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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-3_08-cv-00262/USCOURTS-almd-3_08-cv-00262-3/pdf.json | [
[
"Jimmy Abbett",
"Defendant"
],
[
"Gene Coggins",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
GENE COGGINS, )
)
Plaintiff, )
)
v. ) CASE NO. 3:08-cv-262-TMH
) [WO]
JIMMY ABBETT, )
)
Defendant. )
FINAL JUDGMENT
In accordance with the Memorandum Opinion and Order entered this date, it is the
ORDER, JUDGMENT, and DECREE of the Court:
1. That this action is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court is DIRECTED to enter this document on the civil docket
as a final judgment pursuant to Federal Rule of Civil Procedure 58 and close this file.
DONE this the 18th day of June, 2008.
/s/ Truman M. Hobbs
SENIOR UNITED STATES DISTRICT JUDGE
Case 3:08-cv-00262-TMH-TFM Document 23 Filed 06/18/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-1_20-cv-00300/USCOURTS-cand-1_20-cv-00300-0/pdf.json | [
[
"Pierre Cleveland",
"Petitioner"
],
[
"Superior Court",
"Respondent"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
EUREKA DIVISION
PIERRE CLEVELAND,
Plaintiff,
v.
SUPERIOR COURT,
Defendant.
Case No. 20-cv-00300-RMI
ORDER OF TRANSFER
Re: Dkt. Nos. 1, 6
This is a habeas case filed pro se by a state prisoner. Petitioner challenges a conviction
obtained in the Sacramento County Superior Court. Sacramento County is in the venue of the
United States District Court for the Eastern District of California. Petitioner is incarcerated in this
district.
Venue for a habeas action is proper in either the district of confinement or the district of
conviction. See 28 U.S.C. § 2241(d). Petitions challenging a conviction are preferably heard in the
district of conviction. See Habeas L.R. 2254-3(a); see also Laue v. Nelson, 279 F. Supp. 265, 266
(N.D. Cal. 1968). Because Petitioner was convicted in the Eastern District, this case is
TRANSFERRED to the United States District Court for the Eastern District of California. See 28
U.S.C. § 1406(a); Habeas L.R. 2254-3(b). All pending motions are VACATED and will be
addressed in the Eastern District.
IT IS SO ORDERED.
Dated: March 30, 2020
ROBERT M. ILLMAN
United States Magistrate Judge
Case 1:20-cv-00300-RMI Document 8 Filed 03/30/20 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-02204/USCOURTS-caed-2_07-cv-02204-8/pdf.json | [
[
"Robert Guy Baker",
"Plaintiff"
],
[
"Hatch",
"Defendant"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT GUY BAKER,
Plaintiff, No. CIV S-07-2204 FCD EFB P
vs.
HATCH,
Defendant. ORDER
/
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983. Pending before the court are plaintiff’s motions to compel discovery responses,
for a court-ordered examination, and for sanctions. See Dckt. Nos. 26, 38, 39. For the following
reasons, plaintiff’s motion to compel is partially granted and partially denied, and his other two
motions are denied.
I. Motion to Compel Discovery Responses
On February 2, 2009, plaintiff filed a document styled “Notice of Motions, Motion in
Request for the Production of Documents (Second Request), Rule 34, and Motion for Protective
Orders Under Rule 26(c).” In this document, plaintiff asks the court to compel responses to his
requests for production numbers 4, 7, and 8.
////
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Parties may obtain discovery regarding any matter, not privileged, that is relevant to the
claim or defense of any party. Fed. R. Civ. P. 26(b)(1). Information is relevant for purposes of
discovery if “it is reasonably calculated to lead to the discovery of admissible evidence.” Id.
Relevant information encompasses “any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978). Because discovery is designed to define and clarify the
issues in the case, it is not limited to the precise issues raised in the pleadings. Id., at 350-51.
“The question of relevancy should be construed “liberally and with common sense” and
discovery should be allowed unless the information sought has no conceivable bearing on the
case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995), quoting Miller v. Panuci,
141 F.R.D. 292, 296 (C.D. Cal. 1992). The court may limit discovery if it determines the
discovery sought is unreasonably cumulative or obtainable from a more convenient or less
expensive source, the party seeking discovery had ample opportunity to obtain the information
sought, or the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R.
Civ. P. 26(b)(2).
A. RFP 4
Request for production number 4 asks for “[a]ll documents that evidence, mention, or
refer to officer Hatch’s conduct or disciplinary history at C.S.P. Sac or any other
facility/institution.” Dckt. No. 41 at 2. Defendants objected to this request “on the grounds that
it [is] vague, overbroad, is not relevant or reasonably calculated to lead to the discovery of
admissible evidence” and that “the documents requested are privileged under state law and its
disclosure would violate defendant’s right to privacy.”
First, the request is neither vague nor “not reasonably calculated to lead to the discovery
of admissible evidence.” The personnel records of police officers defending civil rights actions
for the excessive use of force, while containing sensitive information, are within the scope of
discovery. See Soto v. City of Concord, 162 F.R.D. 603, 614-15 (N.D. Cal. 1995); Hampton v.
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Defendant is admonished that Rule 26(b)(5) requires the production of a privilege log
any time information is withheld on the ground that the information is privileged, and that failure
to timely produce a privilege log may result in a waiver of the privilege at issue. Burlington N.
& Santa Fe Rwy. Co., 408 F.3d 1142 (9th Cir. 2005).
3
City of San Diego, 147 F.R.D. 227, 230-31 (S.D. Cal.1993); Miller v. Pancucci, 141 F.R.D. 292,
296 (C.D. Cal.1992). Information such as records of training, conduct, performance, and
evaluation may be relevant to credibility, knowledge, motive, preparation, opportunity, identity
or absence of mistake or accident. Soto, 162 F.R.D. at 615; Miller, 141 F.R.D. at 296 fn. 3. The
personnel records of the defendant in this action are relevant under Rule 26(b) for the same
reasons.
Defendant objects that the document request is also overbroad, but does not suggest how
the request should be narrowed. The court narrows the request to complaints and disciplinary
reports regarding defendant in the last ten years.
Defendant claims that the documents disclosure would violate his privacy, but fails to
identify with any specificity the privacy interests at stake or articulate how they outweigh the
need for disclosure.
Defendant also objects that the information that plaintiff seeks is privileged under state
law. In his opposition, defendant claims that the information is also privileged under the United
States Constitution. Yet, defendants have failed to prepare and submit a privilege log.1
A party
objecting to production or inspection of part of a document must explain that objection and
permit inspection or production of the remainder. Fed. R. Civ. P. 34(b)(2)(C). A party objecting
based on a claim of privilege must make the objection and explain it “as to each record sought to
allow the court to rule with specificity.” Clarke v. American Commerce Nat. Bank, 974 F.2d 127,
129 (9th Cir. 1992) (noting that “blanket assertions of [a] privilege are extremely disfavored).
Defendant’s response has not enabled the court to determine whether the documents are
privileged. Accordingly, defendant must either produce all responsive documents or prepare a
privilege log complying with federal law and submit the allegedly privileged documents to the
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court for in camera review.
Defendant is encouraged to produce documents rather than burdening the parties and the
court with objections not well grounded in federal law. However, should defendant decide to
pursue his privilege and privacy objections, he is cautioned to explain his objections in detail.
Boilerplate language will be strongly disfavored.
B. RFP 7
Request for production number 7 asked for “[a]ll other items, documents that contain,
mention, construe or refer to any items of evidence, or sworn, unsworn statements or affidavits
that relate to the allegations made in plaintiff’s Complaint.” Defendant objected to this request
on the basis that “it is vague, ambiguous and overbroad” but also stated “no information has
been provided to me by others.”
Although plaintiff’s request could have been more artfully phrased, its intent is neither
vague, ambiguous, nor overbroad. Plaintiff plainly seeks any evidence in defendant’s
possession, custody or control tending to support or disprove the allegations in his complaint.
Defendant’s objections are overruled.
In addition, defendant’s statement that “no information has been provided to me by
others” is an insufficient response. Defendant is required to produce any documents in their
possession, custody or control. See Fed. R. Civ. P. 34(a)(1). It is unclear whether defendant’s
counsel has determined that there are no documents in defendant’s possession, custody or
control, as he attests only that no one has given him any information. Defendant must therefore
either produce documents responsive to plaintiff’s request or certify in a declaration stating that
no such documents exist.
C. RFP 8
Request for production number 8 asked for “[t]he ‘Complete’ prison records of plaintiff.”
Defendant objected to this request on the basis that it was “vague, ambiguous and overbroad,”
but stated that the documents were available in plaintiff’s central file, which was available for
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inspection and copying.
Plaintiff seeks records contained in his central file. As defendant states that it has made
the documents available to plaintiff, the motion to compel is denied as to this request. The court
will hold the defendant to its representation that the file is so available.
II. Motion for a Court-Ordered Examination
Plaintiff has filed a motion, purportedly under Fed. R. Evid. 35(a), requesting that the
court order a doctor to conduct an examination of his person, as his “physical condition is in
controversy.” Dckt. No. 38.
Rule 35(a) provides that a court may “order a party whose mental or physical condition
. . . is in controversy to submit to a physical or mental examination by a suitably licensed or
certified examiner.” But Rule 35 does not give the court authority to appoint an expert to
examine a party on his own motion. Brown v. United States, 74 Fed. App’x 611, 614 (7th Cir.
August 11, 2003); Adams v. Epps, 2008 WL 4861926 at *1 (S.D. Miss. 2008) (“Rule 35 ‘does
not vest the court with authority to appoint an expert to examine a party wishing an examination
of himself.’ ”). See also Cabrera v. Williams, 2007 WL 2682163 at *2 (D. Neb. Sept 7, 2007)
(denying prisoner’s request for medical examination under Rule 35); Lindell v. Daley, 2003 WL
23111624 at *1-2 (W.D. Wis. June 30, 2002) (Rule 35 allows the court to “order plaintiff to
submit to an examination at the request of the opposing party . . . . The rule is not intended to
cover a situation such as the one here, where plaintiff wishes an examination of himself.”).
Thus, the rule provides no authority for the court to order a physical examination of
plaintiff. Plaintiff’s motion for an examination is therefore denied.
III. Motion For Sanctions
Plaintiff has filed a motion for sanctions. See Dckt. No. 39. He argues that defendants
violated the court’s February 2, 2010 order, which directed the defendants to file an opposition
to his February 5, 2009 motion within 21 days. Defendants filed a motion for an extension of
time to file their opposition on the last day of the period. Dckt. No. 35. The court granted the
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extension of time, and defendants then timely filed their opposition. Dckt. No. 36, 41.
Defendants complied with the court order. There is no grounds for sanctions. Plaintiff’s motion
is denied.
IV. Conclusion
Accordingly, it is ORDERED that:
1. Plaintiff’s February 5, 2009 motion to compel discovery is partially granted and
partially denied;
2. Defendant shall either produce documents responsive to plaintiff’s RFP 4 or submit a
declaration stating that the documents sought do not exist, and shall either produce documents
responsive to RFP 7 or produce a privilege log and submit the allegedly privileged documents to
the court for in camera review within 20 days of the date of this order. Any privilege log
produced by defendant shall comply with Rule 26(b)(5);
3. Plaintiff’s February 26, 2010 motion for order for examination is denied; and
4. Plaintiff’s February 26, 2010 motion for sanctions is denied.
Dated: August 12, 2010.
Case 2:07-cv-02204-GEB-EFB Document 44 Filed 08/12/10 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_04-cr-50152/USCOURTS-azd-2_04-cr-50152-0/pdf.json | [
[
"Doris Ann Batson",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | WO UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
UNITED STATES OF AMERICA
v.
Doris Ann Batson
ORDER OF DETENTION PENDING TRIAL
Case Number: CR-04-50152-001-PHX-SMM
In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention hearing has been held. I conclude that the following facts
are established: (Check one or both, as applicable.)
9 by clear and convincing evidence the defendant is a danger to the community and require the detention of the defendant
pending trial in this case.
: by a preponderance of the evidence the defendant is a serious flight risk and require the detention of the defendant pending
trial in this case.
PART I -- FINDINGS OF FACT
9 (1) There is probable cause to believe that the defendant has committed
9 an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§
801 et seq., 951 et seq, or 46 U.S.C. App. § 1901 et seq.
9 an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332(b).
9 an offense listed in 18 U.S.C. § 2332b(g)(5)(B) (Federal crimes of terrorism) for which a maximum term of
imprisonment of ten years or more is prescribed.
9 an offense involving a minor victim prescribed in ____________________________________________.1
9 (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination of
conditions will reasonably assure the appearance of the defendant as required and the safety of the community.
Alternative Findings
: (1) There is a serious risk that the defendant will flee; no condition or combination of conditions will reasonably assure
the appearance of the defendant as required.
9 (2) No condition or combination of conditions will reasonably assure the safety of others and the community.
9 (3) There is a serious risk that the defendant will (obstruct or attempt to obstruct justice) (threaten, injure, or intimidate
a prospective witness or juror).
9 (4)
PART II -- WRITTEN STATEMENT OF REASONS FOR DETENTION
(Check one or both, as applicable.)
9 (1) I find that the credible testimony and information submitted at the hearing establish by clear and convincing evidence
as to danger that:
1Insert as applicable: Title 18, § 1201 (kidnaping), § 1591 (sex trafficking), § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), § 2245 (offenses resulting
in death), § 2251 (sexual exploitation of children), § 2251A (selling or buying of children), § 2252 et seq. (certain activities relating to material involving sexual
exploitation of minors), § 2252A et seq. (certain activities relating to material constituting or containing child pornography), § 2260 (production of sexually explicit
depictions of minors for importation into the U.S.), § 2421 (transportation for prostitution or a criminal sexual activity offense), § 2422 (coercion or enticement for a
criminal sexual activity), § 2423 (transportation of minors with intent to engage in criminal sexual activity), § 2425 (use of interstate facilities to transmit information
about a minor).
Case 2:04-cr-50152-SMM Document 20 Filed 11/10/08 Page 1 of 2
9 (2) I find by a preponderance of the evidence as to risk of flight that:
9 The defendant has no significant contacts in the District of Arizona.
9 The defendant has no resources in the United States from which he/she might make a bond reasonably calculated
to assure his/her future appearance.
9 The defendant has a prior criminal history.
9 There is a record of prior failure(s) to appear in court as ordered.
9 The defendant attempted to evade law enforcement contact by fleeing from law enforcement.
9 The defendant is facing a minimum mandatory of incarceration and a maximum of .
9 The defendant does not dispute the information contained in the Pretrial Services Report, except:
: In addition:
The defendant submitted the issue of detention. Defendant is alleged to have violated conditions of supervised release.
The Court incorporates by reference the findings of the Pretrial Services Agency which were reviewed by the Court at the
time of the hearing in this matter.
PART III -- DIRECTIONS REGARDING DETENTION
The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in
a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending
appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court
of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the
defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
PART IV -- APPEALS AND THIRD PARTY RELEASE
IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to
deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District
Court. Pursuant to Rule 59(a), FED.R.CRIM.P., effective December 1, 2005, Defendant shall have ten (10) days from the date of
service of a copy of this order or after the oral order is stated on the record within which to file specific written objections with the
district court. Failure to timely file objections in accordance with Rule 59(a) may waive the right to review. 59(a), FED.R.CRIM.P.
IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial
Services sufficiently in advance of the hearing before the District Court to allow Pretrial Services an opportunity to interview and
investigate the potential third party custodian.
Date: November 7, 2008
Page 2 of 2
Case 2:04-cr-50152-SMM Document 20 Filed 11/10/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-14-01599/USCOURTS-ca8-14-01599-0/pdf.json | [
[
"Brandy Marie Thomas",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1599
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandy Marie Thomas
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: March 13, 2015
Filed: July 2, 2015
____________
Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL, District 1
Judge.
____________
SHEPHERD, Circuit Judge.
Brandy Thomas was convicted, after a jury trial, of four counts of wire fraud
based on a scheme she perpetrated to defraud mortgage lenders by submitting false
The Honorable M. Douglas Harpool, United States District Judge for the
1
Western District of Missouri, sitting by designation.
Appellate Case: 14-1599 Page: 1 Date Filed: 07/02/2015 Entry ID: 4291294
income information on loan applications. The district court sentenced Thomasto 48 2
months imprisonment followed by 18 months supervised release and ordered her to
pay restitution. Thomas appeals, arguing the district court erred in two of its
evidentiary rulings, in the instructionsit gave to the jury, in allowing the government
to constructively amend the indictment, and in issuing an Allen charge to the jury 3
and polling individual jurors. We affirm.
I.
A grand jury indicted Brandy Thomas on four counts of wire fraud for
allegedly engaging in a scheme to defraud mortgage lenders between June 2006 and
December 2006. The government alleged that Thomas defrauded lenders by
submitting false income information on loan applications in relation to the purchase
of three properties and the refinancing of one property, specifically alleging Thomas
overstated her income, provided fictitious rental agreementsto support the overstated
income amount, and failed to list a mortgage debt on loan documents.
II.
We first consider whether the district court erred in the instruction it gave the
jury regarding the “intent to harm” element of wire fraud. Before submitting the case
to the jury, the district court considered proposed jury instructionsfrom both Thomas
and the government concerning the “intent to defraud” element of the wire fraud
offense. The district court rejected Thomas’s proposed instruction and instead used
an instruction that closely followed the Eighth Circuit Model Jury Instruction for mail
fraud. Thomas asserts that the district court erred in refusing to instruct the jury that
The Honorable D.P. Marshall Jr., United States District Judge for the Eastern 2
District of Arkansas.
Allen v. United States, 164 U.S. 492 (1896).
3
-2-
Appellate Case: 14-1599 Page: 2 Date Filed: 07/02/2015 Entry ID: 4291294
Thomas must have contemplated, at the very least, some actual harm to another in
order to convict her of wire fraud. We review a district court’s jury instructions for
abuse of discretion. Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008).
Securing a conviction for wire fraud requires the government to prove that:
(1) the defendant devised or joined a scheme to defraud, (2) the defendant intended
to defraud, (3) it was reasonably foreseeable that interstate wire communications
would be used, and (4) wire communications were, in fact, used. 18 U.S.C. § 1343;
United States v. Johnson, 450 F.3d 366, 374 (8th Cir. 2006). Regarding the “intent
to defraud” element, “the [government] is not required to show actual loss or harm
to the victims of the fraud in order to prove wire fraud []. Rather, the government
merely needs to show that the accused intended to defraud his victim and that his or
her communications were reasonably calculated to deceive persons of ordinary
prudence and comprehension.” United States v. Louper-Morris, 672 F.3d 539, 556
(8th Cir. 2012) (internal quotation marks and citations omitted).
Thomas argues that the district court should have relied upon United States v.
Jain, 93 F.3d 436 (8th Cir. 1996), in issuing its instruction on the “intent to defraud”
element. In Jain, our court reversed a defendant’s conviction for mail fraud when the
government failed to provide any evidence that the victims suffered tangible harm or
to otherwise prove the defendant’s fraudulent intent. Id. at 441-42. Thomas asserts
that this case requires the government to prove an intent to cause harm, rather than
a simple intent to defraud. See id. at 441. But Jain is an honest-services fraud case
that is distinct from the wire fraud charges against Thomas. See id. Thus, Jain is
inapplicable, despite Thomas’s assertions to the contrary. Here, the district court
instructed the jury that “[t]o act with intent to defraud means to act knowingly and
with the intent to deceive someone for the purpose of bringing about some financial
gain to oneself or another to the detriment of another person.” R. Doc. 108, at 20.
This instruction is in accordance with Eighth Circuit law. See Louper-Morris, 672
-3-
Appellate Case: 14-1599 Page: 3 Date Filed: 07/02/2015 Entry ID: 4291294
F.3d at 556. As such, the district court did not abuse its discretion in the instruction
it gave the jury regarding the “intent to defraud” element of wire fraud.
III.
We next consider whether the district court erred in allowing the government
to introduce evidence of a separate, subsequent scheme in which Thomas attempted
to defraud mortgage lenders. Prior to trial, Thomas filed a motion in limine seeking
the exclusion, pursuant to Federal Rule of Evidence 404(b), of any testimony relating
to her participation in this scheme. The evidence concerned the 2007 purchase of a
home by the grandmother of Thomas’s child. Thomas served as the real estate agent
on the transaction. At trial, the grandmother testified that Thomas encouraged her to
falsify her income on loan paperwork to obtain a loan and advised her to produce fake
rental agreements to support the falsified income. The district court denied the
motion, allowing the testimony as evidence of intent or absence of mistake. Thomas
asserts that the district court erred in admitting this evidence because the witness
providing this testimony made contradictory statements and the evidence was more
prejudicial than probative. We review a district court’s admission of Rule 404(b)
evidence for abuse of discretion. United States v. Hawkins, 548 F.3d 1143, 1146 (8th
Cir. 2008). “We construe Rule 404(b) broadly as a rule of inclusion, and we will
reverse only when such evidence clearly had no bearing on the case and was
introduced solely to prove the defendant’s propensity to commit criminal acts.” Id.
(internal quotation marks omitted).
Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” But a court may admit evidence
of another wrong or act when it is relevant to any issue in the trial other than the
defendant’s criminal disposition. United States v. Claxton, 276 F.3d 420, 423 (8th
Cir. 2002). Permissible uses of this evidence include showing motive, opportunity,
-4-
Appellate Case: 14-1599 Page: 4 Date Filed: 07/02/2015 Entry ID: 4291294
intent, preparation, plan, knowledge, lack of mistake, identity, or lack of accident.
Fed. R. Evid. 404(b)(2). When considering the admissibility ofRule 404(b) evidence
for a permissible purpose, a court must determine that the evidence is relevant, is
similar in kind and not too remote in time, is sufficiently supported by the evidence,
and the potential prejudice does not substantially outweigh the probative value.
Hawkins, 548 F.3d at 1146-47.
The government used this evidence for the permissible purposes of showing
intent and lack of mistake rather than the impermissible purpose of propensity. The
evidence also meets the other requirements for admissibility. First, the evidence is
relevant because it helps prove a consequential issue in the case: whether Thomas
intended to act fraudulently. See Fed. R. Evid. 401 (“Evidence is relevant if [] it has
any tendency to make a fact more or less probable than it would be without the
evidence; and [] the fact is of consequence in determining the action.”). Thomas
argued at trial that she did not have the requisite fraudulent intent to be convicted of
wire fraud and this evidence helps rebut that argument.
Second, the subsequent fraudulentscheme issimilar in kind and not too remote
in time to be admitted. The schemes are similar because they both involve the
misrepresentation of income to fraudulently obtain loans. The subsequent scheme is
not too remote in time because the conduct for which Thomas was charged occurred
in 2006 and the transaction at issue here occurred in 2007. No definitive rule governs
how close to the charged event another wrong or act must be and courts should apply
a reasonablenessstandard on a case-by-case basis. See United States v. Thomas, 398
F.3d 1058, 1063 (8th Cir. 2005). A one-year period between schemes satisfies this
reasonablenessstandard. See, e.g., United States v. Wint, 974 F.2d 961, 967 (8th Cir.
1992) (holding that a five-year lapse between prior act and charged crime was not too
remote in time to be admitted under Rule 404(b)); see also United States v. Franklin,
250 F.3d 653, 659 (8th Cir. 2001) (“The closer in time to the crime charged, the more
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likely the evidence is to be admissible; but we have approved the admission of other
crimes’ evidence for acts committed up to 13 years before the crime charged.”).
Third, sufficient evidence exists to allow the jury to find that the subsequent
scheme occurred. Thomas argues, in part, that the district court should not have
admitted the evidence because the grandmothermade inconsistent statements, namely
telling Thomas’s then-attorney that the mortgage company, not Thomas, had
encouraged her to submit false documents. But the district court should not make
credibility determinations when deciding whether to admit evidence under Rule
404(b). See Huddleston v. United States, 485 U.S. 681, 687-90 (1988) (explaining
that a district court should not engage in assessing a witness’s credibility when
making an admissibility determination under Rule 404(b)).
Finally, the risk of prejudice does not substantially outweigh the probative
value of the evidence of the subsequent fraudulent scheme. We give the district
court’s determination that the evidence was not unfairly prejudicial great deference,
and nothing in the record requires us to overturn this finding. See United States v.
Ruiz, 412 F.3d 871, 881 (8th Cir. 2005) (explaining that appellate courts give great
deference to a district court’s balance of the probative value and prejudicial effect of
the challenged evidence). We therefore conclude the district court did not abuse its
discretion by admitting this evidence.
IV.
We now consider whether the district court erred in allowing the government
to introduce evidence related to Thomas’s unfiled 2006 tax return. In another motion
in limine, Thomas sought the exclusion of an unfiled 2006 tax return and related
testimony, arguing it was irrelevant and prejudicial because it had never been filed
with the IRS or submitted to mortgage lenders. Thomas’s accountant prepared the
tax return and gave it to Thomas to file manually, although Thomas never made such
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a filing. The district court denied the motion, allowing the tax return as evidence of
Thomas’s actual income and determining that it was not unfairly prejudicial. Thomas
asserts that the admission of the tax return was in error because it was both irrelevant
and unfairly prejudicial as it was never filed and thus never reported as Thomas’s
actual income. We review a district court’s evidentiary rulings for abuse of
discretion,reversing “only when an improper evidentiary ruling affects the substantial
rights of the defendant, or the error had more than a slight influence on the verdict.”
Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1080 (8th Cir. 2009).
Under the FederalRules of Evidence, relevant evidence is generally admissible
unless the Constitution, a federal statute, another rule of evidence, or other Supreme
Court Rule requires its exclusion. Fed. R. Evid. 402. Evidence is relevant if it has
any tendency to make a fact of consequence more or less probable. Fed. R. Evid. 401.
Under Rule 403, relevant evidence may be excluded if its prejudicial effect
substantially outweighs its probative value. Fed. R. Evid. 403. “Evidence is not
unfairly prejudicial because it tends to prove guilt, but because it tends to encourage
the jury to find guilt from improper reasoning. Whether there was unfair prejudice
depends on whether there was an undue tendency to suggest decision on an improper
basis.” United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007) (internal
quotation marks omitted). But “[s]imply because evidence is prejudicial does not
mean that it must be excluded, and great deference is given the district court’s
balancing of the probative value and prejudicial impact of the evidence.” Ruiz, 412
F.3d at 881 (citation omitted).
Thomas’s 2006 unfiled tax return is relevant evidence because Thomas’s actual
income is integral to the charges against her. The government alleged Thomas
misrepresented her income for 2006 on loan documents, and the unfiled tax return
makes the government’s allegations more probable. See Fed. R. Evid. 401. Thomas
argues that admitting the evidence resulted in unfair prejudice because there was no
evidence the tax return was filed nor any another evidence that Thomas reported this
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income elsewhere. But the jury heard testimony that the tax return remained unfiled,
affording the jurorsthe opportunity to determine the appropriate weight to assign this
evidence. Thomas’s unfair prejudice argument is, in essence, based on the damage
the tax return does to her case. But “[u]nfair prejudice does not occur . . . merely
because a piece of evidence damages a defendant’s case.” United States v. Nadeau,
598 F.3d 966, 969 (8th Cir. 2010). Thomas presents no other argument to
demonstrate that the admission of tax return encouraged the jury to reach a verdict on
an improper basis and thus was unfairly prejudicial. And the district court carefully
considered this argument before deciding to admit the evidence. Nothing in the
record requires usto depart fromthe deference we afford the district court’s balancing
of the probative value and prejudicial effect of this evidence. See Ruiz, 412 F.3d at
881. The admission of this tax return was not an improper ruling that “affect[ed] the
substantial rights of the defendant” or “had more than a slight influence on the
verdict.” See Finan, 565 F.3d at 1080. The district court thus did not abuse its
discretion in admitting the evidence related to the unfiled 2006 tax return.
V.
We next consider whether the district court erred by allowing the government
to introduce evidence and argue during closing that Thomas should be convicted
based on a failure to disclose debts. At trial, Thomas objected to the government’s
introduction of evidence related to unlisted debts on her loan application, asserting
that the introduction of such evidence amounted to a constructive amendment to the
superseding indictment. Thomas asserted that the government impermissibly argued
that the jury could convict Thomas on Counts II and III of the indictment based on
evidence of an unreported debt, evidence which was only referred to in Count I of the
indictment. The district court overruled this objection, finding no constructive
amendment occurred. Thomas asserts that the district court erred because it allowed
the jury to convict Thomas of two counts in the indictment based on evidence only
articulated in one separate count, resulting in a constructive amendment.
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A constructive amendment of an indictment is a direct violation of the Fifth
Amendment and isreversible error per se. United States v. Harris, 344 F.3d 803, 804
(8th Cir. 2003) (per curiam). “In reviewing an appeal based on a claim of
constructive amendment, we consider whether the admission of evidence or the jury
instructions created a ‘substantial likelihood’ that the defendant was convicted of an
uncharged offense.” United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir.
2007).
“A constructive amendment occurs when the essential elements of the offense
as charged in the indictment are altered in such a manner—often through the evidence
presented at trial or the jury instructions—that the jury is allowed to convict the
defendant of an offense different from or in addition to the offenses charged in the
indictment.” Id. Here, no constructive amendment occurred because Thomas was not
convicted of a crime different from those charged in the indictment. Thomas was
charged with and convicted of wire fraud and the additional evidence did not change
the essential elements of this crime. This case is distinct from cases where courts
have found constructive amendments. See, e.g., Stirone v. United States, 361 U.S.
212, 217 (1960) (finding constructive amendment when jury could have convicted
defendant based on interference with shipments into or out of state when indictment
only alleged interference with shipments into state); United States v. Yeo, 739 F.2d
385, 386-87 (8th Cir. 1984) (finding constructive amendment when jury could have
convicted defendant of extortion for collecting debt from individuals other than the
one named in the indictment).
Although Thomas labels her argument as one challenging a constructive
amendment, her claims are more appropriately considered as alleging a variance.
“The basic difference between a constructive amendment and a variance is this: a
constructive amendment changes the charge, while the evidence remains the same;
a variance changes the evidence, while the charge remains the same.” United States
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v. Stuckey, 220 F.3d 976, 981 (8th Cir. 2000). Because Thomas’s argument is, in
essence, a variance argument, we now consider whether the district court erred in
determining no fatal variance occurred. While “[a] constructive amendment is
reversible error per se, [] a variance is subject to the harmless error rule.” Id. “A
variance between the indictment and proof at trial requires reversal of a conviction
only if the variance actually prejudiced the defendant. The primary consideration in
this determination is whether the indictment fully and fairly apprised the defendant
of the charges he or she must meet at trial.” United States v. Begnaud, 783 F.2d 144,
148 (8th Cir. 1986) (citation omitted).
The district court considered whether the introduction of the unreported debts
amounted to a variance, ultimately concluding that no fatal variance had occurred:
[W]e are talking about these applications that Ms. Thomas filled out on
these four loans. It’s not something unexpected, given that the documents
came from her own hand and that Ms. Thomas’s lawyers have had all of
the documents from the beginning. And, in fact, those documents are in
evidence without objection from Ms. Thomas. The fact that they are in
evidence, it seems to me, means that whatever they say, whatever is in
there, is in play. . . . There is some difference, there is some variance
between the words of the indictment and the proof that’s proposed to
come in, but I do not believe that it is a fatal variance or that it is overly
prejudicial to Ms. Thomas, given the source of the variance in those
documents and given the law [of the Eighth Circuit].
R. Doc. 156, at 316-17.
We agree that no fatal variance occurred because, even with the introduction
of evidence not specifically mentioned in the indictment in relation to these two
counts, Thomas wasfully and fairly apprised of the chargesshe had to defend against
at trial. The documents at issue had already been entered into evidence and the
indictment mentioned the specific allegation with respect to one count. See Begnaud,
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783 F.2d at 148 (finding no fatal variance when the indictment set out two specific
representations made in furtherance of a scheme to defraud and prosecution offered
evidence of, and jury instruction allowed jury to consider, other misrepresentations
defendant made). And the government never wavered in the theory of the case it
presented at trial that Thomas committed wire fraud by misrepresenting her income
on loan documents. See United States v. Adams, 604 F.3d 596, 600 (8th Cir. 2010)
(“We conclude no variance occurred either, particularly because the government
never wavered in its theory of the case at trial . . . .”). Because Thomas’s argument
fails under either a constructive amendment or variance theory, we affirm the district
court on this claim.
VI.
Finally, we consider whether the district court erred in polling individual jurors
and issuing an Allen charge to the jury. After roughly six hours of deliberation, the
jury sent a note to the court indicating that it was deadlocked. The court brought the
jury back to the courtroom and began polling individual jurorsto determine if further
deliberations could produce a verdict. The court only polled three jurors before
determining that the note did not express the unanimous views of the jury. The court
then issued an Allen charge to the jury even though the government had not requested
it and Thomas opposed it. After two additional hours, the jury returned a guilty
verdict. Thomas asserts that this instruction and questioning of the jurors had the
impermissible effect of coercing jurors into reaching a verdict and singling out
specific jurors. We review challenged jury instructions, including Allen charges, for
abuse of discretion. United States v. Evans, 431 F.3d 342, 347 (8th Cir. 2005).
“An Allen-charge is a supplemental jury instruction that advises deadlocked
jurorsto reconsider their positions.” United States v. Walrath, 324 F.3d 966, 970 (8th
Cir. 2003) (internal quotation marks omitted). “Supplemental jury instructions are
permissible, so long asthey are not coercive.” United States v. Ybarra, 580 F.3d 735,
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738 (8th Cir. 2009). “[F]our elements bear on whether an Allen charge had an
impermissibly coercive effect on the jury: 1) the content of the instruction, 2) the
length of deliberation after the Allen charge, 3) the total length of deliberation, and
4) any indicia in the record of coercion or pressure upon the jury.” United States v.
Thomas, 946 F.2d 73, 76 (8th Cir. 1991) (internal quotation marks omitted).
Additionally, an inquiry as to the division of the jury for the purposes of determining
if further deliberations would be fruitful is not coercive in the same manner as an
inquiry seeking to determine how the jury stands on the merits. See Lowenfield v.
Phelps, 484 U.S. 231, 240 (1998). And Allen charges and accompanying statements
are less likely to be coercive when they do not single out a particular side of
deliberations. See United States v. Washington, 255 F.3d 483, 485-86 (8thCir. 2001)
(finding Allen charge was not coercive when instruction did not reference either party
or direct the jury to find for a particular party).
Nothing in the record indicates that the Allen charge coerced the jury into
returning a verdict. First, the content of the charge reminded the jurors of their
obligations to examine the evidence and questions submitted to them with a mind
toward reaching an agreement, but reminded themthat they should not surrender their
honest convictions and give in to opposing opinions. The Allen charge also reminded
the jurors that “a hung jury is acceptable to the law, just like a verdict of not guilty or
guilty. All three of those are acceptable outcomes in the case.” R. Doc. 159, at 837.
Second, the jurors deliberated for a further two hours after the Allen charge,
indicating that they did not feel coerced into immediately returning a verdict. Third,
the total length of deliberations was roughly eight hours: six hours prior to the Allen
charge and an additional two hours after the instruction. The trial lasted four and a
half days. The length of the trial and the total period of deliberation were not so
disproportionate as to raise an inference of coercion. See Thomas, 946 F.2d at 76
(finding no inference of coercion when jury deliberated for a total of nine hours after
a two-day trial); United States v. Smith, 635 F.2d 716, 720-22 (8th Cir. 1980)
(finding four hours of total deliberation for a two-day trial did not raise an inference
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of discrimination). Finally, there is no other “indicia in the record of coercion or
pressure upon the jury.” The district court’s polling of individual jurors was simply
an attempt to determine whether further deliberations would be helpful in reaching
a verdict. The judge intended to poll the entire jury, but only needed to poll three
jurors before concluding that further deliberations could be fruitful. He did not
continue polling the entire jury precisely because he was concerned about singling
out a particular side of the deliberations. This is evidenced by the judge’s statement
to the jury that “I’m not going to poll the rest of you because I don’t want to - - I don’t
want people speaking or to give any indication of how the jury might stand on the
issue,” and his statement to the attorneys that “I abandoned midstream my effort at
polling everyone because I grew concerned that the jury inadvertently might be
speaking to us about their views on the merits.” R. Doc. 159 , at 834-35, 838. We
therefore conclude the district court did not abuse its discretion in issuing an Allen
charge and polling individual jurors.
VII.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-00923/USCOURTS-caed-1_06-cv-00923-3/pdf.json | [
[
"George Galaza",
"Respondent"
],
[
"Demond Maurice Mimms",
"Petitioner"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DEMOND MAURICE MIMMS, )
)
Petitioner, )
)
vs. )
)
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GEORGE GALAZA, )
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Respondent. )
)
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___________________________________ )
1:06-cv-0923-AWI WMW HC
ORDER ADOPTING REPORT
AND RECOMMENDATIONS
RE DISMISSAL OF PETITION
FOR WRIT OF HABEAS
CORPUS
[Doc. 6]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On August 21, 2006, the court entered an order requiring Petitioner to submit an
application to proceed in forma pauperis or pay the filing fee for this action by September 25,
2006. On August 28, 2006, Petitioner filed a motion to proceed in forma pauperis. On
September 20, 2006, the court entered a second order requiring Petitioner to submit an
application to proceed in forma pauperis or pay the filing fee. In that order, the court noted
Case 1:06-cv-00923-VRW Document 10 Filed 07/26/07 Page 1 of 2
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that Petitioner’s application of August 28, 2006, did not contain the required original
signature of an authorized officer of the institution. Additionally, Petitioner had not
submitted the required certified copy of his prison trust account statement for the preceding
six months. Petitioner did not respond to the court’s order. Accordingly, on November 6,
2006, the court entered a report and recommendation recommending that this action be
dismissed for lack of prosecution.
On November 21, 2006, Petitioner filed objections to the report and recommendation.
In his objection, Petitioner complains that the court has delayed in the processing of his case,
and speculates that the real reason for the recommended dismissal of his case is his inability
to pay the filing fee. Petitioner does not address his failure to comply with the court’s order
of September 20, 2006.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has
conducted a de novo review of this case. See Britt v. Simi Valley Unified School Dist., 708
F.2d 452, 454 (9 Cir. 1983). Having carefully reviewed the entire file, the court finds the th
findings and recommendations to be supported by the record and by proper analysis. This
action has been pending for close to one year, and Petitioner has not paid the filing fee or
filed a completed application to proceed in forma pauperis.
Based on the foregoing, it is HEREBY ORDERED that:
1. The report and recommendations issued by the Magistrate Judge on
November 6, 2006, is adopted in full;
2. The Petition for Writ of Habeas Corpus is dismissed for lack of prosecution and
failure to comply with a court order;
3. The Clerk of the Court is directed to enter judgment for Respondent and to close this
case.
IT IS SO ORDERED.
Dated: July 26, 2007 /s/ Anthony W. Ishii
0m8i78 UNITED STATES DISTRICT JUDGE
Case 1:06-cv-00923-VRW Document 10 Filed 07/26/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00893/USCOURTS-caed-2_15-cv-00893-0/pdf.json | [
[
"Phillip Hall",
"Defendant"
],
[
"Richard Williford",
"Plaintiff"
]
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICHARD WILLIFORD,
Plaintiff,
v.
PHILLIP HALL,
Defendant.
No. 2:15-cv-0893 TLN DAD PS
ORDER
Plaintiff, Richard Williford, is proceeding in this action pro se. This matter was referred
to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff
has filed a complaint and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915.
The allegations of plaintiff’s complaint reveal that the events at issue took place in Kern
County. The United States District Court for the Eastern District of California sits in Fresno as
well as in Sacramento. Intra-district venue is governed by Local Rule 120(d), which provides as
follows:
Commencement of actions. All civil and criminal actions and
proceedings of every nature and kind cognizable by the United
States District Court for the Eastern District of California arising in
Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced,
Stanislaus, Tulare and Tuolumne counties shall be commenced in
the United States District Court sitting in Fresno, California . . . .
Case 2:15-cv-00893-TLN-DAD Document 12 Filed 06/09/15 Page 1 of 2
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In the present case, the events at issue all occurred in Kern County and, therefore, this
action should have been commenced in the Fresno Division of the court. When an action has not
been filed in the proper division of this court, the court may, on its own motion, transfer the
action to another venue within the district. See Local Rule 120(f). The undersigned will
therefore order this action transferred to the Fresno Division of the court for all further
proceedings.
Good cause appearing, IT IS HEREBY ORDERED that:
1. This action is transferred to the United States District Court for the Eastern District of
California sitting in Fresno for all further proceedings; and
2. All future filings shall reference the new Fresno case number to be assigned and shall
be filed only at:
United States District Court
Eastern District of California
2500 Tulare Street
Fresno, CA 93721
Dated: June 8, 2015
DAD:6
Ddad1\orders.pro se\willford0893.transfer.ord.docx
Case 2:15-cv-00893-TLN-DAD Document 12 Filed 06/09/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_04-cv-01037/USCOURTS-cand-3_04-cv-01037-1/pdf.json | [
[
"Jo Anne B. Barnhart",
"Defendant"
],
[
"Sarah L. St. Hill",
"Plaintiff"
]
] | 1
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HARVEY P. SACKETT (72488)
1055 Lincoln Avenue
Post Office Box 5025
San Jose, California 95150-5025
Telephone: (408) 295-7755
Facsimile: (408) 295-7444
/ne
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SARAH L. ST. HILL,
Plaintiff,
v.
JO ANNE B. BARNHART,
Commissioner, Social Security
Administration,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
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)
No. C-04-1037 MEJ
STIPULATION AND ORDER
Plaintiff and Defendant, through their respective attorneys,
hereby stipulate that Plaintiff shall have a second extension of
time up through and including Friday, August 19, 2005 in which to
e-file her Motion for Summary Judgment. This extension is
necessitated by the number of other cases Plaintiff's counsel
currently has before the district court that also require
briefing.
STIPULATION AND ORDER
1
Case 3:04-cv-01037-MEJ Document 14 Filed 07/19/05 Page 1 of 2
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_________________________
KEVIN V. RYAN
United States Attorney
Dated: July 14, 2005 /s/ SARA WINSLOW
Assistant U.S. Attorney
Dated: July 13, 2005 /s/ HARVEY P. SACKETT
Attorney for Plaintiff
SARAH L. ST. HILL
IT IS SO ORDERED.
Dated: ______________________ HON. MARIA-ELENA JAMES
U.S. Magistrate Judge
STIPULATION AND ORDER
2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
Judge Maria-Elena James
July 19, 2005
Case 3:04-cv-01037-MEJ Document 14 Filed 07/19/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-01442/USCOURTS-cand-3_09-cv-01442-4/pdf.json | [
[
"Don Todd Associates, Inc.",
"Defendant"
],
[
"Glumac",
"Plaintiff"
],
[
"United States of America",
"Interested Party"
]
] | 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
UNITED STATES OF AMERICA, ex rel.
GLUMAC, a California corporation,
Plaintiff,
v.
DON TODD ASSOCIATES, INC., an
entity of unknown form, and DOES 1 TO
100, inclusive,
Defendants. /
No. C 09-01442 WHA
ORDER GRANTING COSTS
AND DENYING INTEREST
In this action involving claims for violation of the False Claims Act and breach of
contract, default judgment was entered in favor of relator and qui tam plaintiff Glumac against
defendant Don Todd Associates, Inc. in the amount of $62,512.00. Plaintiff’s request for costs
was denied without prejudice because plaintiff did not properly document the costs it incurred or
why they were reasonable. Plaintiff was invited to submit documentation in support of its request
for costs. Plaintiff has now submitted a sworn declaration and detailed explanation of its request
for an award of costs of $2,943.48. Accordingly, plaintiff’s request for an award of $2,943.48 for
costs is GRANTED.
Plaintiff also now requests that the Court award interest on its monetary damages arising
out of its breach of contract claim. Section 3302 of the California Civil Code allows for an award
Case 3:09-cv-01442-WHA Document 32 Filed 02/23/10 Page 1 of 2
United States District Court
For the Northern District of California
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of interest but no interest was previously awarded because plaintiff did not seek interest in its
motion for default judgment. Because plaintiff did not previously move for interest, its request
now is DENIED as untimely.
IT IS SO ORDERED.
Dated: February 23, 2010 WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
Case 3:09-cv-01442-WHA Document 32 Filed 02/23/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-02138/USCOURTS-caed-2_15-cv-02138-6/pdf.json | [
[
"Burciaga",
"Defendant"
],
[
"Raul Cervantes",
"Plaintiff"
],
[
"Williamson",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RAUL CERVANTES,
Plaintiff,
v.
SERGEANT WILLIAMSON, et al.,
Defendants.
No. 2:15-cv-02138 DB
ORDER AND FINDINGS AND
RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief
under 42 U.S.C. § 1983 alleging excessive force against correctional officers for taking him to the
ground during an escort. Pending before the court is defendant Burciaga’s motion for summary
judgment for plaintiff’s alleged failure to exhaust his available administrative remedies. (ECF
No. 29.) Plaintiff filed an opposition to the motion (ECF No. 34), and defendant filed a reply
(ECF No. 37). Neither defendant Burciaga nor plaintiff responded to the court’s order directing
them to complete and return the form indicating their consent to jurisdiction of the magistrate
judge or request for reassignment to a district judge. Accordingly, the clerk will be directed to
randomly assign this case to a district judge.
For the reasons outlined below, the undersigned respectfully recommends that the district
court grant defendant’s motion for summary judgment and dismiss this case without prejudice.
////
Case 2:15-cv-02138-KJM-DB Document 45 Filed 02/28/17 Page 1 of 7
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I. Factual Background
Plaintiff is proceeding on his third amended complaint (TAC) against defendant Burciaga.
(ECF No. 13.) Plaintiff alleges that while housed at California State Prison, Sacramento (CSPSac), he was experiencing hallucinations on April 28, 2015. He claims that he requested to see a
doctor and was being escorted by defendant Burciaga. During this escort, plaintiff alleges that
defendant Burciuaga threw him to the ground and assaulted him without provocation. Plaintiff
asserts an Eighth Amendment claim for excessive force against defendant Burciaga for this
incident.
On June 2, 2015, plaintiff filed an inmate appeal -- which was screened as a medical
request -- demanding to see an eye doctor and medical doctor. (ECF No. 34 at 5-6.) Plaintiff
complained that his vision and hearing were deteriorating and that he could not sleep. (Id. at 5.)
In this appeal, plaintiff recounted an incident from April 28, 2015 where he left his cell due to
hallucinations he was suffering while on a hunger strike to see a nurse. (Id.) The appeal further
alleges that on the way back to his cell plaintiff was hit on the head, thrown to the ground, and
called racial slurs. (Id. at 6.) The appeal does not state who precisely was responsible, but
alludes to defendant Burciaga and another correctional officer. (Id.) The appeal also states that
plaintiff blacked out after the incident for three weeks, and only then found out that he had been
cited for assaulting a correctional officer. (Id.)
The appeal does not specifically complain that excessive force was used, nor does it seek
to hold defendant Burciaga or the other correctional officer accountable for the incident. The
only requests made are for further medical treatment and examination, as well as copies of
medical records and the incident report review issued on May 28, 2015. (Id.)
Plaintiff filed his initial complaint in this court on October 13, 2015 naming Burciaga and
correctional officer Williamson as defendants. (ECF No. 1.) The original complaint was
screened and dismissed without prejudice with leave to amend by the magistrate judge previously
assigned to this case, Judge Caroline Delaney. (ECF No. 6.) Plaintiff then filed a first amended
complaint and second amended complaint in succession. (ECF Nos. 9; 11.) Judge Delaney
screened and dismissed the second amended -- which named Burciaga as the sole defendant --
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without prejudice. (ECF No. 12.) Plaintiff then filed the TAC (ECF No. 13), Judge Delaney
screened and ordered by served on defendant Burciaga. (ECF Nos. 14; 18.) Defendant Burciaga
waived service and filed an answer. (ECF Nos. 21; 23.) Defendant Burciaga now moves for
summary judgment on the basis that plaintiff did not exhaust his administrative remedies as
required by law. (ECF No. 29.)
II. Legal Standard
By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. §
1997e to provide that “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative
procedures is mandated regardless of the relief offered through such procedures. See Booth v.
Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading
futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n. 6.
Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion
requirement by filing an untimely or otherwise procedurally defective administrative grievance or
appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative
remedies prisoners ‘must complete the administrative review process in accordance with the
applicable procedural rules,’ [ ] - rules that are defined not by the PLRA, but by the prison
grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.
at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison
system’s requirements ‘define the boundaries of proper exhaustion.’”).
In California, prisoners may appeal “any policy, decision, action, condition, or omission
by the department or its staff that the inmate or parolee can demonstrate as having a material
adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
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Most appeals progress through three levels of review. See id. § 3084.7. The third level of review
constitutes the decision of the Secretary of the California Department of Corrections and
Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A
California prisoner is required to submit an inmate appeal at the appropriate level and proceed to
the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.
2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).
A prisoner may be excused from complying with the PLRA’s exhaustion requirement if
he establishes that the existing administrative remedies were effectively unavailable to him. See
Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). For example, where prison officials
improperly screen out inmate grievances, they can render administrative remedies effectively
unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the
inmate cannot pursue the necessary sequence of appeals[.]” Id. See also Nunez v. Duncan, 591
F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was
precluded from exhausting his administrative remedies by a warden’s mistaken instruction to him
that a particular unavailable document was needed for him to pursue his inmate appeal); Marella,
568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access to the
necessary grievance forms to timely file his grievance).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative
defense that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not
required to specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at
1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n
the rare event” that a prisoner’s failure to exhaust is clear on the face of the complaint. Albino,
747 F.3d at 1168 & 1169. More typically, defendants are required to move for summary
judgment under Federal Rule of Civil Procedure 56 and produce probative evidence that proves a
prisoner’s failure to exhaust. See id. at 1166. If the undisputed evidence viewed in the light most
favorable to the prisoner demonstrates a failure to exhaust, the court should grant defendant’s
motion for summary judgment. On the other hand, if there are material facts in dispute, the court
should deny defendant’s motion summary judgment. See id.
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III. Legal Analysis
It is uncontested that between the April 28, 2015 incident and the filing of the original
complaint in this court on October 13, 2015, plaintiff filed just one inmate appeal concerning
prison conditions. (ECF No. 29-5 at 3-4, 7.) This single appeal about living conditions at CSPSac concerns the theft of allegedly confidential material from plaintiff. (Id. at 9-14.) This appeal
is unrelated to the present action.
As noted above, however, plaintiff also filed a medical appeal in which he references the
incident in his complaint. (See ECF Nos. 29-5 at 7; 34 at 5-6.) This medical appeal, log number
SAC-H-15-01724, was filed on June 2, 2015. (ECF No. 34 at 5-6.) Defendant Burciaga contends
that this medical appeal is insufficient to satisfy the PLRA because it is not an appeal concerning
living conditions and it does not assert that excessive force was used. (ECF No. 37 at 2.) The
undersigned agrees.
Inmate grievances must be sufficient to notify prison personnel of a problem for
exhaustion purposes. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). To be sure, SACH-15-01724 infers that correctional officers used force against plaintiff, causing him to bleed and
black out from a head injury. (ECF No. 34 at 5-6.) However, the grievance does not assert
excessive force or allege misconduct by the named correctional officers; rather it seeks access to
medical treatment. (Id.) Specifically, plaintiff seeks access to an eye doctor and medical doctor.
(Id.) Furthermore, the medical issues for which this grievance seeks treatment do not appear to
be tied to this use of force. Rather, plaintiff alleges that he is losing his hearing and vision, as
well as suffers from headaches that interrupt his sleep. (Id. at 5.)
While SAC-H-15-01724 refers to the incident in the present case, it is apparent on the face
of the grievance that it does not seek relief for this grievance. A court may excuse a prisoner
from complying with the exhaustion requirement when prison officials render administrative
remedies effectively unavailable even if prison officials did not act in bad faith. See Sapp, 623
F.3d at 822; Nunez, 591 F.3d at 1224. The Ninth Circuit has cited with approval a Seventh
Circuit Court of Appeals decision for the proposition that “prison officials’ failure to respond to a
properly filed grievance makes remedies ‘unavailable’ and therefore excuses a failure to exhaust.”
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Sapp, 623 F.3d at 822-23 (citing Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006)). To consider
the current situation within this exception would go beyond the express purpose of the exemption,
which is to provide prisoners with a remedy when prison officials are at fault for rendering
administrative remedies unavailable.
Plaintiff does not contend that prison officials rendered administrative remedies
unavailable to him. Rather, he simply asserts that through the filing of a medical grievance
requesting wholly different relief than that requested in the current action, prison personnel were
on notice about the alleged violation of his Eighth Amendment rights. Were the court to agree
however, it would exceed the very limited authority it has to excuse noncompliance with the
PLRA. The undisputed facts establish that plaintiff did not file a prison grievance complying
with PLRA standards alleging misconduct by defendant Burciaga or seeking relief because of any
actions -- legal or illegal, justified or unjustified -- undertaken by defendant Burciaga. (See ECF
Nos. 29-5 at 3-4, 7; 34 at 5-6.)
For the foregoing reasons, the undersigned respectfully recommends that defendant
Burciaga’s motion for summary judgment be granted and plaintiff’s TAC be dismissed without
prejudice with leave to refile after exhausting administrative remedies.
IV. Conclusion
As noted above, neither of the parties have consented to magistrate judge jurisdiction,
therefore IT IS HEREBY ORDERED that the clerk’s office randomly assign a district judge to
this case so that these recommendations may be ruled upon. Furthermore, IT IS HEREBY
RECOMMENDED that:
1. Defendant Burciaga’s motion for summary judgment for failure to exhaust
administrative remedies be granted; and
2. Plaintiff’s TAC be dismissed without prejudice with leave to refile after
exhausting administrative remedies pursuant to the PLRA.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.”
Any reply to the objections shall be served and filed within fourteen days after service of
the objections. Failure to file objections within the specified time may waive the right to appeal
the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,
951 F.2d 1153 (9th Cir. 1991).
Dated: February 27, 2017
TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / cerv.2138.msj
Case 2:15-cv-02138-KJM-DB Document 45 Filed 02/28/17 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_06-cv-07759/USCOURTS-cand-3_06-cv-07759-0/pdf.json | [
[
"Joseph Jose Castro",
"Plaintiff"
],
[
"Tiffine Thomas",
"Defendant"
]
] | 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
JOSEPH JOSE CASTRO,
Plaintiff,
v.
TIFFINE THOMAS,
Defendant. /
No. C 06-7759 MHP (pr)
ORDER OF DISMISSAL
Joseph Jose Castro, an inmate at Deuel Vocational Institute, filed this pro se civil
rights action under 42 U.S.C. § 1983, in which he complained that a correctional officer
verbally harassed and pushed his face into a wall while he was incarcerated at San Quentin
State Prison. His complaint is now before the court for initial review pursuant to 28 U.S.C. §
1915A.
A federal court must engage in a preliminary screening of any case in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity. See 28 U.S.C. §1915A(a). The court must identify any cognizable claims, and
dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
be granted, or seek monetary relief from a defendant who is immune from such relief. See
28 U.S.C. §1915A(b)(1),(2).
There is an exhaustion problem in this action. "No action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies
Case 3:06-cv-07759-MHP Document 3 Filed 05/11/07 Page 1 of 3
United States District Court
For the Northern District of California
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as are available are exhausted." 42 U.S.C. § 1997e(a). The State of California provides its
inmates and parolees the right to appeal administratively "any departmental decision, action,
condition or policy perceived by those individuals as adversely affecting their welfare." See
Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies
within this system, a prisoner must proceed through several levels of appeal: (1) informal
resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level
appeal to the institution head or designee, and (4) third level appeal to the Director of the
California Department of Corrections. See id. § 3084.5; Ngo v. Woodford, 126 S. Ct. 2378,
2383 (2006); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). Nonexhaustion
under § 1997e(a) is usually an affirmative defense, but a complaint may be dismissed by the
court for failure to exhaust if a prisoner “conce[des] to nonexhaustion” and “no exception to
exhaustion applies." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).
The materials submitted by Castro plainly show he has not exhausted administrative
remedies. On the form complaint, Castro checked "no" in response to the question "is the
last level to which you appealed the highest level of appeal available to you?" Complaint, p.
2. He wrote that he had received an informal response "but when I shot it to the first level I
never received it back." Id. The first exhibit attached to the complaint was an inmate request
dated November 28, 2006, in which Castro asked what had happened to his inmate appeal
and whether he needed to file another inmate appeal. The response was dated December 4,
2006 and stated that the "first level was partially granted on 11-17-06. When did you
resubmit?" He apparently did nothing further vis-a-vis the inmate appeal before mailing the
complaint to the court on December 12, 2006. Although he may not have received a copy of
the first level decision when it was issued on November 17, 2006, he did not seek a
replacement copy of the first level decision and did not pursue the appeal to a higher level
before filing this action. Castro's efforts did not satisfy the requirement that he exhaust
administrative remedies before filing his action in federal court. For the foregoing reasons,
this action is DISMISSED without prejudice to plaintiff filing a new action after he exhausts
his administrative remedies.
Case 3:06-cv-07759-MHP Document 3 Filed 05/11/07 Page 2 of 3
United States District Court
For the Northern District of California
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The in forma pauperis application is DENIED without prejudice to plaintiff filing a
new application with any new civil rights complaint. (Docket # 2.) No fee is due. The clerk
shall close the file.
IT IS SO ORDERED.
Dated: May 10, 2007 ______________________
Marilyn Hall Patel
United States District Judge
Case 3:06-cv-07759-MHP Document 3 Filed 05/11/07 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-99-01522/USCOURTS-caDC-99-01522-0/pdf.json | [
[
"AT&T Corporation",
"Intervenor"
],
[
"Consumers Union",
"Petitioner"
],
[
"Federal Communications Commission",
"Respondent"
],
[
"Time Warner Entertainment Co., L.P.",
"Intervenor"
],
[
"United States of America",
"Respondent"
]
] | <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>>
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2000 Decided March 2, 2001
No. 94-1035
Time Warner Entertainment Co., L.P.
Petitioner
v.
Federal Communications Commission and
United States of America,
Respondents
BellSouth Corporation, et al.,
Intervenors
Consolidated with
95-1337, 99-1503, 99-1504, 99-1522,
99-1541, 99-1542, 00-1086
On Petitions for Review of Orders of the
Federal Communications Commission
David W. Carpenter argued the cause for petitioners
AT&T Corporation and Time Warner Entertainment Co.,
USCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 1 of 31
<<The pagination in this PDF may not match the actual pagination in the printed slip opinion>>
L.P. With him on the briefs were Peter Keisler, David L.
Lawson, C. Frederick Beckner III, Henk Brands and Robert
D. Joffe. Charles S. Walsh, Richard B Beckner, Stuart W.
Gold and Marc C. Rosenblum entered appearances.
Robert D. Joffe and Henk Brands were on the briefs for
petitioner Time Warner Entertainment Co., L.P. Charles S.
Walsh, Richard B. Beckner and Stuart W. Gold entered
appearances.
Andrew Jay Schwartzman, Cheryl A. Leanza and Harold
Feld were on the briefs for petitioner Consumers Union.
James M. Carr, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the
brief were Christopher J. Wright, General Counsel, Daniel
M. Armstrong, Associate General Counsel, Joel Marcus and
James M. Carr, Counsel, David W. Ogden, Acting Assistant
Attorney General, U.S. Department of Justice, Mark B. Stern
and Jacob M. Lewis, Attorneys, and Wilma A. Lewis, U.S.
Attorney. William E. Kennard, General Counsel, Federal
Communications Commission, John E. Ingle, Deputy Associate General Counsel, and Catherine G. O'Sullivan, Robert B.
Nicholson and Robert J. Wiggers, Attorneys, U.S. Department of Justice, entered appearances.
Henk J. Brands, Robert D. Joffe, Peter D. Keisler, David
L. Lawson and C. Frederick Beckner III were on the brief for
intervenor Time Warner Entertainment Co., L.P. in No.
99-1522. Mark C. Rosenblum entered an appearance.
Before: Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Section 11(c) of the Cable Television Consumer Protection and Competition Act of 1992, Pub.
L. No. 102-385, 106 Stat. 1460 ("1992 Cable Act"), amends 47
U.S.C. s 533 to direct the Federal Communications Commission to set two types of limits on cable operators. The first
type is horizontal, addressing operators' scale: "limits on the
USCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 2 of 31
<<The pagination in this PDF may not match the actual pagination in the printed slip opinion>>
number of cable subscribers a person is authorized to reach
through cable systems owned by such person, or in which
such person has an attributable interest." 47 U.S.C.
s 533(f)(a)(1)(A). The second type is vertical, addressing
operators' integration with "programmers" (suppliers of programs to be carried over cable systems): "limits on the
number of channels on a cable system that can be occupied by
a video programmer in which a cable operator has an attributable interest." 47 U.S.C. s 533(f)(a)(1)(B). The FCC has
duly promulgated regulations. See 47 C.F.R. s 76.503-04.
Petitioners Time Warner and AT&T challenge the horizontal
limit as in excess of statutory authority, as unconstitutional
infringements of their freedom of speech, and as products of
arbitrary and capricious decisionmaking which violate the
Administrative Procedure Act. Time Warner similarly challenges the vertical limit. Together with AT&T, Time Warner
also challenges as arbitrary and capricious the rules for
determining what counts as an "attributable interest." Concluding that the FCC has not met its burden under the First
Amendment and, in part, lacks statutory authority for its
actions, we remand for further consideration of both limits.
In addition we vacate specific portions of the attribution rules
as lacking rational justification.
Consumers Union also files a petition for review, which
need not detain us long. It objects to the Commission's
action to the extent that it continued a stay on enforcement of
the horizontal limit. See Implementation of Section 11(c) of
the Cable Television Consumer Protection and Competition
Act of 1992, 14 F.C.C.R. 19098, 19127-28 p p 71-73 (1999)
("Third Report"). The Commission issued the stay after a
district court found the statute underlying that limit unconstitutional, see Daniels Cablevision, Inc. v. United States, 835
F. Supp. 1 (D.D.C. 1993), and provided that in the event of
Daniels's reversal the stay would end. See Implementation
of Sections 11 and 13 of the Cable Television Consumer
Protection and Competition Act of 1992, 8 F.C.C.R. 8565,
8609 p 109 (1993) ("Second Report"). We did reverse Daniels
in Time Warner Entertainment Co. v. United States, 211
USCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 3 of 31
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F.3d 1313 (D.C. Cir. 2000) ("Time Warner I"), so the stay
ended automatically.1 Thus the stay issue is moot unless the
issue posed is capable of repetition yet evading review. Even
if we assume that the issue evades review, its recurrence is
not probable enough to qualify it as "capable of repetition."
