Case 2:16-cv-01030-TLN-CMK Document 7 Filed 06/21/16 Page 1 of 3
{01561491.DOCX} 2
JOINT STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PORTER | SCOTT
350 University Ave., Suite 200
Sacramento, CA 95825
TEL: 916.929.1481
FAX: 916.927.3706
IT IS SO STIPULATED AND AGREED.
Dated: June 21, 2016 PORTER SCOTT
A PROFESSIONAL CORPORATION
By __/s/ Stephen E. Horan
Stephen E. Horan
Adam DeBow
Attorneys for Defendant
COUNTY OF BUTTE
Dated: June 20, 2016 LAW OFFICE OF STEWART KATZ
By _/s/Stewart Katz (Authorized 6/20/16)
Stewart Katz
Attorney for Plaintiff
CAROL CRANE
Case 2:16-cv-01030-TLN-CMK Document 7 Filed 06/21/16 Page 2 of 3
{01561491.DOCX} 3
JOINT STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PORTER | SCOTT
350 University Ave., Suite 200
Sacramento, CA 95825
TEL: 916.929.1481
FAX: 916.927.3706
ORDER
IT IS ORDERED, that Defendant, BUTTE COUNTY and ALL OTHER DEFENDANTS are
granted an extension of time until August 20, 2016 to file a responsive pleading to Plaintiff’s
complaint.
Dated: June 21, 2016
Case 2:16-cv-01030-TLN-CMK Document 7 Filed 06/21/16 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_15-cv-03304/USCOURTS-cand-4_15-cv-03304-2/pdf.json | 790 | Other Labor Litigation | 28:1332 Diversity-Petition for Removal | -1-
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Motion for Administrative Relief to Consider Whether Cases Should be Related or a
Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been
filed. The time for filing an opposition or statement of support has passed. As the judge
assigned to the earliest filed case below that bears my initials, I find that the more recently filed
case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall
be reassigned to me. Any cases listed below that are not related to the case assigned to me are
referred to the judge assigned to the next-earliest filed case for a related case determination.
C 15-01078 JSW AccentCare, Inc. Et al v. Echevarria et al
C 15-03304 JSW McNeal v. AccentCare, Inc.
I find that the above case is related to the case assigned to me: JSW
C 15-03668 RS AccentCare, Inc. Et al v. Jacobs
I find that the above case is related to the case assigned to me: JSW
ORDER
The parties are instructed that all future filings in any reassigned case are to bear the
initials of the newly assigned judge immediately after the case number. Any case management
conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the
dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly.
Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR
Local Rules remain in effect; and any deadlines established in a case management order continue
to govern, except dates for appearance in court, which will be rescheduled by the newly assigned
judge.
Dated: September 4, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
Copies to: Courtroom Deputies
Case Systems Administrators
Counsel of Record
Case 4:15-cv-03304-JSW Document 33 Filed 09/04/15 Page 1 of 2
-2-
Entered into Assignment Program: (date)
Case 4:15-cv-03304-JSW Document 33 Filed 09/04/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_04-cv-06533/USCOURTS-caed-1_04-cv-06533-7/pdf.json | 443 | Civil Rights Accommodations | 42:1983 Civil Rights Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHELLE EZELL, et al., )
)
Plaintiffs, )
)
)
vs. )
)
)
EDWARDS THEATRES, INC., )
et al., )
)
Defendants. )
)
Case No. 1:04-CV-06533-SMS
STIPULATED
ORDER REGARDING
PLAINTIFFS’ MOTION TO
COMPEL DISCOVERY
On March 8, 2006, this Court conducted an in-chambers discovery conference
concerning plaintiffs’ motion to compel further discovery responses by defendants
Edwards Theatres, Inc. (“Edwards”) and Turner Security Systems, Inc. (“Turner
Security”). [Docket Nos. 37 & 43.] Plaintiffs were represented by Christopher
Brancart and Elizabeth Brancart. Defendants were represented by Christine Cantin.
After reviewing the parties’ joint stipulation filed pursuant to Local Rule 37-251(c),
hearing the arguments of counsel and examining samples of the various documents
at issue in plaintiffs’ motion, the Court rules as follows:
A. Dispute Regarding Discovery of the Identity of Defendants’
Employees and Former Employees
Defendant Edwards shall provide supplemental responses to plaintiffs’
Case 1:04-cv-06533-SMS Document 57 Filed 04/11/06 Page 1 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
interrogatory numbers 2 and 8 as follows:
1. Edwards shall disclose the name, last known address,
telephone number (if readily available), job title and date of termination
of former employees who worked at the Edwards Fresno Stadium
Cinemas at any time between January 1, 2002 until June 30, 2005, in the
positions of (1) general manager, (2) assistant manager, (3) associate
manager, (4) shift leader (box office & usher only), (5) box office
cashier, and (6) usher.
2. Edwards shall disclose the name and job title of current
employees who worked at the Edwards Fresno Stadium Cinemas at any
time between January 1, 2002 until June 30, 2005, in the positions of (1)
general manager, (2) assistant manager, (3) associate manager, (4) shift
leader (box office & usher only), (5) box office cashier, and (6) usher.
3. If it is less burdensome for Edwards to identify all former
employees at the who worked at the Edwards Fresno Stadium Cinemas
at any time between January 1, 2002 until June 30, 2005, without regard
to position, then Edwards may choose to do so.
4. Plaintiffs’ counsel may contact the former employees
identified by Edwards by letter or telephone call by counsel or counsel’s
staff, but may not use private investigators to contact those persons.
5. The responses provided by Edwards shall be treated as
“Confidential Information” subject to the stipulated protective order
issued by the Court on August 23, 2005 [Docket No. 32].
Defendant Turner shall provide supplemental responses to plaintiffs’
interrogatory numbers 1 and 2 as follows:
1. Turner Security shall disclose the name, last known
address, telephone number (if readily available), and date of termination
of its former employees who provided security services at the Edwards
Case 1:04-cv-06533-SMS Document 57 Filed 04/11/06 Page 2 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Fresno Stadium Cinemas at any time between January 1, 2002 until June
30, 2005.
2. Turner Security shall disclose the names of current
employees who provided security services at the Edwards Fresno
Stadium Cinemas at any time between January 1, 2002 until June 30,
2005.
3. Turner Security shall disclose the name, last known
address, telephone number (if readily available), and date of termination
of its management employees who supervised Turner Security’s
provision of security services at the Edwards Fresno Stadium Cinemas
at any time between January 1, 2002 until June 30, 2005.
4. Turner Security shall disclose the names of current
management employees who supervised Turner Security’s provision of
security services at the Edwards Fresno Stadium Cinemas at any time
between January 1, 2002 until June 30, 2005.
5. The responses provided by Turner Security shall be treated
as “Confidential Information” subject to the stipulated protective order
issued by the Court on March 17, 2006 [Docket No. 55].
6. Plaintiffs have withdrawn without prejudice interrogatory
number 3.
B. Discovery of the Identity of Potential Third Party Witnesses by Way
of Unredacted Incident Reports
DefendantEdwardsshall provide supplemental responses to plaintiffs’requests
for production of documents numbers 1, 13 and 20 as follows:
1. Edwards shall produce unredacted copies of all incident
reports regarding the Fresno Edwards Stadium Cinemas between
January 1, 2002, and June 30, 2005, subject to redaction by defense
counsel of the names, identifying information and contact information
Case 1:04-cv-06533-SMS Document 57 Filed 04/11/06 Page 3 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
for any apparent juveniles involved in incidents involving sex, alcohol
or illegal substances.
2. The documents provided by Edwards shall be treated as
“Confidential Information” subject to the stipulated protective order
issued by the Court on August 23, 2005 [Docket No. 32].
Defendant Turner Security shall provide supplemental responses to plaintiffs’
requests for production of document numbers 1 as follows:
1. Turner Security shall produce unredacted copies of all
incident reports prepared by its security personnel regarding the Fresno
Edwards Stadium Cinemas between January 1, 2002, and June 30, 2005,
subject to redaction by defense counsel of the names, identifying
information and contact information of any apparent juveniles involved
in incidents involving sex, alcohol or illegal substances.
2. The documents provided byTurner Security shall be treated
as “Confidential Information” subject to the stipulated protective order
issued by the Court on March 17, 2005 [Docket No. 55].
C. Discovery of Incident Reports from Other Edwards Theaters
Plaintiffs have withdrawn without prejudice their request for an affidavit from
a high-level employee or in-house counsel of Edwards setting forth the description
of efforts undertaken to locate security incident reports from the Edwards Bakersfield
Stadium 14 and Valencia Stadium 12 for the years 2003 and 2004.
D. Discovery of Unredacted Time Records
DefendantEdwardsshall provide supplemental responses to plaintiffs’requests
for production of documents numbers 1and 11 as follows:
1. Edwards shall produce unredacted copies of all Turner
Security Time Sheets from the Fresno Edwards Stadium Cinemas
between January 1, 2002, and June 30, 2005, reflecting the names of the
security personnel working.
Case 1:04-cv-06533-SMS Document 57 Filed 04/11/06 Page 4 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
2. The documents provided by Edwards shall be treated as
“Confidential Information” subject to the stipulated protective order
issued by the Court on August 23, 2005 [Docket No. 32].
E. Discovery of Turner Security’s Business Records
Plaintiffs have withdrawn without prejudice their document request numbers
1 and 9.
F. Discovery of Turner Security’s Business Practices and Prior Complaints
of Discrimination
Defendant Turner Security shall provide supplemental responses to plaintiffs’
request for production number 4 as follows:
1. Turner Security shall provide copies of any documents
reflecting complaints of non-employment related discrimination arising
out of Turner Security’s provision of services at places of public
accommodation between January 1, 2002, and June 30, 2005, including,
but not limited to, complaints filed with the California Department of
Fair Employment and Housing, and any notes, memoranda or
correspondence in Turner Security’s files.
2. The documents provided by Turner Security shall be treated
as “Confidential Information” subject to the stipulated protective order
issued by the Court on March 17, 2005 [Docket No. 55].
3. Plaintiffs have withdrawn without prejudice interrogatory
numbers 7and 8.
* * *
Defendants shall serve their supplemental discovery responses within 30 days
of the date of this order.
IT IS SO ORDERED.
Dated: April 10, 2006 /s/ Sandra M. Snyder
icido3 UNITED STATES MAGISTRATE JUDGE
Case 1:04-cv-06533-SMS Document 57 Filed 04/11/06 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_07-cv-00654/USCOURTS-caed-1_07-cv-00654-2/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Federal Rules of Civil Procedure are “applicable to habeas corpus proceedings to the extent that the practice 1
in such proceedings are not set forth in the statutes of the United States and has heretofore conformed to the practice of civil
actions.” Fed.R.Civ.P. 81(a)(2). Rule 11 also provides “the Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with these rules, may be applied, when appropriate, to the petitions filed under these rules.” Rule 11, Rules
Governing Section 2254 Cases.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL HERNANDEZ, )
)
Petitioner, )
)
)
)
v. )
)
)
)
BEN CURRY, Warden, )
)
Respondent. )
)
1:07-CV-00654 AWI NEW (DLB) HC
ORDER REQUIRING RESPONDENT TO FILE
RESPONSE
ORDER SETTING BRIEFING SCHEDULE:
ANSWER DUE WITHIN 90 DAYS, TRAVERSE
DUE 30 DAYS THEREAFTER; MOTION TO
DISMISS, IF ANY, DUE WITHIN 60 DAYS,
OPPOSITION DUE 18 DAYS THEREAFTER
ORDER DIRECTING CLERK OF COURT TO
SERVE DOCUMENTS ON ATTORNEY
GENERAL
Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254.
The Court has conducted a preliminary review of the Petition. Accordingly, pursuant to Rule
4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,1
the Court HEREBY ORDERS:
1. Respondent SHALL FILE a RESPONSE. A Response can be made by filing one of the
Case 1:07-cv-00654-GSA Document 10 Filed 05/29/07 Page 1 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Rule 4 of the Rules Governing Section 2254 Cases provides that upon the court’s determination that summary 2
dismissal is inappropriate, the “judge shall order the respondent to file an answer or other pleading . . . or to take such other
action as the judge deems appropriate.” Rule 4, Rules Governing Section 2254 Cases (emphasis added); see, also, Advisory
Committee Notes to Rule 4 and 5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate the need for
filing an answer on the substantive merits of the petition and that the Attorney General may file a Motion to Dismiss for
failure to exhaust.); also, White v. Lewis, 874 F.2d 599, 60203 (9 Cir.1989) (providing that Motions to Dismiss pursuant th
to Rule 4 are proper in a federal habeas proceeding.)
Pursuant to Rule 16 of the Federal Rules of Civil Procedure, the parties must seek leave of court before submitting 3
any pleading not contemplated by this Order. Fed.R.Civ.P. 16(e).
following:
A. AN ANSWER addressing the merits of the Petition and due within NINETY (90)
days of the date of service of this order. Rule 4, Rules Governing Section 2254
Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9 Cir. 1985) (court has th
discretion to fix time for filing an Answer.).
S Respondent SHALL INCLUDE with the Answer any and all transcripts or other
documents necessary for the resolution of the issues presented in the Petition.
Rule 5 of the Rules Governing Section 2254 Cases.
S Any argument by Respondent that Petitioner has procedurally defaulted a
claim(s) SHALL BE MADE in an ANSWER that also addresses the merits of the
claims asserted. This is to enable the Court to determine whether Petitioner meets
an exception to procedural default. See, Paradis v. Arave, 130 F.3d 385, 396 (9th
Cir. 1997) (Procedurally defaulted claims may be reviewed on the merits to serve
the ends of justice); Jones v. Delo, 56 F.3d 878 (8 Cir. 1995) (the answer to the th
question that it is more likely than not that no reasonable juror fairly considering
all the evidence, including the new evidence, would have found Petitioner guilty
beyond a reasonable doubt necessarily requires a review of the merits).
S Petitioner’s TRAVERSE, if any, is due THIRTY (30) days from the date
Respondent’s Answer is filed with the Court.
B. A MOTION TO DISMISS due within SIXTY(60) days of the date of service of this
order based on the following grounds:
2,3
(1) EXHAUSTION - 28 U.S.C. § 2254(b)(1). A Motion to Dismiss for Petitioner’s
Case 1:07-cv-00654-GSA Document 10 Filed 05/29/07 Page 2 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
failure to exhaust state court remedies SHALL INCLUDE copies of all the
Petitioner’s state court filings and dispositive rulings so as to allow the Court to
examine the limitations issue. See, Ford v. Hubbard, 305 F.3d 875 (9 Cir. th
2002); Kelly v. Small, 315 F.3d 1063 (9 Cir. 2003); th
(2) STATUTE OF LIMITATIONS - 28 U.S.C. § 2244(d)(1). A Motion to Dismiss
the Petition as filed beyond the one year limitations period SHALL INCLUDE
copies of all Petitioner’s state court filings and dispositive rulings.
(3) SECOND OR SUCCESSIVE Petitions - 28 U.S.C. § 2244(b). A Motion to
Dismiss the Petition on the basis of § 2244(b) SHALL include a copy of the
previously filed federal Petition and disposition thereof.
2. OPPOSITIONS to Motions to Dismiss SHALL be served and filed within EIGHTEEN
(18) days, plus three days for mailing. All other Oppositions SHALL be served and filed
within EIGHT (8) days, plus three days for mailing. REPLIES to Oppositions to Motions
to Dismiss SHALL be served and filed within eight (8) days, plus three days for mailing.
Replies to Oppositions to all other Motions SHALL be served and filed within eight (8)
days, plus three days for mailing. If no opposition is filed, all motions are deemed
submitted at the expiration of the opposition period.
3. Unless already submitted, both Respondent and Petitioner SHALL COMPLETE and
RETURN to the Court along with the Response or Motion to Dismiss, a Consent form
indicating whether the party consents or declines to consent to the jurisdiction of a the
United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).
4. RESPONDENT SHALL submit a Notice of Appearance as attorney of record within
SIXTY (60) days of the date of service of this order for purposes of service of court
orders. See, Local Rule 83-182(a), 5-135(c).
5. The Clerk of the Court is DIRECTED to SERVE a copy of this order and the petition on
Case 1:07-cv-00654-GSA Document 10 Filed 05/29/07 Page 3 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
If, however, the Petition was filed on January 3, 2005, or thereafter, the Clerk of the Court need not serve a copy 4
of the Petition on the Attorney General or his representative. A scanned copy of the Petition is available in the Court’s
electronic case filing system (“CM/ECF”).
the Attorney General or his representative.
4
All motions shall be submitted on the record and briefs filed without oral argument unless
otherwise ordered by the Court. Local Rule 78-230(h). All provisions of Local Rule 11-110 are
applicable to this order.
IT IS SO ORDERED.
Dated: May 25, 2007 /s/ Dennis L. Beck
3b142a UNITED STATES MAGISTRATE JUDGE
Case 1:07-cv-00654-GSA Document 10 Filed 05/29/07 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_04-cv-00547/USCOURTS-caed-2_04-cv-00547-6/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DESMON LOEB,
Plaintiff, No. CIV S 04-0547 RRB GGH P
vs.
A. COLON, et al.,
Defendants. ORDER & WRIT OF HABEAS CORPUS
/ AD TESTIFICANDUM
Jamey Walker, inmate # J-23803, a necessary and material witness in proceedings
in this case on January 28, 2008, is confined in Pleasant Valley State Prison, 24863 West Jayne
Avenue, PO Box 8500 Coalinga, CA 93210: in the custody of James A. Yates; in order to
secure this inmate's attendance it is necessary that a Writ of Habeas Corpus ad Testificandum
issue commanding the custodian to produce the inmate at United States Courthouse, 501 I Street,
Sacramento, California on January 28, 2008, at 9:00 a.m.
ACCORDINGLY, IT IS ORDERED that:
1. A Writ of Habeas Corpus ad Testificandum issue, under the seal of this court,
commanding the Warden to produce the inmate named above to testify in United States District
Court at the time and place above, and from day to day until completion of court proceedings or
as ordered by the court; and thereafter to return the inmate to the above institution;
2. The custodian is ordered to notify the court of any change in custody of this
inmate and is ordered to provide the new custodian with a copy of this writ; and
3. The Clerk of the Court is directed to serve a courtesy copy of this order and
writ of habeas corpus ad testificandum on the Out-To-Court Desk, California State Prison -
Sacramento, P.O. Box 290007, Represa, California 95671.
WRIT OF HABEAS CORPUS AD TESTIFICANDUM
To: James A. Yates, Warden at Pleasant Valley State Prison, 24863 West Jayne Avenue,
PO Box 8500 Coalinga, Ca 93210:
WE COMMAND you to produce the inmate named above to testify before the
United States District Court at the time and place above, and from day to day until completion of
the proceedings or as ordered by the court; and thereafter to return the inmate to the above
institution.
FURTHER, you have been ordered to notify the court of any change in custody
of the inmate and have been ordered to provide the new custodian with a copy of this writ.
DATED: 12/19/07 /s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
EASTERN DISTRICT OF CALIFORNIA
GGH:bb
loeb0547.841(2a)
Case 2:04-cv-00547-JAM-GGH Document 63 Filed 12/19/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-01775/USCOURTS-caed-1_16-cv-01775-0/pdf.json | 864 | Social Security - SSID Title XVI | 42:205 Denial Social Security Benefits | UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
OLIVIA REFUGIO CISNEROS DE RIOS,
Plaintiff,
V.
CAROLYN W. COLVIN, acting as
Commissioner of Social Security,
Defendant.
ORDER ON APPLICATION
TO PROCEED WITHOUT
PREPAYMENT OF FEES
(Doc. 2)
CASE NUMBER: 1:16-CV-1775-GSA
Having considered the application to proceed without prepayment of fees under 28 USC § 1915;
IT IS ORDERED that the application is:
X GRANTED
X IT IS FURTHER ORDERED that the clerk issue summons and the United States marshal serve a
copy of the complaint, summons and this order upon the defendant(s) as directed by the plaintiff. All
costs of service shall be advanced by the United States.
DENIED, for the following reasons:
ENTERED: November 23, 2016
/s/ Gary S. Austin
United States Magistrate Judge Gary S. Austin
Case 1:16-cv-01775-GSA Document 3 Filed 11/23/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_10-cv-01930/USCOURTS-cand-3_10-cv-01930-2/pdf.json | 190 | Other Contract Actions | 28:1332 Diversity-Other Contract | United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL PRYOR et al,
Plaintiffs,
v
OVERSEAS ADMINISTRATIVE SERVICES,
LTD et al,
Defendants.
/
No C 10-1930 VRW
ORDER
The court is in receipt of defendants’ motion to shorten
time for defendants’ motion to dismiss or, in the alternative, to
stay the above-captioned action, Doc #22, and plaintiffs’
opposition, Doc #28. Having considered the matter, the court
MODIFIES its previous briefing order, Doc #21, as follows:
Respondents’ opposition to petitioners’ motion to compel
arbitration, Doc #5, shall be filed no later than 4PM on
Tuesday, May 25, 2010.
Case 3:10-cv-01930-JW Document 43 Filed 05/24/10 Page 1 of 2
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Petitioners’ reply, if any, shall be filed on or before
Wednesday, May 26 at 4PM.
Petitioners’ opposition to respondents’ motion to dismiss
or, in the alternative, to stay this action, Doc #24,
shall be filed on or before Friday, May 28 at 4PM.
Respondents may file a reply to petitioners’ opposition
on or before Tuesday, June 1 at 4PM.
The court will hear respondents’ motion to dismiss or to
stay this action and, if appropriate, petitioners’ motion
to compel arbitration on Thursday, June 3 at 10 AM.
In determining the above schedule, the court proceeds
under the assumption that the Texas district court will not be
hearing the matter before Thursday, June 3. If that assumption is
erroneous, the parties shall inform the court by telephoning the
docket clerk, Ms Cora Delfin-Klein, at (415) 522-2039.
IT IS SO ORDERED.
VAUGHN R WALKER
United States District Chief Judge
Case 3:10-cv-01930-JW Document 43 Filed 05/24/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-05235/USCOURTS-cand-3_09-cv-05235-37/pdf.json | 830 | Patent | 35:271 Patent Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER Case No. C 09-5235-MMC (MEJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
POWER INTEGRATIONS, INC., a
Delaware corporation,
Plaintiff,
v.
FAIRCHILD SEMICONDUCTOR
INTERNATIONAL, INC., a Delaware
Corporation, FAIRCHILD
SEMICONDUCTOR CORPORATION, a
Delaware Corporation, and SYSTEM
GENERAL CORPORATION, a Taiwanese
corporation,
Defendants.
Case No. C 09-5235-MMC (MEJ)
[PROPOSED] ORDER GRANTING
DEFENDANTS’ADMINISTRATIVE
MOTION TO FILE UNDER SEAL
REDACTED PORTIONS OF EXHIBITS 1-2
AND 5-6TO THE DECLARATION OF
CHRISTINA A. ONDRICK IN SUPPORT OF
DEFENDANTS’ MOTION TO BIFURCATE
THE TRIAL PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 42(B)
Defendants request to file under seal the redacted portions of Exhibits 1-2 and 5-6 to the
Declaration of Christina A. Ondrick in support of Defendants’ Motion to Bifurcate the Trial Pursuant
to Federal Rule of Civil Procedure 42(b). The Court, having considered this request and the papers
submitted in support of this request, finds good cause to maintain the confidentiality of these
documents and hereby GRANTS Defendants’ Motion.
IT IS HEREBY ORDERED that Exhibits 1-2 and 5-6to the Declaration of Christina A.
Ondrick in support of Defendants’ Motion to Bifurcate the Trial Pursuant to Federal Rule of Civil
Procedure 42(b) shall be filed under seal.
Specifically, defendants shall file, no later than October 7, 2013: (1) unredacted
;
DIRECTIONS TO DEFENDANTS
Case 3:09-cv-05235-MMC Document 270 Filed 10/02/13 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[PROPOSED] ORDER - 2 - Case No. C 09-5235-MMC (MEJ)
IT IS SO ORDERED.
Dated:
HONORABLE MAXINE M. CHESNEY
UNITED STATES DISTRICT JUDGE
versions of Exhibits 1-2 and 5-6 to the above-referenced declaration under seal, and
(2) redacted versions of said exhibits in the public record.
October 2, 2013
Case 3:09-cv-05235-MMC Document 270 Filed 10/02/13 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-01825/USCOURTS-caed-2_05-cv-01825-5/pdf.json | 440 | Other Civil Rights | 28:1983 Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26 1
This action was reassigned to the undersigned on August 29, 2006.
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOSE DEJESUS RODRIGUEZ,
Plaintiff, CIV S-05-1825 DFL EFB PS
vs.
PAT MEREZ, SUPERVISOR, SAN
JOAQUIN COUNTY HUMAN
SERVICES AGENCY, et al., ORDER
Defendants.
________________________________/
This case, in which plaintiff is proceeding pro se, was referred to the undersigned
pursuant to Local Rule 72-302(c)(21) and 28 U.S.C. § 636(b)(1).1
On March 28, 2007, the
district judge issued an order granting in part, and denying in part, defendants’ motion to
dismiss. Pursuant to that order, plaintiff may proceed on his claims alleging a Fourteenth
Amendment violation under 42 U.S.C. § 1983. Upon review of the record, it appears that no
answer is on file. Accordingly, defendants shall file an answer within ten (10) days from the
date of service of this order.
////
Case 2:05-cv-01825-RRB-EFB Document 47 Filed 05/24/07 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
If the parties are unable to submit a joint status report, they shall submit separate status
reports within the time allotted.
2
Further, the parties shall submit a joint status report2 within thirty (30) days of service of
this order, addressing the following matters:
(1) service of process
(2) joinder of additional parties;
(3) amendment of pleadings;
(4) jurisdiction and venue;
(5) anticipated motions;
(6) anticipated discovery and disclosure of expert witnesses;
(7) future proceedings, including proposed deadlines for discovery, motions, and
scheduling the pretrial conference;
(8) estimated length of trial;
(9) proposed modifications of standard pretrial procedures specified by the rules due to
the relative simplicity or complexity of the action or proceedings;
(10) whether the case is related to any other case, including any matter in bankruptcy;
(11) whether a settlement conference should be scheduled; and,
(12) any other matters that may add to the just and expeditious disposition of this matter.
Upon review of the joint status report, the court may either make a scheduling order
incorporating the suggestions of the parties or schedule a status conference. Pending such order
or conference, the parties are of course free to proceed with litigating this case. The parties are
////
////
////
////
////
Case 2:05-cv-01825-RRB-EFB Document 47 Filed 05/24/07 Page 2 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3
further advised that failing to obey federal or local rules, or orders of this court, may result in
dismissal of this action.
SO ORDERED.
DATED: May 23, 2007.
Case 2:05-cv-01825-RRB-EFB Document 47 Filed 05/24/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-00343/USCOURTS-caed-2_05-cv-00343-1/pdf.json | 110 | Insurance | 28:1332 Diversity-Insurance Contract | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Charlston, Revich &
Chamberlin LLP
ADMIRAL-DEBBER
Stipulation and Proposed
Order.wpd
STIPULATION AND ORDER RE FILING FIRST AMENDED COMPLAINT
Robert D. Hoffman, SBN 123458
CHARLSTON, REVICH & CHAMBERLIN LLP
1925 Century Park East, Suite 1250
Los Angeles, California 90067-2746
(310) 551-7000
(310) 203-9321 (facsimile)
Attorneys for Plaintiff and Counterdefendant
Admiral Insurance Company
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ADMIRAL INSURANCE COMPANY,
a Delaware corporation,
Plaintiff,
v.
J. DALE DEBBER; LORNA MARTIN;
DATA CONTROL CORPORATION;
ARISTOS ACADEMY; COMPLINE,
LLC; PROVIDENCE PUBLICATIONS,
LLC; REAL CONSULTING &
SOFTWARE DEVELOPMENT, LLC;
DEBBER FAMILY FOUNDATION;
VICKIE ALTMAN; and SCOTT
ALTMAN,
Defendants.
_________________________________
AND RELATED CROSS-ACTION
Case No. 2:05-CV-00343-FCD-PAN
STIPULATION AND ORDER RE
FILING OF FIRST AMENDED
COMPLAINT
The Honorable Frank C. Damrell,
Jr.
WHEREAS, on February 22, 2005, plaintiff Admiral Insurance Company
("Admiral") filed a Complaint in the instant action (“Admiral Action”) to rescind
two (2) Employment Practices Liability Insurance policies issued to Data Control
Corporation (“DCC”) for the policy periods December 13, 2002 to December 13,
2003 and December 13, 2003 to December 13, 2004 bearing, respectively, Policy
Case 2:05-cv-00343-FCD-EFB Document 15 Filed 11/15/05 Page 1 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Charlston, Revich &
Chamberlin LLP
ADMIRAL-DEBBER
Stipulation and Proposed
Order.wpd
STIPULATION AND ORDER RE FILING FIRST AMENDED COMPLAINT
2
Nos. 4343312/1 and 4343312/2 (collectively “Admiral Policies”);
WHEREAS, in its Complaint in the Admiral Action, Admiral contends that
it is entitled to rescind the Admiral Policies on the grounds that the applications
submitted by DCC for the Admiral Policies failed to disclose two (2) prior
lawsuits for sexual harassment against DCC and its Chief Executive Officer;
WHEREAS, in its Complaint in the Admiral Action Admiral asserted a
claim for reimbursement for fees and costs incurred by Admiral for the defense of
claims asserted by Vickie Altman, a former DCC employee, and her husband
(collectively “Altmans”) against DCC and certain other parties (“DCC Parties”)
for, among other things, sexual harassment in the action Vickie Altman, et al. v. J.
Dale Debber, et al., Nevada County Superior Court Case No. 69850 (“Altman
Action”) filed on May 11, 2004;
WHEREAS, on May 28, 2004, Admiral agreed to defend the Altman Action
subject to a full and complete reservation of rights;
WHEREAS, on August 23, 2004, the Altman Action was compelled to
arbitration (“Arbitration”) by the DCC Parties;
WHEREAS, on June 29, 2005, the DCC Parties filed in the Admiral Action
an Answer to the Complaint and a Counterclaim for breach of contract, breach of
the implied covenant of good faith and fair dealing, promissory fraud and
declaratory relief;
WHEREAS, the DCC Parties deny that Admiral is entitled to rescind the
Admiral Policies or obtain any reimbursement from the DCC Parties regarding the
claims in the Altman Action and the Arbitration;
WHEREAS, on July 20, 2005, Admiral filed a reply to the counterclaim
denying that Admiral has any liability to the DCC Parties;
WHEREAS, on September 29, 2005, Admiral funded, subject to a
reservation of rights, the full amount of an arbitration award issued in favor of the
Case 2:05-cv-00343-FCD-EFB Document 15 Filed 11/15/05 Page 2 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Charlston, Revich &
Chamberlin LLP
ADMIRAL-DEBBER
Stipulation and Proposed
Order.wpd
STIPULATION AND ORDER RE FILING FIRST AMENDED COMPLAINT
3
Altmans (“Arbitration Award”) against the DCC Parties in connection with the
Altmans’ acceptance of an Offer for Judgment pursuant to FRCP Rule 68 that had
been served by counsel for the DCC Parties with Admiral’s consent;
WHEREAS, Admiral seeks to amend its Complaint to state a claim against
the DCC Parties for reimbursement of the amount Admiral paid to fund the
Arbitration Award;
WHEREAS, on October 18, 2005, counsel for Admiral circulated to counsel
for the DCC Parties a draft Proposed First Amended Complaint in the form
attached hereto as Exhibit “A”;
WHEREAS, on October 28, 2005, counsel for defendants advised counsel
for Admiral that the DCC Parties will enter into a stipulation for the filing of the
Proposed First Amended Complaint.
IT IS HEREBY STIPULATED by and between plaintiff and
counterdefendant Admiral and defendants and counterclaimants the DCC Parties,
through their respective counsel of record, as follows:
1. The [Proposed] First Amended Complaint attached hereto as Exhibit
“A” shall be deemed to be filed and served on the date the Order on this Stipulation
is entered by the Court.
2. The DCC Parties shall have twenty (20) days from the date the Order
on this Stipulation is entered to file and serve their response to the First Amended
Complaint.
///
///
///
///
///
///
Case 2:05-cv-00343-FCD-EFB Document 15 Filed 11/15/05 Page 3 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Charlston, Revich &
Chamberlin LLP
ADMIRAL-DEBBER
Stipulation and Proposed
Order.wpd
STIPULATION AND ORDER RE FILING FIRST AMENDED COMPLAINT
4
///
///
///
3. All dates set forth in the Scheduling Order issued on August 17, 2005
shall remain in effect.
Dated: November __, 2005 CHARLSTON, REVICH & CHAMBERLIN, LLP
ROBERT D. HOFFMAN
By: ________________________________________
Robert D. Hoffman
Attorneys for Plaintiff and Counterdefendant
Admiral Insurance Company
Dated: November __, 2005 DEMPSEY & JOHNSON, P.C.
By: ________________________________________
Stephen C. Johnson
Attorneys for Defendants and counsel for
J Dale Debber, Lorna Martin, Data Control
Corporation , Aristos Academy, Compline LLC,
Providence Publications, LLC, Real Consulting &
Software Development LLC and Debber Family
Foundation
O R D E R
Based upon the Stipulation of the parties, as set forth above, and good cause
appearing therefor,
IT IS HEREBY ORDERED that plaintiff Admiral Insurance Company’s
First Amended Complaint attached as Exhibit “A” to the Stipulation shall be
deemed filed and served as of this date pursuant to the terms and conditions set
forth in said Stipulation.
Dated: November 14, 2005
/s/ Frank C. Damrell Jr.
UNITED STATES DISTRICT COURT JUDGE
Case 2:05-cv-00343-FCD-EFB Document 15 Filed 11/15/05 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-00468/USCOURTS-caed-2_07-cv-00468-2/pdf.json | 690 | Other Forfeiture and Penalty Suits | Civil Miscellaneous Case | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
McGREGOR W. SCOTT
United States Attorney
ANNE PINGS
Assistant U.S. Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: (916) 554-2785
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. )
)
2003 HARLEY DAVIDSON )
MOTORCYCLE, VIN: )
1HD1DJV503Y615641, )
)
Defendant. )
)
______________________________)
2:07-CV-00468-GEB-EFB
STIPULATION AND ORDER EXTENDING
TIME FOR FILING A COMPLAINT FOR
FORFEITURE AND/OR TO OBTAIN AN
INDICTMENT ALLEGING FORFEITURE
It is hereby stipulated by and between the United States of
America and claimant Daryl Summerfield ("claimant"), by and
through their respective attorneys, as follows:
1. On or about December 18, 2006, claimant filed a claim, in
the administrative forfeiture proceedings, with the Internal
Revenue Service with respect to the 2003 HARLEY DAVIDSON
MOTORCYCLE, VIN: 1HD1DJV503Y615641 (the "motorcycle"), which was
seized on or about October 5, 2006.
2. The Internal Revenue Service has sent the written notice
of intent to forfeit required by 18 U.S.C. § 983(a)(1)(A) to all
known interested parties. The time has expired for any person to
Case 2:07-cv-00468-GEB-EFB Document 7 Filed 07/12/07 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
file a claim to the motorcycle under 18 U.S.C. § 983(a)(2)(A)-(E),
and no person other than the claimant has filed a claim to the
motorcycle as required by law in the administrative forfeiture
proceeding.
3. Under 18 U.S.C. § 983(a)(3)(A), the United States is
required to file a complaint for forfeiture against the motorcycle
and/or to obtain an indictment alleging that the motorcycle is
subject to forfeiture within 90 days after a claim has been filed
in the administrative forfeiture proceedings, unless the court
extends the deadline for good cause shown or by agreement of the
parties.
4. By Stipulation and Order filed March 12, 2007, the
parties stipulated to extend to May 31, 2007, the time in which
the United States is required to file a civil complaint for
forfeiture against the motorcycle and/or to obtain an indictment
alleging that the motorcycle is subject to forfeiture.
5. By Stipulation and Order filed May 18, 2007, the parties
stipulated to extend to July 31, 2007, the time in which the
United States is required to file a civil complaint for forfeiture
against the motorcycle and/or to obtain an indictment alleging
that the motorcycle is subject to forfeiture.
6. As provided in 18 U.S.C. § 983(a)(3)(A), the parties wish
by agreement to further extend to October 29, 2007, the time in
which the United States is required to file a civil complaint for
forfeiture against the motorcycle and/or to obtain an indictment
alleging that the motorcycle is subject to forfeiture.
7. Accordingly, the parties agree that the deadline by which
the United States shall be required to file a complaint for
Case 2:07-cv-00468-GEB-EFB Document 7 Filed 07/12/07 Page 2 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
forfeiture against the motorcycle and/or to obtain an indictment
alleging that the motorcycle is subject to forfeiture shall be
extended to October 29, 2007.
McGREGOR W. SCOTT
United States Attorney
DATE: 7/11/07 /s/ Anne E. Pings
ANNE E. PINGS
Assistant U.S. Attorney
DATE: 7/10/07 /s/ Colin L. Cooper
COLIN L. COOPER
Attorney for Claimant Summerfield
(Original signature retained by
attorney)
IT IS SO ORDERED.
Dated: July 11, 2007
GARLAND E. BURRELL, JR.
United States District Judge
Case 2:07-cv-00468-GEB-EFB Document 7 Filed 07/12/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-08-01076/USCOURTS-ca10-08-01076-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | null | FILED
United States Court of Appeals
Tenth Circuit
June 4, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LONNIE A. GASKEY,
Petitioner - Appellant,
v.
STEVE HARTLEY, Warden; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
No. 08-1076
(D. Ct. No. 07-CV-01547-WYD-MJW)
(D. Colo.)
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Petitioner-Appellant Lonnie A. Gaskey, a Colorado prisoner appearing pro se,
seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his
petition for habeas relief pursuant to 28 U.S.C. § 2254. We deny a COA and therefore
dismiss this appeal.
I. BACKGROUND
Mr. Gaskey pleaded guilty in Colorado state court to two counts of aggravated
robbery, one count of second degree assault, and one count of a crime of violence. He
was sentenced to consecutive prison sentences totaling forty years. He subsequently
Appellate Case: 08-1076 Document: 01011169274 Date Filed: 06/04/2008 Page: 1
- 2 -
moved for post-conviction relief based on ineffective assistance of counsel, arguing that
his guilty plea was involuntary because his attorney promised him he would receive a
sentence between fifteen and twenty years and because his substitute counsel at the plea
hearing threatened to withdraw from the case if Mr. Gaskey did not plead guilty. He also
argued that his counsel was ineffective by failing to have Mr. Gaskey undergo a mental
evaluation. The motion was denied by the trial court and affirmed by the Colorado Court
of Appeals. Making the same arguments, Mr. Gaskey filed this § 2254 petition for
federal habeas relief in the United States District Court for the District of Colorado. The
district court denied the petition and his application for a COA. Mr. Gaskey then filed
this appeal and renewed motion for a COA.
II. DISCUSSION
A petitioner may not appeal the denial of habeas relief under 28 U.S.C. § 2254
unless a COA is granted. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). This standard requires the petitioner to demonstrate “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation marks omitted).
Mr. Gaskey may show his counsel was constitutionally ineffective only if he
demonstrates that counsel’s performance fell below an objective standard of
Appellate Case: 08-1076 Document: 01011169274 Date Filed: 06/04/2008 Page: 2
- 3 -
reasonableness and that counsel’s deficient performance prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687–88, 692 (1984). In the context of a guilty
plea, Mr. Gaskey must show that but for counsel’s errors, he would not have pleaded
guilty and instead would have insisted on going to trial. See Hill v. Lockhart, 474 U.S.
52, 59 (1985).
