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STIPULATION AND PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE (C 06-02173 JSW)
Peter W. Craigie (SBN 99509) Robert A. Weikert (SBN 121146)
[email protected] [email protected]
Craigie, McCarthy & Clow Veronica Colby Devitt (SBN 79955)
540 Pacific Avenue [email protected]
San Francisco, California 94133 Charles M. Dyke (SBN 183900
Telephone: 415-732-7788 [email protected]
Facsimile: 415-732-7783 John A. Chatowski (SBN 174471)
[email protected]
Louis T. Pirkey Marlene J. Williams (SBN 197107)
[email protected] [email protected]
Susan J. Hightower THELEN REID & PRIEST LLP
[email protected] 101 Second Street, Suite 1800
Pirkey Barber LLP San Francisco, California 94105-3601
600 Congress Avenue, Suite 2120 Telephone: (415) 371-1200
Austin, Texas 78701 Facsimile: (415) 371-1211
Telephone: 512-322-5200
Facsimile: 512-322-5201 Attorneys for Defendants and
Counterclaimants ALBERTSON’S, INC.,
Attorneys for Plaintiff and Counterdefendant AMERICAN STORES COMPANY, LLC
Grocery Outlet Inc. and LUCKY STORES, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
(SAN FRANCISCO DIVISION)
GROCERY OUTLET INC.,
Plaintiff,
vs.
ALBERTSON’S, INC., AMERICAN
STORES COMPANY, LLC, AND LUCKY
STORES, INC.,
Defendants.
Case No.: C06-02173 JSW
STIPULATION AND [PROPOSED] ORDER
TO CONTINUE CASE MANAGEMENT
CONFERENCE
ALBERTSON’S, INC., AMERICAN
STORES COMPANY, LLC, AND LUCKY
STORES, INC.,
Counterclaimants.
vs.
GROCERY OUTLET INC.,
Counterdefendant.
Case 3:06-cv-02173-JSW Document 217 Filed 07/06/2006 Page 1 of 3
Case 3:06-cv-02173-JSW Document 218 Filed 07/06/06 Page 1 of 3
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- 1 -
STIPULATION AND PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE (C 06-02173 JSW)
Plaintiff and Counterdefendant Grocery Outlet Inc. (“Plaintiff” or “Grocery Outlet”) and
Defendants and Counterclaimants Albertson’s, Inc., American Stores Company, LLC, and Lucky
Stores, Inc. (collectively “Defendants”) hereby stipulate to continue the Case Management
Conference in this matter from August 4, 2006 to August 25, 2006 at 1:30 p.m. Good cause exists
for this continuance because Defendants’ lead trial counsel, Robert Weikert, will be out of the
country on a pre-planned vacation on the date of the presently scheduled conference.
Dated: July 6, 2006 CRAIGIE, McCARTHY & CROW
By /s/
Peter Craigie
Attorneys for Plaintiff/Counterdefendant
Grocery Outlet
Dated: July 6, 2006 THELEN REID & PRIEST LLP
By /s/
Robert A. Weikert
Attorneys for Defendants/Counterclaimants
Albertson’s, Inc., et al.
GENERAL ORDER 45 CERTIFICATION
I, Robert A. Weikert, hereby attest, pursuant to N.D. Cal. General Order No. 45, that the
concurrence to the filing of this document has been obtained from each signatory hereto.
Dated: July 6, 2006 THELEN REID & PRIEST LLP
By /s/
Robert A. Weikert
Attorneys for Defendants/Counterclaimants
Albertson’s, Inc., et al.
Case 3:06-cv-02173-JSW Document 217 Filed 07/06/2006 Page 2 of 3
Case 3:06-cv-02173-JSW Document 218 Filed 07/06/06 Page 2 of 3
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STIPULATION AND PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE (C 06-02173 JSW)
ORDER
IT IS SO ORDERED
Dated: July ___ 2006 By: ___________________________________
HON. JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
SF# 1083007
Case 3:06-cv-02173-JSW Document 217 Filed 07/06/2006 Page 3 of 3
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-1_14-cv-05279/USCOURTS-cand-1_14-cv-05279-0/pdf.json | 560 | Prisoner Petitions - Civil Detainee - Conditions of Confinement | 42:1983 Prisoner Civil Rights | United States District Court
For the Northern District of California
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United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
EUREKA DIVISION
GARY WEST,
Plaintiff,
v.
AUDREY KING, et. al.,
Defendants. /
No. C 14-5279 NJV (PR)
ORDER OF TRANSFER
Plaintiff, a civil detainee, has filed a civil rights action under 42 U.S.C. § 1983. He is
civilly committed pursuant to California's Sexually Violent Predators Act (SVPA). See Cal.
Welf. & Inst. Code 6600, et seq. Plaintiff is committed in Coalinga, CA which is located in
the Eastern District of California. The underlying commitment proceeding originated in San
Francisco County, which is in this district.
Plaintiff claims that the "assessment methodology" used by defendants – all current
or former officials of California's Department of State Hospitals (formerly known as the
Department of Mental Health) – pursuant to SVPA to hold and determine that an individual
may not take part in outpatient treatment is unconstitutional. Plaintiff seeks declaratory
relief and damages in the amount of $10,000,000.
"‘Federal law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the
Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to
the lawfulness of confinement or to particulars affecting its duration are the province of
habeas corpus.'" Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v.
Close, 540 U.S. 749, 750 (2004)). "An inmate's challenge to the circumstances of his
Case 1:14-cv-05279-NJV Document 5 Filed 01/13/15 Page 1 of 4
United States District Court
For the Northern District of California
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confinement, however, may be brought under § 1983." Id.
Habeas is the "exclusive remedy" for the prisoner who seeks "‘immediate or
speedier release'" from confinement. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011)
(quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S.
740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411
U.S. 475, 500 (1973). "Where the prisoner's claim would not ‘necessarily spell speedier
release,' however, suit may be brought under § 1983.'" Skinner, 131 S. Ct. at 1293 (quoting
Wilkinson, 544 U.S. at 82). As a consequence, challenges to prison conditions traditionally
have been cognizable only via § 1983, while challenges implicating the fact or duration of
confinement must be brought through a habeas petition. Docken v. Chase, 393 F.3d 1024,
1026 (9th Cir. 2004).
Although plaintiff is a civilly committed patient, rather than a criminally convicted
prisoner, the habeas versus § 1983 proper remedy distinction also applies. Compare
Hubbart v. Knapp, 379 F.3d 773, 779-81 (9th Cir. 2004) (upholding constitutionality of
SVPA against habeas challenge under 28 U.S.C. § 2254) with Hydrick v. Hunter, 669 F.3d
937, 941-42 (9th Cir. 2012) (accepting defendants' qualified immunity defense to civil
committees' § 1983 challenge to their conditions of confinement). Consequently, to the
extent that plaintiff seeks relief that would entitle him to immediate or earlier release from
his civil commitment, he must file a petition for a writ of habeas corpus under 28 U.S.C. §
2254 after exhausting state judicial remedies. See Skinner, 131 S. Ct. at 1293; see also
Nelson v. Sandritter, 351 F.2d 284, 285 (9th Cir. 1965) (constitutionality of state civil
commitment proceedings may be challenged in federal habeas corpus after state judicial
remedies have been exhausted). And to the extent that plaintiff seeks relief that may be
construed as not necessarily requiring speedier release from his civil commitment, his
§ 1983 action must be brought in the Eastern District of California, where plaintiff is civilly
committed at Coalinga State Hospital and where all named defendants reside. See 28
U.S.C. §§ 84(b), 1391(b).
Case 1:14-cv-05279-NJV Document 5 Filed 01/13/15 Page 2 of 4
United States District Court
For the Northern District of California
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3
Accordingly, this case is TRANSFERRED to the United States District Court for the
Eastern District of California. See 28 U.S.C. § 1406(a). In view of the transfer, the Court
will not rule upon plaintiff's request for leave to proceed in forma pauperis.
IT IS SO ORDERED.
Dated: January 13, 2015.
NANDOR J. VADAS
United States Magistrate Judge
Case 1:14-cv-05279-NJV Document 5 Filed 01/13/15 Page 3 of 4
United States District Court
For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
EUREKA DIVISION
GARY WEST,
Plaintiff,
v.
AUDREY KING, et al,
Defendants. /
No.1:14-CV-5279 NJV
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on January 13, 2015, I served a true and correct copy
of the attached by placing said copies in a postage paid envelope addressed to the person(s) listed
below, by depositing said envelope in the U.S. Mail.
Gary West
000-231-1
Coalinga State Hospital
P O Box 5003
Coalinga, CA 93210-5003
/s/ Linn Van Meter
Linn Van Meter
Administrative Law Clerk to the
Honorable Nandor J. Vadas
Case 1:14-cv-05279-NJV Document 5 Filed 01/13/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-5_15-cv-00294/USCOURTS-ared-5_15-cv-00294-2/pdf.json | 555 | Prisoner - Prison Condition | 42:1983 Prisoner Civil Rights | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DUSTIN MCCARTY PLAINTIFF
V. NO: 5:15CV00294 JM
ALLEN CHEEK et al DEFENDANTS
JUDGMENT
Pursuant to the order filed this date, judgment is entered dismissing this case with prejudice;
the relief sought is denied. The Court certifies that an in forma pauperis appeal is considered
frivolous and not in good faith.
DATED this 28th day of September, 2016.
UNITED STATES DISTRICT JUDGE
Case 5:15-cv-00294-JM Document 30 Filed 09/28/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-02209/USCOURTS-caed-2_07-cv-02209-0/pdf.json | 540 | Prisoner Petitions - Mandamus and Other | 28:1651 Petition for Writ of Mandamus | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PATRICK OTIS NELSON,
Petitioner, No. CIV S-07-2209 LEW KJM P
vs.
CALIFORNIA SUPREME COURT, et al., ORDER AND
Respondents. FINDINGS AND RECOMMENDATIONS
/
Petitioner, a state prisoner proceeding pro se, has filed a document titled “petition
for relief in the form of mandamus” and a request for leave to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable
to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
granted. See 28 U.S.C. § 1915(a).
In his mandamus petition, petitioner ask that this court issue orders against the
California Supreme Court and California Bar Association. However, in a mandamus action, the
court can only issue orders against employees, officers or agencies of the United States. 28
U.S.C. § 1361. Therefore, the court will recommend that petitioner’s request for mandamus
relief be denied.
/////
Case 2:07-cv-02209-LEW -KJM Document 4 Filed 04/14/08 Page 1 of 2
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In accordance with the above, IT IS HEREBY ORDERED that petitioner’s
request to proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that petitioner’s “petition for relief in the
form of mandamus” 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, petitioner may file written
objections with the court. The document should be captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” Petitioner is 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: April 11, 2008.
1
nels2209.man
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MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
JACKIE HUTTO, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 1:10cv074-MHT
) (WO)
HARTFORD LIFE AND ACCIDENT )
INS. CO., )
)
Defendant. )
FINAL SUBMISSION ORDER OF ENTIRE CASE
Based upon the representations made by counsel for
all parties during a status conference on March 9, 2010,
and with their agreement, it is ORDERED as follows:
(1) This lawsuit is set for final submission, without
oral argument, on December 16, 2010.
(2) The parties are allowed until September 7, 2010
to complete discovery and the depositions of all persons
whose testimony will be made a part of the evidentiary
record.
Case 1:10-cv-00074-WKW-WC Document 12 Filed 03/10/10 Page 1 of 3
2
(3) By September 21, 2010, the parties are jointly to
develop and submit to the court a record of the
evidence--depositions, stipulations, affidavits, etc.--
that they intend the court to rely upon. The record
should be sequentially numbered, that is, Bates-stamped,
such that the parties and the court can quickly refer to
the entire record by page number. If the record is more
than 200 pages, it should be broken down into volumes.
The record should begin with a table of contents that
indicates the volume and Bates page number on which each
document begins.
(4) Plaintiff Jackie Hutto is to file her brief by
November 4, 2010.
(5) Defendant Hartford Life and Accident Insurance
Company is to file its brief by December 2, 2010.
(6) Hutto may file a reply brief by December 16,
2010.
(7) When the parties refer to evidence in their
briefs, they must cite the specific document, volume, and
Case 1:10-cv-00074-WKW-WC Document 12 Filed 03/10/10 Page 2 of 3
Bates-stamped page number where the evidence can be found
in the evidentiary record. A brief that fails to comply
with these requirements will be struck.
(8) In light of this agreed-upon disposition without
a trial, the parties are no longer to file dispositive
motions, that is, summary-judgment or dismissal motions.
DONE, this the 10th day of March, 2010.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Case 1:10-cv-00074-WKW-WC Document 12 Filed 03/10/10 Page 3 of 3 |
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Case No. C 07-5740 JF (RS)
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO BILL OF COSTS
(JFLC3)
**E-Filed 4/13/10**
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
CHIN-LI MOU,
Plaintiff,
v.
CITY OF SAN JOSE, et al.,
Defendants.
Case Number C 07-5740 JF (RS)
ORDER OVERRULING 1
PLAINTIFF’S OBJECTIONS TO
BILL OF COSTS
On September 29, 2009, the Court granted Defendants’ motion for summary judgment.
On October 22, 2009, the Clerk of the Court taxed costs in the amount of $1,029.90. On
February 18, 2010, Plaintiff filed a letter stating her belief that the Defendants have no basis upon
which to tax costs against her and seeking guidance from the Court. Although the time period
allowed for objections had passed, the Court allowed Plaintiff to file her objections to the award
of costs. Plaintiff filed her objections on April 1, 2010. Defendants filed a response to the
objections on April 6, 2010.
Federal Rule of Civil Procedure 54(d)(1) (“Rule 54(d)(1)”) provides that, “[e]xcept when
express provision therefor is made either in a statute of the United States or in these rules, costs
Case 5:07-cv-05740-JF Document 65 Filed 04/13/10 Page 1 of 3
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Case No. C 07-5740 JF (RS)
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO BILL OF COSTS
(JFLC3)
other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court
otherwise directs.” This rule creates a “presumption for awarding costs to prevailing parties” and
thus requires the losing party to show why costs should not be awarded. Save Our Valley v.
Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). The Court must give specific reasons if it
refuses to tax costs to the losing party. See id. at 945. However, the Court “need not give
affirmative reasons for awarding costs; instead, it need only find that the reasons for denying
costs are not sufficiently persuasive to overcome the presumption in favor of an award.” Id.
The Court may consider a variety of factors in deciding whether to award costs, including
whether the losing party has limited financial resources, see Ass’n of Mexican-American
Educators v. California, 231 F.3d 572, 592 (9th Cir. 2000); Stanley v. Univ. of S. Cal., 178 F.3d
1069, 1079 (9th Cir. 1999) (stating that indigency is a factor district courts may properly consider
when deciding whether to award costs), whether an award of costs would “chill” future civil
rights litigation, see Save Our Valley, 335 F.3d at 946 (holding that imposition of the “relatively
small sum” of $5,310.55 would not result in injustice where a community group lost its racebased civil rights claim against a government agency), and whether the prevailing party has
engaged in misconduct such that costs should not be awarded, see Ass’n of Mexican-American
Educators, 231 F.3d at 592. However, “[n]oble intentions alone do not relieve an unsuccessful
litigant of the obligation under Rule 54(d) to compensate his opponent for reasonable costs.”
Nat’l Info. Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1472 (9th Cir. 1995) (holding that the district
court abused its discretion when it “refused to award costs on the ground that Plaintiffs brought
their case in good faith and with meritorious intentions when in fact they brought a case so
devoid of merit that they were twice rejected by the district court on summary judgment”).
Plaintiff argues that the Court should not award costs to Defendants for two reasons.
First, she contends that she should be relieved of her obligation to pay because of her indigency.
Second, she maintains that Defendants should bear their own costs because of their counsel’s
discovery misconduct and “intentional lies” to the Court.
Neither of these arguments is supported by the record. Plaintiff submitted no evidence to
support her claim of indigency. The Court recognizes that Plaintiff began this action acting pro
Case 5:07-cv-05740-JF Document 65 Filed 04/13/10 Page 2 of 3
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Case No. C 07-5740 JF (RS)
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO BILL OF COSTS
(JFLC3)
se and later was assisted by pro bono counsel. However, without specific evidence of Plaintiff’s
current financial circumstances, this is an insufficient basis upon which to deny the relatively
small award of costs at issue here. Defendants point out in their response papers that Plaintiff
owns a condominium in San Jose valued at more than $240,000. Nor does Plaintiff identify any
evidence showing that defense counsel intentionally misled the Court or Plaintiff at any point in
these proceedings.
In light of the presumption favoring recovery of costs by the prevailing party, and in light
of the evidence in the record, Plaintiff’s objections will be overruled. Costs will be taxed against
Plaintiff in the amount of $1,029.90.
IT IS SO ORDERED.
DATED: 4/13/10
__________________________________
JEREMY FOGEL
United States District Judge
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Case No. 14-cv-00600-LHK
CASE MANAGEMENT ORDER
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
AT&T SERVICES, INC.,
Plaintiff,
v.
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC., et al.,
Defendants.
Case No.14-cv-00600-LHK
CASE MANAGEMENT ORDER
By Monday, July 20, 2015, the parties shall file a joint ADR status update stating whether
the parties are amenable to conducting either another private mediation session or a Magistrate
Judge settlement conference by September 17, 2015.
IT IS SO ORDERED.
Dated: July 17, 2015
______________________________________
LUCY H. KOH
United States District Judge
Case 5:14-cv-00600-LHK Document 47 Filed 07/17/15 Page 1 of 1 |
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Case 5:07-cv-02795-RMW Document 338 Filed 05/04/10 Page 4 of 4 |
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TED TRIFFON,
Plaintiff,
v.
PLACER LENDER SERVICES, et al.,
Defendants.
1:15-cv-00761-AWI-GSA
(Doc. 1)
INTRODUCTION
Plaintiff Ted Triffon (“Plaintiff”), appearing pro se and proceeding in forma pauperis,
filed the complaint in this action on May 19, 2015. Doc. 1. The Court has screened the
complaint for legal sufficiency pursuant to 28 U.S.C. § 1915(e)(2). For the reasons discussed
below, the complaint is dismissed and the case closed for lack of subject matter jurisdiction.
DISCUSSION
A. Screening Standard
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of a
complaint to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous
or malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.”
If the Court determines that the complaint fails to state a claim, it must be dismissed. Id.
Case 1:15-cv-00761-AWI-GSA Document 8 Filed 05/21/15 Page 1 of 3
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A complaint 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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)).
Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is
plausible on its face.‟” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). More
specifically, the plaintiff must present sufficient factual allegations as to each claim against each
defendant. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The mere possibility of misconduct falls short of meeting Iqbal’s plausibility standard.
Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. While well-pleaded factual allegations are
accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
Pleadings of pro se plaintiffs “must be held to less stringent standards than formal
pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that
pro se complaints should continue to be liberally construed after Iqbal). Accordingly, pro se
plaintiffs are afforded the benefit of any doubt. Id.
B. Analysis and Order
The instant complaint alleges that this action is brought in this Court on the basis of
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Doc. 1 at 2. However, the facts alleged in
the complaint indicate that diversity jurisdiction does not exist.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by Constitution or a
statute, which is not to be expanded by judicial decree.” Id. (internal citations omitted). “It is to
be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the
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contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted); see also
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006). “Subject matter
jurisdiction based upon diversity of citizenship requires that no defendant have the same
citizenship as any plaintiff.” Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499
(9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77,
130 S.Ct. 1181 (2010); also see 28 U.S.C. § 1332(a). “A plaintiff suing in federal court must
show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal
jurisdiction, and, if he does not do so, the court ... on discovering the [defect], must dismiss the
case, unless the defect be corrected by amendment.” Id. (quoting Smith v. McCullough, 270 U.S.
456, 459, 46 S.Ct. 338, 70 L.Ed. 682 (1926)).
Here, Plaintiff resides in California and he is citizen of California. Two of the defendants
are corporations incorporated in California while the other defendants also appear to be citizens
of California.1
Therefore, complete diversity between the parties does not exist and federal
subject matter jurisdiction cannot be established. Furthermore, the complaint does not allege any
federal claim. Accordingly, the complaint is dismissed in its entirety and the case closed for lack
of subject matter jurisdiction.
IT IS SO ORDERED.
Dated: May 21, 2015
SENIOR DISTRICT JUDGE
1
The defendants include Capital Finance Corporation, which is listed as an active California incorporated entity on
the California Secretary of State‟s website with the entity number C1958428 (see http://kepler.sos.ca.gov, last viewed
on May 21, 2015); Placer Foreclosure, Inc., which is also listed as an active California incorporated entity on the
California Secretary of State‟s website with the entity number C1670115 (see http://kepler.sos.ca.gov, last viewed on
May 21, 2015); Placer Lender Services, an entity based in Auburn, California (Placer County); Placer Trustee
Services, an entity based in Auburn, California (Placer County); and two individuals, Robert J. and Wynne M.
Boynton, based in South Lake Tahoe, California. See Docs. 1 at 1, 1-1 at 2.
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AMENDED PRETRIAL SCHEDULING ORDER 1
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LAW OFFICE OF STEWART KATZ
STEWART KATZ, State Bar #127425
555 University Avenue, Suite 270
Sacramento, California 95825
Telephone: (916) 444-5678
Attorneys for Plaintiff
JOHN HESSELBEIN
FERGUSON, PRAET & SHERMAN
BRUCE D. PRAET, State Bar #119430
1631 East 18th Street
Santa Ana, California 92705
Telephone: (714) 953-5300
Attorneys for Defendants
CITY OF ELK GROVE, ROBERT LEHNER,
MICHAEL IANNONE, and PAUL BECKHAM
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JOHN HESSELBEIN,
Plaintiff,
vs.
CITY OF ELK GROVE; Elk Grove Police
Chief ROBERT LEHNER; Elk Grove Police
Department Sergeant MICHAEL IANNONE
(Badge #14); Elk Grove Police Department
Officer PAUL BECKHAM (Badge #116);
DOES I through XX, inclusive,
Defendants.
___________________________________/
NO. 2:11-CV-02157-MCE-DAD
STIPULATION AND
ORDER MODIFYING AMENDED
PRETRIAL SCHEDULING ORDER
COME NOW THE PARTIES by and through their respective parties and subject to
the approval of this Court, hereby stipulate and respectfully request the following
modification and/or amendment to this Court’s Amended Pretrial Scheduling Order of
October 2, 2012 (Docket #16) regarding the scheduling of this case:
Case 2:11-cv-02157-WBS-AC Document 19 Filed 07/24/13 Page 1 of 2
STIPULATION AND ORDER MODIFYING
AMENDED PRETRIAL SCHEDULING ORDER 2
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• That the expert witness disclosure cut-off date currently set for July 17, 2013 be
moved to August 16, 2013.
This calendaring modification is requested because the expert Plaintiff was planning
on using was found to have some unexpected and unfortunately severe medical issues.
The parties do not expect to change any of the other dates currently scheduled in this
case.
Dated: July 10, 2013 LAW OFFICE OF STEWART KATZ
/s/ Stewart Katz___________________
STEWART KATZ,
Attorney for Plaintiff
Dated: July 10, 2013 FERGUSON, PRAET & SHERMAN
/s/ Bruce D. Praet___________________
BRUCE D. PRAET,
Attorney for Defendants
IT IS SO ORDERED.
Dated: July 23, 2013
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United States Court of Appeals
for the Federal Circuit ______________________
MARY SWARTZLANDER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-1836
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-01567-MCW, Senior Judge Mary Ellen Coster Williams.
______________________
Decided: April 23, 2020
______________________
MARIANNE G. DUGAN, Marianne Dugan, P.C., Eugene,
OR, for plaintiff-appellant.
TAMARA N. ROUNTREE, Environment and Natural Resources Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by JEFFREY B. CLARK, ERIC GRANT.
______________________
Case: 19-1836 Document: 70 Page: 1 Filed: 04/23/2020
2 SWARTZLANDER v. UNITED STATES
Before PROST, Chief Judge, CLEVENGER and DYK,
Circuit Judges.
PROST, Chief Judge.
Mary Swartzlander appeals from the decision of the
United States Court of Federal Claims dismissing her takings claim as timed-barred under 28 U.S.C. § 2501. See
Swartzlander v. U.S., 142 Fed. Cl. 435 (2019) (“Decision”).
We affirm.
I
Ms. Swartzlander owned property running along a
creek across from a wetland restoration project conducted
by the Bonneville Power Administration. The Bonneville
Power Administration is part of the U.S. Department of
Energy. The restoration project started in 2001 and concluded in 2005.
In 2015, Ms. Swartzlander filed a takings claim with
the Court of Federal Claims alleging that the wetland restoration project caused erosion on her land.1 The government, arguing that Ms. Swartzlander’s claim was timebarred, moved to dismiss the claim.2 The court conducted
a four-day evidentiary hearing to consider the government’s motion.
After holding the evidentiary hearing, the court concluded that Ms. Swartzlander knew or should have known
that the wetland restoration project caused permanent
1 The government does not concede that the restoration project caused erosion on Ms. Swartzlander’s property,
but for the purpose of this appeal, it has assumed that fact
in Ms. Swartzlander’s favor. See Appellee’s Br. 10 n.3.
2 Claims brought before the Court of Federal Claims
must be “filed within six years after such claim first accrues.” 28 U.S.C. § 2501.
Case: 19-1836 Document: 70 Page: 2 Filed: 04/23/2020
SWARTZLANDER v. UNITED STATES 3
erosion on her property at least as early as 2006. See Decision, 142 Fed. Cl. at 444–46. Applying the “stabilization
doctrine,” the court determined that Ms. Swartzlander’s
claim accrued at least as early as that date. Id. at 445–46.
Ultimately, because Ms. Swartzlander waited until 2015—
more than six years from 2006—to bring her takings claim,
the court dismissed the claim as time-barred. Id.
Following the dismissal, Ms. Swartzlander appealed.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
II
We review the Court of Federal Claims’ decision to dismiss de novo, while we review its jurisdictional findings of
fact for clear error. Banks v. United States, 314 F.3d 1304,
1307–08 (Fed. Cir. 2003).
When a taking occurs through a gradual physical process, such as erosion, the stabilization doctrine guides the
determination of a claim’s accrual date. Under the stabilization doctrine, a claim accrues “when the environmental
forces have substantially and permanently invaded the private property such that the permanent nature of the taking
is evident and the extent of the damage is reasonably foreseeable.” Boling v. United States, 220 F.3d 1365, 1371
(Fed. Cir. 2000) (internal quotation marks omitted). While
“[t]he point at which the erosion damage transitions from
‘mere inches’ to substantial encroachment is not amenable
to precise definition” we have noted that “the key issue” in
determining when a claim accrues “is whether the permanent nature of the taking was evident such that the land
owner should have known that the land had suffered erosion damage.” Id. at 1373. Accordingly, “[t]he obligation
to sue arises once the permanent nature of the Government
action is evident, regardless of whether damages are complete and fully calculable.” Mildenberger v. United States,
643 F.3d 938, 946 (Fed. Cir. 2011).
Case: 19-1836 Document: 70 Page: 3 Filed: 04/23/2020
4 SWARTZLANDER v. UNITED STATES
If the landowner can show either that the government
“concealed its acts with the result that plaintiff was unaware of their existence” or that the injury “was ‘inherently
unknowable’ at the accrual date,” a landowner’s claim may
be temporarily suspended until the landowner becomes
aware of the injury. Banks v. United States, 741 F.3d 1268,
1279–80 (Fed. Cir. 2014) (quoting Young v. United States,
529 F.3d 1380, 1384 (Fed. Cir. 2008)).
A
On appeal, Ms. Swartzlander contends that “where a
government entity sets in motion a process of gradual erosion, that then is dramatically worsened by natural processes—the claim does not accrue (and therefore the
limitations clock does not stark ticking) until the dramatic
effect is clear to the plaintiff.” Appellant’s Reply Br. 3. Put
another way, Ms. Swartzlander argues that, notwithstanding that she was aware that the wetland restoration project
caused erosion to her property, id. at 1, her claim did not
start accruing until the naturally-occurring high-water
event of 2012, which dramatically worsened the erosion on
her property.
Ms. Swartzlander’s argument, however, is contrary to
our case law. As noted above, the key issue for determining
when a claim accrues is when the landowner becomes
aware of the permanent nature of the taking. The Court of
Federal Claims, relying on exhibits and trial transcript,
made the factual determination that Ms. Swartzlander
knew or should have known of the permanent nature of the
erosion at least as early as 2006. See Decision, 142 Fed. Cl.
at 444–46. Based on the record before us, Ms. Swartzlander has not persuasively demonstrated that the court’s
fact finding was clearly erroneous.
In addition, this is not a case where the accrual of the
claim was suspended. First, this is not a case where in
2006—the time of the accrual date—the erosion was only
mere inches. Compare Boling, 220 F.3d at 1372–73 (noting
Case: 19-1836 Document: 70 Page: 4 Filed: 04/23/2020
SWARTZLANDER v. UNITED STATES 5
it is “virtually impossible for the landowner to discern that
land had been taken when the degree of encroachment was
only ‘mere inches’”) with Appellant’s Reply Br. 1 (noting
that, as of 2006, there was “about 15 to 30 feet” of erosion”
to Ms. Swartzlander’s property). Second, this is also not a
case where the government’s mitigation efforts to counter
the erosion to landowner’s property concealed the erosion’s
permanent nature. Compare Banks, 741 F.3d at 1282 (noting that “the Government’s mitigation efforts . . . delayed
when Appellants knew or should have known they had a
claim”) with Appellant’s Reply Br. 3 (noting that, by 2006,
the government would not “work with her”). Accordingly,
the Court of Federal Claims did not err when it found that
the claim should not be suspended.
IV
We have considered Ms. Swartzlander’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm the Court of Federal Claims’ holding that
Ms. Swartzlander’s takings claim is time-barred.
AFFIRMED
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FRANK HARLAN,
Petitioner,
v.
MIKE MADDING,
Respondent.
/
1: 06 CV 00902 WMW HC
MEMORANDUM OPINION AND ORDER RE
RESPONDENT’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS
[Doc. 9]
ORDER DENYING CERTIFICATE OF
APPEALABILITY
Petitioner is a prisoner proceeding with a petition for writ of habeas corpus pursuant to 28
U.S.C. Section 2254. Pursuant to Title 28 U.S.C. § 636(c)(1), the parties have consented to the
jurisdiction of the United States Magistrate Judge. Pending before the court is Respondent’s motion
to dismiss.
PROCEDURAL HISTORY
On May 16, 1997, Petitioner was convicted of three counts of second degree robbery and a
number of sentencing enhancements were found to be true. The trial court sentenced Petitioner to a
determinate state prison term of eight years, eight months.
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Petitioner filed a direct appeal. On December 1, 1997, the Court of Appeal granted
Petitioner’s request to voluntarily dismiss his appeal.
Petitioner subsequently filed the three following pro se post-conviction collateral challenges
to his conviction:
First Petition
June 20, 2005: Petition for post-conviction relief filed in Kings County Superior Court
June 27, 2005: Petition denied
Second Petition
July 18, 2005: Petition for post-conviction relief filed in Court of Appeal
August 25, 2005: Petition denied
Third Petition
September 19, 2005: Petition for post-conviction relief filed in California Supreme Court
June 28, 2006: Petition denied.
Petition filed the present petition on July 17, 2006.
LEGAL STANDARDS
JURISDICTION
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant
to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of
the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 120 S.Ct.
1495, 1504 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by
the United States Constitution. In addition, the conviction challenged arises out of the Kings
County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a);
2241(d). Accordingly, the court has jurisdiction over the action.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment.
Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct.
586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9 Cir. 1997) (quoting Drinkard v. Johnson, 97 th
F.3d 751, 769 (5 Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other
th
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grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable
to cases filed after statute's enactment). The instant petition was filed after the enactment of the
AEDPA, thus it is governed by its provisions.
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus “in 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. § 2254(a).
The AEDPA altered the standard of review that a federal habeas court must apply with
respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v.
Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will
not be granted unless the adjudication of the claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or “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. § 2254(d); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth
Circuit’s approach in Van Tran v. Lindsey, 212 F.3d 1143 (9 Cir. 2000)); Williams v. Taylor, 120 th
S.Ct. 1495, 1523 (2000). “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.” Lockyer, at 1174 (citations omitted). “Rather,
that application must be objectively unreasonable.” Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are
constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983);
Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal
conviction is the primary method for a petitioner to challenge that conviction. Brecht v.
Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court’s factual
determinations must be presumed correct, and the federal court must accept all factual findings made
by the state court unless the petitioner can rebut “the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769
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(1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380,
1388 (9 Cir. 1997). th
DISCUSSION
Respondent moves to dismiss this petition on the ground that it is untimely and barred by the
statute of limitations. Petitioner opposes the motion.
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 . . . .” The Advisory Committee Notes to Rule 5
of the Rules Governing § 2254 Cases state that “an alleged failure to exhaust state remedies may be
raised by the Attorney General, thus avoiding the necessity of a formal answer as to that ground.”
The Ninth Circuit has referred to a respondent’s motion to dismiss as a request for the court to
dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915
F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9 Cir. 1989); Hillery v. Pulley, 533 th
F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 Cases and
case law, the court will review Respondent’s motion to dismiss pursuant to its authority under Rule
4.
The AEDPA imposes a one year period of limitation on petitioners seeking to file a federal
petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, Section 2244, subdivision
(d) reads:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
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In California, the Supreme Court, intermediate Courts of Appeal, and Superior Courts all have original habeas 1
corpus jurisdiction. See, Nino 183 F.3d at 1006, n. 2 (9 Cir. 1999). Although a Superior Court order denying habeas corpus th
relief is non-appealable, a state prisoner may file a new habeas corpus petition in the Court of Appeal. Id. If the Court of
Appeal denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may
instead file an original habeas petition in the Supreme Court. See, id.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.
In this case, the Court of Appeal granted Petitioner’s motion for voluntary dismissal of his
appeal on December 1, 1997. The state appeal process thus became “final” at that time and the
statute of limitations began running the following day - December 2, 1997 Thus, absent tolling, the
last day to file a federal petition was December 1, 1998.
Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In
Nino v. Galaza, the Ninth Circuit held that the “statute of limitations is tolled from the time the first
state habeas petition is filed until the California Supreme Court rejects the petitioner’s final collateral
challenge.” Nino v. Galaza, 183 F.3d 1003, 1006 (9 Cir. 1999), cert. denied, 120 S.Ct. 1846 1 th
(2000); see, also, Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321,
1323 (10 Cir. 1999). th
Petitioner did not file his first post-conviction petition in state court until June 20, 2005.
Because the limitations period had already expired, this challenge and Petitioner’s subsequent
collateral challenges had no tolling consequence. Green v. White, 223 F.3d 1001, 1003 (9th
Cir.2000) (Petitioner is not entitled to tolling where the limitations period has already run); see also
Webster v. Moore, 199 F.3d 1256 (11th Cir.2000); Rendall v. Carey, 2002 WL 1346354
(N.D.Cal.2002).
Petitioner admits that his petition is untimely, but argues that due to the findings in Blakely v.
Washington, 542 U.S. 296 (2004) he is entitled to raise his challenges to his sentence. Petitioner
argues that Blakely and its predecessor Apprendi v. New Jersey, 530 U.S. 466 (2000) created a
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retroactive new rule which enables him, under 28 U.S.C. Section 2244(d)(1)(C), to circumvent the
December 1, 1998 expiration of the statute of limitations.
As Respondent argues, Petitioner is mistaken. Neither Apprendi nor Blakely apply
retroactively to cases on collateral review. See United States v. Sanchez-Cervantes, 282 F.3d 664,
667 (9 Cir. 2002); United States v. Cruz, 423 F.3d 1119 (9 Cir. 2005); Schardt v. Payne, 414 F.3d th th
1025, 1036 (9th Cir.2005).
The limitations period is subject to equitable tolling if “extraordinary circumstances beyond a
prisoner’s control” have made it impossible for the petition to be filed on time. Calderon v. U.S.
Dist. Ct. (Kelly), 163 F.3d 530, 541 (9 Cir. 1998), citing Alvarez-Machain v. United States, 107 th
F.3d 696, 701 (9 Cir. 1996), cert denied, 522 U.S. 814, 118 S.Ct. 60, 139 (1997); Calderon v. th
United States Dist. Court (Beeler), 128 F.3d 1283,1288 (9 Cir.), overruled in part on other grounds th
by, Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9 Cir. 1998) (en banc) (noting that th
"[e]quitable tolling will not be available in most cases, as extensions of time will only be granted if
'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on
time"). "When external forces, rather than a petitioner's lack of diligence, account for the failure to
file a timely claim, equitable tolling of the statute of limitations may be appropriate." Miles v.