See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (requiring "a
reasonable expectation that the same complaining party [will]
be subject to the same action again") (internal citations
omitted). Although we find here that the regulations fail
constitutional scrutiny, the specific condition that led to the
stay--a pending challenge to the statute's constitutionality--
is highly unlikely to recur. We therefore find Consumers
Union's claim moot and dismiss the petition.
* * *
The horizontal rule imposes a 30% limit on the number of
subscribers that may be served by a multiple cable system
operator ("MSO"). See 47 C.F.R. s 76.503; Third Report 14
F.C.C.R. at 19119 p 55. Both the numerator and denominator of this fraction include only current subscribers to multichannel video program distributor ("MVPD") services. See
id. at 19107-10 p p 20-25. Subscribers include not only users
of traditional cable services but also subscribers to non-cable
MVPD services such as Direct Broadcast Satellite ("DBS"),2 a
__________
1 The cross-appeals of the government and the cable firms from
the district court's decision in Daniels were originally consolidated
with the cable firms' petitions for review of earlier iterations of the
implementing regulations. See Time Warner I, 211 F.3d at 1315-
16. After a date for oral argument was set, the FCC initiated a
new rulemaking as part of its planned quinquennial review of the
horizontal regulations. We therefore severed the Daniels appeals
from the challenges to the regulations, holding the latter in abeyance until the completion of the new rulemaking. See id. The
challenge to the new horizontal rules has supplanted that portion of
the earlier challenges.
2 DBS "is a nationally distributed subscription video service that
delivers programming via satellite to a small parabolic 'dish' antenna located at the viewer's home." Annual Assessment of the Status
of Competition in the Market for the Delivery of Video ProgramUSCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 4 of 31
<<The pagination in this PDF may not match the actual pagination in the printed slip opinion>>
rapidly growing segment of the MVPD market. See id. at
19110-12 p p 26-35. The Commission pointed out that under
this provision the nominal 30% limit would allow a cable
operator to serve 36.7% of the nation's cable subscribers if it
served none by DBS. See id. at 19113 p 37 & n.82.3 In an
express effort to encourage competition through new provision of cable, the Commission excluded from any MSO's
numerator all new subscribers signed up by virtue of "overbuilding," the industry's term for cable laid in competition
with a pre-existing cable operator. See id. at 19112-13 p p 34,
37. Further, subscribers to a service franchised after the
rule's adoption (October 20, 1999) do not go into an MSO's
numerator, even if not the result of an overbuild. See id. at
19112 p 33. As a result, the rule's main bite is on firms
obtaining subscribers through merger or acquisition.
The vertical limit is currently set at 40% of channel capacity, reserving 60% for programming by non-affiliated firms.
See 47 C.F.R. s 76.504; Second Report, 8 F.C.C.R. at 8593-
94 p 68; Implementation of Section 11(c) of the Cable Television Consumer Protection and Competition Act of 1992, 10
F.C.C.R. 7364, 7368 p 14 (1995) ("Reconsideration Order").
Channels assigned to broadcast stations, leased access, and
for public, educational, or governmental uses are included in
the calculation of channel capacity. See id. at 7371-73 p p 20-
27. Capacity over 75 channels is not subject to the limit, so a
cable operator is never required to reserve more than 45
channels for others (.60 x 75 = 45). See id. at 7374-76
p p 31-35.
__________
ming, Seventh Annual Report, CS Docket No. 00-132, FCC 01-01
(rel. Jan. 8, 2001) p 71 (2000) ("Seventh Annual Report").
3 30% of roughly 80 million MVPD subscribers would be about 24
million subscribers, which in turn would be 36.69% of roughly 66
million cable subscribers. Under the Commissions most recent
subscriber estimates, this provision would allow an MSO to serve
37.4% of cable subscribers, or approximately 1.1 million more
customers than when the Third Report was written. See Seventh
Annual Report at p p 6-7.
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As cable operators, Time Warner and AT&T "exercise[ ]
editorial discretion in selecting the programming [they] will
make available to [their] subscribers," Time Warner I, 211
F.3d at 1316, and are "entitled to the protection of the speech
and press provisions of the First Amendment," Turner
Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 636 (1994) ("Turner I") (quoting
Leathers v. Medlock, 499 U.S. 439, 444 (1991)). The horizontal limit interferes with petitioners' speech rights by restricting the number of viewers to whom they can speak. The
vertical limit restricts their ability to exercise their editorial
control over a portion of the content they transmit.
In Time Warner I we upheld the statutory provisions
against a facial attack, after finding them subject to intermediate rather than, as the cable firms argued, strict scrutiny.
Time Warner I, 211 F.3d at 1316-22. The regulations here
present a related but independent set of questions. Constitutional authority to impose some limit is not authority to
impose any limit imaginable.
In briefs written before the issuance of Time Warner I,
petitioners argued here for strict scrutiny. At oral argument
they withdrew from this position and said, euphemistically,
that they were "happy to stand on intermediate scrutiny."
Because of that concession and, in any event, not seeing any
distinction between the statute and the regulations for levelof-scrutiny purposes, we apply intermediate scrutiny. Under
the formula set forth in United States v. O'Brien, 391 U.S.
367, 377 (1968), and reaffirmed by Turner Broadcasting
System, Inc. v. Federal Communications Commission, 520
U.S. 180, 189 (1997) ("Turner II"), a governmental regulation
subject to intermediate scrutiny will be upheld if it "advances
important governmental interests unrelated to the suppression of free speech and does not burden substantially more
speech than necessary to further those interests." Id. (quoting O'Brien, 391 U.S. at 377).
The interests asserted in support of the horizontal and
vertical limits are the same interrelated interests that we
found sufficient to support the statutory scheme in Time
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Warner I: "the promotion of diversity in ideas and speech"
and "the preservation of competition." Time Warner I, 211
F.2d at 1319; see also Turner I, 512 U.S. at 662-64 (concluding that both qualify as important governmental interests).
After a review of the legislative history, we concluded that
Congress had drawn "reasonable inferences, based upon substantial evidence, that increases in the concentration of cable
operators threatened diversity and competition in the cable
industry." Time Warner I, 211 F.3d at 1319-20. But the
FCC must still justify the limits that it has chosen as not
burdening substantially more speech than necessary. In
addition, in "demonstrat[ing] that the recited harms are real,
not merely conjectural," Turner I, 512 U.S. at 664, the FCC
must show a record that validates the regulations, not just
the abstract statutory authority.
* * *
The FCC asserts that a 30% horizontal limit satisfies its
statutory obligation to ensure that no single "cable operator
or group of cable operators can unfairly impede ... the flow
of video programming from the video programmer to the
consumer," 47 U.S.C. s 533(f)(2)(A), while adequately respecting the benefits of clustering4 and the economies of scale
that are thought to come with larger size. See Third Report,
14 F.C.C.R. at 19123-24 p 61. It interpreted this statutory
language as a directive to prohibit large MSOs--either by the
action of a single MSO or the coincidental or collusive actions
of several MSOs--from precluding the entry into the market
of a new cable programmer. See id. at 19116 p 43. In
setting the limit at 30%, it assumed there was a serious risk
of collusion. See id., Part VI, at 19113-25 p p 36-65. But
__________
4 "Clustering" refers to the strategy under which MSOs concentrate their operations within a particular geographic region, giving
up scattered holdings around the country. The benefits are
thought to be in achieving economies of both scale and scope,
allowing MSOs to spread fixed investment costs over a larger
customer base and to better compete with telephone companies
owning local loops that are actual or potential substitutes. See
Seventh Report p p 152-53.
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while collusion is a form of anti-competitive behavior that
implicates an important government interest, the FCC has
not presented the "substantial evidence" required by Turner
I and Turner II that such collusion has in fact occurred or is
likely to occur; so its assumptions are mere conjecture. See
Turner II, 520 U.S. at 195 (citing Turner I, 512 U.S. at 666).
The FCC alternatively relies on its supposed grant of authority to regulate the non-collusive actions of large MSOs. Congress may indeed, under certain readings of Turner I and
Turner II, have the power to regulate the coincidental but
independent actions of cable operators solely in the interest of
diversity, but "[w]here an administrative interpretation of a
statute invokes the outer limits of Congress' power, we expect
a clear indication that Congress intended that result." Solid
Waste Agency v. United States Army Corps of Eng'rs, __
U.S. __, 121 S. Ct. 675, 683 (2001). The 1992 Cable Act, as
we shall see, instead expresses the contrary intention.
Part VI of the Third Report lays out the calculations that
lead the FCC to the 30% limit. See Third Report, Part VI,
14 F.C.C.R. at 19113-25 p p 36-65. First the FCC determines that the average cable network needs to reach 15
million subscribers to be economically viable. See id. at
19114-16 p p 40-42. This is 18.56% of the roughly 80 million
MVPD subscribers, and the FCC rounds it up to 20% of such
subscribers. The FCC then divines that the average cable
programmer will succeed in reaching only about 50% of the
subscribers linked to cable companies that agree to carry its
programming, because of channel capacity, "programming
tastes of particular cable operators," or other factors. Id. at
19117-18 p 49. The average programmer therefore requires
an "open field" of 40% of the market to be viable (.20/.50 =
.40). See id. at 19117-18 p p 46-50.
Finally, to support the 30% limit that it says is necessary to
assure this minimum, the Commission reasons as follows:
With a 30% limit, a programmer has an "open field" of 40% of
the market even if the two largest cable companies deny
carriage, acting "individually or collusively." Id. at 19119
p 53. A 50% rule is inadequate because, if a duopoly were to
result, "[t]he probability of tacit collusion is higher with 2
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competitors than 3 competitors." Id. at 19118-19 p 51. Even
if collusion were not to occur, independent rejections by two
MSOs could doom a new programmer, thwarting congressional intent as the Commission saw it. See id. A 40% limit is
insufficient for the same reason: "two MSOs, ... representing a total of 80% of the market, might decline to carry the
new network" and leave only 20% "open," which by hypothesis is not enough (because of the 50% success rate). Id. at
19119 p 52. Although the Commission doesn't spell out the
intellectual process, it is necessarily defining the requisite
"open field" as the residue of the market after a programmer
is turned down either (1) by one cable company acting alone,
or (2) by a set of companies acting either (a) collusively or (b)
independently but nonetheless in some way that, because of
the combined effect of their choices, threatens fulfillment of
the statutory purposes. We address the FCC's authority to
regulate each of these scenarios in turn.
The Commission is on solid ground in asserting authority to
be sure that no single company could be in a position singlehandedly to deal a programmer a death blow. Statutory
authority flows plainly from the instruction that the Commission's regulations "ensure that no cable operator or group of
cable operators can unfairly impede, either because of the size
of any individual operator or because of joint actions of
operators of sufficient size, the flow of video programming
from the video programmer to the consumer." 47 U.S.C.
s 533(f)(2)(A) (emphasis added). Constitutional authority is
equally plain. As the Supreme Court said in Turner II: "We
have identified a corresponding 'governmental purpose of the
highest order' in ensuring public access to 'a multiplicity of
information sources.' " 520 U.S. at 190 (quoting Turner I,
512 U.S. at 663); see also Time Warner Entertainment Co. v.
Federal Communications Commission, 93 F.3d 957, 969
(D.C. Cir. 1996). If this interest in diversity is to mean
anything in this context, the government must be able to
ensure that a programmer have at least two conduits through
which it can reach the number of viewers needed for viability--independent of concerns over anticompetitive conduct.
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Assuming the validity of the premises supporting the
FCC's conclusion that a 40% "open field" is necessary (a
question that we need not answer here), the statute's express
concern for the act of "any individual operator" would justify
a horizontal limit of 60%. To reach the 30% limit, the FCC's
action necessarily involves one or the other of two additional
propositions: Either there is a material risk of collusive
denial of carriage by two or more companies, or the statute
authorizes the Commission to protect programmers against
the risk of completely independent rejections by two or more
companies leaving less than 40% of the MVPD audience
potentially accessible. Neither proposition is sound.
First, we consider whether there is record support for
inferring a non-conjectural risk of collusive rejection. Either
Congress or the Commission could supply that record, and we
take them in that order. We give deference to the predictive
judgments of Congress, see Turner II, 520 U.S. at 195-96
(citing Turner I, 512 U.S. at 665), but Congress appears to
have made no judgment regarding collusion. The statute
plainly alludes to the possibility of collusion when it authorizes regulations to protect against "joint actions by a group
of operators of sufficient size." 47 U.S.C. s 533(f)(2)(A) (emphasis added). But this phrase, while granting the Commission authority to take action in the event that it finds collusion extant or likely, is not itself a congressional finding of
actual or probable collusion. Such findings have not been
made. No reference to collusion appears in the Act's findings
or policy, see 1992 Cable Act s 2, 106 Stat. at 1460-63, nor in
the legislative history discussing the horizontal or vertical
limits. See H.R. Rep. No. 102-628, at 40-43 (1992) ("House
Report"); S. Rep. No. 102-92, at 24-29, 32-34, reprinted in
1991 U.S.C.C.A.N. 1133, at 1156-62, 1165-67 ("Senate Report"). It was thus appropriate for the FCC to describe
Congress's reference to "joint" action as merely a "legislative
assumption." Third Report, 14 F.C.C.R. at 19116 p 43 (emphasis added).
The Commission's own findings amount to precious little.
It says only:
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The legislative assumption [about joint action] is not
unreasonable given an environment in which all the
larger operators in the industry are vertically integrated
so that all are both buyers and sellers of programming
and have mutual incentives to reach carriage decisions
beneficial to each other. Operators have incentives to
agree to buy their programming from one another.
Moreover, they have incentives to encourage one another
to carry the same non-vertically integrated programming
in order to share the costs of such programming.
Id. None of these assertions is supported in the record. The
Commission never explains why the vertical integration of
MSOs gives them "mutual incentive to reach carriage decisions beneficial to each other," what may be the firms'
"incentives to buy ... from one another," or what the probabilities are that firms would engage in reciprocal buying
(presumably to reduce each other's average programming
costs). After all, the economy is filled with firms that, like
MSOs, display partial upstream vertical integration. If that
phenomenon implies the sort of collusion the Commission
infers, one would expect the Commission to be able to point to
examples. Yet it names none. Further, even if one accepts
the proposition that an MSO could benefit from sharing the
services of specific programmers, programming is not more
attractive for this purpose merely because it originates with
another MSO's affiliate rather than with an independent.
The only justification that the FCC offers in support of its
collusion hypothesis is the economic commonplace that, all
other things being equal, collusion is less likely when there
are more firms. See Third Report 14 F.C.C.R. at 19118-19
p 51. This observation will always be true, although marginally less so for each additional firm; but by itself it lends no
insight into the question of what the appropriate horizontal
limit is. Turner I demands that the FCC do more than
"simply 'posit the existence of the disease sought to be
cured.' " Turner I, 512 U.S. at 664 (quoting Quincy Cable
TV, Inc. v. Federal Communications Commission, 768 F.2d
1434, 1455 (D.C. Cir. 1985). It requires that the FCC draw
"reasonable inferences based on substantial evidence." TurUSCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 11 of 31
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ner I, 512 U.S. at 666. Substantial evidence does not require
a complete factual record--we must give appropriate deference to predictive judgments that necessarily involve the
expertise and experience of the agency. See Turner II 520
U.S. at 196, citing Federal Communications Commission v.
National Citizens Comm. For Broadcasting, 436 U.S. 775,
814 (1978). But the FCC has put forth no evidence at all that
indicates the prospects for collusion.
That having been said, we do not foreclose the possibility
that there are theories of anti-competitive behavior other
than collusion that may be relevant to the horizontal limit and
on which the FCC may be able to rely on remand. See 47
U.S.C. s 533(f)(1). Indeed, Congress considered, among other things, the ability of MSOs dominant in specific cable
markets to extort equity from programmers or force exclusive contracts on them. See 1992 Cable Act s 2(a)(4)-(5), 106
Stat. at 1460-61; Senate Report at 3, 14, 23-29, 32-34,
reprinted in 1991 U.S.C.C.A.N. at 1135, 1146-47, 1156-62,
1165-67; House Report at 40-43. A single MSO, acting
alone rather than "jointly," might perhaps be able to do so
while serving somewhat less than the 60% of the market (i.e.,
less than the fraction that would allow it unilaterally to lock
out a new cable programmer) despite the existence of antitrust laws and specific behavioral prohibitions enacted as part
of the 1992 Cable Act, see 47 U.S.C. s 536, and the risk might
justify a prophylactic limit under the statute. See Time
Warner I, 211 F.3d at 1322-23. So the absence of any
showing of a serious risk of collusion does not necessarily
preclude a finding of a sufficient governmental interest in
preventing unfair competition. (We express no opinion on
whether exploitation of a monopoly position in a specific cable
market to extract rents that would otherwise flow to programmers alone gives rise to an "important governmental
interest" justifying a burden on speech.) But the FCC made
no attempt to justify its regulation on these grounds.
We pause here to address an aspect of petitioners' statutory challenge that is relevant to a showing of non-conjectural
harm. Congress required that in setting the horizontal limit,
the FCC "take particular account of the market structure ...
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including the nature and market power of the local franchise."
47 U.S.C. s 533(f)(2)(C). Petitioners assert that the Commission's failure to take adequate account of the competitive
pressures brought by the availability and increasing success
of DBS make the horizontal limit arbitrary and capricious.
Although DBS accounts for only 15.4% of current MVPD
households, the annual increase in its total subscribership is
almost three times that of cable (nearly three million additional subscribers over the period June 1999 to June 2000, as
against one million for cable). See Seventh Annual Report
p p 6-8. To the extent petitioners argue that the horizontal
limit must fail because market share does not equal market
power, they misconstrue the statutory command. The Commission is not required to design a limit that falls solely on
firms possessing market power.5 The provision is directed to
the Commission's intellectual process, and requires it, in
evaluating the harms posed by concentration and in setting
the subscriber limit, to assess the determinants of market
power in the cable industry and to draw a connection between
market power and the limit set.
It follows naturally from our earlier discussion that we do
not believe the Commission has satisfied this obligation.
Having failed to identify a non-conjectural harm, the Commission could not possibly have addressed the connection between the harm and market power. But the assessment of a
real risk of anti-competitive behavior--collusive or not--is
itself dependent on an understanding of market power, and
the Commission's statements in the Third Report seem to
ignore the true relevance of competition. In changing the
calculation of the horizontal limit to reflect subscribers instead of homes at which a service is available, for instance,
the Commission wrote:
[W]hether subscribership or homes passed data is used is
largely a mechanical issue in terms of the market power
issue.... As the market develops in terms of competi-
__________
5 Contrast Congress's requirement that the FCC "make such
rules and regulations reflect the dynamic nature of the communications marketplace." 47 U.S.C. s 533(f)(2)(E) (emphasis added).
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tion we believe ... that an operator's actual number of
subscribers more uniformly and accurately reflects power in the programming marketplace.
Third Report, 14 F.C.C.R. at 19108 p 22.
But normally a company's ability to exercise market power
depends not only on its share of the market, but also on the
elasticities of supply and demand, which in turn are determined by the availability of competition. See AT&T Corp. v.
Federal Communications Commission, 236 F.3d 729, 736
(D.C. Cir. 2001). If an MVPD refuses to offer new programming, customers with access to an alternative MVPD may
switch. The FCC shows no reason why this logic does not
apply to the cable industry. Indeed, its most recent competition report suggests that it does. According to the Commission, "several very small and rural cable systems have used a
variety of schemes to add digital channels, expand their
program offerings, and take preemptive action against aggressive DBS marketing." Seventh Annual Report p 67.
Given the substantial changes in the cable industry since
publication of the Third Report in 1999 and our reversal on
other grounds, there is little point in our reviewing the
Commission's assessment of then-existing market power of
cable MVPDs. But whatever conclusions are to be drawn
from the new data, it seems clear that in revisiting the
horizontal rules the Commission will have to take account of
the impact of DBS on that market power. Already when the
Third Report was written, DBS could be considered to "pass
every home in the country." Third Report, 14 F.C.C.R. at
19107-08 p 20. The technological and regulatory changes
since then appear only to strengthen petitioners' contention.
See Seventh Annual Report p p 60-82, 140.
With the risk of collusion inadequately substantiated to
support the 30% limit and no attempt to find other anticompetitive behavior, there remains the Commission's alternative ground--that programming choices made "unilaterally" by multiple cable companies, Third Report, 14 F.C.C.R. at
19118-19 p 51; see also id. at 19119 p 53 ("individually"),
might reduce a programmer's "open field" below the 40%
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benchmark. The only support the Commission offered for
regulation based on this possibility was the idea that every
additional chance for a programmer to secure access would
enhance diversity:
[T]he 30% limit serves the salutary purpose of ensuring
that there will be at least 4 MSOs in the marketplace.
The rule thus maximizes the potential number of MSOs
that will purchase programming. With more MSOs making purchasing decisions, this increases the likelihood
that the MSOs will make different programming choices
and a greater variety of media voices will therefore be
available to the public.
Id. p 54. Petitioners challenge the FCC's authority to regulate for this purpose on both constitutional and statutory
grounds.
We have some concern how far such a theory may be
pressed against First Amendment norms. Everything else
being equal, each additional "voice" may be said to enhance
diversity. And in this special context, every additional splintering of the cable industry increases the number of combinations of companies whose acceptance would in the aggregate
lay the foundations for a programmer's viability. But at
some point, surely, the marginal value of such an increment in
"diversity" would not qualify as an "important" governmental
interest. Is moving from 100 possible combinations to 101
"important"? It is not clear to us how a court could determine the point where gaining such an increment is no longer
important. And it would be odd to discover that although a
newspaper that is the only general daily in a metropolitan
area cannot be subjected to a right of reply, see Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), it
could in the name of diversity be forced to self-divide. Certainly the Supreme Court has not gone so far.
We need not face that issue, however, because we conclude
that Congress has not given the Commission authority to
impose, solely on the basis of the "diversity" precept, a limit
that does more than guarantee a programmer two possible
outlets (each of them a market adequate for viability). We
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analyze the agency action under the familiar framework of
Chevron USA, Inc. v. National Resources Defense Council,
Inc., 467 U.S. 837 (1984). If we find (using traditional tools of
statutory interpretation) that Congress has resolved the question, that is the end of the matter. FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000); National Resources Defense Council, Inc. v. Browner, 57 F.3d 1122,
1125 (D.C. Cir. 1995). We must place the statutory language
in context and "interpret the statute 'as a symmetrical and
coherent regulatory scheme.' " Brown & Williamson, 529
U.S. at 133.
We begin with the statutory language. The relevant section requires the FCC to
ensure that no cable operator or group of cable operators
can unfairly impede, either because of the size of any
individual operator or because of joint actions by a group
of operators of sufficient size, the flow of video programming from the video programmer to the consumer.
47 U.S.C. s 533(f)(2)(A).
The language addresses only "unfair[ ]" impediments to the
flow of programming. The word "unfair" is of course extremely vague. Certainly, the action of several firms that is
"joint," in the sense of collusive, may often entail unfairness
of a conventional sort. The statute goes further, plainly
treating exercise of editorial discretion by a single cable
operator as "unfair" simply because that operator is the only
game in town. (And Time Warner I authoritatively determines that the government is constitutionally entitled to
impose limits solely on that ground.) But we cannot see how
the word unfair could plausibly apply to the legitimate, independent editorial choices of multiple MSOs. A broad interpretation is plausible only for actions that impinge at least to
some degree on the interest in competition that lay at the
heart of Congress's concern.6 The Commission's reading of
__________
6 The Commission's economic theory--that cable operators have
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the clause effectively deletes the word "joint" and opens the
door to illimitable restrictions in the name of diversity.
Looking at the statute as a whole does little to support the
FCC's position. The "interrelated interests" of promoting
diversity and fair competition run throughout the 1992 Cable
Act's various provisions. Turner II, 520 U.S. at 189.7 But
despite the duality of interests at work in this section, see
Time Warner I, 211 F.3d at 1319, it is clear from the
structure of the statute that Congress's primary concern in
authorizing ownership limits is "fair" competition. The statute specifies, after all, that these regulations are to be promulgated "[i]n order to enhance effective competition." 47
U.S.C. s 533 (f)(1). In only two of the other sections of the
1992 Cable Act does Congress specify a dominant purpose.8
__________
sion context, supra p. 11)--would seem to apply regardless of any
horizontal limit. Putting various special cases aside, any profitmaximizing firm will have an incentive to lower its costs. In a
market where a cable operator is a monopolist, the resulting benefit
to the firm would be classified as monopoly rents. In a market
where an operator is in competition, it can be expected to pass the
benefits on to its customers. But the FCC has not shown why such
pursuit of lower costs, by the monopolist or the competitive firm, is
by itself "unfair," and the statute allows for regulation only if
unfairness can be shown.
7 The 1992 Cable Act is a wide-ranging statute that includes,
besides the ownership limits, must-carry and leased-access requirements, rate regulation, behavioral prohibitions, and privacy protections. See 1992 Cable Act, 106 Stat. 1460.
8 The leased access provision was amended to add the words "to
promote competition in the delivery of diverse sources of video
programming" to the section's previously stated purpose of assuring
"that the widest possible diversity of information sources are made
available." 1992 Cable Act s 9(a), 106 Stat. at 1484; 47 U.S.C.
s 532(a). The various behavioral rules designed to prevent cable
operators from abusing their market power were passed for the
stated purpose of promoting "the public interest, convenience, and
necessity by increasing competition and diversity in the multichannel video programming market." 1992 Cable Act s 19, 106 Stat. at
1494; 47 U.S.C. s 547.
This statement of purpose supports a reading that sharply
confines the authority to regulate solely in the interest of
diversity.
The FCC points to the statutory findings that the "cable
industry has become highly concentrated" and that "the
potential effects of such concentration are barriers to entry
for new programmers and a reduction in the number of media
voices available to consumers." Third Report, 14 F.C.C.R. at
19118-19 p 51, 1992 Cable Act s 2(a)(4), 106 Stat. at 1460.
But reference to a congressional finding cannot overcome the
clear language and purpose of the actual provision. The
quoted finding stands as little more than support for the
proposition that Congress was concerned with the possibilities
for market failure and the possible impact on new programmers. The legislative history also offers little. Again, the
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fact that Congress's interest in anti-competitive behavior may
have been animated by an interest in preserving diversity
doesn't give the FCC carte blanche to cobble cable operators
in the name of the latter value alone. After all, Congress also
sought to "ensure that cable operators continue to expand,
where economically justified, their capacity," 1992 Cable Act
s 2(b)(3), 106 Stat. at 1463, and it specifically directed the
FCC, in setting the ownership limit, to take into account the
"efficiencies and other benefits that might be gained through
increased ownership or control." 47 U.S.C. s 533(f)(2)(D).
On the record before us, we conclude that the 30% horizontal limit is in excess of statutory authority. While a 60% limit
might be appropriate as necessary to ensure that programmers had an adequate "open field" even in the face of
rejection by the largest company, the present record supports
no more. In addition, the statute allows the Commission to
act prophylactically against the risk of "unfair" conduct by
cable operators that might unduly impede the flow of programming, either by the "joint" actions of two or more
companies or the independent action of a single company of
sufficient size. But the Commission has pointed to nothing in
the record supporting a non-conjectural risk of anticompetitive behavior, either by collusion or other means.
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Accordingly, we reverse and remand with respect to the 30%
rule.
* * *
The FCC presents its 40% vertical limit as advancing the
same interests invoked in support of its statutory authority to
adopt the rule: diversity in programming and fair competition. As with the horizontal rules the FCC must defend the
rules themselves under intermediate scrutiny and justify its
chosen limit as not burdening substantially more speech than
necessary. Far from satisfying this test, the FCC seems to
have plucked the 40% limit out of thin air.
The FCC relies almost exclusively on the congressional
findings that vertical integration in the cable industry could
"make it difficult for non-cable affiliated ... programmers to
secure carriage on vertically integrated cables systems" and
that "vertically integrated program suppliers have the incentive and the ability to favor their affiliated cable operators
... and program distributors." Second Report, 8 F.C.C.R. at
8583 p 41 (citing 1992 Cable Act s 2(a)(5), 106 Stat. at 1460).
Regulatory limits in response to these consequences would
"increase the diversity of voices available to the public."
Second Report, 8 F.C.C.R. at 8583-84 p 42 (citing Senate
Report at 80, reprinted in 1991 U.S.C.C.A.N. at 1213). In
Time Warner I we thought these findings strong enough to
overcome the First Amendment challenge to the relevant
provision of the 1992 Cable Act. In doing so, we held that
such a prophylactic rule was not "rendered unnecessary
merely because preexisting statutes [such as the antitrust
laws and the antidiscrimination provisions of the 1992 Cable
Act] impose behavioral norms." Time Warner I, 211 F.3d at
1322-23. Beyond that we did not assess the appropriateness
of the burden on speech. We upheld no specific vertical
limit--none was before us.
We recognize that in drawing a numerical line an agency
will ultimately indulge in some inescapable residue of arbitrariness; even if 40% is a highly justifiable pick, no one
could expect the Commission to show why it was materially
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better than 39% or 41%. See Missouri Public Service
Comm'n v. FERC, 215 F.3d 1, 5 (D.C. Cir. 2000). But to pass
even the arbitrary and capricious standard, the agency must
at least reveal " 'a rational connection between the facts found
and the choice made.' " Dickson v. Secretary of Defense, 68
F.3d 1396, 1404-05 (D.C. Cir. 1995) (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983). Here the FCC must also meet First Amendment
intermediate scrutiny. Yet it appears to provide nothing but
the conclusion that "we believe that a 40% limit is appropriate
to balance the goals." See Second Report, 8 F.C.C.R. at
8593-95 p 68. What are the conditions that make 50% too
high and 30% too low? How great is the risk presented by
current market conditions? These questions are left unanswered by the Commission's discussion.
The FCC argued before us that no MSO has yet complained that the 40% vertical limit has required it to alter
programming. This is no answer at all, as it says nothing
about plans that the rule may have scuttled. Petitioners
responded that their subsidiaries frequently must juggle their
channel lineups to stay within the cap. Furthermore, it
appears uncontested that AT&T's merger with MediaOne
brings the vertical limits into play. See In the Matter of
Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from MediaOne Group,
Inc. to AT&T Corporation, 15 F.C.C.R. 9816 (2000).
In fairness, the FCC does make an attempt to review some
relevant conditions. See Second Report, 8 F.C.C.R. at 8583-
85 p p 41-45. The FCC cites the House Report's conclusion
that "some" vertically integrated MSOs favor their affiliates
and "may" discriminate against others. Id. at 8583-84 p 42
(citing House Report at 43). But it also notes a report that
none of the top five MSOs "showed a pattern" of favoring
their affiliates. Id. at 8584 p 43. Indeed, the FCC concludes
that "vertical relationships had increased both the quality and
quantity of cable programming services." Id. p 44. But still
it settled on a limit of 40%. There is no effort to link the
numerical limits to the benefits and detriments depicted.
Further, given the pursuit of diversity, one might expect
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some inquiry into whether innovative independent originators
of programming find greater success selling to affiliated or to
unaffiliated programming firms, but there is none.
Quite apart from the numerical limit vel non, petitioners
attack the Commission's refusal to exclude from the vertical
limit cable operators that are subject to effective competition.
The FCC had proposed exempting cable operators who met
the definition of effective competition provided by s 623 of
the Communications Act of 1934. See Implementation of
Sections 11 and 13 of the Cable Television Consumer Protection and Competition Act of 1992, 8 F.C.C.R. 6828, 6862 p 231
(1993) ("First Report"); see also 47 U.S.C. s 543(l )(1) (defining the categories of cable operators that are not subject to
rate regulation under that section).9 Of course our decision
in Time Warner I acknowledged the existence of incentives
__________
9 The term "effective competition" means that--
(A) fewer than 30 percent of the households in the franchise
area subscribe to the cable system;
(B) the franchise area is--
(i) served by at least two unaffiliated multichannel video
programming distributors each of which offers comparable
video programming to at least 50 percent of the households
in the franchise area; and
(ii) the number of households subscribing to programming
services offered by multichannel video programming distributors other than the largest multichannel video programming
distributor exceeds 15 percent of the households in the
franchise area; or
(C) a multichannel video programming distributor operated by
the franchising authority for that franchise area offers video
programming to at least 50 percent of the households in that
franchise area; or
(D) a local exchange carrier or its affiliate (or any multichannel
video programming distributor using the facilities of such carrier or its affiliate) offers video programming services ... in the
franchise area of an unaffiliated cable operator which is providing cable service in that franchise area, but only if the video
programming services so offered in that area are comparable to
to use affiliated programming. 211 F.3d at 1322. For example, even where an unaffiliated supplier offered a better costquality trade-off, a company might be reluctant to ditch or
curtail an inefficient in-house operation because of the impact
on firm executives or other employees, or the resulting
spotlight on management's earlier judgment. But petitioners
argue, quite plausibly, that exposure to competition will have
an impact on a cable company's ability to indulge in favoritism for in-house productions. After all, while reliance on inhouse suppliers offering an inferior price-quality trade-off will
reduce a monopolist's profits, it may threaten a competitive
firm's very survival. This analysis is not foreign to the
Commission, which endorsed it when proposing the exemption:
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We believe that this proposal is appropriate since effective competition will preclude cable operators from exercising the market power which originally justified channel occupancy limits. Where systems face effective
competition, their incentive to favor an affiliated programmer will be replaced by the incentive to provide
programming that is most valued by subscribers.
First Report, 8 F.C.C.R. at 6862 p 231.
The FCC makes two arguments to justify its refusal to
exempt MVPDs that are subject to effective competition.
First, it says that the definition of competition provided by 47
U.S.C. s 543 was "not adopted for this specific purpose" but
rather for relief from rate regulation. See Reconsideration
Order 10 F.C.C.R. at 7379 p 47. Indeed, we have recognized
that one of the ways in which the statutory standard is met
may be surprisingly defective as a mark of real competition.
See Time Warner Entertainment Co., L.P. v. Federal Communications Commission, 56 F.3d 151, 166 (D.C. Cir. 1995)
(MVPDs satisfying subsection (A) of 47 U.S.C. s 543(l )(1)
(low penetration) may do so more as a result of geography
than competition). But the Commission is free to carve out
__________
the video programming services provided by the unaffiliated
cable operator in that area.
47 U.S.C. s 543(l )(1).
subsections that are truly pertinent to competition, as it had
proposed. See First Report, 8 F.C.C.R. at 8662-63 p 232;
Second Report, 8 F.C.C.R. at 8602 p 85.
Of course competition that is adequate to justify dispensing
with rate regulation could still leave an undue likelihood of
improper favoritism for affiliated programmers. But the
possible failure of readily available criteria does not itself
justify the use of so blunt a blade. Congress expressly
directed the Commission to take "particular account of the
market structure..., including the nature and market power
of the local franchise." 47 U.S.C. s 533(f)(2)(C) (emphasis
added). Because competition raises the stakes for a firm that
sacrifices the optimal price-quality trade-off in its acquisition
of programming, the issue seems to trigger the legislative
directive. Yet the Commission seems to ignore its own
conclusions about cable companies' incentives and constraints,
and the dynamics of the programming industry. See First
Report, 8 F.C.C.R. at 6862 p 231. If the criteria of
s 543(l )(1) are unsuitable, the Commission can consider concepts of effective competition that it finds more apt for these
purposes.
Second, the FCC comments that if a competing MVPD
favored its own affiliated programmers, the presence of competition would have no tendency to create room for independent programmers. See Reconsideration Order 10 F.C.C.R
at 7379 p 47. But this theory seems contradicted by the
Commission's own observation, mentioned earlier, that no
vertically integrated MPVD has complained of reaching the
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40% limit. Vertically integrated MVPDs evidently use loads
of independent programming. Further, although cable operators continue to expand their interests in programmers,
"[t]he proportion of vertically integrated channels ... continue[d] to decline" for each of the last two years. Sixth
Annual Report, 15 F.C.C.R. at 1058-59 p 181, Seventh Annual Report p 173 (emphasis added). Even if competing MSOs
filled all of their channels with affiliates' products (as unlikely
as that seems), the Commission nowhere explains why, in the
pursuit of diversity, the independence of competing vertically
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ated programmers. In any event, the Commission's point
here does not respond to the intuition that competition spurs
a firm's search for the best price-quality trade-off.
In its brief the Commission adds the argument that truly
effective competition under s 543(l )(1) existed only for a tiny
fraction of cable systems. Indeed, it said in its Sixth Annual
Report that of the nation's 33,000 cable community units, only
157 satisfy the definition through being in a market offering
more than one wireline MVPD. Sixth Annual Report, 15
F.C.C.R. at 1045-46 p 142. (In the Seventh Annual Report
we learn that now 330, or 1% of the total, meet the competition standard through exposure to another MVPD; in this
report the qualifier "wireline" is absent. See Seventh Annual
Report p 138.) But in determining whether or not the regulations burden substantially more speech than necessary, it is a
weak move to point to the paucity of MVPDs facing competition if, as seems the case, it is easy to exempt them from the
limit.
We find that the FCC has failed to justify its vertical limit
as not burdening substantially more speech than necessary.
Accordingly, we reverse and remand to the FCC for further
consideration.
* * *
We turn, finally, to several aspects of the rules for attributing ownership for purposes of the horizontal and vertical
limits, recently revised by the FCC and challenged by petitioners. See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 14 F.C.C.R.
19014 (1999) ("Attribution Order"). Petitioners suggest that
these rules affect their ability to "speak" to subscribers
because of their connection to the horizontal and vertical
limits. But petitioners' speech rights are implicated only
where their interest allows them to exercise editorial control,
in which case attribution would be proper and it is the
horizontal or vertical limit that constrains speech. The only
effect of the attribution rules where no control is exercised is
to limit the extent of petitioners' investments in a particular
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class of companies. We therefore review the agency actions
under the APA standards, to determine whether they are
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." See 5 U.S.C. s 706(2)(A).
The FCC adopted as its starting point the pre-existing
rules for attributing ownership of broadcast television stations, finding that the purposes of the rules are the same.
See Attribution Order, 14 F.C.C.R. at 19030 p 35; Second
Report 8 F.C.C.R. at 8577-79, 8593-96 p p 30-35, 56-63. Under that standard, attribution is triggered by ownership of 5%
of the voting shares of a company, with various exceptions.
See Attribution of Ownership Interests, 97 FCC 2d 997
(1984). Because the decisions in the Attribution Order
tracked, to a large degree, similar decisions related to the
broadcast attribution rules, the FCC incorporated by reference much of the reasoning from the broadcast orders. See
Attribution Order, 14 F.C.C.R. at 19015-16 p 1.
Petitioners challenge the sufficiency and relevance of the
Commission's evidence in support of the 5% attribution rule
and its failure to adopt an alternative proposed by cable
industry interests. They begin by asserting that the FCC
improperly relied on two studies that were mentioned neither
in the FCC's notice nor in any party's submission. See
Notice of Proposed Rulemaking, 13 F.C.C.R. 12990 (1998).
Although it is true that an agency cannot rest a rule on data
" 'that, [in] critical degree, is known only to the agency,' "
Community Nutrition Institute v. Block, 749 F.2d 50, 57
(D.C. Cir. 1984) (quoting Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973); see also International Union, UAW v. OSHA, 938 F.2d 1310, 1324-35 (D.C.
Cir. 1991) (approving reliance on documents not exposed to
comment if not "vital" to agency's support for rule), obviously
not every cited document is "critical."
Here, although petitioners assert that the studies were the
sole evidence cited by the FCC, the Commission also relied
on a survey, used to support the 1984 broadcast attribution
rules, showing that in widely held corporations, an owner of
5% or more would ordinarily be one of the two or three
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largest shareholders. See Attribution Order, 14 F.C.C.R. at
19034 p 46; Block, 749 F.2d at 58 (1984) (new information
"expanded on and confirmed information"). The earlier rulemaking had inferred that with such ownership a holder of 5%
or more would be able "to potentially affect the outcome of
elective or discretionary decisions and to command the attention of management." Attribution of Ownership Interests, 97
FCC 2d at 1005-06 p 14. This hardly seems implausible.
Presumably an owner of 5% or more typically has enough of
an interest to justify the burden of informing himself about
the company's activities and trying to influence (or supplant)
management, a fact that management would bear in mind in
deciding to whose exhortations it should pay attention. Petitioners have not pointed to any evidence suggesting that the
FCC's survey is no longer accurate, or that the conclusion
they draw from it has been undermined.
Furthermore, in attacking the relevance of the new studies,
the petitioners fail to acknowledge that the FCC sought a
rule that would capture "influence or control," not just control. Attribution Order, 14 F.C.C.R. at 19015-16 p 1 (emphasis added). The Commission specifically noted that a "firm
does not need actual operational control over ... a company
in order to exert influence." Id. at 19030-31 p 36. This
distinction also tends to rebut petitioners' critique of the
Commission's reliance on the Securities and Exchange Commission's requirement that investors report to the SEC when
their holdings exceed 5% of any class of a firm's shares. See
15 U.S.C. s 78m(d)(1). The FCC noted that the purpose of
the SEC's requirement was to alert investors to potential
changes in control, and reasoned that this was similar to its
own purpose in the attribution rules, encompassing not merely control but influence. See Attribution Order, 14 F.C.C.R.
at 19035 p 49 (citing Securities and Exchange Comm'n v.
Savoy Indus., Inc., 587 F.2d 1149 (D.C. Cir. 1978)).
Finally, petitioners contend that it was arbitrary for the
FCC to reject a "control certification" approach, such as it
adopted for partnerships, under which a partner can avoid
attribution if (but only if) it certifies to the absence of certain
relationships that might betoken control. In this argument,
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petitioners make a classic apples-and-oranges mix, since the
bases that they proposed for self-certification, see Attribution
Order at 19024 p 22, are quite different from those adopted by
the Commission for partnerships, see id. at 19038 p 57 n.163.
Even if corporations and partnerships were virtually identical, the Commission would hardly be guilty of selfcontradiction if it rejected certification scheme A for corporations and accepted certification scheme B for partnerships.
In any event, for corporations the Commission rejected a
case-by-case approach on conventional grounds, observing
that a bright-line rule was to be preferred because it "reduces
regulatory costs, provides regulatory certainty, and permits
planning of financial transactions." Id. at 19035 p 48; see
also id. at 19031 p 38. Given an agency's very broad discretion whether to proceed by way of adjudication or rulemaking, see N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267, 294
(1974), and the reasonableness of the 5% criterion, we doubt
there was need to explain further. The Commission did,
however, observe that the certification proposals offered did
"not take into account the variety of ways that an investor
may exert influence or control over a company." Id. at
19030-31 p 36. And it implicitly distinguished its treatment
of partnerships when it said that a limited partner's influence
may not be proportional to equity interest "because the
extent of its power may be modified by contract." Id. at
19039 p 61. Indeed, the Commission's certification rules for
partnerships require voting restrictions that would not normally, and perhaps could not, be paralleled in the corporate
world (such as abnegation of any power to remove the general
partner except under extremely limited circumstances, see id.
at 19038 p 57 n.163). We find the Commission's discussion
adequate.
We also uphold the FCC's adoption of an "equity-and-debt"
rule to capture "nonattributable investments that could carry
the potential for influence." Id. at 19047 p 83. The rule
triggers attribution "to an investor that holds an interest that
exceeds 33% of the total asset value (equity plus debt) of the
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applicable entity." Id. at 19046-47 p 82.10 Petitioners attack
the sufficiency of evidence to support both the rule itself and
the selection of 33% as limit. They observe in particular that
the Commission's own claims seem to depend on combinations of debt and equity with contractual rights. See, e.g., id.
at 19047 p 83. But the Commission explicitly relied on an
earlier rulemaking, see, e.g., id. at 19047 p 83, citing Review
of the Commission's Regulations Governing Attribution of
Broadcast and Cable/MDS Interests, 14 F.C.C.R. 12559
(1999) ("Broadcast Attribution Order"), which in turn relied
on academic literature, see id. at 12589 p 62 nn.132, 134.
Petitioners offer no critique of that literature's relevance, and
it is not our role to launch one on our own. So we must
accept the Commission's basic finding.
Although petitioners independently attack the Commission's selection of 33% as the debt-and-equity limit, we are
constrained in our review by the sketchy character of their
attack on the basic theory. The Commission's choice of 33%
certainly has modest support. It recited the numbers offered
by various parties, which ranged from 10% to 50%, in some
cases with variations dependent on the presence of special
contract provisions. Attribution Order, 14 F.C.C.R. at
19048-49 p p 85-86. Obviously 33% is not far off the median,
but, as the Commission says nothing to evaluate the numbers
recited, that tells us little.
The Commission also cited its own past decisions, saying
that it had used the same percentage for the parallel rule in
its broadcast cross-interest policy, and that there it "does not
__________
10 The Commission often writes as if investors owned the assets
of the companies in which they hold stock or bonds. See, e.g.,
Attribution Order, 14 F.C.C.R. at 19047-48 p 84 n.230. No issue is
made here of how its calculations are to be made, e.g., percentage of
book value, percentage of market capitalization, or some other
method, although the Commission has attempted "clarification" in
the broadcast context by allowing applicants to choose their valuation method. See Review of the Commission's Regulations Governing Attribution of Broadcast and Cable/MDS Interest, MM Docket
No. 94-150, FCC 00-438 (rel. Jan. 19, 2001) p p 26-28 (2001) ("Attribution Clarification Order").
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appear to have had a disruptive effect," id. at 19048-49 p 86,
though without indicating what (if any) assessment it had
made. And it referred to two prior adjudications. Id. (citing
Cleveland Television Corp., 91 FCC 2d 1129 (Rev. Bd. 1982),
aff'd, Cleveland Television Corp. v. Federal Communications
Commission, 732 F.2d 962 (D.C. Cir. 1984), and Roy M.
Speer, 11 F.C.C.R. 18393 (1996)). In Cleveland Television it
had simply held that a one-third preferred stock interest
conferred " 'insufficient incidents of contingent control' " under various policies, Attribution Order, 14 F.C.C.R. at 19048-
49 p 86 (emphasis added). In Roy M. Spear, it relied on
Cleveland Television to impose a 33% ownership on a creditor's purchase option, but deferred establishment of any
general rule. See 11 F.C.C.R. 18393 p 126 n.26. These prior
adjudications provide thin affirmative support for the choice
of 33%, though they at least suggest that the Commission has
not indulged in self-contradiction. But given the absence of a
real probe of the Commission's underlying reasoning for
having the restriction at all, the inevitable difficulty in picking
such a number, and the deference due the Commission, we
cannot find the choice of 33% arbitrary. See Cassell v.
Federal Communications Commission, 154 F.3d 478, 485
(D.C. Cir. 1998).
Petitioners also challenge the Commission's elimination of
an exemption that prevailed in the broadcast attribution rules
at the time the cable attribution rules were promulgated. In
the broadcast context, an otherwise covered minority shareholder in a company with a single majority shareholder was
exempted, on the principle that in such a case the minority
shareholder would ordinarily not be able to direct the activities of the company.11 See Attribution of Ownership Interests, 97 FCC 2d at 1008-09 p 21; Attribution Order, 14
F.C.C.R. at 19044-46 p p 74-81. There were contentions in
the Broadcast Attribution Order proceeding that the majority
shareholder exemption was being used evasively. See 14
F.C.C.R. at 12574-75 p 29. The Commission neither rejected
__________
11 The FCC has since eliminated the single majority owner exemption in the broadcast rules to bring it into conformity with the
cable rules. See Attribution Clarification Order at p p 41-44.
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nor accepted these claims, but retained the exemption. See
id. at p 36. In dispatching the exemption here, the Commission cited only its concern that a minority shareholder might
be able to exercise influence even in these circumstances, the
"lack of a record ... that the exemption should be retained,"
and the fact that no one claimed to be using the exemption.
Attribution Order, 14 F.C.C.R. at 19046 p 81.
The Commission argues here that petitioners lack standing
because they have not shown that they are using the exemption. Again, the FCC disregards the impact the rule can
have on investment plans. Petitioners say that they are
continually reviewing investment opportunities and that they
are constrained by the absence of the single majority exemption. See supra p. 20. This is an actual "injury in fact" that
is "fairly traceable" to the administrative action. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also
Committee for Effective Cellular Rules v. Federal Communications Commission, 53 F.3d 1309, 1315-16 (D.C. Cir. 1995).
And of course the absence of current use is no reason to
delete an exemption. Removal of the exemption is a tightening of the regulatory screws, if perhaps a minor one. It
requires some affirmative justification, cf. State Farm, 463
U.S. at 41-42 (requiring justification for removal of a restriction), yet the Commission effectively offers none. Its "concern" about the possibility of influence would be a basis, if
supported by some finding grounded in experience or reason,
but the Commission made no finding at all. Accordingly,
deletion of the exemption cannot stand.
Finally, petitioners object to one of the seven criteria that a
cable operator must satisfy in order to be exempt from
attribution of limited partnership. The general rule is that
any partnership interest, no matter how small, leads to
attribution, Attribution Order, 14 F.C.C.R. at 19039-40 p 61,
but a limited partner can secure exemption if it certifies
compliance with certain criteria intended to ensure that the
partner "will not be materially involved in the media management and operations of the partnership." Id. The Commission interprets one of these criteria to bar exemption when a
limited partner that is a vertically integrated MSO also sells
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programming to the partnership. See id. at 19055 p 106.
This criterion applies even though the limited partner, to
achieve exemption, must have certified that it does not "communicate with the licensee or general partners on matters
pertaining to the day-to-day operations of its videoprogramming business." Id. at 19040-41 p 64.
We agree with petitioners that the no-sale criterion bears
no rational relation to the goal, as the Commission has drawn
no connection between the sale of programming and the
ability of a limited partner to control programming choices.
Of course a programmer might secure contract terms giving
it some control over a partnership's programming choices,
but, given the independent criterion barring even communications on the video-programming business, see Attribution
Order, 14 F.C.C.R. at 19040-41 p 64, exercise of that power
would seem to be barred. Even if it weren't, the bargaining
opportunity would depend on the desirability of the partner's
programming, not on its status as a partner. The FCC does
not even offer a hypothetical to the contrary.
* * *
To summarize, we reverse and remand the horizontal and
vertical limits, including the refusal to exempt cable operators
subject to effective competition from the vertical limits, for
further proceedings. We also reverse and remand the elimination of the majority shareholder exception and the prohibition on sale of programming by an insulated limited partner.
We uphold the basic 5% attribution rule and the creation of a
33% equity-and-debt rule.
So ordered.
USCA Case #99-1522 Document #579773 Filed: 03/02/2001 Page 31 of 31 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_24-cv-02173/USCOURTS-azd-2_24-cv-02173-0/pdf.json | [
[
"Schola Incorporated",
"Defendant"
],
[
"Ajay Suresh",
"Plaintiff"
]
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ajay Suresh,
Plaintiff,
v.
Schola Incorporated,
Defendant.
No. CV-24-02173-PHX-KML
ORDER
Plaintiff Ajay Suresh filed this copyright action on August 23, 2024. (Doc. 1.) The
court entered an order directing the Clerk of Court to dismiss this case on November 29,
2024, if Suresh had not filed proof of service by that date. Suresh did not file proof of
service by the deadline. On December 4, 2024, the Clerk of Court dismissed the case. (Doc.
11.) On December 11, 2024, Suresh filed a “motion to reinstate.” (Doc. 13.) That motion
claims defendant Schola, Inc., was served on November 20, 2024. (Doc. 13 at 2.) Suresh
states an “oversight in the course of diligent efforts to effectuate service” resulted in the
proof of service not being filed. (Doc. 13 at 2.)
Service of process may have been accomplished before the deadline, plaintiff filed
his motion one week after the case was closed, and the case was filed not long ago.
Therefore, reopening is merited. See Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th
Cir. 2011) (noting “district court enjoys considerable discretion in granting or denying” a
motion to amend the judgment).
Accordingly,
Case 2:24-cv-02173-KML Document 14 Filed 12/19/24 Page 1 of 2
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IT IS ORDERED the Motion (Doc. 13) is GRANTED. The Clerk of Court shall
reopen this case.
IT IS FURTHER ORDERED plaintiff shall file the proof of service within three
days of this order.
IT IS FURTHER ORDERED if no response to the complaint is filed by January
22, 2025, plaintiff shall apply for entry of default no later than January 24, 2025. Plaintiff
shall file a motion for default judgment within seven days of the entry of defendant’s
default.
Dated this 18th day of December, 2024.
Case 2:24-cv-02173-KML Document 14 Filed 12/19/24 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca3-14-02806/USCOURTS-ca3-14-02806-0/pdf.json | [
[
"County of Hudson",
"Appellee"
],
[
"District Attorney Hudson County",
"Not Party"
],
[
"Governor of New Jersey",
"Not Party"
],
[
"Governor of New York",
"Not Party"
],
[
"Hudson County Correctional Center",
"Appellee"
],
[
"Shawn Southerland",
"Appellant"
],
[
"Warden Hudson County Correctional Center",
"Appellee"
]
] | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-2806
___________
SHAWN SOUTHERLAND,
Appellant
v.
COUNTY OF HUDSON; WARDEN HUDSON COUNTY CORRECTIONAL
CENTER; HUDSON COUNTY CORRECTIONAL FACILITY;
GOVERNOR OF NEW JERSEY; GOVERNOR OF NEW YORK; DISTRICT
ATTORNEY HUDSON COUNTY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-10-cv-03563)
District Judge: Honorable Dickinson R. Debevoise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2015
Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges
(Opinion filed: January 29, 2015)
___________
OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Case: 14-2806 Document: 003111861624 Page: 1 Date Filed: 01/29/2015
2
Pro se appellant Shawn Southerland, a New Jersey state prisoner, appeals the
District Court’s order granting summary judgment to the defendants and denying his
motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 and
exercise a plenary standard of review. See Camp v. Brennan, 219 F.3d 279, 280 (3d Cir.
2000). For the reasons detailed below, we will affirm the District Court’s judgment.
This case is now before us for the second time. Southerland initiated the action in
2010, filing a complaint raising numerous challenges to the conditions of his confinement
in the Hudson County Correctional Center (HCCC). In 2012, after Southerland had twice
amended his complaint, the District Court dismissed the complaint sua sponte for failure
to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Southerland appealed, and we affirmed the District Court’s dismissal of each of
Southerland’s claims, with one exception. We ruled that the District Court had erred in
dismissing Southerland’s claim that his confinement in the C-5-East segregation
cellblock from June 11, 2010, to October 23, 2010, was unconstitutional. Southerland v.
Cnty. of Hudson, 523 F. App’x 919, 921-22 (3d Cir. 2013) (not precedential). We
concluded that, by alleging that he had been confined to his cell, which he shared with
another inmate, for up to 23 hours a day for a four-month period, Southerland — who at
the time was a pretrial detainee awaiting trial on first-degree murder charges — had
stated a claim that his pretrial confinement constituted “punishment” in contravention of
the Due Process Clause. Id. at 921-22. We thus remanded to the District Court for
further consideration of this claim.
Case: 14-2806 Document: 003111861624 Page: 2 Date Filed: 01/29/2015
3
Before the District Court, the defendants filed a motion to dismiss, or, in the
alternative, for summary judgment, arguing both that the conditions to which Southerland
was subjected did not amount to punishment and that Southerland had failed to exhaust
his administrative remedies. Southerland also moved for summary judgment, claiming
that he was entitled to judgment on the merits. The District Court construed the
defendants’ motion as seeking summary judgment and granted judgment in their favor on
the ground that Southerland had failed to exhaust his claim. Southerland then filed a
timely notice of appeal to this Court.
We agree with the District Court’s disposition of this case. As the District Court
emphasized, a prisoner may not bring a lawsuit “with respect to prison conditions under
section 1983 of this title . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Section 1997e mandates “proper exhaustion”; thus, a
“procedurally defective administrative grievance or appeal” does not satisfy the
mandatory exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).
“[T]he determination whether a prisoner has ‘properly’ exhausted a claim . . . is made by
evaluating the prisoner’s compliance with the prison’s administrative regulations
governing inmate grievances, and the waiver, if any, of such regulations by prison
officials.” Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). Exhaustion under § 1997e
is not subject to a “futility exception.” Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).
Southerland objects to the District Court’s exhaustion ruling on two grounds.
First, he argues that he filed a grievance, in accordance with the HCCC’s procedures, on
Case: 14-2806 Document: 003111861624 Page: 3 Date Filed: 01/29/2015
4
December 30, 2010. However, the District Court rightly concluded that this grievance
concerned a temporary lockdown caused by some unnamed inmate’s misbehavior, rather
than the regular conditions in the C-5-East segregation cellblock. Indeed, this lockdown
occurred at the end of December 2010, while in this case, Southerland complains about
the conditions from June 11, 2010, to October 23, 2010. Thus, as the District Court held,
this grievance did not give the HCCC “an opportunity to correct its own mistakes with
respect to the programs it administers before it is haled into federal court,” Woodford,
548 U.S. at 89, and does not serve to exhaust Southerland’s claim.1
Second, Southerland argues that he wrote a letter to the New Jersey Office of the
Corrections Ombudsman on August 8, 2010, that expressly complained about his
restrictive confinement during the relevant period. However, the HCCC’s grievance
procedure requires a grievance to be submitted to the prison’s ombudsman, who logs the
grievance and then forwards it to the appropriate unit manager for disposition. Thus,
Southerland submitted this grievance to the wrong office, and “[t]o exhaust remedies, a
prisoner must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
1 On appeal, Southerland argues that HCCC’s unit manager failed to respond to this
grievance, and that this failure to respond rendered the grievance procedure unavailable.
However, Southerland did not raise this argument before the District Court, and we will
not address it for the first time on appeal. See, e.g., C.H. v. Cape Henlopen Sch. Dist.,
606 F.3d 59, 73 (3d Cir. 2010). Moreover, we note that, under HCCC’s grievance
procedure, if the unit manager did not respond to his grievance within five days, the onus
was on Southerland to request a meeting with the unit manager.
Case: 14-2806 Document: 003111861624 Page: 4 Date Filed: 01/29/2015
5
Thus, we likewise agree with the District Court that Southerland did not exhaust his
administrative remedies through this letter. See Small v. Camden Cnty., 728 F.3d 265,
273 (3d Cir. 2013) (concluding that inmate did not exhaust remedies by sending letters
“to individuals outside of prison administration”); see also Acosta v. U.S. Marshals Serv.,
445 F.3d 509, 512 (1st Cir. 2006) (holding prisoner failed to exhaust claim when he sent
grievance to the improper person).2
Because Southerland failed to exhaust his administrative remedies, the District
Court did not err in granting the defendants’ motion for summary judgment and denying
Southerland’s cross-motion. See generally 42 U.S.C. § 1997e(a). We will thus affirm
the District Court’s judgment.
2 While it appears that the New Jersey Office of the Corrections Ombudsman forwarded
Southerland’s letter to the HCCC’s director, this does not help Southerland here. First,
HCCC’s director was not the correct grievance recipient; as noted above, the grievance
was required to be directed first to the ombudsman and unit manager. Thus, even after
being forwarded, the complaint was not filed “in the place . . . the prison’s administrative
rules require.” Pozo, 286 F.3d at 1025. Moreover, the undisputed evidence reveals that
the HCCC never logged the letter as a grievance or considered it on its merits. Therefore,
this is not a case where the HCCC can be said to have waived compliance with its
procedures. Cf. Camp, 219 F.3d at 281 (concluding that exhaustion requirement was
satisfied when, although grievance was sent to the wrong office, the ultimate
administrative authority fully examined the grievance on the merits).
Case: 14-2806 Document: 003111861624 Page: 5 Date Filed: 01/29/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_16-cv-02660/USCOURTS-cand-4_16-cv-02660-0/pdf.json | [
[
"Eric Lankenau-Ray",
"Plaintiff"
],
[
"Mars, Inc.",
"Defendant"
],
[
"Carmen Vargas",
"Plaintiff"
]
] | 1
2
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ERIC LANKENAU-RAY and CARMEN
VARGAS, Individually And On Behalf Of All
Others Similarly Situated,
Plaintiffs,
v.
MARS, INC.,
Defendant.
Case No.: 4:16-cv-2660-YGR
ORDER SETTING BRIEFING SCHEDULE AND
CONTINUING CASE MANAGEMENT
CONFERENCE
Dkt. No. 18
The Court is in receipt of the parties’ Stipulation regarding an extension of their briefing
schedule on Defendant’s Motion to Dismiss and the case management conference currently set
for August 22, 2016. (Dkt. No. 18.) Pursuant to the parties’ stipulation, the Court ORDERS as
follows:
1. Defendant shall file its Motion to Dismiss on or before August 5, 2016;
2. Plaintiffs shall file their Opposition to the Motion to Dismiss or an Amended Complaint
by September 19, 2016;
3. If Plaintiffs file an Opposition to the Motion to Dismiss, Defendant shall file its Reply in
support of the Motion to Dismiss by September 26, 2016. If Plaintiffs file an Amended
Complaint, Defendants shall have at least the time provided for by the Federal Rules of
Civil Procedure to respond and the Parties may negotiate a revised briefing schedule.
4. The case management conference currently set for August 22, 2016 is CONTINUED to
October 17, 2016, at 2:00 p.m. in Courtroom 1, 1301 Clay Street, Oakland, California.
The parties shall engage in a Rule 26(f) Conference by September 26, 2016, and shall
Case 4:16-cv-02660-YGR Document 19 Filed 07/29/16 Page 1 of 2
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file the required ADR Certification and ADR Selection Form by September 26, 2016,
and shall submit a joint case management statement by October 10, 2016.
In light of the foregoing, the Court does not find the additional measure of a stay to be
warranted.
IT IS SO ORDERED.
This terminates Docket No. 18.
Dated: July 29, 2016 __________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT JUDGE
Case 4:16-cv-02660-YGR Document 19 Filed 07/29/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-01373/USCOURTS-caed-1_06-cv-01373-3/pdf.json | [
[
"Jeff Haworth",
"Plaintiff"
],
[
"Mauna Patel",
"Defendant"
],
[
"Suryakant Patel",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JEFF HAWORTH, CASE NO. 1:06-cv-01373 LJO GSA
Plaintiff, ORDER AFTER SETTLEMENT
vs.
SURYAKANT PATEL and
MAUNA PATEL,
Defendants.