In this case, the Colorado Court of Appeals found that Mr. Gaskey’s written
agreement to plead guilty informed him that (1) he could receive a sentence in the range
of ten-to-thirty-two years on each of the counts; (2) the court could order the sentences to
be served consecutively; and (3) his plea must be voluntary and not the result of undue
influence or coercion. In addition, the Colorado Court of Appeals emphasized that Mr.
Gaskey told the trial court that he understood the written petition and that he was entering
his plea voluntarily and without additional promises; at no time did he express confusion
or indicate to the court that his counsel had promised a particular sentence. Therefore, the
court concluded that Mr. Gaskey had not shown his plea was unknowing and involuntary
based on ineffective assistance of counsel.
Mr. Gaskey does not challenge these findings in his § 2254 petition, contending
only that an evidentiary hearing is necessary to develop his claim. The district court did
not abuse its discretion in declining to conduct such a hearing. This Court “permit[s]
summary disposition of habeas corpus petitions based on claims of unkept promises and
misunderstanding when the court record refutes the claims.” Lasiter v. Thomas, 89 F.3d
699, 703 (10th Cir. 1996). Indeed, we have specifically held that a district court does not
Appellate Case: 08-1076 Document: 01011169274 Date Filed: 06/04/2008 Page: 3
- 4 -
err in refusing to hold an evidentiary hearing on the voluntariness of a plea when the
habeas petitioner’s allegations are contradicted by his statements during the plea
colloquy. See id.
As to Mr. Gaskey’s ineffectiveness argument based on his counsel’s failure to
order a mental evaluation, Mr. Gaskey does not explain in his petition how the results of
such an evaluation would have changed his decision to plead guilty or reduced the
sentence he received. Thus, even assuming that counsel should have ordered an
examination, Mr. Gaskey has not demonstrated how he was prejudiced by that failure.
III. CONCLUSION
Reasonable jurists could not debate that Mr. Gaskey failed to present a claim that
he was denied his Sixth Amendment right to the effective assistance of counsel. We
therefore DENY his application for a COA. We GRANT Mr. Gaskey’s motion to
proceed in forma pauperis.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
Appellate Case: 08-1076 Document: 01011169274 Date Filed: 06/04/2008 Page: 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-arwd-5_06-cv-05176/USCOURTS-arwd-5_06-cv-05176-5/pdf.json | 890 | Other Statutory Actions | 28:1441 Petition for Removal | AO72A
(Rev. 8/82)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
EDDIE DICKARD, individually and on
behalf of all others similarly situated PLAINTIFF
v. Case No. 06-5176
OKLAHOMA MANAGEMENT
SERVICES FOR PHYSICIANS, LLC,
ORTHOPEDIC MANAGEMENT
SERVICES, LLC DEFENDANTS
J U D G M E N T
For reasons set forth in the Memorandum Opinion, filed
contemporaneously herewith, Defendants’ Motion for Summary
Judgment (Doc. 56) is GRANTED and Plaintiff’s Complaint is
DISMISSED WITH PREJUDICE. Further, Plaintiff’s Motion for Class
Certification (Doc. 47) is DENIED AS MOOT. The parties shall bear
their own fees and costs. The parties have thirty days from entry
of this judgment on the docket in which to appeal.
IT IS SO ORDERED this 15th day of October 2007.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
Case 5:06-cv-05176-RTD Document 87 Filed 10/15/07 Page 1 of 1 PageID #: <pageID> |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-01724/USCOURTS-caed-2_15-cv-01724-0/pdf.json | 290 | Other Real Property Actions | 28:1441 Petition for Removal | 1
________________________________________________________________________________________________________________
[PROPOSED] ORDER GRANTING DEFENDANTS’ REQUEST TO APPEAR TELEPHONICALLY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JUDITH MAHON,
Plaintiff,
vs.
ROUNDPOINT MORTGAGE SERVICING
CORPORATION; RBS FINANCIAL
PRODUCTS, INC.; QUALITY LOAN
SERVICE CORPORATION; and DOES 1
through 50, inclusive and DOES 1-10
inclusive,
Defendants.
Case No.: 2:15-CV-01724-WBS-EFB
Assigned to the Honorable William B. Shubb
ORDER ON REQUEST TO APPEAR BY
PHONE FOR HEARING ON DEFENDANTS’
MOTION TO DISMISS
Hearing
Date: October 19, 2015
Time: 2:00 p.m.
Ctrm.: 5, 14th Floor
Complaint filed: July 7, 2015
Pursuant to the written request by counsel for Defendants, ROUNDPOINT MORTGAGE
SERVICING CORPORATION; and RBS FINANCIAL PRODUCTS, INC., to telephonically attend the
hearing for the Motion to Dismiss Complaint set for October 19, 2013, this Court hereby grants such
request.
///
///
Case 2:15-cv-01724-WBS-EFB Document 9 Filed 09/29/15 Page 1 of 2
2
________________________________________________________________________________________________________________
[PROPOSED] ORDER GRANTING DEFENDANTS’ REQUEST TO APPEAR TELEPHONICALLY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The courtroom deputy shall email counsel with instructions on how to participate in the
telephone conference call.
IT IS SO ORDERED.
Dated: September 28, 2015
Case 2:15-cv-01724-WBS-EFB Document 9 Filed 09/29/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-02749/USCOURTS-caed-2_09-cv-02749-1/pdf.json | 950 | Contitutionality of State Statutes | 28:1331 Federal Question: Other Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROY HAROLD KELLY, No. CIV S-09-2749-FCD-CMK
Plaintiff,
vs. ORDER
MONICA MARLOW,
Defendant.
/
Plaintiff, who is proceeding pro se, brings this civil action. This matter is
currently set for an initial status/scheduling conference on March 18, 2010. On February 12,
2010, the court issued findings and recommendations that defendant’s motion to dismiss be
granted and that this action be dismissed in its entirety. No objections to the findings and
recommendations have been filed and the matter has been submitted to the District Judge for de
novo review. In the meantime, the scheduling conference will be vacated.
IT IS SO ORDERED.
DATED: March 17, 2010
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:09-cv-02749-FCD-CMK Document 12 Filed 03/17/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_16-cv-00061/USCOURTS-almd-2_16-cv-00061-0/pdf.json | 791 | Employee Retirement Income Security Act (ERISA) | 29:1001 E.R.I.S.A.: Employee Retirement | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NANCY LAWRENCE, et al.,
Plaintiffs,
v.
ERIC M. NATION, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
CASE NO. 2:16-CV-61-WKW
[WO]
MEMORANDUM OPINION AND ORDER
On April 13, 2016, the Magistrate Judge filed a Recommendation in this case.
(Doc. # 28.) Defendant Guardian Life Insurance Company of America (“Guardian”)
filed Objections (Doc. # 29), in which Defendant Eric M. Nation (“Nation”) joined
(Doc. # 30). Plaintiffs Nancy Lawrence (“Lawrence”) and Freddrick A. Hardy Sr.
(“Hardy”) filed a Response to Defendants’ Objections (Doc. # 33), and Defendants
filed a Reply (Doc. # 34). Plaintiffs then sought and were granted leave to file a
Surreply. (Docs. # 35, 39, and 40.) Upon careful consideration, Defendants’
Objections will be overruled, the Recommendation will be adopted, and Plaintiffs’
Motion to Remand (Doc. # 15) will be granted. All other pending motions must be
denied for lack of subject-matter jurisdiction.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 1 of 20
2
I. STANDARDS OF REVIEW
Where a party makes objections to the recommendation of the magistrate
judge, the portions of the recommendation to which objections are made are
reviewed de novo. 28 U.S.C. § 636(b)(1).
Federal courts have a strict duty to exercise the jurisdiction conferred on them
by Congress. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). At the
same time, “[f]ederal courts are courts of limited jurisdiction.” Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). In removal actions, federal courts
must strictly construe removal statutes, resolve all doubts in favor of remand, and
place the burden of establishing federal jurisdiction on the removing party. See
Miedema v. Maytag Corp., 450 F.3d 1322, 1328–30 (11th Cir. 2006).
II. BACKGROUND
This action arises from a dispute over insurance benefits. The relevant facts
and procedural history will first be discussed.
A. Facts
Kingdom Now Movement (“Kingdom Now”) is a faith-based organization
incorporated under the laws of Alabama. Its mission is to foster a community of
pastors, leaders, and other individuals who will work together to promote the
movement’s religious philosophy. The Kingdom Now network includes a number
of affiliate churches.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 2 of 20
3
Guardian issued a group life insurance plan to Kingdom Now. The group
plan, by its terms, only allowed Kingdom Now employees to purchase coverage.
According to Lawrence and Hardy, Guardian, acting through its agent Nation,
approached affiliate churches within the Kingdom Now network seeking to sell
insurance policies under the Kingdom Now group plan. Lawrence and Hardy allege
that Nation represented to church members that, because Kingdom Now is a faithbased organization, Guardian could offer life insurance policies under the group plan
to all church members, including those who were not traditional paid employees of
Kingdom Now. Lawrence and Hardy both applied for life insurance policies based
on these representations.
Lawrence purchased life insurance policies for her mother and father, neither
of whom was a paid employee of Kingdom now. Lawrence was listed as the
beneficiary under both plans. She alleges that she made timely premium payments
on both policies, and that the policies were in full force and effect during the time
periods relevant to this action. When Lawrence’s mother and father died, Lawrence
made claims for death benefits under each policy. Guardian denied these claims
because the insureds were not paid employees of Kingdom Now.
Hardy similarly purchased a life insurance policy for his grandfather, who was
not a paid Kingdom Now employee. Hardy was listed as a beneficiary under the
plan. He contends that he made timely premium payments on the policy, and that
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 3 of 20
4
the policy was in full force and effect during time periods relevant to this suit. When
Hardy’s grandfather died, Hardy made a claim for benefits under the plan. Guardian
denied the claim, reasoning that Hardy was not entitled to benefits under the plan
because the insured was not a paid employee of Kingdom Now. Guardian has not
paid Lawrence or Hardy any benefits under these policies.
B. Procedural History
Plaintiffs filed this action in the Circuit Court of Montgomery County. Their
complaint (Doc. # 1-2) raises nine state-law causes of action: (1) fraudulent
misrepresentation; (2) fraudulent suppression; (3) negligent or wanton
misrepresentation and suppression; (4) negligent or wanton hiring or training; (5)
negligent or wanton procurement; (6) conversion; (7) breach of contract; (8) bad
faith; and (9) failure to investigate. They seek compensatory and punitive damages.
Guardian filed a notice of removal, in which Nation joined. They contend that
the insurance policies in question are governed by the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. According to Guardian and
Nation, the court has federal question subject-matter jurisdiction over Plaintiffs’
claims because ERISA completely preempts those claims. See 28 U.S.C. § 1331.
In response to the notice of removal, Plaintiffsfiled a motion to remand. (Doc.
# 15.) Before responding to the motion to remand, Guardian filed a motion for
summary judgment. (Doc. # 18.) Plaintiffs filed a motion to strike the motion for
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 4 of 20
5
summary judgment or, in the alternative, to hold the motion in abeyance until a
ruling could be made on the motion to remand. (Doc. # 20.) Plaintiffs also sought
an expedited ruling on the motion to strike. (Doc. # 21.) After the parties briefed
these related motions, the Magistrate Judge entered a Recommendation (Doc. # 28)
that Plaintiffs’ motion to remand be granted.
Guardian filed objections to the Recommendation, which included a motion
for jurisdictional discovery. (Doc. # 29.) Guardian then filed an amended motion
for jurisdictional discovery. (Doc. # 32.) The issues raised in the objections and
motions for jurisdictional discovery have been fully briefed. (See Docs. # 33, 34,
35, and 40.) Guardian requested oral argument (Doc. # 36), but this matter is
considered submitted on the briefing and will be decided without oral argument.
III. DISCUSSION
The Magistrate Judge found that this action is due to be remanded to the
Circuit Court of Montgomery County for two reasons. First, the Kingdom Now
insurance plan constitutes a “church plan” such that it is exempt from the ERISA
scheme. Second, Defendants failed to carry their burden of showing that Lawrence
and Hardy have ERISA standing. Defendants object to both of these findings,
arguing that Kingdom Now is not a church within the meaning of ERISA, and that
Plaintiffs are beneficiaries with ERISA standing.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 5 of 20
6
The principles governing ERISA preemption generally will first be outlined.
Then the issue of whether Kingdom Now’s plan constitutes a church plan will be
considered. Finally, the issue of Plaintiffs’ ERISA standing will be addressed.
A. ERISA Preemption Generally
Congress enacted ERISA with the overarching goals of expanding employee
benefit plans and protecting participants in those plans. 29 U.S.C. § 1001. By
implementing a comprehensive system of benefits plan regulation, ERISA ensures
that benefit plan administration will be uniform across the nation. See Aetna Health
Inc. v. Davila, 542 U.S. 200, 208 (2004). The uniformity of ERISA’s system is due
in large part to its preemption of most state laws relating to employee benefits plans.
See id. The statutory scheme allows for two forms of preemption: defensive and
complete.
Defensive preemption is a creature of ERISA’s express preemption provision.
29 U.S.C. § 1144. That portion of the statute provides preemption as an affirmative
defense to certain state-law claims. Complete preemption arises from the
comprehensive nature of ERISA’s remedial scheme for claims of loss or denial of
benefits. See 29 U.S.C. § 1132. Because ERISA’s remedial provision
“comprehensively occupies” this field of law, any state-law claims that seek relief
available under that provision are necessarily federal in nature. Butero v. Royal
Maccabees Life Ins. Co., 174 F.3d 1207, 1211–12 (11th Cir. 1999).
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 6 of 20
7
Whether Plaintiffs’ state-law claims are subject to defensive or complete
preemption is central to whether the court has subject-matter jurisdiction over this
action. To invoke federal question jurisdiction, the complaint must raise a claim that
arises under federal law. 28 U.S.C. § 1331. That the defense to a claim is federal in
nature generally does not evidence a federal question. Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 11 (1983) (explicating the well-pleaded
complaint rule). Accordingly, under this rule, defensive ERISA preemption of a
plaintiff’s claims is insufficient to invoke federal jurisdiction under § 1331. Butero,
174 F.3d at 1212. Where a plaintiff’s claim falls within the remedial scheme
contemplated by 29 U.S.C. § 1132, however, such that it is subject to complete
ERISA preemption, it is entirely federal in nature and thus invokes federal question
jurisdiction. Id. at 1211–12.
Because federal question jurisdiction is the only basis under which this action
is properly removable, the motion to remand turns on whether ERISA completely
preempts Plaintiffs’ claims. Their claims are subject to complete preemption only
if they seek relief that is available under 29 U.S.C. § 1132(a). Butero, 174 F.3d at
1212. To show that Plaintiffs’ claims are completely preempted, and thus to
establish the propriety of removal, Defendants bear the burden of satisfying four
elements: (1) that there is a relevant ERISA plan; (2) that Plaintiffs have standing
to sue under ERISA; (3) that Guardian is an ERISA entity; and (4) that Plaintiffs’
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 7 of 20
8
state law claims seek compensatory relief akin to the relief available under § 1132(a).
Id. The Magistrate Judge found that Defendants failed to carry their burden as to
two of these elements.
B. Whether the Kingdom Now Plan is a Church Plan
The Magistrate Judge first found that Defendants failed to carry their burden
as to the first element of the complete preemption analysis. That is, because
Kingdom Now’s employee benefits plan qualifies as a “church plan” such that it is
exempt from ERISA’s regulatory scheme, there is no relevant ERISA plan at issue
in this action. See Butero, 174 F.3d at 1212.
Church plans are exempt from ERISA coverage unless the church elects to be
covered. 29 U.S.C. § 1003(b)(2). A plan qualifies for this exemption if it is
“established and maintained for its employees (or their beneficiaries) by a church or
by a convention or association of churches.” 29 U.S.C. § 1002(33)(C). In their
objections to Recommendation, Defendants raise three issues concerning whether
Kingdom Now’s plan is exempt as a church plan. First, Defendants contend that
Plaintiffs have not come forward with sufficient evidence to establish that Kingdom
Now is a church. Second, they argue that the evidence they have produced
establishes that Kingdom Now is not a church. Third, they maintain that they are
entitled to jurisdictional discovery for the purpose of ascertaining whether Kingdom
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 8 of 20
9
Now in fact qualifies as a church for purposes of this ERISA exemption. These three
issues will be addressed in turn.
First, to the extent Defendants contend that Plaintiffs have failed to establish
that Kingdom Now is a church subject the church plan exemption, this argument
admits of a misunderstanding of the burden of persuasion on issues of removal.
Defendants, as the removing parties, bear the burden of establishing that this court
has subject-matter jurisdiction over the claims raised in the action. See Miedema,
450 F.3d at 1328. That Plaintiffs came forward with no evidence relating to
Kingdom Now’s status as a church is of no moment. This particular objection to the
Recommendation is without merit.
Second, Defendants argue that the evidence of record is sufficient to establish
that Kingdom Now is not a church, and thus Kingdom Now’s plan does not fall
within the church plan exemption. In support of this position, Defendants first point
to Kingdom Now’s Articles of Incorporation, which establish that Kingdom now is
a corporation organized under the laws of Alabama. (Doc. # 18-1.) Defendants
seem to suggest that, because Kingdom Now is a corporation, it cannot also be a
church. But Defendants cite no authority supporting the proposition that “church”
and “corporation” are mutually exclusive statuses, and it is doubtful that any such
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 9 of 20
10
authority exists.1 Defendants also note that, in Kingdom Now’s application for a
plan of group insurance with Guardian, Kingdom Now listed “church” under nature
of business. (Doc. # 18-8.) According to Defendants, this fact supports the finding
that Kingdom Now is not a church. This argument defies logic.
Defendants also submitted new evidence, in conjunction with their objections,
to support their argument that Kingdom Now is not a church. An exhaustive review
of Defendants’ submissions and arguments reveals that none of this evidence is
availing. Defendants note that Hardy is listed as “Bishop” on Kingdom Now’s
application for a Guardian group insurance plan (Doc. # 18-2), but that Hardy
actually acts as Bishop of Faith Christian Church, which is part of the Kingdom Now
network. (See Doc. # 29-2.) Hardy is also listed in Kingdom Now’s Articles of
Incorporation as “President.” (Doc. # 18-1.) According to Defendants, the fact that
Hardy is listed as the president of Kingdom Now, but as Bishop of Faith Christian
Church, means that Kingdom Now cannot be a church. This argument beggars
belief. As Plaintiffs astutely note, a corporation organized under the laws of
Alabama must designate a president. See Ala. Code § 10A-3-2.21. That Hardy is
listed as the president of Kingdom Now is of no relevance to the organization’s status
as a church vel non.
1 Plaintiffs note in their briefing that many churches are registered as corporations under
the laws of Alabama.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 10 of 20
11
Defendants additionally note that the address of record for Kingdom Now is
identical to the address of record for Faith Christian Church. (Docs. # 18-1 and 29-
2.) This matters, by Defendants’ reasoning, because churches must have physical
locations where congregants can meet and worship. Because Kingdom Now has no
separate location in which its congregants can meet, according to Defendants, it
cannot be a church within the meaning of ERISA. Tellingly, Defendants cite no
authority, legal or otherwise, in support of this proposition. This evidence, which in
fact suggests direct affiliation with a house of worship, more logically supports the
finding that Kingdom Now is a church. Suffice it to say that Defendants’ argument
on this point is unpersuasive. The evidence of record is insufficient to establish that
Kingdom Now is not a church.
Third, Defendants seek jurisdictional discovery to determine conclusively
whether Kingdom Now is a church such that its plan is exempt from ERISA’s
requirements. It is true that Defendants face difficulty proving that Kingdom Now
is not a church without the benefit of conducting further discovery, though it must
be noted that the evidence currently available supports the finding that Kingdom
Now qualifies as a church. Where further factual development is necessary to
resolve issues of subject-matter jurisdiction, district courts may allow jurisdictional
discovery. See Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729 (11th Cir. 1982).
Even so, Defendants only request jurisdictional discovery to the extent it would aid
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 11 of 20
12
them in establishing that Kingdom Now’s plan does not fall within the church plan
exemption. And as discussed in Part III.C, infra, this action is due to be remanded
on the separate ground that Plaintiffs lack standing to sue under ERISA. The issue
of Kingdom Now’s status as a church is ultimately unnecessary for the resolution of
this matter, and jurisdictional discovery will not be permitted.
Accordingly, as they relate to the Magistrate Judge’s finding that Kingdom
Now’s plan is exempt as a church plan, Defendants’ objections are due to be
overruled. Defendants’ evidence is insufficient to show that Kingdom Now is not a
church within the meaning of ERISA. Though jurisdictional discovery might
otherwise be appropriate under these circumstances, it will not be allowed here
because the motion to remand is due to be granted for an independent reason.
C. Whether Plaintiffs Have ERISA Standing
The Magistrate Judge also found that Defendants failed to carry their burden
as to the second element of the complete ERISA preemption analysis. See Butero,
174 F.3d at 1212. Because the insureds were not employees of Kingdom Now, they
were not plan participants. And because the insureds were not plan participants,
Lawrence and Hardy are not beneficiaries within the meaning of ERISA’s standing
provision.
ERISA’s civil enforcement provision narrowly limits the categories of parties
with standing to sue under an ERISA plan. That portion of the statute provides that
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 12 of 20
13
only a “participant” or a “beneficiary” may bring a civil enforcement action
thereunder. 29 U.S.C. § 1332(a); see also Engelhardt v. Paul Revere Life Ins. Co.,
139 F.3d 1346, 1351 (11th Cir. 1998) (“ERISA’s civil enforcement section permits
two categories of individuals to sue for benefits under an ERISA plan—plan
beneficiaries and plan participants.”).
The statute defines “participant” as “any employee or former employee of an
employer, or any member or former member of an employee organization, who is or
may become eligible to receive a benefit of any type from an employee benefit plan
which covers employees of such employer or members of such organization, or
whose beneficiaries may be eligible to receive any such benefit.” 29 U.S.C. §
1002(7). It further defines “beneficiary” as “a person designated by a participant, or
by the terms of an employee benefit plan, who is or may become entitled to a benefit
thereunder.” 29 U.S.C. § 1002(8).
In their objections, Defendants contend that the Magistrate Judge “conflated
ERISA standing with the Plaintiffs’ entitlement to benefits” under the relevant plans.
(Doc. # 29, at 6.) This broad objection comprises two more focused issues.
Defendants first argue that Hardy and Lawrence have ERISA standing as plan
beneficiaries because they have at least colorable claims to benefits under the
Kingdom Now plan. Defendants also argue that, because Kingdom Now has some
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 13 of 20
14
employees, the insureds under the plans at issue in this action were participants under
ERISA.
The first issue raised in Defendants’ broad objection regarding standing is
whether Plaintiffs qualify as beneficiaries within the meaning of ERISA by virtue of
the fact that they have “colorable” claims that they are entitled to benefits under the
Kingdom Now plan. The gravamen of Defendants’ position is that, merely because
Plaintiffs brought this action claiming they are entitled benefits under the relevant
plans, they qualify as beneficiaries within the meaning of 29 U.S.C. § 1002. The
legal authority on which Defendants rely for this position is inapposite, and this
particular aspect of their objections is due to be overruled.
Defendants first reference Firestone Tire & Rubber Co. v. Bruch for the
proposition that anyone with a colorable claim to plan benefits has standing to sue
under ERISA. 489 U.S. 101, 117 (1989). The Firestone Court held no such thing.
In fact, it considered and rejected the theory that any claimant, by virtue of making
a claim for benefits under an ERISA plan, has ERISA standing. Id. Declining to
follow a lower court decision that endorsed such a theory, the Court in Firestone
held that only those plaintiffs meeting the statutory definitions of participant or
beneficiary have standing to sue under ERISA. Id. The Court went on to explain
that the term participant, as defined in § 1002(7), refers only to persons who are
current or former employees of the plan employer. Id.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 14 of 20
15
The language Defendants quoted from Justice Scalia’s concurring opinion,
which references the concept of colorable claims, likewise does not support
Defendants’ position on this point. Justice Scalia wrote separately to note his
understanding of the statutory definition of participant as including “those whose
benefits have vested, and those who (by reason of current or former employment)
have some potential to receive the vesting of benefits in the future . . . .” Id. at 119
(Scalia, J., concurring). It simply does not follow from Justice Scalia’s reasoning
that anyone who claims to be entitled to payment has standing merely by virtue of
his making a claim related to an employee benefit plan. The proper standing analysis
turns, as the majority of the Firestone Court held, on whether the plaintiff meets the
statutory requirements as either a participant or a beneficiary.
The second case on which Defendants principally rely is Daughtry v.
Birdsong Peanuts. 168 F. Supp. 2d 1287 (M.D. Ala. 2001). According to
Defendants, this case also supports the notion that anyone claiming benefits under
an employee benefits plan is a “beneficiary” within the meaning of § 1002(8). A
full reading of the background facts underlying the decision in Daughtry, however,
reveals that it does not support such a sweeping principle.
The plaintiffs in that case, in order to avoid ERISA coverage, claimed that
they should not be treated as beneficiaries of the relevant plan despite overwhelming
evidence indicating that they were in fact designated as beneficiaries. The Daughtry
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 15 of 20
16
court did note that a plaintiff who has a colorable claim to benefits cannot avoid the
exercise of federal jurisdiction by claiming that he is not a beneficiary of the relevant
plan. Id. at 1293. In that case, however, it was clear that the plaintiffs were the
intended beneficiaries of plans for which the insured qualified as a participant under
ERISA.
In the case at bar, it is far from clear that the insureds under the relevant plans
in fact qualify as plan participants. In fact, Defendants have taken the position that
the insureds under the Lawrence and Hardy policies were not Kingdom Now
employees, foreclosing the possibility that the insureds were plan participants within
the meaning of § 1002(7). As will be addressed in more detail below, where the
insureds do not qualify as plan participants under § 1002(7), the named beneficiaries
do not qualify as statutory beneficiaries within the meaning of § 1002(8). Though
the bare language of Daughtry ostensibly supports Defendants’ position regarding
Plaintiffs’ standing, a proper reading of the case reveals that it is inapposite.
Defendants also cite Glass v. United of Omaha Life Ins. Co., but that case is
unpersuasive. See 33 F.3d 1341 (11th Cir. 1994). According to Defendants, the
plaintiff in Glass “argued against ERISA preemption, asserting that he was not a
beneficiary under ERISA because the deceased ‘was not working 30 hours per week
at any time after the plan became effective and thus was not eligible for the plan.’”
(Doc. # 29, at 8 (quoting Glass, 33 F.3d at 1345).) Defendants severed this quotation
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 16 of 20
17
from its proper context and, in doing so, have wholly mischaracterized the holding
of the case. The number of hours the deceased was working per week was not the
focus of the preemption analysis at all. Instead, that fact was relevant to the court’s
holding that the insurer did not wrongfully deny plan eligibility.2 Nothing in the
Glass opinion suggests that the plaintiff at any time argued that she was not a
beneficiary within the meaning of § 1002(8). Examined in its proper context, Glass
lends no support to Plaintiffs’ objections.
After stripping away the unpersuasive legal authority on which Defendants
rely, all that remains for examination is the clear import of the statutory text
regarding ERISA standing. Only participants and beneficiaries have standing to sue
under ERISA. 29 U.S.C. § 1332(a). Despite Defendants’ objections to the contrary,
Plaintiffs are not considered “beneficiaries” under ERISA merely by virtue of the
fact that they have colorable claims to benefits. Under § 1002(7), as expounded by
the Supreme Court in Firestone, a party only qualifies as a plan participant if he is,
or at some point was, in an employer-employee relationship with the plan employer.
See 29 U.S.C. § 1002(7); Firestone, 489 U.S. at 117. And to qualify as a beneficiary
2 The actual quotation from that case reads as follows: “Several of appellant’s claims
warrant little discussion. First, it is clear that Hostetter was not working 30 hours per week at any
time after the plan became effective and thus was not eligible for the plan. Thus, there was no
wrongful denial of eligibility under ERISA.” Glass, 33 F.3d at 1345.
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 17 of 20
18
under § 1002(8), a party must have been designated as a beneficiary under the plan
by a qualified plan participant. 29 U.S.C. § 1002(8).
As the Magistrate Judge found, a party’s status as beneficiary depends on the
insured’s status as participant.3 If, as was the case with the Lawrence and Hardy
plans, the insureds were not paid employees of the plan employer, the named
beneficiaries do not have standing to sue under ERISA. Defendants denied benefits
to Lawrence and Hardy, at least in part, because the insured decedents were not paid
employees of Kingdom Now. (Doc. # 18-5, at 33; Doc. # 18-7, at 44.) They seek
removal by operation of ERISA preemption, but the fact that the insureds were not
paid employees forecloses this possibility. In this sense, Defendants are hoisted on
their own petard4 back to state court.
The second issue Defendants raise with respect to ERISA standing deals with
Kingdom Now’s status generally as an employer. Apparently recognizing that
Plaintiffs cannot be considered beneficiaries if the insureds were not participants
3 Hardy is listed as the president of Kingdom Now, which leaves open the possibility that
he is a participant under the Kingdom Now plan. Defendants offer no argument suggesting that
Hardy is a participant by virtue of his status as a paid employee, nor do they point to any evidence
in the record indicating that Hardy is a plan participant with standing to sue with respect to his
grandfather’s plan. In the absence of any relevant argument or evidence, this tenuous possibility
cannot form the basis of federal subject-matter jurisdiction. See Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994) (holding that jurisdictional doubts must be resolved in favor of
remand).
4 See WILLIAM SHAKESPEARE, HAMLET, PRINCE OF DENMARK act 3, sc. 4 (“Let it work; For
‘tis the sport to have the engineer Hoist with his own petard . . . .”).
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 18 of 20
19
under § 1002, Defendants argue in their reply brief that Kingdom Now has some
plan participants because it has some employees. It is unremarkable that Kingdom
Now has some employees—ERISA standing depends on something different. The
relevant inquiry, under §§ 1002 and 1132, is whether the insureds were employees.
This is essential to the finding that the insureds are plan participants, and by
extension that Plaintiffs are plan beneficiaries.
Defendants’ evidence is insufficient to show that the decedent insureds were
in an employer-employee relationship with Kingdom Now. In the Kingdom Now
application for group coverage, in response to the question whether any employees
were “currently not actively at work,” Hardy, as representative for Kingdom Now,
responded “no.” (Doc. # 18-8, at 2.) The only import of this evidence is that, with
respect to Kingdom Now generally, Hardy represented that all persons employed by
Kingdom Now were actively at work. This application response in no way indicates
that Lawrence’s parents or Hardy’s grandfather were ever employed by Kingdom
Now. And evidence in the record shows that Defendants took the position, in
denying benefits to Plaintiffs, that the decedent insureds were not paid employees of
Kingdom Now. (Doc. # 18-5, at 33; Doc. # 18-7, at 44.)
Upon careful consideration, Defendants’ objections regarding ERISA
standing are due to be overruled. The Magistrate Judge correctly found that
Plaintiffs do not qualify as plan beneficiaries within the meaning of § 1002(8).
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 19 of 20
20
Because Plaintiffs do not have ERISA standing, this action is not completely
preempted under ERISA’s civil enforcement provision. See Butero, 174 F.3d at
1212. Defendants failed to carry their burden of establishing the court’s subjectmatter jurisdiction, and Plaintiffs’ motion to remand is due to be granted.
IV. CONCLUSION
Accordingly, it is ORDERED as follows:
1. Defendants’ Objections (Doc. # 29) are OVERRULED.
2. The Recommendation (Doc. # 28) is ADOPTED.
3. Plaintiffs’ Motion to Remand (Doc. # 15) is GRANTED.
4. All remaining motions (Docs. # 18, 20, 21, 32, and 36) are DENIED
for lack of subject-matter jurisdiction.
5. This case is REMANDED, pursuant to 28 U.S.C. § 1447(c), to the
Circuit Court of Montgomery County, Alabama.
6. The Clerk of the Court is DIRECTED to effectuate remand.
DONE this 14th day of June, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
Case 2:16-cv-00061-WKW-PWG Document 41 Filed 06/14/16 Page 20 of 20 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-2_12-cv-02884/USCOURTS-alnd-2_12-cv-02884-0/pdf.json | 442 | Civil Rights Employment | 42:2000 Job Discrimination (Race) | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANCHESCA KING,
Plaintiff,
v.
ASSOCIATED GROCERS OF THE
SOUTH, INC. and JOHN GILBERT,
Defendants.
}
}
}
}
}
}
}
}
}
}
CIVIL ACTION NO.
2:12-cv-2884-WMA
MEMORANDUM OPINION
Before the court is a motion to compel arbitration filed by
defendants, Associated Grocers of the South, Inc. (“Associated
Grocers”) and John Gilbert (“Gilbert”). Doc. 15. Plaintiff,
Franchesca King (“King”), opposes the motion, doc. 18, and
defendants have responded. Doc. 20. For the reasons that follow,
defendants’ motion to compel arbitration will be granted.
FACTS
Associated Grocers is a wholesale grocery cooperative that
provides a variety of services for over 300 independent grocery
stores in five states. Since March 1, 2004, Associated Grocers has
presented all of its non-union employees with an Alternative
Dispute Resolution Policy (“ADR Policy”) that they must sign as a
condition of employment. The ADR Policy provides that employees
agree to submit all disputes involving “Covered Claims” to
arbitration. It further states that “Covered Claims” are “any and
1
FILED
2013 Jan-04 PM 02:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 1 of 7
all disputes arising out of, or relating to, the employee’s
employment with the Company.” It goes on to list examples of
“Covered Claims” including but not limited to: “actions under Title
VII of the Civil Rights Act of 1964;” “any claim of retaliation,
including claims under Alabama Code Section 25-5-11.1;” and “tort
claims, (including, but not limited to, negligent or intentional
injuries, defamation, and sexual harassment).” Doc. 18-2, page 1-2.
It also states that employees have the same right as the company to
assert the ADR Policy and to require arbitration when faced with a
lawsuit brought by another employee and related to their
employment.
On April 8, 2004, King applied for a job with Associated
Grocers and was offered a non-union recoup clerk position. On April
9, 2004, she completed Associated Grocers’s employment paperwork,
including the ADR Policy, at which time she signed and dated the
ADR Policy’s acknowledgment and receipt form that stated:
I acknowledge that I have received and
reviewed a copy of Associated Grocers of the
South, Inc.’s Alternative Dispute Resolution
Policy (“ADR”) and I agree to this ADR Policy
as a condition of my employment. I understand
that, among other things, the ADR Policy
requires all non-union employees to arbitrate
certain Covered Claims defined by the Policy
rather than litigate such claims in court.
Doc. 18-2, page 7. King was also given an Employee Handbook with an
acknowledgment of receipt form that she signed and dated. It
stated:
2
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 2 of 7
I acknowledge receipt of the Associated
Grocers of the South, Inc.’s Employee Handbook
and the fact that I have read and understand
it. I further acknowledge that the provisions
of employment stated in this handbook are not
contractual. Company policies and procedures,
whether included in this handbook or not, are
in no way contractually binding on any party.
Also, I understand that the company reserves
the right to amend, revoke, replace, suspend
or add, without notice, any or all of its
policies and procedures, whether or not
contained or referenced in this handbook.
Doc. 18-1 at page 29.
King began her work as a recoup clerk only after her
completion of these employment forms. She was later promoted to
work as a transportation clerk and/or transportation supervisor.
Beginning in January 2007 and continuing until the end of King’s
employment, John Gilbert was her supervisor. On March 25, 2011,
King’s employment was terminated. Associated Grocers maintains that
the reason for her termination was her excessive tardiness, but
King claims other reasons, and on September 5, 2012 she filed the
above entitled action that she was fired for discriminatory
reasons. She also alleges, among other complaints, that she was
subjected to a hostile work environment and that Gilbert sexually
harassed her.
Defendants invoke the ADR Policy and assert that all of
plaintiff’s claims are “Covered Claims” under the ADR Policy and
3
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 3 of 7
that plaintiff should be ordered to arbitration.1
DISCUSSION
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, “preempts
state law to the extent that it treats arbitration agreements
differently than other contracts.” Caley v. Gulfstream Aerospace
Corp., 428 F. 3d 1359, 1367 (11 Cir. 2005). The Supreme Court has th
clarified the statute by holding that employment agreements fall
under the FAA, and are thus enforceable as long as they involve
interstate commerce and are valid contracts under the governing
state law. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105
(2001). Defendants assert that King worked in five states, and that
this meets the interstate commerce requirement. King does not deny
that the interstate commerce element exists. However, she attacks
the validity of the contract.
The basis of King’s argument is an Alabama Supreme Court case
in which that court found that the inclusion of vitiating language
in the employee handbook invalidated the arbitration provision that
Count 1 - “Quid Pro Quo Sexual Harassment” in violation of Title VII; 1
Count 2 - “Hostile Working Environment - Sexual Harassment” in violation of
Title VII; Count 3 - “Hostile Working Environment - Racial Harassment” in
violation of Title VII; Count 4 - “Disparate Treatment” on the basis of race
and gender in violation of Title VII; Count 5 -“Retaliation”in violation of
Title VII for protesting against racial and sexual discrimination; Count 6
- “Negligence, Wantonness and/or Recklessness” that caused emotional and other
injuries; Count 8 - “Negligent/Wanton Hiring, Training, Supervision, and/or
Retention of John Gilbert”; Count 9 - “Negligent/Wanton Hiring, Training,
Supervision, and/or Retention” of other employees; Count 10 - “Invasion of
Privacy. Plaintiff also listed Count 7 - “Respondeat Superior/Vicarious
Liability.” This is a theory of liability for which Associated Grocers could
be responsible for the acts of defendant Gilbert, but it is not an independent
cause of action.
4
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 4 of 7
also appeared in the handbook. Ex Parte Beasley, 712 So. 2d 338
(Al. 1998). In Beasley, the plaintiff had signed an acknowledgment
form providing, inter alia, that “no written statement or agreement
in this handbook. . . is binding.” Id. at 340. The Alabama Supreme
Court found that the words “no written statement” included the
handbook’s statement requiring employees to use arbitration, and
thus directed the trial court to vacate its order that compelled
plaintiff employee to arbitrate her claims against her employer.
Id.
King asserts that her situation is analogous to
Beasley because the acknowledgment form she signed in her employee
handbook stated that the provisions are “in no way contractually
binding on any party.” However, King’s arbitration agreement was a
completely separate signed document that was not part of the
employee handbook. In Beasley, the court addressed such a
situation:
The acknowledgment form contained in
Brookwood’s standard employee handbook would
have created a binding obligation to arbitrate
under Patterson if Beasley had signed that
form; however, she did not sign that form. . .
. Absent Beasley’s signature on a document
that contains a valid arbitration clause, we
cannot hold that she agreed to arbitrate her
employment claims against Brookwood.
Id. citing Patterson v. Tenet Healthcare, Inc., 113 F. 3d 832 (8th
Cir. 1997) (holding that the arbitration clause was an enforceable
contract because it was separate from the handbook and its
5
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 5 of 7
disclaiming language ). The situation before this court is much 2
more analogous to Patterson than to Beasley because the arbitration
agreement is a separate enforceable contract that is not affected
by the language of the employee handbook. There is no ambiguity in
the ADR Policy, which King is presumed to have read.
King argues that despite the separateness of the documents,
the handbook acknowledgment form language vitiates the arbitration
agreement because it says company policies are not binding on any
party “whether included in this handbook or not.” However, there is
no reason to look outside of the arbitration agreement to discern
its enforceability. “General contract law requires a court to
enforce, as it is written an unambiguous and lawful contract.”
Drummond Co., Inc. v. Walter Industries, Inc., 962 So. 2d 753 (Al.
2006). The arbitration agreement being unambiguous, the analysis
does not move to an examination of extrinsic evidence like the
employee handbook.