Prunty, 187 F.3d 1104, 1107 (9 Cir.1999), citing Kelly, 163 F.3d at 541; Beeler, 128 F.3d at th
1288-1289.
Petitioner has not claimed a right to equitable tolling in this case. As there exists no
circumstances sufficient to justify equitably tolling the limitations period, the petition is untimely
and must be dismissed.
Petitioner may seek to appeal from the judgment of the court in this case. Petitioner cannot
proceed on such an appeal absent a certificate of appealability. The controlling statute, 28 U.S.C. §
2253, provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge,
the final order shall be subject to review, on appeal, by the court of appeals for the circuit in
which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a
warrant to remove to another district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of such person's detention
pending removal proceedings.
Case 1:06-cv-00902-WMW Document 18 Filed 03/10/08 Page 6 of 7
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(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from–
(A) the final order in a habeas corpus proceeding in which the detention complained of arises
out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made
a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
In the present case, the court finds no denial of a constitutional right. Accordingly, a
certificate of appealability will be denied.
Based on the foregoing, IT IS HEREBY ORDERED as follows:
1) Respondent’s motion to dismiss is GRANTED;
2) A certificate of appealability is DENIED;
3) This petition for writ of habeas corpus is DISMISSED as barred by the statute of limitations;
4) The Clerk of the Court is directed to enter judgment for Respondent and to close this case.
IT IS SO ORDERED.
Dated: March 10, 2008 /s/ William M. Wunderlich
mmkd34 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-00902-WMW Document 18 Filed 03/10/08 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-16-02028/USCOURTS-ca6-16-02028-0/pdf.json | 791 | Employee Retirement Income Security Act (ERISA) | null | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0174n.06
Case No. 16-2028
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LES A. GILEWSKI,
Plaintiff-Appellant,
v.
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN
Before: MERRITT, COOK, and McKEAGUE, Circuit Judges.
MERRITT, Circuit Judge. Plaintiff Les Gilewski brought a declaratory judgment
action against defendant Provident Life and Accident Insurance Company pursuant to the
Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B), alleging wrongful
termination of long-term disability benefits and seeking reinstatement of those benefits.
Gilewski suffered from depression and, at the age of 41, applied for benefits under two long-term
disability policies he held with Provident. Provident paid benefits under one policy for the twoyear duration of its term and those benefits are not at issue in this appeal. Provident also paid
benefits under the second policy, but, after four years, it terminated the benefits after it
determined that Gilewski was “able to perform the duties of his occupation” and was no longer
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disabled under the terms of the policy. After exhausting Provident’s administrative appeals,
Gilewski brought this action against Provident. The district court granted judgment on the
administrative record to Provident. For the following reasons, we affirm.
I. FACTS AND HISTORY
Gilewski, born in 1968, was the owner and president of Radiance Mold and Engineering,
Inc., an auto supplier in Michigan, for 20 years. At one time the business employed as many as
100 people. In 2001, Gilweski’s son was born with cerebral palsy, putting a strain on his family
and work life. Gilewski also started experiencing marital difficulties that year. By the mid2000s, Gilewski was losing customers and sales personnel due to his personal struggles.
Gilewski’s business experienced further downturn during the recession that began in 2008, and
the business was put into bankruptcy and liquidated in the spring of 2009. Gilewski began
experiencing depression, culminating in his hospitalization for one week in June 2009 when he
became suicidal. Gilewski left the hospital under the care of Dr. Dan Guyer, who prescribed
medications for Gilewski. Gilewski was also under the care of a psychologist, Dr. Fred Roberts,
with whom he had weekly therapy sessions. Gilewski’s doctors determined he could not work,
and he filed for long-term disability pursuant to two disability insurance policies he had
previously purchased from Provident, citing his medical condition as anxiety and depression.
When he applied for benefits, Gilewski included a statement from his treating psychiatrist,
Dr. Guyer, which stated that Gilewski suffered from major depression and was unable to work.
Dr. Guyer further noted that he expected to see improvement in six to twelve months. Provident
began paying benefits effective June 2009 and continued until July 2013 when Provident
determined that Gilewski was able to return to his previous occupation.
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The first policy, which provided 24 months of disability benefits, is not at issue in this
case. The second policy requires Provident to pay monthly benefits to a participant who satisfies
various conditions, including being disabled within the meaning of the term as defined by the
policy. The policy states:
Disability, or disabled, means that, due solely to Injuries or Sickness:
1. you have a Loss of Time or Duties in your occupation; and
2. you have a Loss of Earnings of at least 20%.
. . .
Loss of Time or Duties means that:
1. you are not able to perform one or more of the substantial and material duties
of your occupation; or
2. you are not able to perform the substantial and material duties of your
occupation for as much time as you regularly performed them before you became
disabled.
. . .
Your occupation means the occupation . . . in which you are regularly engaged at
the time you become disabled.
Policy at 5-7 (emphasis omitted).
2009-2011
Provident paid Gilewski all available benefits under the first policy. Provident initially
denied Gilewski’s claim under the second policy because it determined that Gilewski had
negative earnings during the years preceding his disability onset date and therefore had not
sustained a 20-percent earnings loss as required under the policy. Provident later reconsidered
that determination, however, and paid all past due benefits. That dispute was resolved and is not
at issue in this appeal.
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Provident received periodic updates from Gilewski’s treating health-care professionals.
On January 5, 2010, Gilewski’s treating psychologist, Dr. Roberts, submitted documentation to
Provident noting that Gilewski’s depression had been severe in June 2009, but had improved to
moderate by October 2009. Dr. Roberts estimated that it was likely Gilewski would be ready to
work at least part-time by June 2010. In June 2011, Dr. Roberts submitted another report stating
that Gilewski was less depressed and feeling more hopeful about the future, but noting that it
would continue to be too stressful for Gilewski to run a large company.
2011-2013
In November 2010, Gilewski underwent a forensic psychiatric examination as part of his
bankruptcy proceeding. He was examined by Dr. Gerald Shiener, a board certified psychiatrist.
Dr. Shiener diagnosed Gilewski with “Major depression, recurrent and chronic,” and concluded
that Gilewski’s “current condition is incompatible with any sort of competitive employment.”
Because Dr. Shiener was not one of Gilewski’s regular treating physicians at this time, his initial
report was not sent to Provident at the time it was created. Gilewski, however, began to see Dr.
Shiener monthly after November 2010. Dr. Shiener began providing regular attending physician
statements to Provident in June 2011. However, the statements were simply photocopies of
previous statements with only the date changed, noting Gilewski’s diagnosis of “major
depression,” stating that he cannot work and that it “cannot [be] determined” when he will be
able to return to work. Gilewski stopped seeing Dr. Roberts in May 2011 and it appears that Dr.
Shiener became Gilewski’s sole treating physician for his depressive disorder. Dr. Robert’s last
treatment note, dated May 12, 2011, indicated that Gilewski was noticing “more energy” and
“was better able to think clearly” after a change in his medications.
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In early 2012, Provident began requesting further documentation from Dr. Shiener about
Gilewski’s current condition and prognosis. Dr. Shiener had been Gilewski’s treating physician
for a year, and he had provided Provident only with photocopies of the same attending physician
statement with the date changed each month. Provident sent a letter to Dr. Shiener on June 21,
2012, stating that it had sent him four previous requests for “additional information.” On June
18, 2012, Dr. Shiener responded with a letter stating that it was his policy not to release the
requested records because disclosure of sensitive personal information limits a patient’s ability to
participate in treatment. Dr. Shiener enclosed a copy of the narrative report he had sent to
Gilewski’s attorney on November 11, 2010, when he first examined Gilewski, and he said that
Gilewski’s condition “although stable is unimproved” and stated that Gilewski had “made an
attempt to withdraw from antidepressant medication which led to a significant setback and
reemergence of his depressive symptomatology.”
On December 6, 2012, Provident sent a letter to Dr. Shiener requesting that, in light of his
policy regarding the release of medical records, he provide the following: (1) a list of the dates
he treated Gilewski; (2) Gilewksi’s Global Assessment of Functioning score (referred to as the
“GAF” score in the record)1
every six months; and (3) a written summary of Gilewski’s current
condition, restrictions, and treatment plan, including medications. On February 20, 2013, Dr.
Shiener responded with a letter stating that he had seen Gilewski monthly since November 2010,
1
“Global Assessment of Functioning” is a simple ratings scale from the Diagnostic and Statistical Manual of Mental
Disorders for evaluating how well a person is able to function and go about their life. The scale range is from 0 to
100, where higher scores indicate greater levels of functioning. Optimal mental health and coping capabilities are
represented by scores in the 91–100 range. Persons with mild psychological problems fall in the 71–90 range.
Severe problems fall in the 21 – 30 range and 1–10 is reserved for persistently suicidal persons or persons incapable
of meeting even minimal personal hygiene standards. The GAF score is made as a standard part of all
psychiatric/psychological diagnoses. A score between 51 and 60 means moderate symptoms of mental illness are
present, or that a person’s functioning in school, work, or social situations is moderately impaired. The Diagnostic
and Statistical Manual of Mental Disorders provides some examples of moderate mental illness: Flat affect and
circumstantial speech and occasional panic attacks. Examples of moderate functional impairments are few friends,
and conflicts with peers or co-workers. The GAF is just one tool used by clinicians to develop the clinical picture. It
cannot be used in isolation from the rest of the evidence to make a disability decision.
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and he enclosed a services-rendered accounting ledger listing the dates of Gilewski’s visits but
no medical information. The letter further stated that Gilewksi’s Global Assessment of
Functioning score was 40 when the treatment relationship began and increased to 59 in late 2011,
that it fell to 40 thereafter, and that it had stabilized at around 50 after an adjustment in
Gilewski’s medications. Finally, Dr. Shiener listed Gilewski’s medications and described his
treatment plan.
After reviewing Dr. Shiener’s letter, Dr. John Szlyk, an in-house psychiatrist at
Provident, spoke with Dr. Shiener about Gilewski’s condition and treatment. After speaking
with Dr. Shiener, Dr. Szlyk made a file notation observing that after four years of treatment,
Gilewski still fluctuated in activity levels and symptoms. He noted that the duration of
Gilewski’s recovery had gone from a 6-12 month window in late 2009 and early 2010 to
“uncertain” under Dr. Shiener’s care. Based on this, Dr. Szlyk recommended that Provident
obtain an independent medical examination “to clarify the insured’s diagnostic formulation, to
assess his recent functional status and current Behavioral Health-based R/L’s, to provide
recommendations for appropriate treatment, and to offer a timeframe for functional recovery
with such care.” Dr. Szlyk opined that after four years of treatment with only marginal gains
reported that more “aggressive/intense” treatment was needed. Provident selected Dr. Calmeze
Dudley, a board certified psychiatrist, to conduct the exam of Gilewski.
On June 19, 2013, Dr. Dudley examined Gilewski. Dr. Dudley diagnosed Gilewski with
“Major Depressive Disorder, Unipolar, stabilized,” and assigned him a Global Assessment of
functioning score of 80. Dr. Dudley’s independent psychiatric evaluation consisted of a history,
mental status examination and record review. Dr. Dudley reported general improvement in sleep
(8-9 hours per night) and increased energy despite some ongoing affective symptoms with
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Gilewski reporting “good days and bad days.” Dr. Dudley noted that Gilewski had recently
restarted a regular exercise program consisting of gym workouts three to four times per week and
weekly tennis with his attorney. Gilewski also reported to Dr. Dudley that he was able to spend
time with close friends, enjoyed watching television and hunting, which he had done the
previous winter, fishing, and taking family vacations to his parents’ homes in Northern Michigan
and Florida. Gilewski reported that he and his wife shared the home chores and the care of their
severely disabled 11-year-old son. Gilewski stated that his mood would have to be more stable
before trying to return to work and that he had anticipatory anxiety at the prospect. Dr. Dudley
noted that Gilewski “continues to be maintained on antidepressant medication and by all
accounts is doing relatively well.” Dr. Dudley concluded that Gilewski did not require a
psychiatric disability status and that he was able to return to work without restrictions. Based on
Dr. Dudley’s report, Provident’s Dr. Szlyk concluded that Gilewski did not have restrictions or
limitations that prevented him from returning to work. Dr. Szylk entered the following review of
Dr. Dudley’s examination into the administrative record on July 2, 2013:
Medical Issue: Insured is a 44 year old Auto-Related Molding Shop Owner with a
history of Major Depressive Disorder who claimed disability as of 6-2-2009. The
insured has been engaged in Behavioral Health treatment over nearly 4 years with
no report of his return to his former occupational duties. Questions have arisen
regarding the insured’s diagnostic formulation, the current level of support for
Behavioral Health-based R/L’s, his engagement in appropriate Behavioral Health
treatment, and his prognosis for functional recovery with continued care. It has
appeared Dr. Shiener has viewed the insured as more ill than other providers
have,—and yet has provided less intensive Behavioral Health treatment as the
insured has seemingly done less well. Given the limited information provided by
Dr. Shiener as he had taken over the care of the insured in 2011, it has been
difficult to reconcile his reports of the insured’s doing poorly with a poor
prognosis with other clinical information indicating the insured’s clinical
progress, increased activity level, and thoughts of developing a small business.
On July 12, 2013, Provident notified Gilewski that it would terminate his benefits based
on its determination that he was able to perform the duties of his occupation. The termination
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letter stated that Dr. Dudley noted a diagnosis of major depressive disorder that has been
stabilized. The termination letter also noted that Dr. Dudley concluded that Gilewski was doing
“relatively well” and should continue on antidepressants, and that he was probably at or near
maximum medical recovery. Benefits Termination Letter at 2, dated July 12, 2013. The letter
went on to explain that the medical information indicated that Gilewski is able to perform the
duties of his occupation and benefits would cease.
On September 4, 2013, Dr. Shiener sent Provident a letter responding to Dr. Dudley’s
report. Dr. Shiener stated that he believed Dr. Dudley’s assessment was incorrect, and that
Gilewski was limited in his ability to take pleasure in activities and that his mood was markedly
depressed. Dr. Shiener also noted that Dr. Dudley had limited experience in treating depressed
patients. In an October 8, 2013, letter to Provident, Dr. Dudley responded to Dr. Shiener’s
criticisms. Dr. Dudley stated that Dr. Shiener’s opinions were inconsistent with those rendered
by Gilewski’s previous medical providers, and that, if the diagnosis provided by Dr. Shiener was
accurate, Gilewski would require “a more intensified treatment intervention.” Finally, Dr.
Dudley defended his qualifications to render an opinion, pointing out that he had 27 years of
experience treating depressed patients. Thereafter, Provident informed Gilewski that it would
not change its benefits decision in light of the additional information provided by Dr. Shiener
and informed Gilewski of his right to appeal.
Administrative Appeal
On January 3, 2014, Gilewski appealed the termination of his benefits to Provident.
Gilewski provided additional materials, including affidavits from family members describing his
condition and activities, an affidavit from an executive in the automobile mold industry detailing
the demands of that position, and a report from a vocational expert. Dr. Peter Brown, an
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independent board certified psychiatrist hired by Provident, reviewed Gilewski’s file for the
appeal but did not conduct an independent medical examination. Dr. Brown concluded that
Gilewski’s medical information did not support any restrictions or limitations. Dr. Brown noted
that, although it was difficult to assess Dr. Shiener’s conclusions without medical records,
Gilewski’s course of treatment was not consistent with a severe and pervasive psychiatric
impairment. Dr. Brown also found that the Dr. Dudley’s independent examination was
“comprehensive, thoughtful and consistent with professional standards.”
On January 30, 2014, Provident notified Gilewski that it had affirmed its denial of
benefits. The letter provided Provident’s reasoning for denying the appeal:
The [independent] examiner [Dr. Dudley] did not find evidence of occupationally
precluding restrictions or limitations. He concluded that the current level of
treatment is appropriate and consistent with a stable condition. He recommended
ongoing treatment.
The attending psychiatrist [Dr. Shiener] has consistently asserted Mr. Gilewski
continues to have severe and pervasive psychiatric impairment. The lack of actual
treatment records does limit capacity to value this assertion. However, the course
of treatment with reportedly monthly psychotherapy and a relatively modest and
predominantly stable regimen through mid-2013 is not consistent with the
presence of severe and pervasive psychiatric impairment.
Appeal Denial Letter at 2-3, dated January 30, 2014. The letter stated that Gilewski’s treatment
records would be helpful in evaluating Dr. Shiener’s conclusions, and that if those records were
not available, Provident would review a summary that included changes in treatment and dates of
medical services during 2013. Gilewski did not provide the suggested documents.
Following the denial of his appeal, Gilewski filed this action in district court seeking
review of Provident’s decision pursuant to the Employee Retirement Income Security Act, 29
U.S.C. § 1132(a)(1)(B). Gilewski alleged that Provident wrongly terminated his long-term
benefits because the substantial weight of the evidence in the administrative record demonstrates
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that he has an ongoing disability and is unable to work under the terms of the policy. After a de
novo review of the record, the district court found that Gilewski was not disabled as defined by
the policy and affirmed Provident’s decision to terminate benefits. Gilewski v. Provident Life
and Accident Ins. Co., No. 1:15-CV-238, 2016 WL 3355555 (W.D. Mich. June 17, 2016). This
appeal followed.
II. ANALYSIS
The sole issue on appeal is whether the district court erred in holding that Provident’s
decision to terminate Gilewski’s long-term disability benefits was supported by substantial
evidence in the administrative record. Gilewski’s primary complaint is that the Provident did not
give enough weight to the opinion of his treating physician, Dr. Shiener, and relied instead on the
opinions of nontreating psychiatrists, only one of whom had actually examined Gilewski.
Gilewski also contends on appeal that the district court erred in not requiring Provident to
consider the evidence submitted by Gilewski regarding a vocational expert who opined about the
demands of Gilewski’s occupation, and he also maintains that the administrative process was
marred by a conflict of interest because Provident is both the decisionmaker and the payor of
benefits.
Standard of Review
Provident does not dispute that the plan administrator’s decision in this case is not
entitled to deference. “In cases in which a plan administrator is given no discretionary authority
by the plan, review of the plan administrator’s decision by the district court—as well as the court
of appeals—is de novo, with respect to both the plan administrator’s interpretation of the plan
and the plan administrator’s factual findings.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d
609, 616 (6th Cir. 1998). We therefore review the district court’s judgment on Gilewski’s claim
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de novo, applying the same standard of review to the plan administrator’s action as the district
court, taking a “fresh look” at the administrative record, and according no deference or
presumption of correctness to the decisions of either the district court or plan administrator. Id.
Medical Evidence
To succeed in his claim for disability benefits under ERISA, Gilewski must prove by a
preponderance of the evidence that he was “disabled,” as that term is defined in the policy. See
Tracy v. Pharmacia & Upjohn Absence Payment Plan, 195 F. App’x 511, 516 n.4 (6th Cir.
2006) (plaintiff bears the burden of proof in an ERISA benefits case). The policy defines
“disability” in part to mean that the insured has experienced a “Loss of Time or duties in your
occupation.” The definition of “Loss of Time or Duties in your occupation” requires that “you
are not able to perform one or more of the substantial and material duties of your occupation,” or
that “you are not able to perform the substantial and material duties of your occupation for as
much time as you regularly performed them before you became disabled.” Policy at 5, 7. The
administrative record demonstrates that every health-care professional agrees that Gilewski
suffers from Major Depressive Disorder. The question is whether that condition had stabilized
sufficiently as of July 12, 2013, to allow Gilewski to return to his past profession running an
automotive supply company. After a careful and comprehensive review of the full
administrative record, we find that Gilewski has not established that he is unable to work in a
position equivalent to when he was the owner of Radiance Mold and Engineering.
In reaching this conclusion, we look at the medical evidence. “Generally speaking, an
administrator may not summarily reject the opinions of a treating physician, but must instead
give reasons for adopting an alternative opinion.” Elliott v. Metro. Life Ins. Co., 473 F.3d 613,
620 (6th Cir. 2006). Administrators, however, are not obligated to accord special deference to
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the opinions of treating physicians. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834
(2003). To that extent, a lack of objective medical evidence upon which to base a treating
physician’s opinion has been held sufficient reason for an administrator’s choice not to credit
that opinion. See, e.g., Boone v. Liberty Life Assur. Co. of Boston, 161 F. App’x 469, 473 (6th
Cir. 2005) (administrator’s decision not to credit treating physicians’ assessments not arbitrary
because the assessments were not supported by objective evidence, as required by the plan
document). Provident is not entitled to simply ignore the opinions provided by Gilewski’s
treating psychiatrist, but it can resolve conflicts between that opinion and the opinions of its own
file reviewers or independent examiners if it provides reasons—including a lack of objective
evidence from the treating physician—for adopting the alternative opinions that are consistent
with its responsibility to provide a full and fair review of the claim. See Curry v. Eaton Corp.,
400 F. App’x 51, 55 (6th Cir. 2010); Calvert v. Firstar Finance, Inc., 409 F.3d 286, 296 (6th Cir.
2005) (There is “nothing inherently objectionable about a file review by a qualified physician in
the context of a benefits determination.”)
We recognize that depression can be difficult to measure through “objective” tests, but
that difficulty does not render us unable to evaluate the medical evidence. The record provides
numerous evaluations made by mental-health professionals over a four-year period. There are
self-reporting records from the patient collected during examinations, home visits, and in the
form of activity logs completed by Gilewski. The medical evidence in the administrative record
indicates that depression made it difficult for Gilewski to concentrate, handle stress, remember
things, interact with employees and customers or to make decisions. We acknowledge that all
the mental health professionals who have evaluated Gilewski since the onset of his illness, both
treating and nontreating, have diagnosed major depression. But the records also show that with
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therapy and medication, Gilewski has shown consistent improvement in his activity level in the
four-year period since he became ill, including participating in regular exercise, taking vacations,
“tinkering” in his barn, hunting and fishing, handling chores around the house, including child
care, taking care of his own hygiene, and interacting with family and friends appropriately.
Gilewski repeatedly maintains in his briefs on appeal that Dr. Shiener’s opinion was “not
credited.” Dr. Shiener’s attending physician statements provided to Provident, however, did not
contain any analysis or content to help enlighten or explain in any detail why Dr. Shiener
believed Gilewski could not work or what treatment he was providing to move Gilewski toward
better mental health. Dr. Shiener submitted photocopies of the exact same statements with only
the date changed for over a year: they said simply said that Gilewski was depressed, unable to
work and his prognosis was uncertain. Dr. Shiener stopped submitting photocopies of prior
statements in the spring of 2013 after Provident asked for an independent examination, but even
his later statements provided minimal information. For example, Dr. Shiener changed
Gilewski’s prognosis from “good” to “guarded” in April 2013 without further explanation. With
such abbreviated analyses from Dr. Shiener, we cannot say on review of the administrative
record that it was improper of Provident to fail to give controlling weight to Dr. Shiener’s
opinion.
In addition to a dearth of information from Dr. Shiener, the attending physician
statements and reports he did provide were incompatible with Gilewski’s self-reported activity
level and abilities in 2012 and 2013, as well as with the other medical opinions, including the
opinion of Dr. Dudley, who performed an independent medical examination on Gilewski in June
2013, and the file reviews of Dr. Szylk, Provident’s in-house psychiatrist, and Dr. Brown, the
independent reviewer for the administrative appeal. The nontreating physicians all agreed with
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Dr. Shiener’s diagnosis of major depressive disorder, but the nontreating physicians believed the
condition to be “stabilized” and well-treated with Gilewski’s current medications. Dr. Dudley
noted that if after four years of treatment Gilewski’s condition and prognosis were as poor as Dr.
Shiener believed, Gilewski should be receiving more intensive treatment through changed
medications, intensive psychotherapy, or even in-patient treatment at a psychiatric facility. Even
after Dr. Dudley sent his report to Dr. Shiener, Dr. Shiener gave no indication that he thought a
change in treatment was needed at that time.
Dr. Shiener’s opinion is also at odds with the earlier opinions of Dr. Guyer and Dr.
Roberts who treated Gilewski in 2009 through 2011. Both treating doctors indicated in their
treatment notes that Gilewski was improving by 2010, and Dr. Roberts noted in 2011 that
Gilewski should be able to return to work within six months. Gilewski himself told Dr. Roberts
in 2010 that he was feeling better and was thinking about what he might do as far as future work.
We recognize that these reports are not as current as Dr. Shiener’s, but without medical records
or further explanation from Gilewski, we are left to review an administrative record that shows
progress for two years under two doctors followed by apparent setbacks in 2012 and 2013
according to Dr. Shiener’s reports. Dr. Shiener notes the tragic death of one of Gilewski’s good
friends in 2011 and Gilewski’s decision to cut back on his medications as reasons for the
setback. What the record does not show is why Dr. Shiener did not respond to these setbacks
more vigorously if he believed them to so severely compromise Gilewski’s progress up to that
time.
Ability to Return to Previous Position
We also looked to the nature of Gilewski’s previous position. See Elliott, 473 F.3d at
618 (a decision on a disability benefits claim requires “an application of the relevant evidence to
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the occupational standard” because “medical data, without reasoning, cannot produce a logical
judgment about a claimant’s work ability”). Both parties agree that Gilewski’s job as the owner
and president of an auto supply company was demanding, stressful and required long hours. Dr.
Dudley, the independent psychiatrist who examined Gilewski, was instructed to consider
whether Gilewski was disabled from performing the material and substantial duties of his
previous occupation as the owner and president of an automotive supply company. Dr. Dudley
concluded that Gilewski’s Global Assessment of Functioning score of 80 indicated no more than
a “slight impairment” in occupational functioning, and he determined that Gilewski did not have
any restrictions that would prevent him from returning to his previous position. Gilewski had
provided Provident with extensive information about the nature and duties of his occupation.
They are not in dispute. Dr. Dudley, and the psychiatrists who reviewed the file, had this
information when they determined that Gilewski could return to work with no limitations.
Gilewski disputes this finding and contends that Provident should have provided a job
analysis by consulting a vocational expert about his ability to return to his former occupation.
Provident maintains it was not required to do so. See Judge v. Metro. Life Ins. Co., 710 F.3d
651, 662 (6th Cir. 2013) (collecting cases); Burge v. Republic Engineered Prods., Inc., 432 F.
App’x 539, 550 (6th Cir. 2011) (“Republic was also not required to consider vocational
evidence, as opposed to medical evidence, in analyzing Burge’s claim.”) (citing Douglas v. Gen.
Dynamics Long Term Disability Plan, 43 F. App’x 864, 870 (6th Cir. 2002) (vocational expert
not required outside of social security context)). Vocational expert testimony “is the special
creature of social security,” and has no relevance to long-term disability claims like the one here
where the question is whether Gilewski is able to return to his former position based on the
medical evidence. Conley v. Pitney Bowes, 176 F.3d 1044, 1050 (8th Cir. 1999).
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Conflict of Interest
Gilewski correctly asserts that Provident has a conflict of interest because of its dual role
as both payor of benefits and decisionmaker, and that courts treat this conflict as a factor in
reviewing a plan administrator’s decision. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111
(2008). The Supreme Court also noted in Glenn that such a conflict “should prove more
important . . . where circumstances suggest a higher likelihood that it affected the benefits
decision.” Id. at 117; accord Judge, 710 F.3d at 663 (“[T]his court has given greater weight to
the conflict-of-interest factor when the claimant ‘offers more than conclusory allegations of
bias.’”) (quoting DeLisle v. Sun Life Assur. Co. of Canada, 558 F.3d 440, 445 (6th Cir. 2009)).
Gilewski has demonstrated no circumstances indicating a need to give the conflict significant
weight. Gilewski’s conflict argument on appeal centers on his assertion that Dr. Dudley, the
independent psychiatrist, “relied” on the summaries written by Provident’s in-house psychiatrist,
Dr. Szylk. As the independent medical examiner, Dr. Dudley was provided with all the medical
records in Gilewski’s file, which included treating physician records as well as in-house
documents. Our review of Dr. Dudley’s report does not show that Dr. Dudley “relied” on Dr.
Szylk’s summaries. Dr. Dudley conducted his own examination of Gilewski and wrote a
comprehensive report. The fact that Dr. Dudley agreed with some of Dr. Szylk’s summaries and
put them in his report does not demonstrate that Dr. Dudley was not independent and unbiased in
reporting on his examination of Gilewski.
In conclusion, reviewing the administrative record and giving no deference to Provident’s
decision to terminate benefits, we find substantial evidence supports Provident’s decision to
terminate Gilewski’s long-term disability benefits. We affirm the judgment of the district court.
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
JOSEPH DESALVO,
Plaintiff,
v.
BAYER HEALTHCARE
PHARMACEUTICALS INC., et al.,
Defendants.
Case No. 3:14-cv-05670-SI
ORDER RE PLAINTIFF'S COUNSELS'
MOTION TO WITHDRAW
Counsel for plaintiff have moved to withdraw, stating that they have been unable to contact
plaintiff, despite repeated efforts to do so. See Dkt. 38. Defendants do not oppose the motion.
Prior to the Court's granting the motion to withdraw, plaintiff's current counsel are ORDERED to
do the following things:
1. Counsel shall inform the Court of Mr. DeSalvo's mailing address.
2. Counsel shall send to Mr. DeSalvo, by certified mail, copies of the pleadings in this
case, including their motion to withdraw as counsel, together with copies of the pending MDL
motions, and shall explain to him the status of the MDL proceedings and the possible
consequences of an order from the Panel.
3. Counsel shall prepare and file a declaration, served on Mr. DeSalvo and opposing
counsel, stating the efforts they have made to contact Mr. DeSalvo, stating that they have served
him with the information identified above, and attaching any evidence of same (e.g., return
receipts on certified mail) in their possession.
///
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United States District Court
Northern District of California
When the Court receives the declaration identified above, it will consider granting the
motion to withdraw. If the motion is granted, Plaintiff DeSalvo will become pro se in this
litigation.
IT IS SO ORDERED.
Dated: July 9, 2015
________________________
SUSAN ILLSTON
United States District Judge
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For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
DAVID M. TUTTELMAN,
Plaintiff,
v.
SAN JOSE POLICE OFFICER
ANTHONY LUISI, SAN JOSE
POLICE OFFICER RONALD BAYS,
Defendants. /
No. C 02-02656 WHA
FINAL CHARGE TO THE JURY
AND SPECIAL VERDICT FORM
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1.
Members of the jury, now that you have heard all the evidence and arguments by
counsel, it is my duty to instruct you on the law that applies to this case. A copy of these
instructions will be available in the jury room for you to consult as necessary.
It is your duty to find the facts from all the evidence in the case. To those facts, you
will apply the law as I give it to you. You must follow the law as I give it to you whether you
agree with it or not. You must not be influenced by any personal likes or dislikes, opinions,
prejudices or sympathy. That means that you must decide the case solely on the evidence
before you. You will recall that you took an oath promising to do so at the beginning of the
case. In following my instructions, you must follow all of them and not single out some and
ignore others; they are all equally important. You must not read into these instructions or into
anything the Court may have said or done as suggesting what verdict you should return —
that is a matter entirely up to you.
2.
The evidence from which you are to decide what the facts are consists of:
1. The sworn testimony of witnesses, on both direct and
cross-examination, regardless of who called the witness;
2. The exhibits which have been received into evidence;
3. The sworn testimony of witnesses in depositions, read into
evidence; and
4. Any facts to which the lawyers have stipulated. You must treat
any stipulated facts as having been conclusively proved.
3.
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such
as testimony by a witness about what that witness personally saw or heard or did.
Circumstantial evidence is proof of one or more facts from which you could find another fact.
By way of example, if you wake up in the morning and see that the sidewalk is wet, you may
find from that fact that it rained during the night. However, other evidence, such as a turned-on
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garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide
that a fact has been proved by circumstantial evidence, you must consider all the evidence in the
light of reason, experience and common sense. You should consider both kinds of evidence.
The law makes no distinction between the weight to be given to either direct or circumstantial
evidence. It is for you to decide how much weight to give to any evidence. You should base
your decision on all of the evidence regardless of which party presented it.
4.
In reaching your verdict, you may consider only the types of evidence I have described.
Certain things are not evidence, and you may not consider them in deciding what the facts are.
I will list them for you:
1. Arguments and statements by lawyers are not evidence.
The lawyers are not witnesses. What they have said in their opening statements,
closing arguments and at other times is intended to help you interpret the
evidence, but it is not evidence. If the facts as you remember them differ from the
way the lawyers have stated them, your memory of them controls.
2. A suggestion in a question by counsel or the Court is not evidence
unless it is adopted by the answer. A question by itself is not evidence. Consider
it only to the extent it is adopted by the answer.
3. Objections by lawyers are not evidence. Lawyers have a duty to
their clients to consider objecting when they believe a question is improper under
the rules of evidence. You should not be influenced by any question, objection or
the Court’s ruling on it.
4. Testimony or exhibits that have been excluded or stricken, or that
you have been instructed to disregard, are not evidence and must not be
considered. In addition, some testimony and exhibits have been received only for
a limited purpose; where I have given a limiting instruction, you must follow it.
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5. Anything you may have seen or heard when the Court was not in
session is not evidence. You are to decide the case solely on the evidence
received at the trial.
5.
In deciding the facts in this case, you may have to decide which testimony to believe and
which testimony not to believe. You may believe everything a witness says, or part of it or
none of it. In considering the testimony of any witness, you may take into account:
1. The opportunity and ability of the witness to see or hear or know
the things testified to;
2. The witness’ memory;
3. The witness’ manner while testifying;
4. The witness’ interest in the outcome of the case and any bias or
prejudice;
5. Whether other evidence contradicted the witness’ testimony;
6. The reasonableness of the witness’ testimony in light of all the
evidence; and
7. Any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify. Nor does it depend on which side called witnesses or produced evidence.
You should base your decision on all of the evidence regardless of which party presented it.
6.
You are not required to decide any issue according to the testimony of a number of
witnesses, which does not convince you, as against the testimony of a smaller number or other
evidence, which is more convincing to you. The testimony of one witness worthy of belief is
sufficient to prove any fact. This does not mean that you are free to disregard the testimony of
any witness merely from caprice or prejudice, or from a desire to favor either side. It does
mean that you must not decide anything by simply counting the number of witnesses who have
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testified on the opposing sides. The test is not the number of witnesses but the convincing force
of the evidence.
7.
A witness may be discredited or impeached by contradictory evidence or by evidence
that, at some other time, the witness has said or done something or has failed to say or do
something that is inconsistent with the witness’ present testimony. If you believe any witness
has been impeached and thus discredited, you may give the testimony of that witness such
credibility, if any, you think it deserves.
8.
Discrepancies in a witness’ testimony or between a witness’ testimony and that of other
witnesses do not necessarily mean that such witness should be discredited. Inability to recall
and innocent misrecollection are common. Two persons witnessing an incident or a transaction
sometimes will see or hear it differently. Whether a discrepancy pertains to an important matter
or only to something trivial should be considered by you.
However, a witness willfully false in one part of his or her testimony is to be distrusted
in others. You may reject the entire testimony of a witness who willfully has testified falsely on
a material point, unless, from all the evidence, you believe that the probability of truth favors
his or her testimony in other particulars.
9.
In determining what inferences to draw from evidence you may consider, among other
things, a party’s failure to explain or deny such evidence.
10.
You have heard testimony from witnesses referred to as “expert witnesses.” These are
persons who, because of education or experience, are permitted to state opinions and the
reasons for their opinions. Opinion testimony should be judged just like any other testimony.
You may accept it or reject it, and give it as much weight as you think it deserves, considering
the witness’ education and experience, the reasons given for the opinion, and all the other
evidence in the case. If an expert witness was not present at the events in question, his or her
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opinion is necessarily based on an assumed set of circumstances. In evaluating the opinion
during the trial, you should take into account the extent to which you do agree or do not agree
with the circumstances assumed by the expert witness.
11.
You should decide the case as to each defendant. Unless otherwise stated, the
instructions apply to all parties.
12.
In these instructions, I will often refer to a party’s “burden of proof.” Let me explain
what that means. When a party has the burden of proof on any claim by a preponderance of the
evidence, it means you must be persuaded by the evidence that the claim is more probably true
than not true. To put it differently, if you were to put the evidence favoring a plaintiff and the
evidence favoring a defendant on opposite sides of a scale, the party with the burden of proof on
the issue would have to make the scale tip somewhat toward its side. If the party fails to meet
this burden, then the party with the burden of proof loses on that issue. Preponderance of the
evidence basically means “more likely than not.”
13.
On any claim, if you find that plaintiff carried his burden of proof as to each element of
a particular claim, your verdict should be for plaintiff on that claim. If you find that plaintiff
did not carry his burden of proof as to each element, you must find against plaintiff on that
claim. This same principle also applies to defendants on claims for which they have the burden
of proof.
14.