____________________________/
The parties have informed this Court that settlement has been reached. Pursuant to this Court’s
Local Rule 16-160, this Court ORDERS the parties, no later than March 11, 2008, to file a stipulation
and order to dismiss this action in its entirety.
This Court VACATES all pending court dates and matters, including the jury trial scheduled for
September 8, 2008.
Failure to comply with this order may be grounds for the imposition of sanctions on counsel or
parties who contributed to violation of this order. See Local Rule 16-160 and Local Rule 16-272.
IT IS SO ORDERED.
Dated: February 20, 2008 /s/ Gary S. Austin
60kij8 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-01373-GSA Document 34 Filed 02/20/08 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-10-01077/USCOURTS-ca10-10-01077-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Timothy Doyle Young",
"Appellant"
]
] | FILED
United States Court of Appeals
Tenth Circuit
April 22, 2010
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
TIMOTHY DOYLE YOUNG,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 10-1077
(D.C. No.1:09-CV-02999-ZLW)
ORDER
Appellant’s motion to voluntarily dismiss this matter is granted. 10th Cir. R.
27.3(A)(9).
A copy of this order shall stand as and for the mandate of the court.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
Appellate Case: 10-1077 Document: 01018407087 Date Filed: 04/22/2010 Page: 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca3-07-03762/USCOURTS-ca3-07-03762-0/pdf.json | [
[
"Rohan Reid",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3762
____________
UNITED STATES OF AMERICA
v.
ROHAN REID,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00205)
District Judge: Honorable A. Richard Caputo
____________
Submitted Under Third Circuit LAR 34.1(a)
July 2, 2008
Before: RENDELL, SMITH and FISHER, Circuit Judges.
(Filed: August 5, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Defendant Rohan Reid violated the general conditions of his two-year term of
supervised release. The District Court sentenced Reid to 12 months’ incarceration for the
Case: 07-3762 Document: 00311999884 Page: 1 Date Filed: 08/05/2008
2
violations. Reid appeals from the judgment of sentence. For the reasons set forth below,
we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On March 8, 2005, Reid was sentenced by the District Court to 27 months’
incarceration and two years’ supervised release for possession with intent to distribute
more than five grams of cocaine base. Reid’s term of supervised release commenced on
March 24, 2006. In November 2006, Reid was charged with two separate counts of
driving under the influence. On January 17, 2007, Reid was arrested for possession with
intent to distribute more than five grams of cocaine base. At a hearing on the
Government’s petition to revoke his supervised release, Reid admitted guilt to the above
violations. The District Court determined that the applicable Sentencing Guidelines range
for the supervised release violations was 12 to 18 months’ incarceration. Following
revocation of supervised release, the District Court sentenced Reid to the advisory
Guidelines minimum of 12 months to be served consecutively to the 63-month sentence
he was then serving for a separate federal drug offense.
During the hearing, Reid’s counsel urged the District Court to apply his 12-month
sentence concurrently to his 63-month sentence. The District Court prompted Reid’s
Case: 07-3762 Document: 00311999884 Page: 2 Date Filed: 08/05/2008
3
counsel to explain the rationale for applying the sentence concurrently. Reid’s counsel
noted that Reid had participated in substance abuse programs at the detention center and
in filming a cable television video that encouraged young individuals to avoid gang
activity. Reid’s counsel next testified to a positive change in Reid’s demeanor and
character. Reid’s counsel also suggested that Reid may have intentionally violated the
terms of his supervised release in order to seek the safety of custody, after having been
the target of one or more violent attacks since his initial release.
The District Court then asked for the Government’s response. The Government
recommended a consecutive sentence, noting that Reid committed three violations within
one year of commencing supervised release and that the District Court had sentenced
Reid below the bottom of the advisory Guidelines range for his initial offense.
In explaining its decision, the District Court noted that it had given Reid a “break”
on his original sentence. The District Court found that Reid had demonstrated an inability
to adjust to supervised release, noting that he had gotten into trouble shortly after his
release and in a “major way” with respect to his drug violation. Thereafter the District
Court stated that it believed it “appropriate” to apply Reid’s sentence consecutively, while
acknowledging that Reid’s counsel’s comments were “very astute and very insightful.”
The District Court stated that “I don’t think I have any choice frankly but to sentence you
consecutively.” Elsewhere, the District Court explained that it applied Reid’s sentence
consecutively because he committed the same offense for which he was originally
Case: 07-3762 Document: 00311999884 Page: 3 Date Filed: 08/05/2008
4
incarcerated, stating that “[t]hat’s why I’m making it consecutive, that’s the reason, and I
think it’s the only thing that makes sense.” The District Court concluded that,
considering the Guidelines and “the factors contained in Title 18, U.S.C., Section
3553(a)[,] . . . this [is] an appropriate and reasonable sentence.” The District Court
concluded by sentencing Reid to the advisory Guidelines minimum of 12 months’
incarceration.
This timely appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review sentences imposed for violations of supervised release for
reasonableness under the statutory sentencing factors set forth in 18 U.S.C. § 3553(a).
United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). Our review of sentences is
“highly deferential,” and the challenging party bears the burden of proof in demonstrating
unreasonableness. Id. at 543.
III.
Reid appeals the District Court’s decision to apply his 12-month sentence for
violating the general terms of his supervised release consecutively, rather than
concurrently, to a sentence he is currently serving. In United States v. Dees, 467 F.3d 847
(3d Cir. 2006), we held that a district court had discretion to impose consecutive
sentences upon revocation of concurrent terms of supervised release based upon the same
Case: 07-3762 Document: 00311999884 Page: 4 Date Filed: 08/05/2008
5
violation conduct. Id. at 852. A fortiori, pursuant to 18 U.S.C. § 3584(a), a district court
has the discretion to impose a sentence for a violation, which is consecutive to an
undischarged term of imprisonment for some entirely separate convicted offense. See
also U.S.S.G. § 7B1.3(f) (advising imposition of sentence for supervised release violation
to run consecutive to any sentence defendant is then serving).
Nonetheless, Reid challenges the reasonableness of his consecutive sentence on
three grounds. First, he argues that the District Court considered impermissible factors in
imposing its sentence. Specifically, he argues that 18 U.S.C. § 3583(e)(3) prevents courts
that are imposing sentences for supervised release violations from considering factors set
forth in § 3553(a)(2)(A) (pertaining to the punitive purposes of sentencing) and
§ 3553(a)(3) (pertaining to the “kinds of sentences available”). Reid notes that the
District Court imposed a consecutive sentence after voicing its consideration of the
“sentencing factors set forth in 18 U.S.C. § 3553(a),” without the necessary qualification
purportedly required by § 3583(e)(3). Without deciding whether § 3583(e)(3) forbids
consideration of § 3553(a)(2)(A), (3) as a matter of law, see Bungar, 478 F.3d at 543 n.2,
we find no indication in the record that the District Court considered an impermissible
factor in reaching its decision. While the District Court did not explicitly state which
§ 3553(a) factors it considered in contradistinction with which ones it did not, “[t]here are
no magic words that a district judge must invoke when sentencing, as long as the record
shows that the court considered the § 3553(a) factors and any sentencing grounds
Case: 07-3762 Document: 00311999884 Page: 5 Date Filed: 08/05/2008
6
properly raised by the parties which have recognized legal merit and factual support in the
record.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (internal quotation
marks and citation omitted). Reid, therefore, reads too much into the District Court’s
reference to § 3553(a) as necessarily revealing that it considered any purportedly
forbidden factors.
Reid next argues that the District Court improperly imposed a consecutive
sentence under the mistaken belief that it was compelled to do so, citing a solitary
comment that “I don’t think I have any choice frankly but to sentence you consecutively.”
The record clearly indicates, however, that the District Court gave “meaningful
consideration” to the relevant § 3553(a) factors in reaching its conclusion. Bungar, 478
F.3d at 543. The District Court noted its leniency on Reid’s initial sentence, Reid’s
breach of trust, and the number and frequency of violations, considerations that would
have been superfluous had the District Court believed that it was compelled to impose a
consecutive sentence.
Finally, Reid argues that the District Court improperly applied a “reasonableness”
standard in determining the appropriate sentence, on the theory that reasonableness can
only be an appellate standard. This argument is unavailing. Never have we forbidden a
district court from characterizing its own sentence as reasonable under some (incorrect)
notion that appellate courts have a monopoly over using the word “reasonable.”
Case: 07-3762 Document: 00311999884 Page: 6 Date Filed: 08/05/2008
7
IV.
For the forgoing reasons, we will affirm the judgment of the District Court.
Case: 07-3762 Document: 00311999884 Page: 7 Date Filed: 08/05/2008 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-2_15-cv-00143/USCOURTS-ared-2_15-cv-00143-6/pdf.json | [
[
"Jody Akins",
"Defendant"
],
[
"Mark Anthony Bell",
"Plaintiff"
],
[
"Brandon Brown",
"Defendant"
],
[
"Phil Reynolds",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
MARK ANTHONY BELL PLAINTIFF
v. No. 2:15-cv-143-DPM
PHIL REYNOLDS, Sheriff, Augusta
County Jail; JODY AKINS, Jail Administration,
Augusta County Jail; and BRANDON BROWN,
Jail Officer, Augusta County Jail
JUDGMENT
DEFENDANTS
Bell's medical care claims against Phil Reynolds and Jody Akins are
dismissed with prejudice. Bell's grievance claim against Reynolds, and all of
Bell's claims against Brandon Brown, are dismissed without prejudice.
So Ordered.
D.P. Marshall~C/
United States District Judge
Case 2:15-cv-00143-DPM Document 32 Filed 08/17/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-14-03615/USCOURTS-ca8-14-03615-0/pdf.json | [
[
"Antonio Lamont Rice",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3615
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antonio Lamont Rice
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: December 14, 2015
Filed: February 11, 2016
____________
Before MURPHY, BENTON, and KELLY, Circuit Judges.
____________
MURPHY, Circuit Judge.
Antonio Rice pled guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). The district court1
sentenced Rice to 110 months in prison
based in part on its conclusion that his prior conviction for second degree battery was
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
Appellate Case: 14-3615 Page: 1 Date Filed: 02/11/2016 Entry ID: 4365797
a crime of violence under the sentencing guidelines. Rice appeals his sentence, and
we affirm.
Rice was arrested in 2013 and later pled guilty to being a felon in possession
of a firearm. At sentencing the district court calculated a base offense level of 22
under § 2K2.1 of the guidelines after concluding that Rice had a prior felony
conviction for a crime of violence, specifically a 2006 felony conviction of second
degree battery in Arkansas. After adjusting Rice's offense level, the court calculated
an advisory guideline range of 92 to 115 months and sentenced him to 110 months.
Rice appeals, arguing that the district court erred while calculating his base offense
level because his prior battery conviction was not a crime of violence.
We review de novo a district court's interpretation and application of the
guidelines. See United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011). Section
2K2.1 of the guidelines provides that courts should apply a base offense level of 22
for a conviction of unlawful possession of a firearm if, among other things, the
defendant had previously "sustain[ed] one felony conviction of either a crime of
violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(3). The guidelines
define "crime of violence" as any federal or state offense punishable by more than one
year imprisonment that either "(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or (2) is burglary of a
dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another." Id.
§ 4B1.2. The question thus is whether Rice's felony battery conviction was for a
crime of violence under the guidelines, as the district court concluded.
To determine whether a prior conviction was for a crime of violence, "we apply
a categorical approach, looking to the elements of the offense as defined in the . . .
statute of conviction rather than to the facts underlying the defendant's prior
conviction." United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012) (alteration in
-2-
Appellate Case: 14-3615 Page: 2 Date Filed: 02/11/2016 Entry ID: 4365797
original). If the statute of conviction is divisible in that it encompasses multiple
crimes, some of which are crimes of violence and some of which are not, we apply a
modified categorical approach to “look at the charging document, plea colloquy, and
comparable judicial records" for determining which part of the statute the defendant
violated. Id. at 794–95. We then determine whether a violation of that statutory
subpart is a crime of violence. See id. at 795. Here, the Arkansas second degree
battery statute is divisible, id., and the district court correctly applied the modified
categorical approach to determine that Rice was convicted under subsection (a)(4) of
that statute. The issue is therefore whether a violation of that subsection is a crime of
violence. Since the violation "has as an element the use, attempted use, or threatened
use of physical force against the person of another," U.S.S.G. § 4B1.2, we conclude
that it was a crime of violence.
Subsection (a)(4) provides that a person is guilty of second degree battery if he
"intentionally or knowingly, without legal justification, causes physical injury to one
he knows to be” a law enforcement officer, a firefighter, a correctional facility
employee, a school employee, an elderly person, a young child, a state officer or
employee, a healthcare provider, or incompetent. Ark. Code Ann. § 5-13-202 (2006).
The Supreme Court recently held in United States v. Castleman, 134 S. Ct. 1405
(2014), that a similarly worded statute included the use of physical force as an element
under 18 U.S.C. § 921(a)(33)(A)(ii). In Castleman, the defendant had been convicted
of "intentionally or knowingly caus[ing] bodily injury" to his child's mother in
violation of Tennessee law. Castleman, 134 S. Ct. at 1414. The Court held that this
conviction included the use of physical force as an element because "[i]t is impossible
to cause bodily injury without applying force." Id. at 1415.
Here, as in Castleman, Rice had been convicted of "intentionally or knowingly
. . . caus[ing] physical injury"2
to another person. Ark. Code Ann. § 5-13-202 (2006).
2
"Physical injury" under Arkansas law means "(A) Impairment of physical
condition; (B) Infliction of substantial pain; or (C) Infliction of bruising, swelling, or
-3-
Appellate Case: 14-3615 Page: 3 Date Filed: 02/11/2016 Entry ID: 4365797
His offense of conviction therefore includes the use of physical force as an element.
See Castleman, 134 S. Ct. at 1415. Castleman does not end our analysis, however,
because the Court held there that the physical force requirement of § 921(a)(33)(A)(ii)
could be "satisfied by even the slightest offensive touching." Id. at 1410. By contrast,
physical force under the guidelines refers specifically to "violent force," meaning
"force capable of causing physical pain or injury to another person." United States v.
Williams, 690 F.3d 1056, 1067 (8th Cir. 2012) (emphasis omitted). On the record
here, we conclude that Rice's conviction includes the use of violent force as an
element "since it is impossible to cause bodily injury without using force 'capable of'
producing that result." Castleman, 134 S. Ct. at 1416–17 (Scalia, J., concurring).
Rice argues that a person can cause an injury without using physical force, for
example, by offering his victim a poisoned drink. The circuit courts that have
considered whether a person uses physical force in causing an injury through indirect
means such as poisoning have reached differing conclusions. See, e.g., Chrzanoski
v. Ashcroft, 327 F.3d 188, 194–96 (2d Cir. 2003); United States v. Perez-Vargas, 414
F.3d 1282, 1285–87 (10th Cir. 2005); compare United States v. Anderson, 695 F.3d
390, 399–401 (6th Cir. 2012); De Leon Castellanos v. Holder, 652 F.3d 762, 764–67
(7th Cir. 2011). We believe that Castleman resolves the question before our court,
however, because there the Court held that even though the act of poisoning a drink
does not involve physical force, "the act of employing poison knowingly as a device
to cause physical harm" does. Castleman, 134 S. Ct. at 1415. The Court explained,
"[t]hat the harm occurs indirectly, rather than directly (as with a kick or punch), does
not matter," because otherwise "one could say that pulling the trigger on a gun is not
a 'use of force' because it is the bullet, not the trigger, that actually strikes the victim."
Id.
visible marks associated with physical trauma." Ark. Code Ann. § 5-1-102 (2006).
This is similar to the definition of "bodily injury" under Tennessee law which the
Castleman Court concluded "necessitate[d] [the use of] force." See Castleman, 134
S. Ct. at 1414.
-4-
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On the record here, we therefore conclude that Rice's battery conviction was for
a crime of violence and that the district court correctly calculated his base offense
level under § 2K2.1 of the guidelines. Accordingly, we affirm the judgment of the
district court.
KELLY, Circuit Judge, dissenting.
Rice’s base offense level was calculated pursuant to USSG § 2K2.1(a)(3)(B),
based on the assumption that he had previously committed a crime of violence. An
offense is a “crime of violence” if it “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1).
Relying on the definition of “physical force” in the context of the Armed Career
Criminal Act, Johnson v. United States, 559 U.S. 133 (2010), we have said that
“[p]hysical force” as used in § 4B1.2(a)(1) refers to “violent force.” United States v.
Williams, 690 F.3d 1056, 1067–68 (8th Cir. 2012).
By contrast, the Supreme Court’s decision in Castleman involved the definition
of “a misdemeanor crime of domestic violence” in 18 U.S.C. § 922(g)(9). United
States v. Castleman 134 S. Ct. 1405, 1408 (2014). Like “crime of violence” in
§ 4B1.2(a)(1), the term “misdemeanor crime of domestic violence” is defined to
include offenses that have, “as an element, the use or attempted use of physical force.”
18 U.S.C. § 921(a)(33)(A)(ii). But Castleman held that in the context of misdemeanor
domestic violence, “physical force” must be defined more broadly, to encompass not
just “violent force” but also the common-law meaning of “force” – a meaning that
included “even the slightest offensive touching.” Castleman, 134 S. Ct. at 1410–13
(quoting Johnson, 559 U.S. at 139). The Court explained that the word “‘violence’
standing alone ‘connotes a substantial degree of force,’” but domestic violence is not
just a type of “violence” but rather “a term of art encompassing acts that one might not
characterize as ‘violent’ in a nondomestic context.” Id. at 1411 (quoting Johnson, 559
U.S. at 140). Castleman’s conclusion that causing bodily injury required the
application of physical force was based on this broader definition of “physical force,”
-5-
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as the Court repeatedly emphasized. See, e.g., id. at 1415 (“It is impossible to cause
bodily injury without applying force in the common-law sense.” (emphasis added));
id. at 1414 (“[T]he common-law concept of ‘force’ encompasses even its indirect
application.” (emphasis added)).
This case, on the other hand, involves the definition of “crime of violence” in
USSG § 4B1.2(a)(1). The question at the heart of the case, then, is whether
intentionally or knowingly causing physical or bodily injury to another, as Arkansas
Code Annotated § 5-13-202(a)(4) requires, necessarily involves the use, threatened
use, or attempted use of violent force by the defendant. This question could not have
been implicitly resolved by Castleman, for the majority opinion there explicitly
reserved it. Castleman, 134 S. Ct. 1405, 1414 (2014) (“Justice SCALIA’s
concurrence suggests that [bodily injury] necessitate[s] violent force, under Johnson’s
definition of that phrase. But whether or not that is so – a question we do not decide –
these forms of injury do necessitate force in the common-law sense.” (emphasis
added) (citation omitted)).3
A number of courts and judges, including a clear plurality of the courts of
appeals, have concluded that a person may cause physical or bodily injury without
using violent force. Whyte v. Lynch, 807 F.3d 463, 469–72 (1st Cir. 2015); United
States v. Torres-Miguel, 701 F.3d 165, 168–69 (4th Cir. 2012); United States v.
Villegas-Hernandez, 468 F.3d 874, 880–82 (5th Cir. 2006); United States v. PerezVargas, 414 F.3d 1282, 1286–87 (10th Cir. 2005); Chrzanoski v. Ashcroft, 327 F.3d
188, 196 (2d Cir. 2003); United States v. Fischer, 641 F.3d 1006, 1010–11 (8th Cir.
2011) (Colloton, J., concurring); United States v. Anderson, 695 F.3d 390, 404–05
(6th Cir. 2012) (White, J., concurring). In my view, they are correct. A person could,
for example, direct a firefighter acting in the line of duty to drive towards a bridge at
3
See also id. at 1413 (“Whether or not the causation of bodily injury necessarily
entails violent force – a question we do not reach – mere offensive touching does
not.” (emphasis added)).
-6-
Appellate Case: 14-3615 Page: 6 Date Filed: 02/11/2016 Entry ID: 4365797
night, knowing that it was out. Or he might cancel an incompetent individual’s insulin
prescription, knowing her to be severely diabetic. Or he could, on finding out that a
60-year-old was going skydiving, suggest that she use a parachute that he knew was
defective. Each of these examples would qualify as a violation of § 5-13-202(a)(4),
but none could reasonably be described as involving the use, attempted use, or
threatened use of violent force, because none involves a “substantial degree of force.”
Castleman, 134 S. Ct. at 1411 (quoting Johnson, 559 U.S. at 140). “[T]he ordinary
meaning of [a ‘crime of violence’] . . . suggests a category of violent, active crimes”
quite unlike the examples just given. Id. at 1410 n.3 (second alteration and ellipsis in
original) (quoting Johnson, 559 U.S. at 140).4
Because I believe it is possible to violate § 5-13-202(a)(4) without using violent
force, I conclude that Rice’s conviction under that statute does not qualify as a crime
of violence as that term is defined in § 4B1.2(a)(1). For that reason, I respectfully
dissent.
______________________________
4
United States v. Salido-Rosas, 662 F.3d 1254, 1256–57 (8th Cir. 2011), does
not compel a contrary conclusion. Although analyzing the definition of the “use of
force” clause found in application note 1(B)(iii) of section 2L1.2 of the United States
Sentencing Guidelines, Salido-Rosas based its conclusions at least in part on the
analysis of the residual clause of the Armed Career Criminal Act in James v. United
States, 550 U.S. 192, 208 (2007) – an analysis that has since been rejected in Johnson
v. United States, 135 S. Ct. 2551, 2563 (2015). See Salido-Rosas, 662 F.3d at 1257.
-7-
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-07-01006/USCOURTS-caDC-07-01006-0/pdf.json | [
[
"National Labor Relations Board",
"Respondent"
],
[
"Parkwood Developmental Center, Inc.",
"Petitioner"
],
[
"United Food and Commercial Workers International Union, Local 1996",
"Intervenor"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2007 Decided April 11, 2008
No. 07-1006
PARKWOOD DEVELOPMENTAL CENTER, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL
UNION, LOCAL 1996,
INTERVENOR
Consolidated with
07-1027
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Charles P. Roberts, III argued the cause for petitioner.
With him on the briefs was Clifford H. Nelson, Jr.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 1 of 11
2
William M. Bernstein, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Ronald E. Meisburg, General Counsel, John
H. Ferguson, Associate General Counsel, Linda Dreeben,
Assistant General Counsel, and Meredith L. Jason,
Supervisory Attorney.
James D. Fagan, Jr. was on the brief for intervenor
United Food and Commercial Workers International Union,
Local 1996.
Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Parkwood Developmental
Center, Inc. (“Parkwood”) petitions for review of an order of
the National Labor Relations Board (“Board”) that
determined that the company unlawfully withdrew
recognition from an incumbent union upon expiration of its
collective bargaining agreement. The Board concluded that
Parkwood had permissibly based its anticipatory withdrawal
decision on an employees’ petition renouncing union
representation, but then improperly ignored a counter-petition
rescinding the renunciation. For the reasons set forth below,
we deny Parkwood’s petition for review and grant the
Board’s cross-application to enforce its order.
I.
Parkwood runs a home for the developmentally disabled
in Valdosta, Georgia. Until 2003, the employees who worked
at the home were represented by the United Food and
Commercial Workers International Union, Local 1996
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 2 of 11
3
(“Union”). Parkwood and the Union were parties to a
collective bargaining agreement (“CBA”) that was scheduled
to expire March 8, 2003.
On December 2, 2002 Parkwood was presented with a
petition, signed by a majority of its employees at the home,
announcing that they no longer wished to be represented by
the Union. Believing that the Union no longer enjoyed
majority support, Parkwood told the Union of the petition that
same day and declared it would cease dealing with the Union
upon expiration of the CBA. From that moment onward,
Parkwood refused to negotiate with the Union for a successor
agreement.1
On March 7, 2003, the day before expiration of the CBA,
the Union presented to Parkwood a counter-petition, also
signed by a majority of the employees at the home, declaring
a renewed desire for Union representation and “revok[ing],
rescind[ing] and cancel[ing]” the earlier petition. Parkwood
was unmoved by this eleventh-hour show of support for the
Union. When the CBA expired the next day, Parkwood
refused to recognize the Union or bargain with it for a new
agreement.
The Union filed charges with the Board alleging, among
other things, that Parkwood violated § 8(a)(5) of the National
Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(5), by
1
Parkwood chose to rely upon the employees’ petition as its sole
barometer of union support, and did not file with the Board a
Representation Management petition (“RM petition”), 29 U.S.C.
§ 159(c)(1)(B); 29 C.F.R. § 102.60(a). Parkwood was under no
duty to file an RM petition, but had it done so the company could
have secured a Board-administered, secret-ballot election to
determine whether it had an obligation to bargain with the Union.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 3 of 11
4
unlawfully withdrawing recognition from the Union.2 An
administrative law judge (“ALJ”) found that Parkwood did
not violate the NLRA by withdrawing recognition from the
Union in response to the employees’ petition, notwithstanding
their counter-petition to the contrary. Parkwood, the Union,
and the General Counsel each filed exceptions to the ALJ’s
decision. See 29 C.F.R. § 102.46(a)–(c) (establishing
procedures for “exceptions”). Parkwood and the General
Counsel then filed answering briefs responding to each
other’s exceptions. See id. § 102.46(d) (establishing
procedures for “answering briefs”).
In its decision and order of August 22, 2006, the Board
reversed the ALJ’s finding that the withdrawal of recognition
had been lawful. Parkwood Developmental Ctr., Inc., 347
N.L.R.B. No. 95, 2006 WL 2459498 (2006). Concluding that
Parkwood had violated the NLRA by refusing to deal with the
Union despite a counter-petition voicing majority support, id.
slip op. at 2–3 (citing Levitz Furniture Co. of the Pacific, 333
N.L.R.B. 717 (2001)), the Board imposed an affirmative
bargaining order on the company. Parkwood filed a motion
for reconsideration objecting to this remedy, which the Board
denied as untimely. Parkwood petitions this court for review
of the Board’s order and the denial of its motion for
reconsideration. The Board cross-petitions for enforcement of
its order, and the Union intervenes in support of the Board.
2
The Union also alleged violations of § 8(a)(1) of the NLRA, 29
U.S.C. § 158(a)(1). The administrative law judge found, and the
Board agreed, that Parkwood violated § 8(a)(1) and § 8(a)(5) by
blaming the Union for a lack of salary raises, by prohibiting an
employee from discussing Union business on company time, and
by unilaterally changing employees’ health insurance benefits.
Parkwood concedes that the Board is entitled to summary
affirmance on these points. Parkwood’s Br. at 2 n.3.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 4 of 11
5
II.
We begin by considering Parkwood’s argument that the
Board chose the wrong moment in time at which to measure
employee support for the Union. “We will set aside the
Board’s decision only if the Board acted arbitrarily or
otherwise erred in applying established law to the facts at
issue, or if its findings are not supported by substantial
evidence.” Waterbury Hotel Mgmt., LLC v. NLRB, 314 F.3d
645, 650 (D.C. Cir. 2003) (internal citation and quotation
marks omitted). The Board’s decision survives this highly
deferential standard of review.
The Board determined that Parkwood violated § 8(a)(5)
of the NLRA by withdrawing recognition from the Union
without proving “actual loss” of majority support, as required
by Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 717
(2001). See id. at 725 (“If the union contests the withdrawal
of recognition in an unfair labor practice proceeding, the
employer will have to prove by a preponderance of the
evidence that the union had, in fact, lost majority support at
the time the employer withdrew recognition. If it fails to do
so, it will not have rebutted the presumption of majority
status, and the withdrawal of recognition will violate Section
8(a)(5).”). In this case of contradictory petitions and counterpetitions, majority support among Parkwood’s employees
depends on when one measures it. From December 2, 2002
until March 6, 2003, the employees’ first petition made clear
their lack of support for the Union. But after March 7, 2003,
the date the Union presented the counter-petition, the
objective evidence showed just the opposite. The Board
measured employee support at the expiration of the CBA, on
March 8, 2003, because that was the date on which
Parkwood’s announced withdrawal of recognition was to take
effect. See Parkwood Developmental Ctr., Inc., 347 N.L.R.B.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 5 of 11
6
No. 95, slip op. at 2 & n.9 (2006) (noting that March 8, 2003
was the earliest date lawfully to withdraw recognition
because, under Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 786 (1996), “a union enjoys a conclusive presumption of
majority status during the life of a collective-bargaining
agreement (up to 3 years)”).
Parkwood contends that the Board should have measured
majority support on December 2, 2002, the date the company
announced its intent to withdraw recognition in response to
the employees’ petition, rather than on March 8, 2003. In
support of this proposition, Parkwood makes three related
arguments. First, it points to Board decisions suggesting that
the earlier date was the proper moment at which to measure
support for the Union. Second, it warns that by looking to the
later date, the Board has destroyed the previously recognized
right of anticipatory withdrawal. Third, it argues that the
Board has ignored the so-called “open period.” We take the
arguments in turn and reject each.
A.
Prior to Levitz, an employer could withdraw recognition
from a union on the basis of good-faith doubt as to the
union’s continued support among a majority of employees in
the bargaining unit. See Levitz, 333 N.L.R.B. at 717 (citing
Celanese Corp., 95 N.L.R.B. 664 (1951)). In applying this
rule, the Board measured good-faith doubt at the time the
employer announced it. See, e.g., Bridgestone/Firestone, Inc.,
331 N.L.R.B. 205, 209 (2000); Burger Pits, Inc., 273
N.L.R.B. 1001, 1002 (1984), enforced sub nom. Hotel, Motel
& Rest. Employees & Bartenders Union Local No. 19 v.
NLRB, 785 F.2d 796 (9th Cir. 1986). Noting that the Board
cannot ignore its own precedent, see Manhattan Ctr. Studios,
Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006), Parkwood
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 6 of 11
7
argues that the Board was bound by pre-Levitz precedent to
measure actual loss of majority support in the same way it
once measured good-faith doubt, namely, on the day evidence
of actual loss first came to light.
This argument fails to account for Levitz, which
explicitly overruled Celanese and removed good-faith doubt
as a sufficient basis for withdrawing recognition from a
union. 333 N.L.R.B. at 717. Levitz changed what the Board
measures in scrutinizing a withdrawal of recognition, shifting
from good-faith doubt to actual loss of majority support.
Implicit in this decision is a corresponding change in how the
Board will take its measurements. The Board’s pre-Levitz
decisions never addressed the issue presented by the facts in
this case, so there was no binding precedent on this point
from which it could depart. That the Board was not bound by
its precedent to choose the earlier measuring point is apparent
from our recent decision in Highlands Hospital Corp. v.
NLRB, 508 F.3d 28 (D.C. Cir. 2007). In Highlands, we
approved the Board’s decision to consider post-petition
employee conduct in determining whether there was an actual
loss of majority support. Id. at 31–32. We could not have so
held if the Board’s precedent required it to measure actual
loss in the same way it had once measured good-faith doubt.
B.
Parkwood next contends that the Board’s decision
dispensed with the right of anticipatory withdrawal
recognized in Abbey Medical/Abbey Rents, Inc., 264 N.L.R.B.
969 (1982), enforced, 709 F.2d 1514 (Table) (9th Cir. 1983).
In Abbey Medical, the Board described the employer’s power
to effect “ ‘an anticipatory withdrawal of recognition’ in
relation to a future contract,” which allows an employer to
honor an existing CBA but question the union’s right to
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 7 of 11
8
bargain for a new agreement upon its expiration. 264
N.L.R.B. at 969. To withdraw anticipatorily, an employer
must “demonstrate that, on the date of withdrawal . . . the
union in fact had lost its majority status, or [that the]
withdrawal was predicated on a reasonable doubt based on
objective considerations of the union’s majority status.” Id.
To avoid semantic confusion, anticipatory withdrawal must
be distinguished from withdrawal of recognition. Anticipatory
withdrawal occurs prior to expiration of a CBA and does not
obviate the employer’s obligations under the existing
agreement. Withdrawal of recognition occurs after expiration
of a CBA, at which time the employer is free of contractual
obligation.
Parkwood took full advantage of Abbey Medical. During
the period that began with the employees’ petition and ended
with their counter-petition, Parkwood lawfully declined to
bargain with the Union for a new CBA. Parkwood
Developmental Ctr., Inc., 347 N.L.R.B. No. 95, slip op. at 2
n.10 (2006); cf. Point Blank Body Armor, Inc., 312 N.L.R.B.
1097, 1097 n.1 (1993) (holding employer violated the NLRA
by negotiating new CBA after employees submitted petition
disavowing incumbent union). But nothing in Abbey Medical
permitted Parkwood to ignore subsequent indicators of
majority support in deciding whether to withdraw recognition.
The counter-petition made clear that as of March 8, 2003, the
expiration date of the CBA and the earliest moment at which
Parkwood lawfully could withdraw recognition, the Union
had not actually lost majority support. The counter-petition
thus restored the presumption of majority support enjoyed by
every union during the life of its CBA, up to three years. See
Auciello, 517 U.S. at 786. The Board’s holding to this effect
was reasonable and consistent with precedent, so we reject
Parkwood’s argument that it was arbitrary and capricious.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 8 of 11
9
C.
Finally, Parkwood argues that the Board ignored the
“open period,” during which the presumption of majority
support for the union is relaxed and the Board accepts
election petitions. See Donald Schriver, Inc. v. NLRB, 635
F.2d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal
‘contract-bar’ rules, an election petition for representative
status may not be filed during the term of a collective
bargaining agreement that has a duration of up to three years
. . . except during an open period . . . prior to the expiration
date of the contract.”). For a health care institution such as
Parkwood, this period falls between 120 and 90 days prior to
expiration of the CBA. Trinity Lutheran Hosp., 218 N.L.R.B.
199, 199 (1975). Parkwood’s December 2, 2002 withdrawal
statement fell within the open period, a fact the Board did not
discuss in its order. Parkwood argues that the Board’s silence
on this point rendered its order arbitrary and capricious by
giving undue weight to the Union’s contractual presumption
of majority support. We reject this argument. Neither the
employer, nor the employees, nor a rival union filed an
election petition, so the open period was irrelevant and the
Board was right to ignore it. If Parkwood wanted to secure the
benefit of the open period, it should have filed an RM petition
during that time. Parkwood cites no authority for the
proposition that proof of an actual loss of majority support
under Levitz is somehow dependent upon the facts as they
existed during the open period. The Board might one day
make it so, but its decision not to do so in this case was
neither arbitrary nor capricious.
III.
Alternatively, Parkwood argues that, even if the Board
did not err in holding it had violated the NLRA by
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 9 of 11
10
withdrawing recognition from the Union, the Board, in
ordering Parkwood to bargain with the Union, failed to
comply with our decision in Vincent Industrial Plastics, Inc.
v. NLRB, 209 F.3d 727 (D.C. Cir. 2000). In Vincent
Industrial, we directed the Board to premise every bargaining
order on an “explicit[] balanc[ing] [of] three considerations:
(1) the employees’ Section 7 rights [29 U.S.C. § 157]; (2)
whether other purposes of the [NLRA] override the rights of
employees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the [NLRA].” 209 F.3d at 734. Parkwood
accuses the Board of ignoring Vincent Industrial and asks us
to deny enforcement of the chosen remedy on the basis of this
shortcoming.
But we have no jurisdiction to entertain this claim. Our
authority to consider Parkwood’s petition comes from the
jurisdictional grant in § 10 of the NLRA. That portion of the
statute limits our jurisdiction as follows: “No objection that
has not been urged before the Board . . . shall be considered
by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary
circumstances.” 29 U.S.C. § 160(e); see also id. § 160(f)
(incorporating § 160(e)’s jurisdictional constraint). The
General Counsel requested a bargaining order in his
exceptions to the ALJ’s findings. Parkwood forfeited its
challenge to this remedy by failing to respond in its answering
brief to the General Counsel’s request. To “urge[] before the
Board” the arguments it would later have us review, id.
§ 160(e), a party must present those arguments in a
procedurally valid way. Parkwood’s first opportunity to do so
was in its answering brief, but it neglected to discuss remedial
issues in that filing. By the time Parkwood objected to the
bargaining order in a motion for reconsideration, it was too
late. According to its regulations, the Board will only
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 10 of 11
11
entertain a motion for reconsideration in “extraordinary
circumstances.” 29 C.F.R. § 102.48(d)(1). The Board found
no such circumstances here, and we must defer to the Board’s
interpretation of its own regulations because that
interpretation is neither plainly erroneous nor inconsistent
with the regulations. Long Island Care at Home, Ltd. v. Coke,
127 S. Ct. 2339, 2349 (2007) (citing Auer v. Robbins, 519
U.S. 452, 461 (1997)); Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945).
Parkwood should have opposed the General Counsel’s
request for a bargaining order in the answering brief it filed in
response to the General Counsel’s exceptions. Of course,
Parkwood could not have faulted the Board’s reasoning in a
filing that preceded the Board’s order. But Parkwood could
have alerted the Board to the possibility that a bargaining
order was unwarranted in this instance. Its failure to do so
deprives us of jurisdiction to consider the remedial challenge.
IV.
We deny Parkwood’s petition for review and grant the
Board’s cross-application to enforce its order.
So ordered.
USCA Case #07-1006 Document #1110422 Filed: 04/11/2008 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_04-cv-05262/USCOURTS-cand-3_04-cv-05262-0/pdf.json | [
[
"Christopher R. Harris",
"Plaintiff"
],
[
"San Jose Mercury News, Inc.",
"Defendant"
]
] | U
nite
d
State
s
District C
o
u
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER R. HARRIS,
Plaintiff,
v.
SAN JOSE MERCURY NEWS, INC.,
Defendant.
___________________________________/
No. C-04-5262 CRB (EMC)
ORDER RE MEET AND CONFER
Both parties have filed discovery motions which are set for hearing before this Court on June
8, 2005. (Plaintiff has filed two motions, and Defendant one motion.) Based on the Court’s review
of the papers filed by the parties, it appears that the vast majority of the meet and confers have taken
place by letter or telephone. This is in violation of the Court’s standing order on discovery
procedures, which requires in-person meet and confers, except where good cause is shown why a
telephone meet and confer is adequate. In addition, the Court questions the adequacy of the meet
and confers that have taken place. From the papers, it seems that the parties have not made a good
faith attempt to reach an agreement on their discovery disputes.
Accordingly, the Court hereby orders the parties to conduct an in-person meet and confer by
May 11, 2005. Either lead trial counsel shall attend the meet and confer or counsel with full and
complete authority on discovery matters. In lieu of any opposition or reply briefs for the motions, the
parties shall file a joint letter with the Court by May 18, 2005. In the joint letter, the parties should
describe who participated in the meet and confer and for how long. In addition, the parties should
identify which issues on which they were able to reach agreement after meeting and conferring. If
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there are any remaining disputes, then, for each dispute, the parties should provide brief statements
of their respective positions and cite any applicable legal authority. The parties should use the
attached template for their joint letter.
The parties are forewarned that the in-person meet-and-confer requirement shall be imposed
on all future discovery disputes. The parties are also forewarned that the Court will not look kindly
upon unnecessary posturing and that any party that takes a position that is not substantially justified
may be subject to sanctions.
IT IS SO ORDERED.
Dated: April 20, 2005
/s/
EDWARD M. CHEN
United States Magistrate Judge
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Note for Counsel: The Court may request a courtesy copy of the joint letter to be faxed to
chambers. If so, counsel should still file a copy of the joint letter with the Clerk of the Court. The letter
faxed to chambers is a courtesy copy only. As a general matter, parties may not fax any papers to the
Court without prior leave of the Court.
2
Note for Counsel: Unnecessary exhibits should not be attached.
3
EXHIBIT 1 -- SAMPLE JOINT LETTER
[Date]
VIA [METHOD]1
Honorable Edward M. Chen
United States Magistrate Judge
U.S. District Court
450 Golden Gate Avenue
San Francisco, CA 94102
Re: [Case number and case name]
Dear Judge Chen:
The parties have met and conferred regarding several discovery disputes. The meet and
confer took place on [date], with the participation of [Plaintiff’s attorney], representing Plaintiff, and
[Defendant’s attorney], representing Defendant. The meet and confer was [in person or over the
telephone] and lasted approximately [minutes or hours].
I. RESOLVED DISCOVERY DISPUTES
The parties reached agreement on several discovery disputes. Those agreements are as
follows:
[Description of Agreement No. 1.]
[Description of Agreement No. 2.]
[Description of Agreement No. 3, etc.]
II. REMAINING DISCOVERY DISPUTES
The parties were not able to reach agreement on the remaining discovery disputes. Those
remaining disputes and the parties’ respective positions are provided below. Copies of the relevant
discovery requests and responses are attached as Exhibits [numbers].2
A. [Dispute No. 1]
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Note for Counsel: Each party’s position should be stated succinctly (e.g., in one paragraph).
The purpose of the joint letter is to inform the Court of the essence of the dispute in lieu of full briefing.
The Court may order full briefing and/or a hearing if necessary.
4
1. [Position of Party Seeking Discovery]3
2. [Position of Party Opposing Discovery]
B. [Dispute No. 2]
1. [Position of Party Seeking Discovery]
2. [Position of Party Opposing Discovery]
C. [Dispute No. 3]
1. [Position of Party Seeking Discovery]
2. [Position of Party Opposing Discovery]
D. [Dispute No. 4, etc.]
1. [Position of Party Seeking Discovery]
2. [Position of Party Opposing Discovery]
Sincerely,
[Plaintiff’s counsel] [Defendant’s counsel]
Attorney for Plaintiff Attorney for Defendant
Case 3:04-cv-05262-CRB Document 41 Filed 04/20/05 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-14-02036/USCOURTS-ca7-14-02036-0/pdf.json | [
[
"Alvaro Lazcano-Leon",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2015
Decided October 26, 2015
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-2036
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALVARO LAZCANO-LEON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13 CR 775-1
Ronald A. Guzmán,
Judge.
O R D E R
Alvaro Lazcano-Leon pleaded guilty to being in the United States without
permission after his removal, see 8 U.S.C. § 1326(a), and was sentenced within the
guidelines range to 55 months in prison. He argues on appeal that the government
delayed its § 1326(a) prosecution for 43 months until he had fully served a state sentence
for drug trafficking. As a consequence, he says, he was denied an opportunity to
persuade the district court to impose a sentence that would run at least in part
concurrently with his state sentence. The remedy he seeks is a reduction in his federal
sentence by the length of this delay in charging him. We disagree. The district court was
not required to award any discount for Lazcano-Leon’s state incarceration or any delay
in the federal prosecution. The district court, as it acknowledged, could have given him a
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
Case: 14-2036 Document: 32 Filed: 10/26/2015 Pages: 4
No. 14-2036 Page 2
discount as a matter of discretion but rejected this argument in mitigation. That choice
was not an abuse of discretion. We affirm the sentence.
In 1994, after serving a federal sentence for possessing over 270 grams of heroin
with intent to distribute, Lazcano-Leon was deported to his native Mexico. In 2000, he
returned illegally to the United States. In 2010 he was sentenced to eight years in prison
by an Illinois court after he pleaded guilty to delivering a kilogram of cocaine to an
undercover police officer. He was paroled in 2013 after serving just 43 months. Before his
release the Illinois Department of Corrections had notified Immigration and Customs
Enforcement (which had lodged a civil detainer), and ICE agents took custody.
A month later Lazcano-Leon was indicted on the § 1326(a) charge. He pleaded
guilty. A probation officer calculated a total offense level of 21 and criminal-history
category of III, yielding a guideline imprisonment range of 46 to 57 months. The total
offense level included a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A)(i) because
Lazcano-Leon had been deported after his 1994 heroin-trafficking conviction.
At the sentencing hearing, the defense focused on what it called a “cruel” policy
by the government to withhold a § 1326(a) charge until after the target had served his
state sentence. The defense argued that Lazcano-Leon should get a discount for the 43
months he served on the state drug conviction because, as shown by the date of the ICE
detainer, someone in the government had known about the defendant’s unlawful
presence in the United States that entire time. The defense argued that if the government
had brought the § 1326(a) charge when the state drug charge was filed, Lazcano-Leon
would have tried to resolve the federal charge first (so that a conviction in state court
would not count toward his criminal-history score) and would have asked either the
federal court or the state court to run his sentences concurrently. Counsel represented
that Lazcano-Leon had reentered the United States to help his family.
The government asked for a within-guidelines sentence, arguing that
Lazcano-Leon should not receive a break for his state incarceration because that term
was punishment for a different crime.
The district court adopted the probation officer’s proposed findings and imposed
a 55-month term of imprisonment. In rejecting the argument that Lazcano-Leon should
receive a discount for his state imprisonment, the judge did not see “a basis for giving
him credit for any time that he has served in state court” because he was “selfish” in
committing crimes that hurt others and “our communities.” The judge reasoned that
Case: 14-2036 Document: 32 Filed: 10/26/2015 Pages: 4
No. 14-2036 Page 3
Lazcano-Leon’s drug crimes were significant and that a desire to be near and to help
family could not excuse trafficking drugs after crossing the border illegally. Drug
trafficking, the judge continued, is “a particular disease” that fuels crime and gang
activity in neighborhoods where drugs are sold. The judge concluded that protecting the
public from recidivist drug offenders like Lazcano-Leon was the most significant
sentencing factor.
On appeal Lazcano-Leon first argues that the sentencing court committed a
procedural error by not explaining why it rejected his argument for a discount, yet
elsewhere in his brief he concedes that the sentencing court in fact addressed his
argument. That concession is sound since the court’s reasoning was clear. So
Lazcano-Leon’s appeal really rests on his further contention that the sentence imposed is
substantively unreasonable. He contends that the district court was required to give a
discount for the 43 months he served on his state drug conviction because the
government intentionally delayed bringing a § 1326(a) charge.
The substantive reasonableness of a sentence is reviewed for abuse of discretion
in light of the factors in 18 U.S.C. § 3553(a). See United States v. Castro-Alvarado, 755 F.3d
472, 477 (7th Cir. 2014). As part of the sentencing judge’s duty to weigh a defendant’s
arguments in mitigation, the sentencing judge has the discretion to consider a delay in
charging a defendant under § 1326(a) as one factor in deciding the appropriate sentence.
See United States v. Estrada-Mederos, 784 F.3d 1086, 1091 (7th Cir. 2015); United States v.
Garcia-Segura, 717 F.3d 566, 568 (7th Cir. 2013).
Lazcano-Leon’s argument misunderstands the nature of discretion. A sentencing
court is not required to accept an argument in mitigation, and here the judge concluded
that other § 3553(a) factors outweighed defendant’s contention about the timing of the
§ 1326(a) indictment. See United States v. Filipiak, 466 F.3d 582, 583 (7th Cir. 2006) (district
court must consider arguments under § 3553(a) for sentence below guideline range but is
not compelled to accept them). The judge emphasized the need to protect the public
from Lazcano-Leon as a recidivist drug offender, his two prior drug convictions, and his
commission of new crimes after returning to the United States unlawfully. See 18 U.S.C.
§ 3553(a)(1) & (2)(C); see also United States v. Horton, 770 F.3d 582, 586 (7th Cir. 2014)
(explaining that sentencing court had discretion to give one § 3553(a) factor less weight
than others); Garcia-Segura, 717 F.3d at 568 (same).
Lazcano-Leon implies that the government’s timing was in bad faith, but he
presented no evidence of bad faith. Calling the government’s decision to wait
Case: 14-2036 Document: 32 Filed: 10/26/2015 Pages: 4
No. 14-2036 Page 4
“egregious” and “unreasonable,” as he does, ignores that the choice when to charge a
defendant is a matter of prosecutorial discretion. See United States v. Segal, 495 F.3d 826,
833 (7th Cir. 2007); United States v. Jarrett, 447 F.3d 520, 525 (7th Cir. 2006). Lazcano-Leon
points to nothing in the record suggesting that the government relied on an
impermissible factor such as race or religion in choosing to charge him only after he had
served his state sentence. See United States v. Armstrong, 517 U.S. 456, 464 (1996); United
States v. Moore, 543 F.3d 891, 899–900 (7th Cir. 2008). Lazcano-Leon committed unrelated
crimes in different jurisdictions (state and federal), and he cites no authority for the
argument that the federal government was required to bring the § 1326(a) charge sooner.
See Garcia-Segura, 717 F.3d at 569 (“[Defendant’s] state sentence was for drug and
firearm possessions, convictions in no way related to his federal offense of unauthorized
presence in the United States after removal.”).
Lazcano-Leon asserts that the sentencing judge’s decision was unreasonable
because the judge found that the delay was “intentional” and “that there is a policy of
delaying charges,” which had deprived him of serving his sentences concurrently. The
judge acknowledged that Lazcano-Leon lost the opportunity to seek concurrent
sentences because of the delay but not that he was entitled to concurrent sentences.
There is no reason to assume that federal prosecutors would have interfered with
Lazcano-Leon’s state drug prosecution by taking him out of state custody to proceed
first with the federal charge even if he had been charged immediately with violating
§ 1326(a). And there is no support for Lazcano-Leon’s assumption that the state court
would have run his sentence concurrently.
Lazcano-Leon disagrees with the judge’s weighing of the § 3553(a) factors, but the
record shows that the judge addressed and rejected his argument that he should receive
a discount for the government’s delay in charging him. The judge provided a sufficient
explanation that other factors warranted a within-guidelines sentence. Because
Lazcano-Leon has shown no abuse of discretion, we AFFIRM his sentence.
Case: 14-2036 Document: 32 Filed: 10/26/2015 Pages: 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_22-cv-01854/USCOURTS-caed-2_22-cv-01854-4/pdf.json | [
[
"County of Sacramento",
"Defendant"
],
[
"Anthony D. Edwards",
"Plaintiff"
],
[
"RCCC",
"Defendant"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANTHONY D. EDWARDS,
Plaintiff,
v.
COUNTY OF SACRAMENTO, et al.,
Defendants.
No. 2:22-cv-1854 DB P
ORDER
Plaintiff is a county jail inmate proceeding pro se with a civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff alleges that he was denied adequate medical care. Presently before the
court is plaintiff’s motion to amend the complaint (ECF No. 15) and second amended complaint
for screening (ECF No. 16). For the reasons set forth below, the court will grant the motion to
amend and dismiss the complaint with leave to amend.
MOTION TO AMEND
Plaintiff states he is seeking leave to file an amended complaint to “correct and eliminate a
duplicative filing in this case” and because he “erroneously filed an amended pleading with
exhibits and referred to the original complaint in an effort” to state a claim. (ECF No. 15 at 2.)
He states that he is seeking leave to amend to consolidate the original claim of deliberate
indifference with the exhibits.
////
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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is served.
Otherwise, a party may amend only by leave of the court or by written consent of the adverse
party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a)
is very liberal and leave to amend ‘shall be freely given when justice so requires.’”
AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed.
R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1)
prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the
litigation; or (4) is futile.” Id. (citations omitted).
By order date June 16, 2023, the first amended complaint was dismissed with leave to file
an amended complaint. (ECF No. 12.) Additionally, defendants have not yet been served.
Accordingly, the court will grant plaintiff’s motion to amend.
SCREENING
I. Legal Standards
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a governmental entity. See 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. See 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 Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
AtlanticCorp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
However, in order to survive dismissal for failure to state a claim 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,
550 U.S. at 555. 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).
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at
389. The statute requires that there be an actual connection or link between the
actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or
omits to perform an act which he is legally required to do that causes the deprivation of which
complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior and, therefore, when a named defendant
holds a supervisorial position, the causal link between him and the claimed constitutional
violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations
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concerning the involvement of official personnel in civil rights violations are not sufficient. See
Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. Allegations in the Complaint
Plaintiff states that in 2021, he was a pretrial detainee housed at the Rio Cosumnes
Correctional Center (“RCCC”). (ECF No. 16 at 3.) He has named the following defendants: (1)
Soni Nageswaran, doctor at RCCC; (2) Richard Cathey, doctor at RCCC; (3) Stephen Tseng,
doctor at RCCC; (4) Sanjeev Batra, doctor at RCCC; (5) Sarajane Dalley-Lincoln, doctor at
RCCC; (6) Arshad Masood, doctor at RCCC; (7) Derek Mok, dentist at RCCC; (8) Charlene
Williams, nurse practitioner at RCCC; (9) Vanessa Tsuda-Nguyen, doctor at RCCC; (10) Magnus
Yang, dentist at RCCC; (11) Yupar Khin, nurse practitioner at RCCC; (12) Ifeyinwa Agunanne,
registered nurse at RCCC; (13) Andrew Mossett, registered nurse at RCCC; (14) Hilda
Uchewuba, registered nurse at RCCC; (15) Mandeep Kaur, registered nurse at RCCC; (16)
Cynthia Zein, registered nurse at RCCC; (17) Blessing Osasuyi, registered nurse at RCCC; (18)
Paulette Aveau, registered nurse at RCCC; (19) Stephenye Burnette, nurse practioner at RCCC;
and (20) County of Sacramento Department of Health Services. (Id. at 1-2.)
He states deputy non-party K. Brown escorted him to a dental appointment. (Id. at 3.) At
that time, plaintiff had an abscess on the right side of his face and his jaw was swollen. (Id.)
Plaintiff informed the dentist1that he thought he needed a prescription for antibiotics before any
dental work was done. (Id.) The dentist told plaintiff that he did not need antibiotics. (Id. at 4.)
The dentist also told plaintiff that he did not see any abscess or swelling, then put a filling one of
plaintiff’s right upper teeth. (Id.) Deputy K. Brown remained in the exam room during the
procedure and “overheard most of the conversation.”
Plaintiff states that after then dental appointment, he noticed an abscess and swelling “on
the left side of his body.” (Id.) He also had a “huge lump or growth” on the left-side of his neck
and shoulder, swollen lymph nodes, and boils which doctors identified as abscesses. Some of
1 Plaintiff has named two RCCC dentists as defendants, but he has not indicated whether the
dentist referred to here was one of the defendants or a non-party dentist at RCCC. (Id. at 3.)
Elsewhere in the complaint, plaintiff states that Mok performed a dental procedure, on an
unspecified date causing an infection to spread throughout his body. (Id. at 12-13.)
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them burst and infectious puss oozed out of the sores. He states that medical staff began doing
dressing changes on his infected areas. During one of the dressing changes, Dr. Soni Nageswaran
looked at the abscesses and felt the growth on the left side of his neck and shoulder. (Id.)
On May 26, 2021, plaintiff was seen by Dr. Arshad Masood. (Id. at 5.) After examining
plaintiff’s neck Dr. Masood immediately ordered plaintiff sent to an outside hospital. Plaintiff
was transported to Kaiser Permanente South Medical Center in Sacramento where he was seen by
Dr. Steven C. Glocke. (Id.) Plaintiff was examined, prescribed medication, and returned for a
follow-up visit on May 29, 2021. (Id.) At the May 29 follow-up visit he was seen by Dr.
Ekanayake Ruwan Bandra who diagnosed plaintiff with “Neurotic Lymph Node vs Abcess [sic]
and recommended a MANDATORY outpatient follow-up and Biopsy of the left Supraclavicular
Mass Arranged.” (Id.) Plaintiff was also given a treatment plan and records indicating what tests
had been performed. (Id. at 6.)
On May 30, 2021, plaintiff was seen by Dr. Robert Padilla in the Medical Housing Unit
(“MHU”) at RCCC. (Id. at 6.) During the appointment, Dr. Padilla asked plaintiff whether he
had any recent dental work. Plaintiff told him that he had dental work done in April. Dr. Padilla
informed plaintiff that the infections and abscesses were probably caused by the dental work.
(Id.)
On June 18, 2021, plaintiff was seen by medical staff regarding a grievance plaintiff filed
complaining that he had received in adequate medical treatment. (Id. at 6.) Dr. Gmengas
explained that plaintiff was scheduled for further medical testing at San Joaquin General Hospital
to determine how to treat plaintiff’s left chest wall and hip abscess. At the interview, his chest
and hip abscesses were cleaned and redressed, and he was prescribed another round of antibiotics.
(Id.)
Plaintiff filed a grievance requesting his dental records to show that his injury was caused
by the dental procedure. (Id. at 7.) On September 7, 2021, plaintiff was interviewed by KD Biles
DDS. (Id.) During the interview, plaintiff reiterated his request for his medical records. (Id.)
The grievance response issued to plaintiff advised him to contact his attorney to obtain his
medical records. (Id.)
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On July 14, 2021, plaintiff had an appointment with the RCCC dental department. He
made a verbal request for his records and discussed his ongoing medical condition. The dentist,
Derek Mok, made a notation in plaintiff’s chart that plaintiff was malingering. (Id. at 7.)
The first biopsy on the subcutaneous mass on plaintiff’s neck was taken in midSeptember. (Id. at 8.) He had surgery on the mass on February 15, 2022. (Id.) He was
transported back to RCCC on February 16, 2022. He was seen that day by Dr. Masood. Since
that day, plaintiff has not received any medical treatment.
Plaintiff alleges that the “inadequate medical treatment and negligent acts by CHS
medical staff” caused his injury. Specifically, the 90-day “delay in diagnosing and treating
weakened his immune system to the point where [he] contracted Valley Fever.” (Id.)
III. Failure State a Claim under § 1983?
A. Linkage Requirement
Under section 1983, a plaintiff bringing an individual capacity claim must demonstrate
that each defendant personally participated in the deprivation of his rights. See Jones v.
Williams, 297 F.3d 930, 034 (9th Cir. 2002). There must be an actual connection or link between
the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor
v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Government officials may not be held liable for the actions of their subordinates under a
theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating vicarious
liability is inapplicable in Section 1983 suits). Since a government official cannot be held liable
under a theory of vicarious liability in § 1983 actions, plaintiff must plead sufficient facts
showing that the official has violated the Constitution through his own individual actions by
linking each named individual with some affirmative act or omission that demonstrates a
violation of plaintiff’s federal rights. Id. at 676.
Plaintiff has not stated any factual allegations against defendants Cathey, Tseng, Batra,
Dalley-Lincoln, Williams, Tsuda-Nguyen, Yang, Khin, Agunanne, Mossett, Uchewuba, Kaur,
Zein, Osasuyi, or Aveau. (See ECF No. 16 at 1-15.) As the court previously advised, plaintiff
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must state facts showing how each named defendant participated in the violation of his rights.
Iqbal, 556 U.S. at 676-77; Simmons v. Navajo Cnty., 609 F.3d 1011, 1020-21 (9th Cir. 2010);
Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Without such allegations the
court cannot find that plaintiff has stated a claim against these defendants
B. Sacramento County Department of County Health Care Services
Plaintiff appears to identify the Sacramento County Department of Health Care Services
Primary Health Division Correctional Health Services as a defendant because it is the agency
responsible for providing adequate health care at RCCC and the other named defendants in this
action are employees. (ECF No. 16 at 9.)
The U.S. Supreme Court has held that local government entities, e.g., cities, counties, and
local officers sued in their official capacities, are “persons” for purposes of section 1983,
rendering them directly liable for constitutional violations if carried out pursuant to local policies
or customs. McMillian v. Monroe Cnty., 520 U.S. 781, 784-85 (1997); Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 690-92 (1978). It is possible that plaintiff could state a claim
under Monell. See Monell, 436 U.S. at 691 n. 55.
To state such a claim, plaintiff must show that the municipality’s policy or custom caused
the alleged constitutional injury. See Leatherman v. Tarrant Cnty. Narc. Intell. And Coord. Unit,
507 U.S. 163, 166 (1993); Monell, 436 U.S. at 694. A municipality may not be sued solely
because an injury was inflicted by one of its employees or agents. Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Rather, the municipality is liable only when the
execution of its policy or custom inflicts a constitutional injury. Id.; Monell, 436 U.S. at 690-94
(plaintiff must show the constitutional injury was caused by employees acting pursuant to the
municipality’s policy or custom); Miranda v. City of Cornelius, 429 F.3d 858, 868 (9th Cir.
2005).
Because plaintiff appears to allege that the County of Sacramento Department of Health
Services is liable based on the actions of its employees. (ECF No. 16 at 9.) Nothing in the
complaint indicate that rights violations alleged in the complaint occurred because of any jail
policy. Proof of a single incident of unconstitutional activity is not sufficient to impose liability.
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Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (“A plaintiff cannot prove the
existence of a municipal policy or custom based solely on the occurrence of a single incident of a
municipal policy or custom based solely on the occurrence of a single incident of unconstitutional
action by a non-policymaking employee.”). Thus, such allegations are not sufficient to state a
potentially cognizable claim against the agency. Long, 442 F.3d at 1185.
C. Deficient Medical Care re Defendants Nageswaran, Masood, and Mok
1. Legal Standards
Plaintiff states that his claim regarding medical care received arises under the Eighth
Amendment. However, he states that he was a pretrial detainee at the time of the events giving
rise to his claim. “[M]edical care claims brought by pretrial detainees . . . ‘arise under the
Fourteenth Amendment’s Due Process Clause, rather than under the Eighth Amendment’s Cruel
and Unusual Punishments Clause.’” Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124 (9th Cir.
2018) (citation omitted). Therefore, “claims for violations of the right to adequate medical care
‘brought by pretrial detainees against individual defendants under the Fourteenth Amendment’
must be evaluated under an objective deliberate indifference standard.” Id. at 1124-25.
To allege a claim for violation of the Fourteenth Amendment right to medical care, a
detainee must allege facts showing: (1) The defendant made an intentional decision with respect
to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at
substantial risk of suffering serious harm; (3) The defendant did not take reasonable available
measures to abate that risk, even though a reasonable officer in the circumstances would have
appreciated the high degree of risk involved – making the consequences of the defendant’s
conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s
injuries. Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). With respect to
the third element, the defendant’s conduct must be objectively unreasonable, a test that will
necessarily turn[] on the facts and circumstances of each particular case. Id. (internal quotation
marks and citations omitted).
////
////
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2. Analysis
a. Nageswaran
Plaintiff alleges that Dr. Nageswaran looked at the abscesses and felt the growth on the
left side of his neck and shoulder area during a dressing change on an unspecified date. (ECF No.
16 at 4.)
Such an allegation is not sufficient to show that Dr. Nageswaran made some decision
knowing that he was putting plaintiff in substantial risk of injury. Additionally, plaintiff has not
included facts indicating the severity of his condition at the time he was examined by Dr.
Nageswaran. In order to state a claim, plaintiff must include additional facts that would indicate
that plaintiff’s condition was sufficiently serious that Dr. Nageswaran violated his constitutional
rights by not taking further action. Gordon, 888 F.3d at 1125.
b. Masood
Plaintiff states that he was seen by Dr. Masood on May 26, 2021. (ECF No. 16 at 5.)