The arbitration agreement’s enumerated list of “covered
claims” for which arbitration is required includes each of the
types of claims brought by King. Therefore, not only is the
arbitration agreement a valid contract and thus enforceable under
the FAA, but it also applies to all of King’s claims. Furthermore,
“We believe that the difference in language used in the handbook and 2
that employed in the arbitration clause would sufficiently impart to an
employee that the arbitration clause stands alone, separate and distinct from
the rest of the handbook. The reservation of rights language refers to the
handbook provisions related to employment, not to the separate provisions of
the arbitration agreement.” Patterson, 113 F. 3d 835.
6
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 6 of 7
the agreement states that the right to arbitration belongs to other
employees when they face a lawsuit brought by a fellow employee.
Therefore, Gilbert is allowed to force the arbitration of the
claims brought against him.
CONCLUSION
For the foregoing reasons, defendants’ motion to compel
arbitration will be granted. A separate order effectuating this
opinion will be entered.
DONE this 4 day of January, 2013. th
_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
7
Case 2:12-cv-02884-WMA Document 21 Filed 01/04/13 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_09-cv-01158/USCOURTS-almd-3_09-cv-01158-2/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
HENRY DAVIS JONES, #226148, )
)
Petitioner, )
v. ) CASE NO. 3:09-cv-1158-TMH
) WO
LEON FORNISS, et al., )
)
Respondents. )
O R D E R
After an independent review of the file, it is the ORDER, JUDGMENT and DECREE
of the court that:
1. The petitioner's objection (Doc. #20) to the Recommendation of the Magistrate
Judge filed on April 19, 2012 is overruled;
2. The Recommendation of the Magistrate Judge (Doc. #19) filed on April 2, 2012
is adopted;
3. The petition for habeas corpus relief filed by petitioner Henry Davis Jones is
DENIED and DISMISSED with prejudice.
DONE this the 9th day of May, 2012.
/s/ Truman M. Hobbs
SENIOR UNITED STATES DISTRICT JUDGE
Case 3:09-cv-01158-TMH-TFM Document 21 Filed 05/09/12 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-01362/USCOURTS-caed-2_05-cv-01362-5/pdf.json | 440 | Other Civil Rights | 42:1983 Civil Rights Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 REQUEST AND STIPULATION TO CONTINUE PRE TRIAL CONFERENCE
Page 1
LONGYEAR, O’DEA
& LAVRA, LLP
3620 American River
Drive, Suite 230
S a c r amen t o , CA
95864
(916) 974-8500
Attorneys for Defendants, County of Sacramento
Martin Crosby,
David Cuneo, and
Deputy Cory Moore
UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA
MARK DOUCETTE
Plaintiff,
vs.
COUNTY OF SACRAMENTO; DEPUTY
MARTIN CROSBY; SERGEANT DAVID
CUNEO; DEPUTY CORY MOORE and
DOES 1-100 inclusive
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 2:05-CV-01362-GEB-KJM
Complaint Filed: August 18, 2005
TRIAL DATE: April 3, 2007
REQUEST AND STIPULATION TO
CONTINUE PRE TRIAL CONFERENCE
The Plaintiff MARK DOUCETTE, by and through his attorney of record, Deborah
Barron, and Defendants, and each of them, through their attorney John Lavra, request that the
final pre trial conference presently scheduled for March 12, 2007, be continued for a period of
two weeks or to a date as ordered by the court. This stipulation is based upon the grounds that
the pretrial conference was previously set for February 26, 2007. On January 29, 2007, the
parties attended a private mediation wherein this case was settled with one provision of the
settlement agreement requiring that the amount of the settlement be approved by the Sacramento
County Risk Management. Defendants do not anticipate problems with respect to the approval
LONGYEAR, O’DEA & LAVRA, LLP
3620 American River Drive, Suite 230
Sacramento, California 95864-5923
Tel: 916-974-8500 Fax: 916 974-8510
JOHN A. LAVRA, CSB No. 114533
JERI L. PAPPONE, CSB No. 210104
Case 2:05-cv-01362-GEB -KJM Document 27 Filed 03/01/07 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 REQUEST AND STIPULATION TO CONTINUE PRE TRIAL CONFERENCE
Page 2
LONGYEAR, O’DEA
& LAVRA, LLP
3620 American River
Drive, Suite 230
S a c r amen t o , CA
95864
(916) 974-8500
of the settlement amount.
Defendants anticipate that if the pre trial conference is continued for a period of two
weeks or to a date thereafter as ordered by the court, that the appropriate stipulations for
dismissal will be filed, concluding this case.
DATED: February 27, 2007 LONGYEAR, O'DEA & LAVRA
By: /s/ John A. Lavra
JOHN A. LAVRA
JERI L. PAPPONE
Attorneys for Defendants
DATED: February 28, 2007 LAW OFFICES OF DEBORAH BARRON
By /s/ Deborah Barron
Deborah Barron, Esq.
Attorney for Plaintiff
IT IS SO ORDERED.
Based upon the stipulation and request of the parties, the Pre Trial Conference scheduled
for March 12, 2007 is continued to March 26, 2007, at 2:30 p.m.
Dated: February 28, 2007
GARLAND E. BURRELL, JR.
United States District Judge
Case 2:05-cv-01362-GEB -KJM Document 27 Filed 03/01/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_12-cv-00808/USCOURTS-almd-2_12-cv-00808-0/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WARREN F. McDONALD, III, )
)
Plaintiff, )
)
v. ) CASE NO. 2:12-CV-808-WHA
) [WO]
)
PRESTON HUGHES, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
This 42 U.S.C. § 1983 action is pending before the court on a complaint filed by
Warren F. McDonald ["McDonald"], an indigent inmate. In the complaint, McDonald
challenges conditions to which he was subjected during his confinement at the Covington
County Jail.
On August 5, 2014, an order was entered advising McDonald to inform the court of
whether he sought to proceed with this cause of action. Doc. No. 21. McDonald failed to
respond to this order. Consequently, the court issued an order directing McDonald to show
cause for this failure. Doc. No. 22. This order cautioned McDonald "that if he files no
response to the prior order and/or this order the undersigned will recommend that this case
be dismissed." Id. The postal service returned this order because McDonald no longer
resided at the address on file with the court. Based on the foregoing, it is clear that
McDonald failed to comply with the directive set forth in the order of procedure that he
Case 2:12-cv-00808-WHA-TFM Document 24 Filed 09/03/14 Page 1 of 3
immediately inform the court of any change in his address. Doc. No. 4 at 5.
The record before the court establishesthat McDonald hasfailed to complywith the
directives of the orders entered by this court. In addition, this case cannot properly proceed
in his absence. It likewise appears that McDonald is no longer interested in the
prosecution of this case. The court therefore concludes that this case is due to be
dismissed. Moon v. Newsome, 863 F.2d 835, 837 (11 Cir.1989) (As a general rule, where
th
a litigant has been forewarned, dismissal for failure to obey a court order is not an abuse
of discretion.); see also Tanner v. Neal, 232 Fed. Appx. 924 (11 Cir.2007) (affirming sua
th
sponte dismissal without prejudice of inmate's § 1983 action for failure to file a response
in compliance with court's prior order directing such action and warning of consequences
for failure to comply).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case
be dismissed without prejudice for failure of the plaintiff to comply with the orders of this
court.
It is further
ORDERED that on or before September 18, 2014 the parties may file objections to
the Recommendation. Any objections filed must specifically identify the findings in the
Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not
2
Case 2:12-cv-00808-WHA-TFM Document 24 Filed 09/03/14 Page 2 of 3
appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge's Recommendation shall bar the party from a de novo determination by
the District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5 Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d
th
33 (11 Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981, en
th th
banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
Done this 3rd day of September, 2014.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
3
Case 2:12-cv-00808-WHA-TFM Document 24 Filed 09/03/14 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_23-cv-00210/USCOURTS-azd-2_23-cv-00210-4/pdf.json | 190 | Other Contract Actions | 28:1441 Petition for Removal- Breach of Contract | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Rozich,
Plaintiff,
v.
MTC Financial Incorporated, et al.,
Defendants.
No. CV-23-00210-PHX-DWL
ORDER
Robert Rozich (“Plaintiff”) contacted his loan servicer, LoanCare, LLC
(“LoanCare”), to express concerns regarding his ability to make future payments to First
Citizens Bank and Trust Company (“CIT”) on an outstanding home equity line of credit.
In response, LoanCare told Plaintiff he would have to be delinquent for three months before
he could apply for hardship relief. However, after Plaintiff went into delinquency based
on that advice and then submitted a loan modification application, LoanCare denied relief
based on CIT’s eligibility requirements. In this action, Plaintiff sued several defendants
under an array of legal theories. All of Plaintiff’s claims have either been settled or
dismissed except for those against CIT.
Now pending before the Court is CIT’s motion to dismiss. (Doc. 50.) For the
reasons that follow, the motion is granted but Plaintiff is granted leave to amend.
BACKGROUND
I. Factual Allegations
The following facts, presumed true, are derived from Plaintiff’s operative pleading,
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 1 of 18
- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the First Amended Complaint (“FAC”). (Doc. 21.)
Former Defendant MTC Financial Inc. (“MTC”) is a California corporation that
operates in Arizona. (Id. ¶ 2.)
Defendant CIT is a bank that operates in Arizona. (Id. ¶ 3.)
Former Defendant LoanCare is a company that services loans, including in Arizona.
(Id. ¶ 4.)
On July 31, 2007, Plaintiff obtained a $150,000 home equity line of credit (“the
HELOC”). (Id. ¶¶ 8, 11.) The HELOC is secured by a deed of trust (“DOT”) on Plaintiff’s
home in Phoenix. (Id.) In 2010, the DOT was assigned to CIT. (Id. ¶ 10.) “The DOT was
a Secondary Lien, with a Wells Fargo-Home Mortgage having a secured loan in first
position.” (Id. ¶ 12.)
The “monthly payment for the Wells Fargo-Home Mortgage loan was . . . $1,377.”
(Id. ¶ 13.) The “monthly mortgage payment under the HELOC would fluctuate based on
the amount of the interest only payments,” with an “estimated average per month paid by
Plaintiff” of $1,093.75. (Id. ¶ 14.)
In 2007, “[u]pon obtaining the HELOC, the entire line of credit under the
HELOC . . . was placed in Plaintiff’s bank account without his permission or knowledge[,]
which would require him to pay interest on the entire amount of the HELOC.” (Id. ¶ 15.)
Plaintiff “immediately returned the funds to the lender, but already having the interest
assessed on the entire amount of the HELOC Plaintiff transferred all of the funds in the
HELOC to his account.” (Id. ¶ 16.) “Defendants” then “close[d] the credit line within
one . . . year of funding the loan, for reasons not having to do with Plaintiff.” (Id. ¶ 17.)
“On or before July of 2018 Plaintiff contacted LoanCare because he foresaw
difficulties in making future payments on the HELOC.” (Id. ¶ 18.) “LoanCare informed
Plaintiff that he would have to be delinquent three . . . or so months before hardship relief
would be granted.” (Id. ¶ 19.) “LoanCare1 did not discuss with Plaintiff other options
1
In paragraph 73 of the FAC, Plaintiff suggests that he expected CIT to discuss these
options as with him as well, which CIT failed to do.
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 2 of 18
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
available, including refinance, so that Plaintiff could remain in good standing and continue
his monthly payments without issue.” (Id. ¶ 21.) “Plaintiff never had been delinquent on
the payments for the HELOC.” (Id. ¶ 20.) “Around this time LoanCare removed Plaintiff’s
access to the online HELOC account,” which meant “Plaintiff could not make or review
payments and balances online as he always had before.” (Id. ¶¶ 22-23.)
“In September of 2018, Plaintiff submitted his Borrower Response Package/Loss
Mitigation Application . . . based on the previous instructions from LoanCare to first allow
the HELOC payments to become delinquent and apply for relief.” (Id. ¶ 25.)
On September 21, 2018, LoanCare responded that Plaintiff’s application was
incomplete. (Id. ¶ 26.) Plaintiff then provided additional information. (Id. ¶ 27.)
On or around October 30, 2018, LoanCare confirmed in a letter to Plaintiff that the
application was complete but also noted that it “encourage[d] [Plaintiff] to consider
contacting servicers of any other mortgage loans secured by the same property to discuss
available loss mitigation options.” (Id. ¶¶ 27, 30.)
On or around November 13, 2018, LoanCare told Plaintiff in a letter that “although
[he] may have a hardship, [he] d[id] not qualify for a loan modification.” (Id. ¶ 32.) The
letter stated Plaintiff “was not eligible for a repayment plan, unemployment forbearance,
or traditional modification trial, because the HELOC was not a first lien.” (Id. ¶ 35, internal
quotation marks omitted.) The letter also stated that the denial of the application was
“based on eligibility requirements of CIT.” (Id. ¶ 37.) Before this letter, “LoanCare had
never informed Plaintiff that because the HELOC was not a first lien, Plaintiff would not
qualify under any plan,” although it “knew at all times the HELOC was in second position.”
(Id. ¶¶ 36-37.)
In March 2019, Plaintiff submitted a second mitigation application. (Id. ¶ 38.) On
April 15, 2019, Plaintiff received a second rejection letter from LoanCare, which provided
the same explanation that was provided in the first rejection letter. (Id. ¶¶ 39, 42, 43.)
In November 2019 and April 2020, LoanCare rejected successive applications from
Plaintiff for the same reason. (Id. ¶¶ 44-45, 48, 52-53, 56-57.)
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 3 of 18
- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In September 2021, Plaintiff enlisted the help of an individual named Charles M.
Bartkiewicz to assist him with his fifth application. (Id. ¶¶ 60-62.) In an October 15, 2021
letter, LoanCare informed Bartkiewicz that it “does not offer refinancing,” so “the only
options for Plaintiff were to reinstate the account . . . , a short sale, or a discounted pay
off.” (Id. ¶¶ 62-63.) The October 15, 2021 letter “also for the first time, invite[d] Plaintiff
to make a settlement offer for a lien release.” (Id. ¶ 64.) Bartkiewicz then made three
settlement offers on Plaintiff’s behalf, but none were accepted, and CIT “refused to ever
provide a counteroffer.” (Id. ¶¶ 65-66.)
In a May 6, 2022 letter rejecting the second settlement offer, LoanCare stated that
“the account remains due for the January 6, 2019, payment and the unpaid principal
balance” was $126,407.70. (Id. ¶ 66.) In other words, “LoanCare was taking the position
that from July 2007 through December 2018, Plaintiff had only paid” $23,592.30 “towards
the principal.” (Id. ¶¶ 66-68.) “After Plaintiff’s online access to his account was revoked
by Defendants, Plaintiff has never been provided an accounting showing the basis of the
unpaid principal balance as . . . $126,407.70.” (Id. ¶ 70.)
Plaintiff alleges that “LoanCare and CIT purposely prolonged the period that
Plaintiff negotiated with the Defendants so that the Plaintiff would be in considerable
arrears which would make his ability to obtain new financing from any institution
increasingly difficult to impossible.” (Id. ¶ 71.) “During the entirety of this process,
Defendants negatively reported each late payment destroying Plaintiff’s good credit
rating.” (Id. ¶ 72, internal quotation marks omitted.) “Had LoanCare and/or CIT initially
told Plaintiff to offer an amount for a discounted payoff and release of lien instead of
advising [him] to resubmit multiple applications, then either a settlement could have been
reached or Plaintiff would still have been in a position to obtain new financing with CIT
or [an]other lender based on his then good credit and equity.” (Id. ¶ 73.)
II. Procedural History
On December 13, 2022, Plaintiff commenced this action in Maricopa County
Superior Court. (Doc. 1 ¶ 1.)
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 4 of 18
- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Shortly after filing the complaint, Plaintiff obtained a temporary restraining order
(“TRO”) to enjoin the then-impeding trustee’s sale of Plaintiff’s home. (Doc. 42-1 at 2-5.)
On January 31, 2023, LoanCare removed the action to this Court. (Doc. 1.)
On March 9, 2023, after Plaintiff and MTC announced they had reached a settlement
(Doc. 16), the Court dismissed all of Plaintiff’s claims against MTC. (Doc. 18.)
On April 7, 2023, Plaintiff filed the FAC. (Doc. 21.) The FAC asserts five claims
against LoanCare and CIT: (1) breach of contract; (2) breach of the implied covenant of
good faith and fair dealing; (3) violation of the Arizona Consumer Fraud Act
(“ACFA”); (4) violation of the Real Estate Settlement Procedures Act (“RESPA”); and (5)
violation of the Truth in Lending Act (“TILA”). (Id. ¶¶ 74-106.)
On May 22, 2023, LoanCare moved to dismiss the FAC. (Doc. 25.)
On October 26, 2023, the Court granted LoanCare’s motion to dismiss. (Doc. 28.)
On November 13, 2023, after Plaintiff declined to file a Second Amended
Complaint as authorized in the dismissal order, the Court dismissed LoanCare. (Doc. 29.)
On November 14, 2023, the Court issued an order to show cause (“OSC”) why
Plaintiff’s claims against CIT should not be dismissed for failure to prosecute. (Doc. 30.)
On November 28, 2023, Plaintiff filed a response to the OSC. (Doc. 31.) Plaintiff
affirmed his intent to pursue his claims against CIT, acknowledged that he “inadvertently
failed to effectuate service of the [FAC] on [CIT],” and expressed his “hopes the Court will
allow some additional time to effectuate the service of the [FAC] of [CIT] and opportunity
to respond.” (Id. at 2.)
On November 29, 2023, the Court deemed the OSC satisfied but ordered Plaintiff
to promptly serve CIT and file proof of service. (Doc. 32.)
On December 8, 2023, Plaintiff filed a proof of service indicating that CIT had been
served with the FAC on December 5, 2023. (Doc. 33.)
On December 20, 2023, MTC recorded a notice of trustee’s sale with the Maricopa
County Recorder, indicating that a trustee’s sale of Plaintiff’s property was scheduled for
March 27, 2024. (Doc. 42-1 at 7.)
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 5 of 18
- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On December 21, 2023, Plaintiff filed an application for default as to CIT. (Doc.
34.) The Clerk later entered the default against CIT. (Doc. 35.)
On March 8, 2024, Plaintiff filed motions for default judgment and attorneys’ fees
against CIT. (Docs. 36, 37.)
That same day, counsel for Plaintiff and CIT began exchanging emails regarding
the planned trustee’s sale, with Plaintiff taking the position that the state-court TRO
“remains enforceable” (Doc. 42-1 at 12) and CIT taking the position that “[we] do not agree
that a temporary restraining order issued by the Superior Court in December, 2022 has
remained in effect for the last 15 months notwithstanding removal of the case to United
States District Court” (Doc. 42-2 at 12).
On March 15, 2024, notwithstanding that disagreement, CIT agreed to postpone the
trustee’s sale to May 1, 2024. (Doc. 42-2 at 24.) Additionally, CIT informed Plaintiff that
it “would likely be open to a further postponement pending the outcome of litigation.” (Id.
at 12.)
On March 18, 2024, CIT filed a motion to set aside the default. (Doc. 39.) That
same day, CIT filed a response to the motion for default judgment. (Doc. 41.)
On March 21, 2024, Plaintiff filed a motion for expedited relief concerning the
trustee’s sale. (Doc. 42.)
On March 22, 2024, the Court issued an order requiring expedited briefing as to
CIT’s motion to set aside default and staying the briefing as to Plaintiff’s motions for
default judgment and attorneys’ fees. (Doc. 43.)
On March 29, 2024, after full expedited briefing (Docs. 44, 45), the Court granted
CIT’s motion to set aside the default and denied Plaintiff’s motions for default judgment
and attorneys’ fees. (Doc. 46.)
On April 5, 2024, after full briefing (Docs. 47, 48), the Court denied Plaintiff’s
expedited motion to preclude the trustee’s sale. (Doc. 49.)
On April 12, 2024, CIT filed the pending motion to dismiss the FAC. (Doc. 50.)
The motion is now fully briefed (Docs. 52, 55) and neither side requested oral argument.
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 6 of 18
- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DISCUSSION
I. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (internal quotation marks
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). When
evaluating a Rule 12(b)(6) motion, “all well-pleaded allegations of material fact in the
complaint are accepted as true and are construed in the light most favorable to the nonmoving party.” Id. at 1444-45 (quoting Ashcroft, 56 U.S. at 678). However, the court need
not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-80.
Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due to “a
lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir.
2015) (citation omitted).
II. Count One—Breach Of Contract
A. The Parties’ Arguments
In Count One of the FAC, Plaintiff asserts a claim for breach of contract. (Doc. 21
¶¶ 74-83.) The FAC alleges that the underlying contract was the DOT, that LoanCare acted
as CIT’s agent with respect to the DOT, and that CIT (via LoanCare) breached the DOT in
three ways: (1) CIT “breached [its] duty to provide only a line of credit able to be used on
a revolving nature by initially advancing the full amount of the HELOC without Plaintiff’s
knowledge or consent, then closing it altogether”; (2) CIT “breached [its] duty to apply all
Plaintiff’s payments in the required order”; and (3) CIT “breached [its] duty by not
providing a notice of acceleration and opportunity for Plaintiff to reinstate his account or
bring court action to defend acceleration and/or sale.” (Id.)
CIT argues that Count One should be dismissed because Plaintiff “fails to allege
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 7 of 18
- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
what provisions of the alleged contract [CIT] breached, and fails to allege, with any
specificity whatsoever, any damages that resulted from such a breach.” (Doc. 50 at 3.)
CIT also argues that “Plaintiff fails to allege, with any specificity whatsoever, how his
payments were misapplied and fails to allege that his loan was accelerated or that
foreclosure proceedings were initiated.” (Id. at 3-4.)
Plaintiff responds that the FAC “goes into great detail as to most of these areas, and
if not, can be cured with a simple amendment.” (Doc. 52 at 4.) Plaintiff also argues that,
under the DOT, CIT had a duty “to provide a line of credit able to be used on a revolving
nature, which [CIT] did not do for the entire time of the HELOC.” (Id.) Plaintiff next
argues that CIT breached its contractual duties by failing “to apply all Plaintiff’s payments
in a certain order,”
2 by failing “to provide an accounting,” and by failing “to provide a
notice of acceleration and opportunity for Plaintiff to reinstate his account or bring court
action to defend acceleration and/or sale . . . .” (Id.) Plaintiff argues that these duties
“derive” as a matter of “common sense” from unspecified “provisions” within the DOT
and that the FAC’s “allegations, taken as whole, provide [CIT] with the requisite notice
under Rule 8, Fed.R.Civ.P.” (Id. at 4-5.) Regarding damages, Plaintiff argues that the
FAC alleges damages with sufficient specificity in the form of “unpaid principal, excess
fees, accrued interest, attorney fees and costs, and other compensatory, consequential, and
statutory damages as applicable.” (Id. at 5.) In support, Plaintiff cites Seven Words LLC
v. Network Sols., 260 F.3d 1089 (9th Cir. 2001). Id. Plaintiff argues that unless CIT can
show prejudice from the lack of a more detailed computation of damages at this stage, he
need not produce such a computation until discovery. (Id.)
CIT reiterates its arguments in its reply and adds that Plaintiff’s allegation in
paragraph 15 of the FAC that a breach occurred in 2007 when the “full amount” was
“initially advanced” cannot succeed because “the statute of limitations for a breach of
contract action is six years.” (Doc. 55 at 2.)
2 Paragraph 78 of the FAC lists the appropriate order as: “1. Prepayment charges; 2.
Amounts due on the Account to secure advances; Escrow payments; 4. Late charges; 5.
Finance charges and other fees; 6. Accrued finance charges; and 7. Principal balance.”
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 8 of 18
- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Analysis
A breach of contract claim has three elements under Arizona law: (1) the existence
of a contract, (2) its breach, and (3) resulting damages. Graham v. Asbury, 540 P.2d 656,
657 (Ariz. 1975).
The Court agrees with CIT that the FAC’s allegations are insufficient to establish
the second element of breach. Plaintiff alleges that certain duties arose from the DOT as a
matter of “common sense,” including the duty to provide a line of credit on a “revolving
nature” (Doc. 21 ¶ 77), to apply payments in a particular order (id. ¶ 78), and to provide
notice of acceleration and/or sale (id. ¶ 79). However, Plaintiff does not provide a copy of
the DOT as an attachment to the FAC and fails to tether his allegations to any particular
provision within the DOT. Additionally, even assuming CIT might owe the alleged duties
to Plaintiff under the DOT, the FAC does not plead any facts suggesting that CIT breached
those duties—the FAC does not, for example, explain how CIT failed to provide credit of
a “revolving nature,” how CIT misapplied the payments, or how a failure to abide by the
payment application order listed in paragraph 78 of the FAC caused Plaintiff harm. Nor
does Plaintiff allege that CIT had a duty under the DOT to provide a proper “accounting.”
Dismissal for failure to state a claim is warranted under these circumstances. See, e.g.,
Kramer v. Ocwen Loan Servicing LLC, 2014 WL 1827158, *5 (D. Ariz. 2014) (“Kramer
makes reference to the Deed of Trust only once in his complaint, and has neither attached
a copy nor identified any relevant sections. Kramer does not allege any particular breach
of that contract, nor does he allege any benefit under that contract that was impaired. . . .
[N]othing in the Deed of Trust guarantees Kramer the right to receive truthful information
about the loan modification process. Kramer has failed to identify benefits due under the
loan origination contract or how Defendants impaired those benefits with the requisite
specificity.”); Ripa v. Fed. Nat. Mortg. Ass’n, 2013 WL 5705426, *4 (D. Ariz. 2013)
(“Plaintiff does not explain, however, how the actions of Defendants breached the Note
and Deed of Trust. Indeed, Plaintiff makes reference to the Deed of Trust only once in his
Complaint and has neither attached a copy nor identified any relevant sections. Plaintiff
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 9 of 18
- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
does not allege any particular breach of that contract, nor does he allege any benefit under
that contract that was impaired.”); Schultz v. BAC Home Loans Servicing, LP, 2011 WL
3684481, *3 (D. Ariz. 2011) (“Plaintiff has pointed to no authority showing she was owed
any accounting on the note, nor provided the Court with any evidence that any payments
she made were not, in fact, credited to her. For all these reasons, Plaintiff has failed to state
a claim for relief in Count One.”).
3
III. Count Two—Breach Of The Implied Covenant Of Good Faith And Fair Dealing
A. The Parties’ Arguments
In Count Two of the FAC, Plaintiff asserts a claim for breach of the implied
covenant of good faith and fair dealing. (Doc. 21 ¶¶ 84-88.) The FAC alleges that the
underlying contract was the DOT and that “Defendants have a long history into the present
of committing wrongful acts against borrowers, including those complained of by the
Plaintiff, including failure to provide a proper accounting, purposely not applying or
misapplying payments, not informing Plaintiff [of] his rights as required under the DOT,
constantly telling Plaintiff to submit another application knowing it will be denied because
it is a second lien, not informing Plaintiff that LoanCare cannot ‘refinance’ until October
2021, and not negotiating in good faith to purposely cause delay all the while negatively
reporting to credit agencies so Plaintiff has no hope of refinancing with any lender.” (Id.
¶ 86.) The FAC continues: “Defendants’ actions to mislead and deceive Plaintiff into
default so that his application would be granted, knowing the applications would be denied,
all the while negatively reporting to credit agencies, and forever ruining his opportunity to
refinance, was an act of malice, purposely and knowingly done to harm Plaintiff.” (Id.
¶ 87.)
CIT moves to dismiss Count Two because Plaintiff “fails to explain what acts or
omissions of [CIT] allegedly breached the implied covenant of good faith and fair dealing,
3 Given this determination, it is unnecessary to resolve CIT’s other arguments as to
why Count One should be dismissed, including the statute-of-limitations argument raised
for the first time in CIT’s reply. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007)
(“The district court need not consider arguments raised for the first time in a reply brief.”).
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 10 of 18
- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and fails to describe how an alleged breach by [CIT] prevented him from receiving the
benefits and entitlements of the deed of trust in question.” (Doc. 50 at 4.) CIT also argues
that “Plaintiff’s allegations are entirely conclusory, devoid of specificity, and [Plaintiff]
fails to allege, with any specificity whatsoever, what damages he allegedly suffered as a
result of [CIT’s] alleged conduct.” (Id.)
Plaintiff responds that, in paragraph 86 of the FAC, he “was specific to all of [CIT’s]
actions and non-actions in support of his claim for breach of good faith and fair dealing.”
(Doc. 52 at 6.)
In reply, CIT reiterates its earlier arguments and also identifies the statute of
limitations as a reason why Plaintiff should be required to provide further details about the
challenged acts (and whether they occurred within the statutory period). (Doc. 55 at 2-3.)
B. Analysis
“Arizona law implies a covenant of good faith and fair dealing in every contract.”
Keg Rests. Ariz., Inc. v. Jones, 375 P.3d 1173, 1186 (Ariz. Ct. App. 2016). “The covenant
requires that neither party do anything that will injure the right of the other to receive the
benefits of their agreement.” Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1038
(Ariz. 1985). “[A] party may . . . breach its duty of good faith without actually breaching
an express covenant in the contract.” Wells Fargo Bank v. Arizona Laborers, Teamsters
& Cement Masons Loc. No. 395 Pension Tr. Fund, 38 P.3d 12, 29 (Ariz. 2002).
The Court agrees with CIT that Plaintiff has not pleaded a valid claim for breach of
the implied covenant. Many of the allegations in paragraph 86 of the FAC are simply
vague, conclusory labels—for example, that CIT has committed “wrongful acts” and was
“not negotiating in good faith.” (Doc. 21 ¶ 86.) These are not well-pleaded facts and are
not entitled to a presumption of truth. Iqbal, 556 U.S. at 678-80. Moreover, the implied
covenant does not exist to vindicate “some unspecified notion of fairness.” Villegas v.
Transamerica Fin. Servs., Inc., 708 P.2d 781, 784 (Ariz. Ct. App. 1985). In light of
Plaintiff’s failure to provide a copy of the DOT or at least plead concrete details about its
provisions, Plaintiff has failed to plausibly establish that CIT’s conduct deprived him of
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 11 of 18
- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
specific benefits flowing from the DOT. Schwartz v. Chase Home Fin., LLC, 2010 WL
5151326, *2 (D. Ariz. 2010) (“[E]ven if plaintiff contended that Chase breached its duty
of good faith and fair dealing implied in the Deed of Trust, plaintiff fails to allege that
Chase acted to impair any of plaintiff’s contract benefits. Because plaintiff has not
provided us with the Deed of Trust, we have no way of knowing the contract benefits to
which plaintiff was entitled. Because plaintiff’s complaint does not contain sufficient
factual matter, which, if accepted as true, would state a claim for relief that is plausible on
its face, the claim must be dismissed.”) (cleaned up).
Other allegations in the FAC, although more specific, are simply not covered by the
implied covenant. For example, the allegation that CIT failed to “inform[] Plaintiff that
LoanCare cannot refinance until October 2021” (Doc. 21 ¶ 86) does not establish that CIT
deprived Plaintiff of any benefit flowing from the DOT. It merely identifies an action that
Plaintiff views as unfair, and Plaintiff does not allege that the DOT contains a provision
that entitles him to the right to receive truthful information about the loan modification
process. Cf. Kramer, 2014 WL 1827158 at *5 (dismissing implied-covenant claim because
“nothing in the Deed of Trust guarantees [the plaintiff] the right to receive truthful
information about the loan modification process”). Similarly, although the FAC alleges
that CIT failed to “negotiat[e] in good faith to purposely cause delay” (Doc. 21 ¶ 86), “the
implied covenant of good faith and fair dealing does not extend to negotiation.” Vera v.
Wells Fargo Bank, N.A., 2011 WL 334286, *3 (D. Ariz. 2011). Nor does CIT failing “to
provide a proper accounting” violate any alleged benefit flowing from the DOT to Plaintiff.
Finally, as for the allegation that CIT “negatively report[ed] to credit agencies” (Doc. 21
¶ 86), Plaintiff once again fails to show how such conduct might conceivably deprive him
of a benefit flowing from the DOT. Vera, 2011 WL 334286 at *3 (dismissing impliedcovenant claim where “plaintiff has not pled facts suggesting that Wells Fargo was
obligated to refrain from reporting to the credit bureaus”).
For these reasons, Count Two is dismissed.
4
4 As with Count One, this conclusion makes it unnecessary to reach CIT’s other
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 12 of 18
- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. Count Three—ACFA
A. The Parties’ Arguments
In Count Three of the FAC, Plaintiff asserts a claim for consumer fraud in violation
of the ACFA. (Doc. 21 ¶¶ 89-94.) Plaintiff alleges that “Defendants partook in deceptive
and unfair acts and/or practice, fraud, false pretense, false promise, misrepresentation, or
concealment, suppression or omission of material facts with intent that Plaintiff rely on
such concealment, suppression or omission, in connection with advising Plaintiff to allow
the HELOC to go into default for roughly three (3) months, advising Plaintiff to fill out
multiple applications, knowing they would not be granted for the same reason that the
HELOC was a second lien, not informing Plaintiff of certain rights, [and] not informing
Plaintiff that LoanCare could not ‘refinance’ until much later and too late.” (Id. ¶ 90.)
Plaintiff also alleges fraud in relation to a $10 monthly fee. (Id. ¶¶ 91-92.)
CIT seeks dismissal of Count Three because “the alleged ‘advisements’ were not
made in connection with the ‘sale or advertisement of merchandise,’ Plaintiff fails to allege
that he actually relied on such advertisements, Plaintiff fails to allege that he suffered any
alleged injury as a proximate cause of such advertisements, and Plaintiff fails to allege the
injuries that he suffered with specificity.” (Doc. 50 at 5.) CIT also argues that “Plaintiff’s
claim for violation of A.R.S. § 6-635 fails because it does not apply to the HELOC loan in
question pursuant to A.R.S. § 6-602.” (Id.)
In response, Plaintiff does not dispute any of these points and states that he
understands that Count Three is “likely subject to dismissal.” (Doc. 52 at 7).
B. Analysis
Given Plaintiff’s non-opposition, and for the reasons stated in an earlier order
dismissing Count Three as to LoanCare (Doc. 28 at 7-9), Count Three is dismissed.
IV. Count Four—RESPA
A. The Parties’ Arguments
In Count Four of the FAC, Plaintiff asserts a claim for violating RESPA. (Doc. 21
dismissal arguments related to Count Two.
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 13 of 18
- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
¶¶ 95-101.) More specifically, the FAC alleges that CIT violated 12 C.F.R. § 1024.39(b).
(Doc. 21 ¶¶ 96.)5
CIT seeks dismissal of Count Four for three reasons: (1) § 1024.39(b) “does not
confer upon borrowers a private right of action against lenders”; (2) § 1024.39(b) “only
applies to delinquent borrowers, and Plaintiff has failed to allege that he is a delinquent
borrower”; and (3) Plaintiff fails to allege the damages he suffered from the violation with
“any specificity whatsoever.” (Doc. 50 at 5-6.)
Plaintiff responds to CIT’s first argument by citing the Court’s previous order
granting LoanCare’s motion to dismiss, in which the Court declined to rule on whether
§ 1024.39(b) confers a private right of action because Plaintiff had failed to allege the
required damages resulting from the § 1024.39(b) violation. (Doc. 52 at 7.) Plaintiff now
concedes that he has failed to allege such damages and seeks leave to do so. (Id. at 7-8.)
In response to CIT’s second argument, Plaintiff argues that by elsewhere in the FAC
admitting default and indebtedness, he has effectively alleged that he was a delinquent
borrower. (Id.)
CIT reiterates its arguments in reply. (Doc. 55 at 4-5.)
B. Analysis
Because Plaintiff concedes he failed to plead damages resulting from a RESPA
violation, Count Four is dismissed.
V. Count Five—TILA
A. The Parties’ Arguments
In Count Five of the FAC, Plaintiff asserts a claim for violating TILA. (Doc. 21
¶¶ 102-06.) After alleging that “[s]ervicers are required to implement qualified loss
mitigation plan[s] based on standard industry practice” pursuant to “the guidelines issued
by the Secretary of the Treasury under the Emergency Economic Stabilization Act of
5 Although the FAC also includes allegations regarding 12 C.F.R. § 1024.41(d) (Doc.
21 ¶ 98), Plaintiff does not defend the sufficiency of that portion of Count Four in his
response and concedes it is “likely subject to dismissal.” (Doc. 52 at 8.) Accordingly, the
analysis here is limited to the parties’ dispute over 12 C.F.R. § 1024.39(b).
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 14 of 18
- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2008,” Plaintiff alleges that “LoanCare, for the first time, after almost three (3) years of
dealings, specifically stated in the October 21, 2021, letter that refinancing was not an
available option because it was a servicer.” (Id. ¶¶ 103, 105.) According to Plaintiff, this
resulted in unspecified “violations of TILA.” (Id. ¶ 106.)
CIT argues that Count Five should be dismissed because it “fails to allege that [CIT]
violated any specific provision of TILA, and fails to allege any specific damages that he
suffered as a result of an alleged violation of TILA by [CIT].” (Doc 50 at 6.)
In response, Plaintiff argues that the FAC was not intended to allege a claim based
directly on a violation of TILA. (Doc. 52 at 8-9.) According to Plaintiff, the FAC was not
intended to allege that the Home Affordable Modification Program (“HAMP”) guidelines,
such as 15 U.S.C. § 1639a(c), create a legal duty, but rather that the guidelines “describe a
duty of care that was not met by [CIT], and that the standard of care is set forth by [those
guidelines], to include a loan modification, workout, or other loss mitigation plan, a loan
sale, real property disposition, trial modification, pre-foreclosure sale, and deed in lieu of
foreclosure, and a refinancing of a mortgage.” (Id. at 9.) Plaintiff thus contends that Count
Five is “based on negligence” and seemingly argues that CIT owed him a duty “to offer
certain programs,” which it then breached “by not offering the entirety of the programs.”
(Id.) Plaintiff cites Markle v. HSBC Mortg. Corp. (USA), 844 F. Supp. 2d 172 (D. Mass.
2011), to support this theory and requests leave to amend to better explain that theory. (Id.)
In its reply, CIT reiterates its earlier arguments and adds that Markle supports its
contention that 15 U.S.C. § 1639a(c) does not create a legal duty “to comply with HAMP
guidelines or else face lawsuits.” (Doc. 55 at 5.)
B. Analysis
The Court agrees with CIT that Count Five is subject to dismissal. As an initial
matter, only the most liberal reading of the FAC could support Plaintiff’s contention that
Count Five is not a claim arising directly under § 1639a(c)—in which case it would be
subject to dismissal—but rather is a negligence claim and merely seeks to use the
guidelines referenced in § 1639a(c) to set the standard of care. Nowhere does the FAC
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 15 of 18
- 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
mention negligence. Moreover, paragraph 103 of the FAC provides that “[s]ervicers are
required to implement qualified loss mitigation plan[s] . . . as set forth by the guidelines”
and paragraph 106 provides that Plaintiff’s damages were as “a result of [CIT’s] violations
of TILA.” This language suggests that CIT’s alleged violations of TILA—not its breach
of any otherwise-owed duty—form the basis of Plaintiff’s claim.
But even assuming Plaintiff was attempting to assert a negligence claim, he has not
alleged with sufficient specificity the source of CIT’s otherwise-owed duty to comply with
§ 1639a(c). If Plaintiff meant to suggest the source of this duty is the DOT, then the FAC
fails to allege this with sufficient specificity for all of the reasons stated earlier regarding
Counts One and Two. Courts have not hesitated to dismiss similar claims. Wright v. Chase
Home Fin. LLC, 2011 WL 2173906, *1 (D. Ariz. 2011) (granting motion to dismiss where
“Plaintiff asserts that HAMP amended her note and deed of trust to impose additional
duties on defendants”); Short v. Chase Home Fin. LLC, 2011 WL 9160941, *3 (D. Ariz.