I will now turn to the specifics of this case. Plaintiff David Tuttelman contends that his
federal civil rights were violated when Officers Ronald Bays and Anthony Luisi used excessive
force when they arrested him. He also contends that the officers subjected him to an unlawful
arrest under the Fourth Amendment. Plaintiff also seeks to recover from defendants for an
alleged violation of California law — namely, that the officers interfered with his right to free
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speech by threatening or committing violent acts. In contrast, defendants argue that plaintiff
was lawfully arrested because he assaulted Officer Luisi and resisted arrest.
15.
As you know, the events in this case occurred in 1998. Please do not speculate
concerning the reason for delay in bringing this case to trial. This case is not barred by any
statute of limitations.
16.
In this case you have heard evidence about the initial stop. As I have told you, no claim
is made in this case that the initial stop of his vehicle was improper.
You have heard evidence that Officer Luisi attempted to perform a pat search on
Mr. Tuttelman. Officers are entitled to perform pat searches in such circumstances only if
certain requirements are present. In this case, you do not need to determine whether or not the
attempted pat search was lawful.
You have heard evidence concerning these events as background to the issues you do
have to decide. You have to decide whether defendants Officer Luisi and Officer Bays used
excessive force against Mr. Tuttelman, whether they unlawfully arrested him, and whether they
interfered with his right to free speech by threatening or committing violent acts.
17.
You need not be concerned with or speculate regarding what happened during plaintiff’s
criminal prosecution. What happened in the criminal prosecution is not determinative of the
issues in this case and should not influence any of the decisions you make in this case.
18.
I will now give you the details on the law governing these claims. Plaintiff’s first claim
is alleged under a federal civil-rights act. Section 1983 of Title 42 of the United States Code
allows individuals to sue for violations of rights protected under the United States Constitution.
To establish this Section 1983 claim, plaintiff has the burden to prove all of the following
elements by a preponderance of the evidence against each defendant:
1. The acts of each defendant were intentional;
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2. Each defendant acted under color of state law; and
3. the acts of the defendant caused the deprivation of the plaintiff’s
Fourth Amendment rights.
If you find that each of the elements on which plaintiff has the burden of proof has been
proven, your verdict should be for plaintiff. If, on the other hand, plaintiff has failed to prove
one or more of these elements, your verdict should be for defendant.
19.
Each element will now be explained more fully. First, you must find that the acts of each
defendant were intentional. An act is intentional if it is done knowingly, that is, if it is done
voluntarily and deliberately and not because of accident or negligence. An act may be
intentional even if the act was committed without malice or ill will.
20.
Second, acts are done under color of law when a person acts or purports to act in the
performance of official duties under any state, county, or municipal law, ordinance or regulation.
The parties have stipulated that Officer Bays and Officer Luisi acted under color of law.
21.
Third, plaintiff must show that defendants’ conduct “caused” plaintiff to be deprived of
his Fourth Amendment rights. The law defines cause in its own particular way. A cause of
injury is something that is a substantial factor in bringing about the injury. A substantial factor
in causing harm is a factor that a reasonable person would consider to have contributed to the
harm. It must be more than a remote or trivial factor. It does not have to be the only cause of
harm.
22.
The Fourth Amendment, one of the amendments that make up the Bill of Rights,
guarantees “the right of the people to be secure in their persons . . . against unreasonable
searches and seizures.” Plaintiff claims that the defendants, by using excessive force in making
an arrest, deprived plaintiff of the Fourth Amendment constitutional right to be free from an
unreasonable seizure.
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Under the Fourth Amendment, a law enforcement officer has the right to use such force
as is reasonably necessary under the circumstances to make an arrest. An unreasonable seizure
occurs when a law enforcement officer uses excessive force in making an arrest. In deciding
whether excessive force was used, you should consider the totality of the circumstances at the
time. The reasonableness of a particular use of force must be judged objectively from the
information available at the time from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.
Whether force is reasonably necessary or excessive is measured by the force a reasonable
and prudent law enforcement officer would use under the circumstances. Some of the things you
may want to consider in determining whether the defendants used excessive force are the
severity of the crime at issue, whether the plaintiff posed a reasonable threat to the safety of the
officers or others, and whether the plaintiff was actively resisting detention or attempting to
escape.
Under the Fourth Amendment, a police officer need not use the least intrusive degree of
force possible in a given situation. He need only act within that range of conduct which we
identify as reasonable. Whether an officer hypothetically could have used less painful, less
injurious, or more effective force in carrying out police work is not the issue. The issue is
whether the force used was reasonable, viewing the facts from the perspective of a reasonable
officer on the scene.
23.
Whenever a citizen is stopped by a police officer, he or she has a right to inquire of the
officer why he or she is being stopped. On the other hand, if the person stopped becomes hostile,
then the officers may take that fact into account in determining whether that person presents a
threat to officer security. Of course, any such determination must be reasonable, considering all
of the facts and circumstances.
24.
Plaintiff also claims that he was unlawfully arrested in violation of the
Fourth Amendment. A Fourth Amendment arrest occurs when a police officer, by means of
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physical force or show of authority, restrains the liberty of a citizen in such a way that a
reasonable citizen would reasonably believe under the circumstances that he or she was not free
to leave. Whether a person is placed under arrest depends upon all the surrounding
circumstances, including the extent that freedom of movement is curtailed and the degree and
type of force or authority used to effectuate the arrest.
25.
A warrantless arrest by a law enforcement officer is reasonable under the
Fourth Amendment where there is probable cause to believe that a criminal offense has been
or is being committed.
Probable cause exists if, under the totality of the circumstances known to the arresting
officer, a prudent officer would have concluded that there was a fair probability that the
individual had committed a crime. The vehicle code violations regarding the license plate were
not criminal offenses for which any arrest could be made, although it was permissible to stop
Mr. Tuttelman’s truck for these violations.
26.
You have heard evidence that the charges on which Mr. Tuttelman were arrested were
reduced to a traffic infraction and that Mr. Tuttelman pled nolo contendere to the infraction.
This does not mean that the more serious charges for which Mr. Tuttelman were arrested were
unsupported by probable cause. You have been allowed to hear evidence of these subsequent
events in order to place the story in its entire context and to avoid confusion. You should not
speculate why the district attorney made the decision to reduce the charges. Whether or not the
police had the probable cause to make the arrest in question is a decision you have to make based
on the evidence presented at this trial.
27.
If a person has knowledge, or by the exercise of reasonable care, should have knowledge,
that he is being searched or arrested by a peace officer, it is the duty of such person to refrain
from using any force or any weapon to resist such search or arrest. This is true even if the
officer lacks sufficient cause to conduct the search or make the arrest. On the other hand, if an
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officer uses excessive force to carry out a search or arrest against any individual, the individual
has a right to protect himself from the excessive force through reasonable self-defense.
28.
Every person who willfully resists, delays, or obstructs any police officer in the discharge
or attempt to discharge any duty of his office or employment, and who knows or reasonably
should know the other person is a police officer engaged in the performance of his duties, is
guilty of a violation of California Penal Code Section 148, subdivision (a)(1). A violation of this
statute is a misdemeanor. A police officer is discharging or attempting to discharge his duties if
he is lawfully detaining or attempting to detain a person for questioning or investigation.
A person is not guilty of this statute if the police officer was not acting lawfully at the time.
If you find that plaintiff violated this statute or that the officers could reasonably have believed
that plaintiff violated it, you must find that defendants had probable cause to arrest plaintiff
following any such violation.
29.
Pursuant to California Penal Code Section 243, subdivisions (b) and (c), every person
who willfully and unlawfully uses any force or violence and inflicts injury upon the person of a
peace officer engaged in the performance of his duties, and who knows or reasonably should
know that the other person is a peace officer and is engaged in the performance of his duties, is
guilty of the crime of a violation of Penal Code Section 243.
As used in this instruction, the words “force” and “violence” are synonymous and mean
the wrongful application of physical force against the person of another.
“Injury” means any physical injury which requires professional medical treatment. It is
the nature, extent, and seriousness of the purported injury that is determinative — not whether
the allegedly injured party sought medical treatment.
Violation of this section is established where:
1. A person willfully and unlawfully applied physical force against
the person of a peace officer;
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2. At that time the peace officer was engaged in the performance of
his duties;
3. The person who applied the physical force knew or reasonably
should have known that the other person was (a) a peace officer, and (b) engaged
in the performance of his duties; and
4. Injury was inflicted on the peace officer.
A person is not guilty of this statute if the police officer was not acting lawfully at the
time.
If you find that plaintiff violated this statute or that the officers could reasonably have
believed that plaintiff violated it, you must find that defendants had probable cause to arrest
plaintiff following any such violation.
30.
Plaintiff also makes a state-law claim. Plaintiff alleges that defendants Officer Bays and
Officer Luisi violated California Civil Code Section 52.1. Section 52.1 imposes liability on a
defendant who intentionally interferes with or attempts to interfere with a person’s civil rights by
threatening or committing violent acts. To establish this claim, plaintiff must prove all of the
following:
1. That Officer Luisi or Officer Bays interfered with or attempted to
interfere with plaintiff’s First Amendment right to free speech by threatening or
committing violent acts;
2. That Officer Luisi or Officer Bays injured plaintiff to prevent him
from exercising his right to free speech or retaliated against plaintiff for having
exercised his right to free speech;
3. That plaintiff was harmed; and
4. That the conduct of Officer Luisi or the conduct of Officer Bays
was a substantial factor in causing plaintiff’s harm.
If you find that each of these elements has been proved by plaintiff by a preponderance of
the evidence, your verdict should be for plaintiff on the California state-law claim. If, on the
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other hand, plaintiff has failed to prove one or more of these elements, your verdict should be for
the defendants.
31.
The First Amendment to the United States Constitution states that “Congress shall make
no law . . . abridging the freedom of speech.” The First Amendment protects a significant
amount of verbal criticism and challenge directed at police officers. The First Amendment
guarantees an individual’s right to oppose or challenge police action verbally without thereby
risking arrest. The First Amendment, however, does not protect language that is likely to
produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest. Police officers may resent having abusive language
directed at them, but they may not exercise their authority to punish individuals for conduct that
is protected by the First Amendment.
32.
That concludes the instructions on the issue of liability. Now I will discuss the issue
of damages. It is the duty of the Court to instruct you about the measure of damages.
By instructing you on damages, the Court does not mean to suggest for which party your verdict
should be rendered. The party seeking damages has the burden of proving damages by a
preponderance of the evidence.
33.
You are not permitted to include speculative damages, which means compensation for
future loss or harm which, although possible, is conjectural or not reasonably certain.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
However, if you determine that plaintiff has proven liability, you must compensate him for any
loss or harm caused by the injury in question which the evidence shows is reasonably certain.
34.
If you award damages on multiple claims, you must also indicate a total to eliminate any
overlapping damages and to prevent double counting, as set forth in the special verdict form.
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35.
In determining the measure of damages, you should consider:
1. The nature and extent of the injuries;
2. The disability, or loss of enjoyment of life experienced and which
with reasonable probability will be experienced in the future;
3. The mental, physical, emotional pain and suffering experienced
and which with reasonable probability will be experienced in the future; and
4. Any reasonable attorneys fees and expenses incurred in defending
the criminal case.
36.
Plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to
avoid or reduce damages. Defendants have the burden of proving by a preponderance of the
evidence:
1. That the plaintiff failed to use reasonable efforts to mitigate
damages; and
2. The amount by which damages would have been mitigated.
37.
If you find for plaintiff, you may, but are not required to, award punitive damages. The
purposes of punitive damages are to punish a defendant or defendants and to deter a defendant
and others from committing similar acts in the future.
The plaintiff has the burden of proving that punitive damages should be awarded, and
the amount, by a preponderance of the evidence. You may award punitive damages only if you
find that a defendant’s conduct was malicious, or in reckless disregard of the plaintiff’s rights.
Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of
injuring another. Conduct is in reckless disregard of the plaintiff’s rights if, under the
circumstances, it reflects complete indifference to the plaintiff’s safety, rights, or if the
defendant acts in the face of a perceived risk that his actions will violate the plaintiff’s rights
under federal law.
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If you find that punitive damages are appropriate, there will be a short supplemental
resumption of the trial to argue the appropriate amount of punitive damages. This would be
immediately after your verdict.
You may impose punitive damages against one defendant and not the other, or both,
or against neither of them.
38.
“Malice” means conduct which was intended to cause injury to plaintiff or despicable
conduct which was carried on with a willful and conscious disregard for the rights or safety of
others.
“Despicable conduct” is conduct which is so vile, base, contemptible, miserable,
wretched or loathsome that it would be looked down upon and despised by ordinary decent
people. A person acts with conscious disregard of the rights or safety of others when he or she
is aware of the probable dangerous consequences of his or her conduct and willfully and
deliberately fails to avoid those consequences.
“Oppression” means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights.
“Fraud” means an intentional misrepresentation, deceit or concealment of a material fact
known to the defendant with the intention on the part of the defendant of thereby depriving a
person of property or legal rights or otherwise causing injury.
39.
When you begin your deliberations, you should elect one member of the jury as your
foreperson. That person will preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement if you can do
so. Your verdict as to each claim and as to damages, if any, must be unanimous. Each of you
must decide the case for yourself, but you should do so only after you have considered all of the
evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
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Do not be afraid to change your opinion if the discussion persuades you that you should.
Do not come to a decision simply because other jurors think it is right. It is important that you
attempt to reach a unanimous verdict but, of course, only if each of you can do so after having
made your own conscientious decision. Do not change an honest belief about the weight and
effect of the evidence simply to reach a verdict.
I will give you a special verdict form to guide your deliberations.
40.
Some of you have taken notes during the trial. Whether or not you took notes, you
should rely on your own memory of what was said. Notes are only to assist your memory.
You should not be overly influenced by the notes. When you go into the jury room, the Clerk
will bring in to you the trial exhibits received into evidence to be available for your
deliberations.
41.
As I noted before the trial began, when you retire to the jury room to deliberate, you will
have with you the following things:
1. All of the exhibits received into evidence;
2. A work copy of these jury instructions for each of you;
3. A work copy of the verdict form for each of you; and
4. An official verdict form.
When you recess at the end of a day, please place your work materials in the brown
envelope provided and cover up any easels with your work notes so that if my staff needs to go
into the jury room, they will not even inadvertently see any of your work in progress.
42.
A United States Marshal will be outside the jury-room door during your deliberations.
If it becomes necessary during your deliberations to communicate with me, you may send a note
through the marshal, signed by your foreperson or by one or more members of the jury.
No member of the jury should ever attempt to communicate with me except by a signed writing,
and I will respond to the jury concerning the case only in writing or here in open court.
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If you send out a question, I will consult with the lawyers before answering it, which may take
some time. You may continue your deliberations while waiting for the answer to any question.
Remember that you are not to tell anyone — including me — how the jury stands, numerically
or otherwise, until after you have reached a unanimous verdict or have been discharged.
Do not disclose any vote count in any note to the Court.
43.
You have been required to be here each day from 7:30 A.M. to 1:00 P.M. Now that you
are going to begin your deliberations, however, you are free to modify this schedule within
reason. For example, if you wish to continue deliberating in the afternoons after a reasonable
lunch break, that is fine. The Court does, however, recommend that you continue to start your
deliberations by 8:00 A.M. If you do not reach a verdict by the end of today, then you will
resume your deliberations tomorrow and thereafter.
It is very important that you let the Clerk know in advance what hours you will be
deliberating so that the lawyers may be present in the courthouse at any time the jury is
deliberating.
44.
You may only deliberate when all of you are together. This means, for instance, that in
the mornings before everyone has arrived or when someone steps out of the jury room to go to
the restroom, you may not discuss the case. As well, the admonition that you are not to speak to
anyone outside the jury room about this case still applies during your deliberations.
45.
After you have reached a unanimous agreement on a verdict, your foreperson will fill in,
date and sign the verdict form and advise the Court that you have reached a verdict. The
foreperson should hold onto the filled-in verdict form and bring it into the courtroom when the
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jury returns the verdict. Thank you for your careful attention. The case is now in your hands.
You may now retire to the jury room and begin your deliberations.
Dated: November 2, 2006.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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JDDL
WO RP
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael Aaron Cypert,
Plaintiff,
vs.
Charles L. Ryan, et al.,
Defendants.
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No. CV 10-1009-PHX-GMS (JRI)
ORDER
Plaintiff Michael Aaron Cypert, who is confined in the Arizona State Prison ComplexEyman (ASPC-Eyman), has filed a pro se civil rights Complaint pursuant to 42 U.S.C.
§ 1983 (Doc. #1). Plaintiff has not paid the $350.00 civil action filing fee but has filed a
deficient Application to Proceed In Forma Pauperis (Doc. #3) and a “Certified Statement Of
Account” (Doc. #4). The Court will deny the Application to Proceed In Forma Pauperis
without prejudice and give Plaintiff 30 days to pay the fee or file a new, completed
Application to Proceed In Forma Pauperis.
I. Payment of Filing Fee
When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump
sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally
as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires
an affidavit of indigence and a certified copy of the inmate’s trust account statement for the
Case 2:10-cv-01009-GMS--JRI Document 5 Filed 05/19/10 Page 1 of 6
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JDDL - 2 -
six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must
submit statements from each institution where he was confined during the six-month period.
Id. To assist prisoners in meeting these requirements, the Court requires use of a form
application. LRCiv 3.4(a).
If a prisoner is granted leave to proceed in forma pauperis, the Court will assess an
initial partial filing fee of 20% of either the average monthly deposits or the average monthly
balance in Plaintiff’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial
partial filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The
balance of the fee will be collected in monthly payments of 20% of the preceding month’s
income credited to an inmate’s account, each time the amount in the account exceeds $10.00.
28 U.S.C. § 1915(b)(2).
II. Application Fails to Comply With Statute
Plaintiff has used the court-approved Application to Proceed In Forma Pauperis form
but Plaintiff’s form is missing the second page and therefore it has not been signed by
Plaintiff and it is missing the “Consent To Collection Of Fees From Trust Account” and
“Certificate Of Correctional Official As To Status Of Applicant’s Trust Account” sections
of the form.
In light of these deficiencies, Plaintiff’s Application to Proceed In Forma Pauperis
(Doc. #3) will be denied without prejudice and Plaintiff will be permitted 30 days to either
pay the $350.00 filing fee or file a new, completed Application to Proceed In Forma
Pauperis. Because Petitioner has sent in a “Certified Statement Of Account” (Doc. #4), he
will not be required to send another one.
III. Warnings
A. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule
83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other
relief with a notice of change of address. Failure to comply may result in dismissal of this
action.
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B. Copies
Plaintiff must submit an additional copy of every filing for use by the Court. See
LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice
to Plaintiff.
C. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these
warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to
comply with any order of the Court).
IT IS ORDERED:
(1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. #3) is denied
without prejudice.
(2) Within 30 days of the date this Order is filed, Plaintiff must either pay the
$350.00 filing fee or file a new, completed Application to Proceed In Forma Pauperis.
(3) If Plaintiff fails to either pay the $350.00 filing fee or file a completed
Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a
judgment of dismissal of this action without prejudice and without further notice to Plaintiff.
(4) The Clerk of the Court must mail to Plaintiff a court-approved form for filing
an Application to Proceed In Forma Pauperis (Non-Habeas).
DATED this 19th day of May, 2010.
Case 2:10-cv-01009-GMS--JRI Document 5 Filed 05/19/10 Page 3 of 6
Revised 4/9/06
Instructions for Prisoners Applying for Leave to Proceed in Forma Pauperis
Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal Court
You must pay the full filing fee of $350.00 for a civil action. If you later file an appeal,
you will be obligated to pay the $455.00 filing fee for the appeal.
If you have enough money to pay the full filing fee, you should send a cashier’s check
or money order payable to the Clerk of the Court with your complaint, petition, or notice of
appeal.
If you do not have enough money to pay the full filing fee, you can file the action
without prepaying the filing fee. However, the court will assess an initial partial filing fee. The
initial partial filing fee will be the greater of 20% of the average monthly deposits or 20% of the
average monthly balance in your prison or jail account for the six months immediately
preceding the filing of the lawsuit. The court will order the agency that has custody of you to
withdraw the initial partial filing fee from your prison or jail account as soon as funds are
available and to forward the money to the court.
After the initial partial filing fee has been paid, you will owe the balance of the filing fee.
Until the filing fee is paid in full, each month you will owe 20% of your preceding month's
income. The agency that holds you in custody will collect that money and forward it to the
court any time the amount in your account exceeds $10.00. The balance of the filing fee may
be collected even if the action is later dismissed, summary judgment is granted against you, or
you fail to prevail at trial.
To file an action without prepaying the filing fee, and to proceed with an action in forma
pauperis, you must complete the attached form and return it to the court with your complaint.
You must have a prison or jail official complete the certificate on the bottom of the form and
attach a certified copy of your prison or jail account statement for the last six months. If you
were incarcerated in a different institution during any part of the past six months, you must
attach a certificate and a certified copy of your account statement from each institution at which
you were confined. If you submit an incomplete form or do not submit a prison or jail account
statement with the form, your request to proceed in forma pauperis will be denied.
Even if some or all of the filing fee has been paid, the court is required to dismiss your
action if: (1) your allegation of poverty is untrue; (2) the action is frivolous or malicious; (3)
your complaint does not state a claim upon which relief can be granted; or (4) your complaint
makes a claim against a defendant for money damages and that defendant is immune from
liability for money damages.
If you file more than three actions or appeals which are dismissed as frivolous or
malicious or for failure to state a claim on which relief can be granted, you will be prohibited
from filing any other action in forma pauperis unless you are in imminent danger of serious
physical injury.
Case 2:10-cv-01009-GMS--JRI Document 5 Filed 05/19/10 Page 4 of 6
Revised 4/9/06 1
Name and Prisoner/Booking Number
Place of Confinement
Mailing Address
City, State, Zip Code
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
)
, ) CASE NO.
Plaintiff, )
)
vs. ) APPLICATION TO PROCEED
) IN FORMA PAUPERIS
, ) BY A PRISONER
Defendant(s). ) CIVIL (NON-HABEAS)
)
I, , declare, in support of my request to proceed in the above
entitled case without prepayment of fees under 28 U.S.C. § 1915, that I am unable to pay the fees for these
proceedings or to give security therefor and that I believe I am entitled to relief.
In support of this application, I answer the following questions under penalty of perjury:
1. Have you ever before brought an action or appeal in a federal court while you were incarcerated or detained?
GYes GNo If "Yes," how many have you filed? .
Were any of the actions or appeals dismissed because they were frivolous, malicious, or failed to state a
claim upon which relief may be granted? GYes GNo If "Yes," how many of them? .
2. Are you currently employed at the institution where you are confined? GYes GNo
If "Yes," state the amount of your pay and where you work.
3. Do you receive any other payments from the institution where you are confined? GYes GNo
If "Yes," state the source and amount of the payments.
Case 2:10-cv-01009-GMS--JRI Document 5 Filed 05/19/10 Page 5 of 6
Revised 4/9/06 2
4. Do you have any other sources of income, savings, or assets either inside or outside of the institution where
you are confined? GYes GNo
If "Yes," state the sources and amounts of the income, savings, or assets.
I declare under penalty of perjury that the above information is true and correct.
DATE SIGNATURE OF APPLICANT
CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT
I, , hereby consent to having the designated correctional officials at this
institution release to the Court my trust account information. I further consent to having the designated
correctional officials at this institution withdraw from my trust account the funds required to comply with the
order of this Court for the payment of filing fees in accordance with 28 U.S.C. § 1915(b).
My consent includes withdrawal from my account by correctional officials of partial initial payments to this
Court equal to 20% of the greater of:
(A) the average monthly deposits to my account for the six-month period preceding my filing of this
action, or
(B) the average monthly balance in my account for the six-month period preceding my filing of this
action.
My consent also includes monthly withdrawals from my account by correctional officials of an amount equal
to 20% of each month’s income. Whenever the amount in my account reaches $10.00, correctional officials will
withdraw that amount and forward it to the Court until the required filing fee is paid in full. I understand that I
am liable for paying the entire fee, even if my case is dismissed by the Court before the fee is fully paid.
DATE SIGNATURE OF APPLICANT
CERTIFICATE OF CORRECTIONAL OFFICIAL
AS TO STATUS OF APPLICANT’S TRUST ACCOUNT
I, , certify that as of the date applicant signed this application:
(Printed name of official)
The applicant’s trust account balance at this institution is: $
The applicant’s average monthly deposits during the prior six months is: $
The applicant’s average monthly balance during the prior six months is: $
The attached certified account statement accurately reflects the status of the applicant’s account.
DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION
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EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
UNITED STATES OF AMERICA PLAINTIFF
V. CASE NO. 4:05CV00605 GH
CHARLOTTE GARVEN, VERA DAGONHART, ROY SNIDER,
TOMMY SNIDER, KATHY SNIDER and NATALIE SNIDER,
Heirs of JULIAN SNIDER and RUELENE SNIDER, Deceased,
and their spouses, if any DEFENDANTS
ORDER CONFIRMING MARSHAL'S SALE
Now on this day there is presented to the Court the Report of Sale of the United States
Marshal for the Eastern District of Arkansas, made pursuant to the judgment entered in the
above-captioned case. It appears to the satisfaction of the Court that the time, terms and place of
said sale were advertised as required by law in a newspaper regularly issued and having general
circulation in Yell County, Arkansas, for four consecutive weeks, the last publication being on
November 2, 2005, and that the said sale was held at Dardanelle, Arkansas, on November 8,
2005, at 9:30 a.m., in conformity with the Judgment of this Court. At such sale Nick and Angie
Madison bid the sum of $42,500.00, and that being the highest and best bid offered, the property
was then sold to Nick and Angie Madison .
IT IS, THEREFORE, ORDERED that the actions of the said United States Marshal in
advertising and making such sale be, and the same are in all respects, approved by the Court, and
the purchase price with interest shall be paid to the United States of America. The expense items
reported by the United States Marshal in the amount of $178.65 are hereby approved by the
Court.
The Marshal's Deed, submitted with his report of sale, has been approved as evidenced
by the Court's endorsement thereon and an order separately entered in conformity with local
Case 4:05-cv-00605-GH Document 14 Filed 01/10/06 Page 1 of 2
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practice. The Marshal is directed forthwith upon payment to deliver the deed to the purchaser
named in his report of sale and that he be given possession of said property on demand. The
Clerk of this Court is authorized and directed to issue proper writs of assistance upon application
therefore, directed to the United States Marshal, who shall proceed to place the purchaser in
possession of the property.
DATED: January 10, 2006 ________________________________
UNITED STATES DISTRICT JUDGE
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
TFS Electronic Manufacturing Services,
lnc.
Debtor
TFS Electronic Manufacturing Services,
lnc.
Plaintiff
v
Topsearch Printed Circuits (HK), Ltd.
Defendant
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No. CV 06-1586-PHX-SMM
BK-05-15403-PHX-RTB
ORDER
Before the Court is an unopposed Motion to Continue the August 11, 2008 status
conference [Doc. 97] filed by Plaintiff TFS Electronic Manufacturing Service, Inc. (“TFS”).
Good cause appearing,
IT IS ORDERED granting the unopposed Motion to Continue [Doc. 97].
IT IS FURTHER ORDERED that the parties have until Monday, August 18, 2008,
to file a stipulation for dismissal of this action signed by all parties.
IT IS FURTHER ORDERED that in the event that no such stipulation is filed, the
Court has scheduled a status conference for Wednesday, August 27, 2008 at 3:30 p.m. If
the stipulation is received by Monday, August 18, 2008, the status conference will be
automatically vacated.
IT IS FURTHER ORDERED vacating the status conference scheduled for August
11, 2008.
DATED this 7th day of August, 2008.
Case 2:06-cv-01586-SMM Document 98 Filed 08/08/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-5_14-cv-02699/USCOURTS-cand-5_14-cv-02699-0/pdf.json | 110 | Insurance | 28:1441 Petition for Removal- Insurance Contract | 1
Case No. 5:14-02699-PSG
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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United States District Court
For the Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
NANOLAB TECHNOLOGIES, INC.,
Plaintiff,
v.
ROANOKE CLAIMS SERVICES, INC., et al.,
Defendants.
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Case No. 5:14-cv-02699-PSG
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT
(Re: Docket No. 41)
This is a case about the international journey of a spectrometer and who is financially
responsible for paying for the damage it suffered along the way. Defendant Certain Underwriters
at Lloyd’s moves for summary judgment on the basis that Plaintiff Nanolab Technologies, Inc.’s
conduct indisputably allows for complete rescission of the insurance contract. Because the court is
convinced that genuine issues of material fact remain, the motion is DENIED.
I.
In early 2014, Nanolab purchased a spectrometer from a university in Mexico City.1
Nanolab engaged D.T. Gruelle, a freight forwarding company, who had a preexisting Marine Open
Cargo Policy with Underwriters.2 In February, Underwriters issued a Certificate of Insurance
1 See Docket No. 41-2 at 27:6-19; Docket No. 41-4 at 26:4-9.
2 See Docket No. 41-10.
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 1 of 6
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Case No. 5:14-02699-PSG
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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United States District Court
For the Northern District of California
insuring Nanolab for transportation of the IMS system from Mexico City to Milpitas, California.3
Nanolab sent its director Ming Hong Yang to Mexico to inspect the spectrometer and assist with its
packing.4 Because of the university’s loading dock constraints, D.T. Gruelle arranged to have a
small, non-air-ride van transport the spectrometer from the university to the outskirts of Mexico
City, where it was transferred to an air-ride truck.5 Upon arrival in Milpitas, Nanolab noted that
the spectrometer had been damaged at some point during the journey.6 Even after repair, the
spectrometer only regained marginal operation.7
This suit followed. Nanolab alleges breach of contract against Underwriters and seeks
payment under the insurance policy.8
II.
This court has jurisdiction under 28 U.S.C. § 1331. The parties further consent to the
jurisdiction of the undersigned under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 72(a).
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate when “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Material facts are those that may affect the outcome of the case.9 A dispute as to a material
fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the
non-moving party.10 All evidence must be viewed in the light most favorable to the non-moving
3 See Docket No. 41-11.
4 See Docket No. 41-5 at 47:1-49:21, 60:23-61:8, 165:17-172:7.
5 See id. at 186:3-194:23; Docket No. 41-11.
6 See Docket No. 41-2 at 89:23-91:16; Docket No. 41-4.
7 See Docket No. 45-3 at 51:2-52:18, 53:2-22.
8 See Docket No. 1-3.
9 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
may affect the outcome of the suit under governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”).
10 See id.
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 2 of 6
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Case No. 5:14-02699-PSG
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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United States District Court
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party. At this stage, a court “does not assess credibility or weigh the evidence, but simply
determines whether there is a genuine factual issue for trial.”11 Initially, the moving party bears the
burden to show that no genuine issue of material fact exists.12 If this burden is met, the burden
shifts to the non-moving party.
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III.
First, Underwriters seeks summary judgment on Nanolab’s breach of contract claim based
on the doctrine of uberrimae fidei14 which, Underwriters argues provides for complete rescission of
the underlying contract. “The doctrine of uberrimae fidei requires a marine insurance applicant
even if not asked, to reveal every fact within his/her knowledge that is material to the risk.”15
Essential to this dispute, then, is whether the insurance contract at issue is properly considered a
marine insurance contract for the purposes of uberrimae fidei. Nanolab argues that marine
insurance can only insure against losses that are “specifically maritime in character”16 and that
because the entire journey at issue occurred over land by truck, the contract cannot possibly be a
11 House v. Bell, 547 U.S.518, 559-60 (2006).
12 See Celotex Corp. v. Caltrett, 477 U.S. 317, 323-24 (1986).
13 See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 630, 630 (9th Cir. 1987).
14 Nanolab objects to the late introduction of the uberrimae fidei defense because it was never
pleaded in Underwriters’ answer. Underwriters contends that it was not aware of the facts
substantiating the defense until earlier this year and could not have pleaded it any earlier. Nanolab
further objects that allowing such a defense at this late stage in the case is unduly prejudicial
because Nanolab would have taken discovery into the underwriting process had it known about the
defense. But the court finds that all discovery relevant to uberrimae fidei is encompassed by the
concealment defense, which was timely pleaded. As such, and without more specificity as to
exactly what discovery Nanolab would have taken if the new defense had been pleaded earlier, the
court finds that excluding the defense is unnecessary. To the extent that the court needs to consider
leave to amend Underwriters’ affirmative defenses to add uberrimae fidei, leave is GRANTED.
15 Certain Underwriters at Lloyd’s, London v. Inlet Fisheries, Inc., 518 F.3d 645, 655 (9th Cir.
2008) (citation omitted) (emphasis in original); see Cal. Ins. Code § 1900 (“In marine insurance,
each party is bound to communicate . . . (a) All the information which he possesses and which is
material to the risk . . . (b) The exact and whole truth in relation to all matters that he represents or,
upon inquiry assumes to disclose.”); Certain Underwriters at Lloyds v. Montford, 52 F.3d 219, 222
(9th Cir. 1995) (“[T]he insured is bound, even if not asked, to reveal every fact within his/her
knowledge that is material to the risk.”).
16 Inlet Fisheries, Inc., 518 F.3d at 654.
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 3 of 6
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Case No. 5:14-02699-PSG
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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United States District Court
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marine contract. But under California law, marine insurance specifically contemplates the
transportation of all goods “in connection with any and all risks or perils of navigation, transit, or
transportation, including war risks, on or under any seas or other waters, on land or in the air.”17
By the plain language of the statute, there can be no question that transportation over land is
covered in a marine insurance contract. And by virtue of the policy itself, which is titled “Marine
Open Cargo Policy,” Nanolab cannot make a colorable argue that it was not on notice of the fact
that marine insurance would apply.18
That being said, the court finds that there is a genuine question of material fact as to
whether Nanolab violated its duty under uberrimae fidei that should properly be decided by a jury.
Under uberrimae fidei, the insurer may rescind the insurance contract “if it can show either
intentional misrepresentation of a fact, regardless of materiality, or nondisclosure of a fact material
to the risk, regardless of intent.”19 To be material, the fact “must be something which would have
17 Cal. Ins. Code § 103:
Marine insurance includes insurance against any and all kinds of loss of or damage to:
(a) Vessels, craft, aircraft, cars, automobiles and vehicles of every kind (excluding aircraft
and automobiles operating under their own power or while in storage not incidental to
transportation), as well as all goods, freights, cargoes, merchandise, effects, disbursements,
profits, money, bullion, securities, choses in action, evidences of debt, valuable papers,
bottomry and respondentia interest and all other kinds of property, and interests therein, in
respect to, appertaining to it in connection with any and all risks or perils of navigation,
transit, or transportation, including war risks, on or under any seas or other waters, on land
or in the air, or while being assembled, packed, crated, cabled, compressed or similarly
prepared for shipment or while awaiting the same, or during any delays, storage,
transshipment, or reshipment incident thereto including marine builder’s risks, and all
personal property floater risks.
(b) Person or to property in connection with or appertaining to a marine, inland marine,
transit or transportation insurance including liability for loss of or damage arising out of or
in connection with the construction, repair, maintenance or use of the subject matter of
such insurance (but not including life insurance or surety bonds); but except as herein
specified, shall not mean insurances against loss by reason of bodily injury to the person.
Inland marine insurance shall be deemed to include hull insurance on water pleasure craft
no used for commercial purposes of a size and type to be determined by the commissioner.
18 See Docket No. 41-10.
19 Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 420 (9th Cir. 1998)
(internal quotation marks and citations omitted).
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 4 of 6
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Case No. 5:14-02699-PSG
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
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United States District Court
For the Northern District of California
controlled the underwriter’s decision to accept the risk.”20 If, but for the undisclosed fact, the
insurer would not have underwritten the policy or disclosure of the fact would have affected the
insurer’s decision to insure at a particular premium, the fact is material.21
Underwriters claims that by withholding the fact that the spectrometer would be transported
across Mexico City in a non-air-ride van before it would be transferred to the disclosed air-ride
truck with an ultimate destination of Milpitas, California, Nanolab violated its duty of disclosure.
Underwriters argues that this information was essential to its decision about whether to insure the
journey and at what rate. In other words, had Underwriters known about the use of a non-air-ride
van, Underwriters may well have refused to issue a policy or would have varied the terms.