After examining plaintiff, Dr. Masood immediately sent plaintiff to an outside hospital for
treatment. (Id.) Plaintiff also states that he was seen by Dr. Masood on February 16, 2022
following his return to RCCC following surgery. (Id. at 8.)
There are no facts alleged from which the undersigned could conclude that Dr. Masood
exposed plaintiff to substantial risk of injury. Mere lack of due care is insufficient to prove a
Fourteenth Amendment violation. Gordon, 888 F.3d at 1125. Accordingly, the allegations in the
complaint are insufficient to state a potentially cognizable claim against Dr. Masood.
c. Mok
Plaintiff alleges he had an appointment in the RCCC dental department with dentist Mok
on July 14, 2021. (ECF No. 16 at 7.) He states during that appointment he verbally requested his
records and discussed his ongoing medical condition. (Id.) Mok made a notation in plaintiff’s
chart that plaintiff was malingering. (Id.)
Based on the facts alleged, there are no allegations from which the court could conclude
that Mok was aware that plaintiff had a serious medical need requiring treatment. Quiroga v.
Aguilara, No. 1:15-cv-1202 LJO MJS (PC), 2016 WL 3880716, at *3 (E.D. Cal. July 18, 2016).
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If Mok was the dentist who performed a dental procedure on plaintiff without providing
antibiotics causing plaintiff to develop abscesses (ECF No. 16 at 12-13), plaintiff should make
such allegations clear in an amended complaint.
D. Medical Negligence
1. Legal Standards
“To establish medical malpractice, a plaintiff must state all of the following: (1) that the
defendant was negligent; (2) that the plaintiff was harmed; and (3) that the defendant’s negligence
was a substantial factor in causing the plaintiff’s harm.” Mendez v. United States, No. 1:17-cv00555-LJO-MJS (PC), 2018 WL 1729133, at *14 (E.D. Cal. Apr. 10, 2018), report and
recommendation adopted, 2018 WL 3218369 (E.D. Cal. June 29, 2018) (citing Ladd v. Cnty. of
San Mateo, 12 Cal. 4th 913, 917 (1996)). “The standard of care in a medical malpractice case
requires that medical service providers exercise that . . . degree of skill, knowledge and care
ordinarily possessed and exercised by members of their profession under similar circumstances.”
Id. (citing Barris v. Cnty. of Los Angeles, 20 Cal. 4th 101, 108 (Cal. 1999); Landeros v. Flood, 17
Cal. 3d 399, 408 (1976)).
To state a negligence claim, plaintiff must state facts showing: (1) defendant owed
plaintiff a duty of care, (2) defendant breached that duty, (3) the breach was the proximate or
legal cause of the resulting injury, and (4) plaintiff was damaged. Ladd v. County of San Mateo,
12 Cal.4th 913, 917 (1996).
2. Analysis
As set forth above, the undersigned as determined that the allegations in the complaint are
insufficient to state a § 1983 claim. Accordingly, the undersigned declines to exercise
supplemental jurisdiction over plaintiff’s state law claim. 28 U.S.C. § 1367(c)(3) (A district court
may decline to exercise supplemental jurisdiction over state law claims if the district court has
dismissed all claims over which it has original jurisdiction.).
IV. Amending the Complaint
As set forth above, the complaint does not state a potentially cognizable claim. However,
plaintiff will be given one final opportunity to file an amended complaint. Plaintiff is advised that
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in an amended complaint he must clearly identify each defendant and the action that defendant
took that violated his constitutional rights. The court is not required to review exhibits to
determine what plaintiff’s charging allegations are as to each named defendant. The charging
allegations must be set forth in the amended complaint, so defendants have fair notice of the
claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in support
of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R.
Civ. P. 8(a).
Any amended complaint must show the federal court has jurisdiction, the action is brought
in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must
contain a request for particular relief. Plaintiff must identify as a defendant only persons who
personally participated in a substantial way in depriving plaintiff of a federal constitutional right.
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation
of a constitutional right if he does an act, participates in another’s act or omits to perform an act
he is legally required to do that causes the alleged deprivation).
In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.
R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.
R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or
occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).
The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d
1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any
heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.
84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be
set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,
which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.
An amended complaint must be complete in itself without reference to any prior pleading.
E.D. Cal. R. 220. Once plaintiff files an amended complaint, all prior pleadings are superseded.
Any amended complaint should contain all of the allegations related to his claim in this action. If
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plaintiff wishes to pursue his claims against the defendant, they must be set forth in the amended
complaint.
By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and
has evidentiary support for his allegations, and for violation of this rule the court may impose
sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion to amend (ECF No. 15) is granted.
2. Plaintiff’s amended complaint (ECF No. 16) is dismissed with leave to amend.
3. Plaintiff is granted thirty days from the date of service of this order to file an amended
complaint that complies with the requirements of the Civil Rights Act, the Federal
Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint
must bear the docket number assigned to this case and must be labeled “Second
Amended Complaint.”
4. Failure to comply with this order will result in a recommendation that this action be
dismissed.
Dated: September 12, 2023
DB:12
DB/DB Prisoner Inbox/Civil Rights/S/edwa1854.scrn3+mta
Case 2:22-cv-01854-TLN-SCR Document 17 Filed 09/12/23 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-00213/USCOURTS-caed-1_16-cv-00213-1/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Maria Irma Romero",
"Plaintiff"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MARIA IRMA ROMERO,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Case No. 1:16-cv-00213-EPG
ORDER DIRECTING THE CLERK OF
THE COURT TO CLOSE THE CASE
(ECF No. 15)
On February 1, 2017, the parties filed a stipulation dismissing this action with prejudice.
(ECF No. 15.) All parties have agreed to the stipulation. In light of the stipulation, this action has
been terminated, see Fed. R. Civ. P. 41(a)(1)(A)(ii); Wilson v. City of San Jose, 111 F.3d 688, 692
(9th Cir. 1997), and has been dismissed with prejudice. Accordingly, the Clerk of the Court is
DIRECTED to close this case.
IT IS SO ORDERED.
Dated: February 2, 2017 /s/
UNITED STATES MAGISTRATE JUDGE
Case 1:16-cv-00213-EPG Document 16 Filed 02/02/17 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-00952/USCOURTS-caed-2_05-cv-00952-3/pdf.json | [
[
"Calamco",
"Defendant"
],
[
"California Ammonia Company",
"Defendant"
],
[
"California Sportfishing Protection Alliance",
"Plaintiff"
],
[
"United States",
"Amicus"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
----oo0oo----
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,
NO. CIV. S-05-0952 WBS JMF
Plaintiff,
v.
ORDER RE: DEFENDANT’S MOTION
CALIFORNIA AMMONIA COMPANY FOR SUMMARY JUDGMENT;
d/b/a CALAMCO, a non-profit PLAINTIFF’S MOTION FOR PARTIAL
corporation, SUMMARY JUDGMENT
Defendant.
----oo0oo----
Plaintiff California Sportfishing Protection Alliance
(“CSPA”) filed this action against defendant California Ammonia
Company d/b/a Calamco (“Calamco”) alleging four causes of action
under the Federal Water Pollution Control Act, commonly known as
the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA” or “Act”).
Currently before the court are defendant’s motion for partial
summary judgment on the first and fourth causes of action, or in
the alternative summary adjudication, and plaintiff’s motion for
summary judgment with respect to the second and third causes of
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action. The court will deny both motions for reasons set forth
in this order.
I. Factual and Procedural Background
Plaintiff CSPA is a non-profit public benefit
corporation organized under the laws of the State of California.
(Compl. ¶ 8.) Plaintiff’s mission is to protect the wildlife and
natural resources of the waters of California. (Id.)
Plaintiff’s members reside in the Sacramento-San Joaquin Delta
(“Delta”) and San Francisco Bay area and use and enjoy the Delta
for recreational and other activities. (Id. ¶ 9.)
Defendant Calamco is a non-profit corporation that
operates a facility on twenty-two acres of land leased from the
Port of Stockton in Stockton, California. (Pl.’s Statement of
Disputed and Undisputed Facts # 1.) Defendant’s facility is
located in the Port’s East Complex, a parcel consisting of some
640 acres. (Id.) Defendant primarily receives and stores
ammonia products prior to distribution to its cooperative
members. (Id. # 2). These products include anhydrous ammonia
and urea ammonium nitrate (UN-32). (Id.)
Congress enacted the CWA in 1972. The CWA’s stated
objective is “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. §
1251(a). Congress created the National Pollutant Discharge
Elimination System (“NPDES”) permit program as part of the CWA
and thereby authorized the Environmental Protection Agency (“EPA”
or “Agency”) and state agencies with approved water quality
programs to “regulate[] point sources of pollution that reach the
waters of the United States.” 33 U.S.C. § 1342(a)-(b); County
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Sanitation Dist. No. 2 v. County of Kern, 127 Cal. App. 4th 1544,
1562 n.18 (2005). “[O]n May 14, 1973, California became the
first state to be approved by the EPA to administer the NPDES
permit program.” County of Kern, 127 Cal. App. 4th at 1565-66;
39 Fed. Reg. 26061 (July 16, 1974).
In 1996, defendant applied for and received a NPDES
permit, NPDES Permit No. CA0083968, in connection with its use of
water from the San Joaquin River to warm ammonia as it is being
processed. (Pl.’s Statement of Disputed and Undisputed Facts #
3.) Defendant’s NPDES permit was terminated as of October 27,
2006, when defendant discontinued the use of river water to warm
ammonia. Cal. Reg’l Water Control Bd. Order No. R5-2006 (Central
Valley Reg’l Oct. 27, 2006).
Defendant’s NPDES permit authorized it to discharge
contaminants in storm water as long as defendant met several
requirements. One, defendant must have implemented Best
Available Technology (“BAT”) and Best Conventional Pollutant
Control Technology (“BCT”) to reduce or eliminate industrial
storm water pollution. (NPDES permit ¶ 28.) Two, defendant must
have developed and administered its Storm Water Pollution
Prevention Program (“SWPPP”) in accordance with the requirements
of Attachment C to the permit. (Id. ¶ 19.) Three, defendant
must have not discharged materials other than storm water, which
were not otherwise authorized by the permit, into surface water
or surface water drainage courses. (Id. (A)(3).) Four,
defendant must have not caused certain listed conditions in the
receiving water. (Id. (C)(1)-(13).) Five, defendant must have
complied with the Monitoring and Reporting Program (“MRP”)
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Plaintiff notes that prior to the construction of the 1
detention pond in 1998, storm water from the defendant’s facility
entered the San Joaquin untreated in violation of the NPDES
permit. (Pl.’s Statement of Disputed and Undisputed Facts # 12.)
Because this action is governed by a five-year statute of
limitations, the truth of that assertion is irrelevant. 28
U.S.C. § 2462; Chesapeake Bay Found. v. Bethlehem Steel Corp.,
608 F. Supp. 440, 450 (D. Md. 1985).
4
attached to its permit. (Id. Monitoring and Reporting Program
No. 96-201.)
Defendant captures some of the storm water that falls
onto its facility for reuse in its industrial processes. (Pl.’s
Statement of Disputed and Undisputed Facts # 6.) The rest of the
water flows into the Port’s Municipal Separate Storm Sewer System
(“MS4”). (Morris Decl. Ex. I 59:1-12.) Defendant’s storm water
runoff enters the Port’s East Complex storm water retention basin
through a series of culverts and ditches that serve other tenants
of the Port’s East Complex and are a part of the MS4. (Pl.’s
Statement of Disputed and Undisputed Facts # 8.) This man-made
basin (“detention pond”), which is approximately 12.75 acres in
area, was added in 1998 as a structural control device. (Id. # 1
12). Storm water remains in this basin for some period of time
before discharge into the San Joaquin River, allowing for the
Port to sample the water and control the discharges into the San
Joaquin River, and to allow some pollutants to settle or
dissipate. (Id. # 9-10, 12-20.) Water from the detention pond is
discharged via a pipe to a pool. (Id. # 15.) Water in that pool
then flows through an outfall under the levee into the San
Joaquin River. (Id.)
On February 24, 2005, plaintiff provided several
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federal and state agencies with “notice of Defendant’s violations
of the Act, and of its intention to file suit against Defendant.”
(Compl. ¶ 2); see also 33 U.S.C. § 1365(b)(1)(A) (requiring
plaintiffs to give 60 days notice to designated entities before
filing a citizen’s suit under the act). Plaintiff alleges that
none of the agencies authorized to litigate this matter elected
to do so. (Id. ¶ 3.) Accordingly, plaintiff filed this suit on
May 13, 2005, pursuant to the citizen’s action provision of the
CWA. 33 U.S.C. § 1365. Plaintiff brings four causes of action,
alleging violations of sections 301(a) and 402 of the CWA, 33
U.S.C. §§ 1311, 1342, and the conditions of defendant’s NPDES
permit. In the first claim, plaintiff alleges that defendant
discharged materials other than storm water. In the second
claim, plaintiff alleges that defendant failed to develop and
implement an adequate SWPPP, BAT, and BCT. In the third claim,
plaintiff alleges that defendant violated the terms of its permit
by failing to develop and implement an effective monitoring
program. In the fourth and final claim, plaintiff alleges that
defendant discharged contaminated storm water.
On October 17, 2006, defendant filed a motion for
summary judgement, or in the alternative summary adjudication, on
plaintiff’s first and forth causes of action. Defendant argues
that plaintiff’s complaint is insufficient because plaintiff has
failed to allege what the receiving water is in which defendant
supposedly made an unauthorized discharge and plaintiff has not
produced any evidence that defendant has caused any exceedances
of pollutants in the receiving water. On November 1, 2006,
plaintiff filed a motion for partial summary judgment on the
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second and third causes of action. Plaintiff argues that it is
entitled to summary judgment on these claims as a matter of law
because defendant’s shortcomings in its implementation of SWPPP,
BAT, BCT, and the monitoring program violate its NPDES Permit.
II. Discussion
Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A material fact is one that could affect the outcome of
the suit, and a genuine issue is one that could permit a
reasonable jury to enter a verdict in the non-moving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The party moving for summary judgment bears the initial
burden of establishing the absence of a genuine issue of material
fact and can satisfy this burden by presenting evidence that
negates an essential element of the non-moving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Alternatively, the movant can demonstrate that the non-moving
party cannot provide evidence to support an essential element
upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the
non-moving party must “go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.’” Id. at 324 (quoting Fed.
R. Civ. P. 56(e)). The non-movant “may not rest upon . . . mere
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Defendant has moved, in the alternative, for summary 2
adjudication. While caselaw exists suggesting that a party may
move for summary adjudication of issues, see, e.g., Barker v.
Norman, 651 F.2d 1107, 1123 (5th Cir. 1981); First Nat’l Ins. Co.
v. Fed. Deposit Ins. Corp., 977 F. Supp. 1051 (S.D. Cal. 1997),
this is not the type of motion originally contemplated by Rule
56. Moreover, motions for summary adjudication of issues request
that the court resolve issues that dispose of neither a party nor
a claim, and seldom accomplish anything. Importantly, defendants
do not distinguish between their general request for summary
judgment and particular issues apt for summary adjudication.
Therefore the court’s following discussion applies to both
requests.
7
allegations or denials of the adverse party’s pleading . . . .”
Fed. R. Civ. P. 56(e); Valandingham v. Bojorquez, 866 F.2d 1135,
1137 (9th Cir. 1989). However, any inferences drawn from the
underlying facts must be viewed in a light most favorable to the
party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the
court must not engage in credibility determinations or weigh the
evidence, for these are jury functions. Anderson, 477 U.S. at 2
255.
The plaintiff movant “must establish beyond
peradventure all of the essential elements of the claim or
defense to warrant judgment in his favor.” Fontenot v. Upjohn
Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original);
see also Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002) (“a
substantially higher hurdle must be surpassed, particularly where
. . . the moving party bears the ultimate burden of persuasion .
. . at trial”).
A. Plaintiff’s Standing
Standing is “an essential and unchanging part” of the
Article III case-or-controversy requirement, and is a threshold
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jurisdictional issue in every federal case. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992); Warth v. Seldin, 422 U.S.
490, 498 (1975). Consequently, to come into federal court,
litigants must establish “(1) an ‘injury in fact’ that is (2)
‘fairly traceable’ to the [defendant’s actions] that he
challenges, and (3) that is ‘likely [to be] redressed by a
favorable decision.’” Jackson v. Cal. Dep’t of Mental Health,
399 F.3d 1069, 1071 (9th Cir. 2005) (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81
(2000)). An organization representing its members can meet the
first standing requirement if a member can aver specific facts
that show he or she has suffered an injury in fact. Laidlaw, 528
U.S. at 181.
Defendant challenges plaintiff’s ability to show an
injury in fact because plaintiff’s affidavits from Messrs. Fries,
Holt, and Jennings demonstrate plaintiff would suffer an injury
for pollutants in the San Joaquin River, but not for pollutants
in the Port’s drains, channels, and detention pond. Defendant
proffers admissions by plaintiff that no members of CPSA use the
Port’s detention pond or the ditches and pipes that take
defendant’s storm water to that pond for recreational or any
other purpose. (Morris Reply Decl. Ex. AA.) The Supreme Court
has held that “environmental plaintiffs adequately allege injury
in fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the
area will be lessened’ by the challenged activity.” Laidlaw, 528
U.S. at 181 (quoting Sierra Club v. Morton, 405 U.S. 727, 735
(1972)). As water from the Port’s detention pond is pumped into
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the San Joaquin River, plaintiff demonstrates an injury by
averring that their use and enjoyment of the San Joaquin has been
curtailed because of defendant’s activities. Natural Res. Def.
Council v. Sw. Marine, Inc., 236 F.3d 985, 994 (9th Cir. 2000).
To establish that the injury is fairly traceable to
defendant’s activities, plaintiff need only show that defendant
“discharges a pollutant that causes or contributes to the kinds
of injuries alleged in the specific geographic area of concern.”
Id., 236 F.3d at 994. There is no requirement to pinpoint the
“origins of particular molecules.” Id. If defendant violated
the CWA, there is a sufficient relationship between plaintiff’s
injury and defendant’s activities.
Should the court find that defendant failed to comply
with the CWA, and impose civil penalties, it is well established
that would sufficiently redress the injuries of which plaintiff
complains. P.I.R.G. v. Powell Duffryn Terminals, Inc., 913 F.2d
64, 73 (3d Cir. 1990) (“The general public interest in clean
waterways will be served in this case by the deterrent effect of
an award of civil penalties.”).
Defendant argues at length that plaintiff has failed to
conclusively establish standing with respect to the second and
third causes of action. (Def.’s Opp’n 9-23.) Defendant
specifically argues that even if standing is found for the first
and forth causes of action, standing does not automatically
extend to the second and third causes of action. (Def.’s Opp’n
10 (citing Parker v. Scrap Metal Processors, Inc., 386 F.3d 993
(11th Cir. 2004).) In Parker, the Eleventh Circuit conducted
separate standing analyses for plaintiff’s claims under the CWA
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and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901.
386 F.3d at 1002-04. The court fails to see how this authority
supports the proposition that it must conduct separate standing
inquiries for all four causes of action when all four were
brought under the same statutory provisions, 33 U.S.C. §§ 1311,
1342. See Natural Res. Def. Council v. Sw. Marine, Inc., 39 F.
Supp. 2d 1235, 1240 (S.D. Cal. 1999) (“If a plaintiff has Article
III standing to seek at least one remedy [under the CWA], that
plaintiff has standing to seek other available remedies even if a
court would conclude that that same plaintiff would not have
standing with respect to an additional remedy otherwise
insufficient.”). The court concludes that plaintiff has standing
to maintain this action.
B. Defendant’s Motion for Summary Judgment
Defendant moves for summary judgment on plaintiff’s
first and fourth causes of action, or in the alternative summary
adjudication. In the first cause of action, plaintiff alleges
that defendant discharged materials other than storm water in
violation of the CWA. In the fourth cause of action, plaintiff
alleges that defendant discharged contaminated storm water.
The CWA makes it unlawful for any person or entity to
“discharge any pollutant” without an NPDES permit or in violation
of the provisions of an existing permit. 33 U.S.C. § 1311(a), §
1342(a). “Discharge of any pollutant” is defined as “any addition
of any pollutant to navigable waters from a point source.” §
1362(12)(a). The CWA defines “navigable waters” as “the waters
of the United States, including the territorial seas.” § 1362(7).
The Agency has further defined “waters of the United
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40 C.F.R. 122.2 Reads: Waters of the United States or 3
waters of the U.S. means:
(a) All waters which are currently used, were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the
tide;
(b) All interstate waters, including interstate “wetlands;”
(c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
“wetlands,” sloughs, prairie potholes, wet meadows, playa lakes,
or natural ponds the use, degradation, or destruction of which
would affect or could affect interstate or foreign commerce
including any such waters:
(1) Which are or could be used by interstate or foreign
travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and
sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes
by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the
United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through
(d) of this definition;
(f) The territorial sea; and
(g) “Wetlands” adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) through (f) of
this definition.
Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of CWA (other than cooling
ponds as defined in 40 CFR 423.11(m) which also meet the criteria
of this definition) are not waters of the United States. This
exclusion applies only to manmade bodies of water which neither
were originally created in waters of the United States (such as
disposal area in wetlands) nor resulted from the impoundment of
waters of the United States. [See Note 1 of this section.] Waters
of the United States do not include prior converted cropland.
Notwithstanding the determination of an area’s status as prior
converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water
Act jurisdiction remains with EPA. (emphasis added).
This definition is repeated in a nearly identical form
in the definition of “waters of the United States” governing the
Army Corps of Engineers. See 33 C.F.R. 328.3 (waste treatment
system exception is defined at 33 C.F.R. 328.3 (a)(8)).
11
States” in its governing regulations at 40 C.F.R. 122.2.3
Specifically, “Waste treatment systems, including treatment ponds
or lagoons designed to meet the requirements of CWA (other than
cooling ponds as defined in 40 CFR 423.11(m) which also meet the
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criteria of this definition) are not waters of the United
States.” 40 C.F.R. 122.2.
To qualify for the exclusion from the definition of
waters of the United states under 40 C.F.R. 122.2, a treatment
pond must be designed to meet the requirements of the CWA.
Courts have struggled to ascertain exactly what this means. The
Second Circuit noted in United States v. TGR Corp., 171 F.3d 762,
765 (2d Cir. 1999), that the “regulations provide that this
‘exclusion applies only to manmade bodies of water which neither
were originally created in waters of the United States (such as
disposal area in wetlands) nor resulted from the impoundment of
waters of the United States.’” (citing 40 C.F.R. 122.2). The TGR
Corp. court held that a particular brook could not be considered
a “waste treatment system” because it was not a man-made storm
water system and was instead a “natural tributary of a navigable
water.” Id. (affirming the district court’s conclusion, which the
district court reached after a one-day bench trial).
However, the portion of the regulation to which the
Second Circuit cites was suspended by the EPA in 1980. 45 Fed.
Reg. 48620 (July 21, 1980) (suspending, “This exclusion applies
only to manmade bodies of water which neither were originally
created in waters of the United States (such as a disposal area
in wetlands) nor resulted from the impoundment of waters of the
United States.”). The Agency’s purpose with that sentence “was
to ensure that dischargers did not escape treatment requirements
by impounding waters of the United States and claiming the
impoundment was a waste treatment system, or by discharging
wastes into wetlands.” Id. Industry petitioners argued that “the
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language of the regulation would require them to obtain permits
for discharges into existing waste treatment systems, such as
power plant ash ponds, which had been in existence for many
years.” Id. The Agency also had “issued permits for discharges
from, not into, these systems.” Id. The current regulations
continue this suspension. 40 C.F.R. 122.2 n.1.
The United States District Court for the Northern
District of California found significance with the word
“designed” in the regulations. N. Cal. River Watch v. City of
Healdsburg, No. 01-4686, at *33-34 (N.D. Cal. Jan. 23, 2004),
aff’d, 457 F.3d 1023 (9th Cir. 2006). In Healdsburg, the City
argued that a pond, formed by an old gravel mining pit, acted as
percolating filter so that the city was entitled to the waste
treatment exception. Id. at *34. After a four-day bench trial,
the District Court held that the City was not entitled the
exception because the pond “itself was not ‘designed’ to meet the
requirements of the Clean Water Act or ‘designed’ to be part of
the waste-treatment system.” Id. Because the pond pre-existed
the CWA and pre-existed the city’s treatment plant, the court
found that the pond was not “designed” with sewage disposal in
mind. Id.
In affirming, the Ninth Circuit held that the “waste
treatment system exemption was intended to exempt either water
systems that do not discharge into waters of the United States or
waters that are incorporated in an NPDES permit as part of a
treatment system.” Healdsburg, 457 F.3d at 1031-32 (citing 44
Fed. Reg. 32858 (June 7, 1979)); In the Matter of: Borden,
Inc./Colonial Sugars, 1984 1 E.A.D. 895 (E.P.A. 1984)). The
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Ninth Circuit held that while the pond may be part of a waste
treatment system, “it does not fall under the exemption because
it is neither a self-contained pond nor is it incorporated in an
NPDES permit as part of a treatment system.” Healdsburg, 457
F.3d at 1032.
The Ninth Circuit counsels that “this exception was
meant to avoid requiring dischargers to meet effluent discharge
standards for discharges into their own closed system treatment
ponds.” Healdsburg, 457 F.3d at 1032 (citing 45 Fed. Reg. 48620
(July 21, 1980)). “Regulations under the CWA, however, still
extend to discharges from treatment ponds.” Id. This court is
bound by the Ninth Circuit and concludes that the waste treatment
exemption would apply to waters that are incorporated into an
NPDES permit as part of a treatment system. Id. at 1031-32.
The key question is whether the Port’s detention pond
is a treatment system covered by a valid NPDES permit. Defendant
bears the burden to prove that the exception applies to its
activities. Healdsburg, 457 F.3d at 1031. Defendant asserts
that the Port’s detention pond constitutes a treatment system
covered by the Port’s NPDES permit. (Def.’s Mot. for Summ. J.
12.) The Port’s NPDES permit refers to the Port’s detention pond
as the “East Complex retention basin.” (Wall Decl. Ex. A ¶ 9.)
The detention pond discharges from a “point source” into the San
Joaquin River, a water of the United States. (Id.) The Port’s
NPDES permit envisions “a cooperative partnership” between the
Port and defendant to control pollutants in storm water
discharges. (Id. ¶ 24 (citing 58 Fed. Reg. 61157).) The Port’s
NPDES permit requires it to apply “best management practices that
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reflect BAT/BCT to minimize or avoid [discharges of the specified
pollutants.]” (Id. § A.5.)
Plaintiff raises several doubts as to whether defendant
has met its burden. Specifically, plaintiff argues that the Port
requires its tenants to abide by their own NPDES permits. (Pl.’s
Opp’n 15-16.) Evidence submitted by the plaintiff indicates that
the Port may not contemplate application of the Port’s NPDES
permit to defendant’s activities. Specifically, a port official
testified that “the port requires their tenants to comply with
their NPDES permits.” (See Lozeau Supp. Dec. Ex. C.) Defendant
includes the Port’s NPDES permit without explaining its
application to defendant. (See Wall Decl. Ex. A.) Defendant
does not point to any place in the Port’s NPDES permit stating
that it covers defendant’s activities. Although this is a
question of law, “[c]ourts are entitled to assistance from
counsel, and an invitation to search without guidance is no more
useful than a litigant’s request to a district court at the
summary judgment stage to paw through the assembled discovery
material.” Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys.,
309 F.3d 433, 436 (7th Cir. 2002) (citing United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in” the record.)).
Accordingly, the court must deny defendant’s motion for summary
judgment for failure to demonstrate that the Port’s NPDES permit
applies to defendant.
Moreover, plaintiff raises doubts as to whether the
detention pond constitutes a best management practice (“BMP”).
The Port’s NPDES permit requires use of BMPs reflecting BAT/BCT.
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BMPs are “schedules of activities, prohibitions of 4
practices, maintenance procedures, and other management practices
to prevent or reduce the pollution of ‘waters of the United
States.’” 40 C.F.R. 122.2 “BMPs also include treatment
requirements, operating procedures, and practices to control
plant site runoff, spillage or leaks, sludge or waste disposal,
or drainage from raw material storage.” Id.
16
(Wall Decl. Ex. A § A.5.) BMPs are defined in the CWA. 33
U.S.C. § 1314(e); see also 40 C.F.R. 122.2. The CWA also gives 4
as guidance for BAT several factors, including “the age of
equipment and facilities involved, the process employed, the
engineering aspects of the application of various types of
control techniques, process changes, the cost of achieving such
effluent reduction, [and] non-water quality environmental
impact.” 33 U.S.C. § 1314(b)(2)(B) (the factors for assessing
BCT are defined at 33 U.S.C. § 1314 (b)(4)(B) and are similar).
In order for the Port’s detention pond to be a “waste treatment
system,” it must comply with the CWA. 40 C.F.R. 122.2. The CWA
prohibits discharge of any pollutant in violation of the
provisions of an existing NPDES permit. 33 U.S.C. § 1311(a), §
1342 (a). The Port’s NPDES permit requires the use of BMPs that
reflect BAT/BCT, and the Ninth Circuit has held that for the
waste treatment exemption to apply, there must be a treatment
system incorporated into an NPDES permit. Healdsburg, 457 F.3d
at 1031-32.
Therefore, to be a waste treatment system as reflected
by the terms of the Port’s NPDES permit and consequentially for
the waste treatment exemption to apply here, the Port’s detention
pond must be a BMP reflecting BAT/BCT. Defendant cites an Agency
publication indicating that a detention pond is an effective BMP.
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(Wall Decl. Ex. E.) Plaintiff’s expert argues that through
evaporation, the detention pond may increase the concentration of
some pollutants. (Lozeau Supp. Decl. Ex. D.) Further, Thomas
Trexler, an expert for the defendant, argues that the grass and
weeds in the detention pond reduce oil and grease as those
materials would adhere to the grass and weeds. (Lozeau Supp.
Decl. Ex. F.) Plaintiff’s expert offers photographic evidence
that the detention pond is almost completely unvegetated along
its sides. (Bond Decl. Exs. F, G.) Plaintiff’s evidence raises
a disputed material fact as to whether the Port’s detention pond
is a BMP reflecting BAT/BCT. Since the court has concluded as
matter of law that Port’s detention pond must meet that
requirement under the provisions of its NPDES permit for the
waste treatment exception to apply, the court must deny
defendant’s motion for summary judgment as a disputed question of
material fact remains.
Lastly, the EPA’s intent in promulgating the waste
treatment exemption was to prevent entities from claiming the
exemption by simply impounding “waters of the United States.” 45
Fed. Reg. 48620. Plaintiff argues that the Port’s detention pond
is simply that, an impoundment of “waters of the United States.”
(Pl.’s Opp’n at 25-26.) Specifically, plaintiff argues that the
drains and channels that empty into the Port’s detention pond are
themselves “waters of the United States.” The EPA’s mandate and
logic would dictate that something does not lose its status as a
water of the United States by impoundment. See W.Va. Coal Ass’n
v. Reilly, 782 F. Supp. 1276, 1289-90 (S.D.W.Va. 1989.) (instream
treatment ponds are method for treating pollutants resulting from
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coal mining in which the flow of a natural stream is interrupted
to construct treatment ponds; since the pond interrupts a stream
it is a water of the United States); Nat’l Wildlife Fed’n v.
Consumers Power Co., 862 F.2d 580, 589 (6th Cir. 1988) (power
company’s “facility merely changes the movement, flow, or
circulation of navigable waters when it temporarily impounds
waters from Lake Michigan in a storage reservoir, but does not
alter their character as waters of the United States”).
Plaintiff’s argument depends on this court concluding
that the drains and channels flowing into the Port’s detention
pond are “waters of the United States.” The storm water flowing
from defendant’s facility to the Port’s drains and channels would
not be considered “waters of the United States” if the Port’s
detention pond is a treatment facility covered by a NPDES Permit.
Healdsburg, 457 F.3d at 1032 (dischargers need not meet effluent
discharge standards for discharges into their treatment ponds but
only from them). The situation here is materially different from
an instream treatment pond or withdrawing water from a lake. All
of the storm water on defendant’s facility flows to the detention
pond prior to it being pumped into the San Joaquin River. Those
waters never obtained the status of “waters of the United States”
if the waste treatment exemption applies, distinguishing the
cases mentioned above. Although the court will deny defendant’s
motion for summary judgment, the court does not deny the motion
on these grounds.
C. Plaintiff’s Motion for Partial Summary Judgment
The CWA imposes a duty on the NPDES holder to comply
with the terms of its Permit. 40 C.F.R. 122.41 (“The permittee
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Best Technology Available is governed by 33 U.S.C. § 5
1314(b)(1)(B) and is largely similar to the criteria utilized for
BAT and BCT.
19
must comply with all conditions of this permit. Any permit
noncompliance constitutes a violation of the Clean Water Act and
is grounds for enforcement action; for permit termination,
revocation and reissuance, or modification; or denial of a permit
renewal application.”) Plaintiff moves for summary judgment on
the second and third causes of action. In the second cause of
action, plaintiff alleges that defendant failed to develop and
implement an adequate SWPPP, BAT, and BCT. In the third cause of
action, plaintiff alleges that defendant violated the terms of
its permit by failing to develop and implement an effective
monitoring program.
As previously mentioned, several factors need to be
considered to assess BAT-compliance, including “the age of
equipment and facilities involved, the process employed, the
engineering aspects of the application of various types of
control techniques, process changes, the cost of achieving such
effluent reduction, [and] non-water quality environmental
impact.” 33 U.S.C. § 1314(b)(2)(B). Factors for BCT are
similar. 33 U.S.C. § 1314(b)(4)(B). Assessing such factors is
often considered a question of fact. Hudson Riverkeeper Fund v.
Orange & Rockland Utils., 835 F. Supp. 160, 165 (S.D.N.Y. 1993)
(“Best Technology Available, under the statute, is something
which exists, and can be ascertained as fact.”) Specifically, in 5
this case, plaintiff argues that defendant did not comply with
BAT because it did not install certain measures on its own
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facility, such as sediment filters and hydrocarbon pads.
Plaintiff further argues that defendant’s monitoring was
defective because it did not sample enough storm drains to
accurately represent the quantity and quality of storms water
discharging from the facility and did not test for pollutants
that it should reasonably have expected to be present in its
storm water discharges as required by the defendant’s MRP.
Defendant presents a disputed material fact as to
whether the Port’s detention pond complies with the BAT/BCT
requirement in defendant’s NPDES permit, thus rendering summary
judgment inappropriate as to the second cause of action.
Defendant also presents evidence that (1) defendant’s monitoring
of some, but not all, of its drains satisfies the
representativeness requirement of the permit in that the drains
tested adequately covered the land from which pollutants could
originate, and (2) defendant tested for the constituents
enumerated in its MRP, rendering summary judgment inappropriate
on the third cause of action. Cf. Sierra Club v. El Paso Gold
Mines, 421 F.3d 1133, 1150 (10th Cir. 2005) (conflicting expert
testimony raises a genuine issue of material fact). Therefore,
the court cannot grant plaintiff’s motion for partial summary
judgment.
IT IS THEREFORE ORDERED that:
(1) defendant’s motion for summary judgment, or in the
alternative summary adjudication, be, and the same hereby is,
DENIED; and
///
///
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(2) plaintiff’s motion for summary judgment on the
second and third causes of action be, and the same hereby is,
DENIED.
DATED: January 26, 2007
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-04-02446/USCOURTS-ca8-04-02446-0/pdf.json | [
[
"Roy Bass",
"Appellee"
],
[
"Charles Bausley",
"Appellant"
],
[
"Kevin Dagan",
"Appellee"
]
] | 1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, adopting the report and recommendations of the
Honorable Beverly Stites Jones, United States Magistrate Judge for the Western
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2446
___________
Charles Bausley, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Roy Bass, Deputy, Crawford County * Western District of Arkansas.
Detention Center; Kevin Dagan, *
Deputy, Crawford County Detention * [UNPUBLISHED]
Center, *
*
Appellees. *
___________
Submitted: October 1, 2004
Filed: October 13, 2004
___________
Before MURPHY, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Charles Bausley appeals the district court’s1
dismissal of his 42 U.S.C. § 1983
action claiming defendant jail personnel violated his constitutional rights in various
Appellate Case: 04-2446 Page: 1 Date Filed: 10/13/2004 Entry ID: 1821014
-2-
ways. Having carefully reviewed the record, we conclude dismissal was proper for
the reasons the district court stated. Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
Appellate Case: 04-2446 Page: 2 Date Filed: 10/13/2004 Entry ID: 1821014 |
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[
"City of Brentwood",
"Defendant"
],
[
"Sam Peiris",
"Plaintiff"
]
] | 1
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27 Notice Of Request for Voluntary Dismissal and Order
Peiris v. City of Brentwood
Case No. C05-01451 SI 1
GREGORY S. REDMOND, ESQ. (SBN158135)
430 Railroad Avenue
Pittsburg, CA 94565
Tel: (925) 427-9023
Fax: (925) 427-3020
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAM PEIRIS,
Plaintiff,
V.
CITY OF BRENTWOOD,
Defendants.
CASE NO. C05-01451 SI
NOTICE OF REQUEST FOR
VOLUNTARY DISMISSAL OF ACTION
AND ORDER
FRCP 41
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Peiris v. City of Brentwood
Case No. C05-01451 SI 2
NOTICE IS HEREBY GIVEN THAT: Plaintiff, Sam Peiris, herein requests the Court to
voluntarily dismiss the above-referenced action pursuant to Federal Rules of Civil Procedure,
Rule 41(a)(2), without prejudice.
Dated: October 19, 2005 _______________________________
GREGORY S. REDMOND, ESQ.
Based upon Plaintiff’s request and good cause showing:
IT IS SO ORDERED.
Dated: October __, 2005 ________________________________
Judge Susan Illston
Case 3:05-cv-01451-SI Document 14 Filed 10/19/2005 Page 2 of 2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
GRANTED
Judge Susan Illston |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_03-cv-01006/USCOURTS-cand-3_03-cv-01006-0/pdf.json | [
[
"George Giurbino",
"Respondent"
],
[
"Michael J. Matesky",
"Petitioner"
]
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL J. MATESKY,
Petitioner,
v.
GEORGE GIURBINO,
Respondent.
/
No. C 03-01006 JSW (PR)
DENIAL OF PETITION FOR
WRIT OF HABEAS CORPUS
Michael J. Matesky (“Petitioner”), a state prisoner incarcerated at the Centinela State
Prison in Imperial, California, filed a pro se petition on March 7, 2003, for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On June 4, 2003, this Court ordered George Giurbino
(“Respondent”) to show cause why the writ should not be granted (docket no. 2). On August 4,
2003, Respondent filed an answer to the petition (docket no. 4). Petitioner filed a traverse on
December 9, 2003 (docket no. 10). The Court now DENIES the petition for a writ of habeas
corpus.
BACKGROUND
On April 22, 1987, Petitioner pled guilty to petty theft with a prior theft conviction (“the
April 1987 prior”). (Respondent’s Exhibit (“Resp. Exh.”) 1 at 148.) At that time, he was
represented by Attorney E. Davola. (Id.) On October 29, 1987, Petitioner was convicted of
robbery (“the October 1987 prior”). (Id. at 216.) On June 18, 1999, Petitioner was convicted by
a San Mateo County jury of two counts of commercial burglary, theft, spousal battery, assault
with a deadly weapon, uttering a terrorist threat, simple assault, attempted robbery, robbery,
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operating a motor vehicle without the owner’s consent, and resisting arrest. (Id. at 122-26.) On
June 18, 1999, a court trial began on Petitioner’s prior convictions. (Id. at 125.) The
prosecution alleged that the April 1987 prior and the October 1987 prior were serious felonies
and therefore strikes under the California three strikes law. (Id. at 502-12.) Petitioner
challenged the inclusion of the April 1987 prior as a strike, denying that it was a serious felony
because he had not been convicted of using a deadly or dangerous weapon during the offense as
the prosecution alleged. (Id. at 564-77.) The prosecution sought to prove that the prior
conviction was a serious felony by submitting the following documents: (1) the February 1987
preliminary hearing transcript; (2) a certified copy of the April 22, 1987 handwritten court
minutes; (3) a certified copy of the June 15, 1987 probation report summary of the facts of the
1987 conviction; (4) a certified copy of the March 29, 1988 abstract of judgment from Santa
Clara Superior Court; and (5) a certified copy of the June 17, 1991 abstract of judgment from
Santa Clara Superior Court. (Id. at 145-47, 149-54, 159-212.)
The court granted Petitioner’s request for a continuance of the trial on the April 1987
prior after Petitioner asserted that the weapon-use allegation was dismissed rather than stayed,
and Petitioner requested an opportunity to obtain a reporter’s transcript of the proceedings
relating to the prior. (Id. at 476-79.) The prosecution then presented evidence establishing that
the reporter’s transcript and court reporter’s notes from the April 22, 1987 guilty plea hearing
and the court reporter’s notes from the March 29, 1988 sentencing hearing had been destroyed
following normal government records practices. (Id. at 482-84.) In addition, the prosecution
presented evidence that the court reporter’s notes from the June 17, 1991 sentencing hearing
were lost by a courier. (Id.)
Petitioner testified and submitted a declaration regarding the April 1987 prior. (Id. at
587-89, 651-52.) He admitted stealing money from the department store and having a knife, but
denied displaying the blade to the security guard or admitting the weapon-use allegation. (Id.)
He stated that he was offered a deal to plead guilty to a violation of California Penal Code
section 666 (petty theft) without any weapon enhancement, at no time agreed to a knife-use
allegation, and understood that the crime to which he would plead guilty would not be
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considered a serious felony for any purpose. (Id.) He pled guilty to the section 666 violation
because his lawyer told him it was not a serious felony which would subject him to enhanced
punishment in the future. (Id.) He stated that if he did admit the weapon-use allegation, it was
without his understanding and advisement of his constitutional rights. (Id.)
The court denied Petitioner’s motion to strike the April 1987 prior after finding his
version of the events incredible. (Id. at 686-89; Resp. Exh. 5 at 4.) The court concluded
Petitioner had admitted the weapon-use allegation and was properly advised of his constitutional
rights at the time he pled guilty thereto. (Resp. Exh. 5 at 4.) Thereafter, the court denied
Petitioner’s motion to withdraw his waiver of jury trial on the priors after finding he made a
knowing and intelligent tactical decision to waive jury trial. (Resp. Exh. 1 at 653.)
Subsequently, the court found true the allegations that Petitioner had been convicted of two
prior serious felonies. (Id. at 686-89.) The California Court of Appeal affirmed the trial court’s
judgment. People v. Matesky, A092436 (Jan. 11, 2002) (Resp. Exh. 5). The California
Supreme Court denied review. People v. Matesky, S104456 (April 10, 2002) (Resp. Exh. 7).
STANDARD OF REVIEW
This Court may entertain a petition for a 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
petition in this case was filed after the effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), so the provisions of that Act apply. See Lindh v. Murphy, 521 U.S.
320, 327 (1997); Gratzer v. Mahoney, 397 F.3d 686, 689 (9th Cir. 2005).
Under the AEDPA, a district court may grant a petition challenging a state conviction or
sentence on the basis of a claim that was “adjudicated on the merits” in state court only if the
state court’s adjudication of the claim: “(1) 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 (2) 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). In determining whether the state court’s decision is contrary
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to, or involved an unreasonable application of, clearly established federal law, a federal court
looks to the decision of the highest state court to address the merits of a petitioner’s claim in a
reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). It also looks to
any lower court decision examined and/or adopted by the highest state court to address the
merits. See Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) (because state appellate
court examined and adopted some of the trial court’s reasoning, the trial court’s ruling is also
relevant). If the state court only considered state law, the federal court must ask whether state
law, as explained by the state court, is “contrary to” clearly established governing federal law.
See Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001). A state court’s determination is
“‘contrary to’ federal law if the state court (1) ‘applies a rule that contradicts the governing law’
set forth in Supreme Court case authority or (2) applies controlling law to a set of facts that are
‘materially indistinguishable’ from a Supreme Court decision but nevertheless reaches a
different result.” Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1169 (9th Cir. 2003) (quoting
Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). A state court’s decision is an “unreasonable
application” of federal law if it is “objectively unreasonable,” which requires the state court
decision to be more than incorrect or erroneous. Lockyer, 538 U.S. at 75.
DISCUSSION
I. There Was Sufficient Evidence for a Trier of Fact to Find Beyond a Reasonable
Doubt that Petitioner’s April 1987 Prior Conviction Was for a Serious Felony.
Petitioner claims there was insufficient and unreliable evidence to support the finding
that his April 1987 prior was a serious felony, as is required to qualify as a strike under
California’s three strikes law. (Petition for writ of habeas corpus (“Petition”) at 6.) The Due
Process Clause “protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship,
397 U.S. 358, 364 (1970). A federal court reviewing a claim of insufficient evidence in a
habeas petition does not determine whether it is satisfied that the evidence meets the reasonable
doubt standard. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court
“determines only whether, ‘after viewing the evidence in the light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” See id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In the context of sentence enhancements, a petitioner can obtain habeas relief if no rational trier
of fact could find the elements of the enhancement true beyond a reasonable doubt. Garcia v.
Carey, 395 F.3d 1099, 1102 (9th Cir. 2005) (applying Jackson standard to state sentence
enhancements).
The court must review the entire record when the sufficiency of the evidence is
challenged in habeas proceedings. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985),
vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev’d, 483 U.S. 1 (1987).
Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a
conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion and
speculation, however, cannot support logical inferences. Id. If confronted by a record that
supports conflicting inferences, a federal habeas court “must presume – even if it does not
affirmatively appear on the record – that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326. Except in the
most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit
credibility determinations. See id.
The Ninth Circuit has recently clarified that “[a]fter AEDPA, we apply the standards of
Jackson with an additional layer of deference.” Juan H. v. Allen III, 408 F.3d 1262, 1274 (9th
Cir. 2005). Therefore, our task is to determine whether the decision by the California Court of
Appeal denying Petitioner’s claim of insufficient evidence (1) “‘applies a rule that contradicts
the governing law set forth’ in Supreme Court cases,” or (2) “‘confronts a set of facts that are
materially indistinguishable from’ a Supreme Court decision but ‘nevertheless arrives at a result
different from’ that precedent,” or (3) “‘identifies the correct governing legal principle’ from a
Supreme Court decision ‘but unreasonably applies that principle to the facts of the prisoner’s
case.’” Id. at 1270 (citations omitted).
///
///
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In this case, the California Court of Appeal identified the relevant standards of review as
those set out in Jackson and applied California cases with standards entirely consistent with
controlling federal law:
In determining whether there is substantial evidence to establish that the April 1987
prior qualified as a serious felony, we review the record in the light most favorable
to the judgment, and presume in support of the judgment every fact the trier could
reasonably deduce from the evidence. Substantial evidence in a criminal case is
“evidence which is reasonable, credible, and of solid value -- such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.”
(Exh. 5 at 5 (citing People v. Henley, 72 Cal. App. 4th 555, 561 (1999)).) Therefore, the
standards applied by the appellate court were not contrary to Supreme Court precedent. See
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Next, the Court asks whether the decision of the California Court of Appeal “reflected
an ‘unreasonable application of’ Jackson and Winship to the facts of this case.” Juan H., 408
F.3d at 1275 (citations omitted). An unreasonable application means that the appellate court’s
application was “objectively unreasonable.” Id. at 1275 n.13 (citing Williams, 529 U.S. at 409).
The federal habeas court determines sufficiency of the evidence in reference to the substantive
elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein
v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004). California’s three strikes law prescribes
increased terms of imprisonment for defendants who have previously been convicted of certain
“violent” or “serious” felonies. Cal. Penal Code § 667(d). The term “serious felony” includes
any felony in which the defendant personally used a dangerous or deadly weapon. Id.
§ 1192.7(c)(23). Under this law, a third strike defendant (with two or more prior felony
convictions) receives an indeterminate term of life imprisonment, which includes a minimum
term. Id. § 667(e)(2). The minimum term for a third strike defendant is the greatest of (1)
“[t]hree times the term otherwise provided as punishment for each current felony conviction,”
(2) twenty-five years, or (3) the term determined by the court, including enhancements. Id. To
determine whether a prior conviction qualifies as a strike for purposes of California’s three
strikes law, the trial court is free to look to the documents and transcripts underlying the prior
conviction, including the preliminary hearing transcript, certified copies of prison records,
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certified copies of court orders or abstracts of judgment and charging documents, and a plea
reflected in a minute order. See Cal. Penal Code § 969b; People v Reed, 13 Cal. 4th 217, 223
(1996); People v. Guerrero, 44 Cal. 3d 343, 355 (1988);Henley, 72 Cal. App. 4th at 560.
Here, at trial, the prosecution supplied the following evidence in support of its
contention that the April 1987 prior qualified as a serious felony:
(1) The February 1987 preliminary hearing transcript, in which a department store
security guard testified that when he confronted Petitioner and said they needed to discuss
Petitioner’s transaction, Petitioner drew a knife and said, “I’m going to stick you, man.” The
security guard also identified the knife Petitioner pointed at him.
(2) A certified copy of the April 22, 1987 handwritten court minutes which state that
Petitioner was charged with “PC 666 w/12022(b) enh.” and pled guilty to “Ct. 2 - PC 666
w/knife alleg. 12022(b) admitted.”
(3) A certified copy of the June 15, 1987 probation report summary of the facts of the
April 1987 prior.
(4) A certified copy of the March 29, 1988 abstract of judgment from Santa Clara
Superior Court which revealed that, in October 1987, Petitioner had pled guilty to robbery. The
abstract further revealed that on April 22, 1987, Petitioner had pled guilty to “petty theft with
specified prior” and that the attached weapon use enhancement under section 12022(b) was
stayed. The abstract reflects a sentence of five years, eight months on both priors, with
execution suspended due to Petitioner’s commitment to the California Rehabilitation Center
(“CRC”).
(5) A certified copy of the June 17, 1991 abstract of judgment from Santa Clara Superior
Court, which indicates that on April 22, 1987, Petitioner pled guilty to “petty theft w/spec.” and
that the attached section 12022(b) enhancement was stayed. The abstract reflects a five year,
eight month sentence imposed due to Petitioner’s exclusion from CRC and setting aside of the
CRC commitment. (Resp. Exh. 1 at 145-47, 149-54, 159-212; Resp. Exh. 5 at 2-3.)
The trial court declined to consider the preliminary hearing testimony and instead based
its finding on the court records indicating the Petitioner admitted the weapon use allegation.
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(Resp. Exh. 3 at 11-12 n.15.) The court also considered and found incredible Petitioner's
testimony and declaration in which Petitioner stated that he never admitted the weapon use
allegation. (Resp. Exh. 5 at 4.) Subsequently, the court found the April 1987 prior and serious
felony allegation true. (Id.; Resp. Exh. 1 at 686-89.)
In his direct appeal to the California Court of Appeal, Petitioner argued that the evidence
was insufficient to prove beyond a reasonable doubt that his April 1987 prior was a serious
felony. (Resp. Exh. 3 at 10-21.) In affirming the trial court’s conclusion that it was, the court of
appeal rejected Petitioner’s insufficiency of the evidence arguments. Petitioner argued, for
example, that because the “reliable” portions of the record, namely, the transcripts of the 1987
plea hearing and the two subsequent sentencing hearings, were lost or destroyed, the evidence
establishing the strike is insufficient. (Id. at 15-17.) The court of appeal rejected this argument,
stating that the trier of fact may look to the entire record of conviction in determining whether a
prior conviction qualifies as a serious felony. (Resp. Exh. 5 at 6.)
Petitioner also argued that he never was charged with a weapon-use allegation in the
petty theft complaint. (Resp. Exh. 3 at 12-13.) The January 1987 complaint alleged three
counts: (1) second degree burglary; (2) petty theft with a prior; and (3) assault with a deadly
weapon. (Resp. Exh. 5 at 5-6.) At the conclusion of the February 1987 preliminary hearing, the
court granted the prosecutor’s motion to amend the complaint, adding armed robbery and
possession of a dirk or dagger. (Id. at 6.) Petitioner was held to answer on count 1 (burglary),
count 2 (petty theft with a prior), count 3 (assault with a deadly weapon), count 4 (armed
robbery), and count 5 (possession of a dirk or dagger). (Id.) The court of appeal rejected
Petitioner’s pleading deficiency argument, holding that the failure to charge an offense or an
enhancement is hardly determinative of whether a defendant admitted the allegation when he
subsequently entered into a negotiated disposition. (Id.)
Finally, Petitioner argued that the clerk's minutes and the two abstracts of judgments
were inadmissible under the official records exception to the hearsay rule. (Resp. Exh. 3 at 22-
23.) He further argued that these documents were unreliable in that
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(1) the abstracts of judgment indicate that the court stayed the term for the
weapon use enhancement when sentencing him on the April 1987 prior, and
such a stay would have been improper; (2) the CRC referral he received in
March 1998 would have been statutorily prohibited had he admitted the
weapon-use allegation; (3) a January 1992 information twice mentioned the
April 1987 prior but did not mention the weapon-use allegation; and (4)
charging a felony petty theft (666) with a weapon use enhancement is
“obviously unusual.”
(Resp. Exh. 5 at 7.) The court of appeal concluded that the trial court properly admitted the
clerk's minutes and the two abstracts of judgment under the official records exception to the
hearsay rule. (Id.) In addition, the court rejected Petitioner’s arguments that these documents
were unreliable:
Even assuming the term for the section 12022(b) enhancement was erroneously
stayed and the CRC referral was statutorily prohibited, the court in its discretion
could reject [Petitioner’s] arguments that the subject documents were unreliable
. . . . In addition, the trial court could properly determine that the absence of the
section 12022(b) allegation in the January 1992 information had no effect on the
reliability of the subject clerk’s minutes and abstracts of judgment. Finally, we
note that, however unusual it may be to charge a felony petty theft with a
weapon use enhancement, [Petitioner] concedes there is no statutory prohibition
against such a charge. Thus, the court could reasonably determine that the
subject documents were reliable despite the fact that [Petitioner] was so
charged, or could have been charged differently, i.e., with armed robbery.
(Id. at 8.)
Considering only the court records relied on by the trial court, the California Court of
Appeal rejected Petitioner's “contention that the evidence relied on to establish that he used a
knife in committing the April 1987 prior . . . did not constitute substantial evidence.” (Id.) This
Court therefore must determine whether, in accord with Jackson, any rational trier of fact could
find the elements of the enhancement true beyond a reasonable doubt by considering only
(1) the certified copy of the April 22, 1987 handwritten court minutes; (2) the certified copy of
the March 29, 1988 abstract of judgment from Santa Clara Superior Court; and (3) the certified
copy of the June 17, 1991 abstract of judgment from Santa Clara Superior Court. When viewed
in the light most favorable to the prosecution, the court records submitted by the prosecution
were sufficient to allow a rational trier of fact to find beyond a reasonable doubt that Petitioner
admitted to the weapon use allegation and therefore, that his April 1987 prior was a serious
felony. The California Court of Appeal’s finding to this effect was not an objectively
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unreasonable application of the Jackson standard. Accordingly, Petitioner is not entitled to
habeas relief on this claim.
II. Petitioner May Not Collaterally Attack the April 1987 Prior through a § 2254
Petition.
Petitioner next claims that his guilty plea to the April 1987 prior for petty theft was
unknowingly and involuntarily obtained in violation of his due process rights. (Petition at 6.)
At trial, Petitioner moved to strike the April 1987 prior as constitutionally invalid, arguing that
“he was not advised of his rights and never plead nor meant to plead” to the weapon use
allegation. (Resp. Exh. 1 at 1-7.) After an evidentiary hearing, the trial court denied the motion
to strike the April 1987 prior as unconstitutional, finding Petitioner’s version of the events
incredible and noting that the court records established that Petitioner had admitted the weaponuse allegation. (Resp. Exh. 5 at 11.) The court of appeal concluded that substantial evidence
supported the trial “court’s determination that [Petitioner] failed to carry his burden of proving
the constitutional invalidity of the April 1987 prior.” (Id.)
A petitioner generally may not attack the constitutionality of a prior conviction used to
enhance a later sentence. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-4
(2001). “[O]nce a state conviction is no longer open to direct or collateral attack on its own
right because the defendant failed to pursue those remedies while they were available . . . the
conviction may be regarded as conclusively valid.” Id. at 403. “If that conviction is later used
to enhance a criminal sentence, the defendant generally may not challenge the enhanced
sentence through a petition under 2254 on the ground that the prior conviction was
unconstitutionally obtained.” Id. at 403-4. An exception to this rule exists where there was a
failure to appoint counsel in violation of the Sixth Amendment. Id. A plurality in the Supreme
Court recognized an additional exception when, through no fault of petitioner’s, the
constitutional claim was not reviewed, e.g., the state court refused to rule on a properly
presented constitutional claim or there is newly discovered evidence of actual innocence. See
id. at 405-6. The record reflects that Petitioner was represented by counsel in connection with
his prior guilty plea. (Resp. Exh. 5 at 11.) In addition, Petitioner raised this challenge to his
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prior conviction in state court. (Id. at 8-11.) Therefore, neither exception to the general rule
applies and Petitioner is precluded from collaterally attacking the 1987 conviction through a
§ 2254 petition.
III. The Court of Appeal’s Conclusion that the Destruction of the Reporter’s Notes Did
Not Violate Petitioner's Right to Due Process Was Not Contrary to or an
Unreasonable Application of Clearly Established Federal Law.
Finally, Petitioner claims he was deprived of due process because the transcript notes
from the hearings related to the April 1987 prior were destroyed and/or lost. (Petition at 6.)
Petitioner also raised this claim before the court of appeal, citing to California v. Trombetta,
467 U.S. 479 (1984) and People v. Moore, 201 Cal. App. 3d 51 (1988), for the proposition that
“where evidence is unavailable but essential to a defendant’s case, the defendant must show it is
impossible to secure an adequate substitute for the missing evidence before claiming a due
process violation.” (Resp. Exh. 5 at 14.) In addition, as the court of appeal noted, the missing
evidence must “possess an exculpatory value that was apparent before the evidence was
destroyed.” (Id. (citing Trombetta, 467 U.S. at 489).) Petitioner argued that because the
“documents the prosecution relied on to prove the prior raised questions on their faces, the
material nature and the exculpatory value of the reporter’s transcripts at issue should have been
readily apparent to the state before destruction of the notes.”
The court of appeal rejected this argument, stating that even if “the submitted documents
did raise obvious questions, it is not at all apparent that the transcripts would have answered
them in a manner favorable to defendant.” (Id.) The court of appeal held that Petitioner’s claim
failed because he could not show that the transcripts were exculpatory or that their exculpatory
value was apparent prior to destruction. (Id. at 15.) Furthermore, the court of appeal noted that
Petitioner “conceded that the missing transcript was lawfully destroyed” and that he cited “no
authority for the proposition that the prosecution had a duty to preserve the entire record of
conviction.” (Id.) In addition, the court noted that “substantial evidence supported the trial
court’s determination that [Petitioner] admitted the weapon use allegation” and that the April
1987 prior constituted a serious felony. (Id.) The court of appeal concluded that no due process
violation was demonstrated. (Id.)
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A state’s failure to provide a full record of a trial may violate a defendant’s due process
rights and form the basis for federal habeas corpus relief. See Madera v. Risley, 885 F.2d 646,
648 (9th Cir. 1989). However, a habeas petitioner also must establish prejudice from the lack of
recordation to be entitled to habeas corpus relief. See id. at 649. In addition, states only have a
duty to preserve evidence that might be expected to play a significant role in the suspect’s
defense. Trombetta, 467 U.S. at 488. A state violates due process by destroying material
evidence that possesses “exculpatory value that was apparent before the evidence was
destroyed” and is “of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” Id.
Here, given the Court’s conclusion that there was sufficient evidence for a rational trier
of fact to find beyond a reasonable doubt that Petitioner suffered a serious felony conviction in
1987, Petitioner cannot establish prejudice from the lack of recordation. See Madera, 885 F.2d
at 648. In addition, because the destroyed transcripts recorded Petitioner’s guilty plea to the
petty theft with a prior charge, the state had no reason to expect that the transcripts might play a
significant role in his defense to those charges. See Trombetta, 467 U.S. at 488. Moreover,
even if the transcripts were exculpatory, the state had no reason to suspect in 1987 that the
transcript might play a role in Petitioner’s defense to unrelated criminal charges thirteen years
later, under a three strikes law which was not passed until 1994. Therefore, the court of
appeal’s conclusion that the destruction of the reporter’s notes did not violate Petitioner's right
to due process was not contrary to or an unreasonable application of clearly established federal
law.
///
///
///
///
///
///
///
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CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. The clerk
shall enter judgment in favor of Respondent and close the file.
IT IS SO ORDERED.
Dated: March 17, 2006
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
Case 3:03-cv-01006-JSW Document 11 Filed 03/17/06 Page 13 of 13 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-23-10912/USCOURTS-ca5-23-10912-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Quintaveaus Williams",
"Appellant"
]
] | United States Court of Appeals
for the Fifth Circuit ____________
No. 23-10912
____________
United States of America,
Plaintiff—Appellee,
versus
Quintaveaus Williams,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-260-1
______________________________
Before King, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Appellant Quintaveaus Williams pleaded guilty to two counts of
possessing a firearm after a felony conviction in violation of 18 U.S.C.
§ 922(g)(1) and obstruction of justice under 18 U.S.C. § 1503(a). As part of
his written plea agreement, Williams waived his right to appeal. At
sentencing, Williams objected to any sentence imposed on the § 922(g)(1)
counts, contending that the statute violates the Second Amendment under
_____________________
* This opinion is not designated for publication. See 5th Cir. R. 47.5.
United States Court of Appeals
Fifth Circuit
FILED
November 26, 2024
Lyle W. Cayce
Clerk
Case: 23-10912 Document: 118-1 Page: 1 Date Filed: 11/26/2024
No. 23-10912
2
New York Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The district
court overruled the objection and imposed a sentence totaling 180 months.
Williams appeals, contending that § 922(g)(1) exceeds Congress’s
authority under the Commerce Clause and violates the Second Amendment.
The government contends that Williams waived this challenge when he
entered into the plea agreement.
We pretermit the question of waiver because even if his appeal is not
barred, Williams’ arguments lack merit. As Williams acknowledges, his
Commerce Clause argument is foreclosed. See United States v. Perryman, 965
F.3d 424, 426 (5th Cir. 2020). Additionally, we recently held that § 922(g)(1)
does not violate the Second Amendment. See United States v. Diaz, 116 F.4th
458, 471 (5th Cir. 2024). Because Williams cannot prevail under any standard
of review even if he did not waive his challenge, we AFFIRM.