2011) (granting motion to dismiss, even though “Plaintiffs assert that they have not brought
suit to enforce HAMP,” because “this assertion is belied by the complaint’s
allegations . . . [which] make clear . . . that the central issue in this case is Chase’s
compliance with HAMP”).
For these reasons, Count Five is dismissed. See also Mollett, 795 F.3d at 1065
(dismissal may be based on “a lack of a cognizable legal theory”).
VI. Leave to Amend
A. The Parties’ Arguments
CIT asks the Court to dismiss without leave to amend because any amendment
would be futile: “Plaintiff fails to allege any wrongful acts or omissions on the part of
[CIT], save, perhaps the alleged denial of ‘applications’ . . . and it is entirely unclear as to
how a denial of applications for loan modification or otherwise would give rise to a claim
against Defendant.” (Doc. 50 at 7.)
Plaintiff requests leave to amend in the event of dismissal and argues that CIT “does
not adequately explain why an amendment could not cure [CIT’s] allegations that the FAC
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 16 of 18
- 17 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
does not allege wrongful acts or omissions.” (Doc. 52 at 10.)
B. Analysis
Rule 15(a) of the Federal Rules of Civil Procedure “advises the court that ‘leave [to
amend] shall be freely given when justice so requires.’” Eminence Cap., LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted). “This policy is ‘to be applied
with extreme liberality.’” Id. (citation omitted). Thus, leave to amend should be granted
unless “the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3)
produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v.
Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).
Applying these standards, Plaintiff’s request for leave to amend is granted. As the
Court noted when granting Plaintiff’s request for leave to amend the FAC in the aftermath
of LoanCare’s successful motion to dismiss (which raised many of the same arguments
that CIT raises here), “[a]lthough LoanCare may be correct that any amendment attempt
would be futile, as Plaintiff’s claims against LoanCare are being dismissed based on legal
deficiencies that, as far as the Court can tell, could not be cured through the pleading of
additional facts, the policy of extreme liberality underlying Rule 15(a) counsels in favor of
giving Plaintiff one more chance at amendment.” (Doc. 28 at 17.)
...
...
...
...
...
...
...
...
...
...
...
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 17 of 18
- 18 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Accordingly,
IT IS ORDERED that:
1. CIT’s motion to dismiss (Doc. 50) is granted.
2. Plaintiff may file a Second Amended Complaint (“SAC”) as to CIT within
14 days of the issuance of this order. Any changes shall be limited to attempting to cure
the deficiencies raised in this order and Plaintiff shall, consistent with LRCiv 15.1(a),
attach a redlined version of the pleading as an exhibit.
3. If Plaintiff does not file a SAC within 14 days of the issuance of this order,
the Clerk shall dismiss CIT as a Defendant and, because CIT is the last remaining
Defendant, the Clerk shall then enter judgment accordingly and terminate this action.
Dated this 9th day of October, 2024.
Case 2:23-cv-00210-DWL Document 56 Filed 10/10/24 Page 18 of 18 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_15-cv-02749/USCOURTS-cand-3_15-cv-02749-2/pdf.json | 830 | Patent | 35:271 Patent Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION AND [PROPOSED] ORDERTO CHANGE
HEARING DATE FOR DEFENDANT’S MOTION TO STAY
CASE NO. 15-CV-02749-JD
MICHAEL G. RHODES (116127)
([email protected])
COOLEY LLP
101 California Street – 5th Floor
San Francisco, CA 94111-5800
Telephone:(415) 693-2000
Facsimile: (415) 693-2222
JOSEPH M. DRAYTON (Pro Hac Vice Pending)
([email protected])
COOLEY LLP
1114 Avenue of the Americas
New York, NY 10036-7798
Telephone:(212) 479-6000
Facsimile:(212) 479-6275
PHILLIP E. MORTON (Pro Hac Vice Pending)
([email protected])
COOLEY LLP
11951 Freedom Drive
Reston, VA 20190-5656
Telephone:(703) 456-8000
Facsimile:(703) 456-8100
ROSE S. WHELAN (Pro Hac Vice Pending)
([email protected])
COOLEY LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004-2400
Telephone:(202) 842-7800
Facsimile:(202) 842-7899
Attorneys for Defendant
MOTOROLA MOBILITY LLC
WILSON W. LIN (302228)
[email protected]
H.C. PARK & ASSOCIATES, PLC
1894 Preston White Drive
Reston, VA 20191
Telephone: (703) 544-9230
Facsimile: (703) 288-5139
Attorney for Plaintiff GLOBAL TOUCH
SOLUTIONS, LLC
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
GLOBAL TOUCH SOLUTIONS, LLC,
Plaintiff,
v.
MOTOROLA MOBILITY LLC,
Defendant.
CASE NO. 15-CV-02749-JD
STIPULATION AND ORDER TO CHANGE
HEARING DATE FOR DEFENDANT’S
MOTION TO STAY
Case 3:15-cv-02749-JD Document 61 Filed 07/31/15 Page 1 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CASE NO. 15-CV-02749-JD
Pursuant to Civil L.R. 6-2 and Civil L.R. 7-12, Plaintiff Global Touch Solutions, LLC
(“GTS”) and Defendant Motorola Mobility LLC (“Motorola”), hereby stipulate and request an
order changing the hearing date for Motorola’s Motion to Stay This Action Pending Final Resolution of Inter Partes Review of the Patents-in-Suit (Dkt. 56). The hearing is currently scheduled for August 26, 2015 at 10:00 a.m. and the parties wish to move the hearing date to August
19, 2015 at 10:00 a.m. Defendants in three related cases have filed similar motions to stay pending final resolution of the same Inter Partes Review proceedings. See Global Touch Solutions,
LLC v. Apple, Inc., Case No. 3:15-cv-02748, Dkt. 37; Global Touch Solutions, LLC v. Microsoft
Corporation et. al., Case No. 3:15-cv-02750, Dkt. 52; Global Touch Solutions, LLC v. VIZIO,
Inc., 3:15-cv-02747, Dkt. 49. These motions are currently scheduled for hearing on August 19,
2015 at 10:00 a.m. The parties agree that judicial efficiency and the interests of the parties
would be best served by moving the hearing of Motorola’s motion to August 19, 2015 to consolidate all four related hearings. GTS’ opposition brief is due on July 30, 2015 and Motorola’s response brief will be due no later than August 6, 2015. Accordingly, the Court would have 13
days to review the papers prior to an August 19, 2015 hearing.
Dated: July 29, 2015 Respectfully submitted,
H.C. PARK & ASSOCIATES, PLC
By /s/ Wilson W. Lin
WILSON W. LIN (302228)
Attorney for Plaintiff GLOBAL TOUCH
SOLUTIONS, LLC
COOLEY LLP
By /s/ Michael G. Rhodes
MICHAEL G. RHODES (116127)
Attorneys for Defendant MOTOROLA
MOBILITY LLC
Case 3:15-cv-02749-JD Document 61 Filed 07/31/15 Page 2 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
FILER’S ATTESTATION
Pursuant to Civil Local Rule 5.1(i)(3), the undersigned attests that all parties have
concurred in the filing of this STIPULATION TO CHANGE HEARING DATE FOR
DEFENDANT’S MOTION TO STAY.
Dated: July 29, 2015 COOLEY LLP
By /s/ Michael G. Rhodes
MICHAEL G. RHODES (116127)
Attorneys for Defendant MOTOROLA
MOBILITY LLC
Case 3:15-cv-02749-JD Document 61 Filed 07/31/15 Page 3 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
PURSUANT TO STIPLUATION, IT IS SO ORDERED.
Dated : July 31, 2015
Hon. James Donato
United States District Judge
Case 3:15-cv-02749-JD Document 61 Filed 07/31/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-01074/USCOURTS-caed-2_07-cv-01074-1/pdf.json | 442 | Civil Rights Employment | 42:2000e Job Discrimination (Employment) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 1 Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
E.D. Cal. Local Rule 78-230(h).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
JAIME EVANS,
NO. 2:07-cv-1074 FCD DAD
Plaintiff,
v. MEMORANDUM AND ORDER
HARD ROCK CAFÉ INTERNATIONAL
(USA), INC., a corporation;
STEWART GARNETT; and DOES I
through XX, inclusive
Defendants.
----oo0oo----
This matter comes before the court on defendant Hard Rock
Café International’s (“Hard Rock”) motion to dismiss five of
plaintiff Jaime Evans’ (“Evans”) eleven claims for relief
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. For the reasons set forth below,1 defendant’s motion
is DENIED.
///
///
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 1 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2 The facts of this case are taken from plaintiffs’
allegations in the complaint.
Defendant, relying on Van Buskirk v. CNN, 284 F.3d 977 (9th
Cir. 2002), asks the court to consider extrinsic evidence in
support of its Motion. (Def’s. Reply Mot., filed Aug. 17, 2007
(“Reply Mot.”), at 7.) However, in Van Buskrik, neither party
challenged the court’s decision to review the proffered evidence.
In this case, plaintiff objects to the court’s consideration of
defendant’s records. Therefore, in ruling on defendant’s motion
the court will only consider the allegations set forth in the
complaint. Cf. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994) (considering documents “whose authenticity no party
questions” on a motion to dismiss) (overruled on other grounds by
Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.
2002).
2
BACKGROUND2
Evans was employed by Hard Rock as a server trainer, rocker
and bartender. (Pls.’ Compl., filed June 5, 2007 (“Compl.”), ¶
16.) Following employment at a separate Hard Rock location,
Evans transferred to Hard Rock’s Sacramento location in February
of 2006. (Id.)
In May of 2006, Evans’ co-worker, defendant Stewart Garnett
(“Garnett”), began to make inappropriate and offensive comments
to Evans and at least one other female employee. (Id. ¶ 17.)
Garnett’s sexually explicit comments escalated to unwanted
touching including, but not limited to, reaching up her skirt and
shorts, spanking her buttocks, and attempting to kiss her on the
lips. (Id. ¶ 18.)
In late May or early June of 2006, Evans and a female coworker, Aimee Hernandez, met with Hard Rock’s General Manager Jim
Borton (“Borton”) to complain about Garnett. (Id. ¶ 20.) Evans
and Hernandez informed Borton that Garnett’s actions made them
uncomfortable and provided examples of his harassment. (Id.)
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 2 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Borton assured Evans and Hernandez he would handle the situation.
(Id.)
Hard Rock subsequently held a mandatory employee meeting
addressing workplace sexual harassment. (Id. ¶ 21.) Immediately
following the meeting, Garnett made a sexually explicit remark to
Evans. (Id.) Evans sought out Borton, informing him Garnett was
continuing to harass her. (Id.) Borton stated he would talk to
Garnett again. (Id.)
Following these events, Garnett continued to make unwanted
advances and sexually harass Evans. (Id. ¶ 22.) Evans raised
the issue with Borton, advising him that Garnett’s ongoing
behavior was making her incredibly stressed and uncomfortable.
(Id. ¶ 23.) Evans told Borton she was not sleeping and vomiting
before work. (Id.) Borton commented that he had already
discussed the issue with Garnett “many times,” but that he would
“fix it.” (Id.)
On July 1, 2006, Evans had an evaluation meeting with Hard
Rock Manager Loren Abraham. (Id. ¶ 24.) During the meeting
Abraham told Evans she was performing well at her job, but that
she needed to be more assertive in her verbal leadership. (Id.)
Evans responded that her assertiveness had declined in large part
as a response to Garnett’s persistent sexual harassment. (Id.)
Abraham assured Evans that the situation with Garnett would be
appropriately handled. (Id.) The same day, Garnett was issued
a “Final Written Warning” by Hard Rock. (Id. ¶ 25.)
Three days later, on July 4, 2006, Garnett came to Hard
Rock, despite not being schedule to work. (Id. ¶ 27.) Garnett
drank at the bar and proceeded to follow both Evans and Hernandez
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 3 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
around the restaurant while they worked. (Id.) Garnett then
tried to touch and hug both women. (Id.) As a result, Evans
later suffered a panic attack and had to leave for the day.
(Id.) Evans also advised Hard Rock’s Manager Steve Romero
(“Romero”) she could not work with Garnett any longer. (Id.)
Romero replied that Evans still needed to work the shifts she was
scheduled. (Id.) Evans arranged for a co-worker to cover her
shifts and did not return to work for several days. (Id.)
On or about July 9, 2006, Evans was scheduled to work with
Garnett. (Id. ¶ 28.) Evans told Borton she did not want to
work with Garnett, but would for that day. (Id.) She also
expressed frustration that nothing had been done to conclusively
remedy the situation. (Id.) Borton then advised her that
Garnett had signed a letter saying he would be terminated if he
continued to engage in sexually harassing conduct. (Id.)
Despite Borton’s assurance, Garnett continued to harass
Evans while she worked. (Id. ¶ 29.) On one occasion he arrived
early and sat staring at Evans for forty five minutes. (Id.) On
another occasion, he squirted her with a water bottle. (Id.) On
July 31, 2006, Evans again told Borton she would not work with
Garnett. (Id.) Borton promised to reschedule her shifts so that
they would not coincide with Garnett’s. (Id. ¶ ¶ 30-31.)
Nonetheless, on August 2, 2006 Evans was scheduled to work with
Garnett. (Id. ¶ 31.)
From that date on, Evans proceeded to call before her shift
to see whether she was scheduled to work with Garnett. (Id.) If
she was scheduled to work with him, Evans switched shifts with a
co-worker to avoid coming into contact with Garnett. (Id.)
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 4 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
STANDARD
On a motion to dismiss, the allegations of the complaint
must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322
(1972). The court is bound to give plaintiff the benefit of
every reasonable inference to be drawn from the “well-pleaded”
allegations of the complaint. Retail Clerks Int'l Ass'n v.
Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff
need not necessarily plead a particular fact if that fact is a
reasonable inference from facts properly alleged. See id.
Nevertheless, it is inappropriate to assume that the
plaintiff “can prove facts which it has not alleged or that the
defendants have violated the . . . laws in ways that have not
been alleged.” Associated Gen. Contractors of Calif., Inc. v.
Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Moreover, the court “need not assume the truth of legal
conclusions cast in the form of factual allegations.” United
States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th
Cir. 1986).
Ultimately, the court may not dismiss a complaint in which
the plaintiff has alleged “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955 (2007). Only where a plaintiff has not
“nudged [his or her] claims across the line from conceivable to
plausible,” is the complaint properly dismissed. Id. “[A] court
may dismiss a complaint only if it is clear that no relief could
be granted under any set of facts that could be proved consistent
with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S.
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 5 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
506, 514 (2002) (quoting Hudson v. King & Spalding, 467 U.S. 69,
73 (1984)).
In ruling upon a motion to dismiss, the court may consider
only the complaint, any exhibits thereto, and matters which may
be judicially noticed pursuant to Federal Rule of Evidence 201.
See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th
Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United
States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).
ANALYSIS
Plaintiff’s complaint alleges Hard Rock’s conduct resulted
in her emotional distress, loss of employment opportunities and
mental anguish. Specifically, plaintiff brings claims for (1)
hostile work environment under Title VII and FEHA; (2)
retaliation under Title VII and FEHA; (3) failure to prevent
sexual harassment under FEHA; (4) wrongful termination in
violation of public policy; (5) negligent hiring, supervision,
training and retention; (6) negligence; (7) assault; (8) battery;
and (9) negligent infliction of emotional distress. Defendant
moves to dismiss plaintiff’s claims for negligence, negligent
infliction of emotional distress, and negligent hiring,
supervision, training, and retention because it contends such
claims are barred by California’s Workers Compensation Act.
Defendant also moves to dismiss plaintiff’s claims for assault
and battery on the grounds that she has failed to state a claim
upon which relief can be granted.
A. Negligent Infliction of Emotional Distress
Defendant contends that the exclusive remedy clause of
California’s Workers’ Compensation Act (“WCA”) bars plaintiff’s
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 6 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
claim for negligent infliction of emotional distress (“NIED”).
(Mot. at 6.) Plaintiff argues that claims for NIED are not
subject to the exclusive remedy clause of the WCA when it is
premised on an employer’s conduct that violates fundamental
public policy. (Pl.’s Opp’n Mot., filed Aug. 7, 2007 (“Opp’n”),
at 8.)
Where a plaintiff’s emotional distress claim results from a
defendant’s misconduct which exceeds the normal risks of the
employment relationship, a plaintiff’s claim is not preempted by
the WCA. Fretland v. County of Humboldt, 69 Cal. App. 4th 1478,
1492 (1999); see also Cabesuela v. Browning-Ferris Industries of
California, 68 Cal. App. 4th 101, 112-13 (1998) (stating that
plaintiff’s emotional distress claim is not barred by WCA in suit
alleging wrongful termination in violation of public policy).
Sexual harassment is a form of sex discrimination and
fundamentally violates determinations of state public policy.
Lyle v. Warner Bros. Television Productions, 38 Cal. 4th 264, 277
(2006).
Plaintiff alleges in her complaint that defendant knew or
should have known that plaintiff was being subject to sexual
harassment and that their failure to exercise due care in
preventing such harassment caused her emotional distress.
(Compl. ¶ 89.) As such, plaintiff has sufficiently alleged that
her NIED claim is based upon Garnett’s sexual harassment, conduct
that fundamentally violates California public policy and is thus,
beyond the normal risks of the employment relationship.
Therefore Evans’ NIED claim is not barred by the exclusivity
provision of the WCA.
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 7 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
Defendant argues that while intentional emotional distress
may fall outside the exclusivity provision of the WCA, a claim
for NIED is barred by the same. (Def’s. Reply Mot., filed Aug.
17, 2007 (“Reply Mot.”), at 3.) However, in Maynard v. City of
San Jose, the Ninth Circuit explicitly held that the plaintiff’s
claims of intentional and negligent infliction of emotional
distress were not preempted by the WCA. Maynard v. City of San
Jose, 37 F.3d 1396, 1405 (9th Cir. 1994); see also Smith v. Int’l
Bhd. of Elec. Workers, 109 Cal. App. 4th 1637, 1658 (2003)
(holding that plaintiff’s NIED claim was not barred by the WCA
because it was based on his employer’s violation of fundamental
public policies). Defendant argues that the Maynard court’s
holding with was incorrect and alternatively, that such a finding
was merely dicta. The court finds neither of these arguments
persuasive. In Maynard, the Ninth Circuit affirmed the jury’s
verdict for the plaintiff regarding his claim for NIED, finding
that such a claim was not preempted by the WCA because it arose
out of conduct that implicates fundamental public policies. 37
F.3d at 1405-06. Contrary to defendant’s assertion, the Maynard
court’s finding does not “border on dicta.” (Reply Mot. at 4).
As such, no matter how strongly defendant contends it was
incorrectly decided, the Ninth Circuit’s decision in Maynard is
binding on this court. Accordingly, Hard Rock’s motion to
dismiss plaintiff’s eleventh claim for NIED is DENIED.
B. Negligence; Negligent Hiring, Supervision, Training and
Retention
Defendant similarly argues that plaintiff’s claims for
negligence and negligent hiring, supervision, training and
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 8 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
retention are barred by the exclusivity doctrine of the WCA.
(Mot. at 4-6.) Plaintiff contends an exception to the
exclusivity rule applies when an employee suffers injury as a
result of discrimination. (Opp’n, at 7.)
The WCA generally provides the exclusive remedy for an
employee’s work-related injury. 2 WITSUM Workers Compensation
Act § 24 (2005). However, incidents where the “defendant’s
misconduct exceeds the normal risk of the employment
relationship” are excepted from the exclusivity provision.
Fretland v. County of Humboldt, 459 F. Supp. 2d 959, 1492 (1999)
(citing Livitsanos v. Superior Court, 2 Cal. 4th 744, 756
(1992)). As such, claims of negligence are not necessarily
preempted by the WCA’s exclusivity provision. Scott v. Solano
County Health and Social Services, 459 F. Supp. 2d 959, 971 (E.D.
Cal. 2006). “[T]he [WCA] does not bar . . . allegations of a
negligent response to harassment or discrimination claims because
these claims are based on accusations of discrimination, which
‘is not a normal risk of the compensation bargain.’” Id. (citing
Fretland, 69 Cal. App. 4th at 1492); Doerflex-Casner v. Placer
County Dep’t of Pub. Works, 2006 U.S. Dist. LEXIS 36066, 26-27
(2006); see Maynard, 37 F.3d at 1405 (“Personal injury claims
that implicate fundamental public policy considerations are not
preempted by the Workers Compensation Act.”).
Plaintiff’s claims for negligence and negligent hiring,
supervision, training and retention are based upon defendant’s
alleged failure to fulfill its duty to prevent sexual harassment,
(Compl. ¶¶ 70, 74), conduct that falls outside the normal risk of
the compensation bargain. Therefore, defendant’s motion to
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 9 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
dismiss with respect to plaintiff’s seventh and eighth claims for
relief is DENIED.
C. Assault and Battery
Finally, defendant argues that it cannot be held
vicariously liable for Garnett’s actions because there is no
nexus between his employment with defendant Hard Rock and the
alleged batteries he inflicted on Evans. (Mot. at 8.) Plaintiff
argues that Garnett’s conduct was, at the very least, reasonably
foreseeable to Hard Rock and thus, Hard Rock should be held
vicariously liable for the torts committed by Garnett. (Opp’n at
9.)
Vicarious liability is established when an employee acted
within the scope of his employment when he engaged in the
conduct. Farmers Ins. Group v. Santa Clara County, 11 Cal. 4th
992, 997 (1995). Determinations regarding scope of employment
are broadly construed. Id. at 1004. Furthermore, “an employer’s
vicarious liability may extend to willful and malicious torts of
an employee as well as negligence. . . . [A]n employee’s tortious
act may be within the scope of the employment even if it
contravenes an express company rule and confers no benefit to the
employer.” Id.
An employer may be vicariously liable if the employee’s act
was either required by the employer or incidental to the
employee’s duties. Yamaguchi v. Harsmut, 106 Cal. App. 4th 472,
482 (2003). Alternatively, an employer may be held liable if the
employee’s conduct was reasonably foreseeable to the employer.
Id.; see also Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal.
4th 291, 297-99 (1995). Conduct is reasonably foreseeable if the
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 10 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
incident leading to injury is an ‘outgrowth’ of the employment.
Id. at 298 (citations omitted). “A sexual tort will not be
considered [as reasonably foreseeable] . . . unless its
motivating emotions were fairly attributable to work related
events or conditions.” Id. at 301.
Plaintiff alleges that, on numerous occasions, Garnett had
engaged in offensive conduct during the course of her employment
with defendant, plaintiff had reported the conduct to defendant,
and subsequently, such conduct continued. Plaintiff also alleges
that she informed defendant that she could not work with Garnett
and that she arranged for co-workers to cover her shifts to avoid
him. See Yamaguchi, 106 Cal. App. at 482 (noting that evidence
of previous work disputes and threats between co-workers that did
not socialize outside the work environment and threats by one coworker that he would strike plaintiff with a knife could give
rise to the imposition of vicarious liability upon employer for
the subsequent assault with a knife); cf. Lisa M., 12 Cal. 4th at
302 (holding that an employer was not vicariously liable for a
sexual tort of its employee where there was no evidence that the
employee’s conduct was foreseeable to the employer either due to
nature of the work or prior interactions between plaintiff and
employee). Giving the plaintiff every reasonable inference from
the allegations in her complaint, plaintiff has sufficiently
alleged that Garnett’s alleged tortious conduct were casually
attributable to his employment with defendant and an outgrowth of
workplace relationships, conditions and events. Therefore,
defendant’s motion to dismiss plaintiff’s claims for assault and
battery are DENIED.
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 11 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss
plaintiff’s claims pursuant to Rule 12(b)(6) is DENIED.
IT IS SO ORDERED.
DATED: September 24, 2007
Case 2:07-cv-01074-FCD-DAD Document 18 Filed 09/24/07 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_07-cv-02714/USCOURTS-cand-5_07-cv-02714-0/pdf.json | 710 | Fair Labor Standards Act | 28:1331 Fed. Question: Fair Labor Standards | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER, page 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
CELIA HEREDIA,
Plaintiff,
v.
GULJINDER SUMMAN, INDERJIT
SUMMAN, SATNAM SUNNAM, AND
SURINDER SUMMAND, dba MORGAN
HILL DISCOUNT CLEANERS,
Defendants. __________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: C 07-2714 PVT
CASE MANAGEMENT
CONFERENCE ORDER
On September 4, 2007, the parties appeared before Magistrate Judge Patricia V. Trumbull
for a Case Management Conference. Based on the parties’ Joint Case Management Statement,
and the discussions held at the Case Management Conference,
IT IS HEREBY ORDERED that the court adopts the parties’ statement of disputed
factual and legal issues as set forth in the Case Management Conference Statement.
IT IS FURTHER ORDERED that the deadline for joinder of any additional parties, or
other amendments to the pleadings, is sixty days after entry of this order.
IT IS FURTHER ORDERED that the following modifications are made to the
presumptive limits on discovery set forth in the Federal Rules of Civil Procedure:
Plaintiff shall be limited to a maximum of five depositions and each Defendant shall be
Case 5:07-cv-02714-PVT Document 13 Filed 09/06/07 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 This is the last date for hearing dispositive motions. Any such motions must be
noticed in compliance with Civil Local Rule 7-2(a).
2 A copy of Judge Trumbull’s standing order is also available on the court’s
website at www.cand.uscourts.gov by clicking first on the “Judges” button, then on Judge
Trumbull’s name, then on the “Magistrate Judge Trumbull's Standing Orders” link, and finally
on the bullet for “Mag Judge Trumbull's General Order for all purposes (01/5/06).”
ORDER, page 2
limited to a maximum of four depositions each.
IT IS FURTHER ORDERED that the parties are referred to the Court’s ENE program.
The parties shall promptly contact the court’s ADR department to make the appropriate
arrangements.
IT IS FURTHER ORDERED that the following schedule shall apply to this case:
Fact Discovery Cutoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . June 30, 2008
Plaintiff’s Designation of Experts with Reports . . . . . . . . . . . . . . . . . . . . . . July 31, 2008
Defendant’s Designation of Rebuttal Experts with Reports . . . . . . . . . . August 20, 2008
Expert Discovery Cutoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . September 30, 2008
Deadline(s) for Filing Discovery Motions . . . . . . . . . . . . . . . . . See Civil Local Rule 26-2
Last Day for Dispositive Motion Hearing1
. . . . . . . . . . . 10:00 a.m. on October 28, 2008
Final Pretrial Conference . . . . . . . . . . . . . . . . . . . . . . . . 2:00 p.m. on November 18, 2008
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:30 a.m. on December 1, 2008
IT IS HEREBY ORDERED that the parties shall comply with the Standing Order for
Civil Practice in Cases Assigned for All Purposes to Magistrate Judge Patricia V. Trumbull (rev.
1/5/06), a copy of which is available from the clerk of the court,2 with regard to the timing and
content of the Joint Pretrial Statement, and all other pretrial submissions.
Dated: September 6, 2007
____________________________
PATRICIA V. TRUMBULL
United States Magistrate Judge
Case 5:07-cv-02714-PVT Document 13 Filed 09/06/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-03-10694/USCOURTS-ca5-03-10694-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | null | * Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
February 10, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10694
Summary Calendar
DALE ANDERSON,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-00157
USDC No. 4:02-CV-00158
USDC No. 4:02-CV-00159
--------------------
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Dale Anderson, Texas prisoner # 909781, appeals the denial
of his FED. R. CIV. P. 60(b) motion challenging the dismissal and
denials of his three consolidated 28 U.S.C. § 2254 applications.
The only issue before us is whether the district court abused its
discretion in denying Anderson’s Rule 60(b) motion. See Aucoin
v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991).
Case: 03-10694 Document: 0051502406 Page: 1 Date Filed: 02/10/2004
No. 03-10694
-2-
The sole purpose of Anderson’s Rule 60(b) motion was to
circumvent the jurisdictional problem caused by his failure to
file a timely notice of appeal from the judgment denying habeas
relief. A Rule 60(b) motion, however, is not a substitute for a
timely appeal. Dunn v. Cockrell, 302 F.3d 491, 493 (5th Cir.
2002), cert. denied, 537 U.S. 1181 (2003). Moreover, the delay
in Anderson’s receipt of notice of the judgment denying habeas
relief does not qualify as an “extraordinary circumstance” under
Rule 60(b)(6). Although the time to file a notice of appeal had
expired when he received notice of the denial, Anderson failed to
take advantage of other remedies that were still available, such
as a motion for an extension of time or a motion to reopen the
time to file an appeal. See FED. R. APP. P. 4(a)(5) (motion for
an extension of time); FED. R. APP. P. 4(a)(6) (motion to reopen
time to file notice of appeal).
AFFIRMED.
Case: 03-10694 Document: 0051502406 Page: 2 Date Filed: 02/10/2004 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_13-cv-05486/USCOURTS-cand-4_13-cv-05486-5/pdf.json | 850 | Securities, Commodities, Exchange | 15:77 Securities Fraud | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
In re: VIOLIN MEMORY, INC. SECURITIES
LITIGATION
This Document Relates To:
MCBRIAN v. VIOLIN MEMORY,
INC., No. 4:13-cv-05610-YGR
)
)
)
)
)
)
)
)
)
)
)
No. 4:13-cv-05486-YGR
CLASS ACTION
[PROPOSED] ORDER GRANTING
VOLUNTARY DISMISSAL
Case 4:13-cv-05486-YGR Document 104 Filed 03/03/15 Page 1 of 2
[PROPOSED] ORDER RE NTC OF VOLUNTARY DISMISSAL - 4:13-cv-05486-YGR -1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Upon consideration of Notice of Voluntary Dismissal, and for good cause shown, it is
HEREBY ORDERED THAT plaintiff Andrew McBrian’s action is voluntarily dismissed without
prejudice to his ability to participate in this action as an absent class.
IT IS SO ORDERED.
DATED: _________________________ ____________________________________
HON. YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE
Submitted by:
ROBBINS GELLER RUDMAN
& DOWD LLP
SHAWN A. WILLIAMS
s/ Shawn A. Williams
SHAWN A. WILLIAMS
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: 415/288-4545
415/288-4534 (fax)
S:\eFiling\Violin Memory\2014-02-25 Ntc of Dismissal\Violin Memory proposed order.doc
Case 4:13-cv-05486-YGR Document 104 Filed 03/03/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-05049/USCOURTS-cand-3_09-cv-05049-0/pdf.json | 371 | Truth in Lending | 15:1601 Truth in Lending | -1-
ORDER OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
John W. Villines (CA SBN 193672)
JV LAW
726 14th Street, Suite E Modesto, CA 95354
Mailing Address:
P.O. Box 580049
Modesto, CA 95358-0002
Tel: (209) 524-9903
Fax: (209) 524-6655
E-Mail: [email protected]
Attorneys for Plaintiff
ZELDA BROWN
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO
ZELDA BROWN, an individual,
Plaintiff,
vs.
BARCLAYS CAPITAL REAL
ESTATE INC. dba HOMEQ
SERVICING, QUALITY LOAN
SERVICE CORPORATION, a
California Corporation; WELLS
FARGO BANK, N.A., as Trustee; and
DOES 1 through 100, inclusive
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: C09-05049
ORDER OF VOLUNTARY
DISMISSAL WITHOUT
PREJUDICE
[Fed. R. Civ. Proc. 41(a)]
Pursuant to Federal Rule of Civil Procedure 41(a), plaintiff ZELDA
BROWN has filed and served on all parties a Notice of Voluntarily Dismissal
Without Prejudice.
/ / /
/ / /
Case 3:09-cv-05049-MHP Document 13 Filed 01/06/10 Page 1 of 2
-2-
ORDER OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IT IS ORDERED that the above-captioned action, Zelda Brown v. Barclays
Capital Real Estate INC, dba HomEQ Servicing; Quality Loan Service
Corporation; & Wells Fargo Bank, N.A., as Trustee, Case Number C09-05049, be,
and hereby is, dismissed without prejudice.
Dated:_________, 2009 ____________________________________
United States District Court Judge
January 5, 2010
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Marilyn H. Patel
Case 3:09-cv-05049-MHP Document 13 Filed 01/06/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-arwd-6_23-cv-06104/USCOURTS-arwd-6_23-cv-06104-0/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MARCEESE WATKINS PLAINTIFF
v. Case No. 6:23-cv-6104
SGT. DELANEY (Sergeant ID# 47503,
ORCU, ADC) DEFENDANT
ORDER
Before the Court is a Report and Recommendation (“R&R”) issued by the Honorable
Christy D. Comstock, United States Magistrate Judge for the Western District of Arkansas. ECF
No. 30. Judge Comstock recommends that Plaintiff’s Second Amended Complaint (ECF No. 14)
be dismissed without prejudice for failing to prosecute this matter in violation of Federal Rule of
Civil Procedure 41(b) and for failing to obey Orders of the Court in violation of Local Rule
5.5(c)(2). Plaintiff has not objected to the R&R, and the time to do so has passed. See 28 U.S.C.
§ 636(b)(1).
Upon review, finding that there is no clear error on the face of the record and that Judge
Comstock’s reasoning is sound, the Court adopts the R&R (ECF No. 30) in toto. Plaintiff’s Second
Amended Complaint (ECF No. 14) is hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 25th day of October, 2024.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
Case 6:23-cv-06104-SOH Document 31 Filed 10/25/24 Page 1 of 1 PageID #:
<pageID> |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_06-cv-00233/USCOURTS-casd-3_06-cv-00233-1/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 1
Scott Kernan, Warden, was originally named as one of the respondents. However, he was
terminated on October 2, 2006.
1 06cv233
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ANTHONY PENTON,
Petitioner,
v.
SCOTT KERNAN, Warden,
Respondent.
CASE NO. 06cv233 WQH (PCL)
REPORT &
RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE RE DENIAL OF
PETITION FOR WRIT OF
HABEAS CORPUS
I. INTRODUCTION
On January 31, 2006, Anthony Penton (“Petitioner”), a state prisoner proceeding pro se, filed a
Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) A. Malfi1
, Warden,
(“Respondent”) moved to dismiss the petition for failure to exhaust state court remedies on four of
Petitioner’s claims, (Doc. No. 9), and this Court issued a Report and Recommendation finding
Petitioner’s twelfth and thirteenth claims unexhausted. (Doc. No. 18.) On October 6, 2006, Petitioner
filed a First Amended Petition (“Petition”) presenting only exhausted claims (Doc. No. 21.) On March
28, 2007, Respondents filed an Answer to the Petition along with a Memorandum of Points and
Authorities in support thereof, (Doc. No. 28 at Part 1, 3), and lodged portions of the state court record
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 1 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
This Report and Recommendation is submitted to United States District Judge William Q.
Hayes, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court
for the Southern District of California.
3
The employee’s two daughters were six and eight years old when the Symbolic robbery took
place. (Lodgment 5 at 5.)
2 06cv233
(“Lodgment”). (Id. at Part 4.) Petitioner lodged portions of the state court record on May 4, 2007.
(Doc. No. 29.) Petitioner also filed a Traverse (“Trav.”). (Doc. No. 35.) After reviewing the Petition,
Respondent’s Answer, and Petitioner’s Traverse, this Court recommends2
that Petitioner be DENIED
habeas corpus relief.
II. FACTUAL BACKGROUND & STATE PROCEEDINGS
A. The Attempted Robbery and the Car Chase
On June 26, 1999, two black males attempted to rob Symbolic Motors (“Symbolic”), (Lodgment
11 at 1), a car dealership in La Jolla, California. (Lodgment 2 at 43.) In the course of the perpetrators’
unsuccessful attempt to obtain the keys to Symbolic’s safe, they “attempted to rob, imprison, and
terrorize five Symbolic employees, one customer, and two daughters of one of the employees.”
(Lodgment 11 at 1.) The perpetrators held the various Symbolic employees at gunpoint and compelled
them to move to the back of Symbolic’s showroom, forcing them to lie face down on the floor.
(Lodgment 2 at 106-111.) They took a car key out of a victim’s pocket. (Lodgment 5 at 6.) A few
victims saw one of the perpetrators use a cellular phone several times while they attempted to rob
Symbolic. (Lodgment 2 at 325-28; 43-5.)
At one point during the attempted robbery, the perpetrators forced a Symbolic employee and his
daughters to an upstairs area. (Lodgment 2 at 159, 320-323.) Once there, one perpetrator removed two
handguns and duct tape from a plastic bag he was carrying, and taped the employee’s arms behind his
back. (Id.) He then remained upstairs with the children3 and the employee while the other Perpetrator
went back downstairs. (Id.) Approximately one-half hour later, one of the employees in the downstairs
area ran out of Symbolic, and the perpetrators fled the building shortly after. (Lodgment at 112-15, 157,
165.) Another employee within Symbolic then dialed 911 on her cell phone. (Lodgment at 165.) When
the police arrived at the scene, the perpetrators were not at Symbolic. However, a field evidence
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 2 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3 06cv233
technician recovered a plastic bag in the upstairs area of Symbolic. Edward Jones’ fingerprints were
found on the bag. (Lodgment 2 at 176, 184-85, 245-46.)
A few days later, on June 29, 1999, San Diego Police Officer Andrew Spears spotted Jones
speeding in a tan rental car at 10:00 a.m. (Doc. No. 21 at 164.) When Spears approached Jones in his
police car, Jones sped up and turned into an alley. Spears turned on his lights and sirens and pursued
Jones. (Lodgment 2 at 264-65.) While in pursuit, Spears saw Jones throw a gun out of the window of
his car. Spears eventually stopped Jones and placed him under arrest at 10:02 a.m. (Doc. No. 21 at
161.)
B. Police Investigation
After Jones’ arrest, the police conducted a search of the tan rental car and found a holster under
the driver seat that fit the gun Jones’ threw out the window. (Lodgment 2 at 266-67.) Police also
determined that Petitioner had rented the tan rental car three weeks prior to the robbery incident at
Symbolic. (Lodgment 2 at 259, 265.) About one and half hours after Jones’ arrest, Petitioner called the
police. He gave a statement claiming that the rental car was stolen and that he had called Enterprise
Rental Car prior to calling the police. (Doc. No. 21 at 162.) Petitioner stated that on June 29, 1999,
before Jones’ arrest, he and Jones drove to Fam-Mart. Petitioner claims that he left Jones with the car
and went in the store to buy a shirt. (Id.) When Petitioner returned from the store, the car was gone.
(Id.) Police also interviewed an employee of Fam-Mart. The employee stated that on June 29, 1999,
Fam-Mart opened at 10:00 a.m. and that he saw a black male enter sometime after the store opened. (Id.
at 163.) He also stated that the black male did not tell him his car was stolen until 10:45 a.m. (Id.) The
police officer who made the report stated in the report that he did not believe Petitioner’s story. (Id. at
162-63.)
In further investigating the robbery, police detective Johnny Keene obtained records of phone
calls made during the morning of the Symbolic incident. (Lodgment 2 at 282-294, 304.) He learned
that thirty-two phone calls had been made between two cell phone numbers in the La Jolla area before,
during, and after the robbery. (Id.) The two phone numbers belonged to two people, Crini Ornelas and
Tim Walker. However, while investigating the social security and driver’s license numbers given to the
cell phone company by these two individuals, Keene discovered that the numbers did not match the
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 3 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4 06cv233
name Tim Walker, and suspected that the name was an alias. (Id.) Keene contacted Crini Ornela. She
stated that she had never subscribed to a cell phone. He reviewed other phone numbers which the cell
phone numbers called, and determined that the Crini Ornelas cell phone had called two of Petitioner’s
cell phones. Keene determined that Tim Walker’s cell phone number had called Petitioner’s home
phone numbers in Victorville and Phoenix. (Id. at 282-294, 308-09.)
Keene executed a search warrant at Petitioner’s home and found a tablecloth with Petitioner’s
nickname and the alias’ cell phone number written on it. Police found a box of .45-caliber ammunition
and a key chain with the logo for Enterprise Rental Car, which listed the make, model, and license plate
number of the tan rental car Jones was driving when he was arrested. (Lodgment 2 at 303-06.) They
also found a California Identification Card that had Petitioner’s picture, but listed the name “Tony
Lamont Walker.” (Id. at 310.)