The evidence in the record supports the notion that Nanolab was aware that two different
trucks would be used to transport the spectrometer, that Underwriters did not learn of this until
after the policy had been issued and that Underwriters did not learn until recently that Nanolab had
long since known that more than one truck would be used on the journey. While a reasonable
person could conclude that specific details of transport are material to an insurance contract, the
record shows that Underwriters’ own insurance quote indicated nothing more specific than
“truck.”22 There was no mention of an air-ride requirement or that only one truck could be used to
complete the entire journey. Notably, the only requirement in the quote that was specific to the
journey itself was that “whenever available, all haulers in Mexico are to utilize the toll road
systems.”23 If Underwriters really needed to know more information in order to decide whether to
insure the trip, a reasonable jury could conclude that they would not have been able to provide a
20 Washington Int’l Ins. Co. v. Mellone, 773 F. Supp. 189, 191 (C.D. Cal. 1990).
21 See Trinh v. Metro. Life Ins. Co., 894 F. Supp. 1368, 1372 (N.D. Cal. 1995); Inlet Fisheries, Inc.,
518 F.3d at 655.
22 See Docket No. 46 at Exhs. A-C. The Certificate of Service and Marine Cargo Policy also lack
specific restrictions based on the number of trucks or the types of trucks used suggesting that this
kind of information might not have been material to the underwriting process. See Docket Nos. 41-
10, 41-11.
23 Docket No. 46 at Exh. C.
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 5 of 6
Case 5:14-cv-02699-PSG Document 49 Filed 05/15/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-06-31122/USCOURTS-ca5-06-31122-0/pdf.json | 440 | Other Civil Rights | 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
April 1, 2008
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc
No. 06-31122 Reynolds v. New Orleans City
USDC No. 2:05-CV-4158
----------------------------------------------
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.
The judgment entered provides that plaintiffs-appellants pay to
defendants-appellees the costs on appeal.
Sincerely,
CHARLES R. FULBRUGE III, Clerk
By:
Joseph Armato, Deputy Clerk
Enclosure
Mr Louis R Koerner Jr
Mr James B Mullaly
Mr Thomas Ainsworth Robichaux
Case: 06-31122 Document: 0051603651 Page: 1 Date Filed: 04/01/2008 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_18-cv-01761/USCOURTS-casd-3_18-cv-01761-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983pr Prisoner Civil Rights | 1
3:18-cv-01761-MMA-BGS
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ERICA D. HAYWOOD,
Booking #18123564,
Plaintiff,
vs.
SAN DIEGO CA PUBLIC DEFENDER,
et al.,
Defendants.
Case No.: 3:18-cv-01761-MMA-BGS
ORDER DISMISSING CIVIL
ACTION FOR FAILURE TO PAY
FILING FEES REQUIRED
BY 28 U.S.C. § 1914(a) AND AS
FRIVOLOUS PURSUANT TO
28 U.S.C. § 1915A(b)(1)
ERICA D. HAYWOOD (“Plaintiff”), currently detained at the San Diego Sheriff
Department’s Las Colinas Detention and Re-Entry Facility (“LCDF”), and proceeding
pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, naming the San
Diego County Public Defender, Police Department, District Attorney, a Jack in the Box
franchise and McDonald’s Corporation as Defendants. See Compl., Doc. No. 1 at 1-3.
While far from clear, it appears Plaintiff seeks to sue all these entities for harassing
and causing her “problems” at “various places in two States” on “various days [and]
times.” Id. at 1, 4-6. Plaintiff has not prepaid the $400 filing fee required to commence
civil action pursuant to 28 U.S.C. § 1914(a), nor has she filed a Motion to Proceed In
Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
///
Case 3:18-cv-01761-MMA-BGS Document 2 Filed 08/30/18 PageID.<pageID> Page 1 of 7
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I. Failure to Pay Filing Fee or Request IFP Status
All parties instituting any civil action, suit or proceeding in any district court of
the United States, except an application for writ of habeas corpus, must pay a filing fee of
$400. See 28 U.S.C. § 1914(a).1
An action may proceed despite a party’s failure to pay
this filing fee only if the party is granted leave to proceed in forma pauperis (“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).
Plaintiff has not prepaid the $400 in filing and administrative fees required to
commence a civil action, and she has not filed a Motion to Proceed IFP in compliance
with 28 U.S.C. § 1915(a). Therefore, her civil action cannot proceed. See 28 U.S.C.
§ 1914(a); Andrews, 493 F.3d at 1051. And while the Court would ordinarily grant
Plaintiff leave to file an IFP Motion pursuant 28 U.S.C. § 1915(a), it finds, for the
reasons set out below, that doing so would be futile since she is no longer entitled to that
privilege, she fails to allege she faced imminent danger of serious physical injury at the
time she filed her Complaint, and her claims are legally frivolous.
II. 28 U.S.C. § 1915(g)’s “Three-Strikes” Bar
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County
Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). “Prisoners,” however, “face an
additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a
filing fee” in installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation
Reform Act (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP in
cases where the prisoner:
. . . has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
1 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. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief
can be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter
“Andrews”). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed
IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter
“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful
suits may entirely be barred from IFP status under the three strikes rule[.]”). The
objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner
litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,
which were dismissed on the ground that they were frivolous, malicious, or failed to state
a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the
district court styles such dismissal as a denial of the prisoner’s application to file the
action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by section
1915(g) from pursuing any other IFP action in federal court unless he can show he is
facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes,
493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a
plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’
at the time of filing.”).
III. Application to Plaintiff’s Allegations
As an initial matter, the Court has reviewed Plaintiff’s pleading and has ascertained
that it contains no “plausible allegation” to suggest Plaintiff “faced ‘imminent danger of
serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28
U.S.C. § 1915(g)).
///
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Instead, Plaintiff’s rambling and disjointed Complaint appears to seek millions of
dollars in general and punitive damages from several local municipal and national
corporate entities based on claims that she has been “harassed” by them or their
employees, who are “racially problematic,” and who have “called security” and disturbed
her “peace and tranquility” by making her leave their places of business on multiple
unspecified occasions before she was ultimately arrested on April 14, 2018, for loitering
and trespass at a Jack in the Box restaurant in San Ysidro, California. See Compl., Doc.
No. 1 at 4-5, 8; Sierra v. Woodford, 2010 WL 1657493 at *3 (E.D. Cal. April 23, 2010)
(finding “long, narrative, rambling statements regarding a cycle of violence, and vague
references to motives to harm” insufficient to show Plaintiff faced an “ongoing danger”
as required by Cervantes).
If this were not enough, Plaintiff’s claims are legally frivolous. See 28 U.S.C.
§ 1915A(b)(1) (requiring sua sponte dismissal of prisoner complaints, or any portions of
them, which are “frivolous, malicious, or fail[ ] to state a claim upon which relief may be
granted.”); Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015); Byrd v. Phoenix Police
Dep’t, 885 F.3d 639, 641 (9th Cir. 2018) (quoting 28 U.S.C. § 1915A(b)). “The purpose
of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the
expense of responding.”’ Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014)
(internal citation omitted); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (a
complaint “is frivolous if it has no arguable basis in fact or law.”).
And while Defendants typically carry the initial burden to produce evidence
demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in
some instances, the district court docket may be sufficient to show that a prior dismissal
satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id.
at 1120. That is the case here.
A court may take judicial notice of its own records, see Molus v. Swan, Civil Case
No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing
United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.
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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take
notice of proceedings in other courts, both within and without the federal judicial system,
if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508
F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803
n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council
v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
Therefore, this Court takes judicial notice that Plaintiff Erica D. Haywood,
currently identified as San Diego County Sheriff Department’s Booking #18123564,2
while incarcerated, has had at least five prior prisoner civil actions or appeals dismissed
on the grounds that they were frivolous, malicious, or failed to state a claim upon which
relief may be granted.
They are:
1) Haywood v. Fifth U.S. Circuit Court of Appeals, et al., Civil Case No. 4:09-
cv-00202 (S.D. Texas, March 12, 2009) (Memorandum Opinion and Order
granting application to proceed IFP and dismissing civil action with prejudice as
“legally baseless”) (Doc. Nos. 8, 9) (strike one);
2) Haywood v. State of Georgia, Civil Case No. 1:10-cv-00039-TWT (N.D.
Georgia, Feb. 2, 2010) (Order and Opinion granting request to proceed IFP and
dismissing case as frivolous pursuant to 28 U.S.C. § 1915A) (Doc. No. 3); (Feb. 3,
2
Plaintiff has been previously identified in San Antonio Texas’s Bexar County Adult
Detention Center as Inmate #804107, and as Inmate #933519, while she was detained in
the Fulton County Jail in Atlanta, Georgia. She admits to having filed one other civil action
related to her “healthcare neglect,” see Compl., Doc. No. 1 at 7, which this Court presumes
is Haywood v. Unnamed, S. D. Cal. Civil Case No. 3:18-cv-01263-AJB-NLS (“Haywood
I”). Plaintiff initially filed Haywood I in the Northern District of Georgia in May 2018, but
it was transferred to the Southern District of California for lack of proper venue to the
extent Plaintiff appeared to allege she was being housed in unsafe and unsanitary
conditions at LCDF. Id., Doc. Nos. 2, 5. On August 24, 2018, Judge Battaglia dismissed
Haywood I however, because Plaintiff failed to satisfy 28 U.S.C. § 1914(a)’s filing fee
requirement and failed to allege federal subject matter jurisdiction. Id., Doc. No. 9.
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2010) (Judgment) (Doc. No. 4) (strike two);
3) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00448-XR
(W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint as
frivolous, for failure to state a claim, and for seeking relief from immune
defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)-(2))
(Doc. Nos. 14, 15) (strike three);
4) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00467-XR
(W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint as
frivolous, for failure to state a claim, and for seeking relief from immune
defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)-(2))
(Doc. Nos. 8, 9) (strike four); and
5) Haywood v. Bexar County, Texas, et al., Civil Case No. 5:11-cv-01115-FB
(W.D. Texas) (Feb. 1, 2012) (Report & Recommendation [“R&R”] to Dismiss
§ 1983 Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A) (Doc.
No. 3); (Feb. 28, 2012) (Order Adopting R&R and Judgment) (Doc. Nos. 7, 8)
(strike five).
Accordingly, because Plaintiff has accumulated more than three “strikes” pursuant
to § 1915(g), and she fails to make a “plausible allegation” that she faced imminent
danger of serious physical injury at the time she filed her Complaint, she is not entitled to
the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at 1055;
Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.
§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes
prisoners with a history of abusing the legal system from continuing to abuse it while
enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)
(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).3
3
As a result of her litigation history, Plaintiff has also since been denied leave to proceed
IFP pursuant to 28 U.S.C. § 1915(g) in the Western District of Texas. See Haywood v.
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IV. Conclusion and Order
For the reasons explained, the Court:
(1) DISMISSES this civil action sua sponte for failure to pay filing fees
required by 28 U.S.C. § 1914(a) and as frivolous pursuant to 28 U.S.C. § 1915A(b)(1);
(2) CERTIFIES that an IFP appeal from this Order would also be frivolous and
therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v.
United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir.
1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not
be frivolous); and
(3) DIRECTS the Clerk of Court to close the file.
IT IS SO ORDERED.
DATE: August 30, 2018 _______________________________________
HON. MICHAEL M. ANELLO
United States District Judge
Director Brad Livingston, et al., Civil Case No. 6:16-cv-00320-RP (Sept. 2, 2016) (Order
Denying leave to proceed IFP and Dismissing Complaint without prejudice “pursuant to
the three-dismissal rule of 28 U.S.C. § 1915(g).”) (Doc. No. 4).
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
L.A. TAXI COOPERATIVE, INC., et al.,
Plaintiffs,
v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.
Case No. 15-cv-01257-JST
ORDER GRANTING STIPULATION TO
AMEND ANSWER
Re: ECF No. 87
The parties have filed a stipulation requesting Defendants be granted leave to file a Second
Amended Answer in order to add an additional affirmative defense. ECF No. 87. Because the
parties have so stipulated, the request is granted. Defendants shall file their Second Amended
Answer within three days of the date of this order. Pursuant to the stipulation, any motion to
strike the Second Amended Answer shall be filed within twenty-one days of the date Defendants
serve the Second Amended Answer. ECF No. 87 at 3.
IT IS SO ORDERED.
Dated: May 9, 2016
______________________________________
JON S. TIGAR
United States District Judge
Case 3:15-cv-01257-JST Document 88 Filed 05/09/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-10721/USCOURTS-ca11-14-10721-0/pdf.json | 535 | Habeas Corpus - Death Penalty | null | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10721
________________________
D.C. Docket No. 1:05-cv-00474-CG-M
JOSEPH CLIFTON SMITH,
Petitioner-Appellant,
versus
DONAL CAMPBELL,
COMMISSIONER KIM TOBIAS THOMAS,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 3, 2015)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
HULL, Circuit Judge:
USCA11 Case: 14-10721 Date Filed: 08/03/2015 Page: 1 of 39
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Petitioner Joseph Clifton Smith, a death-row inmate, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. This appeal involves
only Smith’s Atkins claim—that he is intellectually disabled and cannot be
executed under the Eighth and Fourteenth Amendments to the United States
Constitution.
1
See Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). The
Alabama state courts denied Smith’s Atkins claim without an evidentiary hearing,
as did the district court. We review the history of Smith’s case and then the narrow
issue in this appeal.
I. FACTUAL BACKGROUND
A. Murder of Durk Van Dam
On Friday, November 21, 1997, Smith was released from a state prison and
transferred to a community-custody program to complete the remainder of his 10-
year sentence for his burglary and theft convictions. Smith v. State (“Smith I”),
795 So. 2d 788, 796, 797 n.1 (Ala. Crim. App. 2000). Two days after his release
from prison, Smith murdered the victim Durk Van Dam on November 23, 1997.
Police discovered Van Dam’s body near his pick-up truck in an isolated area
in southern Mobile County. Van Dam suffered approximately 35 separate, distinct
exterior injuries. His head, face, and torso were beaten; his corpse revealed a
1Although courts formerly employed the term “mental retardation,” we now use the term
“intellectual disability” to describe the same condition. Accord Brumfield v. Cain, 576 U.S. ___,
___ n.1, 135 S. Ct. 2269, 2274 n.1 (2015). However, we sometimes use the terms “mental
retardation” and “mentally retarded” when quoting or discussing earlier judicial opinions, court
orders, trial testimony, or other items that used those terms at the time.
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3
number of blunt force injuries; and his body was mutilated by a saw or a saw-like
device. Van Dam was robbed of $150 in cash and the boots off his feet. His tools
were stolen from his pickup truck, which was mired in mud.
B. Smith’s Statements to Police
On the day Van Dam’s body was discovered, two police officers interviewed
Smith, who confessed. In his first statement to the police, Smith admitted that he
was at the scene when Van Dam was beaten and robbed but claimed that he was
merely a bystander as Larry Reid beat Van Dam. See id. at 796.
When police questioned Reid, Smith repeatedly knocked on the
interrogation-room door and requested to speak with the officer who took his first
statement. Id. Smith gave a second statement, admitting he participated in the
homicide but denying an intent to kill Van Dam. See id.
In his second statement, Smith said that he, Reid, and Van Dam left a motel
in Van Dam’s red pick-up truck on the evening of November 23, 1997. Id. Van
Dam was drinking and driving the truck, and Reid directed Van Dam to an isolated
location. Id. Smith asserted that, once they arrived at the location, Reid began
hitting Van Dam. Reid kicked Van Dam in the face, at which point Smith thought
Van Dam was dead. Id. However, Van Dam got up, and Smith hit him on the
head with his fist, kicked him in the ribs several times, threw a handsaw at him,
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4
and might have hit him with a hammer. Id. Smith wasn’t entirely sure if he hit
Van Dam with a hammer because he suffers from blackouts. Id.
Smith stated that Reid got a power saw from Van Dam’s truck and ran the
saw against Van Dam’s neck. Id. Smith said he held down Van Dam while Reid
took money from Van Dam’s pockets. Id. Reid kept $100, and Smith kept $40.
Id. Toward the end, Smith kicked Van Dam in the ribs several times. Van Dam
was alive at that point, Smith said, but Reid subsequently hit the victim in the head
several times with boards and sticks and dragged a mattress on top of him. Smith
and Reid left, and Smith thought Van Dam was alive as they walked away.
Smith and Reid attempted to steal Van Dam’s truck, but it was stuck in the
mud. Id. Smith admitted to taking Van Dam’s boots and tools. Id. Smith and
Reid discussed what to do with Van Dam’s body. Id. Smith suggested taking it to
a nearby lake, but they left the body under a mattress near Van Dam’s truck. Id.
II. SMITH’S TRIAL AND VERDICT
On May 22, 1998, a Mobile County grand jury indicted Smith for capital
murder, charging that Smith intentionally killed Van Dam during a first-degree
robbery. The case went to trial.
At trial, Dr. Julia Goodin, a forensic pathologist, testified that Van Dam died
as a result of 35 different blunt-force injuries to his body. Id. Dr. Goodin found
marks on Van Dam’s neck, shoulder, and back that were consistent with Van Dam
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5
being cut by a saw. Id. Van Dam had a large hemorrhage beneath his scalp, brain
swelling, multiple rib fractures, a collapsed lung, abrasions to his head and knees,
and defensive wounds on his hands. Id. The most immediate cause of death was
probably Van Dam’s multiple rib fractures, which caused one lung to collapse. Id.
The prosecution introduced Smith’s two statements to police and called
Russell Harmon, who saw Smith on the day of the murder at a motel in Mobile
County. See id. at 796–97. Harmon testified that Smith told him that Smith and
Reid were going to rob Van Dam, and Smith asked if Harmon wanted to join them.
See id. at 797. Harmon declined. Id. When Smith returned to the motel later that
night, Smith admitted to Harmon that he participated in the beating of Van Dam
and cut Van Dam with a saw before fleeing the crime scene—and leaving Van
Dam for dead. Id. Smith told Harmon that he hid Van Dam’s tools on the side of a
road, and Smith asked Harmon to retrieve them. Harmon did. Smith sold the tools
for $200. Id.
Joey Warner, an employee of a pawnshop, testified that (1) on November 23,
1997, Smith pawned several tools, including saws, drills, and a router; (2) Smith
was given $200 for the tools; and (3) Smith showed his Alabama Department of
Corrections identification card to complete the transaction. Id.
Another witness, Melissa Arthurs, testified that she saw Smith on the night
Van Dam disappeared and noticed blood on Smith’s shirt. Id. Smith told Arthurs
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6
that he hit, cut, and stabbed Van Dam in the back; he and Reid robbed Van Dam;
and Smith would have taken Van Dam’s truck had it not been stuck in the mud.2
See id.
On September 16, 1998, the jury found Smith guilty of capital murder. The
penalty phase began the next day.
III. PENALTY PHASE BEFORE THE JURY
A. The State’s Evidence
In the penalty phase, the State presented evidence that established three
statutory aggravating factors: (1) Smith committed the capital offense while under
a sentence of imprisonment, see Ala. Code § 13A-5-49(1); (2) Smith committed
the capital offense while engaged in the commission of a robbery, see id. § 13A-5-
49(4); and (3) the murder of Van Dam was especially heinous, atrocious, or cruel,
see id. § 13A-5-49(8).
As to the first aggravating factor, the State called Betty Teague, the director
of the Alabama Department of Corrections’ central records office. Teague testified
that Smith was in the custody of the Alabama Department of Corrections and
placed on “prediscretionary leave” on November 21, 1997—two days before Van
Dam’s murder. Smith was still under a sentence of imprisonment during that
leave, including the date of Van Dam’s murder.
2
Smith chose not to testify, and the defense rested without calling any witnesses.
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7
As to the second aggravating factor, the trial judge noted the jury’s verdict
established that the capital offense was committed during the course of a robbery.
As to the third aggravating factor of a heinous murder, the State recounted
the trial evidence, including (1) Smith’s own statements to the police; (2) Smith’s
actions kicking and beating the victim; and (3) Dr. Goodin’s testimony about the
victim’s injuries, including eight broken ribs and many internal and external
injuries caused by 35 to 45 blows. The State then rested.
B. Defense Evidence
As part of his penalty-phase defense, Smith called a number of witnesses to
establish mitigating circumstances, including that the “offense was committed
while the defendant was under the influence of extreme mental or emotional
disturbance.” See id. § 13A-5-51(2).
Smith first called his mother, Glenda Kay Smith (“Glenda Kay”). Glenda
Kay testified that Smith’s father, Leo Charles Smith (“Leo Charles”) got drunk
almost every day and verbally and physically abused Smith. Leo Charles would
“try to whoop” Smith and his brothers “with fan belts or water hoses.”
When Smith was about 10 years old, Glenda Kay divorced Leo Charles, and
she subsequently married Hollis Luker (“Luker”). Luker got drunk three or four
times a week and drank with Smith when Smith was about 16 years old. Smith and
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Luker would fight, and Luker once injured Smith’s ear by hitting him in the head
with a bat-like object.
According to Glenda Kay, Smith had educational problems, including
dyslexia. Smith was in special education classes and classes for students with
“emotional conflicts.”
3
Smith next called Dr. James F. Chudy (“Dr. Chudy”), a clinical psychologist
who met with Smith three times, reviewed his school and jail records, and
evaluated Smith. Dr. Chudy described Smith’s childhood as “at the least, . . . very
abusive, probably tormenting at times, [and] extremely unstable.”
After administering a Wechsler Adult Intelligence Scale–Revised (WAIS-R)
test,
4 Dr. Chudy found Smith had a “full scale IQ of 72, which placed him at the
third percentile in comparison to the general population.” Dr. Chudy testified that
“there actually is what we call a standard error of measurement of about three or
four points. So, you know, taking that into account you could -- on the one hand
he could be as high as maybe a 75. On the other hand[, Smith] could be as low as
a 69. [Sixty-nine] is considered clearly mentally retarded.” Dr. Chudy testified
that his findings about Smith’s intellect were consistent with the school records Dr.
3
The State did not cross-examine Glenda Kay.
4Dr. Chudy also assessed Smith using these diagnostic tools: (1) the Wide Range
Achievement Test–Revised 3; (2) the Bender Gestalt Visual-Motor Integration Test; (3) a
Rorschach test; (4) the Mooney Problem Checklist; (5) the Minnesota Multiphasic Personality
Inventory–2; (6) the Millon Clinical MultiAxial Inventory–III; (7) the Subtle Alcohol Screening
Survey Inventory–2; and (8) the Jesness Inventory.
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Chudy examined and that “all the scores are very much the same.” The defense
introduced school records, which indicated Smith at age 12 obtained IQ scores of
74 and 75.
Dr. Chudy also testified that “almost all the time people at this level of IQ,
and with [Smith] in particular, what I saw in this testing, he does not look like
much of a planner. He’s more of a reactor. And I would see him more as a
follower than a leader.”
As to his learning disorder diagnosis, Dr. Chudy testified that, “in spite of
his IQ of 72,” Smith “did arithmetic at the kindergarten level, which is a standard
score of 45. And in the State of Alabama what meets the criteria for a learning
disability is a fifteen point difference between your IQ and your standard score.”
Accordingly, Smith was “even more limited in math than you would expect,”
given his IQ score of 72.
Based on Smith’s full-scale IQ score of 72, Dr. Chudy diagnosed Smith as
having “borderline intellectual functioning.” Dr. Chudy stated that an individual
functioning in this borderline range has the ability to appreciate the consequences
of his actions, though the functioning limitation would “minimize” the appreciation
“considerably.”
5
5Dr. Chudy testified that Smith was not “insane” and that his level of intellectual
functioning did not prevent Smith from knowing “right from wrong.” Rather, Smith’s level of
functioning resulted in Smith not “learn[ing] very well or profit[ing] much from experience.”
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Dr. Chudy testified that the “emotionally conflicted” classes in which Smith
enrolled were special education classes “for kids that are not adjusting to regular
classroom[s].”
Based on his evaluation, Dr. Chudy made these six diagnoses of Smith: (1)
major depression, severe without psychotic features; (2) post-traumatic stress
disorder; (3) alcohol dependence; (4) learning disorder; (5) schizotypal or antisocial personality disorder; and (6) borderline intellectual function.
On cross-examination, Dr. Chudy testified that Smith did not “think things
through” and was “impulsive.” When the State’s prosecutor asked whether “there
are a lot of folks who have higher IQ’s [sic] and don’t have all this so-called
baggage who are impulsive,” Dr. Chudy said there were. Dr. Chudy testified that
his evaluation “did not find a pattern that would show that he had major
neurological problems that would be inconsistent with a 72 IQ.” When asked
whether “[t]here are people with low IQ’s [sic] who are what we call ‘streetwise,’”
Dr. Chudy assented.
Smith called three more witnesses: two sisters and a neighbor. His sister,
Rebecca Charlene Smith (“Rebecca Charlene”), testified that their step-father
Luker drank “all the time” and getting drunk “was an everyday routine for him.”
Luker treated the members of her family “[l]ike dirt.” Luker hit Smith on the side
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of the head with a baseball bat, beat Smith’s brother Jason with a 2-by-4 piece of
wood, and physically abused their mother Glenda Kay.
Shirley Stacey (“Stacey”) was a former neighbor of the Smith family during
Glenda Kay’s marriage to Luker. Stacey testified that Luker was drunk “just about
every day.” Stacey saw Luker beat the Smith children “with water hoses or
whatever he could grab.” On multiple occasions, Glenda Kay brought the Smith
children to Stacey’s house to escape or avoid Luker. On one occasion, Glenda Kay
ran to Stacey’s house with the Smith children because Luker “had beat [Glenda
Kay] and ripped her clothes and she . . . had to get away from him.”
Another sister, Lynn Harrison, testified that their father Leo Charles got
drunk “a lot” and was physically abusive toward her brothers. Leo Charles once
chased Smith with a garden hose and, on another occasion, tried to hit Smith with a
fan belt. Harrison saw Luker abuse Smith in ways similar to those that Leo
Charles abused Smith. The Smith children had to “run several times just to get
away” from Luker’s beatings of Glenda Kay.6
C. The Jury’s Advisory Sentence of Death
The jury returned an advisory verdict recommending that Smith be
sentenced to death by electrocution. Eleven jurors voted for a death sentence; one
voted for life imprisonment without the possibility of parole.
6
Smith’s two sisters and neighbor Stacey did not testify about Smith’s intellectual
functioning, adaptive abilities, or performance in school. The State did not cross-examine them.
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IV. PENALTY HEARING BEFORE THE TRIAL COURT
A. Evidence in Penalty Hearing
On October 16, 1998, the trial court held a penalty hearing. The trial court
admitted evidence of: (1) Smith’s 1990 convictions for burglary and theft, (2) a
pre-sentence report from the Alabama Board of Pardons and Paroles (the
“Alabama Report”), and (3) Dr. Chudy’s 1998 report, labeled a “psychological
evaluation” of Smith.
For his 1990 convictions, Smith was sentenced to 10 years in prison,
released on parole in 1996, and sent back to prison in 1997 when he violated his
parole terms. According to the Alabama Report, Smith was arrested nine times
between 1986 and 1997 for suspicion of minor crimes, including harassment (three
times), menacing (twice), and disorderly conduct (once).
As to Smith’s personal and social history, the Alabama Report stated that
Smith “dropped out of school in the eighth grade” when Glenda Kay “withdrew
him from school on the recommendation of his teachers who described [Smith] as
being disrespectful and disruptive in class.” According to the Alabama Report,
Smith “was a slow learner and was placed in special education classes.” Smith
“failed both the seventh and eighth grades[,] and all of his grades, with the
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exception of physical education, were below average.” Smith “has had no further
education or training since that time.”7
Dr. Chudy’s 1998 report included the following conclusions about Smith’s
mental health.
Evidence of Competency.8 The report stated that, during Dr. Chudy’s
interviews, Smith “was alert and oriented,” was “able to recount the charges
against him and ultimately what could happen to him if he were found guilty,” and
“accurately define[d] the role and purposes of all the parties involved in the trial
proceedings.” Dr. Chudy concluded Smith was mentally competent and capable of
assisting his defense attorney.
Evidence of Subaverage Intellectual Functioning. The report stated that
Smith took the WAIS-R IQ test, and that he earned a verbal IQ score of 73, a
performance IQ score of 72, and a full-scale IQ score of 72. According to Dr.
Chudy’s report, those full-scale scores “place[d Smith] at the 3rd percentile in
comparison to the general population.” These scores placed him “in the Borderline
range of intelligence[,] which means that he operates between the Low Average
and Mentally Retarded range.” According to Dr. Chudy, “[a]ctually[,] these scores
7
In a section titled “Evaluation of Offender,” the Alabama Report stated that several
people at the motel, where Smith stayed prior to Van Dam’s murder, “stated they believe [Smith]
has a mental problem.” According to the Alabama Report, in early 1997, Smith got into a fight
with an elderly man and bit off the tip of one of the elderly man’s fingers.
8
These subheadings are not included in Dr. Chudy’s report itself but are created to
organize the information in his report.
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place him at a level closer to those individuals who would be considered mentally
retarded.”
Evidence of Communication Limitations. Dr. Chudy’s report indicated that
Smith had some communication problems, but was generally coherent. The report
stated that (1) at times, it “was necessary to re-state questions in more elementary
forms so that [Smith] could understand them,” (2) Smith’s “comprehension is
limited,” and (3) Smith “lacks much insight or awareness into his behavior.”
Evidence of Limitations in Daily Functioning. Dr. Chudy’s report noted that
Smith had “emotional problems, which seem to be largely due to an extremely
dysfunctional life . . . [and] compounded by his mental dullness.” The report
stated that Smith’s emotional problems limit his “ability to deal with everyday
stresses and demands.” Dr. Chudy characterized Smith’s state of mind as
“indifferent and ineffectual,” and concluded that Smith’s “thinking [was] not real
clear” and that Smith “lacks any direction or goal in life.” Dr. Chudy concluded
that Smith generally “takes little notice of things around him” and “does not think
through things.”
Evidence of Deficits in Learning from Experience. Dr. Chudy concluded
that Smith’s “indifferent and ineffectual” mindset “provides little basis for [Smith]
[to act] in a consistently sensible manner or learn[ ] from experience . . . even when
it involves bringing on pain to himself or those closest to him.” Smith’s “thinking
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is vague” and “easily confused,” and he “is often overwhelmed with
incomprehensible feelings or impulses that he does not understand.” Smith
“possesses extremely limited insight and judgment.”
Evidence of Social Deficits. Dr. Chudy’s report indicated that Smith’s
“personality functioning is equally dysfunctional.” As a result of his emotional
problems, Dr. Chudy found, Smith often “withdraws from others” and only
“[o]casionally . . . will become desperate enough that he will set out to find people
to be with.” But “poor judgment causes [Smith] to end up with the wrong people.”
Dr. Chudy found that Smith had “anger about being rejected and ‘getting a raw
deal in life.’” “Fortunately, [Smith] has been successful at repressing his anger[,]
but there is a down side to that. Sooner or later when his anger builds up, it will
come out and it will probably come out explosively.” Dr. Chudy concluded that
Smith “fails to use good judgment because he never learned how to incorporate
successfully into societies [sic] norms.”
Evidence of Varied Deficits. Dr. Chudy’s report examined the particulars of
Smith’s WAIS-R test results. The report stated that (1) “Smith displayed major
deficiencies in areas related to academic skills”; (2) he “functioned well below
average in his recall of learned and acquired information (Information)”; and (3) he
“was also quite weak in word knowledge and usage (Vocabulary) and mental
mathematical computation (Arithmetic).”
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Other areas of weakness noted by Dr. Chudy had to do with Smith’s social
skills. Smith “scored well below average in skills having to do with social
reasoning and learning how to respond effectively in social situations
(Comprehension).” Smith “also showed a major deficiency in his ability to predict
social sequences of action (Picture Arrangement).” Dr. Chudy stated that Smith is
“ineffective in problem-solving.”
B. Imposition of a Death Sentence
After considering the evidence and arguments, the state trial judge found
that the aggravating circumstances outweighed the mitigating circumstances in this
case, accepted the jury’s advisory death sentence, and ordered that Smith be put to
death by electrocution.9
The state trial court found these three aggravating circumstances: (1) Smith
committed the capital offense while under a sentence of imprisonment at the time
of the offense, Ala. Code § 13A-5-49(1); (2) Smith committed the murder while
engaged in the commission of a robbery, id. § 13A-5-49(4); and (3) the capital
offense was especially heinous, atrocious, or cruel compared to other capital
offenses, id. § 13A-5-49(8).
9
In 2002, the Alabama Legislature changed the State’s standard method of execution
from electrocution to lethal injection. See Ala. Code § 15-18-82.1 (2006 Cumulative Supp.).
Those inmates who were sentenced to death and whose certificates of judgment were issued after
July 1, 2002, had a time-limited option to elect electrocution instead of death by lethal injection.
Id. § 15-18-82.1(b). At oral argument, it was confirmed that Smith did not so choose.
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The state trial court found that no statutory or non-statutory mitigating
circumstances existed. Specifically, the trial court found (1) the capital offense
was not committed while Smith was under the influence of extreme mental or
emotional disturbance and (2) Smith “was not mentally or emotionally disturbed”
to an “extreme extent” or “to the extent that this mitigating circumstance exists.”
See id. § 13A-5-51(2). The trial court reached this conclusion after “carefully
review[ing] and weigh[ing] both the report and testimony of Doctor James Chudy,
a clinical psychologist, in the context of the facts underlying the offense charged
and proven.”
C. Smith’s Direct Appeal
The Alabama Court of Criminal Appeals affirmed Smith’s conviction and
death sentence. Smith I, 795 So. 2d at 842. The Alabama Supreme Court denied
Smith’s petition for a writ of certiorari. Ex parte Joseph Clifton Smith, 795 So. 2d
842 (Ala. 2001) (mem.). The United States Supreme Court denied Smith’s petition
for a writ of certiorari. Smith v. Alabama, 534 U.S. 872, 122 S. Ct. 166 (2001).
V. POST-CONVICTION PROCEEDINGS IN STATE COURT
A. 2002 Rule 32 Petition
In 2002, Smith filed a pro se petition in the state trial court, seeking postconviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.
After the State objected on timeliness grounds, the state trial court dismissed
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Smith’s Rule 32 petition as untimely. The Alabama Court of Criminal Appeals
affirmed, Smith v. State, 897 So. 2d 1246 (Ala. Crim. App. 2003) (table), and
denied rehearing, Smith v. State, 910 So. 2d 831 (Ala. Crim. App. 2004) (table).
In 2004, the Alabama Supreme Court reversed and remanded, holding that
Smith’s Rule 32 petition was timely. Ex Parte Joseph Clifton Smith, 891 So. 2d
286 (Ala. 2004). The Alabama Court of Criminal Appeals remanded the case to
the state trial court for further proceedings. Smith v. State, 891 So. 2d 287 (Ala.
Crim. App. 2004).
B. 2004 Second Amended Rule 32 Petition
In 2004, Smith filed an amended Rule 32 petition for post-conviction relief.
After the State moved to dismiss, Smith filed a second amended Rule 32 petition.
Both petitions alleged that Smith was intellectually disabled and his death sentence
violated the Eighth and Fourteenth Amendments. Smith requested “a full
evidentiary hearing” and funds to present witnesses, experts, and other evidence.
C. 2005 Dismissal of Second Amended Rule 32 Petition
The State moved to dismiss again. In 2005, the state trial court dismissed
Smith’s second amended Rule 32 petition. The court rejected Smith’s Atkins
claim without an evidentiary hearing. The court reviewed the Alabama Supreme
Court’s decision in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), which identified
three requirements to establish mental retardation “under the broadest definition”
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of that term: (1) “significantly subaverage intellectual functioning (an IQ of 70 or
below),” (2) “significant or substantial deficits in adaptive behavior,” and (3)
manifestation of the first two elements “during the developmental period (i.e.,
before the defendant reached age 18).” Id. at 456.
As to Smith’s intellectual functioning, the state trial court concluded that (1)
“[t]he evidence admitted at Smith’s trial refutes any assertion that Smith’s
intellectual functioning is significantly subaverage,” and (2) “Smith proffer[ed] no
facts in his second amended Rule 32 petition that would in any way dispute the
facts contained in the record.” As to Smith’s adaptive behavior, the state trial court
concluded that the record “indicates [few], if any, deficits in Smith’s adaptive
functioning.”
The state trial court found that Smith was not mentally retarded, rejected his
Atkins and other claims, and denied his second amended Rule 32 petition in full.
D. Appeal of Dismissal of Second Amended Rule 32 Petition
In 2008, the Alabama Court of Criminal Appeals affirmed the dismissal of
Smith’s second amended Rule 32 petition, including his Atkins claim. Smith v.
State (“Smith II”), 71 So. 3d 12 (Ala. Crim. App. 2008). As to mental retardation,
the Alabama appellate court discussed Atkins; how Atkins left it to the states to
define “mental retardation”; and Alabama’s three requirements for “mental
retardation,” identified in Perkins. Id. at 17.