Case: 23-10912 Document: 118-1 Page: 2 Date Filed: 11/26/2024 |
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[
"K. Mendoza-Powers",
"Respondent"
],
[
"Juan Moran",
"Petitioner"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
JUAN MORAN,
Petitioner,
v.
K. MENDOZA-POWERS, WARDEN,
Respondent.
/
CV F 06-1395 LJO SMS HC
ORDER DIRECTING PETITIONER TO
SUBMIT RESPONSE TO RESPONDENT’S
REPLY
[Doc. 15]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On January 29, 2007, Respondent filed a motion to dismiss the instant petition as time
barred. (Court Doc. 10.) Petitioner filed an opposition on February 20, 2007. (Court Doc. 11.)
Pursuant to the Court’s order of May 17, 2007, Respondent filed a reply to Petitioner’s
opposition, on June 11, 2007. (Court Doc. 15.) Petitioner did not file a response.
In determining whether a petitioner is entitled to equitable tolling, it is Petitioner who
bears the burden of proof. Pace v. DiGuglielmo, 544 U.S. 408, 418; 25 S.Ct. 1807, 1814 (2005);
Smith v. Duncan, 297 F.3d 809 (9th Cir.2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th
Cir.1993).
In his opposition of February 20, 2007, Petitioner claims that his prior attorney did not
return his legal documents to him until mid-February of 2005, after several written requests.
Petitioner cites “See Exhibit #1.” However, no such Exhibit or Document can be found in the
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Court’s record.
Accordingly, if Petitioner wishes the Court to review any evidence in support of his
claims for equitable tolling, Petitioner shall file further briefing and evidence in support of his
claims within twenty (20) days from the date of service of this order.
IT IS SO ORDERED.
Dated: July 9, 2007 /s/ Sandra M. Snyder
icido3 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-01395-LJO -SMS Document 16 Filed 07/10/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_05-cv-03353/USCOURTS-cand-3_05-cv-03353-4/pdf.json | [
[
"Orin Safier",
"Plaintiff"
],
[
"Western Digital Corporation",
"Defendant"
]
] | - 1 -
ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORIN SAFIER, an individual, and New
Mexico resident, on behalf of himself,
those similarly situated, and the
general public,
Plaintiff,
v.
WESTERN DIGITAL
CORPORATION, a foreign
corporation; and DOES 1 THROUGH
20,
Defendants
CASE NO. 05-03353 BZ
[PROPOSED] ORDER PRELIMINARILY
APPROVING CLASS ACTION
SETTLEMENT
Judge: Hon. Bernard Zimmerman
Courtroom: G, 15th Floor
WHEREAS, a class action lawsuit is pending before this Court entitled Orin Safier v.
Western Digital Corporation, Case No. 05-03353 BZ (the “Litigation”); and
WHEREAS, the parties have applied to the Court for an Order approving a settlement of
the Litigation in accordance with a Settlement Agreement dated March 7, 2006 (the “Agreement”),
which has been entered into by Plaintiff, on behalf of himself and the Settlement Class defined
therein, and Defendant; and
WHEREAS, the Court has read and considered the Agreement and its attached exhibits, and
has listened to and considered the arguments of counsel for the parties, including at a hearing held
on February 15, 2006, in this matter and, good cause appearing,
IT IS HEREBY ORDERED AS FOLLOWS:
1. This Order incorporates by reference the definitions set forth in the Agreement.
Unless otherwise defined, all terms used herein shall have the same meaning as set forth in the
Agreement.
2. The Court preliminarily certifies the Settlement Class, for settlement purposes only,
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consisting of:
All persons and entities who purchased in the United States an Aftermarket Western Digital
Corporation hard disk drive from March 22, 2001 to February 15, 2006. Excluded from the
Class are Western Digital Corporation, its directors, officers, and employees; Judge Bernard
Zimmerman and the members of his immediate family; and all persons who timely and
validly request exclusion from the Class in compliance with the requirements of the Class
Notice.
3. The Court preliminarily approves the Agreement and the settlement terms described
therein as being fair, just, reasonable, and adequate to the Settlement Class and meriting submission
to the Settlement Class for consideration. The Court finds that the proposed settlement results from
extensive arms-length negotiations, including mediation before the Honorable Justice Steven Stone
(Ret.) at JAMS, between counsel for the parties and only after counsel conducted a thorough
examination and review of the relevant law, facts, and allegations to assess the merits of Plaintiff’s
claims.
4. The Court preliminarily approves Plaintiff Orin Safier as class representative, and
preliminarily approves Plaintiff’s attorneys, Gutride Safier LLP, as Settlement Class Counsel in this
Litigation.
5. A final hearing (the “Settlement Hearing”) shall be held before this Court on
__________, 2006 at 10:00 am, to determine: (1) whether the proposed settlement of the Litigation
as set forth in the Settlement Agreement is just, fair, reasonable, and adequate for the Class and
should be granted final approval; (2) whether certification of the Class should be made final;
(3) whether the Court should enter the proposed judgment dismissing the Litigation with prejudice;
(4) whether the Court should award Plaintiff’s Counsel attorneys’ fees and expenses in the amount
set forth in the Settlement Agreement; and (5) whether the Court should award Plaintiff $1,000 for
his time and effort in the Litigation. The Settlement Hearing and settlement terms may be
postponed, adjourned, changed or rescheduled by the Court without further notice to the Settlement
Class.
6. The Court approves as to form and content the Notice of Class Litigation and
Proposed Settlement (the “Long Form Notice”), in the form of Exhibit A to this Order, the
Summary (Email and Mail) Notices of Class Litigation and Proposed Settlement (collectively, the
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 2 of 22
June 14 3:00 p.m.
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“Summary Notice”), in the form of Exhibit B to this Order, and the Advertisement Notice of Class
Litigation and Proposed Settlement (“Advertisement Notice”) in the form of Exhibit C to this Order.
The Court finds that the Long Form Notice, Summary Notice and Advertisement Notice are written
in plain English and are readily understandable by Class Members. The Court finds that the Long
Form Notice, Summary Notice, and Advertisement Notice fairly apprise the Class Members: (1) of
the pendency of the Litigation; (2) of their right to exclude themselves from the Class and the
proposed settlement; (3) that any Judgment will bind all Class Members who do not request
exclusion; and (4) that any Class Member may object to the settlement. The Court further finds that
the use of Summary Notice and the Advertisement Notice, which refer to the more detailed Long
Form Notice available on the internet, is reasonable and appropriate. Cf. Commentary to Civil
Local Rule 3-7 (in context of securities class actions) (“Notification to class members traditionally
involves a combination of mailings and newspaper advertisements that are expensive, employ small
type, convey little substantive information and that may be difficult for members of the class to
locate. The rapid growth of Internet technology provides a valuable means whereby extensive
amounts of information can be communicated at low cost to all actual or potential members of a
class, as well as to other members of the public.”).
7. The Court finds that the method of publication for the Notices to the Settlement
Class as set forth in the Agreement is the best notice practicable under the circumstances, and shall
constitute valid, due, and sufficient notice to all Class Members in the Settlement Class, and that
such Notice complies with the Federal Rules of Civil Procedure, the Constitution of the United
States, and all other applicable laws.
8. The Court approves the Claim Form, in the form of Exhibit D to this Order, for
submission to the Settlement Class.
9. Defendant is ordered to deliver the Notices to Class Members, as set forth in the
Agreement, no later than ten (10) days following entry of this Order. Defendant is further ordered
to provide a declaration to the Court confirming that it has done so and attaching copies of the
notices, no later than thirty (30) days before the Final Approval hearing.
10. Any person legally entitled to object to the approval of the proposed settlement may
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appear at the Settlement Hearing and object to the proposed settlement or any part thereof.
However, objections to the proposed settlement shall be heard, and any papers or briefs submitted in
support of said objections shall be considered by the Court (unless the Court in its discretion shall
otherwise direct), only if, on or before May 24, 2006, said objectors have personally delivered their
written objections and all papers and briefs they propose to discuss at the Settlement hearing to
Plaintiff’s Counsel and Defendant’s Counsel (or sent such written objections, papers, and briefs to
Plaintiff’s Counsel and Defendant’s Counsel via U.S. first-class mail, postage prepaid, on or before
May 19, 2006) at the following addresses:
GUTRIDE SAFIER LLP
Adam Gutride, Esq.
Seth A. Safier, Esq.
835 Douglass Street
San Francisco, CA 94114
Counsel for Plaintiff
IRELL & MANELLA LLP
Scott D. Baskin, P.C.
Lisa M. Sharrock
840 Newport Center Drive, Suite 400
Newport Beach, CA 92660-6324
Counsel for Defendant
11. All requests for exclusion from the Settlement Class must be post-marked no later
than May 19, 2006.
12. No later than seven (7) calendar days before the Final Approval hearing, counsel for
the parties shall file a joint status report on the number of opt-outs. The joint status report shall
attach copies of all timely-submitted opt-out requests and objections. The parties’ counsel shall also
file any supplemental briefs in support of the settlement by that date.
13. To the extent permitted by law, pending final determination of whether the
settlement contained in the Agreement should be approved, neither Plaintiff nor any other member
of the Settlement Class either directly, indirectly, representatively, or in any other capacity shall
commence or prosecute, or cause to be commenced or prosecuted, any Litigation or proceeding in
any court or tribunal asserting any of the Released Claims against Defendants, or any of them,
unless such member of the Settlement Class has sought and received leave from this Court on such
terms as are just, including, without limitation, being required to file a request for exclusion from
the Settlement Class.
14. The Agreement and Settlement are not to be deemed admissions of liability or fault
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by Defendants, or a finding of the validity of any claims in the Litigation. The Agreement and
Settlement are not a concession by the parties. Neither the Agreement, nor any of its terms or
provisions, nor any of the negotiations or proceedings connected with it, shall be offered as
evidence or received in evidence in any pending or future civil, criminal, or administrative
Litigation or proceeding, except in a proceeding to enforce the Agreement or Final Judgment, or to
defend against the assertion of the Released Claims, or as otherwise required by law.
15. This Order shall become null and void, and shall be without prejudice to the rights of
the parties, all of whom shall be restored to their respective positions existing as of September 27,
2005, if, for any reason, the Agreement is terminated or the Effective Date does not occur. In such
event, as set forth in the Agreement, the Litigation shall proceed as though the Settlement Class had
never been certified and the Agreement never had been executed and the Defendant will not be
deemed to have consented to certification of any class and will retain all rights to fully object to or
oppose any motion for class certification.
IT IS SO ORDERED.
Dated: ________, 2006 _____________________________
Honorable Judge Bernard Zimmerman
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 5 of 22
Mar. 17
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORN
I
A
IT IS SO ORDERED
Judge Bernard Zimmerman
Case 3:05-cv-03353-BZ Document 31 Filed 03/17/06 Page 5 of 22
1
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT (“NOTICE”)
TO: ALL PERSONS AND ENTITIES WHO PURCHASED IN THE UNITED STATES AN
AFTERMARKET WESTERN DIGITAL CORPORATION HARD DISK DRIVE FROM
MARCH 22, 2001 TO FEBRUARY 15, 2006.
THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE READ THE COMPLETE NOTICE
CAREFULLY.
I. Purpose of this Notice.
There is now pending in the District Court for the Northern District of California a class action
lawsuit entitled Orin Safier v. Western Digital Corporation, Case No. 05-03353 BZ (the “Litigation”).
This Notice explains the nature of the Litigation and the general terms of a proposed settlement, and
informs you of your legal rights and obligations. Unless otherwise set forth, this Notice incorporates by
reference the definitions set forth in the Class Action Settlement Agreement.
Safier (“Plaintiff”) filed a class action lawsuit against Western Digital Corporation (“Defendant”
or “WDC”) on behalf of the Class described above. Plaintiff alleges that in the sale and marketing of its
hard disk drives, Defendant overstates the useable storage capacity by approximately 7%. According to
Plaintiff, when attached to most personal computers, a hard disk drive advertised by Defendant as having
“80GB” will only show an available capacity of “74.4GB.” Plaintiff alleges that one reason for this
disparity is the use of two different measurements of a “GB.” Plaintiff alleges that computer operating
systems compute 1 GB as 1,073,741,824 bytes (the “Binary Definition”), but Defendant and other hard
disk drive manufacturers compute 1 GB as 1,000,000,000 bytes (the “Decimal Definition”). Plaintiff
alleges that Defendant’s conduct constituted false advertising, unfair business practices, breach of
contract, fraud, and violations of the California Consumers Legal Remedies Act. In the Litigation,
Plaintiff would seek to recover on behalf of the Class one or more of the following remedies: (a) the right
to return their hard disk drives for a full refund; (b) the right to keep their hard disk drives and receive a
partial refund of the amount they paid proportional to the amount of capacity that was not provided;
(c) statutory damages for each act of false advertising knowingly directed at a senior citizen; and
(d) punitive damages. Class Counsel also seek an injunction requiring Defendant to more accurately
disclose the storage capacity of its hard disk drives in advertising, marketing materials, and packaging.
Class Counsel and the Class Representative have concluded, after due investigation and after carefully
considering the relevant circumstances and the applicable law, that it would be in the best interests of the
Class to enter into this Settlement Agreement in order to avoid the uncertainties of litigation and to assure
that the benefits reflected herein are obtained for the Class. Class Counsel believe that the most likely
recovery for the class, if any, would be a refund of a portion of the purchase price paid for the hard disk
drive, although the percentage refunded could be lower than the percentage of storage capacity that was
not provided. Class Counsel are informed that more than five million of Defendant’s hard disk drives
were sold in the aftermarket during the period covered by this settlement. Class Counsel estimate that the
average purchase price of Defendant’s hard disk drives during the period at issue in this Litigation was
$150. If the Court required Defendant to refund 5% of the purchase price of each hard disk drive
purchased, Class Counsel believe that the average refund would be $7.50. Class Counsel and the Class
Representative understand, however, that there are numerous risks in continuing with this litigation,
including the possibility of being unable to achieve the following: (1) certify a class of purchasers, (2)
demonstrate that Defendant’s undisclosed use of the Decimal Definition was misleading to reasonable
consumers or otherwise constituted an unfair trade practice, (3) prove damages on behalf of the Class and
each Class Member, (4) demonstrate knowing false advertising directed at a senior citizens, and (5) show
that injunctive relief should be awarded. After due investigation and evaluation, Class Counsel and the
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EXHIBIT A
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Class Representative consider the settlement set forth herein to be fair, reasonable, adequate, and in the
best interests of the Class.
Because it is not technologically possible, the proposed Settlement does not call for capacity to be
added to Class Member’s hard disk drives. But the proposed settlement will provide each Class Member
with free backup and recovery software that can be used in conjunction with his/her hard disk drive.
Based on Class Counsel’s investigation of the retail market for backup and recovery software, Class
Counsel believes that this software is comparable to products that retail for $30 or more, and that in light
of the risks of litigation, providing this software adequately compensates class members for the loss that
Class Counsel believe they suffered in allegedly not getting the capacity promised in Defendant’s
advertisements.
Defendant denies Plaintiff’s allegations, any wrongdoing, and any liability whatsoever and
believes it has many legal defenses to all of the claims asserted by Plaintiff. Defendant believes that its
marketing and advertising complied and continues to comply in all respects with the law and that no Class
Member, including the Plaintiff, has sustained any damages or injuries related to its actions or omissions.
Nonetheless, Defendant has concluded that further conduct of the Litigation would be protracted and
expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon
the terms and conditions of the proposed settlement.
Judge Bernard Zimmerman of the District Court for the Northern District of California (also
referred to as the “Court”) has preliminarily determined that this Litigation should proceed as a class
action, for purposes of settlement only, with Safier (“Plaintiff”) as the representative of the Class, and has
granted preliminary approval of the proposed settlement.
II. Class Members.
The Court has conditionally ruled that the Litigation may be maintained on behalf of the
following:
ALL PERSONS AND ENTITIES WHO PURCHASED IN THE UNITED STATES AN
AFTERMARKET WESTERN DIGITAL CORPORATION HARD DISK DRIVE FROM
MARCH 22, 2001 TO FEBRUARY 15, 2006.
Excluded from being Class Members are Western Digital Corporation, its directors, officers, and
employees; Judge Zimmerman and the members of his immediate family; and all persons who
timely and validly request exclusion from the Class.
“Aftermarket” means that the disk drive was not purchased as part of a computer assembled by an
OEM but rather was purchased separately. Non-excluded persons and entities that fall within the
above definition are referred to as “Class Members.”
III. Settlement Benefit For Class Members.
A. If the settlement is finally approved by the Court, WDC will include language
substantially similar to the following on its website and, as soon as its current packaging supply is
depleted, but no later than six (6) months following the Effective Date, on its product packaging:
“1 gigabyte (GB) = 1 billion bytes. Total accessible capacity varies depending on
operating environment.”
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B. If the proposed settlement is finally approved by the Court, WDC will provide to Class
Members the following “Class Benefit:”
For ninety (90) days following the Effective Date, all Class Members who successfully
complete a Claim Form prior to the expiration of the Claim Period shall be entitled to
download, from the Website, software with substantially all of the following capabilities
and features: data back up; data recovery; a user interface to guide users through each
step of the backup and recovery process; ability to execute operations in the background
and create full backups without impacting users, applications, or the network; capability
to schedule backup scripts and jobs as needed; built-in file filters that allow users to
choose which files they want to include or exclude in the back-up; copy files in native file
format; restore files/folders from a backup; ability to backup entire system into a backup
set, which can be appended at a later date; capability of creating a single or multiple file
backup set which the user can compress or encrypt for added security; progressive
backup method which only copies new or modified files and allows user to restore their
machine to any point in time with a single pass; choice of full, incremental, and mirror
backups; ability to duplicate data, including all necessary system files to a secondary hard
disk drive’s root level to make a bootable disk; fully scriptable on Windows and
Macintosh so that a user can create scripts that force certain applications to close when
the backup runs and re-open when completed; if unable to backup an individual file,
intelligence to retry that file on the next operation until properly backed up; built-in
schedulers that allow users to create automated back-up, duplicate, and restore scripts to
meet their needs; detailed log reporting; option of backing up to a disk; protection to
ensure that backups do not exceed disk capacity; notification to users regarding
successful backups, failed backups, and other relevant information; built-in software
compression; encryption algorithm; password protection; data grooming options for disk
backup sets; restore option to replace existing files on hard drives only if the backed up
files are newer; restore option to restore only files which exist in the backup but have
been deleted from the hard drives; duplicate option to replace existing files on hard drives
only if the copy on the source disk is newer; selectors for Documents and Settings, Office
Documents, Music, Movies, Pictures, Operating System, and Applications; DVD+R DL
(double layer) drives and media support; taskbar Icon and hot key backup; catalog files
automatically repaired when they become out of sync; supports the following Windows
operation systems: Windows 98SE, ME, 2000, XP Pro and Home, NT 4, and Win XP
64-bit OS; supports the following Macintosh operation systems: Mac OS 10.1.5 and
later; localized in the following languages: English, French, German, and Japanese;
supports local, external, removable, and network hard disk regardless of interface;
capable of being saved and re-used by Class Members.
IV. Claims Process and Deadline.
A. Claims Process. Only one Class Benefit is available for each Class Member. In order to
receive the Class Benefit, Class Members must complete the Claim Form available at
http://www.wdc.com/settlement by (1) providing their name and postal or e-mail address; (2) providing
the estimated date of purchase of a WDC hard disk drive; (3) providing the serial number for the WDC
hard disk drive they purchased or a copy of their receipt or other proof of purchase; and (4) attesting,
under penalty of perjury, that their WDC hard disk drive was not purchased from an OEM, that they have
registered for only one Class Benefit, and that the information provided is correct. Such information is to
be used only for purposes of administering this Settlement. Excluded Class Members are not eligible to
receive the Class Benefit. Class Members may submit the Claim Form electronically on the Settlement
Website or print the Claim Form and submit it by U.S. mail to: WDC Settlement Claim Form; 5654
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Geary Blvd., #210511; San Francisco, CA 94121, according to the instructions on the Claim Form.
B. Claims Deadline. Class Members must complete the Claim Form no later than thirty (30)
days after Final Approval of the Settlement. Class Members who do not complete the Claim Form by that
date will not be eligible to receive the Class Benefit.
V. Dismissal of Litigation, Entry of Judgment and Release of Claims.
If the Court approves the proposed settlement, it will enter a judgment that will dismiss the
Litigation on the merits and with prejudice as to all Class Members. All Class Members who do not
validly and timely request to be excluded from the proposed settlement shall be forever barred from
prosecuting their own lawsuits against Defendant for claims that were made or that were required to be
made in this Litigation. In particular, all Class Members who do not opt-out of the Litigation shall be
deemed to have released Defendant and each of its past or present officers, directors, agents, designees,
servants, sureties, attorneys, employees, parents, associates, controlling or principal shareholders, general
or limited partners or partnerships, subsidiaries, divisions, affiliates, insurers, heirs, and all successors or
predecessors in interest, assigns, or legal representatives from any and all liabilities, claims, cross-claims,
causes of action, rights, actions, suits, debts, liens, contracts, agreements, damages, restitution,
disgorgement, costs, attorneys’ fees, losses, expenses, obligations, or demands, of any kind whatsoever,
whether in arbitration, administrative, or judicial proceedings, whether as individual claims or as claims
asserted on a class basis or on behalf of the general public, whether known or unknown, suspected or
unsuspected, threatened, asserted, or unasserted, actual or contingent, liquidated or unliquidated, whether
under federal statutory law, federal common law, federal regulation, or the statutory or common laws or
regulations of any and all states or subdivisions, to which res judicata would apply if the Litigation had
been litigated to a complete and full judgment. Class Members who wish to exclude themselves from the
Settlement (opt-out) must follow the procedures set forth in Section VII(B) of this Notice.
VI. Attorneys’ Fees and Costs.
From the inception of this Litigation, Plaintiff’s Counsel have not received payment for their
services, nor have they been reimbursed for any out-of-pocket expenses. Class Counsel believes that at
least one million persons and entities are eligible to obtain the class benefit set forth herein, and estimate
that the class benefit has a value of at least $30.00. If the Court approves the proposed settlement,
Plaintiff’s Counsel will ask the Court to award, and Defendant has agreed to pay, and will not contest the
reasonableness of, an award of attorneys’ fees of up to $485,000 and expenses up to $15,000. At
Plaintiff’s request, Defendant will also submit a statement to the Court in which this matter is pending
stating that it does not oppose a request for fees and expenses of up to the agreed amounts. Additionally,
Plaintiff’s Counsel will ask the Court to award, and Defendant has agreed to pay, and will not contest the
reasonableness of, a $1,000.00 incentive award to the Class Representative for his time and effort related
to the Litigation and risks undertaken in prosecuting it. Finally, WDC has agreed to administer the
settlement including the class notice, claim form, and provision of the Class Benefit, and has agreed to
bear its own costs associated therewith, except that Class Counsel has agreed to collect any opt-out
requests and any Claim Forms submitted by mail, and shall bear their own costs associated therewith.
Any award of attorneys’ fees and costs and any payment to the Plaintiff will be paid separately
from, and will not reduce, the Class Benefit provided under the settlement. Class Members will not be
personally liable for any of Defendant’s or Class Counsel’s attorneys’ fees, expenses, or payment except
in connection with any objection to the settlement pursuant to section VIII(B) of this Agreement.
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VII. Rights and Options of Class Members.
A. Remain a Class Member.
1. If you do not request exclusion from the Class, you will remain a Class Member.
Your interests in connection with the proposed settlement will be represented by Plaintiff and Plaintiff’s
Counsel. You, however, will not be charged for the services or expenses of Plaintiff’s Counsel.
Plaintiff’s Counsel in the Litigation is:
GUTRIDE SAFIER LLP
Adam Gutride
Seth A. Safier
835 Douglass Street
San Francisco, California 94114
www.gutridesafier.com
WDC is represented in the Litigation by:
IRELL & MANELLA LLP
Scott D. Baskin, P.C.
Lisa M. Sharrock
840 Newport Center Drive, Suite 400
Newport Beach, CA 92660-6324
2. If the proposed settlement is approved by the Court and the judgment becomes
final, you will be entitled to the Class Benefit described in Section III, above, if you submit the Claim
Form no later than thirty (30) days after Final Approval. If the proposed settlement is not granted final
approval or the judgment does not become final, the certification of the Class will be vacated and the
Litigation will continue as if no proposed settlement had been reached.
3. As a Class Member, you will be bound by any judgment or other disposition of
the Litigation, even if you do not submit a claim or take advantage of the Class Benefit. Furthermore, you
and your heirs, executors, administrators, representatives, agents, partners, successors, and assigns will be
deemed to have agreed to the terms of the Settlement and the release set forth in Section V, above.
B. Opt-Out of the Settlement. You have the right to opt-out of the Settlement. If you optout of the Settlement, you will not be bound by or subject to any judgment or Settlement of the Litigation.
If you opt-out, however, you will also not be entitled to receive the Class Benefit. If you wish to opt-out,
you must submit a written, signed request to opt-out, by postage-paid, first class mail, stating (1) your
name, address, and telephone number, (2) a reference to this Litigation (i.e., Safier v. Western Digital
Corporation, Case No. BZ 05-03353), (3) the serial number of the WDC hard disk drive you purchased,
(4) the approximate date when you purchased a WDC hard disk drive, and (5) your desire to opt-out of
the Class. Requests to opt-out must be sent to WDC Opt-Out, 5654 Geary Blvd., #210511, San
Francisco, CA 94121 and post-marked no later than May 19, 2006. If you do not submit a timely opt-out
request that complies with these requirements, your opt-out request will be deemed invalid and you will
not be excluded from the Class.
C. Intervene In The Litigation And/Or Object to the Settlement. You have the right to
intervene in the Litigation and object to, or comment on, the proposed settlement, award of attorneys’ fees
and expenses, or payment to the Plaintiff as set forth in Section VIII, below.
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VIII. Final Settlement Hearing and Settlement Objections.
A. On ___________, 2006 at 10:00 am, a public hearing will be held before Judge Bernard
Zimmerman of the District Court for the Northern District of California, located at 450 Golden Gate Ave,
San Francisco, CA. The hearing will determine: (1) whether the proposed settlement of the Litigation as
set forth in the Class Action Settlement Agreement is just, fair, reasonable, and adequate for the Class and
should be granted final approval; (2) whether certification of the Class should be made final; (3) whether
the Court should enter the proposed judgment dismissing the Litigation with prejudice; (4) whether the
Court should award Plaintiff’s Counsel attorneys’ fees and expenses in the amount set forth in the Class
Action Settlement Agreement; and (5) whether the Court should award Plaintiff $1,000 for his time and
effort in the Litigation. You are not required to attend the Settlement Hearing.
B. Procedure for Objection, Intervention, and Appearance at Final Approval Hearing and
Deadlines.
1. If you are a Class Member, you have the right to object to the settlement. To do
so, you must submit a written statement setting forth: (1) your name, address, and telephone number, (2)
the name of this Litigation (i.e., Safier v. Western Digital Corporation, Case No. 05-03353 BZ), (3) the
approximate date when you purchased a WDC hard disk drive, (4) the serial number for the WDC hard
disk drive you purchased, and (5) your objection and supporting arguments to Plaintiff’s Counsel and
WDC’s Counsel at the addresses set forth in Section VII(A)(1) above. Your written objection must be
personally delivered by May 24, 2006 (or sent via U.S. first-class mail, postage prepaid, on or before May
19, 2006). You cannot object if you have opted out of the Class. Only those that remain in the Class may
object to the Settlement.
2. Any motion for intervention in the litigation must comply with the Federal Rules
of Civil Procedure and the Local Rules of the Northern District of California and be filed with the Clerk
of the Court, District Court for the Northern District of California, 450 Golden Gate Ave., San Francisco,
CA 94102, no later than May 24, 2006. No one who has opted-out of the Class may move to intervene.
A motion for intervention must include a certification that you have personally delivered identical copies
to Plaintiff’s Counsel and WDC’s Counsel on or before May 24, 2006 (or that you sent those copies to
Plaintiff’s Counsel and WDC’s Counsel by U.S. first class mail, postage prepaid, on or before May 19,
2006).
3. You may also attend the Final Settlement Hearing either in person or through an
attorney retained by you at your own expense. You may ask to be heard by Judge Zimmerman at the
Final Settlement Hearing. In order to be heard, however, you must have submitted a written objection or
request to intervene in compliance with Section (VIII)(B)(1), above and include in your comments a
statement that you intend to appear and wish to be heard at the Final Settlement Hearing.
IX. Additional Information and Important Dates.
A. Additional Information. The description of the Litigation set forth in this Notice is general
and does not cover all of the issues and proceedings thus far. If you have additional questions you can
contact Plaintiff’s Counsel (in writing) or see the complete file including the individual terms of the
Settlement in the Litigation by visiting the Clerk of the Court, District Court for the Northern District of
California, 450 Golden Gate Ave., San Francisco, California. The Clerk will make the file relating to this
Litigation available to you for inspection and copying at your own expense. You also can review the
court file electronically at https://ecf.cand.uscourts.gov/cand/index.html. In order to do so, you must log
in using a password (which can be obtained at http://pacer.psc.uscourts.gov) and pay a usage fee. In
addition, the Settlement Agreement, Claim Form, Class Action Complaint, Plaintiff’s motion for
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preliminary approval, and Defendant’s brief in support of preliminary approval may be obtained on the
Settlement Website, located at http://www.wdc.com/settlement.
B. Deadlines and Dates to Remember.
x May 19, 2006 is the deadline to Opt-Out of the settlement.
x May 24, 2006 is the deadline to Intervene/Object.
x _____________, 2006 is the Final Hearing Date.
x Thirty Days after Final Approval is the deadline to complete the Claim
Form to receive the Class Benefit.
Dated: _____________, 2006 Honorable Judge Bernard Zimmerman
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From: Western Digital Corporation
To: [Addressee Email Address]
Subject: Notice Of Class Action Settlement
You are receiving this notice because our records indicate that you purchased an aftermarket
Western Digital Corporation (“WD”) hard disk drive between March 22, 2001 and February 15, 2006.
“Aftermarket” purchasers are those who purchased their hard disk drives separately rather than preinstalled by an original equipment manufacturer into a computer.
A proposed class action settlement may affect your legal rights. If the settlement is approved,
you may be eligible to receive free hard disk drive backup and recovery software from WD. Read below
for a summary of the proposed settlement. For a detailed legal notice and complete terms, please visit
www.wdc.com/settlement.
A class action lawsuit entitled Safier v. Western Digital Corporation is pending in the U.S.
District Court for the Northern District of California. The lawsuit claims that in the sale and marketing of
its hard disk drives, Western Digital overstates the useable storage capacity. According to the lawsuit,
when attached to most personal computers, a hard disk drive advertised as having “80GB” will only show
an available capacity of “74.4GB.” The lawsuit alleges that one reason for this disparity is the existence
of two different measurements of a “GB,” one of which is used by computer operating systems and
another of which is used by hard disk drive manufacturers. The lawsuit seeks restitution, damages,
punitive damages, and injunctive relief. The lawsuit is case number 05-03353 BZ.
WD has denied any wrongdoing or liability. WD believes that its marketing and advertising
complied and continues to comply in all respects with the law. WD further believes that no Class
Member, including the Plaintiff, has sustained any damages or injuries. Nonetheless, WD has concluded
that further conduct of the Litigation would be protracted and expensive, and that it is desirable that the
Litigation be fully and finally settled in the manner and upon the terms and conditions of the proposed
settlement.
If the Court approves the settlement, WD will change how it markets and advertises the available
storage capacity of its hard disk drives. WD also will provide eligible Class Members with free backup
and recovery software to use with their hard disk drives. WD will be released from any further related
claims by Class Members. Plaintiff’s Counsel will ask the Court to award, and WD agrees to pay, an
award of attorneys’ fees of up to $485,000 and expenses of up to $15,000. Class Members will not be
required to pay these attorneys’ fees or costs.
You have four options about how to respond to the proposed settlement. Before making a
decision, you should read the full explanation of the proposed settlement and release of claims at
www.wdc.com/settlement. You have only a limited time to make your decision:
Option 1. Sign Up To Receive Free Software As Part Of The Settlement.
To get the software, you must fill out the Claim Form available at
http://www.wdc.com/settlement no later than thirty days after Final Approval of
the settlement. If you sign up for the free software, you give up your right to
bring a separate lawsuit against Western Digital.
Option 2. Exclude Yourself From the Class
To preserve your right to bring a separate lawsuit, you must exclude yourself
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EXHIBIT B
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from the class. To do so, you must mail a letter by May 19, 2006, according to
the instructions available at www.wdc.com/settlement. By excluding yourself,
you won’t get the free software.
Option 3. Make An Objection To The Settlement
To object to the settlement, you must serve legal papers on counsel for the parties
by May 24, 2006, according to the instructions available at
www.wdc.com/settlement.
Option 4. Do Nothing
If you do nothing, you won’t get the free software. You also give up your right
to bring a separate lawsuit against Western Digital.
To get more information about the settlement or about options 1-3, please visit
http://www.wdc.com/settlement.
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From: Western Digital Corporation
To: [Addressee Email Address]
Subject: Notice Of Class Action Settlement
On __________, 2006, the U.S. District Court for the Northern District of California granted
Final Approval of a class action settlement that may affect you. You may recall receiving a notice of this
settlement several months ago.
The settlement applies to all persons and entities who purchased an aftermarket Western Digital
Corporation (“WD”) hard disk drive between March 22, 2001 and February 15, 2006. “Aftermarket”
purchasers are those who purchased their hard disk drives separately rather than pre-installed by an
original equipment manufacturer into a computer. Such purchasers are eligible to receive free hard disk
drive backup and recovery software from WD.
To get the software, you must fill out and submit the Claim Form available at
http://www.wdc.com/settlement no later than __________, 2006.
If you filled out the Claim Form when you received the prior notice, you do NOT need to
take further action at this time. You will receive instructions about how to download the software
when the settlement becomes effective.
If you have not already filled out the Claim Form, please visit
http://www.wdc.com/settlement as soon as possible.
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TO: ALL PERSONS AND ENTITIES WHO PURCHASED IN THE UNITED STATES AN
AFTERMARKET WESTERN DIGITAL CORPORATION HARD DISK DRIVE FROM
MARCH 22, 2001 TO FEBRUARY 15, 2006.
READ THIS NOTICE CAREFULLY BECAUSE IT MAY AFFECT YOUR RIGHTS.
THIS NOTICE IS A SUMMARY OF TERMS OF A CLASS ACTION SETTLEMENT. A MORE
DETAILED EXPLANATION IS AVAILABLE AT WWW.WDC.COM/SETTLEMENT
There is now pending in the District Court for the Northern District of California a class action lawsuit
entitled Orin Safier v. Western Digital Corporation, Case No. 05-03353 BZ (the “Litigation”). The
parties have now reached a proposed settlement agreement (“Agreement”) which, if approved by the
Court, may affect the rights of members of the Class described above.
THE CLAIMS AND DEFENSES
Plaintiff’s suit alleges that Defendant’s hard disk drives deliver less storage capacity than advertised.
According to Plaintiff, when attached to most personal computers, a hard disk drive advertised
by Defendant as having “80GB” will only show an available capacity of “74.4GB.” Plaintiff alleges that
one reason for this disparity is the existence of two different measurements of a “GB,” one of which is
used by computer operating systems and another of which is used by hard disk drive manufacturers.
Plaintiff seeks restitution, damages, punitive damages, and injunctive relief. Class Counsel believes,
however, that there are risks to going forward with the Litigation, including the risks of not being able to
certify the case as a class action, or of certifying a class but failing to prove liability or damages.
Defendant denies Plaintiff’s allegations, any wrongdoing, and any liability whatsoever. Defendant
believes that its marketing and advertising complied and continues to comply in all respects with the law
and that no Class Member, including the Plaintiff, has sustained any damages or injuries. Nonetheless,
Defendant has concluded that further conduct of the Litigation would be protracted and expensive and
desires that the Litigation be fully and finally settled in the manner and upon the terms and conditions of
the proposed settlement.
THE PROPOSED SETTLEMENT
The Class is defined in the “To” line at the top of this notice. “Aftermarket” purchasers are those who
purchased their hard disk drives separately rather than pre-installed by an original equipment
manufacturer into a computer.
Defendant has agreed to include language on its website and product packaging substantially similar to
the following:
“1 gigabyte (GB) = 1 billion bytes. Total accessible capacity varies depending on
operating environment.”
Defendant has also agreed to provide members of the Class with free hard disk drive backup and recovery
software (“Class Benefit”).
As part of the settlement, Western Digital will be released from any further related claims by Class
Members. A fuller description of the release of claims is available at www.wdc.com/settlement.
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Plaintiff and Class Counsel have investigated and evaluated the claims asserted in the Litigation and have
determined that the proposed settlement is fair, reasonable and adequate.
Because it is not technologically possible, the proposed Settlement does not call for capacity to be added
to Class Member’s hard disk drives. But the proposed settlement will provide each Class Member with
free backup and recovery software to be used in conjunction with his/her hard disk drive. Based on Class
Counsel’s investigation, and in light of the risks of litigation, Class Counsel believes that providing this
software adequately compensates class members for loss suffered in not getting the capacity promised in
Defendant’s advertisements.
ATTORNEYS’ FEES AND COSTS
Since the inception of this case, Plaintiffs’ Counsel have been working without compensation. Class
Counsel believes that at least one million persons and entities are eligible to obtain the Class Benefit and
that the software to be provided is comparable to products with a retail price of $30.00 or more. If the
Court approves the Proposed Settlement, Plaintiff’s Counsel will ask the Court to award, and Defendant
agrees to pay, an award of attorneys’ fees up to $485,000 and expenses of up to $15,000. Class Members
will not be required to pay these attorneys’ fees or costs.
PRELIMINARY APPROVAL
Judge Bernard Zimmerman of the District Court for the Northern District of California (also referred to as
the “Court”) has preliminarily determined that this Litigation should proceed as a class action, for
purposes of settlement only, with Safier (“Plaintiff”) as the representative of the Class, and has granted
preliminary approval of the Proposed Settlement.
CLAIMS DEADLINE
In order to receive the Class Benefit, Class Members must fill out and submit the Claim Form available at
http://www.wdc.com/settlement no later than thirty days after Final Approval of the settlement.
REQUESTS FOR EXCLUSION
If you are a Class Member, then unless you exclude yourself from the Class, the Settlement will release
your claims against Defendant that were required to be brought in this Litigation. You may exclude
yourself from the Class and retain your right to bring a separate lawsuit by following the procedures for
requesting exclusion outlined in the complete Notice of Class Litigation and Proposed Settlement
available at http://www.wdc.com/settlement. All exclusion requests must be post-marked no later than
May 19, 2006. If you timely and validly request exclusion, you will not be bound by any judgment
entered in the Litigation and you will not be eligible to receive the Class Benefit.
RIGHT TO OBJECT
You may object to the settlement by following the procedures for objecting outlined in the complete
Notice of Class Litigation and Proposed Settlement available at http://www.wdc.com/settlement. All
objections must be personally served on counsel for the parties by May 24, 2006. A Settlement Hearing
is scheduled for ____________ before Judge Bernard Zimmerman in the District Court for the Northern
District of California to determine whether the proposed settlement is fair, reasonable, and adequate and
to hear any objections to the proposed settlement.
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THIS NOTICE IS MERELY A SUMMARY OF THE PROPOSED SETTLEMENT TERMS.
FURTHER INFORMATION ON THE SETTLEMENT AND FURTHER INSTRUCTIONS FOR
REQUESTING EXCLUSION, OBJECTING TO THE SETTLEMENT, AND SUBMITTING A
CLAIM CAN BE OBTAINED AT http://www.wdc.com/settlement.
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TO: ALL PERSONS AND ENTITIES WHO PURCHASED IN THE UNITED STATES AN
AFTERMARKET WESTERN DIGITAL CORPORATION HARD DISK DRIVE FROM
MARCH 22, 2001 TO FEBRUARY 15, 2006.
On __________, 2006, the U.S. District Court for the Northern District of California granted
Final Approval of a class action settlement that may affect you. You may recall receiving a notice of this
settlement several months ago.
The settlement applies to all persons and entities who purchased an aftermarket Western Digital
Corporation (“WD”) hard disk drive between March 22, 2001 and February 15, 2006. “Aftermarket”
purchasers are those who purchased their hard disk drives separately rather than pre-installed by an
original equipment manufacturer into a computer. Such purchasers are eligible to receive free hard disk
drive backup and recovery software from WD.
To get the software, you must fill out and submit the Claim Form available at
http://www.wdc.com/settlement no later than __________, 2006.
If you filled out the Claim Form when you received the prior notice, you do NOT need to
take further action at this time. You will receive instructions about how to download the software
when the settlement becomes effective.
If you have not already filled out the Claim Form, please visit
http://www.wdc.com/settlement as soon as possible.
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 19 of 22 Case 3:05-cv-03353-BZ Document 31 Filed 03/17/06 Page 19 of 22
1
ATTENTION: ALL U.S. PURCHASERS OF AFTERMARKET
WESTERN DIGITAL CORPORATION HARD DISK DRIVES
FROM MARCH 22, 2001 TO FEBRUARY 15, 2006
A proposed class action settlement in Safier v. Western Digital Corporation, Case No. 03-03353 BZ
(N.D. Cal) may affect you. The lawsuit claims that aftermarket hard disk drives manufactured by
Western Digital Corporation (“WD”) have less useable storage capacity than advertised. WD has denied
any wrongdoing or liability. If the Court approves the settlement, class members will receive free backup
and recovery software. In addition, WD will change its marketing and advertising of storage capacity.
WD will be released from further claims by Class Members. WD will pay class counsel’s attorneys’ fees
of up to $485,000 and expenses of up to $15,000.
Class members have three options: (1) Sign up to receive the free software by submitting a claim form
available at www.wdc.com/settlement no later than 30 days after final approval of the settlement; (2)
Retain the right to bring a separate lawsuit against WD by mailing a request to exclude yourself from the
Class by May 19, 2006; or (3) Object to the settlement by May 24, 2006. Please visit
http://www.wdc.com/settlement as soon as possible to read important information about your
rights.
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 20 of 22
EXHIBIT C
Case 3:05-cv-03353-BZ Document 31 Filed 03/17/06 Page 20 of 22
Claim Form for Class Action Settlement
Orin Safier v. Western Digital Corporation, Case No. 05-03353 BZ (N.D. Cal)
Please complete this form to receive your free software download. You must complete
and submit the questionnaire no later than 30 days after Final Approval of the settlement.
The information you provide will be kept private. It will be used only for purposes of
administering this settlement.
When the settlement becomes effective, Western Digital will email to you a link to access
the software download. The email will be sent to the email address you provide on this
form. If you do not provide an email address, Western Digital will contact you by mail to
make the software available to you. You must download the software within 90 days
after the class action settlement becomes effective. Limit one software download per
class member.
Name (required):
Postal address (required):
Email address (*required for electronic submission):
Confirm email address (*required for electronic submission):
Estimated date of Western Digital hard disk drive purchase (must be after March 22,
2001 and on or before February 15, 2006) (required):
Serial number of device (**see below if not known):
I did not purchase the hard disk drive as part of a computer assembled by an original
equipment manufacturer but rather purchased the drive separately.
I have signed up for only one software download as part of this settlement.
I declare, under penalty of perjury, that the above information is accurate to the best of
my knowledge.
[SUBMIT]
*If you do not wish to provide an email address, you may: (1) print this page, (2) fill out
all other required fields, (3) check the box declaring the information true under penalty of
perjury, (4) sign the page, (5) place the completed page in an envelope, and (6) mail or
deliver the envelope to WDC Settlement Claim Form; 5654 Geary Blvd., #210511; San
Francisco, CA 94121. Your envelope must be received (not merely postmarked) no
later than 30 days after Final Approval of the settlement.
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 21 of 22
EXHIBIT D
Case 3:05-cv-03353-BZ Document 31 Filed 03/17/06 Page 21 of 22
**The serial number can be found on the back of your Western Digital hard drive, after
the letters SN or S/N. If you no longer have your device, then to obtain the software, you
must do the following: (1) print this page, (2) fill out your name, address or email
address, and estimated date of purchase, (3) check the box declaring the information true
under penalty of perjury, (4) sign the page, (5) place the completed page in an envelope
along with a copy of the receipt for your hard disk drive or other proof of purchase, and
(6) mail or deliver the envelope to WDC Settlement Claim Form POP; 5654 Geary Blvd.,
#210511; San Francisco, CA 94121. Your envelope must be received (not merely
postmarked) no later than 30 days after Final Approval of the settlement.
[VALIDATION:
1. If no email address is provided, an error message will be displayed with the text of the
“*”.
2. If no serial number is provided, an error message will be displayed with the text of the
“**”.
3. If email addresses do not agree, an error message will be displayed so stating
4. If serial number is submitted in an inaccurate format, an error message will be
displayed so stating.]
----------
CONFIRMATION PAGE:
Please verify the following:
Name:
Address:
Email Address:
Estimated Date of Purchase:
Serial Number:
[CONFIRM]
-----------
CLAIM COMPLETED PAGE:
Your request has been received. You may print this page for your records. When the
settlement becomes effective, Western Digital will email to you at the email address you
provided a link which you can use to access the software download. Your information
has been recorded as:
Name:
Address:
Email Address:
Estimated Date of Purchase:
Serial Number:
Case 3:05-cv-03353-BZ Document 30 Filed 03/08/2006 Page 22 of 22 Case 3:05-cv-03353-BZ Document 31 Filed 03/17/06 Page 22 of 22 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_06-cv-01239/USCOURTS-cand-3_06-cv-01239-0/pdf.json | [
[
"Eli Lilly and Company",
"Defendant"
],
[
"Lauree Ward",
"Plaintiff"
]
] | 1
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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
LAUREE WARD,
Plaintiff,
v.
ELI LILLY AND COMPANY,
Defendant.
/
No. C-06-1239 MMC
ORDER CONTINUING CASE
MANAGEMENT CONFERENCE
Before the Court is plaintiff’s Case Management Conference Statement, filed
May 16, 2006, by which plaintiff seeks to continue the May 26, 2006 case management
conference in the instant action by approximately 120 days. Plaintiff states a continuance
is necessary because she anticipates the instant action will be transferred for inclusion in
MDL No. 1596, In re Zyprexa Products Liability Litigation, and because she has not yet
served the defendant. Because the instant action was filed February 21, 2006, the 120-day
deadline for plaintiff to serve defendant, pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure, has not yet elapsed.
Accordingly, for good cause shown,
1. The May 26, 2006 case management conference is hereby continued to
September 29, 2006 at 10:30 a.m. A joint case management statement shall be filed no
Case 3:06-cv-01239-MMC Document 6 Filed 05/17/06 Page 1 of 2
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later than September 22, 2006. The deadline to serve the defendant, pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure, remains in effect.
IT IS SO ORDERED.
Dated: May 17, 2006
MAXINE M. CHESNEY
United States District Judge
Case 3:06-cv-01239-MMC Document 6 Filed 05/17/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-15-50355/USCOURTS-ca5-15-50355-0/pdf.json | [
[
"Marvis Charles Box",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50355
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARVIS CHARLES BOX, also known as Charles Marvis Box, also known as
Marvin Box, also known as Marvis C. Box, also known as Marvis Box, also
known as Marvis Scooter, also known as Scooter Box,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:14-CR-354-1
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Marvis Charles Box has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Box has not filed a response. We have reviewed counsel’s brief and the relevant
portions of the record reflected therein. We concur with counsel’s assessment
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 12, 2016
Lyle W. Cayce
Clerk
Case: 15-50355 Document: 00513379669 Page: 1 Date Filed: 02/12/2016
No. 15-50355
2
that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
Case: 15-50355 Document: 00513379669 Page: 2 Date Filed: 02/12/2016 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_09-cv-05859/USCOURTS-cand-3_09-cv-05859-4/pdf.json | [
[
"Mar-Nique Simon",
"Petitioner"
],
[
"Domingo Uribe",
"Respondent"
]
] | 1
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KAMALA D. HARRIS
Attorney General of California
PEGGY S. RUFFRA
Supervising Deputy Attorney General
MICHELE J. SWANSON
Deputy Attorney General
State Bar No. 191193
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5703
Fax: (415) 703-1234
E-mail: [email protected]
Attorneys for Respondent
RICHARD TAMOR
Attorney at Law
State Bar No. 176529
The Sierra Building
311 Oak Street, Suite 108
Oakland, CA 94607
Telephone: (415) 655-1969
Fax: (415) 887-7658
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
MAR-NIQUE SIMON,
Petitioner,
v.
DOMINGO URIBE, Warden,
Respondent.
C 09-5859 TEH
STIPULATION TO CONTINUE ORAL
ARGUMENT ON THE ISSUE OF
EQUITABLE TOLLING AND
[PROPOSED] ORDER (Civil L.R. 6-1, 6-2,
7-12)
On April 28, 2014, this Court set oral argument on the issue of equitable tolling for August
4, 2014. Doc. No. 33. On August 1, 2014, the Court continued oral argument to September 8,
2014. Doc. No. 40. Subject to approval by this Court, and as explained more fully in the
concurrently filed declaration of counsel, the parties hereby agree and stipulate to the following:
////
////
////
////
////
1
Stipulation to Continue Oral Argument on the Issue of Equitable Tolling and [Proposed] Order
Simon v. Uribe, Warden - (C 09-5859 TEH (PR))
Case 3:09-cv-05859-WHA Document 42 Filed 08/13/14 Page 1 of 2
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That oral argument be continued to Monday, September 29, 2014, at 10:00 a.m.
IT IS SO STIPULATED.
Dated: August 12, 2014 By: /s/ Michele J. Swanson
PEGGY S. RUFFRA
Supervising Deputy Attorney General
MICHELE J. SWANSON
Deputy Attorney General
Attorneys for Respondent
Dated: August 12, 2014 By: /s/ Richard Tamor
RICHARD TAMOR
Attorney for Petitioner
///
///
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: ____________ _____________________________
HONORABLE THELTON E. HENDERSON
United States District Court Judge
SF2010200129
41041389.doc
2
Stipulation to Continue Oral Argument on the Issue of Equitable Tolling and [Proposed] Order
Simon v. Uribe, Warden - (C 09-5859 TEH (PR))
08/12/2014 _____________________________
Case 3:09-cv-05859-WHA Document 42 Filed 08/13/14 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca3-07-01494/USCOURTS-ca3-07-01494-0/pdf.json | [
[
"Jerry Boulding",
"Appellee"
],
[
"Pennsylvania State Police",
"Appellee"
],
[
"Angela Sykes",
"Appellant"
],
[
"Robert Vaughan",
"Appellee"
],
[
"Roger Waters",
"Appellee"
]
] | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1494
ANGELA SYKES,
Appellant
v.
PENNSYLVANIA STATE POLICE;
ROGER WATERS; JERRY BOULDING; ROBERT VAUGHAN
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 05-cv-01349)
Magistrate Judge: The Honorable Francis X. Caiazza
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges
(Filed: April 4, 2008 )
OPINION
BARRY, Circuit Judge
Appellant Angela Sykes appeals the January 17, 2007 order of the Magistrate
Judge granting summary judgment in favor of appellees Pennsylvania State Police
Case: 07-1494 Document: 0031733977 Page: 1 Date Filed: 04/04/2008
The parties refer only to what the District Court did and did not do, apparently 1
forgetting that they consented to jurisdiction by the Magistrate Judge. See A8-9, 24.
2
(“PSP”), Jerry Boulding, and Robert Vaughan. She does not appeal the grant of 1
summary judgment in favor of Roger Waters. We have jurisdiction under 28 U.S.C. §
1291, and will affirm.
I.
Sykes has been employed by PSP as a police communications officer (“PCO”) at
the Washington, Pennsylvania station since 1997. She is the only black female employee
at the station and the only black PCO. Vaughan, who is white, was Sykes’ direct
supervisor from the time she began working at the Washington station and conducted all
of Sykes’ reviews except in 2003, when he was on active military duty. Boulding, who is
black, has worked at the Washington station since January 2003 and was Vaughan’s
immediate supervisor.
In March 2001, Sykes filed an internal complaint alleging that Vaughan and
Sergeant Lapia, the staff section supervisor, had created a racially hostile work
environment, and thereafter filed complaints with the Pennsylvania Human Relations
Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”).
She subsequently withdrew the internal complaint as well as the PHRC and EEOC
complaints.
On August 2, 2004, November 16, 2004, and November 17, 2004, Sykes filed
charges with the Bureau of Integrity and Professional Affairs seeking disciplinary action
Case: 07-1494 Document: 0031733977 Page: 2 Date Filed: 04/04/2008
3
against Boulding, and on November 23, 2004, filed a complaint with the EEOC alleging
race discrimination, a racially hostile work environment, and retaliation. After Boulding
was cleared of the internal charges and Sykes received a right to sue letter, she brought
this action in the Court of Common Pleas asserting claims under Title VII and the
Pennsylvania Human Relations Act (“PHRA”) for race discrimination, hostile work
environment, and retaliation against PSP, and for race discrimination under 42 U.S.C. §§
1981 and 1983 against Boulding, Vaughan, and Waters. The action was subsequently
removed to federal court.
Our review of an order granting summary judgment is plenary. Reese Bros., Inc.
v. United States, 447 F.3d 229, 232 (3d Cir. 2006). We will affirm the order “if, when
viewing the evidence in the light most favorable to the non-moving party, there is ‘no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).
II.
Sykes raises two issues before us: (1) the Magistrate Judge ignored or discredited
her evidence; and (2) the Magistrate Judge erred in applying Burlington Northern & Santa
Fe Railway Co. v. White, 126 S.Ct. 2405, 2415 (2006), which held, as relevant here, that
the anti-retaliation provision of Title VII covers only those employer actions that would
have been materially adverse to a reasonable employee, which means in the context of
this case that “the employer’s actions must be harmful to the point that they could well
Case: 07-1494 Document: 0031733977 Page: 3 Date Filed: 04/04/2008
4
dissuade a reasonable worker from making or supporting a charge of discrimination.”
126 S.Ct. at 2415. App. Br. at 1. We reject both issues.
There is no dispute that, for whatever reason, there was friction and tension in
Sykes’ workplace. There is also no dispute that, again for whatever reason, Sykes
complained of numerous slights or wrongs, real or perceived, which, rightly or wrongly,
caused or fueled the friction and tension. Whatever the reason in fact may have been, our
review of the record convinces us that the evidence, even taken in the light most
favorable to Sykes, does not demonstrate that the reason was either discrimination or
retaliation.
In reaching the same conclusion, the Magistrate Judge did not ignore or discredit
Sykes’ evidence; rather, he did a thorough review of the proffered evidence on which
Sykes particularly relied, and concluded that she had failed to raise any inference of
discrimination as to her substantive discrimination and hostile work environment claims.
Indeed, although the Magistrate Judge recognized, as do we, that the general atmosphere
in which Sykes worked was less than “utopian,” he found the record “devoid of evidence”
that any differences in treatment were motivated by racial bias. A.14. He, therefore,
determined that Sykes had not set forth a prima facie case as to her §§ 1981 and 1983
claims or her Title VII hostile work environment claim. We agree.
As for Sykes’ retaliation claim, the Magistrate Judge found that she had not shown
that any of the alleged retaliatory conduct was the result of her administrative filings in
Case: 07-1494 Document: 0031733977 Page: 4 Date Filed: 04/04/2008
Sykes points most particularly to certain lower scores on her performance 2
evaluations as evidence of retaliatory conduct. The lower scores, however, are not by
themselves actionable under Title VII absent a showing, not made here, that they resulted
in “a more tangible form of adverse action, such as ineligibility for promotional
opportunities.” Brown v. Snow, 440 F.3d 1259, 1265 (11th Cir. 2006). And, we note,
there is no evidence that Sykes’ claimed failure to secure employment with other state
agencies was the result of the evaluations or that she was otherwise qualified for those
positions.
5
2001 – the purported “protected activity.” With specific reference to Burlington, he 2
concluded that none of the alleged conduct deterred Sykes from her “vigorous and
repeated use of all available means to supplement, expand, and pursue allegations of
discrimination” – to Human Resources, to her union representatives who filed grievances
on her behalf, to the Bureau of Integrity and Professional Affairs, and to the EEOC.
A.19. The Magistrate Judge, properly applying Burlington, did not err in so concluding.
III.
We will affirm the January 17, 2007 order of the Magistrate Judge.
Case: 07-1494 Document: 0031733977 Page: 5 Date Filed: 04/04/2008 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-01230/USCOURTS-caed-2_14-cv-01230-4/pdf.json | [
[
"Robert James Anthony",
"Plaintiff"
],
[
"Cardworks Servicing, LLC",
"Defendant"
],
[
"Experian Information Solutions, Inc.",
"Defendant"
]
] | 1
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ORDER
Case No. 2:14-CV-01230-MCE-EFB
Daniel J. McLoon (State Bar No. 109598)
Kerry C. Fowler (State Bar No. 228982)
Amanda Pushinsky (State Bar No. 267950)
JONES DAY
555 South Flower Street
Fiftieth Floor
Los Angeles, California 90071-2300
Telephone: 213-489-3939
Facsimile: 213-243-2539
[email protected]
[email protected]
[email protected]
Attorneys for Defendant
EXPERIAN INFORMATION
SOLUTIONS, INC.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT JAMES ANTHONY,
individually, and on behalf of the
general public,
Plaintiff,
v.
EXPERIAN INFORMATION
SOLUTIONS, INC.; and
CARDWORKS SERVICING, LLC,
Defendants.
Case No. 2:14-CV-01230-MCE-EFB
Assigned for all purposes to the
Hon. Morrison C. England, Jr.
ORDER MODIFYING
SCHEDULING ORDER TO
EXTEND LAST DAY TO HEAR
DISPOSITIVE MOTIONS
Case 2:14-cv-01230-MCE-EFB Document 36 Filed 05/17/16 Page 1 of 2
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ORDER
Case No. 2:14-CV-01230-MCE-EFB
Pursuant to the Parties’ Stipulated Request To Modify Scheduling Order To
Extend Last Day To Hear Dispositive Motions, and GOOD CAUSE appearing
there for, the Pretrial Scheduling Order (Document #21) is hereby modified as
follows:
The last day for the Court to hear dispositive motions shall be August 11,
2016.
No other dates or deadlines in the Scheduling Order shall be changed.
IT IS SO ORDERED.
Dated: May 17, 2016
Case 2:14-cv-01230-MCE-EFB Document 36 Filed 05/17/16 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_12-cv-00927/USCOURTS-caed-1_12-cv-00927-0/pdf.json | [
[
"Yacub Avicenna McClendon",
"Petitioner"
],
[
"Tim Virga",
"Respondent"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIF
YACUB AVICENNA MCCLENDON,
Petitioner,
v.
TIM VIRGA,
Respondent.
_________________________________/
1:12-cv-00927 MJS (HC)
ORDER DISREGARDING
APPLICATION TO PROCEED
IN FORMA PAUERIS AS MOOT
(Doc. 6)
Petitioner is a prisoner proceeding pro se in a habeas corpus action pursuant to 28
U.S.C. Section 2254. On June 25, 2012, Petitioner filed an application to proceed in forma
pauperis. Due to the fact that Petitioner was authorized to proceed in forma pauperis on June
8, 2012, IT IS HEREBY ORDERED THAT Petitioner's application to proceed in forma pauperis
is DISREGARDED as moot.
IT IS SO ORDERED.
Dated: July 3, 2012 /s/Michael J. Seng
92b0h UNITED STATES MAGISTRATE JUDGE
Case 1:12-cv-00927-LJO-MJS Document 7 Filed 07/03/12 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-2_05-cv-00881/USCOURTS-alnd-2_05-cv-00881-0/pdf.json | [
[
"Kenneth Brockman",
"Counter Defendant"
],
[
"Utility Board of the Town Of Blountsville, Alabama",
"Counter Claimant"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH BROCKMAN,
Plaintiff,
v.
UTILITY BOARD OF THE TOWN OF
BLOUNTSVILLE, ALABAMA,
Defendant.
}
}
}
}
}
}
}
}
}
}
CIVIL ACTION NO.
05-AR-0881-S
MEMORANDUM OPINION AND ORDER
All motions pending in the above-entitled case came on to be
heard at this court’s regular motion docket on May 20, 2005. There
was no request for oral argument and no argument was presented.
The motion filed by plaintiff on May 12, 2005, pursuant to
Rule 12(b)(6), F.R.Civ.P., to dismiss the counterclaim is well
taken, and is GRANTED. A claim for attorneys’ fees under a fee
shifting statute cannot be presented by defendant unless and until
the defendant is a prevailing party. Accordingly, the counterclaim
is DISMISSED WITHOUT PREJUDICE.
Plaintiff’s motion filed on May 12, 2005, for more definite
statement by defendant, or, alternatively, to order defendant to
confirm its general denial, is DEEMED a motion to strike the
purported answer that was filed by defendant on May 12, 2005, and
that was stricken by the court on May 16, 2005. Although the court
may have been hasty in striking the answer as to which defendant’s
counsel’s failed to affix his signature electronically, the answer
FILED
2005 May-24 AM 10:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:05-cv-00881-WMA Document 10 Filed 05/24/05 Page 1 of 2
is a textbook example of non-compliance with the requirements of
Rule 8(b), F.R.Civ.P. For instance, the court is unwilling to
assume that defendant is in good faith denying the allegation in
the complaint that plaintiff was employed by defendant. Therefore,
the order striking defendant’s answer is CONFIRMED. Defendant
shall answer the complaint in a way that complies with Rule 8(b)
within seven (7) calendar days, or defendant will be in default.
DONE this 24th day of May, 2005.
_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
Case 2:05-cv-00881-WMA Document 10 Filed 05/24/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00609/USCOURTS-caed-2_15-cv-00609-2/pdf.json | [
[
"California Board of Parole Hearings",
"Respondent"
],
[
"Johnny Clifford Jackson",
"Petitioner"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHNNY CLIFFORD JACKSON,
Petitioner,
v.
CALIFORNIA BOARD OF PAROLE
HEARINGS,
Respondent.
No. 2:15-cv-0609 KJM KJN P
FINDINGS & RECOMMENDATIONS
I. Introduction
Petitioner is a state prisoner, proceeding without counsel and in forma pauperis. He filed
an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before
the court is respondent’s motion to dismiss the habeas petition as barred by the statute of
limitations and successive. For the reasons set forth below, respondent’s motion should be
granted.