Two victims of the Symbolic robbery were able to identify Petitioner and Jones as Perpetrators in
photographic lineups and live lineups. (Lodgment 2 at 60-72, 335-43.) However, three other victims
were unable to identify either Jones or Petitioner in lineups. (Lodgment 2 at 138-41, 115-18, 165.)
The police also learned that Petitioner was possibly staying at the address 4168 Lochlomond, in
the Kearny Mesa area of San Diego during August of 1999. (Lodgment 1 at 426.) They maintained
surveillance of the area until they saw a black male, who looked like Petitioner, get into a car and drive
off. The police confirmed the person’s identity with a neighbor and arrested the person. However, once
the police detained him, they discovered that the black male was not Petitioner but a man named Thess
Good. (Lodgment 1 at 427.) Good was an ex-convict with a history of arrests for burglary, felony
assault, attempted murder, auto theft, and possession of firearms. (Id.) After questioning Good, the
police found out that Good was a friend of Petitioner. Good eventually agreed to help the police find
Petitioner. (Id.) Good called Petitioner, who had left the city, and asked him to come to San Diego.
(Id.) Petitioner refused to return. Nonetheless, the police were able to get two of Petitioner’s phone
numbers through Good. (Id.)
C. Court Proceedings
On November 1, 2000, Petitioner was charged in an amended information, in case number SCD
147553, with one count of Robbery and five counts of Attempted Robbery in violation of California
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 4 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5 06cv233
Penal Code (“Penal Code”) section 211, and two counts of False Imprisonment by Violence, Menace,
Fraud, Deceit in violation of Penal Code section 236 and 237(a). (Lodgment 1 at 24-28.) The amended
information also alleged that Petitioner personally used a fire arm in violation of section 12022.5(a)(1)
during the commission or attempted commission of all of the above crimes. (Id.) In addition, the
amended information alleged that Petitioner was convicted of two prison priors pursuant to Penal Code
sections 667.5(b) and 668, one of which is a serious felony and strike prior under California’s Three
Strikes law pursuant to Penal Code sections 667.5(b), 668, 1192.7(c), and 1170.12. (Lodgment 1 at 28-
29.) Petitioner waived formal reading of the information, pleaded not guilty, and denied all allegations
and priors. (Lodgment 1 at 248.)
The trial began on November 1, 2000. (Lodgment 1 at 248.) Prior to the presentation of
evidence, the attorney for the state moved to exclude from the trial Petitioner’s statement regarding his
call to report the tan rental car stolen. (Lodgment 2 at 6.) Petitioner acknowledged that the statement
was hearsay, but argued that it was potentially exculpatory evidence and should be admitted.
(Lodgment 5 at 9.) The court ruled that the statement amounted to inadmissible hearsay, and reasoned
Petitioner could take the stand and testify about the statement if he wished. (Lodgment 2 at 8.) The
court ruled to exclude the statements from trial. (Id.)
Several victims of the Symbolic incident testified on behalf of the prosecution. The two victims
who identified Petitioner and Jones as the perpetrators in lineups also identified them at trial.
(Lodgment 2 at 60-72, 335-43.) One of the victims, who was unable to identify Petitioner at a
photographic lineup, was able to identify him at trial. (Lodgment 2 at 138-41.) The two other victims
who testified could not identify Petitioner at trial. (Lodgment 2 at 115-18, 165.)
The victims who testified also described the perpetrators. One of the victims who identified
Petitioner as the taller perpetrator, described Petitioner as a tall, thin, and nicely dressed black man.
(Lodgment 2 at 44.) She recalled Petitioner to have been about 6 feet, 2 inches, 200 pounds when the
robbery took place. (Id. at 53.) There were minor discrepancies in other victims’ descriptions of the
taller perpetrator’s height and weight. Some victims guessed that he was around 6 feet tall when they
saw him during the Symbolic robbery, while another guessed he was 6 feet, 4 inches tall. (Id. at 107,
134, 336.) One victim testified that he was “not skinny, not heavy”, (Id. at 156), while another
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 5 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Petitioner was convicted of Robbery, CAL. PENAL. CODE § 211, in 1988. (Lodgment 1 at 4-5.)
The 1988 Robbery conviction is considered a serious felony prior and a strike prior under California’s
Three Strikes law. (Lodgment 1 at 5.) Petitioner was also convicted of another prison prior in 1986, but
that prior was neither a serious felony or a strike prior under California’s Three Strikes law. (Lodgment
1 at 5.)
5
California’s Determinate Sentencing Law is described in more detail in section IV (G) (1) of
this Report and Recommendation.
6 06cv233
described him as tall and skinny. (Id. At 336.) Some of the victims testified that they recalled seeing
the taller perpetrator use a cell phone several times during the robbery. (Id. at 43-45; 325-28.)
Detective Johnny Keene also testified on behalf of the prosecution, divulging information he had
discovered concerning the Symbolic incident, Petitioner, and Edward Jones to the court and jury.
(Lodgment 2 at 280-318.)
Scott Fraser, Ph.D., a neurophysiologist, testified on behalf of Petitioner and stated that research
indicated the type of identification made in this case could be inaccurate. However, Fraser could not say
whether the eyewitnesses in this case accurately identified Petitioner and Jones. (Lodgment 2 at 384-
85.)
On November 8, 2000, the jury found Petitioner guilty on all counts, (Lodgment 1 at 105-112),
and the trial court found true that Petitioner had been convicted of the priors alleged in the information4
.
(Lodgment 1 at 257.) After considering prior convictions pursuant to California’s Three Strikes Law
and aggravating factors in the commission of the crime pursuant to California’s Determinate Sentencing
Law5
, the judge sentenced Petitioner to 54 years and 8 months in state prison. (Lodgment 1 at 440.)
Jones filed a motion for a new trial. (Lodgment 5 at 9.) Jones’ wife’s sister, Janice Thomas,
testified on his behalf at the motion hearing. (Lodgment 2 at 630-41.) She testified that she dated
Petitioner at the time of the car chase and the Symbolic incident. (Id.) She further stated she informed
Petitioner of Jones’ arrest on June 29, 1999, in the afternoon, and Petitioner thereafter told her that he
was going to report the car stolen. The court denied Jones’ motion. (Id.)
Like Jones, Petitioner also filed a motion for a new trial. (Lodgment 1 at 388.) Petitioner claimed
that the prosecution did not timely disclose portions of a police report, which contained a statement by
Petitioner claiming that he had called to report his rental car stolen. (Lodgment 5 at 11.) Petitioner’s
motion was argued and heard before the court in a proceeding separate from Jones’. (Lodgment 1 at
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 6 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7 06cv233
461.) The trial court, after considering the testimony given by Janice Thomas at Jones’ hearing, denied
Petitioner’s motion for a new trial. (Id.) The trial court concluded that Thomas’s testimony effectively
showed Petitioner’s theory, that Jones stole the car from him, made no sense. (Lodgment 2 at 711-14.)
While the trial court did not believe Thomas was credible, it concluded that Petitioner had a chance to
develop his theory simply by testifying. Moreover, the court found that Jones could have done the same
thing by testifying and calling Thomas to testify during trial. (Id.) The jury then could have determined
Thomas’s credibility. Because the opportunity for Petitioner to develop his theory was available and he
simply chose not to testify, the trial court denied Petitioner’s motion for new trial. (Id.)
Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One.
(Lodgment 3.) On October 2, 2002, the Court of Appeal reduced Petitioner’s sentence to 52 years and 8
months in state prison, but otherwise affirmed the judgment. (Lodgment 5.) Petitioner filed a Petition
for Review in the California Supreme Court, (Lodgment 6), but the petition was denied on January 15,
2003. (Lodgment 7.)
On April 11, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in the San Diego County
Superior Court. (Lodgment 8) On May 5, 2004, the court denied the Petition. (Lodgment 9).
Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeals, Fourth
Appellate District, Division One, on August 3, 2004, but that court denied the Petition in a reasoned
opinion on September 14, 2004. (Lodgment 10,11.) Finally, Petitioner filed a Petition for a Writ of
Habeas Corpus with the California Supreme Court on November 8, 2004, (Lodgment 12), and filed two
Supplemental Petitions for the court to consider. (Lodgment 13,14.) Petitioner also filed a motion with
the Superior Court in California, requesting trial transcripts for his 1988 prior conviction. However, the
Superior Court denied his motion. (Doc. No. 21 at 79-88.) The California Supreme Court denied all
Petitions without out comment or citation on January 18, 2006. (Lodgment 15.)
III. STANDARD OF REVIEW
Under United States law, a federal district court “shall entertain an application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.A. §
2254(a).
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 7 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8 06cv233
The application for such a writ should be granted only in two circumstances. First, the writ
should be granted if the adjudication of the claims in state court “resulted in a decision contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C.A. § 2254(d)(1). A state decision is contrary to Supreme Court
authority only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case differently than the Supreme Court on a set of
materially indistinguishable facts. Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2001). A state
court decision unreasonably applies Supreme Court authority, if it correctly identifies the governing
legal principle from Supreme Court precedents but “unreasonably applies that principle to the facts of
the prisoner’s case.” Id. at 413. However, an unreasonable application of the law is different from an
incorrect application of the law.
Habeas corpus relief may not be granted simply because the state court applied “federal law
erroneously or incorrectly.” Taylor, 529 U.S. at 411. A petitioner must also show that the application
was a result of an unreasonable analysis of federal law. Id., Woodford v. Visciotti, 537 U.S. 19 (2002).
While a state court’s conflict with “Ninth Circuit precedent on a federal Constitutional issue” is
insufficient to warrant a grant of the writ, they may be “persuasive authority for purposes of determining
whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law.”
Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000) (citing Moore v. Calderone, 108 F.3d 261,
264 (9th Cir. 1997)). Even when a state court has either ruled contrary to, or unreasonably applied,
federal law, a petitioner still must show that the court’s decision had “substantial and injurious effect or
influence in determining the jury’s verdict” so as to cause actual prejudice. Brecht v. Abraham son, 507
U.S. 619, 637 (1993.) In other words, but for the state’s erroneous conclusions or application of the law,
the petitioner would have received a more favorable outcome.
Second, the writ should be granted if the adjudication of the claims in state court “resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding.” 28 U.S.C.A. § 2254(d)(2). However, federal habeas corpus cannot be
utilized to try state issues de novo, Milton v. Wainwright, 407 U.S. 371, 377 (1972); factual
determinations by the state court are presumed reasonable “absent clear and convincing evidence to the
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 8 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9 06cv233
contrary.” Miller-El v. Cockrell, 537 U.S. 322, 123 (2003); see Sumner v. Mata, 449 U.S. 539, 545-47
(1981) (stating that deference is owed to factual findings of both state trial and appellate courts). Thus,
a petitioner’s conclusory allegations unsupported by facts from the record are insufficient to warrant
habeas corpus relief. Boeheme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir. 1970.) Even if the state
court’s factual determination is flawed, an application of a writ of habeas corpus should not be granted
unless an error “resulted in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428
(1962).
When reviewing the merits of a petitioner’s habeas corpus claim, a federal court should look to
the last reasoned state court opinion as the basis of the state court’s decision. Robinson v. Ignacio, 360
F3d 1044, 1045 (9th Cir. 2004). If the state court decides a claim on the merits but does not provide a
reasoned opinion for their decision, the federal court should independently review the record to
determine the merits of that claim. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v.
Lewis, 223 F.3d 976, 981-82 (9th Cir. 2002). However, even when independently reviewing a claim,
the federal court must “still defer to the state court's ultimate decision.” Pirtle v. Morgan, 313 F.3d
1160, 1167 (9th Cir. 2002)
IV. DUE PROCESS & RIGHT TO CONFRONTATION
Petitioner alleges that his federal constitutional right to confrontation was violated when the
court considered Janice Thomas’s testimony, given in a separate hearing, in denying his motion for a
new trial. (Doc. No. 21 at 13-21; Trav. at 1-13.)
Petitioner further alleges that his constitutional right to due process was violated when the court
denied his motion for a new trial. He contends the prosecution did not timely disclose to defense
counsel a portion of a police report, which contained a statement made by Petitioner claiming that the
rental car Jones was driving at the time of his arrest was stolen. (Id.) Petitioner claims that the report is
exculpatory evidence, and that if Petitioner had the report earlier, he could have better prepared a
defense. (Id.) Petitioner maintains that because failure to disclose the report was a due process
violation during trial proceedings, the trial court should have granted the his motion for a new trial. He
claims the denial of his new trial motion was therefore a violation of due process.
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 9 of 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10 06cv233
The California Supreme Court rejected both claims without comment. (Lodgment 15.)
However, the state appellate court rejected both claims in a reasoned opinion on direct appeal.
(Lodgment 5.) This Court considers the reasoning developed in the state appellate court’s opinion,
Robinson, 360 F3d at 1045, and finds that the state court’s rejection of these claims was not an
unreasonable applications of, or contrary to, clearly established federal law as determined by the
Supreme Court.
A. Confrontation
The Confrontation Clause of the Sixth Amendment provides that the accused has the right “to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. The U.S. Supreme Court
(“Supreme Court”) explained that the primary object of the confrontation clause was to “prevent
depositions or ex parte affidavits being used against the prisoner in lieu of a personal examination and
cross-examination of the witness” at trial. Mattox v. U.S., 156 U.S. 237, 242 (1895). Crossexamination gives the accused an opportunity, not only to “test the recollection and [sift] the conscience
of the witness,” but also to compel “him to stand face to face with the jury in order that they may look at
him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether
he is worthy of belief.” Id. at 242-43. The Confrontation Clause, therefore, is designed to prevent
improper restrictions on the types of questions that defense counsel may ask during cross-examination,
Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987), and to use physical confrontation at trial to enhance
“the accuracy of fact finding by reducing the risk that a witness will wrongfully implicate an innocent
person.” Maryland v. Craig, 497 U.S. 836, 846 (1990).
The Supreme Court held the right to be applicable to the states through the Fourteenth
Amendment because the right to confrontation is “an essential and fundamental requirement for the kind
of fair trial which is this country’s constitutional goal.” Pointer v. State of Texas, 380 U.S. 400, 405
(1965). However, “the right to confrontation is a trial right,” and thus does not apply to other court
proceedings that are not part of the jury trial. See Ritchie, 480 U.S. at 52 (emphasis in original) (holding
that a defendant does not have right to confrontation in a pretrial hearing).
In this case, Petitioner motioned for a new trial, claiming that the trial court errored when it
excluded portions of a police report that contained Petitioner’s statement about the tan rental car. Janice
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 10 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Page vi of Lodgement 2 is a list of witnesses who testified at trial. Page x has a list of Jones’
witnesses who testified at his new trial motion hearing. Janice Thomas’ name is not on page vi, but is
on page x. She testified at the new trial motion hearing, but did not testify at trial.
11 06cv233
Thomas testified at Jones’ hearing for his new trial motion. She claimed she informed Petitioner that
Jones was arrested and, in response, Petitioner told her that he was going to call the police to report the
tan rental car stolen. (Lodgment 5 at 9.) The trial court considered her testimony and denied
Petitioner’s motion for a new trial. (Lodgment 2 at 712.) Petitioner claims that he was deprived a
chance to cross examine Thomas in his post-conviction, new trial motion hearing. (Doc. No. 21 at 13.)
Petitioner maintains this violated his right to confrontation. (Id.) The appellate court rejected his claim,
reasoning that Jones’ wife’s testimony was only a portion of the evidence considered by the court in
denying Petitioner’s motion for a new trial. (Lodgment 5 at 16.) The state appellate court explained,
“[o]f primary importance was the fact that [Petitioner]’s report to police of the vehicle being stolen was
within his own knowledge and he could have testified to these facts at trial. His election not to testify,
however, rendered any claim of prejudice in the People’s failure to turn over the actual report of no
moment.” (Id.)
In order to be entitled to habeas corpus relief, a petitioner must show that the state court’s
decision was an unreasonable application of, or contrary to, federal law, 28 U.S.C.A. § 2254(d)(1), and
that the state court’s conclusion prejudiced the petitioner. Brecht, 507 U.S. at 637 (1993). The Court
finds that Petitioner has failed to demonstrate either. First, Petitioner does not have a right to
confrontation at a post-conviction new trial motion hearing because the right is a trial right. Ritchie, 480
U.S. at 52. He was not deprived of the opportunity to cross examine Janice Thomas at trial because she
was not a witness. (Cf. Lodgment 2 at vi; Cf. Lodgment 2 at x.6
) The jury did not consider Jones’
wife’s testimony, and their verdict was not influenced by her potentially inculpating statements. (Cf.
Id.) Therefore, her testimony did not influence the jury to “wrongfully implicate an innocent person.”
Craig, 497 U.S. at 846 (1990).
Second, assuming arguendo that Petitioner had a right to confrontation at his new trial motion
hearing, Petitioner still is not entitled to relief because the failure to cross-examine Thomas did not
prejudice him. Brecht, 507 U.S. at 637 (1993). While the trial court considered Janice Thomas’
“incriminating” statements, it found her untrustworthy. (Lodgment 2 at 711-14.) Therefore, the trial
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 11 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
In Petitioner’s statement, he claims that he and Jones drove to Fam-Mart the morning of the
arrest. Petitioner maintains he left the car with Jones and went in the store to get a shirt. When he
returned to the car, he discovered that Jones had driven off with it. Petitioner claims he called the police
to report his car missing shortly after discovering that his car was missing. (Doc. No. 21 at 163.)
12 06cv233
court did not deny Petitioner’s motion because Thomas inculpated Petitioner. Rather, the trial court
denied Petitioner’s motion because he had a chance to develop his theory, even after the trial court
excluded the police report of Jones’ arrest from the trial. As the state appellate court explained, “[o]f
primary importance was the fact that [Petitioner]’s report to police of the vehicle being stolen was
within his own knowledge and he could have testified to these facts at trial.” (Lodgment 5 at 16.)
Regardless of Thomas’s disbelieved testimony, the trial court would have come to the conclusion that
Petitioner had the opportunity to testify about the events described in the police report, (Lodgment 5 at
16), and denied his motion. Because the failure to confront Janice Thomas did not result in a less
favorable outcome for Petitioner, he was not prejudiced, and is not entitled to habeas corpus relief.
Brecht, 507 U.S. at 637.
B. Due Process
In a criminal case, “suppression by the prosecution of evidence favorable to an accused...violates
due process where the evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Therefore, the prosecution
has a duty to disclose evidence that is materially favorable to the accused, even if the accused does not
request it. Strickler v. Greene, 527 U.S. 263, 280 (1999). Favorable evidence encompasses both
impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667 (1985). Evidence
favorable to the defendant is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the results of the proceeding would have been different.” Id. at 682.
Here, Petitioner claims the prosecution was late in disclosing portions of the police report of
Jones’ arrest. (Doc. No. 21 at 13-21.) The portion in question contained Petitioner’s statement
describing the events immediately preceding Jones’ arrest7
. (Doc. No. 21, 163.) While the disclosure
was late, the trial court did not believe the tardiness amounted to a due process violation. The trial court
thus rejected Petitioner’s motion for a new trial. (Lodgment 2 at 708-14; Lodgment 5 at 11-12.) The
appellate court applied the Brady standard and affirmed the trial court’s judgment, reasoning: 1)
Petitioner’s counsel acknowledged that the police report was inadmissible hearsay; 2) Petitioner was
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 12 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13 06cv233
obviously aware he made a statement and could have testified to it regardless of whether or not the
prosecutor turned the report over to the defense; and 3) the information was not exculpatory for
Petitioner. (Lodgment 5 at 14-16.) The court concluded that there was no reasonable probability the
outcome of the proceedings would have been different had the police report been turned over
punctually. (Id.)
The Court finds that the state appellate court reasonably applied federal law as determined by the
Supreme Court. 28 U.S.C.A. § 2254 (d)(1). First, defense counsel acknowledged that Petitioner’s
statement in the report was inadmissible hearsay. (Lodgment 5 at 15.) As such, even if that portion of
the report was timely disclosed, it would not have been admissible. (Id.) Second, the information in the
police report was available to Petitioner prior to its disclosure. (Id.) Petitioner knew what he had said to
the police when he called to report the tan rental car missing. He, therefore, could have chosen to take
the stand and tell the jury what happened between him and Jones prior to the car being stolen. Despite
Petitioner’s contention that his statement was exculpatory, he chose not to take the stand. (Id.)
Third, the California Court of Appeals reasonably concluded that the belatedly disclosed portion
of the police report was not exculpatory. While the police report does include a statement that weakens
the link between Jones and Petitioner, the statement was made by Petitioner, and upon scrutiny, appears
to be untrustworthy. Petitioner’s statement regarding the rental car is inconsistent with a statement
given by the Fam-Mart employee within the same police report. (Doc. No. 21 at 163.). Petitioner stated
that on June 29, 1999, he drove with Jones to Fam-Mart where his car was stolen; he had left Jones in
the car and entered the store to buy a shirt. (Lodgment 1 at 404.) The Fam-Mart employee stated that a
black male did not enter the store until sometime after the store opened at 10:00 a.m. Furthermore, the
black male did not tell the employee that his car was missing until 10:45 a.m., approximately 45 minutes
after Jones had been arrested. (Id.) Given that Spears spotted Jones at 10:00 a.m. and pursued him for a
while before arresting him at 10:02 a.m., (Lodgment 1 at 264-65; Doc. No. 21 at 162-64.), Jones must
have driven off from Fam-Mart sometime before 10:00 a.m., before Petitioner entered the store. Yet
Petitioner insists that Jones drove off after he had entered Fam-Mart.
The timing of Petitioner’s call to the police was also peculiar. The officer who wrote the police
report stated that Petitioner called to report the car missing at about 11:30 a.m., approximately one and
half hour after Jones was arrested. (Lodgment 1 at 264-65.) It was also approximately 45 minutes after
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 13 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
In a search of Petitioner’s house the police recovered ammunition, a key chain with the tan
rental car information on it, a table cloth with a phone number written on it, and an apparently fake
California Identification card with Petitioner’s photograph, but the name “Walker” listed. This evidence
links Petitioner to Jones and links Petitioner to the cell phone numbers called thirty-two times in the La
Jolla area before, during, and after the robbery. (Lodgment 2 at 303-10.)
9
Petitioner was convicted of his strike prior in 1988. (Lodgment 1 at 4-5.) California’s Three
Strikes law became effective on March 7, 1994. People v. Cargill, 38 Cal. App. 4th 1551, 1554-55, 45
Cal. Rptr. 2d 480 (Cal. Ct. App. 1995).
14 06cv233
he had told the Fam-Mart employee that his car was missing. (Lodgment 1 at 404.) In observing the
timing of the call and the inconsistencies between the stories provided by the witnesses, it is apparent
Petitioner contacted the police in an attempt to distance himself from Jones and the vehicle. Therefore,
the court’s conclusion, that Petitioner only called the police after learning of Jones was arrested, was
reasonable. (Lodgment 5 at 9.) Petitioner statement was more inculpatory than exculpatory,
diminishing his credibility.
Regardless of the truth of Petitioner’s assertions about the morning of June 29, 1999, the
Symbolic incident occurred three days earlier. The report does not contradict that some of the Symbolic
incident victims identified Petitioner as one of the perpetrators during the robbery on June 26, 1999.
Nor does the report put in question other circumstantial evidence recovered during police’s search of
Petitioner’s house8
. Even assuming that Petitioner’s story is true, Petitioner is still connected to Jones,
who is connected to the crime scene. Therefore, the appellate court reasonably inferred that the
untimely disclosed information was not exculpatory evidence because Petitioner’s statement would not
have refuted other inculpating evidence presented at trial.
V. EX POST FACTO CLAUSE
Petitioner argues that he obtained his strike prior conviction before California’s Three Strikes
law was enacted9
and, therefore, enhancing his sentence because of his prior is a violation of the Ex Post
Facto Clause of the U.S. Constitution. (Doc. No. 21 at 23; Trav. at 20-23.) Petitioner presented this
claim to the Superior Court of California, and that court rejected it in a reasoned decision. (Lodgment 9
at 3.) The Superior Court held that “the use of a prior conviction which predates the three strikes law to
sentence a defendant under that law does not violate the ex post facto provisions of either the state or the
federal constitution.” (Lodgment 9 at 3.) Petitioner also presented this claim to the California Supreme
Court in a writ of habeas corpus. The state high court rejected the claim without comment. (Lodgment
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 14 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10Petitioner was convicted of Robbery, CAL. PENAL. CODE § 211, in 1988 before being convicted
of Robbery, CAL. PENAL. CODE § 211, again in the instant case. (Lodgment 1 at 4-5.)
15 06cv233
12 at 4B, 13-14; Lodgment 15.) Therefore, the Court looks through to, and considers, the Superior
Court’s decision. Robinson, 360 F.3d at 1045.
The U.S. Constitution prohibits states from passing any ex post facto laws. U.S. CONST. art. I, §
10, cl. 1. The U.S. Supreme Court defined an ex post facto law to be one that “retroactively...increase[s]
the punishment for criminal acts,” Collins v. Youngblood, 497 U.S. 37 (1990). However, the
application of a sentence enhancing law based on prior convictions is not “invalidly retroactive” simply
because one of the prior convictions took place before the enactment of the law. See Gryger v. Burke,
334 U.S. 728, 732 (1948). In Gryer, the Court explained that an enhanced sentence based on a prior
conviction should not be “viewed as...an additional penalty for the earlier crimes.” Id. Instead, it should
be viewed as a “stiffened penalty for the latest crime, which is considered to be an aggravated offense
because [it is] a repetitive one.” Id. More recently, the Ninth Circuit also held that “application of a
sentencing enhancement law due to a prior conviction does not violate the Ex Post Facto Clause” as
long as they are not retroactively applied to triggering offenses. Brown v. Mayle, 283 F.3d 1019 at 1040
(9th Cir. 2002), vacated on other grounds, Mayle v. Brown, 538 U.S. 901 (2003); United States v.
Sorenson, 914 F.2d 173, 174 (9th Cir. 1990).
Here, California’s Three Strikes law enhances sentences of criminals who are convicted of a
crime after its enactment. CAL. PENAL. CODE. §§ 667.5(b), 668, 1192(a). The Three Strikes law
enhances the sentences of such criminals based on their prior convictions. CAL. PENAL. CODE. §§
667.5(b), 668, 1192(a). As noted above, Supreme Court authority permits a law like California’s to
enhance the sentence of a criminal whose prior convictions occurred before its enactment. See Gryer,
344 U.S. at 732. Specifically, the Ninth Circuit held that application of California’s Three Strikes law
against a criminal whose prior conviction occurred before the law’s enactment was constitutional.
Brown, 283 F.3d at 1040 (9th Cir. 2002), vacated on other grounds, Mayle v. Brown, 538 U.S. 901
(2003). Petitioner’s sentence was enhanced by the Three Strikes law. (Lodgment 1 at 440.) The
Supreme Court would explain Petitioner’s sentence enhancement as a “stiffened penalty” for his latest
crime because it is an aggravated offense due to its repetitive nature10 rather than increased punishment
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 15 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16 06cv233
for his earlier conviction. See Gryer, 344 U.S. at 732 (1948). Therefore, the Three Strikes law is not an
ex post facto law as applied in Petitioner’s case.
VI. VAGUENESS
Petitioner further contends that California’s Three Strikes law is void for vagueness. Petitioner
claims the law does not “specifically list ‘ROBBERY PEN. C 211' and ‘HS 11350 (a)’ as a prior
conviction of a felony,” and therefore the qualifying priors are not clearly defined. (Doc. No. 21 at 27;
Trav. at 24-31.) Petitioner presented this claim only to the California Supreme Court. The California
Supreme Court reviewed this claim and rejected it without comment. (Lodgment 12 at 4B, 13-14;
Lodgment 15.) The Court independently reviews this claim and finds it meritless. Himes, 336 F.3d at
853; Delgado, 223 F.3d at 981-82.
The Constitution is designed to “maximize individual freedoms within a frame work of ordered
liberty.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). A statute that limits such freedoms must be
“examined for substantive authority and content as well as for definiteness and certainty of expression.”
Id. Thus, the “void-for-vagueness doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.” Id. For vagueness challenges to
statutes which do not involve First Amendment freedoms, a court should examine the statute “in the
light of the facts of the case at hand.” United States v. Powell, 423 U.S. 87, 92 (1975).
A statute is sufficiently definite only if the legislature “establishes minimal guidelines to govern
[its] enforcement.” Smith v. Goguen, 415 U.S. 566, 574 (1974). Accordingly, in Kolender, the Court
held that a California statute “requiring persons who loiter or wander on the streets to provide a
‘credible and reliable’ identification and to account for their presence when requested by a police
officer” was unconstitutionally vague. 461 U.S. at 574. Justice O’Connor explained, “[the statue]
contains no standard for determining what a suspect has to do in order to satisfy the requirement to
provide a ‘credible and reliable’ identification. As such, the statute vests virtually complete discretion
in the hands of the police to determine whether he has satisfied the statute.” Id. The Supreme Court’s
main concern was that this lack of clarity had the potential to lead to the arbitrary suppression of the
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 16 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11The Superior Court of California did provide a reasoned analysis regarding Petitioner’s issue
with the disclosure of the police report of Edward Jones arrest, which was under the heading
“DISCOVERY AND SUFFICIENCY OF EVIDENCE CLAIMS.” (Lodgment 9 at 3.) However, the
Superior Court did not address whether the evidence presented at trial was sufficient to convict
17 06cv233
freedoms of speech and movement because the law seemingly allowed a person to walk freely on a
public street “only at the whim of any police officer.” See id.
The Court must now examine whether California’s Three Strikes law, as it is phrased, uses
minimal guidelines in determining when sentences should be enhanced. Smith, 415 U.S. at 574. For the
purpose of sentence enhancement, the Three Strikes law defines a qualifying prior conviction as “any
offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in
subdivision (c) of Section 1192.7 as a serious felony.” CAL. PENAL. CODE. § 667 (d)(1). If a criminal’s
prior conviction is for a crime listed in subdivision (c) of either section 667.5 or 1192.7, then it may be
used to enhance the sentence for his latest offense. The state court may not arbitrarily decide whether a
prior is a serious or violent felony, it must impose sentence enhancements only if the prior is one of the
listed offenses. CAL. PENAL. CODE. § 667.5 (d)(1). Through reference, California’s Three Strikes law
sets minimal guidelines on which prior convictions may be used to enhance sentences.
As applied to Petitioner, California’s Three Strikes law is not unconstitutionally vague. Under
Section 1192.7, subdivision (c), robbery is listed as an serious felony offense. CAL PENAL. CODE. §
1192.7(c)(19). Under Section 667.5, subdivision (c), robbery is listed as a violent felony. CAL. PENAL.
CODE § 667.5 (c)(9). The trial court found that Petitioner had been convicted of robbery in 1988.
(Lodgment 1 at 28-29.) Because robbery is listed as both a violent felony and a serious felony, the court
imposed a sentence enhancement based on Petitioner’s 1988 prior conviction. The court did not
arbitrarily impose an enhanced sentence on Petitioner, but instead relied on clearly defined qualifying
priors. As such, the state court’s rejection of this claim was not inconsistent with the Supreme Court’s
void-for-vagueness doctrine.
VII. INSUFFICIENT EVIDENCE
Petitioner claims there was insufficient evidence presented at trial to show that he was one of the
perpetrators during the Symbolic robbery. (Doc. No. 21. at 28-31;Trav. at 32-43.) The state courts
rejected this claim without comment.11 (Lodgment 15.) As there is no state court opinion to review, the
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 17 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioner. No reasoned opinions regarding the insufficiency issue from the state appellate court was
lodged with this Court. The Supreme Court of California rejected this claim without comment.
(Lodgement 15.)
12Diglio’s name appears for the first time in Petitioner’s Petition for Writ of Habeas Corpus. No
mention of Diglio appears in the records of this case.
18 06cv233
Court independently reviews this claim and finds that it is without merit. Himes, 336 F.3d at 853
(holding that the court should “perform an ‘independent review of the record’ to ascertain whether the
state court’s decision was objectively reasonable.”); Delgado, 223 F.3d at 981-82.
Under Supreme Court authority, a habeas corpus petitioner has a valid claim for insufficient
evidence only if “it is found that upon the record evidence adduced at trial no rational trier of fact could
have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979).
When reviewing the record, the federal court should view “the evidence in the light most favorable to
the prosecution.” Id. at 319. Thus, a rational trier of fact can rely on “the testimony of one witness, if
solidly believed,” to find the defendant to be the perpetrator of the crime. United States v. Ginn, 87 F.3d
367, 369 (9th Cir. 1996).
In Petitioner’s case, two victims identified him as one of the perpetrators at photo lineups, live
lineups, and at trial. (Lodgment 2 at 60-72, 138-41, 335-43.) Two telephone numbers linked to
Petitioner had made thirty-two phone calls from and to the La Jolla area the morning of the Symbolic
robbery. (Lodgment 2 at 282-94, 304.) Jones’ fingerprints were found at Symbolic, (Lodgment 2 at
176, 184-85, 245-46), and Petitioner had rented the car that Jones was driving when he was arrested.
(Lodgment 2 at 259, 265.) Not only was there one “solidly believed” witness who testified against
Petitioner, there were additional witnesses and a plethora of other inculpating circumstantial evidence
presented at trial. Ginn, 87 F.3d at 369. Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact, could have easily found Petitioner to be one of the perpetrators of the
Symbolic robbery.
VIII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner claims that his trial counsel was ineffective. He contends that his trial counsel failed
to spend time to: 1) interview Thess Good and William Diglio;12 2) investigate a meeting that Symbolic
victims had following the robbery; 3) bring to the jury’s attention the transcript of one of the victim’s
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 18 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19 06cv233
911 calls; and 4) investigate what people at neighboring businesses witnessed prior to the robbery.
(Doc. No. 21 at 33-35; Trav. at 44-56.) Had his trial counsel done the above, Petitioner maintains there
would have been substantial third party culpability and misidentification evidence that could have
changed the outcome of the proceedings. The state appellate court and the California Supreme Court
did not address these claims. (Lodgment 12 at 24-26; Lodgment 15.) However, the Superior Court of
California rejected these claims in a reasoned decision. (Lodgment 9 at 3-5.) The Superior Court of
California explained that Petitioner did not show that his counsel’s conduct was: 1) objectively
unreasonable; and 2) prejudicial to Petitioner. (Lodgment 9 at 5.) The Court looks through to the
Superior Court’s opinion and finds that the state court’s denial of Petitioner’s ineffective counsel claim
was not an unreasonable application of, or contrary to, federal law as determined by the U.S. Supreme
Court. Robinson, 360 F3d at 1045.
Under federal law, a petitioner is entitled to habeas corpus relief for ineffective assistance of
counsel only if he can show that his “counsel’s representation fell below an objective standard of
reasonableness,” and, as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). A “court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. If a petitioner is challenging his counsel’s
reasonableness in deciding not to investigate certain aspects of his case, then the court should assess the
counsel’s decision by “applying a heavy measure of deference to counsel’s judgments.” Id. at 691.
Thus, a petitioner’s conclusory allegations of ineffective assistance of counsel that are unsupported by
the record are insufficient to warrant relief on federal habeas corpus. James v. Borg, 24 F.3d 20, 26 (9th
Cir. 1994). Furthermore, the failure to make a futile motion is not ineffective assistance, and the failure
to investigate inadmissible evidence is not considered deficient representation. See id. 27. A petitioner
is prejudiced if his “counsel’s errors were so serious as to deprive the defendant of a fair trial.”
Strickland, 466 U.S. at 687-88. In other words, but for the counsel’s errors, the petitioner would have
received a more favorable result. Id.
///
///
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 19 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20 06cv233
A. Failure to Investigate Potential Third-Party Culpability
Here, Petitioner claims that if his counsel had interviewed Thess Good, then he would have
discovered more third-party culpability evidence. Petitioner insists that his counsel would have learned
that the police offered Good benefits in exchange for information about Petitioner’s whereabouts. (Doc.
No. 21 at 33.) Armed with this information, Petitioner argues that his counsel could have put Good on
the witness stand before the jury and presented Good’s past criminal history, demonstrated Good’s
physical resemblance to Petitioner, and presumably, allowed them to conclude that Good had framed the
Symbolic robbery on Petitioner. (Id.)
In order to determine whether defense counsel’s failure to investigate Petitioner’s allegations
about Good amounted to ineffective counsel, the Court must measure the likelihood that evidence
obtained from Good would have been admissible in California trial court. See James, 24 F.3d at 27.
Under California law, “there must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime” in order for that third-party culpability evidence to be admitted.
People v. Avila, 38 Cal. 4th 491, 578 (2006).
The record supports three allegations about Good: 1) he looks like Petitioner, 2) he knows
Petitioner, and 3) he has a criminal history. (Lodgment 1 at 426-27.) But, nothing from the record
shows that Good was linked to Symbolic. There is no evidence connecting Good to Jones and no
witnesses identifying Good as one of the perpetrators. Alone, Good’s physical features, relationship to
Petitioner, and criminal history are insufficient to establish a link between him and Symbolic.
Therefore, information and testimony provided by Good would have been inadmissible as third-party
culprit evidence. Avila, 38 Cal. 4th at 578. Furthermore, if the jury had been informed of Good’s past
criminal history and his association to Petitioner, it would have reflected poorly on Petitioner’s moral
character. The jury would have wondered why Petitioner kept in contact with an ex-felon, and may
have developed suspicions about the type of conduct in which Petitioner engages. Thus, the defense
counsel’s decision to not investigate inadmissible, or otherwise inculpating, evidence was not
unreasonable.
///
///
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 20 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21 06cv233
Petitioner also claims that his trial counsel should have investigated and interviewed William
Diglio. (Doc. No. 21 at 33.) He claims that trial counsel would have discovered that Diglio’s cell phone
had Symbolic’s phone number programed into it. (Id.) Petitioner explained that since Diglio is a
federal parole violator, the discovery of a link between him and Symbolic would have been favorable
evidence for Petitioner. (Id.) The Court finds that this claim is without merit. The record has no
information about William Diglio. The Court can not simply assume that Petitioner’s unsupported
allegations about William Diglio are true. As such, Petitioner’s conclusory allegation that Diglio is a
federal parole violator and is connected to Symbolic, is unsupported by the record and insufficient for an
ineffective assistance of counsel claim. James, 24 F.3d at 26.
Regardless of the admissibility or truth of Petitioner’s allegations about third party culprits, it is
unlikely that the testimony or information provided by Good and Diglio would have led the jury to reach
a more favorable outcome for Petitioner. At trial, three victims identified Petitioner, and there was
circumstantial evidence that linked Petitioner to Jones, who was linked to Symbolic by fingerprints.
(Lodgment 2 at 60-72, 335-43, 138-41, 176, 184-85, 245-46, 266-67.) Good and Diglio, on the other
hand, were not linked to Jones in anyway, other than by self-serving statements made by Petitioner.
(Lodgment 1 at 437.) Considering these facts, it does not appear that Good’s and Diglio’s testimonies
would have exonerated Petitioner. The failure to investigate Good and Diglio, therefore, was not
prejudicial to Petitioner.
For the foregoing reasons, Petitioner has not offered sufficient support to overcome the Court’s
strong presumption of reasonable professional assistance by Petitioner’s trial counsel. Strickland, 466
U.S. at 689. Further, Petitioner has not shown that the failure to investigate third party culpability
evidence was prejudicial to him. As such, this Court finds that the state court’s rejection of the claim
was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
B. Failure to Investigate Victims’ Meeting
Petitioner claims that the victims met and shared their recollections of the robbery after it took
place, and contends that trial counsel should have investigated this meeting. (Doc. No. 21 at 34.)