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Turning to Smith’s Atkins claim, the Alabama Court of Criminal Appeals
concluded that Smith failed to meet his burden of pleading the facts relied upon in
seeking relief, as required by Rule 32.6(b) of the Alabama Rules of Criminal
Procedure. See id. at 18–19. The Alabama appellate court found that “[t]he only
grounds offered in support” of Smith’s claim were his conclusory allegations that
he met the three requirements of mental retardation under Atkins and Perkins. Id.
at 19.
Alternatively, the Alabama appellate court turned to the merits of Smith’s
Atkins claim based on the trial evidence. The Alabama appellate court concluded
that Smith’s mental retardation claim failed on the merits because the trial record
shows “Smith does not meet the broadest definition of mentally retarded adopted
by the Alabama Supreme Court.” Id. The Alabama appellate court reviewed the
evidence of Smith’s full-scale IQ scores of 74 at age 12 and 72 before trial. Id. at
19–20. The Alabama appellate court noted that Dr. Chudy testified “that[,]
because of the margin of error in IQ testing[,] Smith’s IQ score could be as high as
75 or as low as 69.”10 Id. at 19. The Alabama appellate court did not apply a
“margin of error” to Smith’s above-70 IQ scores. Id. at 20.
As to Smith’s adaptive behavior, the Alabama appellate court concluded that
there was “no indication that Smith had significant defects in adaptive behavior.”
10The Alabama Court of Criminal Appeals referred to the standard error of measurement
as a “margin of error.”
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Id. at 20. The Alabama appellate court recounted evidence of Smith’s participation
in the murder and other evidence relevant to Smith’s adaptive behavior, including
his ability to communicate with police and his having a girlfriend.11 Id.
The Alabama Supreme Court denied Smith’s petition for a writ of
certiorari.
12
VI. SECTION 2254 PETITION IN FEDERAL COURT
A. 2005 Petition
In 2005, Smith filed this petition for a writ of habeas corpus in the United
States District Court for the Southern District of Alabama, pursuant to 28 U.S.C.
§ 2254. In 2006, the district court stayed the § 2254 proceedings pending the
Alabama state courts’ resolution of Smith’s Rule 32 petitions. In 2011, the district
court lifted the stay and granted Smith’s motion to amend his § 2254 petition.
Smith filed an amended petition on July 25, 2011.
B. 2011 Amended Petition
Smith’s amended § 2254 petition alleged, inter alia, that he is intellectually
disabled and his execution would violate the Eighth and Fourteenth Amendments.
Smith requested discovery and an evidentiary hearing.
11In 2009, the Alabama appellate court also denied Smith’s application for rehearing.
12The Alabama Supreme Court initially granted the writ as to Smith’s ineffective-counsel
claims, but it denied the writ as to all other claims. Following more briefing, the Alabama
Supreme Court quashed the writ.
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In the district court, Smith argued that the Alabama Court of Criminal
Appeals’ decision—rejecting his Atkins claim—was both an unreasonable
application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), and an
unreasonable determination of the facts, see id. § 2254(d)(2).
C. 2013 Order Denying Amended § 2254 Petition
On September 30, 2013, the district court denied Smith’s amended § 2254
petition without discovery or an evidentiary hearing. Smith v. Thomas (“Smith
III”), No. CIV.A.05-0474-CG-M, 2013 WL 5446032, at *38 (S.D. Ala. Sept. 30,
2013). The district court concluded that Smith’s Atkins claim was not
procedurally defaulted and was properly before the federal habeas court because
Smith raised it in his second amended Rule 32 petition. Id. at *27. The district
court examined the reasonableness of the Alabama appellate court’s rejection of
Smith’s Atkins claim based upon Smith’s allegations in his first and second
amended Rule 32 petitions and the trial record considered by the state courts. Id. at
*27–29.
The district court concluded that the only evidence of Smith’s IQ presented
to the state trial court was Dr. Chudy’s testimony that Smith’s full-scale IQ score
was 72 in 1998, and the school records indicating that Smith’s IQ scores were 74
and 75 in grade school. Id. at *28. The district court agreed with the State’s
position that Dr. Chudy’s finding—that Smith is “in the Borderline range of
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intelligence[,] which means that he operates between the Low Average and
Mentally Retarded range”—establishes that Smith is not mentally retarded and not
exempt from the death penalty. Id.
The district court acknowledged (1) that Dr. Chudy’s testified “that, in
Smith’s case, ‘a standard error of measurement of about three or four points’ could
result in an IQ ‘as high as maybe a 75 [or] . . . as low as a 69,’” and (2) the “Flynn
effect,” which artificially inflates IQ scores.13 Id. The district court, however,
observed that the Alabama appellate court had refused to downwardly modify
Smith’s most recent IQ score of 72 to produce an adjusted score within the mental
retardation range of 70 or below. Id. at *28–29. The district court concluded that
the Alabama appellate court did not unreasonably refuse to apply a “margin of
error” to Smith’s IQ score of 72 such that his score would be reduced and fall
within the “mental retardation range.” Id. at *29.
Because the district court concluded Smith “failed to prove that his
intellectual functioning was or is significantly subaverage,” it did “not explore
whether Smith suffers from deficits in adaptive behavior and whether any such
deficits manifested themselves before Smith reached the age of 18.” Id. at *29
n.26. The district court denied Smith’s § 2254 petition as to all claims, id. at *6–
13The “Flynn effect” is the phenomenon by which “IQ test scores have been increasing
over time” because, “as an intelligence test ages, or moves farther from the date on which it was
standardized, or normed, the mean score of the population as a whole on that assessment
instrument increases.” Thomas v. Allen, 607 F.3d 749, 753 (11th Cir. 2010).
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26, *29–38, denied Smith a certificate of appealability, id. at *38, and later denied
Smith’s motion to reconsider, Smith v. Thomas (“Smith IV”), No. CIV.A.05-0474-
CG-M, 2014 WL 217771, at *5 (S.D. Ala. Jan. 21, 2014).
D. Smith’s Certificate of Appealability
In 2014, this Court granted Smith a certificate of appealability as to these
three issues:
1. Whether the Alabama state courts’ procedural ruling—that in his
Rule 32 post-conviction pleadings as to his mental retardation claim,
Smith failed to comply with the specificity pleading requirements in
Rule 32.6(b) of the Alabama Rules of Criminal Procedure—was
contrary to or an unreasonable application of Atkins v. Virginia, 536
U.S. 304 (2002)?
2. Whether the Alabama state courts’ merits determination—that
Smith did not show significant deficits in adaptive behavior
manifested before age 18—is an unreasonable determination of the
facts or an unreasonable application of Atkins?
3. Whether the Alabama state courts’ merits determination—that
Smith did not show subaverage intellectual functioning—is an
unreasonable determination of the facts or an unreasonable application
of Atkins?
14
14With the benefit of the parties’ briefs, oral argument, and our examination of the record,
it has become clear that the first issue is also properly a question of whether the Alabama Court
of Criminal Appeals’ procedural ruling is an unreasonable determination of the facts or an
unreasonable application of Atkins. Accordingly, we sua sponte expand the certificate of
appealability (“COA”) to address whether the Alabama appellate court’s decision, including its
Rule 32.6(b) ruling, was based on an unreasonable determination of the facts under 28
U.S.C. § 2254(d)(2). See Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013), cert.
denied, 134 S. Ct. 1508 (2014) (noting this Court has “expanded a COA sua sponte on
exceptional occasions, even after oral argument”); see also 11th Cir. R. 27-1(g) (“A ruling on a
motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding
upon the panel to which the appeal is assigned on the merits, and the merits panel may alter,
amend, or vacate it.”).
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VII. STANDARD OF REVIEW
We review de novo a district court’s ultimate decision to deny a habeas
corpus petition brought by a state prisoner. McNair v. Campbell, 416 F.3d 1291,
1297 (11th Cir. 2005). As part of that task, we review the district court’s factual
findings for clear error, and we review mixed questions of fact and law de novo.
Id.
VIII. AEDPA
A. AEDPA Deference
A state prisoner’s habeas petition is governed by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). “AEDPA recognizes a foundational principle of our federal system:
State courts are adequate forums for the vindication of federal rights.” Burt v.
Titlow, 571 U.S. ___, ___, 134 S. Ct. 10, 15 (2013). AEDPA thus “erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Id. at ___, 134 S. Ct. at 16. Indeed, the purpose of
AEDPA’s amendments to § 2254 “is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems, and
not as a means of error correction.” Greene v. Fisher, 565 U.S. ___, ___, 132 S.
Ct. 38, 43 (2011) (quotation marks omitted).
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Accordingly, federal review of final state court decisions under § 2254 is
“greatly circumscribed” and “highly deferential.” Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (en banc) (quotation marks omitted). Where a state
court denied a petitioner relief on alternative grounds, AEDPA precludes the
petitioner from obtaining federal habeas relief unless he establishes that each and
every ground upon which the state courts relied is not entitled to AEDPA
deference. See Wetzel v. Lambert, 565 U.S. ___, ___, 132 S. Ct. 1195, 1199
(2012) (stating § 2254 petition at issue should not be granted “unless each ground
supporting the state court decision is examined and found to be unreasonable under
AEDPA”).
B. Section 2254(d)(1) & (2)
As a general rule, a § 2254 state petitioner may not obtain federal habeas
relief “with respect to any claim that was adjudicated on the merits” by a state
court. 28 U.S.C. § 2254(d). However, a petitioner may avoid that general rule if
one of two conditions exist: either (1) that the state court’s adjudication “resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” id. § 2254(d)(1); or (2) that the state court’s adjudication “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,” id. § 2254(d)(2). The
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petitioner carries the burden of proof under § 2254(d)(1) & (2), and our review is
limited to the record before the state court. Cullen v. Pinholster, 563 U.S. ___,
___, 131 S. Ct. 1388, 1398 (2011).
Pursuant to § 2254(d)(1), the phrase “clearly established Federal law” means
“the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71,
123 S. Ct. 1166, 1172 (2003) (quotation marks omitted). A state court’s
application of federal law is not unreasonable under § 2254(d)(1) “so long as
fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (quotation
marks omitted).
As to § 2254(d)(2), “a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of the evidence presented
in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct.
1029, 1041 (2003). “We may not characterize . . . state-court factual
determinations as unreasonable merely because we would have reached a different
conclusion in the first instance.” Brumfield v. Cain, 576 U.S. ___, ___, 135 S. Ct.
2269, 2277 (2015) (quotation marks omitted). The Supreme Court has found a
state court’s factual finding to be unreasonable where the record before the state
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court did not support the factual finding. See Wiggins v. Smith, 539 U.S. 510,
528–29, 123 S. Ct. 2527, 2539 (2003).
IX. ALABAMA’S APPLICATION OF ATKINS
In 2002, the United States Supreme Court held in Atkins that the execution
of “mentally retarded” individuals violates the Eighth Amendment of the
Constitution. 536 U.S. at 321, 122 S. Ct. at 2252.
15
The Supreme Court pointed
out that, “[t]o the extent there is serious disagreement about the execution of
mentally retarded offenders, it is in determining which offenders are in fact
retarded.” Id. at 317, 122 S. Ct. at 2250. The Atkins Court, however, left “to the
States the task of developing appropriate ways to enforce the constitutional
restriction upon their execution of sentences.” Id. (quotation marks omitted and
alterations adopted).
As recounted above, the Alabama Supreme Court in Perkins identified three
requirements to establish intellectual disability “under the broadest definition” of
mental retardation: (1) “significantly subaverage intellectual functioning (an IQ of
70 or below),” (2) “significant or substantial deficits in adaptive behavior,” and (3)
15Prior to Atkins, Alabama, along with most other states, had not outlawed the execution
of intellectually disabled individuals. See Atkins, 536 U.S. at 314–15 & n.20, 122 S. Ct. at
2248-49 & n.20; id. at 342, 122 S. Ct. at 2261–62 (Scalia, J., dissenting).
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manifestation of “these problems . . . during the developmental period (i.e., before
the defendant reached age 18).” Perkins, 851 So. 2d at 456.16
Neither the Alabama legislature nor the Alabama Supreme Court has defined
what constitutes “significant or substantial deficits in adaptive behavior.” See id.
But the Alabama Supreme Court has applied generally the “most common” or
“broadest” definition of mental retardation, which reflects “the clinical definitions
considered in Atkins.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL
1519869, at *7 (Ala. May 25, 2007). And “significant or substantial deficits in
adaptive behavior” means, under the clinical definitions considered in Atkins, a
petitioner must show limitations in two or more of the following applicable
adaptive-skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, health and safety, functional
academics, leisure, and work.” Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3
(citing the American Association on Mental Retardation and American Psychiatric
16In Perkins, decided shortly after Atkins, the Alabama Supreme Court noted that
Alabama lacked statutorily-prescribed procedures for identifying intellectually disabled
individuals and “urge[d] the Legislature to expeditiously develop procedures for determining
whether a capital defendant is mentally retarded and thus ineligible for execution.” Perkins, 851
So. 2d at 457 n.1. In the absence of a legislative definition, the Alabama Supreme Court
continued to apply “the ‘most common’ or ‘broadest’ definition of mental retardation, as
represented by the clinical definitions considered in Atkins and the definitions set forth in the
statutes of other states that prohibit the imposition of the death sentence when the defendant is
mentally retarded.” In re Jerry Jerome Smith v. State, No. 1060427, 2007 WL 1519869, at *7
(Ala. May 25, 2007).
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Association’s definitions of mental retardation).17 Thus, we use that common
clinical definition in considering this case. Cf. Lane v. State, ___ So.3d ___, ___
No. CR-10-1343, 2013 WL 5966905, at *5 (Ala. Crim. App. Nov. 8, 2013) (“In
order for an individual to have significant or substantial deficits in adaptive
behavior, he must have concurrent deficits or impairments in . . . at least two of the
following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills,
work, leisure, health and safety.” (quotation marks omitted)).
X. ANALYSIS OF SMITH’S CLAIMS
A. Rule 32.6(b) Determination
Our first task is to review the Alabama Court of Criminal Appeals’
procedural ruling—that Smith failed to meet the pleading requirements of Rule
32.6(b).18 The Alabama Court of Criminal Appeals’ Rule 32.6(b) ruling was based
on its underlying factual determination that “[t]he only grounds offered in support”
of Smith’s claim were his conclusory allegations that he met the three requirements
of intellectual disability under Atkins and Perkins. See Smith II, 71 So. 3d at 19.
17The American Association on Mental Retardation is now known as the American
Association on Intellectual and Developmental Disabilities.
18The parties agree that we should review the decision of the Alabama Court of Criminal
Appeals on Smith’s Atkins claim.
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Here, we do not examine whether the petition was sufficient to meet
Alabama’s pleading requirement.19 Rather, our narrow review is only the
underlying factual determination about whether Smith’s second amended petition
recounted any facts at all or only conclusory allegations.
Smith’s second amended Rule 32 petition included at least seven factual
grounds that support his Atkins claim: (1) there “was testimony at trial that Mr.
Smith functioned intellectually at the bottom 3rd percentile of all adults”; (2)
“[s]chool records indicate that Mr. Smith never progressed beyond the 5th grade”;
(3) when Smith enrolled in a junior high school in Monroe County, “the county
board of education classified Mr. Smith as ‘Educable Mentally Retarded’ (EMR),
based on his ‘psychological and educational evaluations, academic history, and
other pertinent information’”; (4) “even though he was in EMR classes while in the
Monroe County school system, [Smith] either failed or performed at the ‘D’ level
in all subjects”; and “testimony at sentencing . . . showed [Smith’s] inability to
adapt because” (5) “he often acts out impulsively,” (6) he “lacks the ability to
formulate a pre-meditated plan,” and (7) he “acts as a follower in groups”
(alterations adopted). These factual allegations relate to the three requirements of
intellectual disability under Perkins: significantly subaverage intellectual
19Under Rule 32.6(b), each claim in a petition for post-conviction relief “must contain a
clear and specific statement of the grounds upon which relief is sought, including full disclosure
of the factual basis of those grounds.” Ala. R. Crim. P. 32.6(b). “A bare allegation that a
constitutional right has been violated and mere conclusions of law shall not be sufficient to
warrant any further proceedings.” Id.
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functioning, significant or substantial deficits in adaptive behavior, and
manifestation before age 18.
In short, the Alabama appellate court’s factual determination—that the “only
grounds” Smith pled were conclusory allegations that he met each of the three
requirements—is unsupported by the record and therefore unreasonable.
20
See
Wiggins, 539 U.S. at 528–29, 123 S. Ct. at 2539; cf. Brumfield, 576 U.S. at ___,
135 S. Ct. at 2276–77 (reviewing under § 2254(d)(2) a state court’s factual
determination that the record included “no evidence” of adaptive impairment).21
20We reach this conclusion based on our review of the state court’s factual determination
about what was alleged in Smith’s second amended Rule 32 petition; by contrast, where a state
court accurately identifies what allegations were included in a petition and concludes that those
allegations failed to meet a pleading requirement, that is a legal conclusion, which is subject to
review under § 2254(d)(1). See Brumfield, 576 U.S. at ___ n.3, 135 S. Ct. at 2277 n.3 (“[W]e
subject these determinations to review under § 2254(d)(2) instead of § 2254(d)(1) because we are
concerned here not with the adequacy of the procedures and standards the state court applied in
rejecting [the petitioner’s] Atkins claim, but with the underlying factual conclusions. . . .”).
21Although not squarely on point, Brumfield is instructive. Following Atkins, the deathsentenced Brumfield amended his state post-conviction petition to raise a mental-retardation
claim. 576 U.S. at ___, 135 S. Ct. at 2274. Brumfield alleged that he read at a fourth-grade level
and obtained an IQ score of 75. Id. at ___, 135 S. Ct. at 2274–75. The state court dismissed his
petition. Id. at ___, 135 S. Ct. at 2275.
Later, the district court granted Brumfield’s § 2254 petition, holding, inter alia, the state
court’s dismissal was based on an unreasonable determination of the facts. Id. Reversing, the
Fifth Circuit held that the state court’s dismissal decision did not rest on an unreasonable
determination of the facts. Id. at ___, 135 S. Ct. at 2276.
The United States Supreme Court vacated the Fifth Circuit’s opinion and concluded that
the state court’s dismissal decision was based on two separate factual determinations that were
unreasonable. Id. at ___, 135 S. Ct. at 2276–77. First, the state court unreasonably determined
that Brumfield’s evidence of intellectual functioning precluded him from obtaining an Atkins
hearing under Louisiana law. Id. at ___, 135 S. Ct. at 2277–79. Contrary to the state court’s
decision, Brumfield’s proffered IQ score of 75 “was squarely in the range of potential
intellectual disability” after accounting for the standard error of measurement. Id. at ___, 135 S.
Ct. at 2278.
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Thus, the Alabama Court of Criminal Appeals’ conclusion that Smith failed to
meet Rule 32.6(b) was based on an unreasonable determination of the facts. See
28 U.S.C. § 2254(d)(2).
B. Merits Determination
We must also consider the alternative basis the Alabama appellate court used
for its affirmance of the dismissal of Smith’s Rule 32 petition: its merits
determination that the trial evidence conclusively showed that Smith is not
“mentally retarded” and thus his Atkins claim fails. 22 See Crawford, 311 F.3d at
1326. That merits determination was a finding of fact. See Fults v. GDCP
Warden, 764 F.3d 1311, 1319 (11th Cir. 2014) (“A determination as to whether a
person is mentally retarded is a finding of fact.”). We review the Alabama
appellate court’s merits ruling first on Smith’s intellectual functioning and then on
Smith’s adaptive behavior.
As to Smith’s intellectual functioning, we agree with the State that Alabama
law generally does not contain a strict IQ cut-off of 70 to establish intellectual
Second, the state court unreasonably concluded that Brumfield “presented no evidence of
adaptive impairment.” Id. at ___, 135 S. Ct. at 2277, 2279. The Supreme Court concluded that
the state court’s factual determination—that the record failed to raise any question as to
Brumfield’s impairment in adaptive skills—was unreasonable because “the evidence in the statecourt record provided substantial grounds to question Brumfield’s adaptive functioning.” Id. at
___, 135 S. Ct. at 2280.
22In reviewing Smith’s intellectual functioning and adaptive behavior, the Alabama Court
of Criminal Appeals considered both Smith’s first and second amended Rule 32 petitions and the
evidentiary record from Smith’s trial. Accordingly, we do the same. See Pinholster, 563 U.S. at
___, 131 S. Ct. at 1398.
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disability. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010) (“There is no
Alabama case law stating that a single IQ raw score, or even multiple IQ raw
scores, above 70 automatically defeats an Atkins claim when the totality of the
evidence (scores) indicates that a capital offender suffers subaverage intellectual
functioning.”).
But the problem for the State here is that the trial evidence showed that
Smith’s IQ score could be as low as 69 given a standard error of measurement of
plus-or-minus three points. There was also other trial evidence of deficits in
intellectual functioning, including that Smith (1) did arithmetic at a kindergarten
level, which was consistent with an IQ of 45; (2) suffered from dyslexia; (3) failed
seventh grade and dropped out of school in the eighth grade;
23 (4) struggled to
recall learned and acquired information; and (5) was “quite weak in word
knowledge and usage.”
Despite this trial evidence pointing to significant deficits in Smith’s
intellectual functioning, and even though the state trial court had not conducted an
evidentiary hearing, the Alabama Court of Criminal Appeals held that the record
conclusively established Smith was not mentally retarded and could never meet
Perkins’s intellectual-functioning requirement. Considering the record evidence
before the Alabama Court of Criminal Appeals and the fact that Alabama does not
23In Smith’s second amended Rule 32 petition, he also alleged that school records show
he never successfully completed any grade beyond the fifth grade.
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employ a strict IQ cut-off score of 70, the factual determination that Smith
conclusively did not possess significantly subaverage intellectual functioning was
an unreasonable determination of the facts. See Burgess v. Comm’r, Alabama
Dep’t of Corr., 723 F.3d 1308, 1319 (11th Cir. 2013) (“We hold that the state
court’s determination that [the petitioner] is not mentally retarded is an
unreasonable determination of fact because it was based upon a combination of
erroneous factual findings directly contradicted by the record and a record that was
insufficient to support its conclusions.”); cf. Brumfield, 576 U.S. at ___, 135 S. Ct.
at 2278 (“To conclude, as the state trial court did, that [the petitioner’s] reported IQ
score of 75 somehow demonstrated that he could not possess subaverage
intelligence . . . reflected an unreasonable determination of the facts.”).
The Alabama Court of Criminal Appeals also determined conclusively that
Smith did not suffer from significant or substantial deficits in adaptive behavior.
See Smith II, 71 So. 3d at 20. This conclusion was similarly based wholly on the
Alabama appellate court’s factual determination that there was “no indication”
from the trial record “that Smith had significant defects in adaptive behavior.” See
id.; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2276–77 (reviewing under
§ 2254(d)(2) a state court’s factual determination that the record included “no
evidence” of adaptive impairment). In other words, there was no record evidence
at all of adaptive-behavior impairment.
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Even assuming that a petitioner must show deficits areas that are identified
in both of the clinical definitions in Atkins, the Alabama Court of Criminal
Appeals’ conclusion that the record provided “no indication” that Smith had
significant deficits in adaptive behavior was an objectively unreasonable
determination of the facts. See Miller-El, 537 U.S. at 340, 123 S. Ct. at 1041.
Indeed, the record affirmatively contradicts this conclusion that there was “no
indication” of significant deficits in Smith’s adaptive behavior. There was
evidence in the record before the Alabama Court of Criminal Appeals that would
support a fact finding that Smith had significant limitations in at least two of the
adaptive skills identified by both clinical definitions: (1) social/interpersonal skills
and (2) self-direction.
First, as to social/interpersonal skills, Dr. Chudy concluded that Smith
“never learned how to incorporate successfully into [society’s] norms.” Dr. Chudy
classified Smith’s “personality functioning” as “dysfunctional,” noted that Smith
“scored well below average in skills having to do with social reasoning and
learning how to respond effectively in social situations,” and stated that Smith
“showed a major deficiency in his ability to predict social sequences of action.”
Also relevant to this social-skills inquiry, Dr. Chudy found that Smith’s emotional
problems limited his “ability to deal with everyday stresses and demands” and
caused him to “withdraw[ ] from others.” Furthermore, Dr. Chudy concluded that
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Smith “takes little notice of things around him” and “does not think through
things.”
Second, as to self-direction, Dr. Chudy concluded that Smith “lacks any
direction or goal in life.” Dr. Chudy found that Smith’s “indifferent and
ineffectual” mindset provided “little basis for [Smith] acting in a consistently
sensible manner or learning from experience . . . even when it involves bringing on
pain to himself or those closest to him.” Dr. Chudy also concluded that Smith “is
often overwhelmed with incomprehensible feelings or impulses that he does not
understand” and “possesses extremely limited insight and judgment.” In addition,
Smith’s Rule 32 petition alleged that Smith (1) is prone to impulsive behaviors, (2)
lacks the ability to formulate premeditated plans, and (3) acts as a follower in
groups.
Considering all the foregoing, the Alabama Court of Criminal Appeals’
finding that there was “no indication that Smith had significant defects in adaptive
behavior,” Smith II, 71 So. 3d at 20, is unsupported (and, in fact, contradicted) by
the record and therefore unreasonable, see Wiggins, 539 U.S. at 528–29, 123 S. Ct.
at 2539; cf. Brumfield, 576 U.S. at ___, 135 S. Ct. at 2279–82 (holding a state
court’s “conclusion that the [trial] record failed to raise any question” as to the
petitioner’s adaptive behavior was an unreasonable determination of the facts).
Accordingly, its merits determination (at the early dismissal stage) as to Smith’s
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adaptive behavior functioning was based on an unreasonable determination of the
facts.
C. Evidentiary Hearing
Smith requests that we reverse and remand this case to allow Smith on his
own to present an expert witness on his behalf. Smith should be allowed to do
that.
Smith also included in his prayer for relief a request for discovery and an
evidentiary hearing. Neither he nor the State has fully briefed the propriety or
usefulness of discovery or of an evidentiary hearing at this stage of the litigation.
Accordingly, we do not decide whether the district court should order discovery or
an evidentiary hearing, and we leave that issue for the district court to decide in the
first instance.
However, in considering whether to grant Smith discovery or an evidentiary
hearing, the district court should note that Dr. Chudy’s diagnosis of “borderline
intellectual functioning” does not ipso facto preclude Smith from attempting to
establish that he is intellectually disabled, especially given Dr. Chudy’s testimony
about the standard error of measurement applicable to Smith’s IQ score of 72. See
Burgess, 723 F.3d at 1313, 1322 (ordering the district court to conduct an
evidentiary hearing to determine whether the petitioner, who had been diagnosed
as “borderline mentally retarded,” was intellectually disabled under Alabama law).
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XI. CONCLUSION
In conclusion, we reverse and remand for further proceedings consistent
with this opinion. In doing so, we express no opinion as to whether Smith is
intellectually disabled. Upon remand, the district court should consider in the first
instance Smith’s requests for discovery and an evidentiary hearing.
REVERSED AND REMANDED.
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IN RE: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION
_____________________________________/
This Order Relates To:
ALL ACTIONS (except securities fraud cases)
_______________________________________/
MDL No. 2672 CRB (JSC)
PRETRIAL ORDER NO. 7: ORDER
APPOINTING PLAINTIFFS’ LEAD
COUNSEL, PLAINTIFFS’ STEERING
COMMITTEE, AND GOVERNMENT
COORDINATING COUNSEL
On December 9, 2015, the Court announced that it intended to appoint a Plaintiffs’
Steering Committee (“PSC”) to conduct and coordinate the pretrial stage of this multi-district
litigation (“MDL”) with the defendants’ representatives or committee. (Pretrial Order No. 1, Dkt.
No. 2.) The Court subsequently invited individuals to submit applications for a steering
committee or a lead counsel position by January 8, 2016 and allowed parties to respond by
January 14, 2016. (Pretrial Order No. 2, Dkt. No. 336.) The Court received a total of 150
submissions: 9 individuals applied for a lead counsel position, 104 applied for a steering
committee position, and 37 applied for a lead counsel and/or a steering committee position. The
Court held a hearing on the matter on January 21, 2016. Having carefully considered the written
submissions and the applicants’ oral statements, the Court issues the following Order.
A. Lead Counsel
1. The Court appoints Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein,
LLP as Plaintiffs’ Lead Counsel and as Chair of the PSC. Ms. Cabraser has extensive experience
with multi-district litigation and has held leadership positions in 17 different MDLs, including
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several that involved automobile defects. She also has the support of a great number of her fellow
counsel in this MDL. (See Dkt. No. 782-3.) Moreover, the Court has first-hand knowledge of Ms.
Cabraser’s leadership abilities, having worked with her in her role as plaintiffs’ liaison counsel
and as a member of the PSC in In re: Bextra and Celebrex Marketing, Sales Practices, and
Products Liability Litigation, MDL No. 1699 (N.D. Cal.). That experience left the Court with the
confidence that Ms. Cabraser will effectively represent and guide the plaintiffs toward a resolution
that is in their best interests.
2. The Court vests Ms. Cabraser, as Lead Counsel and PSC Chair, with the authority
and duty to coordinate and oversee the PSC responsibilities set forth below; to schedule PSC
meetings and keep minutes or transcripts of these meetings; to appear at periodic Court-noticed
status conferences and hearings; to sign and file all pleadings relating to all actions; and to bind
the PSC in scheduling settlement discussions and discovery, setting agendas, entering into
stipulations, and in other necessary interactions with the settlement master, defense counsel, and
the PSC. Ms. Cabraser shall also have the authority to retain the services of any attorney not part
of the PSC to perform any common benefit work, provided the attorney so consents and is bound
by the PSC’s compensation structure. She shall perform other necessary PSC administrative and
logistic functions and carry out any other duty as the Court may order.
3. Lead Counsel shall also do the following:
• Establish and maintain a depository for orders, pleadings, hearing transcripts, and all
documents served upon plaintiffs’ counsel, and make such papers available to plaintiffs’
counsel upon reasonable request.
• Maintain in conjunction with their accountant records of receipts and disbursements
advanced by PSC members and received by the PSC and report in writing to the PSC
concerning disbursements and receipts.
• Designate counsel to schedule depositions, set agendas and otherwise interact with defense
counsel, Government counsel, various plaintiffs’ counsel, and the settlement master.
B. Plaintiffs’ Steering Committee
4. As noted above, Ms. Cabraser will chair the PSC. The Court appoints the
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Northern District of California
following attorneys as members of the PSC:
Benjamin L. Bailey
Bailey and Glasser LLP
209 Capital Street
Charleston, WV 25301
Steve W. Berman
Hagens Berman Sobol Shapiro LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
David Boies
Boies Schiller and Flexner
333 Main Street
Armonk, NY 10504
Elizabeth Cabraser (chair)
Lieff Cabraser Heimann & Bernstein,
LLP
Embarcadero Center West
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
David Seabold Casey, Jr.
Casey Gerry Schenk Francavilla Blatt &
Penfield LLP
110 Laurel St
San Diego, CA 92101
James E. Cecchi
Carella Byrne Cecchi Olstein Brody &
Agnello, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Roxanne Barton Conlin
Roxanne Conlin and Associates
319 7th Street
Suite 600
Des Moines, IA 50309
Jayne Conroy
Simmons Hanly Conroy, LLC
112 Madison Avenue
New York, NY 10016
Paul J. Geller
Robbins Geller Rudman and Dowd LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Robin L. Greenwald
Weitz & Luxenberg, P.C.
700 Broadway
New York, NY 10003
Michael D. Hausfeld
Hausfeld LLP
1700 K Street NW, Suite 650
Washington, DC 20006
Michael Everett Heygood
Heygood, Orr, Pearson
6363 North State Highway 161, Suite 450
Irving, TX 75038
Adam J. Levitt
Grant & Eisenhofer P.A.
30 North LaSalle Street, Suite 1200
Chicago, IL 60602
W. Daniel “Dee” Miles III
Beasley Allen Crow Methvin Portis &
Miles
218 Commerce Street
P.O. Box 4160
Montgomery, AL 36103
Frank Mario Pitre
Cotchett Pitre & McCarthy LLP
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Joseph F. Rice
Motley Rice LLC
28 Bridgeside Boulevard
Mt. Pleasant, SC 29464
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United States District Court
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Rosemary M. Rivas
Finkelstein Thompson LLP
1 California Street, Suite 900
San Francisco, CA 94111
Lynn Lincoln Sarko
Keller Rohrback L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Christopher A. Seeger
Seeger Weiss LLP
77 Water Street, 26th Floor
New York, NY 10005
J. Gerard Stranch IV
Branstetter, Stranch & Jennings, PLLC
227 Second Avenue N, 4th Floor
Nashville, TN 37201
Roland K. Tellis
Baron Budd, P.C.
15910 Ventura Boulevard
Encino Plaza, Suite 1600
Encino, CA 91436
Lesley Elizabeth Weaver
Block & Leviton LLP
520 Third Street, Suite 108
Oakland, CA 94607
5. The PSC appointments are personal to the individual attorney appointed. While the
Court has considered PSC members’ resources and expects they will draw upon their firms and
co-counsel to assist them with their duties, each member is personally responsible for his or her
duties. The Court may add or replace members upon request from the PSC, or on its own motion,
if and as circumstances warrant.
6. It is intended and expected by this Order that, as to all matters common to the
coordinated cases, and to the fullest extent consistent with the independent fiduciary obligations
owed by any and all plaintiffs’ counsel to their clients and any putative class, that pretrial
proceedings shall by conducted by and through the PSC.
7. The Court notes it has appointed 21 attorneys to the PSC (in addition to Ms.
Cabraser); the Court believes this is an appropriate number given the amount of work this
litigation may entail and the need for an expeditious resolution of the matter.
8. The PSC is responsible for creating its own structure, including establishing
subcommittees, subject to the Court’s approval. The Court recognizes that changes to the PSC’s
organization may be necessary as the litigation progresses and new details emerge.
9. Finally, as the Court stated at the January 21, 2016 proceeding, the Court will make
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the final determination as to the compensation and reimbursement of Plaintiffs’ counsel. As a
result, there is no need to choose counsel based on a competitive bidding process as proposed by
an amicus. (See Dkt. No. 576.) All time keepers carrying out work for the plaintiffs’ common
benefit, including PSC members, who may look to any common fund or agreement for
reimbursement or compensation shall maintain detailed and contemporaneous time records. The
Court will provide further details in a subsequent Order.
C. Government Coordinating Counsel
10. On January 15, 2016, the Judicial Panel on Multidistrict Litigation conditionally
transferred from the Eastern District of Michigan to this Court United States v. Volkswagen AG, et
al., Case No. 16-10006. (Dkt. No. 928.) In light of the United States Government interests in this
MDL, the Court appoints United States Department of Justice Attorney Joshua H. Van Eaton as
coordinating counsel for the interests of the United States. Mr. Van Eaton’s role will include
scheduling meetings, appearing at Court-noticed conferences, acting on behalf of the Government
interests in settlement discussions (including ensuring that the appropriate Government decision
makers are participating), coordinating discovery with the PSC and Defendants, and carrying out
any other duty the Court may order. The Government Coordinating Counsel shall confer with the
PSC and Defendants to achieve the greatest possible efficiencies and effectiveness, including as to
the conduct of discovery and settlement discussions.
D. Defendants’ Liaison Counsel
To act on behalf of all Defendants, and to ensure effective and efficient communications
between Defendants and Plaintiffs’ Lead Counsel, the PSC, the settlement master, and
Government Coordinating Counsel, Defendants shall provide the Court with the name and firm of
the attorney who shall act on behalf of Defendants as Defendants’ Liaison Counsel on or before
January 27, 2016.
IT IS SO ORDERED.
Dated: January 21, 2016
______________________________________
CHARLES R. BREYER
United States District Judge
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For the Northern District of California
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
IN RE
CHARLES SCHWAB CORPORATION
SECURITIES LITIGATION.
/
This Document Relates To All Cases.
/
No. C 08-01510 WHA
ORDER RE WAIVER OF
ATTORNEY-CLIENT
AND WORK-PRODUCT
PRIVILEGES
Section 11 allows defendants to avoid liability by proving that they “had, after reasonable
investigation, reasonable ground to believe and did believe that the registration statement was
not materially misleading.” This is an affirmative defense and the burden of proof rests on
defendants. The key inquiry focuses on a defendant’s belief at the time in question and
specifically whether he had reasonable belief in the accuracy of the registration statement.
A similar affirmative defense is afforded by Sections 12 and 15.
When a defendant asserts the affirmative defense, he places in issue his subjective state
of mind as to the contested disclosures at the time in question and therefore all information,
whether privileged or not, received by him on those matters during or before the time in question
are discoverable. This is because all information received by him on those matters would have,
or at least arguably should have, informed his belief as to the reasonableness of the investigation
and the accuracy of the registration statement. The waiver extends to all relevant
communications received by said defendant on or before the time in question, whether or not said
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defendant now remembers those communications. It does not, however, waive any privilege as to
communications received only by others, for those communications could not have influenced
the state of mind of the defendant in question. This means that those defendants who merely
testify at trial that they believed competent counsel had been employed to investigate and to
prepare the registration statement in compliance with regulations and that they otherwise had
nothing to do with their preparation will waive no privilege so long as they had no relevant
privileged communications.