II. Legal Standards
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. . . .” Id. The Court of Appeals for 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
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(1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority
under Rule 4.
III. Background
1. Petitioner was convicted in 1971 for murder, robbery, and grand theft, and was
sentenced to seven years to life with the possibility of parole. (ECF No. 1 at 2.)
2. In 1981, petitioner was found suitable for parole, and the Board of Parole Hearings
(“Board”) set his parole release date. (ECF No. 1 at 6.) The Board also set his release date under
the rules existing at the time of the commitment offense. (Id.)
3. In 1989, the Board rescinded petitioner’s grant of parole after he received two prison
rules violations. (ECF No. 1 at 7.)
4. During his 1995 parole hearing, petitioner’s appointed counsel argued that the Board
only rescinded one of the parole release dates and petitioner should have been released from
prison in 1990. (ECF No. 1 at 7.) After the Board denied counsel’s objection, petitioner and his
counsel walked out of the parole hearing. (Id.)
5. On December 5, 2006, petitioner filed a petition for writ of habeas corpus in the Los
Angeles County Superior Court raising two claims: the Board failed to rule on the legality of
petitioner’s parole release date for two years; and the Board did not rescind the parole release date
set under the Board’s rules existing at the time of his commitment offense. (ECF No. 13-1 at 2.)
On December 28, 2007, the court denied the petition as untimely and on the merits. (Id.)
6. On October 8, 2009, petitioner filed a petition for writ of habeas corpus in the
California Court of Appeal, Second Appellate District. (ECF No. 13-2 at 2.) On November 6,
2009, the state appellate court summarily denied the petition. (ECF No. 13-5 at 83.)
7. On February 16, 2010, petitioner filed a petition for writ of habeas corpus in the
California Supreme Court, Case No. 180275. (ECF No. 13-4 at 2.) On August 11, 2010, the
California Supreme Court denied the petition without comment. (Id.)
8. On August 31, 2010, petitioner filed a petition for writ of habeas corpus in this court.
Jackson v. Brown, Case No. 2:10-cv-2341 LKK CKD (E.D. Cal.). (ECF No. 13-6 at 2.) In this
federal petition, petitioner raised the same claims raised in his state court petitions. (ECF No. 13-
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6 at 2.) On September 30, 2011, the district court denied the petition as time barred. (ECF No.
13-9 at 8.)
9. On March 6, 2015, petitioner filed the instant petition. See Rule 3(d) of the Federal
Rules Governing Section 2254 Cases. Specifically, petitioner claims that the Board failed to rule
on the legality of petitioner’s parole release date for two years; and the Board did not rescind the
parole release date set under the Board’s rules existing at the time of his commitment offense.
(ECF No. 1 at 10.) Petitioner references his California Supreme Court petition filed in Case No.
180275. (ECF No. 1 at 4.)
10. Respondent filed the motion to dismiss on May 20, 2015, and petitioner filed an
opposition on June 17, 2015. No reply was filed.
IV. Is the petition successive?
Respondent contends that petitioner’s first federal petition renders the instant petition
successive, and therefore the instant claims are barred. Petitioner appears to argue that his
petition is not identical because his claimed exception to the timeliness bar was not applied to the
previously submitted claim. (ECF No. 17 at 3.)
“[D]ismissal of a section 2254 habeas petition for the failure to comply with the statute of
limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28
U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Thus the claims in
the pending federal petition which were also presented in petitioner’s first federal petition must be
dismissed. See 28 U.S.C. § 2244(b)(1); Tyler v. Cain, 533 U.S. 656, 661 (2001) (“If a prisoner
asserts a claim that he has already presented in a previous federal habeas petition, the claim must
be dismissed in all cases.”); Pizzuto v. Blades, 673 F.3d 1003, 1008 (9th Cir. 2012) (prisoner not
entitled to file a successive habeas petition on the basis of new facts related to judicial
misconduct).
Section 2244(b) itself does not define the term “claim.” However, the Ninth Circuit has
held that a claim for federal habeas relief “is successive if the basic thrust or gravamen of the
legal claim is the same, regardless of whether the basic claim is supported by new and different
legal arguments . . . [or] proved by different factual allegations.” Babbitt v. Woodford, 177 F.3d
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744, 756 (9th Cir. 1999) (quoting United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)). See
also Morales v. Ornoski, 439 F.3d 529, 532 (9th Cir. 2006) (same). Thus, “[a] claim is not newly
presented merely because the petitioner offers new factual bases in support of a legal claim that
has already been raised.” Cooper v. Brown, 510 F.3d 870, 918 (9th Cir. 2007).
As noted above, the 2010 federal petition was dismissed based upon the finding that it was
untimely filed. Jackson v. Swarthout, Case No. 2:10-cv-2341 LKK CKD (E.D. Cal.). Although
the federal petitions are filed on different forms, the claims are identical, and petitioner’s
arguments are virtually identical, with one exception. Petitioner now appears to present a claim
of actual innocence, and argues that he should be permitted to pass through the Schlup gateway
and have his claims heard on the merits, although he includes no facts or argument in support
thereof. (ECF No. 1 at 13.)
The “actual innocence” exception applies to the AEDPA’s statute of limitations. See
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013); Lee v. Lampert, 653 F.3d 929, 934 (9th Cir. 2011)
(en banc). “[A] credible claim of actual innocence constitutes an equitable exception to
AEDPA’s limitations period, and a petitioner who makes such a showing may pass through the
Schlup gateway and have his otherwise time-barred claims heard on the merits.” Lee, 653 F.3d at
932. Under Schlup v. Delo, 513 U.S. 298 (1995), a petitioner must produce sufficient proof of his
actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental
miscarriage of justice.’” 513 U.S. at 314-15 (quoting McCleskey v. Zant, 499 U.S. 467 (1991)).
Evidence of innocence must be “so strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was free of nonharmless constitutional
error.” Schlup, 513 U.S. at 316. To pass through the Schlup gateway, a “petitioner must show
that it is more likely than not that no reasonable juror would have convicted him in light of the
new evidence. . . .” Id. at 327.
Actual innocence in this context “means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623-24 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-
83 (9th Cir. 2003) (accord). To make a credible claim of actual innocence, petitioner must
produce “new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy
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eyewitness accounts, or critical physical evidence -- that was not presented at trial.” Schlup, 513
U.S. at 324.
Petitioner’s reference to the Schlup gateway, absent supporting facts or argument, is
insufficient to demonstrate it is appropriately applied here. Petitioner is not challenging his
underlying conviction, and points to no new reliable evidence demonstrating that he is factually
innocent of the underlying crimes for which he was convicted. Moreover, petitioner’s claim that
he did not receive a hearing when his May 9, 1990 parole date was rescinded was included in his
2010 federal petition. Jackson v. Swarthout, Case No. 2:10-cv-2341 LKK CKD (ECF No. 1 at 9,
16). The district court did not reach the merits of such claim because petitioner’s 2010 federal
petition was untimely-filed.
1
Because petitioner raises claims previously brought in his 2010 federal petition, Case No.
2:10-cv-2341 LKK CKD, the instant petition is successive and must be dismissed. Before
petitioner can proceed with the instant application, he must move in the United States Court of
Appeals for the Ninth Circuit for an order authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed
without prejudice to its re-filing upon obtaining authorization from the United States Court of
Appeals for the Ninth Circuit.
V. Is the petition time-barred?
Because the instant action should be dismissed as successive, the court need not reach
respondent’s alternative argument that it should be dismissed as untimely.
////
////
1
On September 30, 2011, the district court stated:
The court notes the Petition or petitioner’s Objections may seek to
make the case that petitioner was exhausting his remedies after the
1990 denial of parole. However, the last date he could have been
doing this - the last date mentioned in the Petition - is December
2006. Accordingly, the limitations period has long since expired,
and the petition is time barred.
Id. (ECF No. 20 at 2.)
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VI. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent’s motion to dismiss (ECF No. 13) be granted; and
2. This action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
he shall also address whether a certificate of appealability should issue and, if so, why and as to
which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after
service of the objections. The parties are advised that failure to file objections within the
specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
F.2d 1153 (9th Cir. 1991).
Dated: September 3, 2015
/jack0609.mtd.hc.succ
Case 2:15-cv-00609-KJM-KJN Document 19 Filed 09/03/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alnd-1_14-cv-08014/USCOURTS-alnd-1_14-cv-08014-0/pdf.json | [
[
"Justin Jerrod Cole",
"Petitioner"
],
[
"United States of America",
"Respondent"
]
] | UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JUSTIN JERROD COLE, )
)
Petitioner, )
)
vs. ) 1:14-cv-8014-LSC
) (1:10-cr-00224-LSC-TMP-1)
)
UNITED STATES OF AMERICA,)
)
Respondent )
MEMORANDUM OF OPINION
I. Introduction
This is a motion to vacate, set aside, or correct a sentence under 28 U.S.C. §
2255, filed by Petitioner, Justin Jerrod Cole, on March 31, 2014. (Doc. 2.) Petitioner
challenges his sentence of 130-months imprisonment imposed on convictions of
conspiracy to commit bank robbery, armed bank robbery, and brandishing a firearm
during and in relation to a crime of violence. The government has responded to
Petitioner’s claims. (Doc. 6.) The Court issued an order notifying Petitioner that the
case appeared ripe for summary disposition and of his right to file additional affidavits
or other materials to show why the motion should not be summarily denied or
dismissed on the basis of the response by the Government. (Doc. 7). Petitioner filed
Page 1 of 5
FILED
2014 Oct-23 PM 01:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 1:14-cv-08014-LSC Document 8 Filed 10/23/14 Page 1 of 5
nothing further. Pursuant to § 2255(b) and Rule 4 of the Rules Governing Section
2255 Proceedings for the United States District Courts, this Court has conducted a
reviewof Petitioner’s filing and determines that the § 2255 motion is due to be denied
as untimely filed.
II. Background
On June 30, 2010, Petitioner was charged by indictment of conspiracy to
commit bank robbery, in violation of 18 U.S.C. § 371 (Count 1); armed bank robbery,
in violation of 18 U.S.C. § 2113(a) (Count 2); and use or carry of a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3).
Pursuant to a written plea agreement, Petitioner entered a plea of guilty as to
all counts onAugust 30, 2010. The guilty plea included a waiver of the right to appeal
and to file post-conviction proceedings.
Petitioner was sentenced on April 25, 2011, to a term of imprisonment for 130
months: 46 months as to Counts 1 and 2 to run concurrently and 84 months as to
Count 3 to run consecutively.
Judgment was entered on May 2, 2011. Petitioner did not appeal his conviction
and sentence. On March 31, 2014, he filed the instant motion.
III. Discussion
Page 2 of 5
Case 1:14-cv-08014-LSC Document 8 Filed 10/23/14 Page 2 of 5
Rule 4 of the Rules Governing Section 2255 Proceedings for the United States
District Courts allows a court to dismiss summarily a habeas corpus petition when it
plainly appears from the face of the petition and the prior proceedings in the case that
the petitioner is not entitled to the relief he seeks. Petitioner’s motion is untimely.
The one-year limitations period for filing § 2255 motions is triggered upon the latest
of four dates set forth in 28 U.S.C. § 2255(f). Petitioner filed his motion well over 1
one year after the date on which the judgment of his conviction became final. See 28
U.S.C. § 2255(f)(1). Because Petitioner did not appeal, the one-year statute of
That statute states, in pertinent part: 1
A 1-year period of limitation shall apply to a motion under this
section. The limitations period shall run from the latest of---
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f).
Page 3 of 5
Case 1:14-cv-08014-LSC Document 8 Filed 10/23/14 Page 3 of 5
limitations began to run fourteen days after judgment was entered onMay 2, 2011. See
Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Petitioner did not file
the instant motion until March 31, 2014.
Nonetheless, Petitioner maintains that his appeal is timely under 28 U.S.C. §
2255(f)(3) because it was filed within one year of the Supreme Court’s ruling in
Alleyne v. United States, 133 S. Ct. 2151 (June 17, 2013). Section 2255(f)(3) provides
that the limitations period begins to run from “the date on which the right asserted
was initially recognized by the Supreme Court, ifthat right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral
review.” However, “Alleyne does not apply retroactively on collateral review.”
Jeanty v. Warden, 757 F.3d 1283, 1285 (11th Cir. 2014). Thus, because Alleyne is not
retroactively applicable to cases on collateral review, Petitioner’s motion to vacate his
sentence, although filed within one year ofthat decision, is not timely under 28 U.S.C.
§ 2255(f)(3).
2
IV. Conclusion
For the foregoing reasons, the petitioner’s § 2255 motion is due to be
dismissed. An appropriate order will be entered.
Petitioner has nowhere asserted that the statute of limitations should be equitably tolled. 2
Page 4 of 5
Case 1:14-cv-08014-LSC Document 8 Filed 10/23/14 Page 4 of 5
This Court may issue a certificate of appealability “only if the applicant has a
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that reasonable
jurist would find the district court’s assessment of the constitutional claims debatable
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This Court finds
Petitioner’s claims do not satisfy either standard.
Done this 23 day of October 2014. rd
L. Scott Coogler
United States District Judge
[160704]
Page 5 of 5
Case 1:14-cv-08014-LSC Document 8 Filed 10/23/14 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-00236/USCOURTS-caed-1_15-cv-00236-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Mollie Christine Perez",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Plaintiff Mollie Christine Perez seeks to proceed in forma pauperis with an action for judicial
review of the administrative decision denying her application for Social Security benefits. Pending
before the Court are the complaint (Doc. 1) and motion to proceed in forma pauperis (Doc. 2) filed by
Plaintiff on February 12, 2015. Because Plaintiff does not provide sufficient facts for the Court to
determine the matter of its jurisdiction, Plaintiff’s complaint is DISMISSED with leave to amend.
I. Proceeding in forma pauperis
The Court may authorize the commencement of an action without prepayment of fees “but a
person who submits an affidavit that includes a statement of all assets such person . . . possesses [and]
that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court
has reviewed the application and finds Plaintiff satisfies the requirements of 28 U.S.C. § 1915(a).
Therefore, Plaintiff’s motion to proceed in forma pauperis is GRANTED.
MOLLIE CHRISTINE PEREZ,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:15-cv-0236- JLT
ORDER GRANTING PLAINTIFF’S MOTION TO
PROCEED INFORMA PAUPERIS
(Doc. 2)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
Case 1:15-cv-00236-JLT Document 5 Filed 02/17/15 Page 1 of 5
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II. Screening Requirement
When an individual seeks to proceed in forma pauperis, the Court is required to review the
complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or
fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A plaintiff’s claim
is frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or
not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S.
25, 32-33 (1992).
III. Pleading Standards
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A
pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the
claim showing the pleader is entitled to relief; and... a demand for the relief sought, which may include
relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
A complaint must state the elements of the plaintiff’s claim in a plain and succinct manner.
Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the
complaint is to give the defendant fair notice of the claims against him, and the grounds upon which
the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court
explained,
Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted).
Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d
266, 268 (9th Cir. 1982). The Court clarified further,
[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’
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Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should
assume the truth and determine whether the facts would make the plaintiff entitled to relief; conclusions
in the pleading are not entitled to the same assumption of truth. Id. The Court may grant leave to
amend a complaint to the extent deficiencies of the complaint can be cured by amendment. Lopez v.
Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
IV. Discussion and Analysis
Plaintiff seeks review of a decision by the Commissioner of Social Security denying disability
benefits. (Doc. 1). The Court would have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides
in relevant part:
Any individual, after any final decision of the Commissioner made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him
of such decision or within such further time as the Commissioner may allow. Such
action shall be brought in the district court of the United States for the judicial district
in which the plaintiff resides, or has his principal place of business . . . The court shall
have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
Id. (emphasis added). Except as provided by statute, “[n]o findings of fact or decision of the
Commissioner shall be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h).
The Supreme Court noted the purpose of the legislation was “to forestall repetitive or belated
litigation of stale eligibility claims.” Califano v. Sanders, 430 U.S. 99, 108 (1977). Thus, these
regulations “operate as a statute of limitations setting the time period in which a claimant may appeal a
final decision of the Commissioner.” Berrigan v. Astrue, 2010 U.S. Dist. LEXIS 115390, at *4-5
(E.D. Cal. Oct. 29, 2010) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Matthews v.
Eldridge, 424 U.S. 319, 328 n. 9 (1976)). The time limit is a condition on the waiver of sovereign
immunity, and it must be strictly construed. Id.
Here, Plaintiff alleges only that she “seeks judicial review pursuant to 42 U.S.C. 405(g) of an
adverse decision of the defendant which has become final,” and she “has exhausted administrative
remedies.” (Doc. 1 at 1-2.) Plaintiff does not allege when the adminisntrative law judge issued a
decision on her application for benefits; if or when the Appeals Council denied a request for review; or
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when the administrative decision became final. Without further information, the Court is unable to
find that Plaintiff’s request for judicial review was timely, or that the Court has jurisdiction pursuant to
42 U.S.C. § 405(g).
V. Leave to Amend the Complaint
A complaint should only be dismissed for failure to state a claim upon which relief may be
granted if it appears beyond doubt that the Plaintiff can prove no set of facts, consistent with the
allegations, that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)
(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Here the Court cannot find with certainty that
Plaintiff cannot allege facts supporting a finding that the Court has jurisdiction over the matter. The
Court will grant Plaintiff leave to amend the complaint to cure the deficiencies of this complaint by
stating the necessary information regarding when the decision of the Commissioner became final.
Generally, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
F.2d 55, 57 (9th Cir. 1967). Thus, once Plaintiff files an amended complaint, the original pleading no
longer serves any function in the case. The amended complaint must bear the docket number assigned
this case and must be labeled “First Amended Complaint.” Failure to file an amended complaint in
accordance with this order will be considered to be a failure to comply with an order of the Court
pursuant to Local Rule 110 and will result in dismissal of this action.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is GRANTED;
2. Plaintiff’s complaint IS DISMISSED with leave to amend; and
3. Plaintiff is GRANTED twenty-one days from the date of service of this order to file an
amended complaint that complies with the requirements of the pertinent substantive
law, the Federal Rules of Civil Procedure, and the Local Rules of Practice.
IT IS SO ORDERED.
Dated: February 17, 2015 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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[
"Narendra Tulsiram",
"Appellant"
],
[
"United States of America",
"Appellee USA"
]
] | 14‐2483‐cr
United States v. Tulsiram
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
No. 14‐2483‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
NARENDRA TULSIRAM,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MARCH 1, 2016
DECIDED: MARCH 7, 2016
Before: CABRANES, PARKER, and LYNCH, Circuit Judges.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page1 of 14
2
This case presents two questions. The first is whether a
judgment of conviction is final for purposes of 28 U.S.C. § 1291, and
therefore appealable, if it imposes a sentence including incarceration
and restitution but does not determine the restitution amount. The
second is whether—if we have jurisdiction over this appeal—we
must vacate the guilty plea of defendant‐appellant Narendra
Tulsiram (“Tulsiram”), because the United States District Court for
the Southern District of New York (J. Paul Oetken, Judge) did not
advise him about mandatory restitution during the plea proceeding.
We hold that a judgment of conviction is final for purposes of
§ 1291 whenever it imposes a sentence of incarceration, even if post‐
conviction proceedings to set a restitution amount remain pending.
We also conclude that the District Court’s failure to advise Tulsiram
that restitution would be imposed did not constitute plain error. We
therefore AFFIRM the June 30, 2014 judgment of the District Court.
MARSHALL ARON MINTZ, Mintz &
Oppenheim LLP, New York, NY, for
Defendant‐Appellant.
RAHUL MUKHI (Kristy J. Greenberg, Michael
A. Levy, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New
York, New York, NY, for Appellee.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page2 of 14
3
PER CURIAM:
This case presents two questions. The first is whether a
judgment of conviction is final for purposes of 28 U.S.C. § 1291, and
therefore appealable, if it imposes a sentence including incarceration
and restitution but does not determine the restitution amount. The
second is whether—if we have jurisdiction over this appeal—we
must vacate the guilty plea of defendant‐appellant Narendra
Tulsiram (“Tulsiram”), because the United States District Court for
the Southern District of New York (J. Paul Oetken, Judge) did not
advise him about mandatory restitution during the plea proceeding.
We hold that a judgment of conviction is final for purposes of
§ 1291 whenever it imposes a sentence of incarceration, even if post‐
conviction proceedings to set a restitution amount remain pending.
We also conclude that the District Court’s failure to advise Tulsiram
that restitution would be imposed did not constitute plain error. We
therefore AFFIRM the June 30, 2014 judgment of the District Court.
BACKGROUND
For about five years, Tulsiram sexually abused a teenage girl
who was his de facto stepdaughter. He also took sexually explicit
pictures of her—about 80 of which were discovered on his phone at
the time of his arrest—and threatened to send them to her family and
friends if she resisted his demands for sex.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page3 of 14
4
As a result of this conduct, Tulsiram was charged in a
superseding indictment with sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(a) (“Count One”) and 18 U.S.C. § 2251(b)
(“Count Two”); transportation of child pornography in violation of
18 U.S.C. §§ 2252A(a)(1) and (b)(1) (“Count Three”); and possession
of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)
(“Count Four”). The superseding indictment also included a
forfeiture count.
The Government later provided Tulsiram with a so‐called
Pimentel letter, as we suggested in United States v. Pimentel, 932 F.2d
1029 (2d Cir. 1991).1 The letter informed him that, based on the
charged offenses, the United States Sentencing Guidelines
(“Guidelines”) called for a sentence of 90 years’ imprisonment and
that he faced a maximum term of supervised release of life. The letter
also advised Tulsiram that each count carried a $100 mandatory
special assessment and a maximum fine “of the greatest of $250,000,
twice the gross pecuniary gain derived from the offense, or twice the
gross pecuniary loss to persons other than the defendant resulting
from the offense.” App. 16. Finally, the letter told Tulsiram that for
Counts Three and Four, “the Court must order restitution as
specified below,” although the letter did not in fact provide specifics.
Id.
1 “A Pimentel letter generally refers to an informational letter from the
government containing an estimate of a defendant’s likely sentence under the
Sentencing Guidelines. . . . [I]t is often relied upon by defendants in entering
guilty pleas.” United States v. Marino, 654 F.3d 310, 315 n.3 (2d Cir. 2011).
Case 14-2483, Document 113, 03/07/2016, 1720160, Page4 of 14
5
Tulsiram pleaded guilty to all counts on April 1, 2013, without
the benefit of a plea agreement. Before accepting his plea, the District
Court advised him of the same potential terms of imprisonment,
potential terms of supervised release, potential fines, and mandatory
special assessments that the Pimentel letter had described. (Tulsiram
confirmed that he had seen the Pimentel letter and had discussed it
with his attorney.) In addition, the Court advised Tulsiram that his
offenses could entail forfeiture, which the Pimentel letter (but not the
indictment) had omitted. The Court did not, however, mention
restitution.
The District Court sentenced Tulsiram on June 23, 2014, to 25
years’ imprisonment, followed by a lifetime term of supervision. The
Court also imposed the mandatory special assessment of $400 but
declined to impose a fine, finding that Tulsiram lacked any ability to
pay. At the Government’s prompting, the Court ordered restitution
but deferred setting the amount “for up to 90 days,” so that the
Government could “work[ ] out what the appropriate amount would
be.” App. 119, 120. In its judgment of June 30, 2014, the Court
specified that the determination of restitution was deferred until
September 23, 2014. No such determination has ever been made,
however, nor has the Court entered an amended judgment.2
2 The Government states that it will “request that the District Court set the
amount of restitution at zero, but has refrained from doing so out of concern that”
Tulsiram’s appeal has deprived that court of jurisdiction. Gov’t Br. 22. That
concern is misplaced. See, e.g., United States v. Ryan, 806 F.3d 692, 692 & n.1 (2d
Cir. 2015) (noting that a district court set restitution after the defendant filed a
Case 14-2483, Document 113, 03/07/2016, 1720160, Page5 of 14
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Tulsiram filed a timely notice of appeal. His appellate counsel
thereafter filed a motion to withdraw from the case pursuant to
Anders v. California, 386 U.S. 738 (1967), and the Government moved
for summary affirmance.3 A panel of this Court deferred
consideration of those motions and instead ordered the parties to file
supplemental briefs addressing “whether the district court’s
judgment is appealable.” Docket No. 67. Tulsiram’s counsel then
filed a motion to withdraw his Anders motion and to file a brief
addressing, inter alia, the jurisdictional question. We granted the
motion and vacated our earlier order for supplemental briefing.
Docket No. 72.
DISCUSSION
A. This Court’s Appellate Jurisdiction
The first issue we must resolve is whether we have jurisdiction
over this appeal. Although both parties agree that we do have
notice of appeal from the initial sentence); United States v. Muzio, 757 F.3d 1243,
1254 (11th Cir.) (“While it is typically true that the filing of an appeal divests
district courts of jurisdiction over the matters contained in the appeal . . . the
district court retains the power to determine the amount of restitution even if an
appeal from the initial judgment has been filed with us.”), cert. denied, 135 S. Ct.
395 (2014), reh’g denied, 135 S. Ct. 1035 (2015).
3 In Anders, the Supreme Court required that in an appeal from a criminal
judgment, “a defense attorney who believes that his client’s appeal would be
frivolous must, inter alia, move to be relieved on that basis and brief all arguably
meritorious appellate issues.” In re Aranda, 789 F.3d 48, 53 n.4 (2d Cir. 2015).
Case 14-2483, Document 113, 03/07/2016, 1720160, Page6 of 14
7
jurisdiction, we must nonetheless consider the issue independently.
See, e.g., Taylor v. Rogich, 781 F.3d 647, 648 n.2 (2d Cir. 2015).
Our jurisdiction extends to “appeals from all final decisions of
the district courts of the United States.” 28 U.S.C. § 1291 (emphasis
supplied). “[L]ike many legal terms,” the meaning of final “depends
on context.” See Clay v. United States, 537 U.S. 522, 527 (2003). In the
context of a direct criminal appeal, finality typically attaches “when
the district court disassociates itself from the case, leaving nothing to
be done at the court of first instance save execution of the judgment.”
Gonzalez v. United States, 792 F.3d 232, 236 (2d Cir. 2015) (quoting
Clay, 537 U.S. at 527). Accordingly, it is clear that “[a] criminal
judgment containing a restitution order is a final judgment for the
purposes of a direct appeal.” Id. We have not yet resolved, however,
whether a criminal judgment that imposes an undetermined amount
of restitution is also final.
The Supreme Court declined to answer that very question in
Dolan v. United States, 560 U.S. 605, 618 (2010). Nonetheless, the Court
noted in dicta that “strong arguments favor the appealability of”
such judgments. Id. at 617. The Court began by citing Corey v. United
States, 375 U.S. 169, 174–75 (1963), which held that a criminal
defendant could appeal from a sentence committing him to custody,
even if the district court had not yet determined the final sentence.
The Supreme Court then noted that the statute authorizing
restitution “provides that a ‘sentence that imposes an order of
restitution . . . is a final judgment.’” Dolan, 560 U.S. at 618 (quoting 18
Case 14-2483, Document 113, 03/07/2016, 1720160, Page7 of 14
8
U.S.C. § 3664(o)).4 The same is true, the Court observed, of judgments
imposing imprisonment, 18 U.S.C. § 3582(b), supervised release, id.
§ 3583(a), and fines, id. § 3572(c). Accordingly, the Court found it
unsurprising that courts of appeals—including the Second Circuit—
have permitted defendants to appeal from an initial sentence
imposing a term of imprisonment, even if restitution proceedings
remained pending. Dolan, 560 U.S. at 618 (citing, inter alia, United
States v. Stevens, 211 F.3d 1 (2d Cir. 2000)). This approach “makes
sense,” the Supreme Court suggested, because defendants might
otherwise have to wait for months before seeking review of their
conviction and initial sentence. Id.
5
Following Dolan, the Ninth and Eleventh Circuits—the only
two to decide the issue so far—have held that a judgment imposing
incarceration and restitution, but not specifying the amount of
restitution, is “final” for purposes of § 1291. United States v. Gilbert,
807 F.3d 1197, 1199–200 (9th Cir. 2015); United States v. Muzio, 757
F.3d 1243, 1250 (11th Cir.), cert. denied, 135 S. Ct. 395 (2014), reh’g
denied, 135 S. Ct. 1035 (2015).
4 This is true even though an order of restitution may be “corrected,”
“appealed and modified,” “amended,” or “adjusted,” and even though “[t]he
defendant may be resentenced.” 18 U.S.C. § 3664(o).
5 Cf. United States v. Abrams, 137 F.3d 704, 707 (2d Cir. 1998) (reading 18
U.S.C. § 3582(b) as designed to avoid the “unacceptable” scenario of forcing a
defendant to begin serving a sentence he could not challenge immediately).
Case 14-2483, Document 113, 03/07/2016, 1720160, Page8 of 14
9
We cited the Eleventh Circuit’s approach approvingly in
Gonzalez v. United States, 792 F.3d at 237. In Gonzalez, we were asked
to determine when a criminal judgment became “final” for purposes
of triggering the limitations period of 28 U.S.C. § 2255. We noted that
the Supreme Court’s decisions in Dolan and Corey, together with the
Eleventh Circuit’s holding in Muzio, supported the conclusion that a
criminal defendant has two opportunities to appeal: first, “from an
initial sentence, even if some aspects of the sentence are not final”;
and again “from the final order disposing of the case in the district
court.” Gonzalez, 792 F.3d at 237.
Relying on Gonzalez, we reached the same conclusion in United
States v. Ryan, 806 F.3d 691 (2d Cir. 2015). Ryan, unlike Gonzalez,
involved a direct appeal from a judgment of conviction that, as in the
instant case, imposed a term of imprisonment and an undetermined
amount of restitution. Although we held the appeal in abeyance until
the district court entered an amended judgment setting restitution,
we noted in dicta that “[t]he original judgment was a final
judgment.” Id. at 692 n.1 (citing Gonzalez, 792 F.3d at 237).6
6 Our statement in Ryan was dictum because we did not actually hear that
appeal until “completion of the restitution proceedings that resulted in the
amended judgment.” Ryan, 806 F.3d at 692. In other words, Ryan, unlike the
instant case, did not actually involve an appeal from a judgment in which
restitution had not been set. Although we assumed that we had had jurisdiction
from the time that the defendant “filed a notice of appeal of the original
judgment,” id. at 692 n.1, we never exercised that jurisdiction. We merely held the
appeal in abeyance until entry of the amended judgment—an action that would
also have been consistent with our treating the initial sentence as non‐final. Cf.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page9 of 14
10
In light of our dicta in Gonzalez and Ryan, the Supreme Court’s
observations in Dolan, the holdings of our sister circuits, and our own
past practice,7 we have no difficulty in reaching our holding today: a
judgment of conviction that imposes a sentence including
incarceration and restitution is “final” within the meaning of 28
U.S.C. § 1291, even if the sentence defers determination of the
amount of restitution.8 In such situations, § 1291 permits a defendant
Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court announces a
decision, sentence, or order—but before the entry of the judgment or order—is
treated as filed on the date of and after the entry.”); United States v. Owen, 553 F.3d
161, 164–65 (2d Cir. 2009) (noting our practice of holding a “protective” notice of
appeal in abeyance until it becomes “effective”).
7 See, e.g., Stevens, 211 F.3d at 1. In United States v. Gushlak, 495 F. App’x 132
(2d Cir. 2012), we assumed that a judgment of conviction was appealable even if
restitution proceedings remained pending. We never discussed the issue
explicitly, however, and in any event that decision was nonprecedential. See also
United States v. Gushlak, 728 F.3d 184, 188 (2d Cir. 2013) (noting that “[t]he
[district] court entered judgment while the restitution issue remained pending in
order to enable [the defendant] to appeal his conviction and sentence
immediately”).
8 We need not decide whether a sentence imposing an undetermined
amount of restitution, but not incarceration, would also be final. On the one hand,
such a sentence would not impose the immediate “judicial control” or
“discipline” that prompted the Supreme Court’s concern in Corey, 375 U.S. at 174
(internal quotation marks omitted). Moreover, the cases on which we have relied
all involved “a judgment imposing a term of imprisonment.” Muzio, 757 F.3d at
1244; see Dolan, 560 U.S. at 617; Ryan, 806 F.3d at 692; Gonzalez, 792 F.3d at 233;
Gilbert, 807 F.3d at 1200 (“[A] sentence of incarceration coupled with an unspecified
amount of restitution is a sufficiently final judgment to support a direct appeal.”
(emphasis supplied)). On the other hand, the mere fact of conviction—apart from
any sentence—imposes disabilities that a defendant has an interest in challenging
promptly. See Berman v. United States, 302 U.S. 211, 213 (1937). And courts have
Case 14-2483, Document 113, 03/07/2016, 1720160, Page10 of 14
11
either to appeal immediately from the initial sentence or to wait until
all aspects of the sentence have been determined. Cf. Gonzalez, 792
F.3d at 237; Muzio, 757 F.3d at 1250. We therefore have jurisdiction
over the present appeal.
B. Tulsiram’s Guilty Plea
Having assured ourselves of our jurisdiction, we turn to the
merits of Tulsiram’s appeal.
Rule 11(b)(1)(K) of the Federal Rules of Criminal Procedure
requires a district court, before accepting a plea of guilty, to “inform
the defendant of, and determine that the defendant understands . . .
the court’s authority to order restitution.” Tulsiram argues that the
District Court violated that rule by failing to inform him that the
offenses to which he was pleading guilty required the imposition of
restitution, and that we must therefore vacate his plea.
Because Tulsiram did not raise this objection below, our review
is for plain error.9 See Fed. R. Crim. P. 52(b); United States v. Vonn, 535
U.S. 55, 59 (2002). He therefore bears the burden of establishing that
expressed concern about making a defendant postpone his appeal “indefinitely” if
a district court is tardy in setting restitution. See Muzio, 757 F.3d at 1246–48.
9 Tulsiram insists that plain‐error review does not apply in this particular
circumstance. Even if we were so persuaded, his claim would fail even under a
harmless‐error standard.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page11 of 14
12
(1) there is an error; (2) the error is clear or obvious,
rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the
ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of
judicial proceedings.
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting
United States v. Marcus, 560 U.S. 258, 262 (2010)). In the Rule 11
context, the plain‐error standard requires a defendant to “establish
that the violation affected substantial rights and that there is a
reasonable probability that, but for the error, he would not have
entered the plea.” Id. (internal quotation marks omitted).
Here, the first two requirements of the plain‐error standard are
undisputedly satisfied: the District Court clearly erred in failing to
advise Tulsiram regarding restitution during the plea proceeding.
Tulsiram has not, however, shown that he would not have pleaded
guilty but for that particular Rule 11 violation. Indeed, several
considerations persuade us that he was aware of the possibility of
restitution before he entered his plea, and that the Rule 11 error did
not affect his decision.
First, the Pimentel letter warned Tulsiram before he entered his
plea that the court was required to order restitution. It seems
improbable, then, that the District Court’s mentioning restitution
Case 14-2483, Document 113, 03/07/2016, 1720160, Page12 of 14
13
again during the plea proceeding would have altered Tulsiram’s
resolve.
Second, both the Pimentel letter and the plea colloquy
instructed Tulsiram that he faced a potential fine of $1 million—far
more than what he could reasonably have expected to pay in
restitution. Cf. United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005)
(collecting cases finding no plain error where a district court failed to
advise a defendant regarding restitution but did advise the
defendant regarding larger potential fines). The Government and the
District Court also informed Tulsiram that the crimes to which he
pleaded guilty carried a maximum sentence of ninety years’
imprisonment. Finally, the District Court reminded Tulsiram that the
indictment contained a forfeiture count. It beggars the imagination to
suppose that Tulsiram was willing to face these stiff punishments,
but not the mere possibility of paying restitution, by pleading guilty.
Finally, Tulsiram “failed to object when the restitution order
was actually imposed.” Id.; cf. id. (“Where a defendant, before
sentencing, learns of information erroneously omitted in violation of
Rule 11 but fails to attempt to withdraw his plea based on that
violation, there can be no reasonable probability that, but for the Rule
11 violation, he would not have entered the plea, and the plain error
standard is not met.” (alteration and internal quotation marks
omitted)).
Case 14-2483, Document 113, 03/07/2016, 1720160, Page13 of 14
14
In short, Tulsiram has failed to meet his burden of showing
that he would not have entered his plea but for the District Court’s
Rule 11 error, and his plea must stand.
CONCLUSION
We have considered all of Tulsiram’s arguments on appeal and
find them to be without merit. To summarize, we hold as follows:
(1) A judgment of conviction that imposes a sentence including
incarceration and restitution, but which leaves the amount
of restitution to be determined, is “final” within the
meaning of 28 U.S.C. § 1291, and may therefore be
appealed; and
(2) Although the District Court violated Rule 11(b)(1)(K) of the
Federal Rules of Criminal Procedure by failing to advise
Tulsiram during the plea proceeding regarding mandatory
restitution, Tulsiram has not shown that there was a
reasonable probability that he would not have pleaded
guilty but for that violation. Accordingly, the District Court
did not commit “plain error,” and Tulsiram may not
withdraw his plea.
We therefore AFFIRM the judgment of the District Court.
Case 14-2483, Document 113, 03/07/2016, 1720160, Page14 of 14 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-00754/USCOURTS-caed-2_14-cv-00754-1/pdf.json | [
[
"Vincent Khoury Tylor",
"Plaintiff"
],
[
"Vezer Family Vineyard",
"Defendant"
],
[
"Vezer Family Vineyard, LLC",
"Defendant"
]
] | Order RE Stipulation for Dismissal 2:14-cv-00754-MCE-AC
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ADAM I. GAFNI (CA Bar # 230045) WOOLF GAFNI & CIRLIN LLP
10850 Wilshire Blvd, Suite 510
Los Angeles, California 90024
Tel: 310-474-8776
Fax: 310-919-3037
Email: [email protected]
Attorney for Plaintiff, VINCENT KHOURY TYLOR
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
VINCENT KHOURY TYLOR,
Plaintiff,
vs.
VEZER FAMILY VINEYARD, LLC
dba VEZER FAMILY VINEYARD
AND DOES 1 THROUGH 20
Defendants.
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Case No. 2:14-cv-00754-MCE-AC
[Assigned to the Hon. Morrison C.
England, Jr.]
ORDER RE: STIPULATION
FOR DISMISSAL PURSUANT
TO FEDERAL RULE OF CIVIL
PROCEDURE 41(a)
///
///
///
///
Case 2:14-cv-00754-MCE-AC Document 20 Filed 05/15/15 Page 1 of 2
Order RE Stipulation for Dismissal 2:14-cv-00754-MCE-AC
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ORDER
The Court, having read and considered the signed Stipulation for Dismissal
filed by Plaintiff VINCENT KHOURY TYLOR and Defendant VEZER FAMILY
VINEYARD, LLC dba VEZER FAMILY VINEYARD (ECF No. 16), hereby orders
this entire action DISMISSED with prejudice, with each party to bear its own
attorneys’ fees and costs.
IT IS SO ORDERED.
Dated: May 13, 2015
Case 2:14-cv-00754-MCE-AC Document 20 Filed 05/15/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-19-03035/USCOURTS-ca6-19-03035-0/pdf.json | [
[
"Liberty Insurance Corporation",
"Appellee"
],
[
"Murray Richelson",
"Appellant"
]
] | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 20a0004n.06
Case No. 19-3035
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MURRAY RICHELSON,
Plaintiff-Appellant,
v.
LIBERTY INSURANCE CORPORATION,
Defendant-Appellee.
)
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO
BEFORE: BATCHELDER, DONALD, and READLER, Circuit Judges
CHAD A. READLER, Circuit Judge. When interpreting policy language in an insurance
contract, Ohio courts will construe ambiguous language against the insurer and in favor of the
insured. See Andersen v. Highland House Co., 757 N.E.2d 329, 332 (Ohio 2001). That interpretive
practice seeks to encourage the drafter—typically the insurer, often the more experienced party—
to be as clear as possible in the contractual language it utilizes. By the same token, where an
insurer has utilized contract language that is clear and unambiguous, Ohio courts will construe that
language by giving it its ordinary and plain meaning. See Ohio N. Univ. v. Charles Constr. Servs.,
Inc., 120 N.E.3d 762, 766 (Ohio 2018). This latter principle resolves today’s case. Murray
Richelson entered into an insurance contract with Liberty Insurance. Richelson purports not to
have read, at the time of signing, language in that contract that is now in dispute and today reads
that language differently than does Liberty. But that language is subject to only one
Case: 19-3035 Document: 26-2 Filed: 01/06/2020 Page: 1
Case No. 19-3035, Richelson v. Liberty Insurance
2
interpretation—the one given it by Liberty. Accordingly, we AFFIRM the district court’s grant
of Liberty’s motion to dismiss Richelson’s breach-of-contract and fraud claims.
I. FACTS AND PROCEDURAL HISTORY
A windstorm caused damage to the roof of Murray Richelson’s home. Citing that storm
damage, Richelson filed a claim with Liberty Insurance, from whom Richelson had purchased a
homeowner’s insurance policy. An adjustor determined that the cost to replace the roof was
$8,960. But Liberty declined to pay Richelson the replacement cost. Liberty instead paid
Richelson the amount of the roof’s actual cash value, or “ACV.” Liberty determined the ACV
amount by applying the policy’s $1,000 deductible and deducting depreciation from the
replacement cost amount. All told, Liberty reimbursed Richelson $4,350.58, less than half of the
cost to replace the roof. This led to a dispute regarding the terms of Richelson’s policy.
Section 1 of Richelson’s policy addresses “A. Dwelling with Expanded Replacement
Cost.” There, the policy states that “[l]osses covered under Section 1 are subject to a deductible
of: $1,000.”
Insurance policies also sometimes include “endorsements.” Generally speaking, an
endorsement is an amendment to an insurance contract which impacts the scope of coverage of the
policy in some way. See Endorsement, Black’s Law Dictionary (9th ed. 2009). Relevant here is
an endorsement to Richelson’s homeowner’s policy numbered FMHO 3325 03 12. In large uppercase font, the endorsement reads: “THIS ENDORSEMENT CHANGES YOUR POLICY.
PLEASE READ IT CAREFULLY.” Below that, in equally large upper-case font, this time also
in bold, the endorsement addresses: “ACTUAL CASH VALUE LOSS SETTLEMENT
WINDSTORM OR HAIL LOSSES TO ROOF SURFACING.” The endorsement provides
that losses to “[b]uildings under Coverage A or B, except for their roof surfacing, roof vents and
Case: 19-3035 Document: 26-2 Filed: 01/06/2020 Page: 2
Case No. 19-3035, Richelson v. Liberty Insurance
3
roof flashing materials if the loss to the roof surfacing, roof vents and roof flashing materials is
caused by the peril of Windstorm or Hail, [is] at replacement cost without deduction for
depreciation . . . .” The endorsement also sets forth the coverage that applies in such situations.
Claims for losses to “[r]oof surfacing, roof vents and roof flashing materials if the loss is caused
by the peril of Windstorm or Hail” are settled “at actual cash value at the time of the loss but not
more than the amount required to repair or replace.”
Challenging Liberty’s reading and application of the endorsement, Richelson filed in state
court a class action complaint against Liberty. Because Richelson was an Ohio resident, and
Liberty a Massachusetts corporation with its principal place of business in Massachusetts, there
was diversity between them. That, and the fact that the total damages sought in the case exceeded
$5 million, allowed Liberty to remove the case to federal court under the Class Action Fairness
Act. See 28 U.S.C § 1332 (d)(2).
In the class action, Richelson sought to represent two distinct classes of Liberty
policyholders: (1) Homeowners in Ohio with an ACV roof endorsement who filed claims with
Liberty after their homes suffered damage and who, as a result of the endorsement, were paid ACV
rather than replacement costs; and (2) Owners of Ohio homes who filed claims with Liberty on a
home insurance policy with the same LibertyGuard Endorsement, or an endorsement with the same
loss settlement provisions as the LibertyGuard Endorsement, who suffered a loss under Buildings
Coverage A or B for which they were paid ACV, after application of a $1,000 deductible. In
addition to pursuing those claims, Richelson also alleged that the language in the policy
declarations led him justifiably to believe that the ACF/roof endorsement expanded, as opposed to
diminished, the extent of his coverage, that Liberty included such misleading terms with an intent
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Case No. 19-3035, Richelson v. Liberty Insurance
4
to mislead Richelson, and that Richelson was thus fraudulently induced by Liberty to enter into
the insurance contract.
Liberty moved under Federal Rule of Civil Procedure 12 (b)(6) to dismiss the case. With
respect to Richelson’s “ACV” breach-of-contract claim, the district court rejected as unreasonable
Richelson’s interpretation that the policy endorsement provided an extra layer of coverage rather
than explaining an exception to the replacement-cost general rule. Rather, Richelson’s coverage
(as relevant here) was limited to ACV only. Accordingly, the district court concluded, Richelson’s
claim failed as a matter of law.
The district court held the same with respect to Richelson’s “deductible” breach-of-contract
claim. Richelson conceded that his roof claim was a Section 1 claim. The district court in turn
concluded that the language in Richelson’s policy plainly declared that a $1,000 deductible is
applicable to Section 1 claims. The district court rejected Richelson’s argument that the deductible
was not part of any calculation except the replacement-cost calculation. That interpretation was
unreasonable, the district court concluded, first because it misunderstood the meaning of the term
“deductible,” and also because it made the deductible language superfluous for three of the four
Section 1 coverages.
The district court likewise dismissed Richelson’s fraud claim. The heading “additional
coverages,” which Liberty placed above the ACV/roof endorsement section of the policy, was not
misleading, the district court reasoned, when read in the context of the contract as a whole. Nor,
the district court added, would the endorsement have gone unnoticed by a reasonable person, given
the size of the bolded text used to highlight its importance.
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Case No. 19-3035, Richelson v. Liberty Insurance
5
II. ANALYSIS
We begin with the framework guiding our review. As an initial matter, the district court
correctly considered the terms of the insurance contract because it was attached to, and thus
became part of, the pleadings. See Comm. Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,
335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)). In evaluating a district court’s grant of a motion
to dismiss, we assume the plaintiff’s version of the facts to be true, Taylor v. City of Saginaw,
922 F.3d 328, 331 (6th Cir. 2019), and we review de novo the district court’s decision to dismiss
the complaint. United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th
Cir. 2017). With respect to the district court’s legal conclusions, because the parties have invoked
diversity jurisdiction as the basis for proceeding in federal court, we view the substantive legal
issues before us through the lens of state law. State Auto Prop. & Cas. Ins. Co. v. Hargis, 785
F.3d 189, 195 (6th Cir. 2015). In this case, we apply the substantive state law of Ohio, as this case
turns on an insurance contract governed by Ohio law. To measure the substantive aspects of Ohio
law, we look to relevant decisions from the Ohio Supreme Court. See id. In their absence,
decisions from Ohio’s intermediate appellate courts can help set that legal framework. Id.
A. Richelson Failed To State A Claim For Breach Of Contract.
Richelson’s complaint asserts two breach-of-contract theories against Liberty. Primarily,
Richelson argues that Liberty breached the parties’ insurance contract by utilizing ACV, rather
than replacement cost, in assessing the payment amount owed to Richelson for the windstorm
damage to his roof. Alternatively, if ACV was in fact the proper method for determining the
payment amount, Richelson says that Liberty nonetheless breached the contract by factoring in a
deductible in the calculation for ACV.
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Case No. 19-3035, Richelson v. Liberty Insurance
6
The basic elements of a breach of contract under Ohio law are “the existence of a contract,
the failure without legal excuse of the other party to perform when performance is due, and
damages or loss resulting from the breach.” Lucarell v. Nationwide Mut. Ins. Co., 97 N.E.3d 458,
469 (Ohio 2018). In assessing whether a breach of an insurance contract has occurred, we must
“examine the insurance contract as a whole and presume that the intent of the parties is reflected
in the language used in the policy.” Westfield Ins. Co. v. Galatis, 797 N.E.2d 1256, 1261 (Ohio
2003) (citation omitted). And we interpret the words of the contract “according to their plain
meaning.” Boone Coleman Constr., Inc. v. Piketon, 50 N.E.3d 502, 515 (Ohio 2016). That said,
as we find ourselves at the motion-to-dismiss stage, our task is not to decide which of the parties’
competing views has more merit. Instead, we ask whether Richelson has put forward a reasonable
interpretation of the insurance policy. If so, we must reverse the district court and allow the suit
to proceed. Andersen, 757 N.E.2d at 332.
1. Richelson Cannot State A Claim For Breach Of Contract Because Of Liberty’s Paying
Him ACV For His Roof Damage.
Richelson’s first argument turns on the interplay between a policy declaration and a related
endorsement in his homeowner’s insurance policy. The relevant policy declaration states that
Richelson would have coverage for “A. Dwelling with Expanded Replacement Cost.” A relevant
endorsement—FMHO 3325 03 12—spoke to the same subject. It states that payments for losses
to “Buildings under Coverage A or B, except for their roof surfacing, roof vents and roof flashing
materials if the loss to the roof surfacing, roof vents and roof flashing materials is caused by the
peril of Windstorm or Hail, [is] at replacement cost without deduction for depreciation . . . .”
Parsing that lengthy sentence, the endorsement explains that the standard coverage for “Buildings
under Coverage A or B” is “replacement cost without deduction for depreciation.” But the
endorsement exempts from that standard coverage the very circumstance at issue here: coverage
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Case No. 19-3035, Richelson v. Liberty Insurance
7
for “roof surfacing, roof vents, and roof flashing materials if the loss to the roof surfacing, roof
vents and roof flashing materials is caused by the peril of Windstorm or Hail.” That plain
language, in other words, sets forth an exception to replacement-cost coverage for windstorm
damage like that experienced by Richelson. The endorsement, it bears adding, then goes on to
explain how those incidents are treated. Claims for losses to “[r]oof surfacing, roof vents and roof
flashing materials if the loss is caused by the peril of Windstorm or Hail” are settled “at actual
cash value at the time of the loss but not more than the amount required to repair or replace.”
Taking the language of the policy declaration and the endorsement together, the only
reasonable interpretation is that the amount of Richelson’s claim for reimbursement for roof
damage caused by a windstorm is calculated by utilizing the ACV—not the replacement cost—of
the roof. Put another way, Richelson’s windstorm-based claim was governed not by the general
rule (replacement cost), but rather by an express exception to that rule (ACV for roof damage
caused by hail or wind). For the roof-damages portion of Richelson’s claim, then, Liberty was
required to pay ACV.
Resisting that conclusion, Richelson asks us to elevate the language in the policy
declarations over that in the endorsement. But Ohio law understandably requires that we “examine
the insurance contract as a whole,” giving meaning to each of its parts. Westfield Ins., 797 N.E.2d
at 1261 (citation omitted). It may be, as Richelson contends, that some state courts find an
insurance contract’s policy declarations to be the most important part of the policy. Setting aside
the fact that such a preferential interpretive rule would require discounting certain plain language
in an agreement, the fact remains that Ohio has not adopted such a rule, to our knowledge. Under
Ohio law, where we must give fair meaning to all language in the contract, Richelson’s
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Case No. 19-3035, Richelson v. Liberty Insurance
8
interpretation of the ACV-related provision is not reasonable. Accordingly, he has not alleged a
viable theory of breach by Liberty. See Andersen, 757 N.E.2d at 332.
2. Richelson Cannot State A Claim For Breach Of Contract Because Of Liberty’s Including
A Deductible In Its Settlement Calculations.
Even assuming ACV governs the payment amount owed to Richelson, he argues that
Liberty should not have included a $1,000 deductible when it calculated the settlement amount
owed to him for his roof damage. The parties agree that, under the policy, Richelson’s roof claim
is a “Section 1” claim. Turning then to the plain language of the policy, Boone Coleman Constr.,
50 N.E.3d at 515, we note that the declarations page provides that “[l]osses covered under Section
1 are subject to a deductible of: $1,000.” So unless there is language elsewhere in the policy that
excludes ACV claims from the Section-1-deductible language, Richelson’s claim was properly
subject to the deductible.
Richelson attempts to show such an exclusion. He starts by citing contractual language
addressing how the deductible applies when calculating a replacement-cost settlement. He then
contrasts that more robust discussion with the lack of comparable language in any section
discussing deductibles in ACV settlements. Relying on the familiar maxim of “expressio unius
est exclusio alterius,” which means expressing one item of an associated group or series excludes
others left unmentioned, Richelson argues that this omission in the ACV section somehow
undermines the otherwise straight-forward language in the policy declarations.
We disagree. Section 1 ACV claims are explicitly subject to a $1,000 deductible.
Richelson has not cited language to the contrary. Nothing in any policy declaration or endorsement
exempts settlements relating to roof damage covered under the ACV/roof endorsement from the
$1000 deductible. Richelson has not cited relevant language to that effect. Instead, he cites two
cases he reads to stand for the proposition that we should read the ACV deductible language by
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Case No. 19-3035, Richelson v. Liberty Insurance
9
incorporating language not found in that part of the agreement. Those cases are Bond v. Liberty
Ins. Corp., 272 F. Supp. 3d 1112 (W.D. Mo. 2017), and Lafollette v. Liberty Mut. Fire Ins. Co.,
139 F. Supp. 3d 1017 (W.D. Mo. 2015). The contracts at issue in those cases, however, utilized
different language than today’s contract. And they were governed by Missouri law. Those cases
thus offer little guidance in interpreting different language of a different contract, measured under
a different state’s law. Honoring the plain language in Richelson’s agreement, we reject this
breach claim as well.
B. Richelson Failed To State A Claim For Fraud.
Failing to offer a reasonable reading of the policy language, Richelson alternatively argues
that the policy language is so misleading that he was fraudulently induced into signing the contract.
Under Ohio law, a plaintiff asserting a fraud-based claim must prove six elements: (1) “a
representation of a fact,” (2) “which is material,” (3) made either knowingly or recklessly falsely,
(4) “with an intent to mislead,” (5) “with justifiable reliance thereupon,” and (6) “a resulting
injury.” Tokles & Son, Inc. v. Midwestern Indemn. Co., 605 N.E.2d 936, 944 (Ohio 1992) (citation
omitted); see also Brownfield Restoration Grp., LLC v. Trickett, 122 N.E.3d 570, 577 (Ohio Ct.
App. 2018) (listing these same elements for fraudulent-inducement claims). For Richelson to
succeed, he must plausibly allege each element. CitiMortgage, Inc. v. Hoge, 962 N.E.2d 327, 333
(Ohio Ct. App. 2011).
We can resolve Richelson’s fraud claim based solely on his failure to plausibly allege
justifiable reliance. The gist of his argument seems to be that because, in his mind, the policy
language requiring replacement-value coverage is so clear, a reasonable person, rather than reading
the entire policy, would instead have justifiably relied upon that replacement-value-coverage
language, and thus would never have expected the insurer to invoke language in an endorsement
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Case No. 19-3035, Richelson v. Liberty Insurance
10
that changed the nature of that coverage. Whatever the outer limits of a viable claim of justifiable
reliance, one cannot justifiably rely on a purportedly unclear statement in a contract when reading
the contract in full would remove any lack of clarity. See Haller v. Borror Corp., 552 N.E.2d 207,
210 (Ohio 1990). Put another way, Richelson “cannot say that he was misled into signing a paper
which was different from what he intended to sign when he could have known the truth by merely
looking when he signed.” Id.
As already discussed, Richelson’s policy plainly stated that the kind of roof damage he
experienced was covered under the ACV/roof endorsement. Yes, as Richelson notes, that
endorsement was listed under “Additional Coverages.” But reading the contract in full reveals
that such coverage is not a top-up to other coverages, as Richelson suggests, but rather the
identification of an exception to previous coverage descriptions. Nor could the endorsement have
been made more apparent. At the top of the page, in large upper-case font, the endorsement
provides “THIS ENDORSEMENT CHANGES YOUR POLICY. PLEASE READ IT
CAREFULLY.” Below that, in bold and equally large upper-case font, the endorsement sets forth
“ACTUAL CASH VALUE LOSS SETTLEMENT WINDSTORM OR HAIL LOSSES TO
ROOF SURFACING.” If Liberty was trying to hide the endorsement ball, as Richelson suggests,
it did quite a poor job.
The need to review the endorsement language was eminently clear to a reasonable reader.
That is enough to doom Richelson’s fraud claim. The district court thus properly dismissed
Richelson’s fraud claim.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
Case: 19-3035 Document: 26-2 Filed: 01/06/2020 Page: 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_19-cv-00351/USCOURTS-caed-2_19-cv-00351-0/pdf.json | [
[
"Amtrak",
"Defendant"
],
[
"Gwendolyn Morgan",
"Plaintiff"
],
[
"Johnny Sterio",
"Defendant"
]
] | ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP
1 8 0 Mo nt g o mer y St re et , S u it e 1 20 0
S a n Fr anc is c o, C al if o rn i a 9 410 4
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1 ORDER
2:19−CV−00351−MCE−DB
354371.1
VINCENT CASTILLO, State Bar No. 209298
[email protected]
ALEXEI N. OFFILL-KLEIN, State Bar No. 288448
[email protected]
ALLEN, GLAESSNER, HAZELWOOD & WERTH, LLP
180 Montgomery Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 697-2000
Facsimile: (415) 813-2045
Attorneys for Defendant
NATIONAL RAILROAD PASSENGER CORPORATION
aka AMTRAK (erroneously sued as “Amtrak”)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO COURTHOUSE
GWENDOLYN MORGAN,
Plaintiff,
v.
AMTRAK and JOHNNY STERIO,
Defendants.
Case No. 2:19−CV−00351−MCE−DB
ORDER RE: STIPULATION FOR
DISMISSAL OF AMTRAK WITHOUT
PREJUDICE
Hon. Morrison C. England, Jr.
Trial: None Set
Based upon the stipulation of Plaintiff and Defendant NATIONAL RAILROAD
PASSENGER CORPORATION aka AMTRAK, the Court hereby orders that Defendant
NATIONAL RAILROAD PASSENGER CORPORATION aka AMTRAK is dismissed without
prejudice, with each side to bear its own costs and fees. This case shall proceed on Plaintiff’s
remaining claims.
IT IS SO ORDERED.
Dated: April 6, 2020
Case 2:19-cv-00351-MCE-DB Document 9 Filed 04/07/20 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-15-14023/USCOURTS-ca11-15-14023-0/pdf.json | [
[
"Sergio Bertuzzi",
"Appellant"
],
[
"David Cox",
"Appellant"
],
[
"Anthony Fenech",
"Appellant"
],
[
"Mark Geyer",
"Appellant"
],
[
"Stephen McNeeley",
"Appellee"
],
[
"Nicholas Risi",
"Appellant"
],
[
"Norman Wilson",
"Appellant"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14023
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-00488-SPC-MRM
STEPHEN MCNEELEY,
Plaintiff - Appellee,
versus
NORMAN WILSON,
Lieutenant,
SERGIO BERTUZZI,
Corporal,
ANTHONY FENECH,
Deputy,
NICHOLAS RISI,
Deputy,
DAVID COX,
Deputy,
MARK GEYER,
Deputy,
Defendants - Appellants,
JOHN DOE #1, etc., et al.,
Defendants.
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 1 of 15
2
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 2, 2016)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Defendants-Appellants Norman Wilson, Sergio Bertuzzi, Anthony Fenech,
Nicholas Risi, David Cox, and Mark Geyer appeal the district court’s denial of
summary judgment on the basis of qualified immunity in favor of Stephen
McNeeley, an inmate at Charlotte County Jail in Punta Gorda, Florida. The
complaint, filed pursuant to 42 U.S.C. § 1983, alleges that the Defendants violated
McNeeley’s civil rights when they sprayed him with chemical agents, placed him
in four-point restraints for four hours without a decontamination shower, and then
returned him to his contaminated cell. Among other things, he brought an Eighth
Amendment claim based on deliberate indifference to his serious medical needs
against Bertuzzi, Fenech, Cox, Geyer, and Risi; an unlawful conditions-ofconfinement claim against Bertuzzi and Wilson; and supervisory liability against
Bertuzzi and Wilson. On appeal, the Defendants argue that the district court erred
in denying their motions for summary judgment seeking qualified immunity on
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 2 of 15
3
these claims because no clearly established constitutional rights were violated.
After careful review, we affirm in part, reverse in part, and remand.
1
We review de novo a district court’s ruling on a summary judgment motion
based on qualified immunity, and resolve all issues of material fact in favor of the
plaintiff. McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009).
Summary judgment is proper if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[G]enuine disputes of facts are those in which the evidence
is such that a reasonable jury could return a verdict for the non-movant.” Mann v.
Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quotation omitted). “For
factual issues to be considered genuine, they must have a real basis in the
record.” Id. (quotation omitted). “[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005).
The relevant facts -- at the summary judgment stage -- are these. McNeeley
has been incarcerated in various Florida prisons since 1999. McNeeley was at the
Charlotte County Jail in September 2008 when the incidents at issue occurred. On
September 5 and 6, McNeeley complained several times to corrections officers that
1 McNeeley also moved to dismiss this appeal for lack of jurisdiction, but an eariler panel of this
Court disagreed. After further review, our holding remains the same. Because the district
court’s order denying the Defendants’ motions for summary judgment on qualified immunity
grounds rests in part on conclusions of law, the order is immediately appealable under the
collateral order doctrine.
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 3 of 15
4
next-door inmate Bruce Swartz (or Schwartz) was creating a noise disturbance by
screaming and beating on the walls. When McNeeley was told Swartz would not
be relocated to a different cell, he papered his cell window and kicked on his cell
door in an attempt to force a meeting with Corporal Bertuzzi, the jail’s daytime
watch commander. In response, Bertuzzi went to McNeeley’s cell on September 7
with Deputies Fenech, Cox, and Risi. Bertuzzi and Fenech brought canisters of
chemical agents. At least three canisters were sprayed into McNeeley’s food port,
which he attempted to block with his sleeping pad. Risi thrust a broomstick
through the food port to clear the mattress pad and struck McNeeley’s wrist, and
part of the broomstick broke off inside McNeeley’s cell. After the mattress pad
was pulled out through the food port, McNeeley continued to disobey demands by
the officers to slide his hands through the food slot for handcuffing and to give
back the broomstick, and Fenech continued to spray chemical agents.