///
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 21 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22 06cv233
Petitioner also argues that had trial counsel done so, he would have learned that the victims’
recollections of the robbery at the meeting were inconsistent with their testimonies and statements to the
police. (Id.) Petitioner maintains that his counsel could have then presented his findings to the jury as
impeachment evidence against the victims that identified Petitioner. (Doc. No. 21 at 34.)
Despite his detailed accusations, Petitioner offers no evidence from the record that shows a
meeting occurred. Further, he offers no support for his assertion that the victims’ recollections of the
robbery differed between their alleged meeting and at trial. Thus, Petitioner’s allegation of a victims’
meeting is unsupported by the record and cannot overcome the strong presumption that trial counsel’s
assistance was reasonable. James, 24 F.3d at 26.
Even if trial counsel had investigated the incident and found impeachment evidence, there is no
reason to believe the information discovered and presented would have changed the jury’s impression of
the victims. At trial, there were already conflicting stories about the description of the perpetrators.
Some victims could identify the perpetrators, some could not. (Lodgment 2 at 60-72, 138-141, 335-43.)
Each victim’s description of the taller perpetrator, who was identified by two victims as Petitioner, was
slightly different. Some victims described the Petitioner as being six feet, four inches tall, some as
being six feet tall. Some victims thought Petitioner was skinny, some did not. (Id. at 107, 134, 156,
336.) Yet despite the differences in the victims’ testimonies, the jury still found Petitioner guilty. It
appears that the jury found the victims credible despite their already conflicting testimony. Petitioner
has failed to demonstrate that additional conflicting recollections would have made a difference. As
such, the lack of an investigation into the meeting did not prejudice Petitioner.
For the above reasons, the Court holds that the state court’s rejection of this claim was a
reasonable application of Supreme Court precedent.
C. Failure to bring 911 Call to Jury’s Attention
Petitioner maintains that trial counsel should have presented evidence of an emergency call made
by a victim that contained descriptions of the perpetrators which were inconsistent with the descriptions
that same victim later gave at trial. (Doc. No. 21 at 34.) For similar reasons to those discussed above,
the Court finds that this claim has no merit. Petitioner does not supported his allegation with evidence;
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 22 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 13Petitioner is referring to, among other things, his due process, Ex Post Facto Clause, void-for
vagueness, and insufficient evidence attacks on his conviction and sentence. None of these claims were
raised by appellate counsel on direct appeal to the California Court of Appeals. (Lodgment 3.)
23 06cv233
the Court is offered solely a naked claim. Moreover, Petitioner offers no support suggesting, that had
the purported call been presented to the jury, he would have received a more favorable outcome.
D. Failure to Investigate What Neighboring Business Witnessed
Petitioner alleges trial counsel should have presented evidence that a neighboring business had
noticed Symbolic was under surveillance by people in a vehicle prior to the robbery. (Doc. No. 21 at
34.) He claims that further investigations would have led to third party culpability evidence. However,
Petitioner is again short on evidence and specifics. Petitioner does not explain how the investigation
would have led to exculpatory evidence. He offers no rationale on how the evidence would have
changed the outcome of the proceedings. Petitioner offers no support for the contention that counsel
acted unreasonably. Furthermore, Petitioner has not shown how his counsel’s actions prejudiced him.
Unsupported contentions are not sufficient to overcome the Court’s strong presumption that counsel
acted reasonably. James, 24 F.3d at 26. As such, the state court’s denial of this claim was a reasonable
application of Supreme Court law.
IX. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Petitioner claims that his appellate counsel was ineffective because he failed to bring certain
claims raised in this Petition before the state court on direct appeal. (Doc. No. 21 at 37; Trav. at 57-61.)
Petitioner complains that his appellate counsel raised only his confrontation claim and sentencing issues
with the California Court of Appeals when his other unraised claims13 were clearly meritorious. (Id.)
This issue was presented only to the California Supreme Court. The state high court denied Petitioner
without comment. (Lodgment 12; Lodgment 15.) Therefore, the Court independently reviews this
contention. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 981-82.
When a petitioner asserts that he received ineffective appellate counsel because his attorney
failed to raise particular claims, the court should apply the Strickland standard. The two prongs of the
Strickland standard consist of determining whether the failure to raise claims was reasonable conduct,
and whether that failure prejudiced the petitioner. Smith v. Robbins, 528 U.S. 259, 288 (2000).
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 23 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24 06cv233
Appellate counsel “need not (and should not) raise every nonfrivolous claim, but rather, may select from
among them in order to maximize the likelihood of success on appeal.” Id. In determining the
reasonableness of appellate counsel, “only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.” Smith, 528 U.S. at
288, quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
Here, Petitioner complains his appellate counsel did not raise the following issues on direct
appeal: 1) trial court erred in denying Petitioner’s motion for new trial and that error violated
Petitioner’s due process rights; 2) California’s Three Strikes law, as applied to Petitioner’s sentence,
violates the Ex Post Facto Clause of the Constitution; 3) California’s Three Strikes law is void for
vagueness; 4) Petitioner was convicted with insufficient evidence. (Lodgment 3.) On the other hand,
Petitioner’s appellate counsel did raise a confrontation claim, as discussed in Section IV (A)(1) of this
Report and Recommendation. His appellate counsel also raised sentencing issues. (Doc. No. 21 at 37;
Trav. at 57-61.) The state appellate court rejected Petitioner’s confrontation claim, but found that the
sentencing issues raised by appellate counsel had merit and reduced Petitioner’s sentence to 52 years
and 8 months. (Lodgment 5.) Since the state appellate court ruled for Petitioner, the four unraised
claims were not “clearly stronger” than the sentencing issue. Smith, 528 U.S. at 288.
As to Petitioner’s confrontation claim versus the four claims not raised on appeal, the Court has
spent the preceding thirty pages discussing their merits. To summarize and avoid repetition, it will
suffice to say all claims concerned here are weak or spurious. The confrontation issue is the best of the
lot, but still deficient, unsupported by authority. Comparing the abominable against the merely bad, the
four unraised claims are not “clearly stronger” than the confrontation claim. Smith, 528 U.S. at 288.
Further, even had the unraised claims been argued by appellate counsel, success was implausible. See
discussions supra Sections IV - VIII. Petitioner, then, was not prejudiced. Accordingly, Petitioner has
not overcome the presumption of effective assistance of counsel. Id.
For reasons discussed above, the Court finds that the state court’s rejection of Petitioner’s
ineffective appellate counsel claim was a reasonable application of Supreme Court precedent.
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 24 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25 06cv233
X. DEPRIVATION OF JURY TRIAL IN SENTENCING
Petitioner contends that his rights to due process and a trial by jury were violated when the trial
court judge imposed upper terms for his sentence based on facts that were neither found by the jury nor
admitted by Petitioner. (Doc. No. 21 at 71; Trav. at 62-104.) Petitioner presented this claim only to the
California Supreme Court. The state high court rejected the claim without comment. This court
independently reviews the merits of this claim. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 981-82.
A. California Determinate Sentencing Law
California's Determinate Sentencing Law requires a sentencing judge to select the middle term
for a conviction unless she finds aggravating factors by a preponderance of the evidence, which allow
imposition of the upper term. CAL. PENAL. CODE. § 1170 (b). Some of the aggravating factors include a
determination of whether the crime was committed violently, whether the crime involved great bodily
harm or threat of great bodily harm, whether the crime was carried out in a sophisticated fashion,
whether the victims were particularly vulnerable, and whether the criminal had prior offenses. CAL. R.
CT. 4.421(a)(1), 4.421(a)(8), 4.421 (b)(2). Since this sentencing scheme allows the judge (instead of a
jury) to find factors in determining punishment and sets the standard of finding these factors to be a
preponderance of the evidence, it is subject to scrutiny under the Supreme Court’s interpretation of the
Fifth and Sixth Amendment.
B. Constitutionality of Judge Determinations of Penalty Enhancing Findings
In Apprendi v. New Jersey, the Supreme Court held, other than a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt. 530 U.S. 466, 490 (2000). The Supreme Court clarified its
position in Blakley v. Washington, 542 U.S. 296, 303 (2004), stating, the “statutory maximum for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” A defendant forfeits his right to contest an
Apprendi error on appeal if he fails to object to that error at trial unless the unraised error seriously
affected the “fairness, integrity, and public reputations of the judicial proceedings.” U.S. v. Cotton, 535
U.S. 625, 631 (2002). Thus, if a defendant fails to object to an Apprendi sentencing error at trial and
///
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 25 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26 06cv233
later claims such an error for habeas corpus relief, a reviewing court should determine whether the
factors relied upon to enhance the defendant’s sentence were “uncontroverted at trial and supported by
overwhelming evidence.” See Cotton, 535 U.S. at 633. If the record reflects that the factors were
overwhelmingly supported by evidence, then the defendant is barred from raising the claim.
When determining sentences within a prescribed statutory range, a judge is permitted to consider
factors based on facts found by the jury during trial. Apprendi, 530 U.S. at 481. Indeed, “both before
and since the American colonies became a nation, courts in this country...practiced a policy under which
a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist
him in determining the kind and the extent of punishment to be imposed within limits fixed by law.”
Williams v. New York, 337 U.S. 241, 241 (1949). In U.S. v. Booker, 534 U.S. 220 (2005), the high
court held that the Federal Sentencing Reform Act (“SRA”) was unconstitutional because it bound
district judges to mandatorily impose a higher penalty for a convicted defendant upon finding any
statutorily proscribed aggravating factors by a preponderance of the evidence. 543 U.S. at 258.
Nevertheless, instead of invalidating the entire statute, the Supreme Court severed the mandatory
provisions of the SRA. Id. at 259. The end result was that a district judge may impose a higher
sentence within the maximum penalty prescribed by law upon finding an aggravating factor, but need
not do so. Id. At 264. The Supreme Court found that the SRA was constitutional if it served as an
advisory sentencing guideline for judges. Id. at 233. Indeed, a constitutional question on the SRA
would have been “avoided entirely if Congress had omitted...the provisions that make the Guidelines
binding on judges.” Id. Justice Stevens explained, “when a trial judge exercises his discretion to select
a specific sentence within a defined range, the defendant has no right to a jury determination of the facts
that the judge deems relevant.” Id.
The high court’s rationale for its severing efforts was to preserve the goal of Congress to “move
the sentencing system in the direction of increased uniformity” between the real conduct of offenders
and their sentences. Id. at 253. To illustrate, the Court used the following hypothetical:
Now imagine two former felons, Johnson and Jackson, each of whom engages in identical
criminal behavior: threatening a bank teller with a gun, securing $50,000, and injuring an
innocent bystander while fleeing the bank. Suppose prosecutors charge Johnson with one
crime (say, illegal gun possession, see 18 U.S.C. § 922 (g)), and Jackson with another (say,
bank robbery, see § 2113(a)).”
Booker, 534 U.S. at 253.
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 26 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14Under the Supreme Court’s hypothetical, the prosecutor does not charge Johnson with bank
robbery.
27 06cv233
Under the SRA, a judge would have been required to sentence both Johnson and Jackson
similarly for their identical conduct because, presumably, he would find identical aggravating factors in
the commission of their crimes. Id. By making the SRA an advisory sentencing guideline, the high
court ensured that judges retained the discretion to sentence Johnson and Jackson similarly. Id. The
Supreme Court was concerned that if the SRA was completely invalidated or altered such that
aggravating factors must be submitted to juries, then two criminals who engage in similar conduct, but
are charged with different crimes, would be sentenced differently. Id. Such results would undermine
the Congressional intent of moving punishment and real conduct “in the direction of increased
uniformity.” Id.
The Supreme Court’s analysis of the hypothetical makes clear that judges are permitted to
exercise discretion on sentencing, using factors based on evidence produced at trial. See Apprendi, 530
U.S. at 481; see also, Booker, 543 U.S. at 253, Williams, 337 U.S. at 241. The majority opinion went as
far as to suggest that a sentencing judge is permitted to interpret evidence adduced at trial, find that the
defendant engaged in certain conduct, and impose a sentence based on that conduct – even if a jury’s
verdict does not reflect that conduct. See Booker, 543 U.S. at 253. For example, in the high court’s
hypothetical, Johnson might be convicted of illegal gun possession without the jury finding that Johnson
committed bank robbery.14 However, a sentencing judge would be permitted to examine the evidence,
come to a conclusion that Johnson’s conduct was dangerous and similar to a bank robbery, and sentence
him to a term similar to that of a criminal convicted of bank robbery. Thus, while under Apprendi and
Blakey a judge may only enhance a sentence based on jury found facts, Blakley, 542 U.S. at 303,
Booker suggests that aggravating factors based on these facts need not be found by the jury. 543 U.S. at
253.
The California Supreme Court, after considering Apprendi, Blakley, and Booker, held that “the
judicial [fact-finding] that occurs when a judge exercises discretion to impose an upper term sentence or
consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to jury
trial.” People v. Black, 35 Cal.4th 1238, 1244 (2005). The state high court reasoned that Blakley and
Apprendi did not hold that all sentencing schemes that involve judicial fact-finding were
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 27 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15As discussed earlier, California’s Determinate Sentencing Law requires that a sentencing judge
find an aggravating factor by a preponderance of the evidence before she may impose an upper term
sentence for a conviction.
16Justice Alito, Justice Breyer, and Justice Kennedy.
28 06cv233
unconstitutional. Id. at 1253. Relying on Booker, the state high court concluded that judges are
permitted “to engage in the type of judicial factfinding typically and traditionally involved in the
exercise of judicial discretion employed in selecting a sentence from within the range prescribed for an
offense.” Id. The California Supreme Court explained that the high court’s goal in Blakley and
Apprendi was to overrule sentencing schemes that “assign judges the type of factfinding role
traditionally exercised by juries in determining the existence or non-existence of elements of an
offense.” Id.
The state high court concluded that similar to the SRA as revised by Booker, California’s
determinate sentencing scheme “afforded judges the discretion to decide, with the guidance of rules and
statutes, whether the facts of the case and the history of the defendant justify a higher sentence. Such a
system does not diminish the power of the jury...” to find elements of offenses. Id. Thus, the California
Supreme Court held that California’s sentencing system is consistent with Booker and is not contrary to
Apprendi or Blakely. Id. But the U.S. Supreme Court overruled Black in Cunningham v. California,
127 S. Ct. 856, 868 (Jan. 22, 2007), holding California’s determinate sentencing scheme
unconstitutional because it lacked the jury trial and reasonable doubt elements of due process15. Three
Supreme Court Justices16 agreed with the state high court, and dissented in Cunningham. They stated,
“[t]he California sentencing law that the court strikes down...is indistinguishable in any constitutionally
significant respect from the advisory Guideline scheme that the [Supreme] Court approved in [Booker].”
127 S. Ct. at 873.
C. Retroactivity
Despite the overturning, the Supreme Court’s holding in Cunningham does not apply
retroactively on federal collateral review to upset a state conviction or sentence. See Schardt v. Payne,
414 F.3d 1025, 1027 (9th Cir. 2005); see also Teague v. Lane, 489 U.S. 288 (1989). Under Teague, a
new procedural rule of constitutional law cannot be retroactively applied on federal collateral review to
upset a state conviction. 489 U.S. 288. There are two exceptions to this rule. First, the new rule may be
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 28 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17While the retroactivity of Cunningham has not been addressed by the Ninth Circuit, several
district courts, in their unpublished opinions, also found that Cunningham is non-retroactive. Bouie v.
Kramer, No. CIV S06-1082-GEBGGHP, 2007 WL 2070330 (E.D. Cal. Jul. 13, 2007), Rosales v. Horel, No. 06-CV-2327-JMAJB, 2007 WL 1852186 (S.D. Cal June 26, 2007), Fennen v. Nakayema, No. 2:05-
CV-1776-GEBGGHP, --- F.Supp.2d ---, 2007 WL 1742339 (E.D. Cal. June 14, 2007), Hally v.
Scribner, No. CIV S-04-0828RBBCMKP, 2007 WL 809710 (E.D. Cal. Mar. 15, 2007); see Dropalski v.
Stewart, No. C06-5697-FDB/KLS, 2007 WL 963989 (W.D. Wash. Mar. 28, 2007).
29 06cv233
applied retroactively if it forbids “punishment of certain primary conduct” or if it prohibits “a certain
category of punishment for a class of defendants because of their status or offense.” Beard v. Banks,
542 U.S. 406, 416-17 (2004). Second, the new rule may be applied if it is a “watershed rule of criminal
procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id.
After Beard, the Ninth Circuit held that the rule in Blakley does not retroactively apply to
convictions that became final prior to its final publication in June 24, 2004. Schardt, 414 F.3d at 1027.
The Ninth Circuit’s reasoning was that Blakley presented a new procedural rule because it merely
allocated some of the decision-making authority previously held by judges to juries. Id. at 1036.
Furthermore, the Ninth Circuit reasoned that the rule in Blakley did not fall within either exceptions
discussed in Beard. Id. Similar to Blakley, Cunningham shifted the decision-making authority
previously held by judges to juries, making it a procedural rule rather than a substantive rule.
Cunningham merely suggested that aggravating factors in the California Determinate Sentencing
Scheme used to impose an upper term must be found by a jury instead of a judge. See Cunningham,127
S. Ct. 856, 868; see also Apprendi, 530 U.S. at 490, Blakley, 542 U.S. at 303. Thus, like Blakley,
Cunningham should not be retroactively applied to convictions that were final prior to its publication.17
D. Analysis
Here, Petitioner’s conviction became final on March 18, 2006, ninety days after the California
Supreme Court denied Petitioner’s petition. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
Petitioner was sentenced to several upper terms as a result of the conviction after the sentencing judge
found several aggravating factors beyond a preponderance of the evidence. (Doc. No. 21 at 75.)
Cunningham was decided on January 22, 2007. Thus, for reasons discussed above, it may not be
applied to Petitioner’s case. Teague, 489 U.S. 288.
On the other hand, Blakey, as noted before, was decided on June 24, 2004, and Booker was
decided on February 22, 2005. Accordingly, the rules established in Apprendi and its progenies prior to
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 29 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30 06cv233
Cunningham do apply to Petitioner’s case, and the Court must determine if Petitioner is barred from
raising his Apprendi claim because he failed to raise the claim in trial court. Cotton, 535 U.S. at 633.
As previously discussed, when a defendant fails to raise an Apprendi claim at the trial court
level, he is barred from raising the issue on collateral review if factors used in enhancing his sentence
were “uncontroverted at trial and supported by overwhelming evidence.” See Cotton 535 U.S. at 633.
Petitioner did not raise his Apprendi error claim for direct appeal from trial court. (See Lodgement 3 at
i-iii.) Therefore, the Court should determine whether the factors used to enhance his sentence were
uncontroverted and supported by overwhelming evidence. See id.
In sentencing Petitioner, the trial judge found that: 1) the crime involved great violence; 2) there
was threat of great bodily harm; and 3) the manner in which the crime was carried out indicated
planning, sophistication, and professionalism. (Doc. No. 21 at 71.) The evidence showed that two black
males used guns to rob Symbolic. (Lodgement 11 at 1.) The robbers forced Symbolic’s employees to
move to the back of Symbolic’s showroom and threatened to shoot them if they did not comply.
(Lodgement 2 at 106-111.) These facts show that the robbers were engaging in violent conduct.
Moreover, they show that robbers threatened to inflict great bodily harm on the victims. Victims
testified that the robbers used cell phones to communicate and to discuss plans during the robbery.
(Lodgement 2 at 325-28; 43-5.) This fact shows that the robbers used fairly sophisticated
communications equipment to plan out their robbery. And, of course, the jury found that Petitioner
committed the Symbolic robbery. (Lodgment 1 at 105-112) In light of the record, threat of great bodily
harm and a high degree of sophistication in committing the crime were overwhelmingly supported by
the facts of the case. Enhancing Petitioner’s sentence based on these factors did not seriously affect the
“fairness, integrity, and public reputations of the judicial proceedings.” Cotton, 535 U.S. at 631.
Petitioner’s claim is therefore barred. Cotton, 535 U.S. at 631.
XI. VALIDITY OF PRIORS
Petitioner claims that he was denied due process when he was deprived of an opportunity to
attack the prior conviction that was used to enhance his sentence. He contends that he was not provided
appellate counsel to appeal his prior conviction. Also, on April 15, 2005, Petitioner filed a motion
requesting trial transcripts for his 1988 conviction, and it was denied by the state court. (Doc. No. 21 at
87-88.) Petitioner maintains that because he was denied counsel as well as the opportunity to review his
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 30 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31 06cv233
trial transcripts, he was deprived of his chance to attack the constitutionality of his prior conviction. The
state courts did not address this issue. This Court independently reviews the factual record and finds the
claim without merit. See Himes, 336 F.3d at 853.
In Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001), the Supreme Court held
that, generally, a petitioner for a writ of habeas corpus has no right to collaterally attack the validity of a
prior conviction used to enhance his sentence. Id. at 396. The Court’s rationale behind the general
Lackawanna rule is to prevent defendants from attacking the validity of their prior convictions after they
failed to “pursue those remedies while they were available” during the court proceedings for these prior
charges. Id.
From Petitioner’s allegations, the Court’s best inference is that Petitioner did not pursue an
appeal after he was convicted of the prior. He did not request court transcripts soon after his 1988
conviction. Instead, he waited 18 years after he found out that the prior was going to be used to enhance
his sentence before filing a motion to request the transcripts. (Trav. at 106.) Petitioner is collaterally
attacking the validity of his prior only after he had learned that it would be used to enhance the sentence
of his most recent conviction. Petitioner’s conduct is a textbook example of one attempting to untimely
challenge the validity of his prior after he failed to do so at the appropriate juncture.
There is an exception to the Lackawanna rule: a petitioner may challenge his prior conviction if
he was not appointed trial counsel. Lackawanna, 532 U.S. at 404. However, Petitioner complains of a
lack of appellate counsel not trial counsel, and the exception does not apply. Accordingly, Petitioner is
procedurally barred from attacking the validity of his prior conviction in this Court. See id. at 406.
XII. PROSECUTOR’S ERRORS
Petitioner makes several claims, alleging that the prosecution did not timely disclose various
facts, police reports, and portions of police reports at trial. He contends: 1) the prosecution did not
timely disclose page one and page two of the police report for Edward Jones’ arrest, (doc. no. 21 at 92-
97; Trav. at 109-112); 2) the prosecution failed to timely disclose the police report of Thess Good’s
arrest and detention, (Doc. No. 21 at 97-99); 3) the prosecution failed to disclose the criminal history of
one of the victims of the Symbolic robbery, (doc. no. 21 at 99-100); and 4) the prosecution misidentified
Petitioner’s pager number and presented it as Petitioner’s cell phone number to the jury. Petitioner
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 31 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32 06cv233
claims that the number was not Petitioner’s cell phone number, but instead, his pager number. (Doc.
No. 21 at 101-103.)
Petitioner asserts that the prosecutor’s errors amounted to a due process violation because the
untimely disclosed and misidentified evidence was exculpatory. Had the proper disclosures been made,
they could have been more thoroughly investigated during discovery. Further, Petitioner maintains that
he was prejudiced at trial as a result of these errors. (Lodgment 5 at 14-18; Lodgment 15.) To evaluate
this claim, the Court will use the standard of review for disclosures by the prosecution discussed in
section IV(A)(2) of this Report and Recommendation. In short, for relief to be granted, Petitioner must
show that the information that the prosecutor either failed to disclose or untimely disclosed was
exculpatory evidence and such prosecutorial misconduct prejudiced Petitioner from receiving a more
favorable verdict. Brady, 373 U.S. at 87.
A. Failure to Disclose Portions of Police Report for Edward Jones’ Arrest
Petitioner contends that the prosecutor failed to timely disclose page one and page two of the
police report describing Edward Jones’ arrest. However, page one and page two of that police report
were disclosed to the defense on November 6, 1999, two days before trial ended. (Doc. No. 21 at 100.)
Page one and page two of that police report has Petitioner’s statement describing his version of what
happened on the day Jones was arrested. (Lodgment 1 at 404.) It also has a statement made by
Enterprise-Rent-A-Car employee Jennifer Poulin, who recalled that Petitioner called Enterprise at
around 9:30 a.m. to report the rental car missing. (Lodgment 1 at 403.)
As discussed earlier, the state appellate court found that Petitioner’s counsel acknowledged that
the evidence in page one and page two of the police report is hearsay. (Lodgment 5 at 14-16.) Thus,
even if the pages were disclosed earlier, they could not have been admitted as evidence. See CAL. EVID.
CODE § 1200. Further, because Petitioner knew that he made a statement to the police, he could have
simply chosen to take the stand and testify as to what happened on the day of Jones’ arrest. Lastly,
Petitioner’s statement is hardly credible and not exculpatory because he “only called police to report the
vehicle stolen after Jones was arrested while driving in it.” (Lodgement 5 at 15.) Accordingly, the
Court finds that the state appellate court’s ruling was not contrary to, or an unreasonable application of,
federal law. Robinson, 360 F3d at 1045.
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 32 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18The Court discussed the standard of review for a suppression of evidence claim in section IV
(A)(2) of this Report and Recommendation.
33 06cv233
The Court independently reviews Petitioner’s claim regarding Jennifer Poulin’s statement
because the state courts did not address the claim in their decisions. See Himes, 336 F.3d at 853;
Delgado, 223 F.3d at 981-82. Jennifer Poulin’s statement does not exculpate Petitioner. As discussed
earlier, Petitioner’s story was already inconsistent with the Fam-Mart employee’s recollection of events.
Poulin’s statement also contradicted Petitioner’s representations and would have further clouded
Petitioner’s story. According to the police report, Fam-Mart did not open until 10:00 a.m. on the day of
Jones’ arrest. (Lodgment 1 at 405.) According to Petitioner, he did not discover that his car was stolen
until after he entered Fam-Mart, which had to be sometime after 10:00 a.m, according to the Fam-Mart
employee. (Id.) Yet, Petitioner called Poulin at around 9:30 a.m. to report that the car was stolen. (Id.)
Such inconsistencies would not have been favorable to Petitioner. Instead they would have made the
jury further question Petitioner’s credibility. Thus, Poulin’s statement would not have exculpated
Petitioner. Since Poulin’s recollection would not have been exculpatory, the failure to timely disclose
her statement did not harm Petitioner’s defense and is not prejudicial.
B. Failure to Disclose Police Report of Thess Good’s Arrest and Detention
Petitioner alleges that prosecution did not disclose the police report of Thess Good’s arrest and
detention until November 6, 1999, two days before the trial ended. He claims that this lateness in
disclosure was prejudicial to him. (Doc. No. 21 at 97-99.) Petitioner asserts that the police report
mentioned that Good, who allegedly looks like Petitioner, was detained. Petitioner further claims that
the report failed to mention that incriminating items were confiscated from Good’s home, such as “hand
guns, cell phones, etc.” (Doc. No. 21 at 98.) Petitioner maintains that these items and the police’s
description of Good would have been exculpatory evidence had they been presented to the jury at trial.
(Id.) The state courts did not issue a reasoned decision addressing this claim. Thus, the Court will
independently review Petitioner’s contentions. See Himes, 336 F.3d at 853.
As previously discussed,18 in order for a petitioner to succeed on a claim of suppression of
evidence by the prosecution, he must show that the evidence withheld by the prosecution was favorable
to him. Brady, 373 U.S. at 87. Additionally, he must show that prosecution’s suppression of the
evidence prejudiced him. Id. Conclusory allegations unsupported by specific statements of facts are
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 33 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19Please refer to section IV (E)(2) of this Report and Recommendation.
34 06cv233
insufficient to warrant habeas corpus relief. Boeheme, 423 F.2d at 1058. Thus, a petitioner’s
unsupported allegations of suppression of evidence that was favorable to him and resultantly prejudiced
him is insufficient to warrant habeas corpus relief. See id.
With regard to Good’s physical similarities and relationship to Petitioner, the Court has
discussed earlier that information about Good would not have been admissible as third-party culprit
evidence.19 Thus, even if the report were disclosed to Petitioner earlier, it would not have led to a more
favorable outcome because the information in the report would not have been presentable to the jury at
trial. Furthermore, regardless of the likely admissibility of the information in question, the report was
indeed disclosed to Petitioner before the end of trial, and Petitioner had time to look at the report and
use its information to develop a defense. (Doc. No. 21 at 97-99.) Thus, the untimely disclosure of the
Thess Good report did not prejudice Petitioner.
With regard to Good’s items, Petitioner simply has not offered any support for the contention
that “guns, cell phones, etc.” were confiscated from Good’s home. (Doc. No. 21 at 98.) In fact,
Petitioner even notes that the Thess Good police report failed to state that any items were confiscated
(Id.) (emphasis added). As habeas corpus relief can not be granted based on Petitioner’s unsupported
allegations, Boeheme, 423 F.2d at 1058, it should be denied as to this claim.
C. Failure to Disclose Criminal History of Victim
Petitioner claims that the criminal history of a Symbolic robbery victim was not disclosed by the
prosecution. He claims that the failure to disclose the criminal history prevented his counsel from
presenting impeachment evidence against this victim, who identified Petitioner as one of the
perpetrators of the Symbolic robbery at trial, but failed to do so at lineups. (Doc. No. 21 at 99.) The
state courts did not address this claim in a reasoned decision. After independent review, the Court finds
that this claim is without merit. See Himes, 336 F.3d at 853.
Under California law, a witness may be impeached with a criminal record only where the offense
is one of “moral turpitude.” People v. Wheeler, 4 Cal.4th 284, 296 (Cal. 1992). Here, Petitioner has
not specified the crimes with which the victim has been convicted. Rather, Petitioner appears to be
unsure of whether or not the victim even has a criminal history. He states, “information regarding a
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 34 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20As discussed earlier, Detective Keene discovered that two cell phones had called each other
thirty-two times on the morning of the Symbolic robbery. He discovered that the two cell phone
numbers were subscribed to two persons under the names of Tim Walker and Crini Ornelas. (Lodgment
2 at 282-84.)
35 06cv233
potential criminal history of [victim]” was realized at trial. (Doc. No. 21 at 102 (emphasis added).)
Conclusory allegations that border on speculation are all that Petitioner has offered to the Court. As
unsupported contentions are not enough to warrant habeas corpus relief, Boeheme, 423 F.2d at 1058,
Petitioner’s claim should be denied.
D. Allegation of Misidentifying a Pager Number
Petitioner alleges Detective Keene falsely reported his pager number 619-907-0408 as a cell
phone number and testified accordingly at trial. (Doc. No. 21 at 101.) Petitioner claims that he only has
a pager number. (Id.) Therefore, had Keene’s information been corrected at trial, it would have been
exculpatory for Petitioner because witnesses testified that the Symbolic robbers used cell phones, not
pagers. (Id. at 102.) Respondents admit that the phone number was indeed a pager number. (Doc. No.
28 at 28.) However, Respondents note that cell phones subscribed under the names Tim Walker and
Crini Ornelas20 called Petitioner’s pager several times. (Doc. No. 28 at 28; Doc. No. 21 at 147.) The
state courts did not address this claim; thus, the Court will independently review its merits. See Himes,
336 F.3d at 853.
To prevail on a claim that prosecutorial misconduct allowed the introduction of false evidence or
testimony into a trial, a petitioner must show: 1) “the testimony (or evidence) was actually false,” and 2)
“the prosecution knew or should have known that the evidence or testimony was actually false.” United
States v. Zuno-Arce , 339 F.3d 886, 889 (9th Cir. 2003). Petitioner must establish a factual basis for
attributing to the government knowledge of false evidence of perjury. See Morales v. Woodford, 388
F.3d 1159, 1179 (9th Cir. 2004) Additionally, a petitioner must show that the false evidence, whether
deliberately or inadvertently disclosed by the prosecution, prejudiced the Petitioner such that there is
any reasonable likelihood that the false evidence could “have affected the judgement of the jury . . . .”
Giglio v. United States, 405 U.S. 150, 154 (1972); Zuno-Arce, 339 F.3d at 889.
Here, Respondents admit that Detective Keene falsely identified the number 619-907-0408 as
Petitioner’s cell phone number. However, Petitioner fails to support his contention that the prosecution
knew or should have known that Keene testified erroneously during trial. As Petitioner failed to provide
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 35 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
36 06cv233
factual basis for attributing to the government knowledge of false evidence, he has not proven one of the
elements of a prosecutorial misconduct claim. See Morales, 388 F.3d at 1179.
Furthermore, Petitioner has not shown that the false information was prejudicial. See Giglio,
405 U.S. at 154. Petitioner does not dispute that the pager number was his, and the evidence shows that
the cell phones subscribed to persons under the names of Tim Walker and Crini Ornelas called the pager
several times. (Doc. No. 21 at 147.) The prosecution theorized that these cell phones were
fraudulently obtained by Petitioner and another accomplice through the use of aliases. (See Lodgement
2 at 282-94.) Petitioner and the accomplice communicated through these cell phones to plan the robbery
several days before and during its commission. (Lodgement 2 at 282-94.) While the prosecution and
Defective Keene erroneously represented that the fraudulent cell phones were used to contact
Petitioner’s cell phone instead of his pager, this misrepresentation was not prejudicial to Petitioner.
Whether the fraudulently obtained cell phones called Petitioner’s pager number or cell phone number is
immaterial because either way, one of the users of the cell phones attempted to communicate with
Petitioner, as the prosecution theorized. (See Lodgment 2 at 282-94.) Petitioner has not shown how
Keene’s mistaken testimony or police report, if corrected, would have thwarted the prosecutor’s theory.
Even if Keene had testified that the number 619-907-0408 was Petitioner’s pager number, the
prosecutors still would have established a link between Petitioner’s number and the cell phones
subscribed to persons under Tim Walker’s and Crini Ornelas’ names. As such, Petitioner has not shown
that Keene’s false testimony prejudiced him. Thus, Petitioner should not be entitled to habeas corpus
relief as to the prosecutorial misconduct claim.
XIII. LACK OF DUE PROCESS AT TRIAL
Petitioner claims that the trial court erred when it excluded the first two pages of the police
report for Edward Jones’ arrest. (Doc. No. 21 at 106; Trav. at 112-13.) As discussed earlier, those
pages contained Petitioner’s statement as to what happened prior to, and shortly after, Jones’ arrest. The
trial court excluded the two pages from evidence as inadmissible hearsay. (Id.) Petitioner claims that
exclusion of such information was a due process violation. (Id.) The state courts did not address this
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 36 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
21While the California Court of Appeals did address whether the untimely disclosed police report
amounted to a prosecutorial error, (Lodgement 5 at 14-18), and explained why the exclusion of the
report was harmless to Petitioner, it did not analyze whether the information on the report was properly
excluded from evidence by the trial court.
37 06cv233
claim in a reasoned decision.21 After independent review of this claim, this Court finds that it is without
merit. See Himes, 336 F.3d at 853.
Under Supreme Court authority, “erroneous exclusions of critical, corroborative defense
evidence may violate the Fifth Amendment due process right to a fair trial and the Sixth Amendment
right to present a defense.” Depetris v. Kukeyndall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing
Chambers v. Mississippi, 410 U.S. 284, 294 (1973)). However, a defendant’s right to present relevant
evidence is not unlimited, but rather is subject to reasonable restrictions. Taylor v. Illinois, 484 U.S.
400, 410 (1988). Indeed, states have broad latitude under the Constitution to establish rules excluding
evidence from criminal trials. U.S. v. Sheffer, 523 U.S. 303, 308 (1998). A defendant must comply
with these rules of evidence “designed to assure fairness and reliability.” Chambers, 410 U.S. at 302.
Under Supreme Court authority, an exclusion of evidence on hearsay grounds amounts to a due process
violation if the hearsay statement is material to the trial and the statement “bears persuasive assurances
of trustworthiness.” Chambers, 410 U.S. at 302 (1973).
An example of a material statement that bears persuasive assurances of trustworthiness is
illustrated in Chambers. In that case, the defendant was accused of murdering a police officer at a riot.
Id. at 285. The police officer was shot and a subsequent autopsy revealed that he had been hit with four
.22-caliber bullets. A third party, Gabe McDonald, was also at the riot the evening of the police
officer’s death. Id. at 287. Shortly after the riot, McDonald gave a sworn statement to defendant’s
attorney, confessing that he had shot the police officer with a .22-caliber revolver he owned. Id.
However, McDonald later retracted his confession. Id. Nevertheless, the defendant tried to develop the
theory that McDonald shot the police officer. Id. at 289. The defendant had multiple witnesses, who
were good friends of McDonald, who testified that they saw McDonald shoot the police officer. Id.
However, the defendant’s efforts were partly thwarted. The state court did not allow the defendant to
bring McDonald on the stand as an adverse witness, and the prosecution chose not to have him testify.
Id. at 291-92. In addition, the state court excluded three of defendants witnesses, who planned to testify
that McDonald had admitted to shooting the police officer. Id. at 293. The three witnesses were all long
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 37 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22These inconsistencies are discussed earlier in this Report and Recommendation.
38 06cv233
time friends of McDonald. Id. at 292-93. The court excluded these witnesses on hearsay grounds. Id. at
292.
However, the Supreme Court held that the defendant was deprived of a constitutional right to
either cross examine McDonald or bring in evidence of his confession. Id. The Supreme Court found
that the three witnesses were trustworthy because “each of McDonald’s confessions were made
spontaneously to a close acquaintance shortly after the murder had occurred” and “each one was
corroborated by some other evidence in the case - McDonald’s sworn confession, the testimony of an
eyewitness to the shooting, and proof of his prior ownership of a .22-caliber revolver.” Id. at 300.
Thus, the high court ruled that because the witnesses’ hearsay statements were material to the case and
they were trustworthy, the trial court committed a due process violation when it excluded their
testimony from evidence. Id. at 302.
As for the hearsay statement at issue in the instant case, Petitioner’s version of what happened on
the morning of Jones’ arrest that was documented in the police report of Edward Jones’ arrest is
substantially different from the hearsay statements in Chambers. In Chambers, witnesses saw
McDonald shoot the police officer. McDonald confessed to the shooting. McDonald had a gun of the
same caliber as the bullets found in the police officer’s body. Lastly, the people who were to offer the
hearsay statements were close friends of McDonald. The totality of the evidence that corroborated the
hearsay statements in the case made them trustworthy. Chambers, 410 U.S. at 302. Conversely,
Petitioner has provided almost no corroborating evidence that comports with the version presented in the
police report. Petitioner asserts that Edward Jones stole his car. The only evidence that remotely
corroborates Petitioner’s assertion is that Edward Jones was arrested while driving Petitioner’s rental
car. (Lodgement 2, 264-65.) But there is no evidence supporting the contention that Jones stole the car
from Petitioner.
In fact, there are even inconsistencies between Petitioner’s statement and the ones made by other
witnesses in the same report. Petitioner’s statement is inconsistent with Jennifer Poulin’s statement and
the Fam-Mart employee’s statement.22 Furthermore, not only are there no assurances that Petitioner’s
hearsay statement is trustworthy, there is also no evidence that admission of the statement could have
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 38 of
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
39 06cv233
made the jury doubt Petitioner’s already waning credibility and moral character at trial. Detective
Johnny Keene found potentially incriminating telephone numbers, ammunition, and an identification
card that appeared to be a fake in Petitioner’s home. Keene’s testimony regarding these items were
submitted to the jury. (Lodgment 2 at 280-318.) In light of the evidence presented, Petitioner’s
credibility was already in question at trial. The presentation of his statement to the jury would have only
further damned his chances at receiving a favorable impression. Thus, this Court finds that the trial
court’s exclusion of Petitioner’s statement was a reasonable application of Supreme Court authority.
XIV. CONCLUSION
For all of the foregoing reasons, it is hereby recommended that the Court issue an Order: (1)
approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered
DENYING Petitioner’s writ of habeas corpus and dismissing this action.