If the defendant is a corporation rather than an individual, then the communications that
matter are all those received by all officers, directors and any managing agents responsible for the
registration statements, for their state of mind would be at issue, they being the ones through
whom the corporation must have acted. Therefore, in the case of a corporation asserting the
defense, the waiver must extend to all officers, directors and any managing agents responsible for
the registration statements and the relevant communications received by them up to the time in
question. Again, the waiver occurs even if one or more of the officers, directors and managing
agents have now forgotten the communications, for those communications would have helped
inform their beliefs at the time in question, regardless of their present-day memories.
As to such communications, the waiver extends to the following subjects: (i) the
investigative process used to prepare the registration statement, including the scope of
engagement, the qualifications and experience of those involved; (ii) the registration statement
itself, and (iii) the specific topics (such as the duration issue) challenged in this action.
An example of the latter would be communications regarding the duration question whether
or not the communication came upon in the specific context of the registration statement.
Also waived are any communications from said defendant to counsel made during
or before the time in question bearing upon the registration statement or the investigative process
used to prepare it or the particular topics challenged as misleading (such as the duration question)
since these statements would or could reasonably be expected to have influenced or revealed said
defendant’s beliefs. And, the adequacy of the client disclosure to counsel may be a factor in
evaluating the reasonableness of reliance on counsel’s response or investigation.
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For the Northern District of California
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Assuming, therefore, that the documents were requested and that the requests were
otherwise unobjectionable, this order holds that, as to each defendant asserting said defense, any
privilege assertable by said defendant must be deemed waived and the requested communications
must be turned over under Rule 34. As stated, there is no waiver as to communications received
only by others. Nor is there any waiver as to the actual propriety of compliance counsel’s vetting
process except to the extent of actual communications on that subject to or from those defendants
invoking the defense.
Each defendant may have until MARCH 1 AT NOON to file an election whether to withdraw
the affirmative defense. Some may choose to do so and others may not. But on that date, defense
counsel must produce for inspection and copying all documents previously withheld from
production on account of privilege which were directed to or from any defendant persisting in the
defense, at least for documents prepared during or before the time in question on the subject of
the registration statement, the investigative process and to prepare them, and any of the particular
topics challenged herein as misleading (such as the duration question), whether or not said
defendant now remembers the communication, keeping in mind that for any corporate defendant
the waiver will extend to all officers, directors and any managing agents responsible for the
registration statements.
The Court has read the declarations of Darryl P. Rains and David B. Bayless submitted
yesterday. Those declarations plainly indicate that there are documents that should be produced
under this ruling. The exact extent of the required production depends on facts in the possession
of counsel and so the Court hereby ORDERS Attorneys Rains and Bayless to produce unredacted
copies of all previously withheld materials as to those defendants who persist in these affirmative
defenses, as set forth above. The declarations do not reveal enough information for the Court to
identify all documents that should be produced, so the Court will not pick some and thereby
imply that others need not be produced. Counsel will understand this ruling and knowing all of
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For the Northern District of California
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the facts will proceed honorably. Depositions of counsel and those involved in the process will
not be ordered at this time.
IT IS SO ORDERED.
Dated: February 23, 2010. WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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__________________________________________________________________________________________
STIPULATION AND ORDER SELECTING ADR PROCESS
Case No. C-05-2693-JCS
1
BIRNBERG & ASSOCIATES
703 MARKET STREET
SUITE 600
SAN FRANCISCO
CA, 94103
TEL (415) 398-1040
FAX (415) 398-2001
Cory A. Birnberg, Esq. (SBN 105468)
BIRNBERG & ASSOCIATES
703 Market Street, Suite 600
San Francisco, California 94103
Telephone Number: (415) 398-1040
Facsimile Number: (415) 398-2001
Attorneys for Plaintiffs,
MARK S. SORENSEN and THOMAS H. SQUIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MARK S. SORENSEN, an individual,
and THOMAS H. SQUIRE, an
individual,
Plaintiff,
vs.
MAURY ALVIN POLSE, an individual,
ROBERT SCHULTZ, an individual,
DIXIE, official document no. 513159,
her equipment, gear furniture, apparel,
fixtures, tackle, boats, machinery,
anchors, and all appurtenances, in rem,
M/V [name unknown], her equipment,
gear furniture, apparel, fixtures, tackle,
boats, machinery, anchors, and all
appurtenances, in rem
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
STIPULATION AND [PROPOSED] ORDER
SELECTING ADR PROCESS
Case No. C-05-2693-JCS
ADR CERTIFICATION
Case 3:05-cv-02693-JCS Document 9 Filed 10/07/2005 Page 1 of 3
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__________________________________________________________________________________________
STIPULATION AND ORDER SELECTING ADR PROCESS
Case No. C-05-2693-JCS
2
BIRNBERG & ASSOCIATES
703 MARKET STREET
SUITE 600
SAN FRANCISCO
CA, 94103
TEL (415) 398-1040
FAX (415) 398-2001
The parties to this action stipulate to participate in Early Neutral Evaluation and/or mediation
through the Court processes.
Dated: October 7, 2005 BIRNBERG & ASSOCIATES
Attorneys for Plaintiffs
By: _____/s/ Cory A. Birnberg __________
Cory A. Birnberg
Dated: October 7, 2005 LAW OFFICES OF GARY ANGEL
Attorneys for Defendants
By ___/s/ Gary Angel______________
Gary Angel
IT IS SO ORDERED:
Dated: October ___, 2005 By ___________________________________
UNITED STATES DISTRICT JUDGE
Case 3:05-cv-02693-JCS Document 9 Filed 10/07/2005 Page 2 of 3
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MAGISTRATE
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__________________________________________________________________________________________
STIPULATION AND ORDER SELECTING ADR PROCESS
Case No. C-05-2693-JCS
3
BIRNBERG & ASSOCIATES
703 MARKET STREET
SUITE 600
SAN FRANCISCO
CA, 94103
TEL (415) 398-1040
FAX (415) 398-2001
SIGNATURE AND CERTIFICATION BY PARTIES AND LEAD TRIAL COUNSEL
Pursuant to Civ. L.R. 16 and ADR L.R. 3-5(b), each of the undersigned certifies that he or she has
read either the handbook entitled “Dispute Resolution Procedures in the Northern District of
California,” or the specified portions of the ADR Unit’s Internet site, www.adr.cand.uscourts.gov.,
discussed the available dispute resolution options provided by the court and private entities, and
considered whether this case might benefit from any of them.
Dated: October 7, 2005 Plaintiff:____________________________________
Mark Sorensen
Dated: October 7, 2005 Plaintiff:____________________________________
Thomas Squire
Dated: October 7, 2005 ______/s/ Cory Birnberg_______________________
Cory A. Birnberg
Attorneys for Plaintiffs
Dated: October 7, 2005 Defendant:__________________________________
Maury Polse
Dated: October 7, 2005 Defendant:__________________________________
Robert Shultz
Dated: October 7, 2005 ______/s/ Gary Angel_________________________
Gary Angel
Attorney For Defendants
[COUNSEL ARE IN THE PROCESS OF OBTAINING THEIR CLIENTS’ SIGNATURES, BUT
DUE TO THE COURT’S DEADLINE HAVE FILED THIS DOCUMENT]
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
IDALIA J. MORGUITIA-JOHNSON,
Plaintiff,
v.
CITY OF FRESNO, et al.,
Defendants.
_____________________________________/
Case No. 1:14-cv-00127-LJO-SKO
ORDER DISCHARGING MARCH 9, 2015
ORDER TO SHOW CAUSE RE
CONTEMPT
(Doc. 34)
On March 6, 2015, Defendants filed an ex parte application for a court order to compel the
deposition of Tasha Cole. (Doc. 31.) The Court construed this as an application to issue an Order
to Show Cause for Tasha Cole's failure to appear for a deposition pursuant to a duly served
subpoena. (Doc. 34.) On March 9, 2015, the Court issued an order that Ms. Cole appear on
March 18, 2015, to show cause why she should not be held in contempt for her failure to comply
with the deposition subpoena served on her by Defendants. (Doc. 34.)
On March 18, 2015, Ms. Cole appeared at the hearing on the order to show cause, stated
she was willing to comply with the deposition subpoena, and agreed to appear at 11:00 a.m. for a
deposition at the location indicated by Defendants in open court. (Doc. 39.) Defendants were
instructed to file a declaration indicating whether the deposition was completed.
On March 20, 2015, Defendants filed a declaration stating that Ms. Cole's deposition was
completed on March 18, 2015, and requested that the order to show cause be discharged.
Case 1:14-cv-00127-LJO-SKO Document 43 Filed 03/24/15 Page 1 of 2
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In light of Ms. Cole's compliance and Defendants' counsel's declaration that Ms. Cole’s
deposition has been completed, IT IS HEREBY ORDERED that the March 9, 2015, order to show
cause re civil contempt of Ms. Cole is DISCHARGED.
IT IS SO ORDERED.
Dated: March 24, 2015 /s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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For the Northern District of California
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United States District Court
For the Northern District of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SYLVIA DARENSBURG, et al,
Plaintiffs,
v.
METROPOLITAN TRANSPORTATION
COMMISSION,
Defendant. /
No. 05-01597 EDL
ORDER FOLLOWING CASE
MANAGEMENT CONFERENCE
On November 16, 2007, the Court held a case management conference in this case. As stated
at the conference, the deadline for filing motions to compel discovery is extended to January 31,
2008 with the understanding as agreed by the parties at the conference that this extension will not
delay other pretrial and trial dates, including expert disclosure deadlines.
A further case management conference is scheduled for December 7, 2007 at 2:00 p.m. The
parties shall provide a joint case management conference statement no later than December 4, 2007.
IT IS SO ORDERED.
Dated: November 16, 2007
ELIZABETH D. LAPORTE
United States Magistrate Judge
Case 3:05-cv-01597-EDL Document 139 Filed 11/16/07 Page 1 of 1 |
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STIPULATION AND ORDER RE FORM OF SUMMARY NOTICE C-04-04440, C-07-801
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
GUITA BAHRAMIPOUR, AUSTIN
HEBERGER, JR., and JANELLA
HAIRSTON, individually, and on behalf of
all others similarly situated,
Plaintiffs,
vs.
CITIGROUP GLOBAL MARKETS INC.,
formerly known as SALOMON SMITH
BARNEY, INC.,
Defendant.
––––––––––––––––––––––––––––––––––
LARRY A. LaVOICE, DONITA A.
WILLIAMS, KENNETH W. GLICK,
LEWIS SHAPIRO, and FRANCIS P.
HEATH, MARK BRAHNEY, TERRY FOX,
KEITH GILLMAN, STEVEN KOLODNER,
ANGELO MASSARO, RONALD
ROSENZWEIG, ROBERT SCRABIS, and
JOSEPH BLOOD, individually, and on
behalf of all others similarly situated,
Plaintiffs,
vs.
CITIGROUP GLOBAL MARKETS INC.,
formerly known as SALOMON SMITH
BARNEY, INC.
Defendant.
Case No. C 04-04440 CW
Case No. C 07-801 CW
STIPULATION AND [PROPOSED] ORDER
APPROVING FORM OF SUMMARY
NOTICE FOR PUBLICATION IN WALL
STREET JOURNAL
Hon. Claudia Wilken
Case 4:04-cv-04440-CW Document 89 Filed 09/17/07 Page 1 of 3
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STIPULATION AND ORDER RE FORM OF SUMMARY NOTICE C-04-04440, C-07-801
The Class Representatives and defendant Smith Barney, a division of Citigroup Global
Markets Inc., (“CGMI”), by and through the undersigned counsel, hereby stipulate as follows:
WHEREAS, Section VIII.C.2 of the “Joint Stipulation of Class Action Settlement and
Release” (Docket No. 52 in Case No. 04-4440) provides that the Claims Administrator will
publish a copy of the “Notice of Class Action Settlement” (“Notice”) in the Wall Street Journal or
similar national publication as may be ordered by the Court;
WHEREAS, the Claims Administrator has advised the parties that it would be
prohibitively expensive to publish the entire Notice (which consists of seven 8.5 x 11 inch pages)
in the Wall Street Journal without reducing the font size to such an extent that the Notice would
be very difficult to read and likely unhelpful to potential class members;
WHEREAS, the parties agree that the better course is to publish a summary notice
(“Summary Notice”) in the Wall Street Journal, which would notify potential class members
about the settlement, the relevant deadlines, and direct them to call the Claims Administrator’s
toll-free telephone number for a complete copy of the Notice and accompanying documents;
WHEREAS, the parties have agreed on the form of the Summary Notice attached hereto
as Exhibit 1;
NOW THEREFORE, subject to the Court’s approval, the parties agree as follows:
1. The Claims Administrator will publish the Summary Notice attached as Exhibit 1
in the Wall Street Journal in lieu of the entire Notice, and such publication will satisfy Section
VIII.C.2 of the Joint Stipulation of Class Action Settlement and Release.
IT IS SO STIPULATED.
Dated: September 13, 2007 DOSTART CLAPP GORDON & COVENEY, LLP
___/S/___________________________________
JAMES F. CLAPP
Co-Lead Class Counsel
Dated: September 13, 2007 O’MELVENY & MYERS LLP
___/S/___________________________________
CHRIS A. HOLLINGER
Attorneys for Defendant
Case 4:04-cv-04440-CW Document 89 Filed 09/17/07 Page 2 of 3
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3
STIPULATION AND ORDER RE FORM OF SUMMARY NOTICE C-04-04440, C-07-801
ORDER
The Court hereby approves the form of Summary Notice attached as Exhibit 1 hereto and
directs the Claims Administrator to promptly publish the Summary Notice in the Wall Street
Journal. Publication of the Summary Notice shall constitute compliance with Section VIII.C.2 of
the Joint Stipulation of Class Action Settlement and Release.
Dated: ______________________ __________________________________________
HON. CLAUDIA WILKEN
U.S. District Court Judge
9/17/07
Case 4:04-cv-04440-CW Document 89 Filed 09/17/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_04-cv-00905/USCOURTS-almd-2_04-cv-00905-0/pdf.json | 190 | Other Contract Actions | 28:1330 Breach of Contract | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
THE FEDERAL INSURANCE CO., )
as Subrogee of The Colonial Bank, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:04cv905-A
) WO
DEAN CONSTRUCTION CO., and )
KEN DEAN and JEFF DEAN, )
)
Defendants. )
ORDER ON MOTION
Upon consideration of the defendant’s first motion to compel Colonial Bank to respond
to subpoena (doc. # 13) filed on April 15, 2005 it is
ORDERED that the motion be DENIED pursuant to FED.R.CIV.P. 26(c) and 37(a)(2)(B).
These rules, as amended on December 1, 1993, require litigants to resolve discovery disputes
by a good faith conference before seeking court intervention. Written communications
between counsel do not constitute a conference. Discovery motions filed pursuant to these
Rules must be accompanied by a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the dispute without court
action. Counsel for the parties are DIRECTED to hold not later than 20 days from the date of
this order, the required good faith conference. The parties are encouraged to review this
district's Guidelines to Civil Discovery which may be found at http://www.almd.uscourts.gov.
Done this 18th day of April, 2005.
/s/Charles S. Coody
CHARLES S. COODY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case 2:04-cv-00905-WHA-CSC Document 14 Filed 04/18/05 Page 1 of 1 |
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MARVIN K. LOCKE,
Petitioner,
v.
DANIEL PARAMO, Warden,
Respondent.
Case No.: 17-CV-453-JLS (JMA)
ORDER DENYING PETITIONER’S
MOTION TO ALTER OR AMEND
JUDGMENT
(ECF No. 21)
Presently before the Court is Petitioner’s Motion to Alter or Amend Judgment
Pursuant to Rule 59(e), (“MTN,” ECF No. 21). Petitioner also filed a Reply in Support of
his Motion, (ECF No. 25).
BACKGROUND
On August 4, 2017, Magistrate Judge Jan M. Adler issued a Report and
Recommendation recommending this Court deny Petitioner’s Petition for Writ of Habeas
Corpus, (“R&R,” ECF No. 13). On January 8, 2018, this Court adopted the R&R, (“Prior
Order,” ECF No. 18). In sum, Petitioner had alleged (1) a petition for writ of habeas corpus
review is an appropriate vehicle for a second or successive petition; and (2) his conviction
for second-degree murder is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015).
(“Petition,” ECF No. 1, at 6–7; “Traverse,” ECF No. 12, at 11–12.) Judge Adler
recommended this Court find the first issue moot and deny Petitioner’s claim on the second
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issue. (R&R 10, 13.) The Court agreed with Judge Adler and adopted the R&R. Petitioner
now moves to amend the Court’s Order under Federal Rule of Civil Procedure 59(e).
LEGAL STANDARD
Under Rule 59(e) of the Federal Rules of Civil Procedure, a party may move “to
alter or amend a judgment . . . no later than 28 days after the entry of the judgment.” Such
reconsideration of a prior order is “appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,
Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Reconsideration is
an “extraordinary remedy, to be used sparingly in the interests of finality and conservation
of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). Ultimately, whether to grant or deny a motion for reconsideration is in the “sound
discretion” of the district court. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.
2003) (citing Kona Enters., 229 F.3d at 883).
ANALYSIS
I. Petitioner’s Objections
Petitioner argues the Court erred in failing to consider his objections to the R&R.
(MTN 3.) Petitioner filed Objections to the R&R as well as a Motion for Certificate of
Appealability (“CoA”) which also included objections to the R&R. (See ECF Nos. 16, 17).
The Court did not refer to Petitioner’s Objections in its Order but analyzed the objections
Petitioner included in his CoA Motion. (Prior Order 1.) The Court stated “[w]hile
Petitioner did not file objections to the R&R, he filed a Motion for Certificate of
Appalability, which includes objections to the R&R.” (Prior Order 1–2.) The Court failed
to note that Petitioner filed two documents, one titled “Objections,” and one titled “Motion
for Certificate of Appealiability”; the two contain similar objections but the Motion
contains lengthier objections. Petitioner’s Objections end mid-sentence at page 5 and it
appears Petitioner failed to attach all of the pages to this document. (See ECF No. 16.)
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The Court considered the more complete objections in the CoA Motion in its prior order.
The Court will review Petitioner’s Objections here.
As to claim one, in his Objections to the R&R, Petitioner notes that Judge Adler
found this issue to be moot and states he “will not make any objection to claim one.” (Obj.
2.) In its Order, the Court found no error in Judge Adler’s recommendation and adopted
the R&R as to this claim, denying claim one as moot. (Prior Order 3.) The Court finds no
error in this determination.
As to claim two, in sum, Petitioner argued in his Petition that the phrase “inherently
dangerous to human life” in the second degree felony murder statute is unconstitutionally
vague under Johnson v. United States, 135 S. Ct. 2551 (2015). (Traverse 11–12); see
Johnson, 135 S. Ct. at 2557 (finding the italicized phrase in “burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another” to be unconstitutionally vague). Judge Adler found that
Petitioner had no standing to bring this claim because he was not convicted for second
degree felony murder, and there is no evidence the jury was given any instruction as to a
felony murder charge. (R&R 11–12.) Petitioner was convicted of second degree murder
and assault with a firearm. (Id. at 1.) In his Objections, Petitioner argues Judge Adler was
unreasonable in his determination that this claim should be denied. (Obj. 3.) Petitioner
discusses the second degree felony murder rule and argues the trial judge is required to
explain the law correctly to the jury. (Id. at 5 (citing cases).) Petitioner’s objections then
end mid-sentence.1 The Court found that the trial judge did correctly instruct the jury;
because Petitioner was not convicted for second degree felony murder, it was correct for
1
In his Motion to Amend, Petitioner includes his full objections as an exhibit, including pages that do not
appear in his original objections. (MTN 11–18.) First, this is not “newly discovered evidence” that would
allow reconsideration of the prior order, as it appears Petitioner failed to include all of the pages in his
original objections. Second, the objections on the newly-included pages do not raise any arguments the
Court did not consider in its prior order. Simply because Petitioner was convicted of second degree murder
with a gang enhancement does not elevate his conviction to felony murder. (MTN 16; Prior Order 5.)
Petitioner has no standing to contest the felony murder statute. There is no error in this finding.
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the trial judge not to give an instruction on this charge. (Prior Order 5.) The trial judge
properly gave Jury Instruction 8.30 and 8.31, which pertain to second degree murder, not
felony murder. (Id. (citing to ECF No. 6-12, at 121–22).) The Court finds no error in this
finding.
In sum, the Court has reviewed Petitioner’s objections and finds no error in the fact
that it did not mention Petitioner’s Objections in its Order and instead analyzed Petitioner’s
objections listed in his CoA Motion, (ECF No. 17). In fact, the objections in the CoA
Motion were similar to and even more complete than those in the “Objections” document.
(Compare ECF No. 16 with ECF No. 17.) The Court considered each objection, overruled
them, and adopted the R&R. (Prior Order 4–5.)
II. Petitioner’s Remaining Arguments
Petitioner also argues the Court’s order should be amended for other reasons. He
argues the Court erred in determining that his conviction for second degree murder “does
not [constitute] being found guilty under the felony murder rule.” (MTN 5.) Petitioner
argues (as he did in his CoA Motion) that the prosecutor’s case against him, i.e., the alleged
“willingness to commit a felony inherently dangerous to human life,” along with implied
malice, demonstrate he possessed “an abandoned and malignant heart.” (Id. at 7.) It
appears that Petitioner argues this should give him standing to contest the language in the
felony murder statute and the Court erred in finding otherwise. As the Court noted in its
Order, “while the jury may have deemed Petitioner’s actions dangerous when they
convicted Petitioner of second degree murder, this does not elevate Petitioner’s conviction
to felony murder, and he was not convicted of felony murder.” (Prior Order 5.) The two
charges are not one in the same, and the Court finds no error in its finding that Petitioner
was not convicted of felony murder and thus has no standing to argue the language of the
statute is unconstitutionally vague.
Petitioner also argues the Court erred in finding “inherently dangerous” was not part
of the jury instructions given in his case. (MTN 7.) Again, Petitioner argues the facts of
his case as alleged (i.e., “the ordinary or average discharge of a firearm in a grossly
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negligent manner” and “[shooting] at someone in a public place”) are inherently dangerous
to human life. (Id. at 8–9.) But, Petitioner acknowledges he was convicted of second
degree murder, (id. at 9), thus, the proper jury instruction was given. Again, “there is
simply no mention of the felony murder rule anywhere in the jury instructions” given to
the jury in Petitioner’s case. (R&R 13 (citing ECF No. 6-12, at 77–160).) There is also no
reference to “inherently dangerous to human life.” (Prior Order 5.) The Court finds no
error in this finding.
CONCLUSION
Finding no basis to alter or amend its prior order, the Court DENIES Petitioner’s
Motion, (ECF No. 21).
IT IS SO ORDERED.
Dated: March 26, 2018
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MICHAEL WILLIAMSON,
Plaintiff,
CASE NO. 10cv2236-IEG(NLS)
Order Granting Defendant Vinyard’s
vs. Motion for Summary Judgment
CALIFORNIA HIGHWAY PATROL;
TRAVIS GARROW; D. VINYARD,
Defendants.
Plaintiff Michael Williamson brings this suit under 42 U.S.C. § 1983 alleging Defendant
California Highway Patrol (“CHP”) Officers Travis Garrow and Derek Vinyard violated his
Fourth and Fourteenth Amendment rights. Plaintiff also asserts claims for negligence and
“intentional tort.” Presently before the Court is the motion for summary judgment filed by
Defendant Vinyard. Following full briefing, the Court heard oral argument on the motion on
Monday, April 9, 2012. Upon consideration, for the reasons explained, the Court GRANTS
Officer Vinyard’s motion
Factual Background
At the time of the incident which forms the basis of this action, Plaintiff was a 57-year-old
man who had recently suffered a stroke. Because of the stroke, Plaintiff had physical disabilities
requiring him to use a cane.1 On the evening of January 30, 2009, CHP Officers Garrow and
1
Plaintiff did not file a declaration in opposition to the summary judgment motion, and
there is no support in the deposition testimony or other evidence Plaintiff has lodged in support of
his claim that he had physical disabilities requiring the use of a cane to support himself.
- 1 - 10cv2236
Case 3:10-cv-02236-JM-NLS Document 25 Filed 04/17/12 Page 1 of 10
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Vinyard were on duty, in uniform, and on patrol in a marked patrol car. [Declaration of Derek
Vinyard in Support of MSJ (“Vinyard Decl.”), ¶ 3.] Shortly after 11:00 p.m., the officers received
a radio call from CHP dispatch reporting a motor vehicle accident in the parking lot of the
Denny’s Restaurant on Camino Cañada, in El Cajon. [Id., ¶ 4.] The officers responded to the call,
and Officer Garrow made contact with Plaintiff, who was sitting the in the driver’s seat of a
Toyota pickup truck in the parking lot. [Id., ¶ 5.] Officer Vinyard contacted the owner of the
parked vehicle Plaintiff reportedly struck. [Id.]
While Officer Vinyard spoke to the owner of the other vehicle and collected information
about her vehicle, Officer Garrow put Plaintiff through a series of field sobriety tests. [Id., ¶ 6.]
When Plaintiff failed the field sobriety tests, Officer Garrow told him he was being placed under
arrest. [Id.; Deposition of Michael Williamson (“Williamson Depo.”), Exhibit B to Plaintiff’s
Opposition, at 61:4-23.] Officer Garrow told Plaintiff to turn around, and then instructed him to
put his cane down. [Williamson Depo., at 67:2-25.] Plaintiff told Officer Garrow he could not put
down the cane2
, but Officer Garrow told him again to put it down. [Id. at 67:25-68:3; 79:17-19
(Officer Garrow told him twice to put down the cane).] When Plaintiff did not put the cane down,
Officer Garrow kicked it out from underneath him, causing him to fall. [Id. at 68:4-6.]
At the time of the interaction between Plaintiff and Officer Garrow, Officer Vinyard was
standing next to Plaintiff’s truck, preparing a vehicle inventory form. [Vinyard Decl., ¶ 7.] Officer
Vinyard overheard Officer Garrow instruct Plaintiff several times to drop the walking cane that
was in his right hand. Officer Vinyard then turned his attention toward Officer Garrow and
Plaintiff when he heard Officer Garrow repeat the instruction to drop the cane. [Vinyard Decl.,
¶¶ 8-9.] Out of concern for Officer Garrow’s safety, Officer Vinyard started walking toward
Plaintiff and Officer Garrow to offer assistance. [Vinyard Decl., ¶ 9.] After taking just a few steps,
when he was between 10 to 15 feet away, Officer Vinyard saw Plaintiff bend forward at the waist
Nonetheless, the Court accepts this assertion for purposes of the current motion.
2
In his opposition, Plaintiff states he told Officer Garrow he could not drop his cane
because he needed the cane for balance and if he put his hands behind his back he would fall.
[Opposition, p. 3, lines 10-11.] Plaintiff cites no evidence in support of this assertion, and in his
deposition he testified he gave Officer Garrow no explanation other than to tell him he was not
giving up the cane. [Williamson Depo. at 79:2-4.]
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and fall to the ground. [Vinyard Decl., ¶ 10 (stating he was 15 feet away when Plaintiff fell);
Traffic Collision Report, Narrative/Supplemental, p. 7 of 9 (unsworn narrative of Officer Garrow
stating that Officer Vinyard was approximately 10 feet away when Plaintiff fell to the ground);
Williamson Depo. at 69:9-14 (stating Plaintiff does not know where Officer Vinyard was).]
Officer Garrow, who was behind Plaintiff at the time, also fell to the ground. [Vinyard Decl.,
¶ 10.]
Officer Vinyard immediately assisted Officer Garrow in lifting Plaintiff to his feet and
placing him in handcuffs.3 [Vinyard Decl., ¶ 11.] Plaintiff did not believe he was injured when he
was on the ground, when he was helped up by the officers, or when he was placed in the patrol car.
[Williamson Depo. at 86:8-19.] However, Plaintiff in fact suffered a fracture of his left arm.
Procedural History
Plaintiff filed his complaint in San Diego County Superior Court, and Defendants removed
the action. There have been no prior motions filed in the case. Discovery is closed and the pretrial
conference is scheduled for July 9, 2012.
Legal Standard
Summary judgment is proper where the pleadings and materials demonstrate “there is no
genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of
fact is a question a trier of fact must answer to determine the rights of the parties under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. The court must review the record as a whole and draw all reasonable inferences in
favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir.
2003). However, unsupported conjecture or conclusory statements are insufficient to defeat
summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).
3
In his opposition, Plaintiff states he was “picked up by the arms and shoulders which
caused Williamson to experience additional excruciating pain.” [Opposition, p. 3, lines 21-22.]
Plaintiff provides no evidence to support this statement, and at his deposition Plaintiff stated both
officers “helped me up” and their conduct was “appropriate.” [Williamson Depo. at 82:21-25.]
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Discussion
1. Claim under 42 U.S.C. § 1983
Defendant Vinyard moves for summary judgment on Plaintiff’s § 1983 claim against him,
arguing he was a “mere bystander” and not an “integral participant” in the alleged constitutional
violation. Plaintiff asserts Officer Vinyard violated his rights when he failed to take reasonable
steps to intervene and protect him from Officer Garrow.
A use of force violates the Fourth Amendment where “it is excessive under objective
standards of reasonableness.” Tekle v. United States, 511 F.3d 839, 844 (9th Cir. 2007) (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001)). The court looks first at the severity of the force
applied. Id. (citing Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th
Cir. 2003)). Secondly, and most importantly, the court looks at the need for the force taking into
account “the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Police officers have a “duty to intercede when their fellow officers violate the
constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th
Cir. 2000). However, an officer cannot be held liable for failing to intercede unless he had an
opportunity to do so. Id. “An officer’s liability under section 1983 is predicated on his ‘integral
participation’ in the alleged violation.” Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12
(9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996)). The officer’s
actions themselves need not rise to the level of a constitutional violation, but the officer must have
had some “fundamental involvement” in the conduct that allegedly caused the violation. Id.
(citing Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004)). A police officer who is a
“mere bystander” to his colleague’s conduct is not liable for the violation under § 1983. Chuman,
76 F.3d at 295.
The case law helps to differentiate between officers who are “integral participants” and
those who are “mere bystanders.” In Blankenhorn, officers who arrived on the scene after the
arrest was complete, and who at most provided crowd control, “did not participate in any integral
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way in the arrest” and therefore were not liable. 485 F.3d at 481 n.12. By contrast, the officer
who helped handcuff the prone plaintiff using ripp-hobbles, could be liable as a “meaningful
participant” in the arrest despite the fact plaintiff did not show the officer himself used excessive
force. Id. In addition, the officer who ordered the use of hobble restraints, and the officer who
tackled the plaintiff when he resisted those restraints, both “participated in an integral way” and
could be held liable for the particular alleged use of excessive force. Id.
In Boyd, one officer deployed a “flash-bang” device while several other officers stood
armed behind him. 374 F.3d at 780. The use of the device was part of the overall search
operation, in which every officer participated in some meaningful way, and every officer was
aware of the decision to use the flash-bang device, did not object to it, and participated in the
operation knowing it would be utilized. Under such circumstances, each officer could be held
liable under § 1983. Id. By contrast, in Torres v. City of Los Angeles, an officer who was not
present when plaintiff was arrested, who did not instruct the other detectives to arrest plaintiff or
have any other involvement, could not be held liable as an “integral participant” in the violation.
548 F.3d 1197, 1206 (9th Cir. 2008); see also Motley v. Parks, 432 F.3d 1072, 1082 (9th Cir. 2005)
(affirming summary judgment in favor of ATF agent who was not present and did not participate
in the allegedly unconstitutional search); Hopkins v. Bonvicino, 573 F.3d 752, 771 (9th Cir. 2009)
(“it is clear that an officer who waits in the front yard interviewing a witness and does not
participate in the unconstitutional search in any fashion cannot be held liable.”)
Here, Plaintiff argues Officer Vinyard was close enough to hear Officer Garrow tell
Plaintiff he was being placed under arrest. Plaintiff then implies Officer Vinyard would have been
able to hear him tell Officer Garrow he could not drop his cane because he needed it for balance.
[Opposition, p. 3, lines 10-11.] Based thereon, Plaintiff argues
Vinyard took no action to assist Officer Garrow ... Rather than seeking assistance
from CHP Vinyard to handcuff or otherwise secure Williamson for transportation,
Officer Garrow kicked the cane away from Williamson resulting in Williamson
falling and slamming forcefully into the pavement .... It is clear that Officer
Garrow was making various commands to Plaintiff all within earshot of Vinyard
who was within 10 or 20 feet away of Officer Garrow.
[Opposition, p. 3, lines 11-20 (emphasis in original).] Plaintiff also alleges “Officer Vinyard was
the supervising CHP Officer at the scene and failed to control and/or properly supervise Officer
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Garrow in his contact with Williamson.” Finally, Plaintiff argues Officer Vinyard can be held
liable because he owed Plaintiff a duty to intervene:
Officer Vinyard was more than near enough to observe that Plaintiff performed all
tests with his cane in hand. That fact alone would have alerted any reasonable
officer or person that special attention must be given to an individual with
disabilities, whether suspected of a DUI or not, therefore Vinyard’s business as
usual approach to this specific incident was unreasonable and Plaintiff contends
that Vinyard was aware of the special circumstances. There would be no other
person other than Vinyard who would have stepped in and assisted Garrow, and
more importantly, stood up for [Plaintiff] while at the complete control and behest
of Officer Garrow in the face of a clearly disabled and immobile suspect. Vinyard
did in fact owe a duty to Plaintiff to intervene in Garrow’s unreasonable and
unconstitutional forcing of field sobriety test and arrest attempt.
[Opposition, p. 9, lines 11-21.]
Considering the undisputed facts in this case, the Court finds no reasonable jury could
conclude Officer Vinyard was an “integral participant” in the alleged constitutional violation.
There is no evidence to suggest Officer Vinyard knew or could have known that Officer Garrow
would kick Plaintiff’s cane out from under him. For example, there were no discussions between
the two officers and Officer Vinyard never suggested to Officer Garrow that he take more
aggressive action to effect Plaintiff’s arrest. Plaintiff did not depose the Officers, and there is no
evidence Officer Vinyard heard Plaintiff tell Officer Garrow he needed the cane for balance.4
But
even if Officer Vinyard heard that comment, there is no reason Officer Vinyard would have
suspected Officer Garrow would kick Plaintiff’s cane out from under him. Plaintiff testified at his
deposition that Officer Garrow told him only twice to drop the cane. There is no evidence that
there was an escalating verbal exchange which should have alerted Officer Vinyard there was a
need to intervene. Plaintiff suggests Officer Vinyard had a duty on account of Plaintiff’s disability
to intervene to stop Officer Garrow from conducting a field sobriety test and arresting him for
driving under the influence. However, Plaintiff has cited no authority suggesting that law
enforcement officers are prohibited from administering a field sobriety test or arresting an
intoxicated individual because he is disabled.
4
As noted above, Plaintiff states in his opposition brief that he told Officer Garrow he
needed the cane for balance, but he has provided no declaration regarding that fact. In his
deposition, Plaintiff stated he merely told Officer Garrow he would not give up the cane, without
any further explanation.
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Plaintiff, in his opposition, cites two out-of-circuit cases which he says stand for the
proposition that Officer Vinyard can be held liable for the alleged excessive use of force by
Officer Garrow by virtue of the fact he was present at the scene, regardless of whether he
participated in any way. In Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982), the court stated
that the plaintiff need not show the individual defendant engaged in conduct violating plaintiff’s
constitutional rights, but nonetheless affirmed the trial court’s order granting defendants’ motion
for new trial, finding those officers did not personally participate in the alleged wrongful behavior.
In Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972), the plaintiff was beaten by certain unknown
officers in the presence of the defendants. The court held that plaintiff was entitled to have his
case submitted to the jury notwithstanding the fact he could not prove how the individual
defendants participated in the alleged beating. A fair reading of both of these cases reflect the
same theory of liability discussed above in controlling Ninth Circuit authority – that an officer
who is merely present is not liable for another officer’s excessive use of force. Nonetheless, to the
extent these cases can be read to support liability against a defendant who is merely present, and
not an “integral participant” in the alleged wrongful activity, they are contrary to the established
Ninth Circuit authority discussed above. Plaintiff has failed to present a genuine issue of material
fact, and Defendant Vinyard is entitled to judgment as a matter of law on Plaintiff’s Fourth
Amendment claim against him under 42 U.S.C. § 1983.