About one hour after the initial spraying, a Corrections Emergency Response
Team (CERT) extracted McNeeley from his cell and bound him in a four-point
restraint chair in the jail’s recreation yard. Defendants Geyer and Risi were on the
CERT team, and Wilson was the watch commander at the time. The CERT team
denied requests by McNeeley to decontaminate, and bound his wrists so tightly
that he began to lose circulation. The nurse on duty ordered the restraints loosened
after approximately one hour. She later testified she was worried and upset about
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 4 of 15
5
injuries to McNeeley’s right hand. No other inmate that she was aware of had ever
been restrained for so long after being pepper sprayed. McNeeley complained that
he was having extreme difficulty breathing, his skin was burning, and his eyes
were red; the nurse testified that “[h]e was tearing and his eyes were red . . . [a]nd
he said his skin was burning.” After about three hours in the restraint chair,
McNeeley was allowed to shower for approximately five to ten minutes. Then he
was returned to his cell, which he asserts had not been decontaminated. He
continued to seek medical attention up to three months after the spraying for
cracked and peeling skin and his injured wrist. He also continued to write medical
requests complaining that his eyes were bothering him.
Section 1983 supplies a remedy to a plaintiff “who can prove that a person
acting under color of state law committed an act that deprived [him] of some right,
privilege, or immunity protected by the Constitution or laws of the United States.”
Hale v. Tallapoosa, 50 F.3d 1579, 1582 (11th Cir. 1995). Even if a plaintiff can
make out the elements of a section 1983 claim, government officials may raise
qualified immunity as an affirmative defense. Qualified immunity shields
government officials sued in their individual capacities from liability against a
plaintiff’s § 1983 claims if the officials’ conduct did not “violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010)
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 5 of 15
6
(quotation omitted). “The initial inquiry in a qualified immunity case is whether
the public official proves ‘that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.’” Id. at 1254 n.19 (quoting
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). If so, the court must
ascertain: (1) “whether the plaintiff’s allegations, if true, establish a constitutional
violation”; and (2) “whether the right violated was ‘clearly established.’” Id. at
1254. That right may be established by “specific statutory or constitutional
provisions; principles of law enunciated in relevant decisions; and factually similar
cases already decided by state and federal courts in the relevant jurisdiction.”
Goebert v. Lee Cty., 510 F.3d 1312, 1330 (11th Cir. 2007). The courts are
“afforded the flexibility to determine that the right allegedly violated was not
clearly established without deciding whether a constitutional violation occurred at
all.” Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013).
For starters, the Defendants were acting within the scope of their
discretionary authority when the incidents took place. “To determine whether an
official was engaged in a discretionary function, we consider whether the acts the
official undertook ‘are of a type that fell within the employee’s job
responsibilities.’” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.
2004) (quotation omitted). In applying this test, “we look to the general nature of
the defendant’s action, temporarily putting aside the fact that it may have been
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 6 of 15
7
committed for an unconstitutional purpose, in an unconstitutional manner, to an
unconstitutional extent, or under constitutionally inappropriate circumstances.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004).
Because there is no genuine issue of material fact concerning whether inmate
discipline and control is a primary job responsibility for the Defendants, we agree
that their acts -- regardless of whether these acts were improper -- were well within
the scope of their discretionary authority.
We next turn to the Defendants’ argument that the district court erred in
denying them summary judgment on their qualified immunity defense to
McNeeley’s deliberate indifference claim. A plaintiff inmate may state an Eighth
Amendment claim by challenging either: (1) the deliberate indifference to serious
medical need; (2) the specific conditions of confinement; or (3) the excessive use
of force. Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010). “A serious
medical need is one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307
(11th Cir. 2009) (quotation omitted). A serious medical need may also be found
when the need is worsened by a delay in treatment. Id. Either way, the medical
need must be one that, if left unattended, poses a substantial risk of serious harm.
Id. Deliberate indifference requires a showing of subjective knowledge of a risk of
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 7 of 15
8
serious harm and disregard of that risk by conduct that is more than gross
negligence. Danley v. Allen, 540 F.3d 1298, 1312 (11th Cir. 2008), overruled in
part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In Danley, the plaintiff alleged deliberate indifference to a serious medical
need based on the defendant jailers’ refusal to decontaminate him after spraying
him with chemical agents. Danley claimed that the jailers had sprayed him at close
range for three to five seconds in the doorway of a small, poorly ventilated cell,
and pushed him into that small cell for about twenty minutes, while he screamed he
could not breath and the jailers laughed at him. Id. at 1304. The jailers then
allowed him a two-minute shower and returned him to a group cell, which was also
insufficiently ventilated. Id. Danley alleged that he had suffered chemical
conjunctivitis and bronchospasms because of the delay in treatment. Id. at 1305.
In holding that the plaintiff had stated a claim, we stressed that “[t]he serious
medical needs Danley alleges . . . are the effects of prolonged exposure to pepper
spray with inadequate decontamination and poor ventilation, not the immediate
effects of the pepper spray.” Id. at 1311. As for deliberate indifference, we said
that “[t]he allegations in the complaint are that the jailers took only ineffective
measures to remedy the need and then mocked Danley and ignored his pleas for
help.” Id. at 1313. We also noted that the jailers allowed Danley only a twominute decontamination shower, while the jail’s own policy required a fifteenUSCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 8 of 15
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minute shower in order to ameliorate the effects of the spray. Id. at 1312.
Concluding that Danley had stated a clearly established serious medical need and
the jailers’ deliberate indifference, we stated simply that “the jailers forced Danley
to wait for too long before allowing him to shower,” which resulted in needless
pain, breathing problems, and inflamed eyes. Id. at 1311.
Here, McNeeley put forth evidence to suggest that he had been sprayed a
substantial amount by one of the officers who taunted him by saying, “I drowned
your ass in hotsauce didn’t I,” and, “Burn motherf---er burn.” There was also
evidence that when the CERT officers -- Geyer and Risi -- extracted him from his
cell and bound him in a four-point restraint chair, they refused to allow him to
decontaminate even though he complained that he was having extreme difficulty
breathing, his skin was burning, and his eyes were red. At that point, about an
hour had passed since the spraying, and McNeeley was complaining about its
effects. Corporal Bertuzzi was not on the CERT team, but admitted that he
photographed McNeeley being put into the restraint chair. About four hours after
being sprayed, McNeeley was allowed to shower for approximately five to ten
minutes. When returned to his cell, which he says had not been decontaminated,
he continued to complain about his eyes for some amount of time and to seek
medical attention up to three months for cracked, peeling skin and a wrist injury.
USCA11 Case: 15-14023 Date Filed: 05/02/2016 Page: 9 of 15
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This Court said in Danley that after a detainee was quieted by pepper spray
and was no longer a disruption or threat, a jailer’s refusal to permit proper
decontamination violated a clearly established right because existent “general legal
principles” were enough to clearly establish the right. 540 F.3d at 1313. Here, the
record contains evidence that Corporal Bertuzzi and Deputies Risi and Geyer knew
that McNeeley had been pepper-sprayed; heard his complaints while he was being
put into the restraint chair; and were aware that he was not allowed to
decontaminate his person for four hours. Even if McNeeley was able to partially
self-decontaminate in his cell by putting water on his eyes, Danley noted that a
two-minute shower could be insufficient for decontamination -- especially here,
where McNeeley continued to complain loudly about an hour later when they were
restraining him. Moreover, although the Defendants point to evidence that his skin
and wrist issues are unrelated to the September 7 incident, there is also evidence
suggesting otherwise. Thus, based on Danley, Defendants Bertuzzi, Risi and
Geyer were on notice that delaying a proper decontamination for over twenty
minutes despite complaints about the effects of pepper spray could result in a
clearly established constitutional violation. The district court did not err in
denying them qualified immunity at the summary judgment stage on McNeeley’s
deliberate indifference claim.2
2 To the extent the Defendants dispute McNeeley’s complaints about his mental illness and his
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As for Deputies Fenech and Cox, however, there is no evidence that they
witnessed McNeeley being put into the restraint chair, or that they were otherwise
aware of his requests for decontamination. Danley emphasized that the jailers
there laughed while the plaintiff complained about the effects of pepper spray, and
ignored his pleas for help. We cannot say that it is clearly established under the
law that officers who apply pepper spray to an inmate, do not hear his complaints,
and are not around while he is being denied decontamination can be held liable for
deliberate indifference. We, therefore, reverse the denial of summary judgment for
Fenech and Cox on McNeeley’s deliberate indifference claim.
While we agree that summary judgment was properly denied for certain
Defendants on McNeeley’s deliberate indifference claim, we cannot say the same
for his conditions-of-confinement claim against Lieutenant Wilson and Corporal
Bertuzzi. To challenge the conditions of confinement, a prisoner must make “an
objective showing of a deprivation or injury that is sufficiently serious to constitute
a denial of the minimal civilized measure of life’s necessities and a subjective
showing that the official had a sufficiently culpable state of mind.” Thomas, 614
F.3d at 1303 (11th Cir. 2010) (quotation omitted). The plaintiff must show
“extreme deprivations” and the deliberate indifference of the defendants. Id.
injured wrist, we do not read his brief as raising these issues as separate claims; rather, he
appears to argue that his mental illness and wrist injury exacerbated the effects of the delay in
decontamination.
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McNeeley’s conditions-of-confinement claim is based on: (1) the failure to protect
McNeeley from “noise torture” caused by inmate Swartz in light of McNeeley’s
mental illness; (2) the failure to decontaminate McNeeley before restraining him in
the chair; (3) the failure to decontaminate his cell; (4) McNeeley’s placement in a
contaminated cell for days; and (5) the delay in providing medical treatment.
Here, the district court erred in denying Defendants Wilson and Bertuzzi
summary judgment on their qualified immunity defense to McNeeley’s conditionsof-confinement claim. Unlike in Danley, McNeeley was not restrained in the cell
in which he had been pepper-sprayed; rather, he was moved to the yard when he
was placed in the restraint chair. While he claims that the cell in which he was
sprayed -- and later returned to -- was never decontaminated, it is undisputed that
several hours had passed since he was sprayed, and he does not say -- as in Danley
-- that the cell was poorly ventilated. Nor does McNeeley say that he actually
complained to the officers about the effects of the pepper spray on him before he
was placed in the restraint chair. Moreover, Danley involved deliberate
indifference and excessive force claims; not conditions of confinement. It even
goes so far as to suggest that failing to decontaminate a cell, or the prisoner
himself, from pepper spray would not constitute a conditions-of-confinement
claim. Danley, 540 F.3d at 1308-09 (“[S]ubjecting a prisoner to special
confinement that causes him to suffer increased effects of environmental
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conditions -- here, the pepper spray lingering in the air and on him -- can constitute
excessive force. This circumstance is to be distinguished from environmental
conditions that generally affect the inmates in the jail, which are analyzed as
conditions of confinement claims.”) (citations omitted). In any event, McNeeley
cites no law clearly establishing a conditions-of-confinement claim based on the
failure to decontaminate the prisoner or his cell from pepper spray.
Nor, moreover, does he offer any law clearly establishing a conditions-ofconfinement claim based on “noise torture.” Rather, the very case he cites disputes
this notion. See Hargrove v. Henderson, 1996 WL 467516, at *8 n.4 (M.D. Fla.
Aug. 13, 1996), aff’d, 124 F.3d 221 (11th Cir. 1997) (“Since there is no clearcut
standard delineating permissible levels of noise in the prison setting, the law in this
area is not clearly established.”). As a result, we are compelled to reverse the
denial of qualified immunity at the summary judgment stage for Wilson and
Bertuzzi on the conditions-of-confinement claim.
Finally, we are unpersuaded by Lieutenant Wilson and Corporal Bertuzzi’s
argument that the district court erred in denying them summary judgment on their
qualified immunity defense to the supervisory liability claim. “[S]upervisors are
liable under § 1983 either when the supervisor personally participates in the
alleged constitutional violation or when there is a causal connection between
actions of the supervising official and the alleged constitutional violation.”
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Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quotation omitted).
“A causal connection can be established by, inter alia, facts which support an
inference that the supervisor directed the subordinates to act unlawfully or knew
that the subordinates would act unlawfully and failed to stop them from doing so.”
Id. (quotation omitted). Here, there is evidence in the record that both Bertuzzi and
Wilson knew McNeeley had been sprayed with pepper spray; both were present an
hour later when he was put in the four-point restraints chair, and complaining
about the effects of pepper spray; and neither did anything to allow him proper
decontamination. The Defendants also admit in the reply brief that Lieutenant
Wilson knew McNeeley was being held in the chair without a decontamination
shower for several hours after being sprayed with chemical agents. Danley clearly
established that these allegations articulate an Eighth Amendment violation, and
thus Lieutenant Wilson and Corporal Bertuzzi were not entitled to summary
judgment on the supervisory liability claim.
In short, we affirm the district court’s denial of summary judgment for
Bertuzzi, Risi and Geyer on the deliberate indifference claim, and affirm the
district court’s denial of summary judgment for Wilson and Bertuzzi on the
supervisory liability claim. However, we reverse the denial of summary judgment
for Fenech and Cox on the deliberate indifference claim, reverse the denial of
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summary judgment for Wilson and Bertuzzi on the conditions-of-confinement
claim, and remand for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-01563/USCOURTS-caed-1_06-cv-01563-0/pdf.json | [
[
"Melvin E. Hunter",
"Respondent"
],
[
"Aaron Thornton",
"Petitioner"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
AARON THORNTON, )
)
Petitioner, )
)
)
vs. )
)
)
MELVIN E. HUNTER, )
)
Respondent. )
)
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___________________________________ )
1:06-CV-1563 AWI WMW HC
MEMORANDUM OPINION
AND ORDER DISMISSING
CASE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
The court has conducted a preliminary review of the petition as required pursuant to
Rule 4 of the Rules Governing Section 2254 Cases. After conducting this review, the court
finds that it plainly appears from the petition that Petitioner is not entitled to any relief. 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). In the
Case 1:06-cv-01563-ALA Document 4 Filed 01/03/07 Page 1 of 2
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present case, however, the petition does not contain any claims for relief at all, much less any
claims that Petitioner is in custody in violation of the Constitution, laws or treaties of the
United States. Rather, the petition contains only what appears to be quotations from other
orders issued by this court. Accordingly, the court finds that the petition provides no basis
for habeas corpus relief.
Based on the foregoing, IT IS HEREBY ORDERED as follows:
1) This case is DISMISSED;
2) The Clerk of the Court is directed to close the case and to serve Petitioner with a copy
of this order.
IT IS SO ORDERED.
Dated: December 30, 2006 /s/ Anthony W. Ishii
0m8i78 UNITED STATES DISTRICT JUDGE
Case 1:06-cv-01563-ALA Document 4 Filed 01/03/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_10-cv-01250/USCOURTS-caed-1_10-cv-01250-17/pdf.json | [
[
"R. Anderson",
"Defendant"
],
[
"Sylester Williams",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Plaintiff Sylester Williams is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On October 30, 2014, Plaintiff filed a motion to compel and a motion to allow Plaintiff to
subpoena certain log books and time cards. (ECF Nos. 83, 84.) Defendant did not file an opposition
or statement of no opposition pursuant to Local Rule 230(l). Defendant is forewarned that Local Rule
230(l) requires an opposition or statement of no opposition, and the failure to do so may be deemed a
waiver of any opposition to the granting of the motion and/or imposition of sanctions. Local Rule
230(l). Accordingly, within fifteen (15) days from the date of service of this order, Defendant shall
file an opposition or statement of no opposition to Plaintiff’s motions.
IT IS SO ORDERED.
Dated: December 2, 2014
UNITED STATES MAGISTRATE JUDGE
SYLESTER WILLIAMS,
Plaintiff,
v.
SERGEANT R. ANDERSON, et al.,
Defendant.
)
)
)
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Case No.: 1:10-cv-01250-SAB (PC)
ORDER DIRECTING DEFENDANT TO FILE
OPPOSITION OR STATEMENT OF NO
OPPOSITION TO PLAINTIFF’S MOTION TO
COMPEL AND MOTION FOR SUBPOENA
WITHIN FIFTEEN DAYS FROM THE DATE OF
SERVICE OF THIS ORDER
[ECF Nos. 83, 84]
Case 1:10-cv-01250-SAB Document 89 Filed 12/02/14 Page 1 of 1 |
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[
"J. Gastelo",
"Respondent"
],
[
"Alvin Bernard Jones",
"Petitioner"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ALVIN BERNARD JONES,
Petitioner,
v.
J. GASTELO,
Respondent.
Case No. 1:18-cv-00493-JDP
ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY OF
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION
ECF No. 24
Petitioner Alvin Bernard Jones, a state prisoner without counsel, filed a writ of habeas corpus
under 28 U.S.C. § 2254. ECF No. 1. Both parties have consented to the jurisdiction of a magistrate
judge. ECF Nos. 6, 13. On June 5, 2019, the petition was denied on the merits and the case was
closed. ECF Nos. 20, 21. On July 12, 2019, petitioner filed objections to this court’s denial of his
petition and requested an evidentiary hearing. ECF No. 23. On December 24, 2019, we construed
petitioner’s objections as a motion for reconsideration and denied the motion on the merits. ECF No.
24. Petitioner appealed our order denying his motion for reconsideration to the Court of Appeals for
the Ninth Circuit. ECF No. 25. The Court of Appeals remanded the case so that we could consider
whether to issue a certificate of appealability. ECF No. 28 at 2. For the following reasons, we deny
to issue a certificate of appealability.
Discussion
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district
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court’s denial of a final order; he may appeal only in limited circumstances. See 28 U.S.C.
§ 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254
Cases requires a district court to issue or deny a certificate of appealability when entering a final
order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116
F.3d 1268, 1270 (9th Cir. 1997). An order denying a Rule 60(b) motion for reconsideration is a
“final, appealable order.” See United States v. Winkles, 795 F.3d 1134, 1139 (9th Cir. 2015). A
certificate of appealability should only issue for the denial of a Rule 60(b) motion in a habeas
proceeding if (1) jurists of reason would find it debatable whether the “district court abused its
discretion in denying the Rule 60(b) motion” and (2) jurists of reason would find it debatable
whether the underlying habeas petition “states a valid claim of the denial of a constitutional
right.” United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015). The second prong of this
test requires the petitioner to show that “jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the
absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338.
Here, jurists of reason would not find it debatable whether we abused our discretion in
denying petitioner’s Rule 60(b) motion. In his motion for reconsideration, petitioner failed to
present any of the arguments required for a motion for reconsideration—such as mistake, fraud,
inadvertence, or newly-discovered evidence. See ECF No. 24 at 2. Additionally, reasonable
jurists would not find it debatable whether the underlying habeas petition states a valid claim of
the denial of a constitutional right. Petitioner’s constitutional claims were fully considered and
denied on the merits. See ECF No. 20. Thus, we decline to issue a certificate of appealability for
the denial of petitioner’s motion for reconsideration.
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Order
This court declines to issue a certificate of appealability for the denial of petitioner’s
motion for reconsideration. ECF No. 24. The Clerk of the Court is directed to serve a copy of
this order on the Court of Appeal for the Ninth Circuit.
IT IS SO ORDERED.
Dated: February 6, 2020
UNITED STATES MAGISTRATE JUDGE
No. 206.
Case 1:18-cv-00493-JDP Document 29 Filed 02/07/20 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-14-05939/USCOURTS-ca6-14-05939-0/pdf.json | [
[
"Knox County",
"Appellee"
],
[
"Knox County Board of Education",
"Appellee"
],
[
"PrintVenture, Inc",
"Appellant"
],
[
"Michael Scott Ward",
"Appellant"
],
[
"WeDo Fundraising, Inc",
"Appellant"
]
] | NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0352n.06
No. 14-5939
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL SCOTT WARD,
WEDO FUNDRAISING, INC., d/b/a
FEREDONNA COMMUNICATIONS, and
PRINTVENTURE, INC., d/b/a FEREDONNA
COMMUNICATIONS,
Plaintiffs-Appellants,
v.
KNOX COUNTY BOARD OF EDUCATION and
KNOX COUNTY,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
OPINION
___________________________________________)
Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Since 1989, Knox County children have
sold coupon books as part of an annual fundraising campaign for their county’s schools. Michael
Scott Ward and Feredonna Communications (collectively, Feredonna) won the contract to print
Knox County’s coupon books in 1994. The relationship between Feredonna and Knox County
lasted until 2009, when Knox County switched to another, lower bidder.
In 2011, Feredonna filed suit against both the Knox County Board of Education and Knox
County, alleging that Knox County’s coupon books infringe on the trademark, trade dress, and
copyright of Feredonna’s coupon books. The district court denied Feredonna’s requests for a
temporary restraining order (TRO) and a preliminary injunction, and eventually granted Knox
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Ward v. Knox Cnty. Bd. of Educ., No. 14-5939
2
County’s motion for summary judgment. For the reasons set forth below, we AFFIRM the
judgment of the district court.
I. BACKGROUND
A. Factual background
The coupon-book fundraising concept spread to Knox County in 1989. Coupons entitle
the purchaser to receive discounts on a variety of merchants’ goods and services, while sales of the
coupon books benefit the county’s schools. For the first few years, the coupon-book program was
called “Kids First” and then “Class Coupons.” Knox County changed the name to “School
Coupons” for the 1993-94 school year, with the coupon book for that year also using the title
“Head of the Class.”
Feredonna did not become involved with Knox County’s coupon-book program until
1994, when Feredonna won its first contract. The resulting coupon book for the 1994-95 school
year retained the name “School Coupons.” Feredonna continued to print coupon books for Knox
County, pursuant to various bid documents, from 1994 through 2009. Besides printing,
Feredonna also designed and produced the coupon books and recruited merchants from outside of
Knox County.
On September 29, 1997, Feredonna filed a trademark application for “School Coupons” as
a service, covering “charitable fund raising services on behalf of schools effected through the
distribution of books containing coupons which entitle the holders to receive discounts on dining,
hotels, travel, consumer merchandise, movies and other leisure activities.” The U.S. Patent and
Trademark Office (PTO) rejected the mark on July 9, 1998 and refused its registration on the
Principal Register because the mark was deemed “merely descriptive” under 15 U.S.C.
Case: 14-5939 Document: 41-1 Filed: 05/11/2015 Page: 2
Ward v. Knox Cnty. Bd. of Educ., No. 14-5939
3
§ 1052(e)(1). Feredonna subsequently amended its application to register the mark on the
Supplemental Register instead of the Principal Register, which the PTO allowed on May 11, 1999.
When the registration became effective, Feredonna began including the ® symbol
whenever it used the “School Coupons” mark. Feredonna also began claiming copyright
protection for the design, format, layout, and contents of the School Coupons books by 1998, and
registered its copyright for the 2009-2010 School Coupons coupon book in 2009. The “School
Coupons” trademark was used by Feredonna in connection with Knox County’s annual
coupon-book campaign for every year that the mark was registered.
At the conclusion of the 2009 coupon-book campaign, Feredonna’s contract with Knox
County for the printing of the coupon books expired. Knox County then rebid the coupon-book
project, and Walsworth Publishing Company, Inc. (Walsworth) won the contract with a
significantly lower bid. In February 2010, Knox County sent a letter to those merchants who had
previously participated in the coupon-books program to announce the “re-branding” of the
program from “School Coupons Campaign” to “Knox County Schools Coupon Book.” The
coupon book for the 2010 campaign was titled “The Original Knox County Schools Coupon Book
Established 1989.”
B. Procedural background
On September 6, 2011, Feredonna filed suit against Knox County, Walsworth, and two
county employees, asserting claims of trademark, trade-dress, and copyright infringement.
Feredonna sought a TRO, a preliminary injunction, permanent injunctive relief, and damages.
The district court held a hearing on September 23, 2011 regarding Feredonna’s requests for a TRO
Case: 14-5939 Document: 41-1 Filed: 05/11/2015 Page: 3
Ward v. Knox Cnty. Bd. of Educ., No. 14-5939
4
and a preliminary injunction. Six days later, the court denied the requests, finding that Feredonna
had demonstrated neither a likelihood of success on the merits nor any irreparable harm.
Walsworth and the county employees were voluntarily dismissed as defendants in 2012,
leaving Knox Country as the sole defendant. In April 2014, Feredonna and Knox County filed
competing motions for summary judgment. Three months later, the district court denied
Feredonna’s motion, granted Knox County’s motion, and dismissed all of Feredonna’s claims.
Feredonna has timely appealed to this court.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Loyd v. St. Joseph
Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a grant of summary judgment,
we must draw all reasonable inferences from the underlying facts in favor of the nonmoving party.
Hamilton v. Starcom Mediavest Grp., Inc., 522 F.3d 623, 627 (6th Cir. 2008) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The key inquiry is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986).
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B. The district court properly granted summary judgment for Knox County on
Feredonna’s trademark infringement claim
Feredonna argues that Knox County infringed on Feredonna’s “School Coupons”
trademark, in violation of the Lanham Act. See 15 U.S.C. §§ 1114, 1125. The Lanham Act
protects against infringement of both registered and unregistered marks. DeGidio v. West Grp.
Corp., 355 F.3d 506, 509 (6th Cir. 2004) (citing Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S.
763, 768 (1992)). Before we can reach the issue of whether there has been any infringement,
however, Feredonna must first establish ownership of “a valid and legally protectable trademark.”
See id. If the mark in question is deemed not protectable, our analysis “ends there.” T. Marzetti
Co. v. Roskam Baking Co., 680 F.3d 629, 633 (6th Cir. 2012).
1. The “School Coupons” mark is descriptive
“Only those marks that are ‘distinctive’ as a matter of law are accorded trademark
protection.” Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 512 (6th Cir. 2007).
On a scale of increasing distinctiveness, a mark can be (1) generic; (2) descriptive; or
(3) suggestive, arbitrary, or fanciful. Two Pesos, 505 U.S. at 768. The latter category of marks
is “inherently distinctive” and entitled to trademark protection because the intrinsic nature of the
mark serves to identify a particular source of a product. Id.; Leelanau, 502 F.3d at 512. On the
other hand, generic marks—those that identify the genus of which a particular product is a
species—are never entitled to trademark protection. Leelanau, 502 F.3d at 513 & n.4.
Descriptive marks, which describe “the qualities or characteristics of a good or service,”
Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985), fall in the middle and are
entitled to protection only if they develop a “secondary meaning,” Leelanau, 502 F.3d at 513
(quoting Two Pesos, 505 U.S. at 769). Secondary meaning indicates that a mark “has come
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through use to be uniquely associated with a specific source” of the product, rather than the
product itself. DeGidio, 355 F.3d at 513 (quoting Two Pesos, 505 U.S. at 766 n.4) (internal
quotation marks omitted). The district court found that the “School Coupons” mark was
descriptive but had not acquired a secondary meaning.
Feredonna, in an attempt to avoid the descriptive-mark category, argues that the
registration of the “School Coupons” mark in the Supplemental Register, its own continuous use of
the mark, and Knox County’s subsequent acknowledgement of Feredonna’s ownership entitle the
mark to protection. In its reply brief, Feredonna further claims that the “School Coupons” mark is
inherently distinctive because, although “school coupons” generally refer to “coupons that one
might use to pay for school,” the “School Coupons” mark is “a fundraising product for the benefit
of schools.”
But Feredonna places too much weight on the mark’s placement on the Supplemental
Register. Unlike registration on the Principal Register, registration on the Supplemental Register
does not entitle Feredonna to a presumption of valid trademark ownership. Cf. Leelanau, 502
F.3d at 513 (“Registration of a mark on the Principal Register of the USPTO creates a rebuttable
presumption that a trademark is valid, that is, either inherently distinctive or descriptive with
secondary meaning, and therefore, protectable under federal trademark law.” (citing 15 U.S.C.
§ 1115(a))). In fact, amending an application for registration on the Principal Register to the
Supplemental Register—as Feredonna did here—“is a concession that the term is not inherently
distinctive.” 3 McCarthy on Trademarks and Unfair Competition § 19:43 (4th ed. 2015).
Both the district court and the PTO determined that Feredonna’s trademark is descriptive.
“[A] trademark is merely descriptive if it describes one, or more, of the following: the intended
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purpose, function or use of the goods[;] the class of users of the goods; a desirable characteristic of
the goods; or the end effect upon the user.” DeGidio, 355 F.3d at 510 (quoting Wynn Oil Co. v.
Thomas, 839 F.2d 1183, 1190 (6th Cir. 1988)) (internal quotation marks omitted). The PTO
explained that “School Coupons” is highly descriptive “because it describes a feature of the
services, namely coupons” and “the intended beneficiary of the services, namely, schools.” We
therefore agree with the district court’s conclusion that “School Coupons” is a descriptive mark.
2. The “School Coupons” mark has not acquired a secondary meaning
Marks that are descriptive are protected only if they develop a secondary meaning.
Leelanau, 502 F.3d at 513. “A descriptive mark achieves secondary meaning when in the minds
of the public, the primary significance of a product feature or term is to identify the source of the
product rather than the product.” Id. (quoting Inwood Labs, Inc. v. Ives Labs., Inc., 456 U.S. 844,
851 n.11 (1982)) (internal quotation marks omitted). To determine whether a descriptive mark
has acquired a secondary meaning, we look to seven factors, with no single factor being
determinative: (1) direct consumer testimony; (2) consumer surveys; (3) exclusivity, length, and
manner of use; (4) amount and manner of advertising; (5) amount of sales and number of
customers; (6) established place in the market; and (7) proof of intentional copying. Herman
Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 311-12 (6th Cir. 2001).
Feredonna, relying solely on its amended complaint, claims that it used the “School
Coupons” mark “exclusively and consistently for approximately 20 years.” Knox County does
not dispute this assertion, and the report of its own expert witness shows that Feredonna used the
“School Coupons” mark from the 1994-95 campaign year through the 2009-10 campaign year.
Viewing the evidence in the light most favorable to Feredonna, the third factor—exclusivity,
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length, and manner of use—supports a finding of secondary meaning. But, unfortunately for
Feredonna, the other six factors do not.
Crucially, Feredonna has provided no direct consumer testimony or consumer surveys.
Although the lack of survey evidence is not fatal to Feredonna’s claim, consumer surveys are “the
most direct and persuasive evidence” of secondary meaning. Herman Miller, 270 F.3d at 312.
The evidence in the record concerning the remaining factors is scant. Feredonna again cites only
its amended complaint for its assertions that the “coupon book campaign regularly received media
attention and advertising” and that it “sold well over 2,300,000 coupon books.”
But as Knox County points out, the record contains no advertisements or media reports.
And the claim of 2,300,000 coupon books sold appears to refer to the number of coupon books that
Knox County sold between the years 1994 and 2009. The contracts between Feredonna and Knox
County called for Feredonna to print the coupon books, not to sell them.
To prove intentional copying, Feredonna points to a February 5, 2010 letter from Knox
County to the surrounding business community and to a “2010 Merchant Participation
Application.” The letter states, in relevant part, as follows:
The Knox County School System is re-branding the coupon book program for
2010. The product that has been known as the School Coupons Campaign will
now be known as the Knox County Schools Coupon Book. Our book will be sold
exclusively within the Knox County School System. It is a product produced by
Knox County Schools for our district schools.
You may continue to see School Coupons in this market, as the company that holds
the rights to that name produces a coupon book and discount card by the same name
that will be sold in surrounding counties. Neither of these products has been
approved as a fundraising program within the Knox County School System.
Feredonna contends that Knox County “presented [the] new product as if it were the
established School Coupons® product owned by Feredonna.” And Feredonna argues that the
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2010 Merchant Participation Application is a solicitation for past participants to “Repeat Current
Offer,” thus “suggesting that the Knox County Schools product was a continuation of the School
Coupons® product.”
But even construing the above two documents in the light most favorable to Feredonna,
they do not support an inference that Knox County intentionally copied the “School Coupons”
mark. Indeed, the letter explicitly distinguishes the new Knox County Schools Coupon Book
from “School Coupons.” The 2010 Merchant Participation Application, moreover, includes the
Knox County Schools Coupon Book logo at the top of the application while making no mention of
the “School Coupons” mark. Simply referring to the “School Coupons” mark or program while
discussing the Knox County Schools Coupon Book does not prove that Knox County copied
Feredonna’s mark, let alone that it did so with an intent to copy.
Finally, Feredonna relies on the report of its expert witness to argue that, given
Feredonna’s history and continued usage of the “School Coupons” mark, there is a presumption
that the mark has taken on a secondary meaning. But no other evidence supports this conclusory
claim. Feredonna argues that this supposed presumption is consistent with the Lanham Act’s
presumption of secondary meaning for marks that have been used continuously in commerce for
more than five years. See 15 U.S.C. § 1052(f).
Section 1052(f), however, concerns the registration of trademarks on the Principal
Register and states that a presumption of distinctiveness may be applied after five years of
continuous use. See id. Moreover, as Knox County points out, the PTO’s Trademark Manual of
Examining Procedure states that “[i]f the mark is highly descriptive . . . , the statement of five
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years’ use alone will be deemed insufficient to establish acquired distinctiveness.” Trademark
Man. of Exam. Proc. 1212.05(a) (Apr. 2014 ed.).
Only one of the seven factors that this court looks to in determining whether a descriptive
mark has acquired a secondary meaning (exclusivity and length of use) supports Feredonna’s
claim that the “School Coupons” mark has done so. Because “[n]o single factor is
determinative,” Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 312 (6th Cir.
2001), evidence that Feredonna exclusively and continuously used the “School Coupons” mark for
many years is not enough to overcome the lack of evidence regarding the other six factors, and is
insufficient in our opinion for a jury to reasonably find for Feredonna on the secondary-meaning
issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (noting that for a plaintiff to
avoid summary judgment for the defendant, “there must be evidence on which the jury could
reasonably find for the plaintiff”).
We therefore conclude that the “School Coupons” mark is not entitled to trademark
protection. And “because we have concluded that the mark in this case is not protectable, we
need not address the likelihood of confusion.” See T. Marzetti Co. v. Roskam Baking Co., 680
F.3d 629, 634-35 (6th Cir. 2012). In sum, the district court did not err in granting summary
judgment for Knox County on Feredonna’s trademark infringement claim.
C. The district court properly granted summary judgment for Knox County on
Feredonna’s claim of trade-dress infringement
Feredonna next claims that Knox County infringed on the trade dress of the “School
Coupons” coupon books, in violation of 15 U.S.C. § 1125(a). “Trade dress refers to the image
and overall appearance of a product. It embodies that arrangement of identifying characteristics
or decorations connected with a product, whether by packaging or otherwise, that makes the
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source of the product distinguishable from another and promotes its sale.” Abercrombie & Fitch
Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002) (internal quotation
marks and alterations omitted).
Trade dress “may include features such as size, shape, color or color combinations, texture,
graphics, or even particular sales techniques.” Id. (quoting Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763, 764 n.1 (1992)). To prevail on a trade-dress infringement claim, a party must prove
that the trade dress in question is entitled to protection—in other words, that it is (1) distinctive,
and (2) primarily nonfunctional—and then that (3) the trade dress of the competing product is
confusingly similar. Id. (citing Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210
(2000)).
Like a trademark, trade dress is either inherently distinctive or may acquire distinctiveness
through secondary meaning. Id. at 635 (citing Inwood Labs, Inc. v. Ives Labs, Inc., 456 U.S. 844,
851 n.11 (1982)). Product design or configuration, as opposed to product packaging, is never
inherently distinctive, and is protectable only if it has acquired a secondary meaning. Samara
Bros., 529 U.S. at 216 (“[I]n an action for infringement of unregistered trade dress . . . , a product’s
design is distinctive, and therefore protectable, only upon a showing of secondary meaning.”);
Abercrombie, 280 F.3d at 637 (“[N]o product configuration can meet the distinctiveness
requirement of the Lanham Act by a showing of inherent distinctiveness but must rely instead on
acquired distinctiveness, i.e., a showing of secondary meaning.”); see also Groeneveld Transp.
Efficiency, Inc. v. Lubecore Int’l, Inc., 730 F.3d 494, 503 (6th Cir. 2013) (laying out the elements
of a product-design trade-dress infringement claim). This is because “a product’s
configuration—unlike its packaging—is inextricably tied to the product itself, such that even the
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most unusual features of a product’s design cannot automatically identify which producer crafted
the product because consumers are not predisposed to treat design features as an indication of
source.” Abercrombie, 280 F.3d at 637.
Feredonna argues that its trade dress is inherently distinctive, but bases its claim largely on
the style and “design” of the coupon books, which must acquire a secondary meaning to be
distinctive. See Samara Bros., 529 U.S. at 215. On appeal, Feredonna asserts trade-dress
protection based on the size and shape of the coupon booklets, the design of the front cover (which
includes the use of a student’s photograph, the listing of sponsors, and the color), and the “texture,
quality, and weight” of the booklets’ cover and interior paper. But the size, shape, and feel of the
coupon books all relate to their design, rather than to their packaging, because such features are
“inextricably tied to the product itself.” See Abercrombie, 280 F.3d at 637.
The cover, on the other hand, could be construed as either packaging or design, depending
on whether the purchaser buys the coupon book to support the county’s schools or to make use of
the coupons inside. See Samara Bros., 529 U.S. at 215 (“[A] classic glass Coca-Cola bottle, for
instance, may constitute packaging for those consumers who drink the Coke and then discard the
bottle, but may constitute the product itself for those consumers who are bottle collectors, or part
of the product itself for those consumers who buy Coke in the classic glass bottle, rather than a can,
because they think it more stylish to drink from the former.”). In this instance, we will follow the
Supreme Court’s directive to “err on the side of caution and classify ambiguous trade dress as
product design, thereby requiring secondary meaning,” id., with regard to the coupon book’s
cover.
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We use the same seven factors to analyze secondary meaning in a trade-dress case as in a
trademark case. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 311-12 (6th
Cir. 2001). On appeal, Feredonna cites the identical evidence in support of its trade-dress claim
as it does its trademark claim, arguing that it “used the trade dress in commerce exclusively and
consistently for over 15 years,” that the “School Coupons” campaign “regularly received media
attention and advertising,” and that it “sold well over 2,300,000 coupon books.” But the lack of
supporting evidence as discussed above is just as telling in the trade-dress context.
Feredonna separately notes Knox County’s “mimicry” of Feredonna’s trade dress, pointing
to the “striking similarities” between the covers of both parties’ coupon books. But mere
similarity between the two covers does not support an inference of intentional copying. And even
if this court were to assume that Knox County intentionally copied Feredonna’s trade dress, “it is
only one of many considerations in that test and does not alone establish secondary meaning.”
See Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 419 (6th Cir. 2006).
Feredonna, in sum, has failed to establish that the disputed trade dress has acquired a
secondary meaning. Because this deficiency makes Feredonna’s trade dress unprotectable, we
conclude that the district court appropriately granted summary judgment for Knox County on the
trade-dress infringement claim.
D. The district court properly granted summary judgment for Knox County on
Feredonna’s copyright infringement claim
Feredonna, in addition to alleging trademark and trade-dress infringement, claims that
Knox County infringed upon Feredonna’s copyright for the “School Coupons” coupon book. To
prevail on a copyright infringement claim, a plaintiff must show (1) ownership of a valid
copyright, and (2) that the defendant copied protectable elements of the work. Lexmark Int’l, Inc.
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v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004) (citing Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Feredonna registered its copyright for the
2009-2010 “School Coupons” coupon book in August 2011, which presumptively establishes the
first prong of its copyright claim. See Lexmark, 387 F.3d at 533-34.
“The second prong tests whether any copying occurred (a factual matter) and whether the
portions of the work copied were entitled to copyright protection (a legal matter).” Id. That is,
even if we were to assume that Feredonna owns a valid copyright, “not all copying is actionable”;
Feredonna must still prove “copying of constituent elements of the work that are original.”
Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003) (quoting Feist, 499 U.S. at 361) (internal
quotation marks omitted) (emphasis in original). “The sine qua non of copyright is
originality. . . . Original . . . means only that the work was independently created by the author (as
opposed to copied from other works), and that it possesses at least some minimal degree of
creativity.” Feist, 499 U.S. at 345 (citing 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B]
(1990)).
Feredonna focuses its copyright claim on the “new advertising copy” that it created from
“raw offer verbiage from merchants,” pointing to both the language and format of the copy.
Although Feredonna states in its reply brief that Knox County copied Feredonna’s “advertising
language,” the affidavit upon which Feredonna relies reflects that such “language” refers to
Feredonna “standardiz[ing] the style for the wording of coupon offers, merchant addresses, and
coupon valuations.” (Emphasis added.) By its own admission, Feredonna did nothing but
change the style and format of the language submitted by merchants, which this circuit has held is
not enough to reflect the requisite originality. See M. M. Bus. Forms Corp. v. Uarco, Inc.,
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472 F.2d 1137, 1139-40 (6th Cir. 1973) (holding that a business form for television servicemen
was not original because it amounted to “nothing more” than “a mosaic of the language appearing
on other existing forms allready [sic] in the public domain”). The court found that, “[e]ven
though word arrangements ha[d] been altered, they [we]re at best merely a paraphrasing of earlier
forms.” Id. at 1140. That is exactly the case here.
Moreover, even if we were to assume that Feredonna’s advertising copy is original, the
evidence in the record does not create a genuine dispute of material fact regarding whether Knox
County copied Feredonna’s booklets. Feredonna’s own expert witness concluded that there were
“too many differences and not enough similarities[] to sustain a claim of substantial similarity to
support a claim of copyright infringement.” Focusing on the interior content of the booklets,
Feredonna’s expert witness also found no similarities: “The first pages include a directory, but
both Plaintiff[’s] and Defendant’s design[s] are different in their font, type and size, and overall
arrangement. Subsequent pages, containing the coupons[,] are different in color, font, graphic art,
and text.” We therefore conclude that the district court appropriately granted summary judgment
for Knox County on Feredonna’s copyright infringement claim.
E. Feredonna’s request for preliminary injunctive relief
Finally, Feredonna appeals the district court’s denial of its motion for a preliminary
injunction, claiming that the court “committed a series of errors, both in fact and law.” Because
we affirm the district court’s grant of summary judgment against Feredonna on all grounds, we
need not review the denial of the preliminary injunction.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
Case: 14-5939 Document: 41-1 Filed: 05/11/2015 Page: 15 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_06-cv-00277/USCOURTS-caed-1_06-cv-00277-4/pdf.json | [
[
"Tehachapi SHU",
"Defendant"
],
[
"Willie Weaver",
"Plaintiff"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WILLIE WEAVER,
Plaintiff, CV F 06 0277 AWI WMW P
vs. FINDINGS AND RECOMMENDATION
RE MOTION (DOC 6)
TEHACHAPI SHU,
Defendant.
Plaintiff is a state prisoner proceeding pro se. Pending before the court is
Plaintiff’s motion for an order to show cause and temporary restraining order.
The complaint in this action fails to identify or name any individual defendants.
The court must have personal jurisdiction over the parties to be enjoined; it may not enjoin
defendants not yet served or before the court. Zepeda v. United States I.N.S., 753 F.2d 719, 727
(9 Cir. 1983). th
Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for an
order to show cause and temporary restraining order be denied.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636 (b)(1)(B). Within
twenty days after being served with these findings and recommendations, Plaintiff may file
written objections with the court and serve a copy on all parties. Such a document should be
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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file
objections within the specified time may waive the right to appeal the District Court's order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: January 30, 2007 /s/ William M. Wunderlich
mmkd34 UNITED STATES MAGISTRATE JUDGE
Case 1:06-cv-00277-LJO-WMW Document 14 Filed 01/30/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-16-07027/USCOURTS-ca4-16-07027-0/pdf.json | [
[
"Corey Jones",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00235-F-1; 5:15-cv-00560-F)
Submitted: November 22, 2016 Decided: November 28, 2016
Before DIAZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Corey Jones, Appellant Pro Se. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 16-7027 Doc: 16 Filed: 11/28/2016 Pg: 1 of 3
2
PER CURIAM:
Corey Jones seeks to appeal the district court’s order
dismissing as untimely his 28 U.S.C. § 2255 (2012) motion. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
(2012). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude that
Jones has not made the requisite showing. Accordingly, we deny
a certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
Appeal: 16-7027 Doc: 16 Filed: 11/28/2016 Pg: 2 of 3
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presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
Appeal: 16-7027 Doc: 16 Filed: 11/28/2016 Pg: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_05-cv-00736/USCOURTS-caed-1_05-cv-00736-12/pdf.json | [
[
"Clarendon America Insurance Company",
"Defendant"
],
[
"Sierra Foothills Public Utility District",
"Plaintiff"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
SIERRA FOOTHILLS PUBLIC )
UTILITY DISTRICT, )
)
Plaintiff, )
)
v. )
)
CLARENDON AMERICA )
INSURANCE COMPANY and DOES )
1 through 100, )
)
Defendants. )
____________________________________)
CV F 05-0736 AWI SMS
(NEW DJ)
ORDER ON MOTION FOR
INTERLOCUTORY REVIEW
OR, IN THE ALTERNATIVE,
ENTRY OF FINAL
JUDGMENT AND REQUEST
FOR IMMEDIATE STAY
(Document #92)
This removed action concerns a Public Officials Liability Coverage insurance policy that
Defendant issued to Plaintiff. Plaintiff alleges that Defendant wrongfully denied defense costs
and indemnity under the policy for a claim based on a lawsuit by Plaintiff’s former general
manager. This court has jurisdiction pursuant to 28 U.S.C. § 1332 because the parties are
citizens of different states and the amount in controversy exceeds $75,000.
PROCEDURAL HISTORY
On May 5, 2005, Plaintiff Sierra Foothills Public Utility District (“SFPUD”) filed a
Complaint in the Fresno County Superior Court against Defendant Clarendon America Insurance
Company (“Clarendon”) for breach of contract, breach of the covenant of good faith and fair
dealing, fraud, and declaratory relief. On June 7, 2005, Clarendon removed the case to this
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Court.
On March 17, 2006, Clarendon filed its motion for summary judgment. Clarendon
contended that it did not have a duty to defend the underlying action. Consequently, Clarendon
argued, SFPUD’s claims for breach of contract, bad faith, and fraud also fail as a matter of law.
On March 27, 2006, SFPUD filed its motion for partial summary judgment as to the issue of
Clarendon’s duty to defend. On May 17, 2006, the court issued an order granting SFPUD’s
motion for partial summary judgment holding that, as a matter of law, Clarendon had a duty to
defend SFPUD in the underlying lawsuit as of June 3, 2003.
On May 25, 2005, Clarendon filed its motion for interlocutory review of the court’s order
of partial summary judgment under 28 U.S.C. § 1292(b) or, in the alternative, for entry of final
judgment under Rule 54(b) of the Federal Rules of Civil Procedure to allow immediate appeal.
Clarendon contends that interlocutory review is appropriate because it would advance the
litigation by expediting appellate review of controlling legal issues. In the alternative, Clarendon
argues that the court should enter final judgment as to the duty to defend claims because the
partial summary judgment order is final and there is no just reason for delay. In the event the
court certifies an issue for interlocutory review or enters a final judgment as to some of SFPUD’s
claims, Clarendon requests a stay of this action pending resolution of the appeal. SFPUD
opposes all three requests.
FACTS
SFPUD is the named insured under Public Officials Liability Coverage Policy Number
HX00001199 (the “Policy”) issued by Clarendon. The Policy was effective from December 28,
2001, to December 28, 2003. Section I.1 of the Policy provides coverage, in relevant part, as
follows:
We Agree:
. . .
B. With the “Governmental Entity” that if, during the “policy
period,” any “claim” or “claims” are first made against the
“Insured,” individually or collectively for a “wrongful act,” we
will pay in accordance with the terms of this policy, and on behalf
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of the “Governmental Entity,” all “loss” which the
“Governmental Entity” shall become legally obligated to pay or
for which the “Governmental Entity” may be required by law to
indemnify the “Insured”; . . . .
Sommer Decl. Ex. A (emphasis in original).
On April 17, 2003, David E. Englert filed a lawsuit against SFPUD in Madera County
Superior Court, Case No. MCV 020596. On or about June 3, 2003, SFPUD tendered the
underlying action to Clarendon for defense and indemnification.
The complaint in that action (the “Underlying Complaint”) contained two causes of
action: for breach of contract and for wrongful termination in violation of public policy. The
Underlying Complaint alleges that SFPUD employed Englert as its General Manager, for which
Englert received salary and benefits. The Underlying Complaint alleges that, on or about
October 17, 2002, SFPUD wrongfully terminated Englert without good cause and ceased paying
his wages and benefits. According to the Underlying Complaint, Englert was fired for refusing to
cooperate in a scheme by which SFPUD made payments to individuals who had not provided any
benefit to SFPUD. The Underlying Complaint details that Englert was terminated after he
refused to authorize such payments and because he contacted SFPUD’s bank to prevent it from
disbursing funds to certain individuals.
The Underlying Complaint alleges that after Englert’s termination, SFPUD falsely
accused Englert of financial improprieties with public funds, publicly disclosed privileged
employment matters, refused to return Englert’s personal property, attempted to have Englert
arrested, and circulated false rumors that Englert would soon be arrested and that he was
dishonest.
On or about March 19, 2004, Englert won a judgment of $1,765,943 in the underlying
action. SFPUD appealed the judgment. At the time of the motions for summary judgment, the
appeal was still pending.
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In its entirety, 28 U.S.C. § 1292(b) provides as follows: 1
(b) When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion, permit
an appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay proceedings
in the district court unless the district judge or the Court of Appeals
or a judge thereof shall so order.
4
LEGAL STANDARDS
A. 28 U.S.C. § 1292(b)
Under 28 U.S.C. § 1292(b), a district court may certify an interlocutory order for appeal 1
where it “involves a controlling question of law as to which there is substantial ground for
difference of opinion” and if “an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” Within ten days of this certification, a party may file an
application for an appeal with the Court of Appeals, which has discretion to permit an appeal
from the order. 28 U.S.C. § 1292(b).
The Ninth Circuit’s guidance as to what constitutes a controlling question of law is
minimal. The issue need not be “dispositive of the lawsuit in order to be regarded as controlling”
but it cannot be “collateral to the basic issues of [the] case.” United States v. Woodbury, 263
F.2d 784, 787-88 (9th Cir. 1959). The Ninth Circuit has cited approvingly to the Third Circuit's
finding that “‘at the very least, a controlling question of law must encompass every order which,
if erroneous, would be reversible error on final appeal.’” In re Cement Antitrust Litigation, 673
F.2d 1020, 1026 (9th Cir. 1982) (citing Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3rd Cir.
1974)).
It appears that a “question of law” means a “pure question of law,” not a mixed question
of law and fact or an application of law to a particular set of facts. See Ahrenholz v. Bd. of
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Rule 54(b) of the Federal Rules of Civil Procedure reads, in its entirety, as follows: 2
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party claim,
or when multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is
no just reason for delay and upon an express direction for the entry
of judgment. In the absence of such determination and direction,
any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties shall not terminate the action as to any of
the claims or parties, and the order or other form of decision is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the
parties.
5
Trustees, 219 F.3d 674, 675-77 (7th Cir. 2000). Chief Judge Posner, writing for the Seventh
Circuit, explained that in the context of § 1292(b), the term “‘question of law’ means an abstract
legal issue rather than an issue of whether summary judgment should be granted.” Id. at 677.
We think [Congress] used “question of law” in much the same way
a lay person might, as referring to a “pure” question of law rather
than merely to an issue that might be free from a factual contest.
The idea was that if a case turned on a pure question of law,
something the court of appeals could decide quickly and cleanly
without having to study the record, the court should be enabled to
do so without having to wait till the end of the case.
Id. at 676-77.
B. Rule 54(b)
Rule 54(b) of the Federal Rules of Civil Procedure authorizes the district court in certain 2
circumstances to enter a final judgment as to “one or more but fewer than all of the claims or
parties.” First, the district court must determine that it has before it a “final judgment” that is
“an ultimate disposition of an individual claim entered in the course of a multiple claims action.”
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S. Ct. 1460, 64 L. Ed.2d 1 (1980)
(quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S. Ct. 895, 100 L. Ed. 1297
(1956)).
If the district court finds that the judgment is final, it then must determine whether there
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is any just reason for delay. Id. at 8. The court should determine whether, in the interest of
sound judicial administration, the time is appropriate to enter a final decision on less than all of
the claims. Id. In making this decision, the court should take into account judicial administrative
interests as well as equitable concerns with an eye to preserving “the historic federal policy
against piecemeal appeals.” Id. (quoting Sears, 351 U.S. at 438). The Ninth Circuit has noted
that Rule 54(b) judgments “must be reserved for the unusual case in which the costs and risks of
multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced
by pressing needs of the litigants for an early and separate judgment as to some claims or
parties.” Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981). It is
appropriate for the court to consider such factors as “whether the claims under review were
separable from the others remaining to be adjudicated and whether the nature of the claims
already determined was such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals.” Curtiss-Wright, 446 U.S. at 8. Similarity of
the issues that will remain pending in the trial court to those in the claims on which immediate
judgment is sought weighs heavily against the entry of judgment. Morrison-Knudsen, 655 F.2d
at 965. When such similarity exists, entering a Rule 54(b) order is proper only when the court
makes further specific findings that it is doing so to “avoid a harsh and unjust result.” Id.
DISCUSSION
A. Interlocutory Appeal under 28 U.S.C. § 1292(b)
Clarendon contends that an interlocutory appeal is appropriate to decide controlling legal
issues on which the court based its order granting partial summary judgment.
Clarendon argues that the court’s “interpretation of the ‘insured v. governmental entity’
exclusion” with respect to wrongful termination claims is a proper candidate for interlocutory
review. Mot. 3:7-9. In opposing the motion for partial summary judgment, Clarendon had
argued that the insured-versus-government-entity exclusion foreclosed the possibility that
SFPUD faced covered liability. Clarendon contended that Englert, the plaintiff in the underlying
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action, was an employee of SFPUD, which placed him within the scope of the exclusion. The
court found, however, that materials tendered to Clarendon raised the possibility that Englert was
an independent contractor, not an employee of SFPUD, which would make the exclusion
inapplicable to him. Clarendon at no point contended that the exclusion could apply to Englert in
the case that he was an independent contractor.
Nor do the cases Clarendon cites to demonstrate how other courts have applied the
insured-versus-government-entity exclusion feature an interpretation of a legal question that
would call for a different result in this case. Both cases Clarendon cites as alternative
interpretations of the exclusion discuss only whether suits by former employees are excluded
from coverage. See Foster v. Ky. Hous. Corp., 850 F. Supp. 558, 561 (E.D. Ky. 1994) (former
director’s suit for wrongful termination excluded under “insured vs. insured” exclusion); Miller
v. ACE USA, 261 F. Supp. 2d 1130, 1139 (D. Minn. 2003) (“insured v. insured exclusion”
precluded coverage of claims arising from former employee’s termination). Applying those
cases’ interpretations to the exclusion in this case would not change the propriety of this court’s
grant of partial summary judgment. Even if the insured-versus-government-entity exclusion in
this case precludes coverage of suits by former employees, the possibility for coverage
nevertheless existed at the time SFPUD tendered defense to Clarendon. This is because the court
found that the materials SFPUD tendered raised the possibility that Englert was an independent
contractor, not an employee. Clarendon does not contend that the court misapplied the law
concerning independent contractor status. Because employing the legal interpretation of the
exclusion that Clarendon suggests would not affect the court’s holding, this issue is not a
controlling question of law.
Clarendon asserts that the court’s order misinterprets another controlling legal issue by
holding that “a duty to defend may be found based on claims that are not and which were not the
type and nature of those asserted by the underlying plaintiff.” Mot. 2:27-3:1. It seems that
Clarendon is reiterating its contention that its duty to defend does not arise based on potential
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causes of action that the underlying plaintiff does not bring. In other words, Clarendon urges that
SFPUD cannot face potential liability for a cause of action that Englert did not plead, even if he
alleged facts that would support such a cause of action. Clarendon contends, without
explanation, that the court’s interpretation of the law is inconsistent with the rule set forth in
Gunderson v. Fire Insurance Exchange (“Gunderson”), 37 Cal. App. 4th 1106, 1114 (1995).
Similarly, Clarendon contends, without further explanation, that “there is a controlling
question of law regarding whether an insured can change its position regarding the facts in
connection with an underlying action after a judgment is entered to create coverage.” Mot. 4:2-3.
This claim is reminiscent of Clarendon’s argument in opposition to partial summary judgment
that a potential claim for conversion did not trigger a duty to defend because SFPUD “never
advised” Clarendon of potential liability for conversion and did not seek reconsideration of
Clarendon’s denial on the basis of a potential conversion claim. See Clarendon’s Opp. to Mot.
for Partial Summ. J. 35:12-18. Clarendon also cited Gunderson in support of this argument,
claiming that it must not “speculate about unpled claims” that might arise in the underlying
action. Id. at 35:14-16.
A district court may certify an interlocutory appeal under 28 U.S.C. § 1292(b) only for a
question of law “as to which there is substantial ground for difference of opinion.” Id. Thus,
where the law at issue is clear, certifying an appeal under that section is improper. James Wm.
Moore, Moore’s Federal Practice § 203.31[4] (3d ed. 2006); see Burrell v. Bd. of Trs. of Ga.
Military Coll., 970 F.2d 785, 789 (11th Cir. 1992).
Only a strained and countertextual reading of Gunderson can create the appearance of
“substantial ground for difference of opinion” regarding the role of unpled claims in triggering a
duty to defend. Gunderson did not limit insurers’ duty to defend to causes of action explicitly
pled in the underlying complaint. In its moving papers in support of this motion, Clarendon has
not presented any other authority, or even cited any language from Gunderson, that supports its
reading.
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The court is unaware of, and Clarendon does not cite, any authority suggesting a basis for
divergent opinions about the meaning of Gunderson’s holding: “An insured may not trigger the
duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in
which the third party claimant might amend its complaint at some future date.” Gunderson, 37
Cal. App. 4th at 1114 (emphasis added). Gunderson speaks only to the situation where a court
errs by finding a potential for coverage based on facts that the underlying plaintiff did not plead
and that were not otherwise tendered to the insurer. Id.
Gunderson does not foreclose a duty to defend where facts alleged in the underlying
complaint demonstrate a potential for covered liability for a cause of action that has not been
pled. To the contrary, as this court pointed out in its order granting partial summary judgment,
the Supreme Court of California has reaffirmed the well-established rule that the insurer may be
required to defend in circumstances where “the complaint might be amended to give rise to a
liability that would be covered under the policy.” Montrose Chem. Corp. v. Superior Court, 6
Cal. 4th 287, 299 (1993) (citing Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275-76 (1966) ). Nor
does any language in Gunderson cut against the insurer’s well-established duty to investigate the
complaint and any other materials tendered to it to determine whether the insured potentially
faces covered liability. See id. at 295-296. Gunderson simply follows the California rule that an
insurer’s duty to defend can be triggered by the facts alleged in the complaint and any other facts
that appear in the materials that the insured tenders. See id. at 296. Clarendon’s bald assertion
that this court’s interpretation of Gunderson is incorrect does not establish that “there is
substantial ground for difference of opinion” as to the controlling law on this issue. See 28
U.S.C. § 1292(b).
B. Final Judgment under Rule 54(b)
In the alternative to certifying the duty to defend issue for interlocutory appeal, Clarendon
asks for an entry of final judgment as to the duty to defend claims pursuant to Rule 54(b).
There is no dispute as to whether the court’s order constitutes a final judgment for
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purposes of Rule 54(b). It appears that the court’s summary judgment order is final at least with
respect to the defense costs aspect of the breach of contract claim and with respect to the
declaratory relief regarding Clarendon’s duty to defend.
Next, the court must determine whether the issues subject to Rule 54(b) judgment are so
similar to the issues that would remain before the court as to weigh against such an action. There
is a strong likelihood that determining the merits of SFPUD’s second cause of action for breach
of the covenant of good faith and fair dealing will significantly overlap with a decision regarding
Clarendon’s duty to defend. See Compl. 6:6-7:21. The bad faith claim turns, in part, on
Clarendon’s decision to deny SFPUD a defense. A court deciding that issue will need to
determine whether Clarendon acted “without proper cause”in refusing such coverage. See
Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 574 (1973). The inquiry into the reasonableness of
the insurer’s conduct in denying a policy benefit requires the court to determine whether the legal
position taken by the insurer was reasonable. Morris v. Paul Revere Life Ins. Co., 109 Cal. App.
4th 966, 973 n.1 (2003). This inquiry “depends entirely on an analysis of legal precedent and
statutory language.” Id. An appellate court reviewing the bad faith claim will have to review
various aspects of California law regarding duty to defend and determine whether Clarendon
reasonably decided to deny SFPUD a defense. Such a determination substantially overlaps with
the decision of whether the duty to defend existed at all. Thus an undeniable economy emerges
to simultaneous appellate review of the duty to defend and bad faith issues, whereas piecemeal
litigation of these issues is starkly inefficient.
This overlap of issues potentially subject to final judgment with those that would remain
triggers the Ninth Circuit’s elevated standard requiring that the district court enter judgment only
to “avoid a harsh and unjust result.” See Morrison-Knudsen, 655 F.2d at 965. Clarendon does
not suggest that entering final judgment on the duty to defend issue is necessary to prevent
injustice. Rather, Clarendon’s arguments in favor of entering immediate judgment center around
the potential of expediting the proceedings. Clarendon points out that an immediate appeal and
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reversal by the court of appeals has the potential to terminate the litigation in its entirety. Such
early termination, Clarendon submits, would save time and resources of the parties and the court.
Clarendon also contends that immediate appeal may facilitate settlement of the remaining claims.
There is no question that, were the Ninth Circuit to reverse and hold that, as a matter of law,
Clarendon has no duty to defend, the litigation would be substantially advanced. This is because
such a result would devastate SFPUD’s case. Clarendon does not explain, however, how
resolution of an early appeal in SFPUD’s favor would expedite settlement of the remaining
claims. In any event, Clarendon does not contend that denial of Rule 54(b) judgment will result
in hardship or injustice for itself or anyone else.
SFPUD does not dispute Clarendon’s contention that immediate appeal of the duty to
defend issue could expedite the litigation. SFPUD does point out, however, that an immediate
appeal also has the potential to delay completion of the litigation. Clarendon does not dispute
SFPUD’s contention that if the court of appeals affirms this court’s decision, and then another
appeal is taken following trial, the Rule 54(b) appeal will have extended the litigation by as much
as two years. Clarendon argues that the court of appeals will not address the duty to defend issue
more than once. Nevertheless, a second appeal to the Ninth Circuit, even without the duty to
defend issue, would substantially extend the litigation.
SFPUD contends that a delay in the proceedings to appeal the duty to defend issue will be
to its detriment by postponing resolution of the indemnity issue. Such postponement could mean
that SFPUD would face a $1.7 million judgment in the underlying case and then be forced to
wait years for a decision on whether Clarendon has a duty to indemnify.