IT IS ORDERED that no later than September 21, 2007, any party to this action may file
written objections with the Court and serve a copy on all parties. The document should be captioned
“Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and
served on all parties no later than September 28, 2007. The parties are advised that failure to file
objections within the specified time may waive the right to raise those objections on appeal of the
Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 99th Cir. 1998); Martinez v. Ylst, 951 F.2d
1153, 1156 (9th Cir. 1991).
DATED: August 31, 2007
Peter C. Lewis
U.S. Magistrate Judge
United States District Court
cc: The Honorable William Q. Hayes
All Counsel of Record
Case 3:06-cv-00233-WQH-RBM Document 36 Filed 08/31/07 PageID.<pageID> Page 39 of
39 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_01-cv-01174/USCOURTS-caed-2_01-cv-01174-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VICTOR S. HALTOM
Attorney at Law
State Bar No. 155157
428 J Street, Suite 350
Sacramento, CA 95814
Telephone: (916) 444-8663
Facsimile: 444-1546
e-mail: [email protected]
Attorney for Petitioner
CRAIG L. HINTON
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA
CRAIG L. HINTON, ) CIV-S-01-1174 MCE JFM P
)
Petitioner, ) ORDER
)
v. )
)
CHERYL PLIELER, Warden, et al., )
)
Respondents. )
________________________________ )
GOOD CAUSE APPEARING,
IT IS HEREBY ORDERED that Petitioner’s application for an enlargement of time until
April 26, 2005 is granted. On or before April 26, 2005, petitioner shall file his amended petition,
together with an application for leave to file said petition.
DATE: April 22, 2005.
/hint1174.ext3
Case 2:01-cv-01174-MCE-JFM Document 51 Filed 04/25/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-2_07-cv-00200/USCOURTS-alnd-2_07-cv-00200-0/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NICHOLAS MCCARY, )
)
Petitioner, )
)
v. ) 2:07-cv-00200-JFG-JEO
)
RICHARD F. ALLEN, in his position as )
Commissioner of the Alabama Departm)ent
of Corrections, )
)
Respondent. )
MEMORANDUM OF OPINION
The court has considered the entire file in this action together with the
Magistrate Judge’s Report and Recommendation (doc. 8) and the objections of
the petitioner (doc. 9) and has reached an independent conclusion that the
Magistrate Judge’s Report and Recommendation is due to be adopted and
approved. The court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and conclusions of the
court. In accord with the recommendation, this petition for writ of habeas corpus
is due to be denied and dismissed with prejudice.
FILED
2008 Jul-17 PM 03:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:07-cv-00200-JFG-JEO Document 10 Filed 07/17/08 Page 1 of 2
An appropriate order will be entered.
DONE and ORDERED 17 July 2008.
UNITED STATES DISTRICT JUDGE
J. FOY GUIN, JR.
Case 2:07-cv-00200-JFG-JEO Document 10 Filed 07/17/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01876/USCOURTS-caed-2_16-cv-01876-1/pdf.json | 440 | Other Civil Rights | 42:1983 Civil Rights Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RAYMELL EASON
Plaintiff,
v.
WAL-MART CORPORATION,
Defendant.
No. 2: 16-cv-1876 KJM GGH
ORDER
PROCEDURAL HISTORY
The Complaint in this matter was initially filed in this court on February 16, 2016 by
plaintiff, who is an inmate in the U.S. Penitentiary located in Lompoc, Ca. ECF No. 1. On
February 26, 2016, the matter was transferred to the Western District of Arkansas by Magistrate
Judge Carolyn K. Delaney. ECF Nos. 4, 5. The District of Arkansas granted IFP status to
plaintiff on March 29, 2016. ECF No. 7. A summons was returned executed by defendant on
April 28, 2016, ECF No. 9, and an Answer to the Complaint was filed on May 10, 2016. ECF
No. 11. Bruce Crawford from the law firm of Mitchell, Williams, Selig, Gates & Woodyard,
P.L.L.C. appeared as attorney for defendant. ECF No. 13. On August 8, 2016, the Western
District of Arkansas transferred the case back to this District, ECF No. 17, and the matter was
Case 2:16-cv-01876-KJM-GGH Document 22 Filed 10/31/16 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
docketed here on August 9, 2016, ECF No. 18, at which time New Case Documents were issued
outlining the procedures to be followed to pursue the litigation in this court. ECF No. 19.
The new Case Documents required the parties to meet and confer regarding the automatic
discovery disclosures required by Federal Rule of Civil Procedure 26, and within 30 days after
the Complaint was Answered, and to file a Joint Status Report 14 days thereafter. In light of the
fact that the Answer had been filed months before, the logical interpretation of the direction found
in the Order was that the actions required would be addressed within 30 days of the service of the
Order. However, on August 16, 2016 – within the 30 day response required by the Order, a
Substitution of Attorney Request was filed by defendant’s counsel. ECF No. 20. That Request
was granted by an Order signed on August 19, 2016, identify Colleen R. Howard of the law firm
of Porter Scott as the new attorney. ECF No. 21. No action has been taken by the parties to
address the issues required by the August 9, 2016 Order served on all counsel. ECF No. 19.
To assist the parties in meeting their obligations, the court is providing a copy of the
foregoing order and accompanying documents with this Order.
IT IS THEREFORE ORDERED THAT:
1. The parties shall meet and confer about the Rule 26 automatic disclosures they will
each make within 30 days of the date of this Order, or by November 25, 2016;
2. The parties shall submit a Joint Status Report addressing the subjects listed in 3(a)-
(m) of that Order within 14 days of completing their meet and confer efforts and file it with court
on or before December 9, 2016.
3. The parties shall also complete the consent form provided to them.
4. The Clerk of the Court shall serve a copy of ECF No. 19, and the court’s consent
form together with this Oder.
IT IS SO ORDERED.
Dated: October 31, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
Case 2:16-cv-01876-KJM-GGH Document 22 Filed 10/31/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01503/USCOURTS-caed-2_16-cv-01503-1/pdf.json | 893 | Environmental Matters | 33:1319 Clean Water Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
BATTLE CREEK ALLIANCE,
Plaintiff,
v.
SIERRA PACIFIC INDUSTRIES, INC.,
Defendant,
v.
UNITED STATES DEPARTMENT OF
JUSTICE Environment and Natural
Resources Division,
Unknown.
CIV. NO. 2:16-cv-1503 WBS CMK
ORDER OF RECUSAL
----oo0oo----
The undersigned judge hereby recuses himself as the
judge to whom this case is assigned.
IT IS THEREFORE ORDERED that the Clerk of the Court
reassign this case to another judge for all further proceedings,
making appropriate adjustments in the assignments of civil cases
to compensate for such reassignment.
Dated: November 10, 2016
Case 2:16-cv-01503-JAM-CMK Document 10 Filed 11/10/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-01623/USCOURTS-caed-1_06-cv-01623-6/pdf.json | 530 | Prisoner Petitions - Habeas Corpus | 28:2254 Petition for Writ of Habeas Corpus (State) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 This information is derived from the petition for writ of habeas corpus and Respondent’s motion to 1
dismiss.
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ERINO HERNANDEZ,
Petitioner,
v.
ARNOLD SCHWARENEGGER,
Respondent.
/
CV F 06-01623 OWW SMS HC
FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION TO
DISMISS
[Doc. 12]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
FACTUAL AND PROCEDURAL HISTORY1
On April 19, 2004, prison officials searched Petitioner’s cell and bunk finding a
sharpened piece of metal. (Exhibit 1, at p.1, attached to Answer.) Petitioner was charged with
possession of an inmate-manufactured stabbing device, and a prison disciplinary hearing was
held on May 13, 2004. (Id.) Petitioner was found guilty and assessed a 360-day time-credit
forfeiture. (Id. at 3.)
Petitioner previously filed a federal petition for writ of habeas corpus challenging the
disciplinary decision with this Court, case no. 1:06-cv-01337 OWW SMS (HC), on September
26, 2006. (Exhibit 2, attached to Answer.) Petitioner challenged the sufficiency of the evidence
Case 1:06-cv-01623-OWW -SMS Document 13 Filed 09/18/07 Page 1 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
of the finding of guilt, as well as several disciplinary procedures. (Id.) The petition was
transferred to the United States District Court for the Southern District of California on October
19, 2006, case no. 06-cv-2757 DMS BLM. (Court Doc. 8, in case no. 1:06-cv-01337 OWW
SMS (HC).) It was received in that Court on January 25, 2007. (Id.)
On October 27, 2006, Petitioner filed the instant federal petition for writ of habeas
corpus in the United States District Court for the Southern District of California, case no. 06-
2392 L (RBB). The petition was transferred to this Court on November 3, 2006, and received on
November 8, 2006. (Court Doc. 1.)
Respondent filed the instant motion to dismiss on July 19, 2007, arguing that the instant
petition is successive and must be dismissed. Petitioner has not filed an opposition.
DISCUSSION
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a
petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing § 2254
Cases.
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer
if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of
the state’s procedural rules. See e.g. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990)
(using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White
v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review
motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12
(E.D. Cal. 1982) (same). Thus, a Respondent can file a motion to dismiss after the court orders a
response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F.
Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C.
2244(b)(3)(A). Because Respondent's motion to dismiss is similar in procedural standing to a
motion to dismiss for failure to exhaust state remedies or for state procedural default and
Case 1:06-cv-01623-OWW -SMS Document 13 Filed 09/18/07 Page 2 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Respondent has not yet filed a formal answer, the Court will review Respondent’s motion to
dismiss pursuant to its authority under Rule 4.
B. Successive Petition
Because the current petition was filed after April 24, 1996, the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current
petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or
successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The
court must also dismiss a second or successive petition raising a new ground unless the petitioner
can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis
of the claim was not previously discoverable through due diligence, and these new facts establish
by clear and convincing evidence that but for the constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
However, it is not the district court that decides whether a second or successive petition meets
these requirements, which allow a petitioner to file a second or successive petition.
Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application." In other words,
Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive
petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must
dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave
to file the petition because a district court lacks subject-matter jurisdiction over a second or
successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v.
Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v.
United States, 96 F.3d 990, 991 (7th Cir. 1996).
A second or successive petition for habeas corpus is not considered “successive” if the
initial habeas petition was dismissed for a technical or procedural reason versus on the merits.
See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not
successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v.
Case 1:06-cv-01623-OWW -SMS Document 13 Filed 09/18/07 Page 3 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In case no. 3:06-cv-02757-DMS-BLM, a Report and Recommendation was issued on July 5, 2007, to
2
deny the petition, and Petitioner filed objections on July 26, 2007. Thus, although the petition may ultimately been
denied as recommended by the assigned Magistrate Judge, there is no final order in that case.
4
Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas petition is not successive if the
claim raised in the first petition was dismissed by the district court as premature.)
As previously stated, in his motion, Respondent argues that the instant case is a
successive petition and should be dismissed pursuant to 28 U.S.C. § 2244(b)(1). Specifically,
Respondent contends that the instant petition raises the same claims as raised in the other petition
previously filed in this Court in case no. 1:06-cv-01337 OWW SMS (HC). The Court agrees
with Respondent that the instant petition is duplicative of the prior petition filed in this Court in
case no 1:06-cv-01337 OWW SMS (HC); however, the Court does not agree that the instant
petition is a successive petition. In order for a petition to be successive the prior petition must
have been decided on the merits. Because the prior petition filed in this Court, and transferred to
the Southern District of California, is still pending, the instant petition is not successive.2
Nonetheless, because the instant petition is duplicative of the previously filed petition, the Court
will recommend that the petition be dismissed on this ground.
RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. Respondent’s motion to dismiss based on the ground that the instant petition is a
second or successive petition be DENIED; however, the instant petition for writ
of habeas corpus be dismissed as duplicative of case no. 1:06-01337 OWW SMS
(HC); and
2. The Court of Clerk be directed to terminate this action.
These Findings and Recommendations are submitted to the assigned United States
District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-
304 of the Local Rules of Practice for the United States District Court, Enastern District of
California. Within thirty (30) days after being served with a copy, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
Case 1:06-cv-01623-OWW -SMS Document 13 Filed 09/18/07 Page 4 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
“Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the objections
shall be served and filed within ten (10) court days (plus three days if served by mail) after
service of the objections. The Court will then review the Magistrate Judge’s ruling pursuant to
28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the
specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: September 17, 2007 /s/ Sandra M. Snyder
icido3 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-01623-OWW -SMS Document 13 Filed 09/18/07 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-3_16-cv-00025/USCOURTS-ared-3_16-cv-00025-2/pdf.json | 440 | Other Civil Rights | 42:1981 Civil Rights | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KIARA ANTUAN SMITH PLAINTIFF
V. CASE NO. 3:16-CV-00025 JM/BD
ARKANSAS, STATE OF et al. DEFENDANTS
JUDGMENT
Consistent with the Order that was entered on this day, it is CONSIDERED,
ORDERED, and ADJUDGED that this case is hereby DISMISSED, WITH PREJUDICE.
IT IS SO ORDERED this 2nd day of March, 2016.
________________________________
UNITED STATES DISTRICT JUDGE
Case 3:16-cv-00025-JM Document 7 Filed 03/02/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca9-13-35133/USCOURTS-ca9-13-35133-0/pdf.json | 110 | Insurance | null | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ATLANTIC CASUALTY
INSURANCE COMPANY,
Plaintiff Appellee,
v.
JOHN P. GREYTAK;
TANGLEWOOD INVESTORS
LIMITED PARTNERSHIP,
Defendants-Appellants,
and
GTL, INC.,
Defendant.
No. 13-35133
D.C. No.
9:12-cv-00014-
DWM
ORDER
CERTIFYING
QUESTION TO
MONTANA
SUPREME COURT
Filed June 25, 2014
Before: M. Margaret McKeown and Paul J. Watford,
Circuit Judges, and Barbara Jacobs Rothstein, Senior
District Judge.*
Order
* The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
United States District Court for the Western District of Washington,
sitting by designation.
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 1 of 10
2 ATLANTIC CAS. INS. CO. V. GREYTAK
ORDER
ROTHSTEIN, District Judge:
I
Pursuant to Rule 15(3) of the Montana Rules of Appellate
Procedure, we respectfully request that the Montana Supreme
Court exercise its discretion to adjudicate the following
question of Montana law:
Whether, in a case involving a claim of
damages by a third party, an insurer who does
not receive timely notice according to the
terms of an insurance policy must
demonstrate prejudice from the lack of notice
to avoid defense and indemnification of the
insured.
The answer to this certified question will be determinative
of the appeal pending in our court in this diversity action. We
acknowledge that your Court may decide to reformulate the
question and that our phrasing of the question is not intended
to restrict your Court’s consideration of this request. We are
grateful for any guidance your Court can give us, whether or
not directly responsive to the question as we have phrased it.
II
In this diversity action, Defendants-Appellants John P.
Greytak and Tanglewood Investors Limited Partnership
(collectively, “Greytak”) appeal from the final judgment
entered following the granting of Plaintiff-Appellee Atlantic
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 2 of 10
ATLANTIC CAS. INS. CO. V. GREYTAK 3
Casualty Insurance Company’s (“Atlantic”) motion for
summary judgment.
This case stems from an underlying civil action filed in
Granite County, Montana, involving third-party GTL, Inc.
(“GTL”).1 At the time of the action GTL was insured by
Atlantic. On March 16, 2010, GTL filed suit against Greytak
for non-payment. On April 30, 2010, in a letter sent to GTL,
Greytak asserted the bases for various counterclaims
involving alleged construction defects. On November 5,
2010, still in state court, Greytak filed its counterclaims
against GTL. On April 13, 2011, GTL and Greytak reached
a written “settlement agreement.”2 The agreement required
GTL to notify Atlantic of Greytak’s counterclaims. GTL and
Greytak agreed that if Atlantic did not appear to defend the
case and did not file a separate declaratory action, GTL
would allow judgment to be entered in favor of Greytak in the
amount of $624,685.14 plus costs. If, on the other hand,
Atlantic did appear to defend the case, Greytak would “be
entitled to pursue its remaining claims to judgment . . . [and]
shall . . . ensure that GTL will have no financial responsibility
for such judgment . . . [Greytak]shall look solely to [Atlantic]
for the recovery of any judgment . . . .” If Atlantic filed a
declaratory action, Greytak agreed to “defend such claim on
behalf of GTL for the purpose of establishing coverage . . . .”
1 GTL did not appear to defend itself in district court and defaulted.
GTL is not a party to this appeal.
2 While styled a “settlement,” the agreement did not fully resolve the
case. GTL’s claims against Greytak were fully settled for a payment of
$20,000. However, Greytak’s counterclaims were not resolved.
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 3 of 10
4 ATLANTIC CAS. INS. CO. V. GREYTAK
The insurance policy issued by Atlantic to GTL (“the
Policy”) states that “[w]e will have the right and duty to
defend the insured against any ‘suit’ seeking . . . damages.”
The Policy also states that the insured “must see to it that we
are notified as soon as practicable of an ‘occurrence’ or an
offense which may result in a claim . . . [i]f a claim is made
or ‘suit’ is brought against any insured, you must . . . [n]otify
us as soon as practicable. You must see to it that we receive
written notice of the claim or ‘suit’ as soon as practicable.”
GTLnotified Atlantic of Greytak’s counterclaims through
a letter mailed on May 23, 2011, more than a year after the
counterclaims had been asserted by letter, six months after
Greytak had filed the counterclaims in court, and after the
“settlement” had been reached between Greytak and GTL.
Greytak separately notified Atlantic of the counterclaims by
a letter dated August 5, 2011.
On January 23, 2012, Atlantic filed suit against GTL and
Greytak in the United States District Court for the District of
Montana, seeking declaratory relief. Atlantic sought a
declaration that it was not required to defend GTL from
Greytak’s counterclaims and that it was not required to pay
any portion of a judgment obtained against GTL on the
grounds that it had not been given timely notice as required
by the Policy language.
Greytak and Atlantic each filed motions for summary
judgment. The district court held a hearing and, on January
14, 2013, granted Atlantic’s motion for summary judgment
and denied Greytak’s motion for summary judgment. The
district court found that Atlantic did not have timely notice of
Greytak’s claims against GTL and, therefore, Atlantic was
excused from performance. In denying a motion for relief
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 4 of 10
ATLANTIC CAS. INS. CO. V. GREYTAK 5
from judgment filed by Greytak, the district court found that,
pursuant to Montana law, Atlantic was not required to
demonstrate that it was prejudiced by a lack of timely notice
regarding Greytak’s claims against GTL.
3 Greytak timely
appealed.
III
The sole question under Montana law is whether, in a
case involving a claim of damages by a third party, an insurer
who does not receive timely notice according to the terms of
an insurance policymust demonstrate prejudice from the lack
of notice in order to avoid defense and indemnification of the
insured.
Atlantic argues that Montana law already answers this
question in the negative, relying primarily on language in
Steadele v. Colony Insurance Co., 260 P.3d 145 (Mont.
2011). In Steadele your Court considered a third-party claim
for damages due to construction defects under a commercial
general liability insurance policy similar to the policy at issue
in the instant case. Id. at 147–48. The language of the
Steadele policy stating that notice was to be given to the
3
In its decision, the district court wrote: “[T]he Montana Supreme Court
found a five month delay between filing of claims in the underlying
litigation and eventual notice to the insurer was deficient and barred
coverage. While the Montana Supreme Court mentioned Colony
Insurance Company was prejudiced by this delay, they did not elect to
impose a requirement that an insurer be prejudiced by deficient notice.
Given the opportunity to declare a notice-prejudice rule in the context of
third-party commercial claims, the Montana Court declined to do so.” Atl.
Cas. Ins. Co. v. GTL, Inc., 915 F. Supp. 2d 1169, 1178–79 (D. Mont.
2013) (internal citations omitted) (discussing Steadele v. Colony Ins. Co.,
260 P.3d 145 (Mont. 2011)).
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 5 of 10
6 ATLANTIC CAS. INS. CO. V. GREYTAK
insured “as soon as practicable” is identical to the language
of the Policy issued to GTL by Atlantic in this case. Id. at
149. Addressing the notice requirement, your Court held that
“this Court [has] held that a notice requirement in an
insurance policy ‘is a condition precedent, and failure to
comply therewith will bar a recovery under the policy, unless
the condition is waived by the company.’” Id. at 150
(quoting LaBonte v. Mut. Fire & Lightning Ins. Co., 241 P.
631, 635 (Mont. 1925)). Your Court affirmed its past holding
that “failure of the [insureds] to submit notifications of
accident and proof of loss to [the insurer] as soon as
practicable, as required by the policy, barred any claims for
reimbursement . . . .” Steadele, 260 P.3d at 150 (quoting
Riefflin v. Hartford Steam Boiler Inspection & Ins. Co.,
521 P.2d 675, 678 (Mont. 1974)). Your Court further held
that the Steadeles’ claim “depends entirely on the existence
of insurance coverage . . . [t]he scope of an insurer’s duty to
defend its insured . . . is determined by the language of the
insurance policy . . . [i]f there is no coverage under the terms
of the policy based on the facts contained in the complaint,
there is no duty to defend.” Steadele, 260 P.3d at 150 (citing
Grimsrud v. Hagel, 119 P.3d 47, 53 (Mont. 2005)). Based on
Steadele, Atlantic argues that your Court specifically
addressed the contractual provision at issue and has not
imposed a notice-prejudice requirement.
Greytak argues in response that Montana law requires that
an insurer demonstrate prejudice from lack of notice to avoid
defense and indemnification of its insured. Greytak points to
the discussion of prejudice in Steadele:
In this case, because Colony did not receive
notice of the claim, Colony was prejudiced in
that it was deprived of the ability to
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 6 of 10
ATLANTIC CAS. INS. CO. V. GREYTAK 7
investigate, to locate witnesses, to appoint
counsel, to engage in discovery, to negotiate
a settlement, and to develop a trial strategy.
Finally, we observe that this is not a case
where the insured failed to notify its carrier by
a few days or where the failure to notify was
de minimis. Rather, here, MCHC failed to
notify Colony for months after having been
served with the Steadeles’ summons and
complaint.
Steadele, 260 P.3d at 151.
Greytak also relies on your Court’s discussion of Steadele
in Newman v. Scottsdale Insurance Co., 301 P.3d 348 (Mont.
2013):
In Steadele, we concluded that the district
court properly granted the insurer’s motion
for summary judgment based upon its
complete lack of notice of the pendency of
any claim against its insured, until more than
60 days after a default judgment in the
approximate amount of $1.88 million had
been entered in favor of Steadele and against
the insured. When Steadele attempted to
recover the judgment amount from Colony,
Colony argued that the lack of notice of the
claim severely prejudiced it. We observed that
because of the lack of notice, Colony was
completely deprived of the ability to
investigate, locate witnesses, appoint counsel
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 7 of 10
8 ATLANTIC CAS. INS. CO. V. GREYTAK
or negotiate a settlement and therefore
suffered prejudice.
There are notable distinctions between
Steadele and the case before us . . . [t]he most
significant distinction, however, is that in
Steadele, Colony Insurance asserted from the
inception that because the insured never
notified it of the litigation, it was deprived of
the ability to investigate and assess the
validity of the claim.
Newman, 301 P.3d at 360 (internal citations omitted).
In Newman your Court rejected the insurer’s argument
that it had been prejudiced, holding that the argument was
“belied by the fact that [the insurer] made a conscious
decision to deny coverage . . . [and] did not ever seek to retain
counsel, investigate the claim, or develop a trial or settlement
strategy. Thus, not only is the prejudice argument irrelevant
in the face of waiver, it is wholly unsupported in the record.”
Id. at 361.
Greytak argues that the holdings in Steadele and Newman
establish a requirement under Montana law that an insurer
demonstrate prejudice from lack of notice to avoid defense
and indemnification of its insured.
We have found no Montana court decisions that resolve
the question of whether an insurer must demonstrate
prejudice due to lack of timely notice to avoid defense and
indemnification of its insured pursuant to a claim by a third
party. A declaration by your Court on this question would
guide us in resolving the parties’ dispute. Your acceptance of
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 8 of 10
ATLANTIC CAS. INS. CO. V. GREYTAK 9
the request for certification of this question will also be of
great assistance in correctly applying Montana law.
IV
The clerk of this court shall forward a copy of this order,
under official seal, to the Montana Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court. The parties shall notify the clerk of this court
within 14 days of any decision by the Montana Supreme
Court to accept or decline certification. If the Montana
Supreme Court accepts certification, the parties shall then
notify the clerk of this court within 14 days of the issuance of
that Court’s opinion. Submission of the questions presented
in this appeal will be vacated by separate order pending the
Montana Supreme Court’s response to this request.
V
The following is a list of counsel appearing in this matter:
Counsel for Appellants John P. Greytak and Tanglewood
Investors Limited Partnership:
Quentin M. Rhoades
1821 South Avenue West, Third Floor,
Missoula, MT 59801
(406) 721-9700
[email protected]
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 9 of 10
10 ATLANTIC CAS. INS. CO. V. GREYTAK
Counsel for Appellee Atlantic Casualty Insurance Company:
Matthew Hutchison
22 Second Ave. West, Suite 4000, P.O. Box 728,
Kalispell, MT 59903-0728
(406) 755-5700
[email protected]
Valori E. Vidulich
22 Second Ave. West, Suite 4000, P.O. Box 728,
Kalispell, MT 59903-0728
(406) 755-5700
[email protected]
Respectfully submitted,
M. Margaret McKeown and Paul J. Watford, Circuit Judges,
and Barbara J. Rothstein, Senior District Judge.
Case: 13-35133, 06/25/2014, ID: 9144979, DktEntry: 35, Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_05-cv-03471/USCOURTS-azd-2_05-cv-03471-0/pdf.json | 442 | Civil Rights Employment | 42:2000e Job Discrimination (Employment) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
The Court will deny the request for oral argument because the parties have submitted
memoranda discussing the law and evidence and the Court concludes that oral argument will
not aid its decisional process. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d
1197, 1200 (9th Cir. 1999).
2
Defendant indicates that, despite the caption in Plaintiff’s complaint, its proper name
is “Circle K Stores, Inc.” Doc. #4 at 1.
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert N. Hovarth,
Plaintiff,
vs.
Circle K Corp.,
Defendant.
_________________________________
)
)
)
)
)
)
)
)
)
)
)
No. CV 05-3471-PHX-DGC
ORDER
Pending before the Court is Defendant’s motion for summary judgment. Doc. #4. For
the reasons set forth below, the Court will grant the motion.1
I. Background.
In December 2004, Defendant Circle K Corporation (“Circle K”)2
hired Plaintiff
Robert N. Hovarth as a customer service representative (“CSR”). Doc. #5. On February 19,
2005, Mr. Hovarth was involved in a workplace incident with another CSR, Angel Samora,
during which Plaintiff yelled vulgarities and pushed Mr. Samora twice. Docs. ##1, 4, 5
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 1 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 2 -
¶¶ 20-23. Mr. Boyce E. Brown, Jr., the manager of the store in which the incident occurred,
subsequently suspended and ultimately terminated Mr. Hovarth. Id.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Doc. #1. On August 3, 2005, the EEOC stated that it was unable
to conclude that the law was violated and issued a Notice of Right to Sue to Mr. Hovarth.
Id. On October 31, 2005, Mr. Hovarth filed a complaint against Circle K, alleging that he
was discriminated against on the basis of disability. Id. Mr. Hovarth specifically contends
that he was (1) harassed, (2) terminated, and (3) subjected to a hostile work environment in
violation of the Americans with Disabilities Act (“ADA”). Id.
In moving for summary judgment, Circle K argues that Mr. Hovarth has not created
a genuine issue of material fact for trial and that it is entitled to judgment as a matter of law.
Doc. #4.
II. Circle K’s Motion for Summary Judgment.
A. Summary Judgment Standard.
Summary judgment is appropriate if the evidence, viewed in the light most favorable
to the nonmoving party, “show[s] that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Only disputes over facts that might
affect the outcome of the suit . . . will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The disputed evidence must be
“such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
Summary judgment may be entered against a party who “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
B. Rules Governing Pro Se Litigation.
Pro se litigants “must be ensured meaningful access to the courts.” Rand v. Rowland,
154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999). When faced
with a motion to dismiss under Rule 12(b)(6), pro se litigants are entitled to notice of the
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 2 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3 -
complaint’s deficiencies and an opportunity to amend prior to dismissal of the action unless
it is absolutely clear that the deficiencies could not be cured by amendment. See Lucas v.
Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); Lopez v. Smith, 203 F.3d 1122, 1126 (9th
Cir. 2000).
In the context of a motion for summary judgment, “[d]istrict courts are obligated to
advise prisoner pro per litigants of Rule 56 requirements.” Klingele v. Eikenberry, 849 F.2d
409, 411-12 (9th Cir. 1988) (emphasis added). The Ninth Circuit has declined, however, to
extend this duty to all pro se litigants. See Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th
Cir. 1986) (noting, in response to this argument, that “pro se litigants in the ordinary civil
case should not be treated more favorably than parties with attorneys of record.”); Rand, 154
F.3d at 956 (observing that the court in Jacobsen “refused to apply the [fair notice
requirement] to pro se non-prisoners”); Moore v. Argenbright Sec., 2001 WL 687484, at *4
n.6 (D. Ariz. 2001) (“[A] court is not required to advise a non-prisoner pro se litigant of the
requirements of Fed.R.Civ.P. 56 before entering summary judgment”) (quoting Jacobsen,
790 F.2d at 1364-67).
The Court will therefore apply the general summary judgment standard to Defendant’s
motion, construing Plaintiff’s pleadings liberally in his favor. See Ghazali v. Moran, 46 F.3d
52, 54 (9th Cir. 1995), cert. denied, 516 U.S. 838 (1995); see also Semper v. JBC Legal
Group, 2005 WL 2172377, at *1 (W.D.Wash. 2005) (“Although the rule requires that the
allegations of a pro se complaint be liberally construed when determining whether a viable
claim has been asserted and that strict compliance with procedural/technical rules will not
be expected of pro se litigants, it does not alter the summary judgment standard or otherwise
give pro se non-prisoner litigants multiple opportunities to present their evidence.”).
C. The Americans with Disabilities Act.
The ADA “prohibits certain employers from discriminating against individuals on the
basis of their disabilities.” Sutton v. United Airlines, Inc., 527 U.S. 471, 475 (1999) (citing
42 U.S.C. § 12112(a)); see Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996).
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 3 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 3
Plaintiff filed a “Motion to Quash Defendant’s Motion for Summary Judgment”
(Doc. #6) which the Court treats as Plaintiff’s response to Defendant’s motion.
- 4 -
“Only a ‘qualified individual with a disability’ may state a claim for discrimination.”
Kennedy, 90 F.3d at 1480-81 (citations omitted).
“The ADA defines ‘qualified individual with a disability’ as an ‘individual with a
disability who, with or without reasonable accommodation, can perform the essential
functions of the employment position that the individual holds or desires.’” Id. at 1481
(citing 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m)). Ultimately, a “plaintiff bears the
burden of demonstrating that [he] can perform the essential functions of [his] job with or
without reasonable accommodation.” Id. (citing Lucero v. Hart, 915 F.2d 1367, 1371 (9th
Cir. 1990)).
A “disability” is defined as (1) a physical or mental impairment that substantially
limits one or more of the major life activities, (2) a record of having such an impairment,
or (3) being regarded as having such an impairment. See Sutton, 527 U.S. at 478 (citing
42 U.S.C. § 12102(2)); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197
(2002) (stating that “substantially” and “major” are terms that “need to be interpreted strictly
to create a demanding standard for qualifying as disabled”).
D. Analysis.
Construing Plaintiff’s pleadings liberally, the Court finds that Mr. Hovarth has not
created a triable issue of fact as to whether he is a qualified individual with a disability.3
1. Diagnosis of Severe Hyperactivity and Dyslexia.
Mr. Hovarth states that he was “diagnosed with severe hyperactivity and dyslexia” at
the age of eight. Doc. #6 at 1. The mere diagnosis of an impairment or condition does not,
however, indicate that Mr. Hovarth is disabled within the meaning of the ADA. See Wong
v. Regents of Univ. of Cal., 410 F.3d 1052, 1061 (9th Cir. 2005) (“It is plain that having an
impairment does not necessarily mean that a person is ‘disabled’ for purposes of the Acts.”)
(citing Toyota Motor Mfg., Ky., Inc., 534 U.S. at 195). The Ninth Circuit has squarely
rejected the suggestion that every individual with an impairment is disabled per se. See
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 4 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 5 -
Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir.2003) (“We do not decide whether every
diabetic is disabled, and we do not decide whether every severely obese person is not
disabled. Instead, whether a person is disabled under the ADA is an individualized inquiry.”)
(internal quotation marks omitted). Furthermore, a diagnosis of severe hyperactivity and
dyslexia at the age of eight does not demonstrate that Plaintiff is “presently” disabled,
notwithstanding Plaintiff’s unsupported contention that his “condition will last throughout
[his] entire life.” Doc. #6 at 1; see Sutton, 527 U.S. at 482 (“Because the phrase
‘substantially limits’ appears in the ADA in the present indicative verb form, we think the
language is properly read as requiring that a person be presently – not potentially or
hypothetically – substantially limited in order to demonstrate a disability.”).
2. Special Education.
Similarly, Plaintiff’s evidence that he was “placed in self-contained special education
classes throughout elementary school” (Doc. #6 at 1, Ex. A) is insufficient to create a
genuine issue of material fact as to whether he is presently disabled. See Sutton, 527 U.S.
at 481 (“The phrase ‘substantially limits one or more major life activities’ . . . requires that
the substantial limitations actually and presently exist.”). And even if Mr. Hovarth’s
evidence of receiving special education is viewed as proof that he has a record of
impairment, he has presented no evidence that the impairment substantially limits a major
life activity. See Coons v. Sec’y of U.S. Dept. of Treasury, 383 F.3d 879, 886 (9th Cir. 2004)
(“[T]he record must be of an impairment that substantially limits a major life activity.”)
(quoting Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir. 2003)).
3. Treatment and Medication.
Mr. Hovarth presents evidence that he is a patient at the Marc Center, where he is
apparently “being treated with medication for” Attention Deficit Hyperactivity Disorder and
a mood disorder. Doc. #6, Ex. B at 1. But the fact that an individual is receiving treatment
or medication for a condition is not by itself evidence that the individual is disabled as
defined by the ADA. Cf. Sutton, 527 U.S. at 488 (noting that petitioners, severely myopic
twin sisters, conceded that they “do not argue that the use of corrective lenses in itself
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 5 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 6 -
demonstrates a substantially limiting impairment”). “A person whose physical or mental
impairment is corrected by medication or other measures does not have an impairment that
presently ‘substantially limits’ a major life activity.” Id. at 482-83. Mr. Hovarth presents
evidence that he is receiving medication for two impairments, but offers no description of his
condition. He has not presented evidence from which a reasonable jury could conclude that
he is substantially limited in a major life activity.
4. Comments to and by Plaintiff’s Co-Workers.
With respect to whether Mr. Hovarth was perceived as having a disability, Mr.
Hovarth contends that he “explained” his disability to Mr. Brown when he was being
considered for employment. Doc. #6 at 2. This statement, unsupported by evidence, is
insufficient to create an issue of fact for trial. See Fed. R. Civ. P. 56(e) (a party opposing
summary judgment “may not rest upon the mere allegations or denials of [the party’s]
pleadings, but . . . must set forth specific facts showing that there is a genuine issue for
trial.”); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). Mr. Brown’s declaration that Mr. Hovarth never told him that he had a disability,
that he “never believed Mr. Hovarth had a disability,” and that “Mr. Hovarth never asked”
for an accommodation, thus stands uncontroverted. Doc. #5, Ex. A at 2. Mr. Hovarth also
does not dispute that he failed to identify himself as an individual with a disability requiring
a reasonable accommodation on Defendant’s Post Offer Enrollment Form, which further
undercuts any argument that Plaintiff is or was considered to be disabled. See id., Ex. B.
Mr. Hovarth contends that Mr. Samora told Plaintiff that he “probably couldn’t read”
the instructions for the pricing gun and that he was “‘stupid’ or something to that effect.”
Doc. #6 at 2; Doc. #5, Ex. A at 2. Plaintiff offers no evidence that Mr. Samora actually
uttered the first remark, and neither comment rises to the level of Mr. Hovarth being regarded
as having a disability. In Roberts v. Dimension Aviation, this Court held that a co-worker’s
“insults” that the plaintiff was “stupid, retarded and a fag” were “insufficient to establish that
Plaintiff was regarded as disabled.” 319 F.Supp.2d 985, 990 (D.Ariz. 2004). Mr. Samora’s
comments, if true, appear to be simple if unsavory insults rather than expressions of belief
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 6 of 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
While the Court concludes that Plaintiff cannot survive summary judgment, Plaintiff
has been afforded a meaningful opportunity to present his case and challenge Defendant’s
employment actions under applicable Ninth Circuit precedent governing pro se litigation.
Plaintiff’s presentation of evidence, albeit insufficient, shows that Plaintiff understood the
need to present evidence in response to Defendant’s motion. Moreover, Defendant’s motion
for summary judgment was explicitly filed pursuant to Rule 56 and placed Plaintiff on notice
that he would have to comply with the summary judgment obligations of that rule. See
Jacobsen, 790 F.2d. at 1366-67.
- 7 -
that Mr. Hovarth was substantially limited in a major life activity. Moreover, Mr. Samora
has declared that Mr. Hovarth never told him that he had a disability and that he “never
believed Mr. Hovarth had a disability.” Doc. #5, Ex. F at 2.
Mr. Hovarth has failed to present sufficient evidence for a reasonable jury to find in
his favor.4
Accordingly, the Court will not address Mr. Hovarth’s claims that he was
discriminated against on the basis of his disability.
IT IS ORDERED:
1. Defendant’s motion for summary judgment (Doc. #4) is granted.
2. The clerk shall terminate this action.
DATED this 19th day of June, 2006.
Case 2:05-cv-03471-DGC Document 9 Filed 06/20/06 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_04-cv-01194/USCOURTS-azd-2_04-cv-01194-2/pdf.json | 840 | Trademark | 15:1051 Trademark Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Best Western International, Inc.,
Plaintiff,
vs.
1496815 Ontario, Inc. et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. CV 04-1194-PHX-SMM
ORDER
Pending before the Court is Plaintiff Best Western International Inc.'s Motion to Set
a Final Pretrial Conference (Doc. 43). On or about June 16, 2006, Defendants filed a Motion
to Dismiss this case, alleging a lack of jurisdiction. Following extensive briefing, on March
13, 2007, the Court denied Defendants' Motion to Dismiss. Accordingly, the Court
concludes that it is now appropriate to set a status conference to resolve any outstanding
discovery issues that may be pending in the case and establish any remaining pretrial
deadlines.
IT IS HEREBY ORDERED that the status conference in this case is scheduled for
Tuesday, July 10, 2007 at 4:00 p.m. before the Honorable Stephen M. McNamee in
Courtroom 605, on the sixth floor of the Sandra Day O'Connor United States Courthouse,
401 W. Washington Street, Phoenix, Arizona.
DATED this 3rd day of April, 2007.
Case 2:04-cv-01194-SMM Document 44 Filed 04/04/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_04-cv-04947/USCOURTS-cand-4_04-cv-04947-4/pdf.json | 440 | Other Civil Rights | 42:1983 Civil Rights Act | United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SETTLEMENT CONFERENCE NOTICE 1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
WALTER GEORGE DICKSON,
Plaintiff,
v.
JEFFREY TAYLOR, et al.,
Defendants.
________________________________/
No. C 04-4947 PJH (JL)
NOTICE OF SETTLEMENT
CONFERENCE AND SETTLEMENT
CONFERENCE ORDER
TO ALL PARTIES AND COUNSEL OF RECORD:
PLEASE TAKE NOTICE that this case has been referred for a Settlement
Conference before Magistrate Judge James Larson. The Settlement Conference shall take
place on Wednesday, August 2, 2006 at 2:00 p.m., in Judge Larson’s chambers, located
at the Federal Building, 450 Golden Gate Avenue, 15th Floor, San Francisco, California
94102. If the court-ordered date presents problems for parties or counsel, counsel is
to contact Judge Larson’s chambers directly at (415) 522-2112.