Even assuming Plaintiff has stated sufficient facts to establish Officer Vinyard violated his
constitutional rights, Officer Vinyard is entitled to qualified immunity. Qualified immunity
“protects government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known’.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson v. Callahan,
555 U.S. 223 (2009)). Qualified immunity is appropriate when a “reasonable official could have
believed the conduct was lawful.” Robinson v. Solano County, 278 F.3d 1007, 1012 (9th Cir.
2002). At the second step of the qualified immunity analysis – whether the constitutional right
was clearly established at the time of the conduct – the pertinent inquiry is whether the contours of
the right were “‘sufficiently clear’ that ‘every reasonable official would have understood that what
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he is doing violates that right’.” Mattos, 661 F.3d at 442 (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083 (2011)). In determining whether an officer is entitled to qualified immunity, the court
applies a reasonableness standard which is distinct from the underlying standard of reasonableness
embodied in the Fourth Amendment. Hopkins, 573 F.3d at 771.
The question on qualified immunity, therefore, is whether a reasonable person in Officer
Vinyard’s position would have understood that his failure to intervene in Officer Garrow’s
interaction with Plaintiff could result in a violation of Plaintiff’s Fourth Amendment rights. As
noted above, there is no evidence that Officers Garrow and Vinyard discussed how to handle the
administration of Plaintiff’s field sobriety test and subsequent arrest. Officer Vinyard had no
contact with Plaintiff until after he had fallen to the ground. At most, Plaintiff has established that
Officer Vinyard overheard Officer Garrow’s instructions to him to put down his cane, and
Plaintiff’s statements in response refusing to do so. A reasonable officer could not have
anticipated Officer Garrow would react by kicking Plaintiff’s cane out from underneath him,
causing him to fall to the ground. Thus, even assuming Plaintiff has demonstrated Officer Vinyard
violated his constitutional rights, Officer Vinyard is entitled to qualified immunity on Plaintiff’s
claim under 42 U.S.C. § 1983.
2. Tort claims
Defendant Vinyard also moves for summary judgment on Plaintiff’s state law claims of
negligence and intentional tort. Plaintiff, in his opposition, did not address these claims.
a. Negligence
To prevail on his negligence claim, Plaintiff must establish (1) a legal duty to use due care,
(2) a breach of that duty, and (3) injury that was proximately caused by the breach. Ladd v.
County of San Mateo, 12 Cal. 4th 913, 917 (1996). Where a legal duty is not created by statute, the
question of whether a legal duty exists is analyzed under general principles of tort law.” Munoz v.
City of Union City, 120 Cal. App. 4th 1077, 1093 (2004). As a general principle, an individual has
no duty to come to the aid of another. Stout v. City of Porterville, 148 Cal. App. 3d 937, 945
(1983). In addition, California public employees cannot be held vicariously liable for an injury
caused by the actions of another. Cal. Gov. Code § 820.8. In order to establish Officer Vinyard’s
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liability for negligence relating to the actions of Officer Garrow, Plaintiff must demonstrate “the
officer took affirmative action which contributed to, increased, or changed the risk which would
have otherwise existed” or alternatively establish “the requisite factors to a finding of special
relationship ....” Stout, 148 Cal. App. 3d at 945; see also Williams v. State of California, 34 Cal.
3d 18, 27 (1983) (because officers had not created the peril of harm to plaintiff, they were under
no duty to take affirmative action to prevent harm in the absence of a special relationship).
Here, Plaintiff establishes no basis upon which Officer Vinyard had a duty to intervene to
prevent Officer Garrow from causing him harm. Officer Vinyard took no affirmative action which
caused or contributed to Plaintiff’s risk of injury prior to or during his arrest, or before Plaintiff
fell to the ground. The only affirmative action Officer Vinyard took during the entire interaction
was to help Plaintiff get up from the ground. Plaintiff has failed to establish Officer Vinyard had a
legal duty to take any particular action, or that he breached that duty. Therefore, the Court
GRANTS summary judgment on Plaintiff’s negligence claim against Officer Vinyard.
b. Intentional tort
The elements of a civil battery claim under California law are: (1) the defendant
intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s
person, (2) plaintiff did not consent to the contact, and (3) the harmful or offensive contact caused
injury, damage, loss or harm to plaintiff. Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495 (2004). A
claim of battery against a police officer requires the plaintiff to prove the officer’s use of force was
unreasonable. Munoz, 120 Cal. App. 4th at 1102. Battery claims arising out of the excessive use
of force in the course of an arrest are analyzed under the same reasonableness standard imposed by
the Fourth Amendment. Id. “The question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. (quoting Graham, 490 U.S. at 396-97).
Here, Officer Vinyard did not make any contact with Plaintiff until after he had fallen to
the ground, and then only to assist Officer Garrow in getting Plaintiff to his feet. There is no
evidence to support Plaintiff’s conclusory statement in his opposition brief that the officers
“picked him up by his arms and shoulders” causing him “excruciating pain.” Plaintiff has
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submitted no declaration, and in his deposition he characterized the officers’ actions in helping
him up as “appropriate.” [Williamson Depo. at 82:20-83:1.] Based thereon, the Court GRANTS
summary judgment on Plaintiff’s intentional tort claim against Officer Vinyard
Conclusion
For the reasons set forth herein, the Court GRANTS Defendant Vinyard’s motion for
summary judgment, and DISMISSES all of Plaintiff’s claims against Defendant Vinyard.
IT IS SO ORDERED.
DATED: April 17, 2012
IRMA E. GONZALEZ, Chief Judge
United States District Court
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_08-cv-00639/USCOURTS-caed-2_08-cv-00639-0/pdf.json | 550 | Prisoner - Civil Rights (U.S. defendant) | 42:1983 Prisoner Civil Rights | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LEE PEYTON,
Plaintiff, No. CIV S-08-00639 GEB GGH P
vs.
ARNOLD SCHWARZENEGGER, et al.,
Defendants. ORDER
/
Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42
U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma
pauperis. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C.
§ 636(b)(1).
Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28
U.S.C. §§ 1914(a), 1915(b)(1). An initial partial filing fee of $4.71 will be assessed by this
order. 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to
collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the
Court. Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the
Case 2:08-cv-00639-HWG Document 4 Filed 04/25/08 Page 1 of 4
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2
preceding month’s income credited to plaintiff’s prison trust account. These payments will be
forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s
account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a “formulaic recitation of the elements of a
cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1965 (2007).
“The pleading must contain something more...than...a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). In reviewing a complaint under this
standard, the court must accept as true the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light
most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969).
Case 2:08-cv-00639-HWG Document 4 Filed 04/25/08 Page 2 of 4
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3
Plaintiff’s complaint is 121 pages long. Fed. R. Civ. P. 8(a) provides that
complaints must contain a short and plain statement of the claims. After reviewing plaintiff’s
complaint, it is clear that plaintiff can state his claims in a substantially shorter complaint.
Because plaintiff’s complaint does not comply with Rule 8(a), it is dismissed with leave to
amend. If plaintiff files an amended complaint, it may be no longer than 25 pages. Plaintiff
should not rely on exhibits to state his claims.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See
Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms
how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless
there is some affirmative link or connection between a defendant’s actions and the claimed
deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory
allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board
of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In addition, plaintiff is informed that the court cannot refer to a prior pleading in
order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an
amended complaint be complete in itself without reference to any prior pleading. This is
because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an
original complaint, each claim and the involvement of each defendant must be sufficiently
alleged.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff’s request for leave to proceed in forma pauperis is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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4
Plaintiff is assessed an initial partial filing fee of $4.71. All fees shall be collected and paid in
accordance with this court’s order to the Director of the California Department of Corrections
and Rehabilitation filed concurrently herewith.
3. The complaint is dismissed for the reasons discussed above, with leave to file
an amended complaint within thirty days from the date of service of this order. The amended
complaint may be no longer than 25 pages. Failure to file an amended complaint will result in a
recommendation that the action be dismissed.
DATED: 04/25/08
/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
pey639.b
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STIPULATION OF DISMISSAL WITH PREJUDICE
DEBBIE E. KIRKPATRICK, ESQ. (SBN 207112)
SESSIONS, FISHMAN & NATHAN IN CALIFORNIA, L.L.P.
3667 Voltaire Street
San Diego, California 92106
Telephone: (619) 758-1891
Facsimile: (619) 222-3667
[email protected]
Attorney for Defendant NCO Financial Systems, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
THEODORE EDWARD O’NEAL, SR.,
Plaintiff,
vs.
NCO FINANCIAL SYSTEMS, INC., a
Pennsylvania corporation,
Defendant.
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Case No.: CV 07-03970 JW
STIPULATION OF DISMISSAL
WITH PREJUDICE AND
[PROPOSED] ORDER
Fed. R. Civ. P. 41(a)(1)
Pursuant to Fed. R. Civ. P. 41(a)(1), Plaintiff, THEODORE EDWARD
O’NEAL, SR., and Defendant, NCO Financial Systems, Inc., stipulate, and the
Court hereby orders, as follows:
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Case 5:07-cv-03970-JW Document 12 Filed 10/26/07 Page 1 of 2
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STIPULATION OF DISMISSAL WITH PREJUDICE
1. The dispute between the parties has been settled, therefore, the claims
asserted by Plaintiff, THEODORE EDWARD O’NEAL, SR., against Defendant,
NCO FINANCIAL SYSTEMS, INC., in the above-captioned proceeding are hereby
dismissed, with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1).
Dated: October 18, 2007 /s/ Debbie P. Kirkpatrick
Debbie P. Kirkpatrick, Esq.
Attorney for Defendant,
NCO Financial Systems, Inc.
Dated: October 22, 2007 /s/ Fred W. Schwinn
Fred W. Schwinn, Esq.
Attorney for Plaintiff
Theodore Edward O’Neal Sr.
THE FOREGOING STIPULATION
IS APPROVED AND IS SO ORDERED.
Dated:
_________________________________
The Honorable James Ware
United States District Judge
The clerk shall close the file.
October 26, 2007
Case 5:07-cv-03970-JW Document 12 Filed 10/26/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca1-07-02694/USCOURTS-ca1-07-02694-0/pdf.json | 442 | Civil Rights Employment | null | United States Court of Appeals
For the First Circuit
No. 07-2694
BONNIE CHALOULT,
Plaintiff, Appellant,
v.
INTERSTATE BRANDS CORPORATION,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Guy D. Loranger with whom Nichols, Webb & Loranger, PA were on
brief for appellant.
Robert W. Kline for appellee.
August 28, 2008
Case: 07-2694 Document: 0011196164 Page: 1 Date Filed: 08/28/2008 Entry ID: 5272277
-2-
LYNCH, Chief Judge. Bonnie Chaloult sued her former
employer, Interstate Brands Corporation ("IBC"), alleging she had
suffered sexual harassment by her supervisor, Kevin Francoeur, in
the six months before she quit her job. The district court entered
summary judgment for the employer.
The issue on appeal turns on the affirmative defense
available to employers when the harassment is by the plaintiff's
supervisor.
Under Title VII, an employer is subject to vicarious
liability for sexual harassment by an employee's supervisor which
does not constitute a tangible employment action. But the employer
may prevail if it demonstrates a two-part affirmative defense:
that its own actions to prevent and correct harassment were
reasonable and that the employee's actions in seeking to avoid harm
were not reasonable. See Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998). This case turns on the Faragher-Ellerth affirmative
defense.
The question here concerns the employer's affirmative
defense that it is not vicariously liable because on summary
judgment it has established that (i) the employee's own actions
were not reasonable (here plaintiff did not herself complain to
management); (ii) the employer had reasonably set up and educated
employees on appropriate procedures for handling sexual harassment
Case: 07-2694 Document: 0011196164 Page: 2 Date Filed: 08/28/2008 Entry ID: 5272277
-3-
allegations; (iii) the employer did reasonably investigate the
original allegation plaintiff made to management at the time of her
resignation; (iv) no one at a managerial level equal to or superior
to the harasser had notice of the different allegations of
harassment made in the lawsuit; and (v) the co-worker who had some
notice of some of the different allegations did not consider the
conduct he knew of to be harassment and did not call it to the
attention of management.
The plaintiff-employee argued that as a matter of law the
knowledge of a co-worker with the title of supervisor, who was in
fact a peer of the plaintiff's and who also reported to the
harasser, was attributed to the employer under the company's policy
and that defeats the Faragher-Ellerth defense. The district court
rejected the plaintiff's argument.
Conducting our independent review of the record, we find
the employer made out its Faragher-Ellerth defense to vicarious
liability. We affirm the entry of summary judgment for the
employer.
I.
We describe the facts, drawing all inferences in the
plaintiff's favor, as we must do in summary judgment. Mellen v.
Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir. 2007).
Bonnie Chaloult began working at IBC's Biddeford, Maine
production plant in June 1999. In July 2004, when an entry-level
Case: 07-2694 Document: 0011196164 Page: 3 Date Filed: 08/28/2008 Entry ID: 5272277
-4-
bread supervisor position opened up, Chaloult applied for and
received it, and she began working as a bread supervisor in
September 2004. When she first started working as a supervisor,
she was in production, then she was moved to wrapping, and then
back to production. When she was moved back to production in
February 2005, her immediate supervisor became Kevin Francoeur, who
was the assistant production manager. At that time, Chaloult's
shift was the night shift, from 10 p.m. to 8 a.m.
On June 8, 2005, Chaloult and other supervisors attended
a "WARN meeting," under the Worker Adjustment Rehearing
Notification Act, at which they were put on notice that their
positions could potentially be eliminated in sixty days. This was
occasioned by the company's going into bankruptcy. Chaloult
understood that this could mean she was out of a job as of August
12, 2005. Chaloult conceded at deposition that her attendance at
work "deteriorated" after this meeting, and other evidence supports
this.
At no time prior to her resignation did Chaloult complain
about sexual harassment.
Case: 07-2694 Document: 0011196164 Page: 4 Date Filed: 08/28/2008 Entry ID: 5272277
The record shows that Chaloult was having a dispute with 1
an oven operator named Dobre in late July 2005. Sue Bisson wrote
a "To whom it may concern" letter, dated August 3, noting two
incidents: on July 28, Chaloult told Dobre not to call a mechanic
regarding a problem with the oven because he was causing the
problem, but it turned out that a mechanic was needed and the
mistake was not Dobre's. On July 29, Chaloult told Bisson that
Dobre was making another mistake involving machinery, which Bisson
informed Chaloult was not Dobre's fault, at which point Chaloult
"proceeded to walk out of the office and leave." On July 30 or 31,
Chaloult wrote a report stating that Dobre had shoved equipment and
made a loud noise as she walked by.
The parties have not argued that the tension between
Chaloult and Dobre (and apparently Bisson) is related to her
problems with Francoeur, but it does suggest that she was unhappy
at work for reasons unrelated to Francoeur in the days before she
wrote her letter of resignation on August 4.
-5-
After an incident with a co-worker, on August 4, 2005, 1
Chaloult submitted a letter of resignation. Chaloult was pregnant
when she left IBC in August 2005, and was not re-employed until
June 30, 2006. The letter of resignation stated, verbatim:
I respectfully request to give forth my
two week notice, in accordance with the
companies involuntary leave slip, my last date
of work will be 8/19/05.
I would like to take the time to thank
you, (Paul) and IBC for the experience I now
have under management.
However, when I filled out my
application for employment with IBC, it never
stated that at any time would my supervisors
above me, have the right to question my
personal affairs and demand information.
This I learned from yet another
supervisor being accused of fore-play.
Is this company Policy? I tried to
change shifts, told I had day hours for 6-
strap production then I was denied. I no
Case: 07-2694 Document: 0011196164 Page: 5 Date Filed: 08/28/2008 Entry ID: 5272277
-6-
longer feel comfortable working for this
supervisor.
The letter did not directly accuse her supervisor of harassing her,
but of questioning her personal affairs with another supervisor, a
situation she learned about from the supervisor who, she said, was
accused of having a sexual relationship with her. The letter did
state she no longer felt comfortable working for her own
supervisor.
Chaloult put her letter into the mailbox of her
department manager, Paul Santos. Santos met with her the first day
he was back at work after receiving the letter. Before meeting
with Chaloult, Santos discussed her letter with Joseph Cabral,
Assistant Human Resources Manager, and gave a copy of the letter to
Human Resources so they could put it on file. Cabral and Santos
decided that Santos should ask her what the letter meant, since
they did not know to what she was referring.
At the meeting, Chaloult said she was referring to an
incident that had taken place on July 15, in which Francoeur had
approached a co-worker, Jim Anderson, and demanded to know whether
Anderson and Chaloult were having sexual relations. Chaloult, who
had a fiancé at the time, had not been present during this
conversation and said that Anderson had told her about it the
following morning.
When asked why she did not come forward sooner, she told
Santos that she was worried about issues "coming back at me." She
Case: 07-2694 Document: 0011196164 Page: 6 Date Filed: 08/28/2008 Entry ID: 5272277
-7-
did not say to Santos that there had been any other incidents of
concern involving Francoeur. At deposition she admitted there was
nothing that prevented her from reporting other instances to the
company.
Santos told her that he would follow up with both
Anderson and Francoeur and report the incident to Human Resources.
Santos did what he promised. Immediately after his meeting with
Chaloult, Santos called Cabral and briefed him. Santos then called
Francoeur into his office; they met for about half an hour. He
told Francoeur what Chaloult had said. Francoeur said that was not
what happened. Francoeur explained his version of what happened to
Santos as follows:
[H]e explained to me that he had been calling
for both [Anderson and Chaloult], he had tried
calling for her, tried calling for him on the
radio, neither one of them were responding on
the radio. He was walking from the six strap
makeup area going towards the wrap office. He
had passed Bonnie in transit or she was going
-- he noticed her going one way towards
makeup, and he was going towards wrapping. He
walked into the wrap office and said, Jim,
what, are you and Bonnie fucking with me,
screwing with me? And he said that Jim
started laughing. He was like, no, we didn't
hear the calls on the radio. And that's
pretty much it.
Case: 07-2694 Document: 0011196164 Page: 7 Date Filed: 08/28/2008 Entry ID: 5272277
At his deposition, Francoeur confirmed Santos's account 2
of their meeting and of his statement to Anderson. There is no
evidence to the contrary.
-8-
Santos made Francoeur write down his version of events. The
document was submitted into evidence and is consistent with
Santos's description of the meeting.2
Santos then met with Anderson. Anderson told Santos:
[Francoeur] just came in and was like, what,
are you and Bonnie trying to fuck me? I was
like, okay. I go, what else was said? He was
like, nothing. We just laughed and he wanted
some numbers, and I went out on the floor and
that was it. He says he was trying to call
us. I didn't hear him. Maybe our radios were
down, and that was it.
During the interview Santos also asked Anderson what he
said to Chaloult. Santos described his conversation with Anderson
as follows:
[I asked] what did Kevin say to you? What do
you recall Kevin saying to you? He said, he
just came in and he was like, what, are you
and Bonnie trying to fuck me? I was like,
okay. I go, what else was said? He was like,
nothing. We just laughed and he wanted some
numbers, and I went out on the floor and that
was it. He says he was trying to call us. I
didn't hear him. Maybe our radios were down,
and that was it. I go, so he didn't come in
and ask if you guys were fucking? He said,
no. No, he just came in and he wanted to know
if we were fucking with him.
. . . .
I said, Bonnie is saying that you went to her
and told her that Kevin asked you if you and
her were having sex. He was like, oh, I don't
remember what I told her. I go, well, you
Case: 07-2694 Document: 0011196164 Page: 8 Date Filed: 08/28/2008 Entry ID: 5272277
-9-
just told me that he came in and asked if you
two guys were fucking with him and then you
turn around and went to Bonnie and told Bonnie
that Kevin asked if you and her were fucking.
I go, so which one is it? He was like, no, he
just came in and he said if we were fucking
him. I was like, so then why did you go to
Bonnie and tell her something different? And
he made a comment about, oh, Bonnie and I were
just laughing about it, we were joking about
it, and that was it. I was like, well, it's
not a joking matter because this is where
we're at right now.
When he received Francoeur's statement, Santos discussed
the matter with Cabral. They concluded that what Francoeur had
said to Anderson was "are you guys fucking with me?" As a result,
Francoeur was given a letter, dated September 1, 2005, warning
about the use of inappropriate language ("fuck") and language which
could be taken out of context in the workplace. The letter stated:
"While our investigation to date shows that the broad allegations
made by the employee may not be 100% confirmed, it is clear that,
based on your admission, that your comment was inappropriate and
unwarranted." It also made clear that "[a] manager must never
discriminate, harass, or retaliate against any employee. If a
Manager knowingly condones discrimination, harassment, or
retaliation by another, the Manager will be considered to have
personally engaged in the conduct."
After Chaloult gave her two week's notice on August 4,
she worked only a few more days and did not show up to work after
August 8. As a result, IBC did not have the opportunity to conduct
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For summary judgment purposes, we use her testimony at 3
deposition. Her testimony is materially different from some
allegations in her unverified complaint. For example, Chaloult
-10-
its usual exit interview. On November 11, Chaloult met, at his
request, with Joseph Cabral; no specific information is provided
about this meeting, and there is no evidence that Chaloult told
Cabral the allegations she later made. Chaloult also filed an exit
comment form, dated November 11, 2005, in which she made the
comment: "Sexual harassment from upper management for an ongoing
period with other people . . . involved." Santos stated that he
did not see this exit comment form. He said he first became aware
of Chaloult's other allegations after she filed suit.
On October 10, 2006, more than a year after she left her
employment, Chaloult filed suit in federal district court against
IBC, alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000(e), and the Maine Human Rights Act. She
sought general, non-economic, and punitive damages. Chaloult
alleged that she was sexually harassed by her superior, Francoeur,
from February 5, 2005, when she first reported to Francoeur, to
August 2005, when she left the company. For the first time she
related a number of very specific complaints about other
statements.
Chaloult's testimony at deposition included the following
specific allegations, which she had not mentioned to Santos or in
her November 11, 2005 exit comment form. One claim of harassment 3
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testified that Francoeur never asked to see her nipples although
that was alleged in the complaint. Chaloult's complaint stated
that Francoeur would tell her that "she looked like she needed to
get laid," but at deposition she said that it was a female coworker who made that comment.
-11-
is that Francoeur frequently complained about his wife and his lack
of sexual relations with her. At deposition, Chaloult said
Francoeur made these comments openly to supervisors and also said
he wished he could murder his wife. Chaloult did not report the
comments to anyone.
Further, there were comments about breasts. On several
occasions when they were outside on break during the winter,
Francoeur asked Chaloult about the distance between her nipples and
told her to go home and measure this distance. He also at one
point asked if her nipples chafed or stood out like headlights.
She walked away and shook her head but did not report the comments
to anyone. At some point Chaloult walked into an office where
Francoeur was in conversation with another worker named Steve
Leclair and, without using her name but looking right at her,
Francoeur indicated that Chaloult's breasts were "melons. Big
hooters." Chaloult did not report this incident and stated that
nothing prevented her from doing so.
Once, when they were alone in his office Francoeur asked
Chaloult to hold her breath and push her chest out. She did not
understand why he made the comment. She shook her head and walked
off, saying nothing to Francoeur and not reporting the incident.
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She said she did not report it because she did not "want any
retaliation coming back."
She said statements about her relationship with her
boyfriend were harassing. Chaloult had broken up with her
boyfriend in January of 2005. She got back together with him in
April and they became engaged in May 2005. Francoeur made comments
to her to the effect she should not get back together with her
boyfriend. The more serious allegation is that toward the end of
spring, Francoeur offered to come over to her house and have sex
with her; specifically that "he'd come to my house and show me what
fucking was about." Chaloult said that Anderson and a few
maintenance people were in the area at the time Francoeur made this
comment. Chaloult walked away, spurning the offer. Chaloult did
not report the incident.
Another time, Chaloult joined Francoeur and Anderson on
a patio for a smoke. Chaloult and Anderson were discussing a
motorcycle trip that Chaloult had made with her boyfriend.
Francoeur made the statement, "well, girls who ride motorcycles
normally like it from the back side, huh? Is that true, Bonnie[?]"
Chaloult turned and walked off, and shook her head. She did not
report Francoeur for that statement; nothing kept her from
reporting it.
In another instance, Chaloult, another supervisor named
Dan Lariviere, and Francoeur were sitting in an office and
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Francoeur also denied making the statements plaintiff 4
attributes to him as evidence of harassment, including the offer to
go home with her, but we take plaintiff's version as true for
summary judgment purposes. As to the eclair statement, Francoeur
said it was made by another supervisor, Dan Lariviere, and that
afterwards he told Lariviere that the statement was inappropriate.
-13-
Lariviere was eating an eclair. Francoeur said he wanted to see
how far Chaloult could stick the eclair down her throat. Lariviere
said he would also like to see that. Then Francoeur said "[i]f
there isn't enough cream in there, . . . I have plenty." Chaloult
said nothing to either of them or to anyone in management above
Francoeur about this. She "may have" told Anderson about the 4
incident.
At some time in May, Chaloult had picked up a piece of
dough off the machinery, and Francoeur made a comment to her that
"if the dough ball wasn't enough for me to play with, he had some
balls that I could play with." Chaloult stated that a production
employee named Amy Ramsell was present when Francoeur made this
comment, but she is not sure whether Ramsell heard it. Chaloult
walked off and did not report the incident; she stated that nothing
prevented her from reporting it.
In another instance, Chaloult was apparently in a bit of
a frenzy in the presence of other workers over having misplaced her
key card to get into the building. A female employee in the
office, Sue Bisson, said "it looks like somebody needs to get laid.
Kevin [Francoeur] turns around and goes yeah, I guess so. Because
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Chaloult decided to keep a contemporaneous diary of 5
Francoeur's comments. In that diary, she made no mention of
Francoeur's comments about coming over to her house to have sex; no
mention of the alleged incident involving dough balls; no mention
of Francoeur's gestures about melons, which she took to be about
her breasts; nothing about Sue Bisson's comments; and nothing about
Francoeur's comment about girls who ride motorcycles.
The diary did include references to Francoeur's
complaining about his wife, but nothing about comments regarding
his sexual relations with his wife. The diary also did refer to
Francoeur's comments about the distance between Chaloult's nipples,
chafed nipples, and the eclair incident.
-14-
I was apparently a little too hyper." Chaloult did not complain to
either of them or report them and nothing prevented her from doing
so.
Finally, on July 15, as discussed above, Francoeur
allegedly walked into an office where Anderson was doing some
paperwork and yelled at him, "so how long have you and Bonnie been
fucking?"
There were no objectionable statements by Francoeur
between July 15 and Chaloult's letter of resignation on August 4.5
IBC had in place anti-sexual-harassment policies which
included methods for reporting harassment. The company's Equal
Employment Opportunity Policy stated:
Interstate strictly prohibits sexual
harassment. . . . Examples of the prohibited
conduct include unwelcome sexual advances,
requests for sexual favors, and gender slurs
or other offensive, derogatory, or demeaning
comments, jokes, graffiti, or other verbal or
physical conduct and written or taped
materials relating to gender.
. . . .
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Any person who believes that the person has
been subjected to discrimination,
harassment, or retaliation or who knows of
possible discrimination, harassment, or
retaliation against anyone else should
immediately report it to supervision or to
Richard W. Morgano, [phone number redacted] or
to Rhonda Tracy, [phone number redacted]. Do
not wait until a situation is severe or
pervasive; report any possible discrimination
or harassment or retaliation as soon as you
know of it.
Chaloult signed an updated version of this policy on September 16,
2003, indicating that "I . . . have read and understand IBC's Equal
Employment Opportunity Policy and have participated in 'In this
Together' Harassment Training."
Chaloult had also signed, when she first began working
for the company on June 10, 1999, the company's Sexual Harassment
Policy, which included the following provisions:
II. Awareness
A. Supervisors must be sensitive to the
problem of sexual harassment.
B. Employees shall be encouraged to
report an incident of sexual harassment
to their supervisor.
C. If a supervisor becomes aware of any
violation or possible violation of the
EEOC guidelines, the incident should be
reported immediately to the human
resources manager or plant general
manager.
D. Supervisors have an affirmative duty
to keep their work area free from
sexual harassment of any kind and shall
take appropriate steps to prevent and
eliminate such harassment.
Case: 07-2694 Document: 0011196164 Page: 15 Date Filed: 08/28/2008 Entry ID: 5272277
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Chaloult was also aware that IBC had a confidential toll-free
complaint line for employees.
Chaloult admittedly did not at any time before submitting
her letter of resignation make any complaint about Francoeur to the
Human Resources manager, the plant manager, or to any other person
who was superior or equal to Francoeur's level at the company.
When asked at deposition why she did not come forward
sooner with her complaints, Chaloult responded, "I had talked with
Jim Anderson, and Jim Anderson knew about these comments." When
asked whether she had asked Anderson to report her concerns to
management, Chaloult stated that she had not. She asserted that
Anderson was present at the time of Francoeur's comment about
measuring the distance between nipples, when Francoeur made the
comment about girls who ride motorcycles, and when Francoeur told
Chaloult that he wanted to come over to her house and have sex with
her, and that he told her about Francoeur's comment suggesting that
Chaloult and Anderson were having a sexual relationship on July 15.
Chaloult and Anderson were peers; they, along with one
other person, were entry-level supervisors on the overnight shift
in the bread department; Francoeur, as the assistant bread
production manager in charge of the overnight shift, was their
direct supervisor. There were also three other entry-level
supervisors in the bread department who worked during a second
shift.
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At deposition, Anderson confirmed that it is his
understanding that if supervisors receive a complaint of sexual
harassment, they are supposed to report it right away. However,
when asked whether he was ever aware of behavior which could have
violated the company's sexual harassment policy, he said that he
was not. When asked whether anyone had ever complained to him
about conduct that could have been construed as sexual harassment,
Anderson said no.
Anderson further testified that he was never present when
anyone objected to something that Francoeur said, nor did he ever
get the impression that something Francoeur said upset someone.
Anderson testified that the group of supervisors of whom he and
Chaloult were part got along "pretty good. I mean, we were loosey
goosey. We joked around with each other."
As to Chaloult's specific allegations of harassment,
Anderson said that one day Francoeur said to other workers during
a smoke break that he had heard people on a radio program referring
to the distance between nipples as "spread points," and "we all got
a laugh out of it." Anderson said that Francoeur asked a group of
people, not just Chaloult, to measure their "spread points." More
specifically, "[h]e made a general statement for all of us to go
home and do it. . . . I didn't think nothing of it at the time. I
didn't think there was nothing wrong because we all just laughed
about it and we left the office." When asked whether he thought
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When asked whether he knew if Lariviere had been 6
disciplined for his comment, Anderson stated that was "none of
[his] business . . . as far as an entry-level supervisor. Only
upper management would know if something like that happened."
-18-
that Francoeur violated the company's sexual harassment policy when
he made comments about "spread points" to a group of people that
included women, Anderson stated, "I didn't read nothing into it
because we all had a chuckle about it. So, I mean, I don't think
any of us read anything into it because we all laughed and went
on . . . ." Chaloult has not called this testimony into question.
Anderson had a different recollection of the incident
involving an eclair. He stated that one day he, Francoeur,
Chaloult, and Lariviere were eating a box of eclairs they had
brought back from the shipping dock, something that they did fairly
often. On this particular occasion: "Bonnie would take a bite of
one and Kevin [Francoeur] made a noise out of his mouth. Then Dan
had said, like, how far can it go. And we all laughed, and that
was the end of that. We finished eating, and we all went back out
on the floor." Anderson testified that of all the times when they
ate eclairs, this was the only occasion when a comment was made
about someone putting an eclair in their mouth. He did not
consider this to be sexual harassment.6
Anderson also testified that Francoeur once in a while
talked about his own nipples being chafed or irritated. One time,
when Chaloult as well as others, both male and female, were
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present, Francoeur asked if other people had hard nipples.
Anderson said that he heard Francoeur talk about the breasts of
female employees "once or twice," but never about Chaloult's in
particular, and never in her presence. When asked why he did not
report to management Francoeur's comments about breasts, Anderson
replied that Francoeur "was talking to me -- I mean, at that point
I felt it was a guy to guy talk. I mean, you just talk; and I
didn't really think nothing of it. I mean, it was just me and him
in the office or outside." Again, Anderson did not consider this
to be harassment. Chaloult has not rebutted this testimony.
With respect to the incident Chaloult referred to in her
letter of resignation, Anderson testified that Francoeur did not
ask him whether he and Chaloult were having sexual relations.
Rather, Francoeur came into the office where Anderson was sitting
and asked whether Anderson and Chaloult were "f[]ing with him" by
not answering their radios because Francoeur had unsuccessfully
been trying to get a hold of them. Anderson said that he told
Chaloult about the episode a few days later: "[I]t got worked into
the conversation . . . . I was telling her, Kevin came in the
office and he was pretty mad that we weren't answering our radios
and he asked if we were F-ing, if we were F-ing with him and stuff
like that." Chaloult also has not called this testimony into
question.
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Anderson testified that Chaloult never asked him to do
anything with, or about, Francoeur's comments. There is no
testimony from Chaloult that she ever used the term "sexual
harassment" in her conversations with Anderson about Francoeur.
II.
The Supreme Court has rejected the idea that an employer
is strictly liable for a hostile environment created by a
supervisor when the employer neither knew nor reasonably could have
known of the alleged misconduct. Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 70-72 (1986).
In Faragher and Ellerth, the Court adopted as an
alternative to an automatic liability rule an affirmative
"composite" defense under which an employer may show, under the
first prong, that "the employer had exercised reasonable care to
avoid harassment and to eliminate it when it might occur," and,
under the second prong, that "the complaining employee had failed
to act with like reasonable care to take advantage of the
employer's safeguards and otherwise to prevent harm that could have
been avoided." Faragher, 524 U.S. at 805.
We separately evaluate the two prongs, recognizing that
there may be a relationship between the two. For example, if the
company has not provided information about a complaint procedure,
that may affect whether the employee's failure to use the procedure
is reasonable, and vice versa. Reasonable effort is required on
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Clearly Chaloult's behavior in not complaining was not 7
reasonable. There is absolutely no evidence of Chaloult's having
"more than ordinary fear or embarrassment," as Reed v. MBNA
Marketing Systems, Inc., 333 F.3d 27, 35 (1st Cir. 2003), requires.
To the contrary, Chaloult was a supervisor herself who had worked
for the company for over five years.
In Reed, this circuit held that a jury question was
presented on the second prong regarding whether it was unreasonable
for a seventeen-year-old plaintiff to fail to complain about her
supervisor's sexual assault when the supervisor was twice her age
and told her that they would both be fired if she reported and that
his father was good friends with the company's owner. Id. at 37.
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both sides. As we said in Reed v. MBNA Marketing Systems, Inc.,
333 F.3d 27 (1st Cir. 2003), the Supreme Court "certainly knew[]
its regime necessarily requires the employee in normal
circumstances to make [the effort to put the company on notice] if
the employee wants to impose vicarious liability on the employer
and collect damages under Title VII." Id. at 35; see also, e.g.,
Freytes-Torres v. City of Sanford, No. 05-15805, 2008 WL 763216, at
*3 (11th Cir. Mar. 25, 2008); Nurse "BE" v. Columbia Palms W. Hosp.
Ltd. P'ship, 490 F.3d 1302, 1309-12 (11th Cir. 2007); Hardage v.
CBS Broad., Inc., 427 F.3d 1177, 1186 (9th Cir. 2005).
Plaintiff does not contest that IBC has met the second
prong of the Faragher-Ellerth defense. The district court found
that Chaloult had waived any challenge to the company's claim that
she had not acted reasonably by failing to report the harassment.
We take it as true then that Chaloult "unreasonably failed to take 7
advantage of any preventive or corrective opportunities provided by
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the employer or to avoid harm otherwise." Faragher, 524 U.S. at
807.
Chaloult has posed the question as one under the first
prong of Faragher-Ellerth, that is, whether the company acted
reasonably. We agree that, depending on the facts, there may be
instances in which the employee acted unreasonably, but the
employer also did not exercise reasonable care. But that is not
the case. Chaloult concedes that IBC did have an acceptable sexual
harassment policy and complaint process in place, that the company
had trained its employees regarding its policies, and that Chaloult
knew of these policies. Chaloult thus concedes that the employer
has met the initial aspect of the first prong -- that the employer
took reasonable care to avoid sexual harassment. She argues that
the employer failed to meet the second aspect -- that the employer
failed to take reasonable care to eliminate harassment when it
might occur.