Counsel who will try the case or other counsel responsible for the litigation shall
appear at the Settlement Conference with the parties. Any party who is not a natural
person shall be represented by an individual not directly involved in the events which give
rise to the litigation but with full authority to negotiate a settlement. If a party is a
governmental entity, its governing body shall designate one of its members or a senior
Case 4:04-cv-04947-PJH Document 35 Filed 06/01/06 Page 1 of 3
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SETTLEMENT CONFERENCE NOTICE 2
executive to appear at the Settlement Conference and, if a proposed settlement agreement
is reached, to recommend the agreement to the governmental entity for its approval. An
insured party shall appear with a representative of the carrier with full authority to negotiate
up to the limits of coverage.
Personal attendance will rarely be excused by the Court, and only for substantial
hardship. A written application to be available by telephone rather than in person shall be
served on opposing counsel and lodged with the judge, along with the Settlement
Conference Statement.
Only upon written showing of good cause, submitted at least seven calendar days
prior to the settlement conference, will the Court excuse a party or Counsel from mandatory
attendance of the settlement conference. Parties or Counsel may be excused from
attending the settlement conference only upon written authorization from Judge Larson.
Parties or counsel who fail to attend the settlement conference, and where absence
is not authorized by Judge Larson, will be subject to sanctions, pursuant to Federal Rule of
Civil Procedure 16(f).
At least seven (7) calendar days before the Settlement conference the parties
shall deliver directly to the magistrate judge two copies of a Confidential Settlement
Conference Statement which should be lodged with chambers and should not be
filed with the Clerk of the Court or served upon other parties.
The Confidential Settlement Conference Statement shall be as brief as possible and
should rarely exceed 10 pages. It shall include the following:
1. A statement of the facts of the case.
2. A statement of the claims and defenses including, but not limited to, statutory
or other grounds upon which the claims are founded, a forthright evaluation of the parties’
likelihood of prevailing on the claims and defenses and a description of the major issues in
dispute.
3. A summary of the proceedings to date.
Case 4:04-cv-04947-PJH Document 35 Filed 06/01/06 Page 2 of 3
United States District Court
For the Northern District of California
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SETTLEMENT CONFERENCE NOTICE 3
4. An estimate of the cost and time to be expended for further discovery, pretrial
and trial.
5. The relief sought.
6. The party’s position on settlement, including a history of past settlement
discussions as well as present demands and offers.
7. If there have been no prior discussions, plaintiff must serve a demand letter
outlining its theories for recovery, supporting facts and damages in writing before the
conference, and defendant must respond in writing before the conference.
If the case involves any claims for injunctive relief, the parties must meet and confer
before the scheduled Settlement Conference in order to resolve as many issues as
possible. Results of the meet and confer must be included in the Settlement Conference
Statement. Failure to comply with these pre-conditions will result in forfeiture of the
Settlement Conference date.
Any request to continue the settlement conference shall be submitted in
writing after consultation with the opposing party. Submission by facsimile is
acceptable at facsimile number (415) 522-2140.
The parties shall notify Magistrate Judge Larson’s chambers immediately if this case
settles prior to the date set for settlement conference.
DATED: June 1, 2006
__________________________________ JAMES LARSON
Chief Magistrate Judge
Case 4:04-cv-04947-PJH Document 35 Filed 06/01/06 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_12-cv-05983/USCOURTS-cand-3_12-cv-05983-20/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RAYMOND J. MANZANILLO,
Plaintiff,
v.
GREGORY D. LEWIS, et al.,
Defendants.
Case No. 12-cv-05983-JST
ORDER DENYING WITHOUT
PREJUDICE STIPULATED REQUEST
TO EXTEND DISCOVERY DEADLINES
Re: ECF No. 196
The Court denies without prejudice the parties’ stipulated request to extend discovery
deadlines. ECF No. 196. Ordinarily, the Court does not enlarge discovery deadlines on a
completely open-ended basis. The Court would, however, consider a renewed stipulation to
extend the discovery deadlines discussed in ECF No. 196 to a specific date after the current
August 5, 2016 deadline.
IT IS SO ORDERED.
Dated: July 27, 2016
______________________________________
JON S. TIGAR
United States District Judge
Case 3:12-cv-05983-JST Document 197 Filed 07/27/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-04594/USCOURTS-cand-3_09-cv-04594-0/pdf.json | 442 | Civil Rights Employment | 42:12101 Americans w/ Disabilities Act (ADA) | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION AND REQUEST FOR CONTINUANCE OF CASE MANAGEMENT DATES; ORDER Page 1
WILLIAM R. TAMAYO -- #084965 (CA)
JONATHAN T. PECK -- #12303 (VA)
DAVID F. OFFEN-BROWN – #63321 (CA)
CINDY O'HARA -- #114555 (CA)
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
San Francisco District Office
350 The Embarcadero, Suite 500
San Francisco, California 94105-1260
Telephone: (415) 625-5653
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
THE PEPSI BOTTLING GROUP, INC.,
Defendant.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 09-04594 MHP
STIPULATION AND REQUEST FOR
CONTINUANCE OF CASE
MANAGEMENT DATES;
[proposed] ORDER
The parties to this matter, by and through their counsel of record, hereby stipulate and
request that, due to scheduling conflicts with the dates set in the Clerk’s Notice scheduling the
Case Management Conference in this matter, the date for the Case Management Conference be
moved from Monday, March 15, 2010, at 4:00 p.m., to Monday, April 5, 2010, at 4:00 p.m. The
filing date for the Joint Case Management Conference Statement, due ten days before the Case
Management Conference, would likewise be moved from March 5, 2010, to March 26, 2010.
It is so stipulated.
E-filing certification: I, Cindy O’Hara, certify that I have obtained the concurrence of James H.
Berry, Jr. counsel for Defendant, for the filing of this Stipulation and Request for Continuance of
Case Management Dates; and [proposed]] Order.
Case 3:09-cv-04594-EMC Document 14 Filed 03/02/10 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATION AND REQUEST FOR CONTINUANCE OF CASE MANAGEMENT DATES; ORDER Page 2
Dated: February 26, 2010
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
/S/ Cindy O’Hara
For Plaintiff EEOC
Dated: February 26, 2010
BERRY & LUSSIER
/S/ James H. Berry, Jr.
For Defendant The Pepsi Bottling Group,
Inc.
ORDER
IT IS SO ORDERED. The new schedule is as follows:
The Case Management Conference is rescheduled from Monday, March 15, 2010, at 4:00 p.m., to
Monday, April 5, 2010, at 4:00 p.m. The Joint Case Management Conference Statement is due
no later than ten days before the Case Management Conference, that is no later than March 26,
2010.
Dated:_________________________ ___________________________________
U.S. District Court Judge
3/2/2010
U
NITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge Marilyn H. Patel
Case 3:09-cv-04594-EMC Document 14 Filed 03/02/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_02-cv-00850/USCOURTS-caed-2_02-cv-00850-5/pdf.json | 440 | Other Civil Rights | 42:1983 Civil Rights Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1 The court notes that in plaintiffs’ supplemental
briefing, the caption includes numerous defendants who are no
longer in this litigation due to voluntary dismissals by
plaintiffs or due to the court’s prior rulings. The court also
notes the this caption does not include defendant Zambrana. The
(continued...)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
MARK J. HANSEN, MONICA S.
HANSEN, BERNIE L. HANSEN,
KELLY A. HANSEN, CARL J.
BARTALDO, DONALD R. LANCASTER,
CONSTANCE A. LANCASTER, SHASTA
GENERAL ENGINEERING, INC., a
California Corporation,
NO. CIV. S-02-0850 FCD GGH
Plaintiffs,
v. MEMORANDUM AND ORDER
ARTHUR SCHUBERT, GREG A.
ZIEGLER, VINCENT ZAMBRANA,
STEPHANIE McCALL, CRAIG
BURSON,
Defendants.
----oo0oo----
This matter is before the court on the parties’ supplemental
briefing on defendants’1 motion for summary judgment pursuant to
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 1 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1(...continued)
remaining defendants in this case are Arthur Schubert, Greg A.
Ziegler, Vincent Zambrana, Stephanie McCall, and Craig Burson.
The court will consider plaintiffs’ due process claim against
these defendants only.
2 Any further references to a “Rule” or “Rules” are to
the Federal Rules of Civil Procedure unless otherwise indicated.
3 The court’s attention was first directed to its
oversight in the joint pretrial statement, filed January 11,
2007. (Docket # 110).
4 Because oral argument will not be of material
assistance, the court orders this matter submitted on the briefs.
See E.D. Cal. L.R. 78-230(h).
5 The facts of this case are set out in the memorandum
and order addressing defendants’ original motion for summary
judgment, and are thus not repeated herein. (See Docket # 102).
2
Federal Rule of Civil Procedure 562 on plaintiffs’ due process
claim. Due to the minimal attention directed to this issue in
the original motion and opposition and the resulting oversight of
the due process claim in the September 28, 2006 Memorandum and
Order, (Docket # 102), at the status conference held January 19,
2007, the court asked the parties to submit supplemental briefing
on this claim, not to exceed 10 pages.3 For the reasons set
forth below,4 defendants’ motion for summary judgment on
plaintiffs’ due process claim is GRANTED.5
STANDARD
Summary judgment is appropriate when it is demonstrated that
there exists no genuine issue as to any material fact, and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970).
Under summary judgment practice, the moving party
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 2 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
always bears the initial responsibility of informing
the district court of the basis of its motion, and
identifying those portions of "the pleadings,
depositions, answers to interrogatories, and admissions
on file together with the affidavits, if any," which it
believes demonstrate the absence of a genuine issue of
material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, a summary judgment motion may properly be made
in reliance solely on the ‘pleadings, depositions, answers to
interrogatories, and admissions on file.’” Id. at 324. Indeed,
summary judgment should be entered against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial. Id. at 322.
If the moving party meets its initial responsibility, the
burden then shifts to the opposing party to establish that a
genuine issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968). In attempting to establish the existence of
this factual dispute, the opposing party may not rely upon the
denials of its pleadings, but is required to tender evidence of
specific facts in the form of affidavits, and/or admissible
discovery material, in support of its contention that the dispute
exists. Fed. R. Civ. P. 56(e). The opposing party must
demonstrate that the fact in contention is material, i.e., a fact
that might affect the outcome of the suit under the governing
law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986),
and that the dispute is genuine, i.e., the evidence is such that
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 3 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
a reasonable jury could return a verdict for the nonmoving party,
Id. at 251-52.
In the endeavor to establish the existence of a factual
dispute, the opposing party need not establish a material issue
of fact conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.”
First Nat’l Bank, 391 U.S. at 289. Thus, the “purpose of summary
judgment is to ‘pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’”
Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory
committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any. Rule
56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.
1982). The evidence of the opposing party is to be believed, and
all reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing party.
Anderson, 477 U.S. at 255. Nevertheless, inferences are not
drawn out of the air, and it is the opposing party’s obligation
to produce a factual predicate from which the inference may be
drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,
1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
I. Evidence
In support of the supplemental brief regarding their due
process claim, plaintiffs submitted additional evidence that had
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 4 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6 The parties were instructed that the briefing was not
to exceed ten pages; plaintiffs failed to comply with the page
limit requirement set by the court.
7 While the allegations of the complaint allege
constitutional violations by defendant government entities, none
of which remain viable defendants in this action, the court will
broadly interpret the complaint to allege a claim against the
individual defendants as well.
5
not been previously submitted in opposition to defendants’ motion
for summary judgment. At the status conference, the court
ordered the parties to file supplemental briefing.6 The court’s
order did not permit the parties to bring a new motion or new
evidence before the court. The parties had an opportunity to
present all of their evidence in support of their positions in
the briefing and submissions on defendants’ motion for summary
judgment. The court’s direction for supplemental briefing was
not an invitation for plaintiffs to take a second bite at the
apple in bringing new evidence to the court’s attention that
could have and should have been brought in the original briefing
and submissions. As such, the court will not consider any new
evidence filed in support of the supplemental briefing.
II. 42 U.S.C. § 1983
Plaintiffs brings a claim under 42 U.S.C. § 1983, alleging
that defendants violated their due process rights by their
unreasonable delay in returning property seized pursuant to a
search warrant. The basis for plaintiffs’ due process claim is
set forth in the following allegations in the Second Amended
Complaint:
Defendant government entities7 refused to return many
of the items seized during the raids for an excessive
amount of time after the seizure, depriving the
plaintiffs of the ability to resume and effectively
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 5 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
operate their business. Despite the fact that
defendant Schubert personally assured plaintiffs that
computers they used on a daily basis in their business
would be returned the week following the seizure, the
computers were in fact not returned for 1.5 months.
Other items were not returned until over a year after
the raid.
. . .
Plaintiffs have suffered loss to their business due to
the continued seizure of their original financial
documents.
Defendants informed plaintiffs of the existence of a
sealed affidavit in support of the search warrant.
Plaintiffs have moved to unseal the affidavit, to quash
the search warrant and to have the seized property
returned. Their motions have recently been granted and
some of the seized property returned.
. . .
At the time the search warrant was executed, defendant
Schubert told plaintiffs that their computer files,
upon which they were dependent in order to continue
running their business, would be returned to them
within approximately one week. Defendant Schubert’s
failure to keep this promise, and his deliberate
refusal to return items seized within a reasonable
period of time, resulted in the destruction of
plaintiffs’ business without due process of law.
(Pls.’ 2d Am. Compl. ¶¶ 22-24, 29).
The Fourteenth Amendment to the United States Constitution
provides that no state shall “deprive any person of . . .
property, without due process of law.” The Due Process Clause
confers both procedural and substantive rights. Armendariz v.
Penman, 75 F.3d 1311, 1318 (9th Cir. 1996) (citations omitted).
However, plaintiffs do not specify in their Second Amended
Complaint, nor clarify in their briefing, whether they are
asserting a procedural or substantive due process claim. As
such, the court will address plaintiffs’ potential claim under
both theories.
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 6 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
A. Procedural Due Process
“The Fourteenth Amendment places procedural constraints on
the actions of government that work a deprivation of interests
enjoying the status of ‘property’ within the meaning of the Due
Process Clause.” Memphis Light, Gas, and Water Div. v. Craft,
436 U.S. 1, 9 (1978). It is fundamental to the notion of
procedural due process that “[p]arties whose rights are to be
affected are entitled to be heard” and that this right to notice
and an opportunity to be heard “must be granted at a meaningful
time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S.
67, 79 (1972). Although plaintiffs concede that most of their
property was eventually returned, “even a temporary, nonfinal
deprivation of property is nonetheless a ‘deprivation’ in the
terms of the Fourteenth Amendment.” Perkins v. City of West
Covina, 113 F.3d 1004, 1010 (9th Cir. 1997), reversed on other
grounds by 525 U.S. 234 (1999), reaffirmed by 167 F.3d 1286
(1999).
“Procedural due process generally requires a hearing prior
to deprivation.” Id. (citing Fuentes, 407 U.S. at 90-91).
However, “a limited number of ‘extraordinary situations’ justify
postponing notice and the opportunity for a hearing until after
the seizure of property,” such as those circumstances where the
seizure is “necessary to an important public interest, present[s]
a special need for prompt action, and utilizes legitimate force
which the government strictly controls.” Id. (citing Fuentes,
407 U.S. at 90-91). Specifically, there is no requirement of a
pre-deprivation hearing before the seizure of possessions under a
search warrant. Id.; see Fuentes v. Shevin, 407 U.S. at 93 n.30.
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 7 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8 “Case law clearly establishes that both during and
after the pendency of a criminal action, section 1536 empowers
the court to entertain a summary proceeding by ‘nonstatutory’
motion, for the release of property seized under a search
warrant.” People v. Icenogle, 164 Cal. App. 3d 620, 623 (1985)
(citing People v. Superior Court, 28 Cal. App. 3d 600, 609
(1972); Buker v. Superior Court, 25 Cal. App. 3d 1085, 1089
(1972)).
9 Section 1540 of the California Penal Code provides:
If it appears that the property taken is not the same
as that described in the warrant or that there is no
probably cause for believing the existence of the
grounds on which the warrant was issued, the magistrate
must cause it to be restored to the person from whom it
was taken.
8
Defendants argue that plaintiffs’ procedural due process
claim must fail because California law affords adequate postdeprivation process. In Perkins v. City of West Covina, the
plaintiffs asserted a claim against the city under § 1983 for an
alleged violation of their procedural due process rights on the
basis that the city failed to provide a reasonable procedure for
the recovery of property seized pursuant to a search warrant.
Id. The plaintiffs had remedies available to them, such as a
“nonstatutory” motion for the release of property seized under a
search warrant8 or a remedy pursuant to § 15409 of the California
Penal Code. The California Supreme Court had previously found
that “[t]hese various remedies satisfy the requirements of due
process.” Aday v. Superior Court, 55 Cal. 2d 789, 800 (1961)
(discussing §§ 1539-1540 as remedies to secure the return of
property seized pursuant to a warrant). Accordingly, the Ninth
Circuit held that plaintiffs had adequate post-deprivation
remedies for the return of their property. Perkins, 113 F.3d at
1011. However, the court held that plaintiffs should prevail on
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 8 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10 Defendants also assert that California provides other
common law remedies for persons who have been deprived of their
property such as fraud, negligence, theft, conversion, and
imposition of a constructive trust.
9
their procedural due process claim because they were not given
explicit notice of the remedies available to them. Id. at 1011-
14. On the city’s appeal to the Supreme Court, the Court noted
that the Ninth Circuit had found that “the postdeprivation
remedies for return of property established by California statute
and case law satisfied the requirements of due process.” City of
West Covina v. Perkins, 525 U.S. 234, 239 (1999). However, the
Court reversed the Ninth Circuit’s holding that individualized
notice of these remedies was required. Id. at 241. On remand,
the Ninth Circuit affirmed the district court’s grant of summary
judgment on the plaintiffs’ procedural due process claim and
reinstated its prior opinion in all other aspects, including its
holding that post-deprivation remedies provided adequate due
process for the return of property seized pursuant to a search
warrant. Perkins v. City of West Covina, 167 F.3d 1286 (1999).
In this case, defendants contend that in addition to § 1540,
§ 1538.5 of the California Penal Code provides an adequate postdeprivation remedy for the return of property.10 Section 1538.5
provides that “[a] defendant may move for the return of property
. . . obtained as a result of a search or seizure” on the grounds
that “[t]he search or seizure with a warrant was unreasonable.”
Plaintiffs thus had available to them post-deprivation procedures
for the return of their property. Both the California Supreme
Court and the Ninth Circuit have found that these procedures
satisfy the requirements of due process. Perkins, 113 F.3d at
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 9 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
1011. Therefore, the court finds that plaintiffs have not stated
a viable claim for violation of their procedural due process
rights. As such, defendants’ motion for summary judgment
regarding plaintiffs’ procedural due process claim is GRANTED.
B. Substantive Due Process
The Fourteenth Amendment also confers substantive due
process rights. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992);
United States v. Salerno, 481 U.S. 739, 746 (1987); Daniels v.
Williams, 474 U.S. 327, 331 (1986).
However, the use of substantive due process to extend
constitutional protection to economic and property
rights has been largely discredited. See generally
Gerald Gunther, Constitutional Law at 432-65. Rather,
recent jurisprudence restricts the reach of the
protections of substantive due process primarily to the
liberties “deeply rooted in this Nation’s history and
tradition.” Moore v. East Cleveland, 431 U.S. 494, 503
(1977).
Armendariz, 75 F.3d at 1318-19. Further, “[w]here a particular
Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular source 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, 520 U.S. 266, 273 (quoting Graham v. Connor,
490 U.S. 386, 395 (1989)).
Plaintiffs’ § 1983 due process claim arises out of the
allegation that defendants’ deliberate refusal to return the
seized items within a reasonable period of time resulted in the
destruction of plaintiffs’ business without due process of law.
(Pls.’ 2d. Am. Compl. ¶ 29). The unreasonable retention of
seized property is the type of government conduct for which the
Fourth Amendment provides explicit limitations. See United
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 10 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11 In Armendariz, the Ninth Circuit held that the
plaintiff’ substantive due process claim was precluded because it
was regulated by the Fourth and Fifth Amendments. In a footnote,
the court noted that permitting the plaintiffs leave to amend
would not appear to prejudice the defendants. However, in this
case, because a scheduling order is in place, leave to amend not
only implicates Rule 15 and the inquiry regarding prejudice to
defendants; rather, a modification to the pretrial scheduling
order allowing plaintiffs leave to amend must first be analyzed
under Rule 16's diligence inquiry. Plaintiffs alleged in their
complaint, filed September 16, 2002, and argued during the course
of this protracted litigation that defendants’ unreasonable
retention of property violated their substantive due process
rights, not their Fourth Amendment rights. Since the inception
of this litigation, plaintiffs were on notice that under Graham
and its progeny, their substantive due process claim was
precluded. While plaintiffs have not briefed this issue, in
(continued...)
11
States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982) (holding that
the “Government’s unnecessary delay in returning the master
volumes appears to be unreasonable and therefore unconstitutional
manner of executing the warrant”); see also Fuller v. Vines, 36
F.3d 65, 68 (9th Cir. 1994), reversed on other grounds by 117
F.3d 1425 (1997) (“A seizure of property occurs, within the
meaning of the Fourth Amendment, when there is some meaningful
interference with an individual’s possessory interests in that
property.”) (internal quotations omitted). The Supreme Court has
affirmatively held that where the Fourth Amendment is the source
of limitations on the type of conduct challenged by a plaintiff’s
claims, that Amendment, rather than the more general substantive
due process protections guaranteed by the Fourteenth Amendment,
must govern the plaintiff’s claim. Albright, 520 U.S. at 273;
Graham, 490 U.S. at 395; see Armendariz, 75 F.3d at 1321. As
such, because the conduct plaintiffs allege is the type of
government action that the Fourth Amendment regulates, their
substantive due process claim is precluded.11 Therefore,
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 11 of 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11(...continued)
light of the circumstances of this litigation, it would be
extremely difficult for the court to find that plaintiffs had
been diligent in seeking to amend their complaint. As the court
has previously noted in this case, the court’s acknowledgment of
counsel’s failure to bring a claim does not constitute the
requisite diligence to modify the Pretrial Scheduling Order under
Rule 16. (See Mem. & Order, Docket #109, filed Nov. 20, 2006, at
10).
12 Because defendants’ motion for summary judgment
regarding plaintiffs’ due process claim is granted, the court
does not address the issue of damages. In both the original and
supplemental briefing, the parties addressed the issue of
damages, and the potential limitation thereof, arising out of
plaintiffs’ due process claim. In the last paragraphs of their
supplemental reply, defendants raise issues relating to damages
arising out of plaintiffs’ First Amendment claim. This issue has
not been adequately raised or briefed in defendants’ motion for
summary judgment and plaintiffs have not been given adequate
opportunity to respond. However, the court would entertain such
argument if brought as a properly noticed motion in limine prior
to trial in this matter.
12
defendants’ motion for summary judgment regarding plaintiffs’
substantive due process claim is GRANTED.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary
judgment regarding plaintiffs’ due process claim is GRANTED.12
IT IS SO ORDERED.
DATED: April 2, 2007
Case 2:02-cv-00850-FCD-GGH Document 116 Filed 04/02/07 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_07-cv-01929/USCOURTS-cand-3_07-cv-01929-1/pdf.json | 820 | Copyright | 17:101 Copyright Infringement | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ARTHUR COURT DESIGNS,
Plaintiff,
v.
NALEKA PEWTERWARE, et al.
Defendants.
_____________________________/
No. C 07-01929 CRB
ORDER DENYING DEFENDANT
NALEKA PEWTERWARE'S
REQUEST TO HAVE SECOND
INSUROR REPRESENTATIVE
APPEAR AT ADR EVENT BY
TELEPHONE
The Court has received and reviewed the written submissions from the parties
regarding Defendant's request for a representative from one of its insurors to appear at an
upcoming ADR event by telephone. Because Defendant's insurance representative's
"unforeseen, unavoidable conflict" (see Defendant's Letter to Judge Wayne D. Brazil, dated
November 7, 2007), has not been explained at all, Defendant's request is DENIED. An
unidentified "conflict" cannot be deemed "an extraordinary or otherwise unjustifiable
hardship." ADR L.R. 6-9(d).
IT IS SO ORDERED.
Dated: _______________________ _______________________________
WAYNE D. BRAZIL
United States Magistrate Judge
Case 3:07-cv-01929-CRB Document 22 Filed 11/20/07 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_08-cv-01643/USCOURTS-caed-1_08-cv-01643-6/pdf.json | 870 | Tax Suits | 26:7403 Suit to Enforce Federal Tax Lien | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOWELL D. WELDON, et al.,
Defendants.
/
CASE NO. 1:08-cv-01643-LJO-SMS
ORDER FOR DEFAULT JUDGMENT,
FORECLOSURE AND JUDICIAL SALE
(Docs. 39, 48)
Upon motion of Plaintiff the United States of America (“United States”), and for good
cause shown, it is hereby ORDERED, pursuant to F.R.Civ. P. 55(b), that the United States
Motion for Default Judgment is hereby GRANTED. It is further ORDERED, pursuant to the
provisions of 28 U.S.C. §§ 2001 and 2002, and 26 U.S.C. §§ 7402 and 7403, that the following
Order of Foreclosure and Judicial Sale should be, and hereby is, entered:
1. Defendant Lowell D. Weldon is indebted to the United States for unpaid assessment
balances of federal taxes for tax years 1997 through 2003, plus interest and statutory
additions accruing after the dates of assessment pursuant to 26 U.S.C. §§ 6601, 6621, and
6622, and 28 U.S.C. § 1961(c) until paid. The Court hereby orders the Clerk of Court to
enter judgment against Defendant Lowell D. Weldon for his federal tax liabilities for all
tax years from 1997 through 2003 in the amount of $105,990.57, plus interest and other
statutory additions, as provided by law, that accrue after October 15, 2009, and until all
liabilities are paid in full.
///
1
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 1 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. The Subject Property upon which foreclosure is sought include 5915 West Clinton
Avenue, Fresno, CA 93722 (“Clinton property”); 2490 South Holloway Avenue, Fresno,
CA 93725 (“Holloway property”); and 210 Oxford Avenue, Clovis, CA 93612 (“Oxford
property”).
The Clinton property is more particularly described as follows:
The east half of the north half of the west 303.50 feet of Lot 4,
Vista Bonita Tract, according to the map thereof, recorded
November 17, 1914, in Book 7, Page 52 of Plats, in the Office of
the County Recorder of Fresno County.
The Oxford property is more particularly described as follows:
Lot 1 of Forest Park, in the City of Clovis, County of Fresno, State
of California, according to the map thereof recorded in Book 13,
page 61 of Plats, in the office of the County Recorder of said
County.
The Holloway property is more particularly described as follows:
Lot 83 of Sequoia Village, Tract #1133, recorded in Plat book 14
page 91.
3. A duly authorized delegate of the Secretary of the Treasury has made the following
assessments against Defendant Lowell D. Weldon:
Tax Year Balance Due as of October 15, 2009
1997 $7,499.48
1998 $15,005.02
1999 $10,766.15
2000 $19,649.39
2001 $20,247.36
2002 $17,341.09
2003 $15,482.08
Total $105,990.57
4. The United States has valid and subsisting tax liens on all property and rights to property
of Defendant Lowell D. Weldon, including the Subject Property, arising from the abovedescribed assessments which tax liens were effective as of the dates of those assessments.
2
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 2 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5. 26 U.S.C. § 7403 entitles the United States to enforce its liens against the Subject
Property in order to apply the proceeds towards the tax liabilities of Defendant Lowell D.
Weldon.
6. The United States liens against the Subject Property are hereby foreclosed.
7. The United States Marshal, his or her representative, or an Internal Revenue Service
Property Appraisal and Liquidation Specialist (“PALS”) is authorized and directed under
28 U.S.C. §§ 2001 and 2002 to offer for public sale and to sell the Subject Property. The
United States may choose either the United States Marshal or a PALS to carry out the sale
of the Subject Property under this Order and shall make the arrangements for any sale as
set forth in this Order.
8. The United States Marshal, his or her representative, or a PALS is authorized to have free
access to the Subject Property and to take all actions necessary to preserve the Subject
Property, including but not limited to, retaining locksmiths or other persons to change or
install locks or other security devices on any part of the Subject Property, until the
Subject Property is delivered to the ultimate purchasers.
9. The terms and conditions of the sale of the Subject Property (or any of them) are as
follows:
a. The sale of the Subject Property shall be free and clear of all interests of all parties
to this lawsuit.
b. The sale of the Subject Property shall be subject to building lines, if established,
all laws, ordinances, and governmental regulations (including building and zoning
ordinances) affecting the Subject Property, and easements and restrictions of
record, if any.
c. The sale of the Subject Property shall be held at the courthouse of the county or
city in which the Subject Property is located, on the premises of the Subject
Property, or at any other place in accordance with the provisions of 28 U.S.C. §§
2001 and 2002.
///
3
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 3 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
d. The date and time for the sale of the Subject Property is to be announced by the
United States Marshal, his or her representative, or a PALS.
e. Notice of the sale of the Subject Property shall be published once a week for at
least four consecutive weeks before the sale in at least one newspaper regularly
issued and of general circulation in the county in which the Subject Property is
located, and, at the discretion of the United States Marshal, his or her
representative, or a PALS, by any other notice deemed appropriate. Each notice
shall contain a description of the Subject Property for sale and shall contain the
terms and conditions of sale in this order of sale.
f. Minimum bids will be set by the Internal Revenue Service. If the minimum bid is
not met or exceeded, the United States Marshal, his or her representative, or a
PALS may, without further permission of the Court, and under the terms and
conditions in this order of sale, hold a new public sale, if necessary, and reduce
the minimum bid.
g. The successful bidder shall be required to deposit at the time of sale with the
United States Marshal, his or her representative, or a PALS minimum of ten
percent of the bid, with the deposit to be made by certified or cashier’s check
payable to the United States District Court for the Eastern District of California.
h. Before being permitted to bid at the sale of the Subject Property, bidders shall
display to the United States Marshal, his or her representative, or a PALS proof
that they are able to comply with this requirement. No bid will be received from
any person who has not presented proof that, if he or she is the successful bidder,
they can make the deposit required by this Order.
i. The balance of the purchase price for the Subject Property is to be paid to the
United States Marshal, his or her representative, or a PALS within 20 days after
the bid is accepted, by a certified or cashier’s check payable to the United States
District Court for the Eastern District of California. If the bidder fails to fulfil this
requirement, the deposit shall be forfeited and shall be applied to cover the
4
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 4 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
expenses of the sale, including commissions due under 28 U.S.C. § 1921(c), with
any amount remaining to be distributed in accordance with numbered paragraph
11, below. The Subject Property shall again be offered for sale under the terms
and conditions of this Order.
j. The sale of the Subject Property shall be subject to confirmation by this Court.
The Marshal or PALS shall file a report of sale with the Court, together with the
proposed order of confirmation of sale and proposed deed, within 20 days from
the date of receipt of the balance of the purchase price for the Subject Property.
k. On confirmation of the sale of the Subject Property, the Internal Revenue Service
shall execute and deliver a deed of judicial sale conveying the Subject Property
sold to its purchaser.
l. On confirmation of the sale of the Subject Property, all interests in, liens against,
or claims to the Subject Property that are held or asserted by any party to this
action shall be discharged and extinguished.
m. The sale of the Subject Property is ordered pursuant to 28 U.S.C. § 2001, and is
made without rights of redemption.
n. Until the Subject Property is sold, Defendant Lowell D. Weldon shall take all
reasonable steps necessary to preserve the Subject Property, including all
buildings, improvements, fixtures and appurtenances, in its current condition
including, without limitation, maintaining a fire and casualty insurance policy on
the Subject Property. He shall neither commit waste against the Subject Property
nor permit or cause anyone else top do so. He shall do nothing that will tend to
reduce the value or marketability of the Subject Property nor cause or permit
anyone else to do so. He shall not record any instruments, publish any notice, or
take any other action, including but not limited to running newspaper
advertisements or posting signs, that may directly or indirectly tend to adversely
affect the value of the Subject Property or that may tend to deter or discourage
///
5
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 5 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
potential bidders from participating in the public auctions, nor shall he cause or
permit anyone else to do so.
10. All persons occupying the Subject Property shall leave or vacate the Subject Property
permanently within 60 days of the service of a copy of this Order on any such persons,
each taking with him or her his or her personal property, but leaving all improvements,
buildings, fixtures, and appurtenances to the Subject Properties. If any person fails or
refuses to leave and vacate the Subject Property by the time specified in this Order, the
United States Marshal’s Office, alone, is authorized to take whatever action it deems
appropriate to remove such person from the Subject Property, even if the sale of the
Subject Property is being conducted by a PALS. If any person fails or refuses to remove
his or her personal property from the Subject Property by the time specified herein, the
personal property remaining on the Subject Property thereafter is deemed forfeited and
abandoned, and the United States Marshal’s Office is authorized to remove it and to
dispose of it in any manner it deems appropriate, including sale, in which case the
proceeds of the sale are to be applied first to the expenses of the sale and the balance to be
paid into the Court for future distribution.
11. The proceeds arising from the sale are to be paid to the Clerk of this Court and applied as
far as they are sufficient, first to the United States Marshal or the PALS (whichever
conducted the sale as arranged by the United States) for the costs of the sale, and then in
accordance with the provisions of the Stipulation and Order Regarding Lien Priority
between the United States, the State of California Franchise Tax Board and the County of
Fresno, entered in this matter on April 10, 2009.
IT IS SO ORDERED.
Dated: March 29, 2010 /s/ Lawrence J. O'Neill
b9ed48 UNITED STATES DISTRICT JUDGE
6
Case 1:08-cv-01643-LJO-SMS Document 52 Filed 03/30/10 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00909/USCOURTS-caed-2_15-cv-00909-3/pdf.json | 480 | Consumer Credit | 15:1681 Fair Credit Reporting Act | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
DAVID T. HEYDT & JENNIFER F.
HEYDT, individually, and on
behalf of the general public,
Plaintiffs,
v.
CITIMORTGAGE, INC., EXPERIAN
INFORMATION SOLUTIONS, INC.,
EQUIFAX INFORMATION SERVICES,
LLC & TRANSUNION, LLC,
Defendants.
CIV. NO. 2:15-00909 WBS KJN
----oo0oo----
STATUS (PRETRIAL SCHEDULING) ORDER
After reviewing the parties’ Joint Status Report, the
court hereby vacates the Status (Pretrial Scheduling) Conference
scheduled for December 7, 2015, and makes the following findings
and orders without needing to consult with the parties any
further.
I. SERVICE OF PROCESS
Case 2:15-cv-00909-WBS-KJN Document 54 Filed 12/02/15 Page 1 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Plaintiffs settled their claims against CitiMortgage,
Inc., and all remaining parties have been served. No further
service is permitted without leave of court, good cause having
been shown under Federal Rule of Civil Procedure 16(b).
II. JOINDER OF PARTIES/AMENDMENTS
No further joinder of parties or amendments to
pleadings will be permitted except with leave of court, good
cause having been shown under Federal Rule of Civil Procedure
16(b). See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604
(9th Cir. 1992).
III. JURISDICTION/VENUE
Jurisdiction is predicated upon federal question
jurisdiction, 28 U.S.C. § 1331, because plaintiffs’ claims arise
under the Federal Fair Credit Reporting Act, 15 U.S.C. § 1681.
Supplemental jurisdiction over the claims brought under the
California Consumer Credit Reporting Agencies Act is predicated
upon 28 U.S.C. § 1367. Venue is undisputed and is hereby found
to be proper.
IV. DISCOVERY
The parties will exchange the initial disclosures
required by Federal Rule of Civil Procedure 26(a)(1) by December
7, 2015.
The parties shall disclose experts and produce reports
in accordance with Federal Rule of Civil Procedure 26(a)(2) by no
later than December 1, 2016. With regard to expert testimony
intended solely for rebuttal, those experts shall be disclosed
and reports produced in accordance with Federal Rule of Civil
Procedure 26(a)(2) on or before January 17, 2017.
Case 2:15-cv-00909-WBS-KJN Document 54 Filed 12/02/15 Page 2 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
All discovery, including depositions for preservation
of testimony, is left open, save and except that it shall be so
conducted as to be completed by February 15, 2017. The word
“completed” means that all discovery shall have been conducted so
that all depositions have been taken and any disputes relevant to
discovery shall have been resolved by appropriate order if
necessary and, where discovery has been ordered, the order has
been obeyed. All motions to compel discovery must be noticed on
the magistrate judge’s calendar in accordance with the local
rules of this court and so that such motions may be heard (and
any resulting orders obeyed) not later than February 15, 2017.
V. MOTION HEARING SCHEDULE
All motions, except motions for continuances, temporary
restraining orders, or other emergency applications, shall be
filed on or before April 14, 2017. All motions shall be noticed
for the next available hearing date. Counsel are cautioned to
refer to the local rules regarding the requirements for noticing
and opposing such motions on the court’s regularly scheduled law
and motion calendar.
VI. FINAL PRETRIAL CONFERENCE
The Final Pretrial Conference is set for July 3, 2017,
at 1:30 p.m. in Courtroom No. 5. The conference shall be
attended by at least one of the attorneys who will conduct the
trial for each of the parties and by any unrepresented parties.
Counsel for all parties are to be fully prepared for
trial at the time of the Pretrial Conference, with no matters
remaining to be accomplished except production of witnesses for
oral testimony. Counsel shall file separate pretrial statements,
Case 2:15-cv-00909-WBS-KJN Document 54 Filed 12/02/15 Page 3 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
and are referred to Local Rules 281 and 282 relating to the
contents of and time for filing those statements. In addition to
those subjects listed in Local Rule 281(b), the parties are to
provide the court with: (1) a plain, concise statement which
identifies every non-discovery motion which has been made to the
court, and its resolution; (2) a list of the remaining claims as
against each defendant; and (3) the estimated number of trial
days.
In providing the plain, concise statements of
undisputed facts and disputed factual issues contemplated by
Local Rule 281(b)(3)-(4), the parties shall emphasize the claims
that remain at issue, and any remaining affirmatively pled
defenses thereto. If the case is to be tried to a jury, the
parties shall also prepare a succinct statement of the case,
which is appropriate for the court to read to the jury.
VII. TRIAL SETTING
The jury trial is set for September 6, 2017 at 9:00
a.m. The parties estimate that a jury trial will last five to
six days.
VIII. SETTLEMENT CONFERENCE
A Settlement Conference will be set at the time of the
Pretrial Conference. All parties should be prepared to advise
the court whether they will stipulate to the trial judge acting
as settlement judge and waive disqualification by virtue thereof.
Counsel are instructed to have a principal with full
settlement authority present at the Settlement Conference or to
be fully authorized to settle the matter on any terms. At least
seven calendar days before the Settlement Conference counsel for
Case 2:15-cv-00909-WBS-KJN Document 54 Filed 12/02/15 Page 4 of 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
each party shall submit a confidential Settlement Conference
Statement for review by the settlement judge. If the settlement
judge is not the trial judge, the Settlement Conference
Statements shall not be filed and will not otherwise be disclosed
to the trial judge.
IX. MODIFICATIONS TO SCHEDULING ORDER
Any requests to modify the dates or terms of this
Scheduling Order, except requests to change the date of the
trial, may be heard and decided by the assigned Magistrate Judge.
All requests to change the trial date shall be heard and decided
only by the undersigned judge.
Dated: December 2, 2015
Case 2:15-cv-00909-WBS-KJN Document 54 Filed 12/02/15 Page 5 of 5 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.