Specifically, Chaloult argues that Anderson's putative
knowledge of Chaloult's being harassed in the manner described in
the lawsuit must be attributed to IBC, and that given the
attributed knowledge, IBC failed to take appropriate corrective
actions. It is important to note that there is no claim of any
actual knowledge on the part of any IBC personnel who were superior
to Francoeur, or anyone superior to Chaloult, other than Francoeur.
Nor is there a claim the company routinely ignored harassment
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complaints or that there were prior complaints against others.
Moreover, Chaloult does not claim that the company acted
unreasonably in responding to a complaint after she submitted her
letter of resignation and put it on notice of Francoeur's comments
regarding an alleged sexual relationship between Chaloult and
Francoeur.
Chaloult argues that case law requires imputation to a
company of a co-worker's knowledge so long as the co-worker had any
obligation to report harassment, and that the scope of the
Faragher-Ellerth defense is defined, as a matter of law, by the
company's own sexual harassment policies. Here, because the
company voluntarily required all supervisors to report any
harassment, as a matter of law the knowledge of anyone bearing the
title of supervisor must be attributed to the company for purposes
of the company's obligation to eliminate harassment.
We disagree with the plaintiff's argument. Given the
combination of factors from the events in this case, we think that
the company was entitled to summary judgment under FaragherEllerth. Here, the employer had an appropriate policy, it was
widely known and disseminated, it was known to the plaintiff, and
the plaintiff failed to use the complaint procedures for the
matters at issue. It is also clear, as to the second aspect of the
first prong, that as to the one matter reported to the employer by
plaintiff's August 4 letter, the company did act reasonably in
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response. The employer promptly interviewed Chaloult, Francoeur,
and Anderson and concluded that Chaloult's account of what
Francoeur said to Anderson was inaccurate, but that Francoeur
should be punished for using inappropriate language. Further, the
complaint Chaloult made in her letter of resignation actually had
to do with invasion of personal privacy and reasonably could be
viewed as not being about sexual harassment. The employer also
reasonably viewed the matter as closed since Chaloult had raised no
other issues in her letter or in her meeting with Santos. Thus the
employer was fully in compliance with the second aspect of the
first prong of Faragher-Ellerth as to information of which
management had actual notice.
Nor is there knowledge that should be imputed to the
company that would render unreasonable its response under the
second aspect of the first Faragher-Ellerth prong. Chaloult argues
that whatever Anderson knew must be attributed to the company and
that what Anderson knew was the full range of behavior that
Chaloult complains about in her lawsuit. We outline our reasoning
for rejecting Chaloult's proposition that the employer here was on
adequate notice and failed to take appropriate steps.
Chaloult's position is not supported by the case law.
Chaloult relies on cases which she characterizes as holding that
the unreported knowledge of sexual harassment by any employee
bearing the title supervisor, even peers with no authority over the
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harasser, is sufficient itself to attribute knowledge to the
employer. As a general proposition this cannot be consistent with
the defense outlined by the Supreme Court, which provides
incentives for employers to develop sexual harassment reporting
policies and to educate employees about and promote compliance with
such procedures in order to avoid vicarious liability.
Chaloult relies heavily on Dees v. Johnson Controls World
Services, Inc., 168 F.3d 417 (11th Cir. 1999), a case which is not
at all like this. Dees concerned the adequacy of evidence that the
harasser's supervisors had knowledge of the harassment and did
nothing. In Dees, there was evidence that superiors of the
harasser had actual knowledge of harassment prior to plaintiff's
complaint. Specifically, a Human Resources employee told plaintiff
that the employer was aware of prior sexual harassment in
plaintiff's department, and plaintiff's superior informed her on
multiple occasions that he had reported the harassment up the
ladder "because he realized that [plaintiff] could not file a
complaint herself." Id. at 422-23.
Chaloult's argument about attribution to the company
turns on the fact that Anderson's title was supervisor. In fact,
that was plaintiff's title as well. Anderson was her co-worker,
and they both reported to the alleged harasser. This situation is
unlike other cases in which people in management at levels above or
at the same level as the harasser either observed directly or were
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The case Clark cites in support of this proposition, 8
Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), says
no such thing. The language from Coates, that a company "itself
answered the question of when it would be deemed to have notice of
the harassment," was used in the context of whether an employee had
sufficiently reported harassment to the company, not whether the
company was liable for a co-worker supervisor's knowledge. Id. at
1364.
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told of the harassment. Cf., e.g., Arrieta-Colon v. Wal-Mart P.R.,
Inc., 434 F.3d 75, 81-82 (1st Cir. 2006); Dees, 168 F.3d at 423;
Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir.
1999); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir.
1998).
This raises the question of whether the company's
voluntary adoption of a policy requiring all supervisors,
regardless of whether they are co-workers, to report sexual
harassment increases the scope of the company's legal liability as
a matter of law under Title VII. We think not, although one
circuit has adopted such an approach. See Clark v. United Parcel
Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005). Adoption of this 8
view would set a legal standard different from the Supreme Court's
reasonableness approach in Faragher-Ellerth. It would also
discourage and penalize voluntary efforts which go beyond what the
law requires. And it would be inconsistent with approaches to
voluntary efforts in other areas of Title VII law. See, e.g.,
Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1279
(11th Cir. 2002) (an employer's deviation from a voluntarily
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This does not mean that Anderson had no duty to report 9
harassment under IBC's policy. But the existence of any such duty
does not, as a matter of law, automatically impute to IBC all of
Anderson's knowledge for the purpose of determining the
reasonableness of IBC's actions under Faragher-Ellerth.
In an affidavit accompanying her opposition to summary 10
judgment, Chaloult added new information: that after Francoeur made
the offer to go to her house and have sex with her, Anderson "said
that Mr. Francoeur's behavior was getting worse, and, it would get
him into trouble at some point." Since this statement is
inconsistent with Chaloult's deposition testimony, we disregard it.
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir.
2008); Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001).
-27-
adopted affirmative action policy cannot be used as evidence of
pretext); Long v. Runyon, No. 92-6078, 1993 WL 264669, at *3 (6th
Cir. July 12, 1993) (same).9
Even if all of Anderson's knowledge were imputed to IBC,
this would not make IBC's actions unreasonable, since it is clear
that Anderson did not consider himself on notice of harassment.
Anderson testified that he did hear several comments by Francoeur
which Chaloult attributed to Francoeur, but Anderson believed the
comments were not harassing, and so there was no basis to report.
As to the most suggestive of the alleged comments, i.e., that
Francoeur offered to go and have sex with Chaloult, Anderson says
he did not hear them. Chaloult did not testify that Anderson did
hear them or that he must, of necessity, have heard them.10
Anderson also testified that had he observed or known of any claims
by Chaloult of harassment, he would have reported them up the
chain.
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This is also not a case where the employer was aware of 11
prior instances of Francoeur's harassment through complaints made
by other people. There is no indication that any complaints were
made about Francoeur by anyone else at any time.
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The effect of the acceptance of plaintiff's argument
would be to undercut the policy judgment the Supreme Court made in
Faragher-Ellerth. The defendant met the reasonableness standard.
This is not an instance in which the employer is trying to utilize
its sexual harassment reporting chain to immunize itself from
knowledge it actually had of the harassment allegations. Varner 11
v. Nat'l Super Markets, Inc., 94 F.3d 1209, 1213-14 (8th Cir.
1996). Rather, this is a case where the company was deprived of
the opportunity to take remedial action because -- with the
exception of the one incident Chaloult reported, which Santos
promptly investigated and acted on -- Chaloult did not make
allegations of sexual harassment until she filed suit over a year
after leaving her job at IBC.
We affirm the entry of summary judgment for defendant.
-Dissenting Opinion FollowsCase: 07-2694 Document: 0011196164 Page: 28 Date Filed: 08/28/2008 Entry ID: 5272277
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LIPEZ, Circuit Judge, dissenting. Three propositions
underlie the decision of the majority to affirm summary judgment
for IBC: (1) the terms of the sexual harassment policy that IBC
chose to adopt should not be applied as written, (2) with the
policy cast aside, Chaloult's unreasonable failure to take
advantage of any preventive or corrective opportunities provided by
IBC's sexual harassment policy (the second element of the FaragherEllerth affirmative defense) becomes the decisive factor in
determining that IBC exercised reasonable care to prevent and
correct promptly sexually harassing behavior (the first element of
the Faragher-Ellerth affirmative defense), and (3) there is no
genuine issue of material fact about whether Anderson was aware of
the sexual harassment of Chaloult.
I disagree with each of these propositions. Therefore,
I respectfully dissent.
I.
IBC's sexual harassment policy states without
qualification:
If a supervisor becomes aware of any violation or
possible violation of the EEOC guidelines, the incident
should be reported immediately to the human resources
manager or plant general manager . . . . Supervisors have
an affirmative duty to keep their work area free from
sexual harassment of any kind and shall take appropriate
steps to prevent and eliminate such harassment.
Although the majority acknowledges that Anderson was a supervisor,
it insists that his awareness of sexual harassment could not be
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attributed to IBC because Chaloult also was a supervisor on the
same level as Anderson, and both reported to Francoeur, the alleged
harasser. The majority also notes that no one in management at
Francoeur's level or above had knowledge of the harassment.
Therefore, according to the majority, IBC should be entitled to the
affirmative defense.
The majority has added its own gloss to the company's
clearly stated policy. As drafted, the policy did not qualify
Anderson's obligations under the company's sexual harassment policy
simply because he and Chaloult were supervisors at the same
employment level. Likewise, as drafted, the policy did not qualify
Anderson's obligations because the alleged harasser was the
immediate supervisor of both Anderson and Chaloult.
Indeed, that policy demonstrates that IBC knew how to
distinguish between a particular category of supervisor and
supervisors generally. The "Awareness" section of the company's
sexual harassment policy reads in its totality as follows:
II. Awareness
A. Supervisors must be sensitive to the problem
of sexual harassment.
B. Employees shall be encouraged to report an
incident of sexual harassment to their
supervisor.
C. If a supervisor becomes aware of any
violation or possible violation of the EEOC
guidelines, the incident should be reported
immediately to the human resources manager or
plant general manager.
D. Supervisors have an affirmative duty to keep
their work area free from sexual harassment of
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any kind and shall take appropriate steps to
prevent and eliminate such harassment.
(emphases added).
Pursuant to this policy, employees experiencing
harassment are specifically "encouraged to report an incident of
sexual harassment to their supervisor." However, supervisors
generally "must be sensitive to the problems of sexual harassment,"
and must "report immediately to the human resources manager or
plant general manager" any violation or possible violation of the
EEOC guidelines. They also "have an affirmative duty to keep their
work area free from sexual harassment of any kind and shall take
appropriate steps to prevent and eliminate such harassment."
Anderson understood that these obligations of a
supervisor to deal with sexual harassment applied to him. As the
majority points out, Anderson confirmed at his deposition that "it
is his understanding that if supervisors receive a complaint of
sexual harassment, they are supposed to report it right away."
Although Chaloult never said to Anderson "I am being sexually
harassed by Francoeur and I want you to help me," she alleges that
she did complain to Anderson about Francoeur's conduct and she
asserts that Anderson was aware of many of her encounters with
Francoeur independently of any complaint by her. Yet the majority
insists that Anderson had no legal obligation to do anything - and
the company thus could not be found to have acted unreasonably -
because IBC's policy requires more than Title VII demands. The
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In footnote 9 of its opinion, the majority states that it 12
is not saying that Anderson had no duty to report harassment under
IBC's policy. Rather, the majority insists that Anderson had no
duty to report Francoeur's harassment of Chaloult under the
circumstances of this case. Those circumstances include two
indefensible legal propositions put forth by the majority. First,
as explained above, the majority says that Anderson's status as a
supervisor under the IBC policy does not matter here because
Chaloult was a supervisor at the same level as Anderson and because
the harasser, Francoeur, was the supervisor for both of them.
Second, as I explain more fully in Parts II and III of the dissent,
the majority says that Anderson's knowledge of Francoeur's
treatment of Chaloult did not constitute awareness of sexual
harassment as a matter of law.
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majority simply ignores as improvident or legally irrelevant IBC's
policy choice to imbue all supervisors with the responsibility for
reporting and preventing sexual harassment.12
Other courts have agreed that a company's stated sexual
harassment policy is critical to an evaluation of the question
posed by the first element of the affirmative defense -- whether
"the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior." Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998). In Clark v. United Parcel
Serv., Inc., 400 F.3d 341 (6th Cir. 2005), the court rejected the
employer's argument that, as a matter of law, supervisors who "were
not high enough in the company hierarchy and had no authority to
control [the harasser]" had no duty to convey their knowledge of
harassment to higher management. Id. at 350. The court observed
that "[t]his argument might have merit but for the fact that UPS
itself has, through its sexual harassment policy, placed a duty on
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In Coates, the court held that when an employer's sexual 13
harassment policy designates the people responsible for reporting
misconduct, the company "itself answered the question of when it
would be deemed to have notice of the harassment sufficient to
obligate it or its agents to take prompt and appropriate remedial
measures." 164 F.3d at 1364. The majority correctly notes that
the court in Coates was considering whether an employee had
sufficiently reported harassment to the company and did not address
the issue of whether a company was liable for a co-worker
supervisor's knowledge. Even with this factual distinction, the
central point remains the same -- a company's own harassment policy
answers the question of who within the company is responsible for
reporting and responding to known incidences of harassment.
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all supervisors and managers to 'report[] incidents of sexual
harassment to the appropriate management people.'" Id. (emphasis
in original); see also Coates v. Sundor Brands, Inc., 164 F.3d
1361, 1364 (11th Cir. 1999).
13
The majority justifies its decision not to enforce IBC's
policy as written on the ground that to do so would "set a legal
standard different from the Supreme Court's reasonableness approach
in Faragher-Ellerth." According to the majority, allowing
knowledge of sexual harassment by "any employee bearing the title
supervisor" to be sufficient to attribute knowledge to the employer
is inconsistent with the Faragher-Ellerth affirmative defense,
which "provides incentives for employers to develop sexual
harassment reporting policies and to educate employees about and
promote compliance with such procedures."
The majority misapprehends Title VII's "basic policies of
encouraging forethought by employers and saving action by objecting
employees." Faragher, 524 U.S. at 807. The animating principle of
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Title VII is "not to provide redress [for employment
discrimination] but to avoid harm." Faragher, 524 U.S. at 806. By
involving supervisors at all levels in the reporting and prevention
of sexual harassment, IBC's sexual harassment policy seeks
comprehensively to avoid harm. If the failures of a particular
supervisor in the reporting of sexual harassment belie the promise
of that comprehensive policy, a court should not forgive the
failure of the supervisor by declaring the policy too ambitious.
Not surprisingly, I can find no other cases in which an
employer prevailed on the first element of the Faragher-Ellerth
affirmative defense because a court thought its sexual harassment
policy imposed a broader reporting obligation than the law
required. If the majority believes that IBC's policy states the
reporting responsibilities of supervisors too broadly to justify
vicarious liability, IBC should rewrite that policy, not the court.
II.
I agree with the majority that there may be instances in
which there is a relationship between the two prongs of the
Faragher-Ellerth affirmative defense. That is, facts relevant to
an assessment of the unreasonableness of the employee in not taking
advantage of any preventive or corrective opportunities afforded by
a company's sexual harassment policy may also be relevant to an
assessment of the reasonable care taken by an employer to prevent
and correct promptly sexual harassment. Some of the cases cited by
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the majority present such scenarios. For example, in Nurse "BE" v.
Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302 (11th Cir.
2007), an employee explicitly "requested that [her supervisor] not
report the incident [of sexual harassment] and premised the
complaint on [the supervisor]'s promise of confidentiality." Id.
at 1310. Similarly, in Hardage v. CBS Broad., Inc., 427 F.3d 1177
(9th Cir. 2005), the employee told the supervisor with whom he had
discussed the allegedly harassing behavior that he wanted to
"handle the situation by himself." Id. at 1186. In Nurse "BE" and
Hardage, the employee's conduct -- telling the supervisor not to
address the harassment -- appropriately affected the court's
inquiry into the reasonableness of the measures taken by the
employer. However, those cases are inapplicable here because there
the employees took affirmative steps to thwart their supervisors'
compliance with the reporting requirements. Here, Chaloult merely
failed to act. That is often the case in sexual harassment cases
for many different reasons. That failure has no relationship to
Anderson's responsibilities as a supervisor if he was aware of the
harassing conduct by Francoeur.
The majority sees it differently. With its disregard of
IBC's sexual harassment policy, it seeks to minimize the importance
of Anderson's knowledge of Francoeur's conduct notwithstanding the
obligation to report imposed on him by IBC's policy, and it makes
Chaloult's failure to use the complaint procedures of the company
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the decisive factor in deciding that the company acted reasonably.
In effect, the majority double counts Chaloult's failure to report
sexual harassment to higher management (once in each element of the
affirmative defense). It gives little or no weight at all to
Anderson's awareness of Chaloult's encounters with Francoeur. For
this approach, the majority cites language from Reed v. MBNA Mktg.
Sys., Inc., 333 F.3d 27 (1st Cir. 2003), where we said that the
Supreme Court "certainly knew [] its [Faragher-Ellerth] regime
necessarily requires the employee in normal circumstances to make
[the effort to report sexually offensive conduct] if the employee
wants to impose vicarious liability on the employer and collect
damages under Title VII." Id. at 35 (emphasis in original).
This statement is merely an explanation of why there is
a second element of the Faragher-Ellerth affirmative defense that
focuses on the reporting responsibilities and conduct of the
employee. That statement did not mean, because it could not mean,
that the unreasonable failure of the employee to report sexual
harassment trumps the failure of the employer to exercise
reasonable care to prevent and correct promptly sexual harassment
in a case where the employer has knowledge of the sexual harassment
independently of any reporting by the employee. It is only because
of the majority's insistence that Anderson's knowledge of
Francoeur's treatment of Chaloult cannot be imputed to IBC under
element one of the Faragher-Ellerth affirmative defense that the
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majority can rule as a matter of law that IBC prevails on that
defense.
III.
Near the end of its opinion, the majority qualifies its
insistence that Anderson's knowledge of Francoeur's treatment of
Chaloult cannot be imputed to IBC. The majority says that “[e]ven
if all of Anderson's knowledge were imputed to IBC, this would not
make IBC's actions unreasonable, since it is clear that Anderson
did not consider himself on notice of harassment.” I do not
understand how the majority can ascribe such dispositive
significance to Anderson's alleged insensitivity to sexual
harassment. Chaloult describes a number of encounters with
Francoeur that Anderson admittedly witnessed. She also describes
other encounters which she says Anderson was aware of and he denies
it. Those encounters are central to my view that we must vacate
the district court's grant of summary judgment. Taking the facts
in the light most favorable to Chaloult - as we must - Anderson was
aware of a series of episodes that a jury could view as sexual
harassment. Even accepting only what Anderson acknowledges he
heard and observed, a jury could still find that he should have
reported the conduct to IBC and that his failure to do so is
properly imputed to the company. The majority looks at those same
encounters and sees grounds for affirming summary judgment.
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It does so by the misapplication of the summary judgment
standard. That misapplication includes an inappropriate effort to
undermine Chaloult's credibility. The majority notes that
Chaloult's contemporaneous diary of Francoeur's comments did not
include all of the incidents alleged in the complaint; that she
conceded in a deposition that her work deteriorated after she was
put on notice that her position could be eliminated; and that she
acknowledged her displeasure with her job for reasons unrelated to
the alleged sexual harassment. Although these details are fair
game for a trial, they have no place in the summary judgment
analysis, where we are not permitted to draw negative inferences
about Chaloult's credibility. That is a job for the jury at trial.
Then there is the majority's curious treatment of
Chaloult's insistence that Anderson knew of some incidents that he
does not acknowledge. For example, Chaloult alleges that Anderson
and a few maintenance people were in the area when Francoeur told
her that he was going to come to her house to show her what
“fucking was about.” The obvious import of Chaloult's statement is
that Anderson overheard the remark. In response, the majority
observes that Anderson says that he did not hear those comments.
The majority apparently accepts Anderson's denial. In so doing,
the majority distorts the summary judgment standard that requires
us to take all facts in the light most favorable to Chaloult.
Case: 07-2694 Document: 0011196164 Page: 38 Date Filed: 08/28/2008 Entry ID: 5272277
-39-
Finally, there is the majority's odd treatment of
undisputed portions of the summary judgment record. It is
undisputed that Anderson heard Francoeur: remark that women who
rode motorcycles enjoyed sex from the backside after he learned
that Chaloult had recently taken a motorcycle trip; make an
inappropriate noise while Chaloult ate an eclair and another
supervisor "asked how far can it go"; state that he had heard a
radio program that discussed "spread points" between breasts; and
ask other employees to measure their "spread points." With respect
to this spread points incident, the majority recounts in detail
Anderson's version, including his insistence that he "read nothing
into it because we all had a chuckle about it." The majority then
says that "Chaloult has not called this testimony into question,"
without explaining how or why Chaloult has to challenge Anderson's
statement that he did not view this particular conduct as sexual
harassment.
Anderson's dismissal of such conduct as "guy talk" and
funny incidences that provoked laughter may only mean that he was
a company supervisor who did not understand the nature of sexual
harassment. Contrary to the inapt observation of the majority that
Chaloult never "used the term 'sexual harassment' in her
conversations with Anderson about Francoeur," Chaloult had no
obligation to explain to Anderson the significance of what he was
seeing. The testimony about those encounters described by Chaloult
Case: 07-2694 Document: 0011196164 Page: 39 Date Filed: 08/28/2008 Entry ID: 5272277
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should have been heard by a jury charged with determining whether
Anderson was placed on notice of sexual harassment, which would
then be imputable to IBC under the terms of its own sexual
harassment policy. Therefore, I respectfully dissent from the
decision of the majority to terminate this case.
Case: 07-2694 Document: 0011196164 Page: 40 Date Filed: 08/28/2008 Entry ID: 5272277 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-casd-3_17-cv-00129/USCOURTS-casd-3_17-cv-00129-4/pdf.json | 360 | Other Personal Injury | 28:1332 Diversity Action | ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 1
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Plaintiffs Kelissa Ronquillo a/k/a Kelissa Ronquillo-Griffin (“Ronquillo”),
Khoi Nguyen (“Nguyen”), and Russell Smith (“Smith”), individually and on behalf
of Class Members (collectively, “Plaintiffs” or “Class Representatives”), filed a
Motion for Preliminary Approval of Class Action Settlement and Certification of
Settlement Class (hereinafter referred to as the “Preliminary Approval Motion”) in
the above-captioned action (the “Action”). The Preliminary Approval Motion was
unopposed by Defendants TransUnion Rental Screening Solutions, Inc. (“TURSS”)
KELLISA RONQUILLOGRIFFIN, KHOI NGUYEN,
and RUSSELL SMITH,
Individually and On Behalf of
All Others Similarly Situated,
Plaintiffs,
v.
TRANSUNION RENTAL
SCREENING SOLUTIONS,
INC. and TRANSATEL
(BARBADOS), INC.,
Defendants.
Case No.: 3:17-cv-129-JM-BLM
CLASS ACTION
ORDER GRANTING
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT
Judge: Hon. Jeffrey T. Miller
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 1 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 2
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and Transactel (Barbados), Inc. (“Transactel”) (collectively, “Defendants”).
The Court has read and considered the Settlement Agreement and Release (the
“Settlement Agreement” or “Agreement”), the Preliminary Approval Motion, and
supporting documents.
NOW, THEREFORE IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
I. JURISDICTION: The Court has jurisdiction over the subject matter of the
Action and over all settling parties hereto. All capitalized terms used herein
have the meanings defined herein and / or in the Agreement.
II. PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT: The Court
preliminarily finds that the Settlement of the Action, on the terms and
conditions set forth in the Agreement and the exhibits thereto, is in all
respects fundamentally fair, reasonable, adequate and in the best interests of
the Settlement Class Members, taking into consideration the benefits to
Settlement Class Members; the strength and weaknesses of Plaintiffs’ case;
the complexity, expense and probable duration of further litigation; and the
risk and delay inherent in possible appeals. The Court finds that notice of the
Settlement should be given to persons in the Settlement Class and a full
hearing should be held on approval of the Settlement. The provisions of the
Settlement Agreement are preliminarily approved and the Parties shall comply
with its terms.
III. SETTLEMENT ADMINISTRATOR: The Court approves the selection of
Kurtzman Carson Consultants, LLC (“KCC”) to be the Settlement
Administrator. The Settlement Administrator will administer the applicable
provisions of the Agreement in accordance with the terms of the Agreement,
including, but not limited to, distributing and providing the class notice,
receiving and examining claims, calculating claims against the Common
Fund, preparing and issuing all disbursements of the Common Fund to
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 2 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Authorized Claimants, and handling inquiries from Settlement Class
Members. All reasonable fees and costs of the Settlement Administrator shall
be paid from the Common Fund.
IV. In compliance with the Class Action Fairness Act, 28 U.S.C. § 1715, and as set
forth in the Agreement, Defendants, themselves or through their designee, are
ordered to serve written notice of the proposed settlement on the U.S. Attorney
General and the appropriate California state official, unless such notice has
already been served.
V. CLASS MEMBERS: Pursuant to Fed. R. Civ. P. 23(b)(3), the Action is hereby
preliminarily and conditionally certified, for settlement purposes only, as a
class action on behalf of the following Settlement Class Members:
All persons in California who, during the period from
January 24, 2016 through February 8, 2017, were called
by Transactel on behalf of TURSS on their cellular
telephones and spoke with a representative.
Excluded from the Settlement Class are the Judges to
whom the Action is assigned and any member of the
Judges’ staffs and immediate families, as well as all
persons who validly request exclusion from the Settlement
Class.
VI. CLASS REPRESENTATIVES AND CLASS COUNSEL APPOINTMENT:
For purposes of the Court considering preliminary approval, the Court
appoints Plaintiffs as the Class Representatives and Kazerouni Law Group,
APC (Abbas Kazerounian, Esq. and Jason A. Ibey, Esq.), Hyde & Swigart
(Joshua B. Swigart, Esq.) and Law Office of Daniel G. Shay (Daniel G. Shay,
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 3 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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Esq.), as Class Counsel.
VII. NOTICE AND CLAIMS PROCESS: The Court approves the form, content
and method of notice set forth in the Agreement. If they have not already done
so, Defendants shall provide the Class List and Cell Phone Number List to the
Settlement Administrator within thirty (30) days of this Order granting
preliminary approval. The Court finds that the furnishing of information by
Defendants to the Settlement Administrator for purposes of giving notice to
Settlement Class Members or otherwise to administer the Settlement does not
violate 15 U.S.C. § 1681b because the furnishing of information is pursuant
to this Order, and because it is not the furnishing of consumer reports
otherwise governed by 15 U.S.C. § 1681b. No later than sixty (60) days after
the date of this Order, the Settlement Administrator shall establish the
Settlement Website. No later than sixty (60) days after the date of this Order,
the Settlement Administrator shall send by regular mail the Class Notice and
Claim Form to each person in the Class List at their last known address as
provided by Defendants or as updated by the Settlement Administrator
through the National Change of Address Database or otherwise. Any Class
Notices that are returned as non-deliverable with a forwarding address shall
promptly be re-mailed by the Settlement Administrator to such forwarding
address. As for Settlement Class Members who are not identified in the Class
List but whose cellular phone numbers are contained on the Cell Phone
Number List, the Settlement Administrator shall use such methods as it
determines are practicable (which may include a reverse-directory lookup
and/or skip tracing) to attempt to match those unmatched telephone numbers
to names and addresses. As to Settlement Class Members whose names and
addresses are not located through such methods, the Settlement Administrator
shall provide notice by the Settlement Website. The Settlement Website shall
contain the full details of the Settlement and permit the filing of claims on the
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 4 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 5
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website. If the mail attempts at notice are unsuccessful, and/or a Settlement
Class Member otherwise fails to follow the procedures set forth in this
Agreement for submitting a claim or requesting exclusion from the Settlement
Class, the Settlement Website shall provide notice and the Settlement Class
Member shall be deemed a member of the Settlement Class whose rights and
claims with respect to the issues raised in this action will be determined by
the Court’s final Order approving the settlement of the class claim and this
Action, and the Judgment, and by the other rulings in the Action. With their
Motion for Final Approval of Settlement, Class Counsel shall file a
declaration from the Settlement Administrator detailing its compliance with
the notice procedures set forth in the Agreement. The Court finds that the
form, content and method of notice set forth in the Agreement satisfy the
requirements of Fed. R. Civ. P. 23(c)(2), the Constitution of the United States,
and any other applicable laws, and due process, and constitutes the best notice
practicable under the circumstances. The forms of notice set forth in
Agreement and approved herein provide a means of notice reasonably
calculated to apprise the Settlement Class Members of the pendency of the
action and the proposed settlement, and thereby meet the requirements of Fed.
R. Civ. P. 23(c)(2) of the Federal Rules of Civil Procedure, as well as due
process under the United States Constitution, and any other applicable law,
and shall constitute due and sufficient notice to all Settlement Class Members
entitled thereto.
VIII. SETTLEMENT AND CLAIMS PROCESS: The Court preliminarily
approves the $425,000 Common Fund as fair, reasonable and adequate for
members of the Settlement Class. The Defendants shall deposit the Common
Fund with the Settlement Administrator within the timeframe set forth in the
Agreement. The Court preliminarily approves the process set forth in the
Agreement for reviewing, approving and paying claims from the Common
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 5 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 6
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Fund. The last day submit claims shall be one hundred thirty (130) days after
the date of this order granting preliminary approval to the settlement. The
Court also preliminarily approves the service awards that will be sought by
Plaintiffs to be paid from the Common Fund.
IX. CLASS CERTIFICATION: The Court preliminarily finds that the Action
satisfies the applicable prerequisites for class action treatment under Fed. R.
Civ. P. 23, for purposes of settlement only.
X. EXCLUSIONS: Any Settlement Class Member may request to be excluded
from the Settlement Class (i.e., “opt out”) by mailing a letter or other writing,
by first class mail, to the Settlement Administrator containing the Settlement
Class Member’s name and address, and telephone number and a statement
that he or she requests to be excluded from the Settlement Class. Any such
request must be made in accordance with the terms set forth in the Class
Notice and will be timely only if postmarked no later than one hundred thirty
(130) days after the date of this Order granting preliminary approval of this
settlement and Agreement (the “Opt-Out Deadline”). The Settlement
Administrator shall provide the Parties with copies of all opt-out requests as
they are received and, no later than five (5) days after the Opt-Out Deadline,
the Settlement Administrator shall provide Defense Counsel and Class
Counsel with a list of the Settlement Class Members who have requested
exclusion from the Settlement Class. Any Settlement Class Member who
submits a valid and timely request for exclusion shall not be a member of the
Settlement Class, and shall not be bound by the Agreement or Settlement. If
more than 25 persons request exclusion from the Settlement Class by the OptOut Deadline, Defendants jointly but not severally shall have the option to
terminate the Agreement and the settlement proceedings, and this Order shall
be null and void and the settlement of no force and effect. Defendants shall
give notice of such termination in writing to Class Counsel and the Settlement
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 6 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 7
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Administrator no later than ten (10) days after the Opt-Out Deadline.
The notice of termination shall then promptly be filed with the Court by Class
Counsel.
XI. OBJECTIONS: Any Settlement Class Member may object to the terms of the
Settlement, including, but not limited to, the benefits to be paid to the
Settlement Class under the settlement, Class Counsel’s application for
attorneys’ fees and litigation expenses and the Class Representatives’
service payments by mailing a written objection to the Settlement
Administrator. Any Settlement Class Member who wants to appear at the
Final Approval Hearing, either personally or through counsel, must so state in
his or her objection. Written objections must be mailed to the Settlement
Administrator no later than one hundred thirty (130) days after the date of this
Order granting preliminary approval of the settlement. The timeliness of
objections and notices shall be conclusively determined by the postmark date.
Class Counsel shall file with the Court any objections received with the
final approval motion papers. No later than one hundred sixty (160) days after
the date of this Order granting preliminary approval of the settlement,
the parties may file with the Court replies to any objections.
XII. Settlement Class Members who do not file their objections in the manner set
forth herein will be deemed to have waived all objections.
XIII. Class Counsel shall file a motion for approval of Class Representatives’ service
payments and application for attorneys’ fees and costs no later than one
hundred (100) days after the date of this Order granting preliminary approval
of the settlement. Class Counsel shall file a motion for final approval of
settlement no later than one hundred fifty (150) days after the date of this order
granting preliminary approval of the settlement. The motion for final approval
of settlement and motion for attorney’s fees shall be posted on the Settlement
Website by the Settlement Administrator so that they may be reviewed and
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 7 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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printed out by any member of the Settlement Class or any other person.
XIV. FINAL APPROVAL HEARING: The Court shall conduct a hearing
(hereinafter the “Final Approval Hearing”) on May 6, 2019, at 10:00 AM in
Courtroom 5D (5th Floor – Schwartz) of the United States District Court for
the Southern District of California, 221 West Broadway, San Diego, CA
92101. The Final Approval Hearing may be rescheduled or continued by the
Court without further notice to the Settlement Class Members. At the hearing,
the Court will consider the following issues:
A. Whether this action satisfies the applicable prerequisites for class
action treatment for settlement purposes under Fed. R. Civ. P 23;
B. Whether the proposed settlement is fundamentally fair, reasonable,
adequate, and in the best interest of the Settlement Class Members and
should be approved by the Court;
C. Whether the order granting final approval of class action settlement and
judgment, as provided under the Agreement, should be entered,
dismissing the Action with prejudice and releasing the Released
Claims against the Released Parties; and
D. Such other issues as the Court deems appropriate.
XV. Attendance at the Final Approval Hearing is not necessary. Settlement Class
Members need not appear at the hearing or take any other action to indicate
their approval of the proposed class action Settlement.
XVI. Pending the final determination of the fairness, reasonableness, and adequacy
of the proposed Settlement, no Settlement Class Member may prosecute,
institute, commence, or continue any lawsuit (individual action or class
action) with respect to the Released Claims against any of the Defendants.
XVII. If the Agreement is not finally approved for any reason, then this Order shall
be vacated, the Agreement shall have no force and effect, and the Parties’
rights and defenses shall be restored, without prejudice, to their respective
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 8 of 9
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
CASE NO.: 3:17-CV-129-JM-BLM 9
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positions as if the Agreement had never been executed and this Order never
entered.
XVIII. The Court retains continuing and exclusive jurisdiction over the action to
consider all further matters arising out of or connected with the settlement,
including the administration and enforcement of the Agreement.
IT IS SO ORDERED.
Dated: November 1, 2018 _________________________
Jeffrey T. Miller
United States District Judge
Case 3:17-cv-00129-JM-BLM Document 71 Filed 11/01/18 PageID.<pageID> Page 9 of 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-02707/USCOURTS-caed-2_14-cv-02707-1/pdf.json | 864 | Social Security - SSID Title XVI | 42:1383 Review of HHS Decision | Stipulation and Order to Extend Time;
Case No. 2:14-cv-02707-CMK 1
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BENJAMIN B. WAGNER
United States Attorney
DONNA L. CALVERT, SBN IL 6191786
Regional Chief Counsel, Region IX
Social Security Administration
DONNA W. ANDERSON, SBN PA 46355
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, California 94105
Telephone: (415) 977-8930
Facsimile: (415) 744-0134
E-Mail: [email protected]
Attorneys for Defendant
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
AMY S. MERICLE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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Case No.: 2:14-cv-02707-CMK
STIPULATION AND ORDER TO
EXTEND TIME
The parties, through their respective counsel, stipulate that the time for
Defendant to file her responsive pleading to Plaintiff’s Motion for Summary
Judgment be extended to July 29, 2015.
This is Defendant’s first request for an extension of time to file her
responsive pleading to Plaintiff’s Motion for Summary Judgment. Defendant
Case 2:14-cv-02707-CMK Document 16 Filed 07/06/15 Page 1 of 2
Stipulation and Order to Extend Time;
Case No. 2:14-cv-02707-CMK 2
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requests additional time due to illness and workload. Plaintiff’s counsel does not
oppose the additional time, and agrees that all subsequent deadlines in the
scheduling order should be extended accordingly.
Respectfully submitted,
Dated: June 29, 2015 BENJAMIN B. WAGNER
United States Attorney
DONNA L. CALVERT
Regional Chief Counsel, Region IX
Social Security Administration
By: /s/ Donna W. Anderson
DONNA W. ANDERSON
Special Assistant U.S. Attorney
Attorneys for Defendant
Dated: June 29, 2015 SACKETT AND ASSOCIATES
By: /s/ Harvey P. Sackett*_____________
HARVEY P. SACKETT
Attorney for Plaintiff Amy S. Mericle
(*By email authorization on 06/26/15)
IT IS SO ORDERED:
Dated: July 2, 2015
Case 2:14-cv-02707-CMK Document 16 Filed 07/06/15 Page 2 of 2 |
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