Clarendon’s response to SFPUD’s claims that the delay subjects it to hardship is that
such concerns are immaterial because the issue of indemnity is separate from the duty to defend
and is yet to be resolved. Clarendon also points out that it has agreed to pay all reasonable
defense fees and costs that SFPUD faces. While providing a defense ameliorates some of
SFPUD’s financial woes, it does not affect the undisputed potential hardship SFPUD would face
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from a long delay between incurring liability and obtaining a judgment regarding
indemnification.
It is not necessary for the district court to confine its Rule 54(b) analysis to the claims
potentially subject to final judgment, as Clarendon suggests. Rather, the Supreme Court has
called upon the lower courts to act in the “interest of sound judicial administration” of the claims
that would remain before the court, as well as those which might be subject to final judgment.
Curtiss-Wright, 446 U.S. at 8. It would be short-sighted and imprudent for the court to ignore
hardship that potentially results from delay of judgment on claims that would remain before this
court.
Essentially, Clarendon asks the court to enter judgment to take a chance that the court of
appeals will reverse, expediting the litigation. The potential benefit the parties would enjoy from
such a result would be avoidance of expending time and resources on litigation. No one has
contended, however, that such expenditures impose a hardship on either of the parties. The cost
of taking this chance on an early partial final judgment, however, is that any result short of
reversal will likely delay completion of the litigation as a whole, including the indemnity issue.
It is undisputed SFPUD will be prejudiced by such a delay, by facing a judgment for which an
indemnity decision may be years away. The prudent course for the court to take at this stage is
to go forward with the litigation to its completion, rather than proceeding piecemeal and
gambling on a reversal. At the completion of litigation in the district court, all necessary appeals
may be taken and decided together.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s motion for INTERLOCUTORY REVIEW is DENIED.
2. Defendant’s motion for ENTRY OF FINAL JUDGMENT is DENIED.
3. Defendant’s request for a STAY is DENIED as moot.
IT IS SO ORDERED.
Dated: July 24, 2006 /s/ Anthony W. Ishii
0m8i78 UNITED STATES DISTRICT JUDGE
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[
"Oganes Titizyan",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | 1
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1
ORDER OF GARNISHMENT (Interest in
Withheld Money)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) 2:05-MC–0438-GEB-DAD
)
Plaintiff, ) (CR-S-01-279-GEB)
)
v. )
)
OGANES TITIZYAN, )
)
Defendant. )
____________________________________)
)
CALIFORNIA DEPARTMENT OF )
HEALTH SERVICES, )
)
Garnishee. )
____________________________________)
A Writ of Garnishment (Interest in Withheld Money) directed to the Garnishee California
Department of Health Services has been duly issued and served upon the Garnishee. The Garnishee
filed an Answer of Garnishee stating that at the time of service of the Writ, the Garnishee has
custody or possession of the following properties (non-earnings), as described below:
1. Account number 6530112335 with an approximate value of $106,044.76 in which the
Judgment Debtor has an interest in the amount of $71,930.76.
The balance owing by the Judgment Debtor Oganes Titizyan (“Judgment Debtor”) on the
judgment is $171,802.94, and said amount is current from the amount as shown in the Application
For Writ of Garnishment (Interest in Withheld Money) filed herein.
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2
On August 19, 2005, the Plaintiff United States of America filed with this court an
Application for Writ of Garnishment (Interest in Withheld Money) against the Garnishee California
Department of Health Services. Said Application for Writ requested the Clerk of the Court to issue a
Writ of Garnishment (Interest in Withheld Money) requiring the Garnishee California Department of
Health Services to withhold and to retain any and all accounts of the Judgment Debtor Oganes
Titizyan.
The Judgment Debtor was served by the Garnishee with the Answer of Garnishee, and the
Judgment Debtor has not filed a written objection or requested a hearing within 20 days, as set forth
in 28 U.S.C. § 3205(c)(5). The Judgment Debtor has not requested a hearing on a claim of
exemption, as set forth in 28 U.S.C. § 3014(b)(2).
Pursuant to 28 U.S.C. § 3205(c)(7), after the Garnishee files an answer, and if no hearing is
requested within the required time period, the court shall promptly enter an order directing the
Garnishee as to the disposition of the Judgment Debtor's (non-earnings) property.
ACCORDINGLY, IT IS ORDERED that the Garnishee California Department of Health
Services shall turn over to the Plaintiff United States of America the approximate amount of
$71,930.76 (Judgment Debtor’s interest in the total amount of $106,044.76 held by the Garnishee in
account number 6530112335).
IT IS FURTHER ORDERED that upon receipt of payment by the United States, the Writ of
Garnishment is hereby terminated.
IT IS SO ORDERED.
DATED: October 17, 2005.
Ddad1/orders.civil/titizyan0438.garnish
Case 2:05-mc-00438-GEB-DAD Document 7 Filed 10/18/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_05-cv-01848/USCOURTS-caed-2_05-cv-01848-1/pdf.json | [
[
"Keith A. Levy",
"Defendant"
],
[
"Paul Winfield",
"Plaintiff"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PAUL WINFIELD,
Plaintiff, No. CIV S-05-1848 FCD CMK P
vs.
KEITH A. LEVY,
Defendant. ORDER
/
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant
to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. However, the certificate portion of the request which must be completed by
plaintiff’s institution of incarceration has not been filled out. Also, plaintiff has not filed a
certified copy of his prison trust account statement for the six month period immediately
preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Plaintiff will be provided the
opportunity to submit a completed in forma pauperis application and a certified copy in support
of his application.
/////
/////
/////
Case 2:05-cv-01848-FCD-CMK Document 9 Filed 10/07/05 Page 1 of 2
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In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff shall submit, within thirty days from the date of this order, a
completed affidavit in support of his request to proceed in forma pauperis on the form provided
by the Clerk of Court;
2. The Clerk of the Court is directed to send plaintiff a new Application to
Proceed In Forma Pauperis By a Prisoner; and
3. Plaintiff shall submit, within thirty days from the date of this order, a certified
copy of his prison trust account statement for the six month period immediately preceding the
filing of the complaint. Plaintiff’s failure to comply with this order will result in a
recommendation that this action be dismissed without prejudice.
DATED: October 5, 2005.
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Case 2:05-cv-01848-FCD-CMK Document 9 Filed 10/07/05 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca8-05-04311/USCOURTS-ca8-05-04311-0/pdf.json | [
[
"Dial Corporation",
"Appellee"
],
[
"Equal Employment Opportunity Commission",
"Appellant"
]
] | 1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 05-4183/4311
___________
Equal Employment Opportunity *
Commission, *
*
Appellee/Cross-Appellant, *
* Appeals from the United States
v. * District Court for the Southern
* District of Iowa.
Dial Corporation, *
*
Appellant/Cross-Appellee. *
___________
Submitted: September 25, 2006
Filed: November 17, 2006
___________
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
___________
MURPHY, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) brought this sex
discrimination action against The Dial Corporation under Title VII of the Civil Rights
Act of 1964 on behalf of a number of women who had applied for work but were not
hired. A jury found that Dial had engaged in a pattern or practice of intentional
discrimination against women and awarded compensatory damages, and the district
court1
concluded that Dial's use of a preemployment strength test had an unlawful
Appellate Case: 05-4311 Page: 1 Date Filed: 11/17/2006 Entry ID: 2110517
-2-
disparate impact on female applicants and awarded back pay and benefits. Dial
appeals from the denial of its motion for judgment as a matter of law and from the
judgment. EEOC cross appeals the denial of back pay to one claimant. We remand
one issue but otherwise affirm.
Dial is an international company with a plant located in Fort Madison, Iowa that
produces canned meats. Entry level employees at the plant are assigned to the sausage
packing area where workers daily lift and carry up to 18,000 pounds of sausage,
walking the equivalent of four miles in the process. They are required to carry
approximately 35 pounds of sausage at a time and must lift and load the sausage to
heights between 30 and 60 inches above the floor. Employees who worked in the
sausage packing area experienced a disproportionate number of injuries as compared
to the rest of the workers in the plant.
Dial implemented several measures to reduce the injury rate starting in late
1996. These included an ergonomic job rotation, institution of a team approach,
lowering the height of machines to decrease lifting pressure for the employees, and
conducting periodic safety audits. In 2000 Dial also instituted a strength test used to
evaluate potential employees, called the Work Tolerance Screen (WTS). In this test
job applicants were asked to carry a 35 pound bar between two frames, approximately
30 and 60 inches off the floor, and to lift and load the bar onto these frames. The
applicants were told to work at their "own pace" for seven minutes. An occupational
therapist watched the process, documented how many lifts each applicant completed,
and recorded her own comments about each candidate's performance. Starting in
2001, the plant nurse, Martha Lutenegger, also watched and documented the process.
From the inception of the test, Lutenegger reviewed the test forms and had the
ultimate hiring authority.
For many years women and men had worked together in the sausage packing
area doing the same job. Forty six percent of the new hires were women in the three
Appellate Case: 05-4311 Page: 2 Date Filed: 11/17/2006 Entry ID: 2110517
-3-
years before the WTS was introduced, but the number of women hires dropped to
fifteen percent after the test was implemented. During this time period the test was
the only change in the company's hiring practices. The percentage of women who
passed the test decreased almost each year the test was given, with only eight percent
of the women applicants passing in 2002. The overall percentage of women who
passed was thirty eight percent while the men's passage rate was ninety seven percent.
While overall injuries and strength related injuries among sausage workers declined
consistently after 2000 when the test was implemented, the downward trend in injuries
had begun in 1998 after the company had instituted measures to reduce injuries.
One of the first applicants to take the WTS was Paula Liles, who applied to Dial
in January 2000 and was not hired even though the occupational therapist who
administered her test told her she had passed. She filed a discrimination complaint
with the Iowa Civil Rights Commission and EEOC in August 2000. On
September 24, 2002, EEOC brought this action on behalf of Liles and fifty three other
women who had applied to work at Dial and were denied employment after taking the
WTS. Twenty four of these applicants had been unable to complete the test.
A jury trial was held in August 2004, and EEOC and Dial offered testimony by
competing experts. EEOC presented an expert on industrial organization who testified
that the WTS was significantly more difficult than the actual job workers performed
at the plant. He explained that although workers did 1.25 lifts per minute on average
and rested between lifts, applicants who took the WTS performed 6 lifts per minute
on average, usually without any breaks. He also testified that in two of the three years
before Dial had implemented the WTS, the women's injury rate had been lower than
that of the male workers. EEOC's expert also analyzed the company's written
evaluations of the applicants and testified that more men than women were given
offers of employment even when they had received similar comments about their
performance. EEOC also introduced evidence that the occupational nurse marked
some women as failing despite their having completed the full seven minute test.
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-4-
Dial presented an expert in work physiology, who testified that in his opinion
the WTS effectively tested skills which were representative of the actual job, and an
industrial and organizational psychologist, who testified that the WTS measured the
requirements of the job and that the decrease in injuries could be attributed to the test.
Dial also called plant nurse Martha Lutenegger who testified that although she and
other Dial managers knew the WTS was screening out more women than men, the
decrease in injuries warranted its continued use.
The jury was asked to decide whether Dial had engaged in a pattern or practice
of intentional discrimination against female job applicants, the date on which any such
discrimination began, and a question relating to damages. The jury returned its verdict
on August 23, 2004. It found Dial had engaged in a pattern or practice of intentional
discrimination beginning in April 2001. The jury awarded a total of $30,003 in
compensatory damages to the nine claimants who testified at trial and declined to
assess punitive damages. Dial moved for judgment as a matter of law, alleging there
was insufficient evidence for a reasonable jury to have found intentional
discrimination. The motion was denied on February 3, 2005, but the district court
eliminated nominal damages awarded to two applicants who had been rejected before
April 2001 (the date when Dial's intentional discrimination began according to the
jury verdict).
Following the jury trial the parties submitted additional evidence and briefs
relating to the disparate impact allegations. The district court ruled on these issues in
sixteen pages of detailed findings of fact and conclusions of law issued on February
3, 2005. It found that the WTS had had a discriminatory effect, that Dial had not
demonstrated that the WTS was a business necessity or shown either content or
criterion validity, and that Dial had not effectively controlled for other variables which
may have caused the decline in injuries, including other safety measures that Dial had
implemented starting in 1996.
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-5-
After the court issued its findings and conclusions, Dial offered employment
to all of the claimants in the spring of 2005. Further discovery and submissions
followed, as well as additional briefing. The district court found that the claimants
who had been unable to complete the full seven minutes of the WTS were also entitled
to relief and determined the amount of back pay and interest to which each applicant
was entitled. Back pay was calculated from the date the district court found the
applicants should have been hired up to the date of Dial's offer of employment, less
any wages earned elsewhere during that period. Health care benefits were awarded
in the amount Dial would have paid for premiums, minus any benefits the women had
received in the meantime. The range of the back pay awarded to the individual
applicants varied from a high of $120,236 to a low of $920, and the individual health
benefits ranged from $30,385 to $882.
An additional issue was raised in respect to one of the women who had accepted
Dial's reinstatement offer, Heather Wright-Bradley. She had a criminal record
predating her initial application, which included a number of convictions and at least
one felony. Dial dismissed her after learning about her criminal history in a
background check done after her reinstatement. The district court held a telephone
conference with the parties to address whether Wright-Bradley should receive back
pay under the circumstances. Dial's general counsel stated that the company had a
policy on background checks during the period when the WTS was given which
would have uncovered her criminal record. The district court concluded that Dial
would have terminated her on account of her criminal record had she been hired in
2000 and that she was therefore not entitled to back pay.
On appeal Dial challenges the district court's denial of its motion for judgment
as a matter of law, arguing there was insufficient evidence for a jury to find intentional
discrimination. Dial also attacks the district court's findings of disparate impact and
claims it proved that the WTS was a business necessity because it drastically
decreased the number of injuries in the sausage production area of the plant. It
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-6-
contends the district court should not have awarded any back pay to applicants who
were not strong enough to complete the WTS, it should have used the company's
tenure data to calculate back pay, and that no applicant should have been awarded
health care benefits without proof of any actual costs incurred. EEOC disagrees and
cross appeals the denial of back pay to Wright-Bradley. It argues that Dial did not
prove that at the time she was hired it had a policy in place to terminate new
employees with similar criminal backgrounds.
Dial first argues that EEOC did not establish a pattern or practice of intentional
sex discrimination and that its motion for judgment as a matter of law should therefore
have been granted. EEOC responds that the jury had sufficient evidence on which to
base its decision. We review the district court's denial of Dial's motion for judgment
as a matter of law de novo, using the same standard as the district court. Ollie v. Titan
Tire Corp., 336 F.3d 680, 685 (8th Cir. 2003). The reviewing court must decide
whether there is sufficient evidence to support the jury's verdict when examined in the
light most favorable to the verdict. Id. Judgment as a matter of law is only
appropriate when there is no reasonable inference to be made from the evidence which
can sustain the verdict. Id.
A pattern or practice of intentional sex discrimination must be shown by
proving "regular and purposeful" discrimination by a preponderance of the evidence,
Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 339, 360 (1977). EEOC must
show that more than an isolated act of discrimination occurred and that
"discrimination was the company's standard operating procedure," id., but statistics
combined with anecdotal examples of discrimination may establish a pattern or
practice of regular, purposeful discrimination. Morgan v. United Parcel Service of
America, Inc., 380 F.3d 459, 463-64 (8th Cir. 2004). Moreover, discriminatory intent
can be inferred from the mere fact of differences in treatment, Teamsters, 431 U.S.
at 335 n.15.
Appellate Case: 05-4311 Page: 6 Date Filed: 11/17/2006 Entry ID: 2110517
-7-
Statistical disparities are significant if the difference between the expected
number and the observed number is greater than two or three standard deviations.
Hazelwood Sch. Dist. v. U.S., 433 U.S. 299, 308 n.14 (1977). Here, the disparity
between hiring of men and women showed nearly ten standard deviations. The
percentage of women who passed the WTS declined with each implementation of the
test. Despite knowing about the statistical difference, Dial continued to use the WTS.
Dial argues that EEOC's statistics are inapplicable because men and women are not
similarly situated and have profound physiological differences. There was evidence,
however, that women and men worked the same job together for many years before
the WTS was instituted. There was also evidence of women and men receiving similar
comments on their test forms, but only the males receiving offers of employment.
Dial attacks the jury's finding that intentional discrimination began in April
2001, a month when the WTS was not in use and no particular identifiable
discriminatory action was alleged. EEOC responds that the jury appeared to have
found April 2001 to be the month when Dial must have known of the discriminatory
effect of the WTS, but nonetheless continued to use it for future hiring periods. A
reasonable jury could discredit Lutenegger's testimony that the decrease in injuries
was the company's motivation for continuing to use the WTS. A reasonable jury
could also have found that the differing treatment of males and females supported an
inference of intentional discrimination. We conclude that the evidence was sufficient
for a reasonable jury to find that there was a pattern and practice of intentional
discrimination against women and that the district court did not err by denying Dial's
motion for judgment as a matter of law.
Dial objects to the district court's findings of disparate impact and its conclusion
that the company failed to prove the WTS was necessary to establish effective and
safe job performance. We review the district court's factual findings regarding
disparate impact for clear error and its legal findings de novo. Fed. R. Civ. P. 52(a).
In a disparate impact case, once the plaintiff establishes a prima facie case the
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-8-
employer must show the practice at issue is "related to safe and efficient job
performance and is consistent with business necessity." Firefighters Inst. for Racial
Equality v. City of St. Louis, 220 F.3d 898, 904 (8th Cir. 2000). An employer using
the business necessity defense must prove that the practice was related to the specific
job and the required skills and physical requirements of the position. Belk v.
Southwestern Bell Telephone Co., 194 F.3d 946, 951 (8th Cir. 1999). Although a
validity study of an employment test can be sufficient to prove business necessity, it
is not necessary if the employer demonstrates the procedure is sufficiently related to
safe and efficient job performance. Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810,
815-16 (8th Cir. 1983). If the employer demonstrates business necessity, the plaintiff
can still prevail by showing there is a less discriminatory alternative. Firefighters, 220
F.3d at 904.
Dial contends the WTS was shown by its experts to have both content and
criterion validity. Under EEOC guidelines, "A content validity study should consist
of data showing that the content of the selection procedure is representative of
important aspects of performance on the job for which the candidates are to be
evaluated." 29 C.F.R. § 1607.5(B). Dial's physiology expert testified that the WTS
was highly representative of the actions required by the job, and Dial claims that his
testimony was not rebutted by EEOC which had no physiology witness. The district
court was persuaded by EEOC's expert in industrial organization and his testimony
"that a crucial aspect of the WTS is more difficult than the sausage making jobs
themselves" and that the average applicant had to perform four times as many lifts as
current employees and had no rest breaks. There was also evidence that in a testing
environment where hiring is contingent upon test performance, applicants tend to
work as fast as possible during the test in order to outperform the competition.
Dial argues the WTS was criterion valid because both overall injuries and
strength related injuries decreased dramatically following the implementation of the
WTS. The EEOC guidelines establish that criterion validity can be shown by
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-9-
"empirical data demonstrating that the selection procedure is predictive of or
significantly correlated with important elements of job performance." 29 C.F.R. §
1607.5(B). Although Dial claims that the decrease in injuries shows that the WTS
enabled it to predict which applicants could safely handle the strenuous nature of the
work, the sausage plant injuries started decreasing before the WTS was implemented.
Moreover, the injury rate for women employees was lower than that for men in two
of the three years before Dial implemented the WTS. The evidence did not require
the district court to find that the decrease in injuries resulted from the implementation
of the WTS instead of the other safety mechanisms Dial started to put in place in
1996.
Dial contends finally that the district court improperly gave it the burden to
establish that there was no less discriminatory alternative to the WTS. Dial claims the
burden should have been allocated to EEOC as part of the burden shifting framework
in disparate impact cases, Firefighters, 220 F.3d at 904. Since Dial failed to
demonstrate that the WTS was a business necessity, however, EEOC never was
required to show the absence of a nondiscriminatory alternative. Part of the
employer's burden to establish business necessity is to demonstrate the need for the
challenged procedure, Kirby v. Colony Furniture Co., 613 F.2d 696, 705 n.6 (8th Cir.
1980), and the court found that Dial had not shown that its other safety measures
"could not produce the same results." We conclude that the district court findings in
its disparate impact analysis were not clearly erroneous, and we see no legal error in
its conclusions on liability.
Dial claims the district court committed error by awarding back pay and
benefits to all but one of the claimants even though twenty four women had been
unable to complete the WTS. But once an employer is found liable for a Title VII
violation, the district court is obligated to grant "the most complete relief possible."
King v. Staley, 849 F.2d 1143, 1144 (8th Cir. 1988). There is a strong presumption
that an employee who has suffered discrimination should receive back pay. E.E.O.C.
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v. Rath Packing Co., 787 F.2d 318, 329 (8th Cir. 1986). This presumption can be
overcome only if back pay would "frustrate the central statutory purposes of
eradicating discrimination throughout the economy and making persons whole for
injuries suffered through past discrimination." Albermarle Paper Co. v. Moody, 422
U.S. 405, 421 (1975). The trial court "has broad equitable discretion to fashion back
pay awards in order to make the Title VII victim whole." E.E.O.C. v. Delight
Wholesale Co., 973 F.2d 664, 669-70 (8th Cir. 1992). The district court's finding of
discrimination was based on Dial's use of the WTS and the evidence that the test was
more difficult than the actual job. Women who were not hired because they were
unable to complete the WTS suffered losses as a consequence, and Dial did not
overcome the presumption in favor of awarding back pay in respect to these claimants.
Dial also claims the district court erred by refusing to use its employee tenure
data in calculating the amount of back pay because the plant's high turnover rate
suggests the claimants would not have been employed for the entire back pay period.
The district court applied the well established rule for calculating back pay — the
difference between the amount the claimant would have earned absent the
discrimination and the amount of wages actually earned during the relevant period.
See Hartley v. Dillard's, Inc., 310 F.3d 1054, 1062 (8th Cir. 2002). This was
consistent with Title VII's dual purposes of compensating victims and deterring future
discrimination, as well as the district court's obligation to grant "the most complete
relief possible." King, 849 F.2d at 1144.
Dial also challenges the award of lost medical premiums, arguing the claimants
should have been required to prove they incurred medical expenses. Our court has not
decided whether out of pocket expenses are required before health care benefits can
be awarded, see Tolan v. Levi Strauss & Co., 867 F.2d 467, 470 (8th Cir. 1989), and
other circuits are divided on the issue. In the view of the Fourth Circuit, Congress
intended fringe benefits to be part of the monetary award compensating claimants for
the discrimination they suffered. See Fariss v. Lynchberg Foundry, 769 F.2d 958,
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965-66 (4th Cir. 1985) (awarding medical benefits to widow of age discrimination
victim without requiring proof of out of pocket medical insurance costs); see also
Blackwell v. Sun Elec. Co., 696 F.2d 1176, 1185-86 (6th Cir. 1983) (granting the
amount of health care premiums to claimant as part of recovery); but see Galindo v.
Stoody Co., 793 F.2d 1502,1517 (9th Cir. 1986) (reimbursing only out of pocket
expenses incurred to obtain health care).
Health care benefits are an important element of an employee's overall
employment package, and Dial does not contest that it would have awarded claimants
health care benefits had they been hired. The district court only required Dial to
compensate the claimants for the amount of health care premiums that would have
been part of their employment package had they not suffered discrimination. No
reimbursement for health care costs incurred by uninsured claimants was awarded.
The court's limited award was reasonable, for "[t]his insurance coverage, not the
proceeds, is the benefit for which the employer must be held liable." Fariss, 769 F.2d
at 965.
EEOC cross appeals the denial of back pay to Wright-Bradley. EEOC argues
that Dial did not overcome the presumption in favor of awarding back pay to her as
a victim of Title VII violations. See Rath Packing, 787 F.2d at 329. Dial responds that
it should not have to contribute back pay to Wright-Bradley because she was
convicted of a felony before she applied in 2000, a background check would have
revealed her criminal record, and she would have been terminated. EEOC disputes
Dial's factual assertions and argues that McKennon v. Nashville Banner Publishing
Co., 513 U.S. 352 (1995), supports an award of back pay to Wright-Bradley.
In McKennon, the Supreme Court concluded that an employer's belated
discovery of wrongdoing by a dismissed employee should not completely bar an
award of back pay because of the congressional "objective of forcing employers to
consider and examine their motivations, and of penalizing them for employment
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decisions that spring from [] discrimination." Id.; see also Sellers v. Mineta, 358 F.3d
1058, 1061-62 (8th Cir. 2004) (applying the after acquired evidence rule to Title VII
cases). The Supreme Court decided that back pay should be awarded, but only "from
the date of the unlawful discharge to the date the new information was discovered"
absent findings of "extraordinary equitable circumstances." McKennon, 513 U.S. at
362. The district court distinguished McKennon on the basis that the misconduct there
had occurred during the plaintiff's employment and concluded that back pay would
result in a windfall to Wright-Bradley. Dial argues that this is a mixed motives case
so McKennon does not apply, but Wright-Bradley’s criminal record could not have
been a motive for Dial's not hiring her since it was unaware of it at the time.
Dial's general counsel represented in the court's telephone conference that its
offers of employment in 2000 were contingent on passing a background check.
Counsel also stated that Dial had not previously dismissed an employee due to such
a check since it had not discovered felony convictions before but that Dial had
terminated five employees with criminal records. EEOC objected that "we've got a
factual problem here," that Dial had offered no evidence to establish that the described
policy existed, and that Dial's job application stated only that a hiring offer was
contingent on a drug test and a check of previous employment. EEOC added that it
had asked Dial during discovery for copies of background checks completed on
employees hired near the time Wright-Bradley took the WTS, but Dial responded that
it did not have such evidence.
After examining the record we conclude that there are disputed factual issues
here on the question of whether Wright-Bradley should be awarded back pay. The
statements of Dial's counsel on which the district court relied were not made under
oath, and no other evidence of Dial's policy has been proffered. Like the employer in
McKennon, Dial learned about Wright-Bradley's wrongdoing only after its
discriminatory hiring decision was made. Under the after acquired evidence
framework, Dial has the burden of proving that Dial would have terminated WrightAppellate Case: 05-4311 Page: 12 Date Filed: 11/17/2006 Entry ID: 2110517
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Bradley in 2000 because of her criminal background. See McKennon, 513 U.S. at
362-63. If Dial produces such proof, the district court should consider whether
Wright-Bradley is entitled to any amount of back pay. See id.
In sum, we affirm the district court's denial of judgment as a matter of law, its
findings of disparate impact, and its award of back pay and benefits to all claimants
except Wright-Bradley. Her claim for back pay is remanded for further proceedings
consistent with this opinion.
_______________________________
Appellate Case: 05-4311 Page: 13 Date Filed: 11/17/2006 Entry ID: 2110517 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-3_02-cv-00974/USCOURTS-cand-3_02-cv-00974-3/pdf.json | [
[
"Jim Hamlet",
"Respondent"
],
[
"Michael Hutchinson",
"Petitioner"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL HUTCHINSON,
Petitioner,
vs.
JIM HAMLET, Warden,
Respondent.
)
)
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)
)
No. C 02-974 JSW (PR)
ORDER REGARDING
OUTSTANDING ISSUES FOR
EVIDENTIARY HEARING
(Docket No. 38)
Petitioner, a California state prisoner, has filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. At a case management conference held by the
Court on February 21, 2006, the parties were ordered to file pretrial briefing, in
anticipation of an evidentiary hearing regarding Petitioner’s ineffective assistance of
counsel claim (docket no. 35). The Court directed the parties to address Respondent’s
argument that Petitioner’s claim was not exhausted in state court and to inform the Court
of what evidence the parties intended to offer at the evidentiary hearing.
On March 8, 2006, Petitioner filed a pretrial brief (docket no. 36). In Petitioner’s
brief, he contends that the ineffective assistance of counsel claim before the Court is not
barred by the doctrine of exhaustion. On March 17, 2006, Respondent filed a preevidentiary hearing brief (docket no. 37), arguing that Petitioner’s claim of ineffective
assistance of counsel has not been exhausted and that the petition should be dismissed for
failure to exhaust state remedies. Respondent also seeks production of Petitioner at the
hearing and has filed a motion for a writ of habeas corpus ad testificatum, seeking to
Case 3:02-cv-00974-JSW Document 47 Filed 04/20/06 Page 1 of 10
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2
have Petitioner produced at the hearing (docket no. 38). Respondent further argues that
Petitioner should not be allowed to call a “Strickland” expert to testify regarding what
constitutes ineffective assistance of counsel.
BACKGROUND
Petitioner’s claim, as set forth in his ineffective assistance of counsel claim in the
California Court of Appeal, is that trial counsel’s “failure to investigate the crime scene
and seek expert analysis of the prosecution videotapes was ineffective assistance of
counsel.” Petition at 12-18. His state habeas petition, filed in the Sixth Appellate
District, argued that trial counsel did not offer evidence at trial that would have showed
that the perpetrator of the crime was not the same height as Petitioner as set forth below:
No still photographs made from the tapes were introduced at
trial. The defense counsel did not introduce the photographs
he had made before the trial. (R. T. p. 13.) No evidence was
entered as to the height markings on the door of the 7-11. No
evidence was introduced as to the height of the perpetrator
seen in the videotape. The failure to obtain and introduce
such evidence is ineffective assistance of counsel.
Id. at 9.
In his request for expert funds and the petition, Petitioner’s appellate counsel
proffered an expert that he had consulted with who was available to provide the court
with an opinion as to the height of the perpetrator. See, Petitioner’s Exhibit 3 in Support
of Petition, at 19. In support of the petition, counsel offered a still photograph obtained
from trial counsel, as well as a declaration of his own geometric calculations,
investigation of the crime scene and discussions with trial counsel. In the habeas
petition, appellate counsel argued that his investigation of the scene revealed that the
height of the perpetrator was 5'5" or 5'6", that markings in the photograph denoted where
five feet and six feet were on the door of the 7-11 and that trial counsel made no mention
of the markings or of the discrepancy between the height of the perpetrator viewed in the
videotape and still photographs and Petitioner during the trial. Moreover, the petition
details that Petitioner’s application for funding to provide expert analysis of the
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videotape of the crime and provide evidence of Petitioner’s height was denied in the
Court of Appeal and a petition for review, filed in the California Supreme Court
regarding the failure to provide funding, was also denied. Petitioner’s state appeal and
his habeas petition were denied simultaneously by the California Court of Appeal on
August 22, 2001. Petitioner’s federal petition was filed on February 27, 2002.
Subsequent to the filing of the petition, Petitioner and Respondent apparently
became aware that the San Jose Mercury News had conducted an independent study of
the crime scene in the course of their investigation of his claims. This Court was first
informed of the existence of this expert in Petitioner and Respondent’s Joint Case
Management Report, filed with this Court on February 10, 2006 (docket no. 32).
I. EXHAUSTION
Respondent argues that because Petitioner’s claim of ineffective assistance is now
supported by an expert report supporting his claim regarding counsel’s failure to
introduce evidence of a height discrepancy, the petition has been rendered unexhausted
and must be dismissed. Respondent’s primary argument is that the evidentiary support
of the expert report submitted to this Court in the Joint Case Management Statement
places Petitioner’s claim in a different and stronger light and the claim must be returned
to state court so that the state courts will have an opportunity to consider the claim.
Prisoners in state custody who wish to challenge collaterally in federal habeas
proceedings either the fact or length of their confinement are first required to exhaust
state judicial remedies, either on direct appeal or through collateral proceedings, by
presenting the highest state court available with a fair opportunity to rule on the merits of
each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c);
Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3
(1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court
must be given an opportunity to rule on the claims even if review is discretionary. See
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O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one complete
round of the State’s established appellate review process.”).
The exhaustion requirement is not jurisdictional, but rather a matter of comity.
See Granberry v. Greer, 481 U.S. 129, 133-34 (1987). However, a district court may not
grant the writ unless state court remedies are exhausted or there are exceptional
circumstances. See 28 U.S.C. § 2254(b)(1); Edelbacher v. Calderon, 160 F.3d 582, 585
(9th Cir. 1998) (requiring "extremely unusual circumstances").
The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity
to give the state "the initial 'opportunity to pass upon and correct alleged violations of its
prisoners' federal rights."' Picard v. Connor, 404 U.S. 270, 275 (1971) (citations
omitted). The exhaustion requirement is satisfied only if the federal claim (1) has been
"fairly presented" to the state courts, see id.; Crotts v. Smith, 73 F.3d 861, 865 (9th Cir.
1996); or (2) no state remedy remains available, see Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). It is not sufficient to raise only the facts supporting the claim; rather,
"the constitutional claim . . . inherent in those facts" must be brought to the attention of
the state court. See Picard, 404 U.S. at 277. State courts must be alerted to the fact that
prisoners are asserting claims under the United States Constitution in order to be given
the opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S.
364, 365-66 (1995).
"[M]ere similarity of claims is insufficient to exhaust." Id. at 366; Johnson, 88
F.3d at 830 (stating that the "essentially the same" standard of Tamapua v. Shimoda, 796
F.2d 261, 262-63 (9th Cir. 1986), "is no longer viable" in light of Duncan).
Constitutional claims are not fairly presented to the state courts and therefore are not
exhausted if, for example, the claims in the federal petition and those presented to the
state courts (1) arose under different federal constitutional provisions (including different
clauses in the same constitutional amendment, e.g., the due process and equal protection
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clauses of the 14th Amendment), see Brown v. Cuyler, 669 F.2d 155, 159 (3d Cir. 1982),
(2) arose under the same constitutional provision but are logically distinct or are based on
different and unrelated lines of precedent, see Anderson v. Harless, 459 U.S. 4, 6 (1982);
Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000).
In order to properly exhaust, the specific factual basis of the federal claim also
must be presented to the highest state court. See Kelly v. Small, 315 F.3d 1063, 1067
(9th Cir. 2003) (finding unexhausted ineffective assistance of counsel and prosecutorial
misconduct claims where specific instances of ineffectiveness and misconduct asserted in
federal petition were neither in the California Supreme Court petition nor discussed by
the court of appeal). New factual allegations in a federal petition, however, do not render
a claim unexhausted unless they fundamentally alter the legal claim already considered
by the state courts. Belmontes v. Brown, 414 F.3d 1094, 1117-18 (9th Cir. 2005). The
focus normally is on the petitioner's briefs in state court, and not on the state court's
opinions. Thus, the state court's failure to discuss or mention a federal claim does not
mean that the claim was not fairly presented to it. Dye v. Hofbauer, 126 S. Ct. 5, 6
(2005).
In this case, Respondent contends that Aiken v. Spalding, 841 F.2d 881 (9th Cir.
1988) compels the conclusion that Petitioner’s claim is unexhausted and must be
dismissed. In Aiken, the trial court held a post-conviction hearing on petitioner’s claim
that his statement was involuntary and inadmissible. At the hearing, a tape of the
interrogation of petitioner was played on a tape recorder, in which petitioner was heard
requesting the assistance of an attorney. The interrogating officers also testified at the
hearing that they did not hear petitioner’s request for counsel and the trial court found
their testimony was credible and upheld admission of the interrogation. In his
subsequent federal habeas proceedings, petitioner sought to introduce “decibel level
studies” by an expert, to establish that the interrogating officers heard and ignored his
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requests for counsel. However, there was no such offer of expert evidence at the hearing
in state court. The Ninth Circuit denied the claim as unexhausted, and held that the
federal habeas petition, which included an affidavit of the expert, “places his claim in a
significantly different and stronger evidentiary posture than it had when presented in
state court.” Id. at 883-84.
Petitioner argues that Vasquez v. Hillery, 474 U.S. 254 (1986) supports his
argument that the claim is exhausted. In Vasquez, the Supreme Court found that
statistical evidence offered in the district court in support of petitioner’s habeas claim of
systemic exclusion of blacks from the indicting grand jury was not new evidence because
it “added nothing to the case that this court has not considered intrinsic to the
consideration of any grand jury discrimination claim.” Id. at 259. The Court found that
the presentation of additional facts to the district court does not render the claim
unexhausted when petitioner has presented the substance of his claim to the state courts.
Id. at 257-58.
This Court is persuaded that the additional factual support for petitioner’s claim
provided by the expert report submitted with the Joint Case Management Statement
regarding the height of the perpetrator depicted in the video does not render Petitioner’s
ineffective assistance claim unexhausted. The expert evidence offered in this case is
analagous to the statistical evidence offered at the federal habeas proceedings in
Vasquez. The Court finds further support for the determination that the claim is
exhausted in the Ninth Circuit’s recent decision in Landrigan v. Schriro, 441 F.3d 638
(9th Cir. 2006). In Landrigan, the Ninth Circuit reversed the district court’s holding that
petitioner’s claim was unexhausted, where petitioner had sought and been refused funds
to hire an expert in state court to establish that counsel was ineffective for failing to offer
such expert evidence in mitigation at his sentencing. The Ninth Circuit held that the
expert opinion offered in support of petitioner’s federal habeas claim did not
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“fundamentally alter” the ineffective assistance of counsel claim presented in state court,
thus rendering it unexhausted. Id. at 648. Rather, the expert report “simply provides
additional evidentiary support for the claim.” Id. The same is true here. While
Petitioner requested that the Court of Appeal provide funding for an expert, his argument
was essentially that the expert would establish conclusively counsel’s assertions that the
perpetrator was of significantly different height than Petitioner and that trial counsel had
failed to offer any evidence of the perpetrator’s height. The existence of such evidence
for consideration in this Court (prepared by an independent source) in no way
fundamentally alters Petitioner’s claim in state court that trial counsel should have called
into question the perpetrator’s height. See also, Belmontes, 414 F.3d at 1117-18 (holding
that “(n)ew factual allegations do not render a claim unexhausted unless they
fundamentally alter the legal claim already considered by the state courts.”) Respondent
argues that Petitioner’s case is distinguishable from that of Landrigan, because the expert
offered in this case is the only evidence available to establish prejudice to Petitioner.
However, the Court is not persuaded.
The claim before this Court remains whether competent counsel should have
called into question the perpetrator’s height, and that counsel’s failure to investigate and
present evidence that would have established a significant height discrepancy constituted
ineffective assistance of counsel. In this case, the Court will consider the entirety of trial
counsel’s investigation and whether competent counsel should have called into question
the height of the perpetrator through a proper investigation, including the investigation of
any forensic evidence then available to support this line of defense, as well as other
available evidence of the perpetrator’s height, such as the videotape and stills of the
scene offered by the prosecution and in the possession of defense counsel.
While an expert’s analysis of the videotape is certainly relevant to the Court’s
inquiry into whether Petitioner was prejudiced by counsel’s failure to call into question
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the perpetrator’s height, it does not alone answer the question of whether counsel’s
investigation of the scene and failure to produce any evidence of height constitutes
ineffective assistance of counsel.
It is certainly the case that additional evidence will almost always render a claim
stronger. However, the existence of some additional evidence alone in federal habeas
proceedings does not render the underlying claim unexhausted. As such, this Court finds
that Petitioner’s claim is exhausted and the petition need not be dismissed.
II. STRICKLAND EXPERT
Petitioner seeks to call a “Strickland expert” to testify regarding “the duty of care
of a reasonably competent criminal defense lawyer in investigating and preparing a
criminal case for trial” and whether petitioner’s trial counsel’s conduct fell below
accepted professional norms.
Respondent argues that this Court should exercise its discretion to exclude the
testimony of John Philipsborn, who Petitioner proposes to call at the hearing. In
response to Respondent’s objection, Petitioner argues that Philipsborn will also offer
testimony regarding counsel’s obligation to conduct an investigation of a case in
circumstances in which his or her client has confessed to the crime and, whether
counsel’s explanation of his failure to investigate is credible in light of his opening
statement and conduct of Petitioner’s defense.
As Respondent points out, it is within the Court’s discretion whether to permit
such an expert under Federal Rule of Evidence 702. See, Bonin v. Calderon, 59 F.3d
815, 838 (9th Cir. 1995) (holding that district court’s failure to admit testimony of
Strickland expert is not an abuse of discretion where the “judge is himself qualified to
assess the likely responses of a jury to certain evidence and is also qualified to
understand the legal analysis required by Strickland.”)
At this juncture, the Court finds that a Strickland expert is unnecessary, as the
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issues in this case are relatively straightforward. The Court is well aware that criminal
defense counsel is not relieved of the obligation to investigate a case when a client
confesses to having committed a crime. Expert testimony is not necessary to assist this
Court with the analysis of whether both prongs of the Strickland analysis have been met.
However, the Court has signed an order providing for funding to introduce an affidavit of
Philipsborn into evidence. As such, testimony of the Strickland expert will not be
admitted.
III. PRESENCE OF PETITIONER
Respondent seeks Petitioner’s presence at the hearing (docket no. 38). However,
Respondent’s counsel informs the Court that Petitioner has been diagnosed with bladder
cancer and is expecting to be transferred to a hospital in Reno for determination of
whether Petitioner is also suffering from prostate cancer or other disease of the prostate.
In light of the current state of Petitioner’s health, the Court will DENY Respondent’s
motion at this time (docket no. 38), but will reconsider the motion at the pre-trial
conference. Counsel is directed to provide the Court with an update regarding
Petitioner’s medical treatment at that time.
IV. DEPOSITIONS
By letter to the Court dated April 12, 2006, Petitioner and Respondent have asked
the Court for a ruling on several “submitted issues” including whether the Court will
grant leave to permit the parties to take the depositions of the expert witnesses and trial
counsel. While no prior motion requesting leave to depose these individuals has been
filed, the Court will allow the parties to conduct depositions of these witnesses for one
day, for a period not to exceed four hours. See, Habeas L. R. 2254-5; Fed. R. Civ. P.
26(b)(2).
V. ADDITIONAL EVIDENTIARY ISSUE
It appears from the Court’s reading of papers filed in this matter, that counsel
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intend to offer different retained experts to provide separate determinations of the
perpetrator’s height using different technologies for determining the height of the
perpetrator. The Court requests that counsel be mindful of the fact that Petitioner’s trial
occurred in 1999, and that counsel must address whether any evidence they seek to
introduce was available to trial counsel at the time of trial and whether criminal defense
counsel was under a duty to offer such testimony in Petitioner’s defense. The Court will
not consider evidence that is now available in support of the ineffective assistance of
counsel claim if it cannot be shown that the evidence was available at the time of trial in
San Mateo Superior Court, as it is not relevant to whether counsel was ineffective in
failing to offer such evidence.
Any other pre-trial issues must be raised by way of motion and counsel are
required to comply with this Court’s guidelines for trial and final pre-trial conference
regarding civil bench cases, provided to counsel along with the Clerk’s notice of the pretrial conference.
IT IS SO ORDERED.
DATED: April 20, 2006
JEFFREY S. WHITE
United States District Judge
Case 3:02-cv-00974-JSW Document 47 Filed 04/20/06 Page 10 of 10 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-14-05142/USCOURTS-ca13-14-05142-0/pdf.json | [
[
"KC Resources, Inc.",
"Appellant"
],
[
"United States",
"Appellee"
]
] | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
KC RESOURCES, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5142
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00393-EJD, Senior Judge Edward
J. Damich.
______________________
JUDGMENT
______________________
JOHN MARKHAM TANNER, Fairfield & Woods, PC, Denver, CO, argued for plaintiff-appellant.
ELLEN MARY LYNCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,
JR., FRANKLIN E. WHITE, JR.
______________________
Case: 14-5142 Document: 38-2 Page: 1 Filed: 06/11/2015
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (LOURIE, DYK, and MOORE, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
June 11, 2015 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
Case: 14-5142 Document: 38-2 Page: 2 Filed: 06/11/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00101/USCOURTS-caed-2_15-cv-00101-0/pdf.json | [
[
"Alisha Flemming",
"Plaintiff"
],
[
"NCO Financial Systems, Inc.,",
"Defendant"
]
] | 1
ORDER
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ALISHA FLEMMING,
Plaintiff,
vs.
NCO FINANCIAL SYSTEMS, INC.,
Defendant(s).
Case No.: 2:15-cv-00101-MCE-EFB
ORDER GRANTING
STIPULATION TO DISMISS
ENTIRE MATTER WITH
PREJUDICE
Pursuant to the stipulation of the parties (ECF No. 13), it is hereby ordered
that the instant matter is hereby dismissed, in its entirety, with prejudice pursuant
to Fed. R. Civ. P. 41(a)(1)(A)(ii), with each party to bear its own attorneys’ fees
and costs incurred.
IT IS SO ORDERED.
Dated: June 30, 2015
Case 2:15-cv-00101-MCE-EFB Document 15 Filed 07/06/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_16-cv-00142/USCOURTS-caed-1_16-cv-00142-1/pdf.json | [
[
"County of Merced",
"Defendant"
],
[
"Charles Hale",
"Defendant"
],
[
"Erick Macias",
"Defendant"
],
[
"Ethan Morse",
"Plaintiff"
],
[
"Jose Sam Sanchez",
"Defendant"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ETHAN MORSE
Plaintiff,
v.
COUNTY OF MERCED, CHARLES
HALE, ERICK MACIAS, and JOSE SAM
SANCHEZ individually and as officers of
the MERCED COUNTY SHERIFF‘S
DEPARTMENT, and DOES 1–100,
Defendants.
No. 1:16-cv-00142-DAD-SKO
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS‘
MOTION TO DISMISS
(Doc. No. 6)
This action was originally filed in the Merced County Superior Court on November 19,
2015, and was removed to this court on January 28, 2016 by defendants. (Doc. No. 1.)1 On
February 4, 2016, defendants filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) seeking dismissal of many causes of action on numerous grounds. (Doc. No. 6.) On
April 5, 2016, the motion came on for hearing with attorney Jayme L. Walker appearing on behalf
of plaintiff, attorney Dawn M. Flores-Oster appearing on behalf of defendants County of Merced,
Hale, and Sanchez, and attorney Steven Joseph Rothans appearing on behalf of defendant Macias.
(Doc. No. 27.)
/////
1
This court has jurisdiction under 28 U.S.C. § 1331.
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I. Background
Plaintiff‘s wide-ranging complaint concerns his arrest and subsequent criminal charges
brought against him stemming from the murder of three people in a gang-related gun battle at a
party in Atwater, California on March 30, 2013. In his complaint, plaintiff alleges as follows.2
Plaintiff briefly attended the party with other individuals. As plaintiff and his friends were
leaving, a group of gang members (apparent rivals of gang members at the party) arrived and
began firing weapons. Plaintiff and his group were driving away from the scene as the gunshots
began. Two individuals—Matthew Fisher and Samantha Pereira—were killed in the backyard of
the house where the party was being held, while another—Bernabed Hernandez Canela—was
killed on a street just to the west of that house.
One of the individuals in plaintiff‘s car that evening, Jacob Tellez, was arrested for the
murder of Hernandez approximately two weeks later. He had inadvertently called 911 while the
group was fleeing the party. The 911 call featured an animated Tellez talking about the shooting.
However, the audio recording of the call was muffled and the exact words spoken were unclear.
When interviewed by a Merced County Sheriff‘s detective shortly after the shooting, Tellez
admitted being at the party and possessing a .22 caliber revolver. Tellez told police he tried to
pull the gun out when the shooting started, but it caught on the seatbelt in plaintiff‘s car and
another occupant of the car—Andrew Massengale—grabbed his arm and told him not to pull the
gun out. Tellez also told police he saw someone lying on the side of the road and it looked like a
piece of the person‘s hair or head was on the ground. Following his interview of Tellez the
detective again listened to the 911 call recording. Determining Tellez‘s account in his interview
was consistent with what could be deciphered from his 911 call, the detective released Tellez and
requested the warrant for his arrest be recalled.
/////
2
These facts are taken from plaintiff‘s complaint. At this stage, the court must accept the factual
allegations of the complaint as true and construe them in the light most favorable to the plaintiff.
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245
(9th Cir. 1989).
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Subsequently, defendant detectives Hale, Sanchez, and Macias were assigned to conduct
the criminal investigation. In January 2014, plaintiff‘s father, Larry Morse—the elected district
attorney of Merced County—publicly complained that the Merced County Sheriff‘s Department
was not putting sufficient resources into investigating gang violence, including the unsolved
Atwater killings. In July 2014, defendants Hale, Sanchez, and Macias reopened the investigation
after having done no significant work on the case since May 2013. They made Tellez the target
of the investigation into the murder of Hernandez, despite having no additional evidence linking
Tellez to the killing other than his 911 call.
Tellez was rearrested on July 17, 2014 and the police held a press conference to announce
the arrest. This time Tellez was interviewed by defendant Sanchez and repeated essentially the
same version he had given the first detective to interview him, while adding information about an
individual Tellez said he saw shooting at Hernandez. Still, the only evidence regarding Tellez
was his own 911 call on the night of the killing.
After the police press conference, plaintiff advised his father that he too was at the party
with Tellez, was driving and that Tellez had not fired a gun from plaintiff‘s car. District Attorney
Morse promptly contacted defendant Hale to advise there was a problem with Tellez‘s arrest.
District Attorney Morse then arranged for his son to meet with the investigators.
Defendants Macias and Hale interviewed plaintiff on July 20, 2014. Plaintiff corroborated
Tellez‘s account, stating the group of friends had been at the scene only briefly, were leaving as
shots broke out, that Tellez had a .22 caliber gun, that Massengale told Tellez not to shoot it and
that no shots were fired from plaintiff‘s car. The defendants subsequently interviewed all the
witnesses in the car, with the exception of Massengale, whose father would not permit him to
speak with police without an attorney. Defendants implied during their interviews of the other
witnesses that they would be charged with a crime if they failed to align their stories with the
defendants‘ theory of the case.3 Eventually, after much convincing from defendant Macias, one
of the individuals in the car—Sabrina Ceccolli—told police that although she was 95 percent sure
3
Details of defendants‘ theory of the criminal case are not included in plaintiff‘s complaint,
however, plaintiff implies defendants sought evidence linking both him and Tellez to the murders.
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no one shot a gun from plaintiff‘s car, some of the shots were louder than others and perhaps
some of them could have come from the car. Similarly, Robert Tern, another passenger in the
car, initially told some of the defendants he was positive Tellez had not fired a gun. However,
after the defendants threatened to jail him for lying, handcuffed him for forty-five minutes, and
told him he was a suspect in a triple homicide, Tern changed his story.4
Other witnesses, including Jacob Delgadillo and Tony Gomes, told police that Tellez did
not fire a gun. Nevertheless, defendant Macias instead wrote in his report that Delgadillo told
him Tellez had pointed a gun out of the window of the car. Gomes had actually identified two
other shooters, including one who was previously identified by Tellez, who he had seen shooting
in the direction of Hernandez. Macias‘s report of the interview contains no mention of these
individuals, and no further investigation into these potential suspects was conducted by
authorities.
In his affidavit supporting the warrant for Tellez‘s second arrest, defendant Macias falsely
stated that Tellez incriminated himself by suggesting on the 911 call that he had shot Hernandez.
Macias also misrepresented the statements of a number of witnesses, including by suggesting that
Ceccolli told him she heard gunshots that sounded as if they were coming from plaintiff‘s car.
Defendant Macias did not advise the reviewing judge of the numerous statements exonerating
Tellez from involvement in the shooting, nor did he advise the judge that although Tellez
possessed a .22 caliber revolver on the night in question, Hernandez was known by police to have
been shot with .38 and .25 caliber bullets which could not have been fired from Tellez‘s gun.
The California Attorney General‘s Office took over prosecution of the case from District
Attorney Morse on July 23, 2014, because of the involvement of plaintiff, District Attorney
Morse‘s son. Plaintiff was arrested by deputies on July 25, 2014 as an accessory to murder. A
former sheriff called District Attorney Morse the Sunday after his son‘s arrest and suggested that
he apologize to the Sheriff‘s Department when he next addressed the public. The Attorney
General‘s Office charged plaintiff with Hernandez‘s murder along with various gang
4
The complaint does not allege in what way Tern changed his story.
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enhancements on July 29, 2014. The Deputy Attorney General in charge of the case did not
conduct any independent review of the evidence prior to charging plaintiff with the murder, nor
did the defendant detectives disclose the exculpatory evidence—such as the names of the shooters
identified by the witnesses—to the new prosecutor.
In November 2014, a confidential informant came to the Merced Police Department to
discuss the triple murder. He advised Police Detective Paul Johnson he knew that the two gang
members identified by Gomes had shot Hernandez because one of them confessed to him. When
Police Detective Johnson attempted to convey this information to defendant Sheriff‘s Supervising
Detective Hale, Johnson was rebuffed, and no further investigation was conducted by the Merced
County Sherriff‘s Department.
From November 10, 2014 to November 14, 2014, a preliminary hearing was held in the
prosecution of plaintiff and Tellez, at which testimony from Massengale was introduced. At the
close of that preliminary hearing the presiding judge declined to hold either Tellez or plaintiff to
answer and found that both were factually innocent. The judge also noted that the 911 call did
not contain any admission by Tellez that he shot anyone. Further, the judge found he could not
hear the words defendant Macias had represented were heard on the call, and also observed that
many of the allegedly incriminating details came from defendants‘ questions, not from the
answers given by the various witnesses in response to those questions.
As he was leaving the courthouse following the preliminary hearing, a sheriff‘s deputy
was heard to exclaim, ―This is bullshit, I know this guy did it.‖ Subsequently, a social media
blogger for the local newspaper attributed statements to a sheriff‘s department source to the effect
that plaintiff ―had gotten away with murder.‖ Plaintiff believes defendants continue to defame
him by accusing him of being an accomplice to murder.
As a result of the actions of the Merced County Sheriff‘s Department, plaintiff spent a
number of months in the county jail, missing his first semester at college in Arkansas where he
was slated to go on a wrestling scholarship. Because he could not attend the first semester of
college, plaintiff lost his scholarship, and ultimately returned to Merced, where he now lives in
fear of retaliation because the publicity surrounding the case led gang members to believe that he
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was, in fact, involved in the killing. Plaintiff suffers from severe emotional distress as a result of
his wrongful arrest and detention. He further alleges that neither of the two gang members
identified by the various sources as the shooters of Hernandez were ever arrested or investigated
further by the Merced County Sheriff‘s Department.
Based on these allegations, plaintiff brings causes of action under 42 U.S.C. § 1983
alleging Fourth Amendment claims against defendants Hale, Macias, and Sanchez for unlawful
searches and seizures, malicious prosecution, and the failure to advise him and others of
exculpatory evidence. The last of these claims is also alleged to be a violation of plaintiff‘s
Fourteenth Amendment due process rights. Plaintiff also alleges both the individual and county
defendants violated California Civil Code § 52.1, also known as the ―Bane Act,‖ by instituting a
malicious prosecution against him. In connection with this claim plaintiff asserts that defendant
Merced County and Merced County Sheriff Tom Cavallero5are ―liable under a theory of
respondeat superior.‖ (Doc. No. 1 at ¶ 69.) Plaintiff also alleges state law tort claims for false
arrest/false imprisonment against all defendants; negligent and intentional infliction of emotional
distress against defendants Hale, Macias, and Sanchez; and defamation against the individual
defendants and Doe defendants 1–100.
II. Legal Standards
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal
sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.
1983). ―Dismissal can be based on the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.‖ Balistreri v. Pacifica Police Dep’t, 901
F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege ―enough facts to state a claim to
relief that is plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). ―A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
5
Sheriff Cavallero is not identified as a defendant in the caption of the complaint nor is he listed
as such on this court‘s docket. It is unclear whether plaintiff intends that he be named as a party
to this action, though the court observes that there is no indication in the docket that he has been
served with a summons and complaint. (Doc. No. 20.)
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the reasonable inference that the defendant is liable for the misconduct alleged.‖ Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim on which relief may be granted, the
court accepts as true the allegations in the complaint and construes the allegations in the light
most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth
of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v.
Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed
factual allegations, ―it demands more than an unadorned, the defendant-unlawfully-harmed-me
accusation.‖ Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere ―labels and
conclusions‖ or ―a formulaic recitation of the elements of a cause of action.‖ Twombly, 550 U.S.
at 555. See also Iqbal, 556 U.S. at 676 (―Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.‖). Moreover, it is inappropriate to
assume that the plaintiff ―can prove facts which it has not alleged or that the defendants have
violated the . . . laws in ways that have not been alleged.‖ Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted
to consider material which is properly submitted as part of the complaint, documents that are not
physically attached to the complaint if their authenticity is not contested and the plaintiff‘s
complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles,
250 F.3d 668, 688–89 (9th Cir. 2001).
III. Analysis
Defendants seek dismissal of many of plaintiff‘s causes of action on the following
grounds:
1. Punitive damages may not be awarded against Merced County in light of California
Government Code § 818.
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2. Plaintiff has failed to plead with sufficient specificity because many of the complaint‘s
factual allegations include generic references to ―defendants,‖ without specifying
which of the named defendants is being referred to.
3. The complaint fails to specify the statutory basis for the liability of Merced County, as
required by California law.
4. Plaintiff has not alleged compliance with the directive in State of California v.
Superior Court of Kings County (Bodde), 32 Cal. 4th 1234 (2004), requiring that
claims against a public entity to first be presented to the entity prior to
commencement of litigation.
5. Even if some of plaintiff‘s claims were timely presented to the public entity in
question, others were not, in violation of the claim presentation requirements set out in
Fall River Joint Unified School District v. Superior Court of Shasta County, 206 Cal.
App. 3d 431 (1988).
6. Plaintiff‘s defamation claims must fail because there is no specific reference to any
alleged defamatory statement, the individual who allegedly made such statements is
not identified, and there is no allegation that the alleged statements were false.
7. California Civil Code § 47 precludes all state law claims save the malicious
prosecution claim.
8. Plaintiff failed to plead sufficient facts to support a claim under the Bane Act, because
he did not allege threats, intimidation, or coercion independent from the alleged
constitutional violation.
9. There is no independent tort of negligent infliction of emotional distress in California
law.
10. Plaintiff has failed to allege he was the victim of extreme and outrageous conduct
sufficient to sustain a claim for intentional infliction of emotional distress.
11. The individual defendants are entitled to immunity with respect to plaintiff‘s malicious
prosecution and negligent and intentional infliction of emotional distress claims under
California Government Code § 821.6.
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12. Pursuant to California Government Code § 815.2(b), Merced County is not liable as to
state law claims if the individual defendants are entitled to immunity with respect to
those claims and to the extent state law claims are dismissed as to individual
defendants, they must also be dismissed against the county.
13. Plaintiff has failed to plead sufficient facts to support a claim for punitive damages
against the individual defendants (presumably on any cause of action).
14. Finally, to the extent the court does not dismiss any claim, the defendants request a
more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil
Procedure.
Each of defendants‘ arguments is addressed in turn below.
1. Punitive Damages Unavailable Against Merced County
Defendants claim punitive damages may not be awarded against Merced County pursuant
to California Government Code § 818.6 That statute states:
Notwithstanding any other provision of law, a public entity is not
liable for damages awarded under Section 3294 of the Civil Code
[which authorizes exemplary or punitive damages in certain
circumstances] or other damages imposed primarily for the sake of
example and by way of punishing the defendant.
Cal. Gov. Code § 818. Counties and sheriffs‘ departments in California are generally considered
public entities. See Zelig v. County of Los Angeles, 27 Cal. 4th 1112, 1127–28 (2002). In his
opposition to the pending motion, plaintiff states he intends to seek punitive damages only against
the individual defendants. Accordingly, punitive damages are neither available nor being sought
against Merced County or the Merced County Sheriff‘s Department to the extent plaintiff is
attempting to name the latter as a separate defendant.
/////
/////
6
Though defendants have not argued it, punitive damages are also not available against
municipalities under 42 U.S.C. § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
271 (1981) (―[W]e hold that a municipality is immune from punitive damages under 42 U.S.C.
§ 1983.‖).
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2. Plaintiff Stated Claims with Sufficient Particularity
According to defendants, because the complaint often refers to ―defendants‖ collectively,
it fails to state a claim (apparently any claim) because there is insufficient factual specificity as to
which defendant plaintiff is alleging did what. As a result, defendants contend, the complaint
―does not provide notice to any defendant of the specific conduct upon which plaintiff bases his
claims as it pertains to each stated claim.‖ (Doc. No. 6 at 7.) Plaintiff responds that he has met
the pleading requirements under Rule 8, and has pled numerous facts against the individual
defendants which put defendants on notice of the conduct on which plaintiff‘s complaint is based.
The notice pleading standard in federal court is set out in Rule 8, and requires a pleading
contain a jurisdictional statement, ―a short and plain statement of the claim showing that the
pleader is entitled to relief‖ and a demand for the relief sought. Fed. R. Civ. P. 8(a). ―No
technical form is required.‖ Fed. R. Civ. P. 8(d)(1). Further, the ―[p]leadings must be construed
so as to do justice.‖ Fed. R. Civ. P. 8(e). A plaintiff is only required to allege ―enough facts to
state a claim to relief that is plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). ―A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‖
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The point of the liberal notice pleading system is ―to
focus litigation on the merits of a claim.‖ Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514
(2002). ―Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not
causes of action, statutes or legal theories.‖ Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008).
―Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal theory.‖ Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
In his complaint plaintiff has alleged numerous, detailed facts in support of his contention
that the individual defendants manipulated witnesses, misrepresented facts to the state court in
sworn statements, withheld exculpatory evidence, and ultimately had plaintiff arrested and
charged with a murder they knew they lacked any evidence linking him to, while at the same time
ignoring key evidence linking others to the murder to other. One can reasonably infer from the
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factual allegations of the complaint that plaintiff is claiming that he was targeted in this way
because his father was a local elected official who had criticized the sheriff‘s department. The
complaint is certainly adequate to place the defendants on notice as to the activities they are
alleged to have engaged in, the legal basis for the claims against them, and the relief sought by
plaintiff. This is all Rule 8 requires, and defendants have presented no persuasive argument that
the collective reference to the defendants at various points in the complaint renders it inadequate.
3. Complaint Fails to Reference a Statutory Basis of Merced County’s Liability
According to defendants, plaintiff‘s claims against Merced County for wrongful arrest and
detention, and for violation of California Civil Code § 52.1, are deficient because the complaint
does not cite a specific statutory basis for such claims. Plaintiff noted in his opposition to the
motion to dismiss he is relying on California Government Code §§ 815.2, 820, and 820.4 to
allege claims for false arrest and false imprisonment. However, these statutory provisions are not
specifically identified in the complaint.
―Except as otherwise provided by statute,‖ a public entity is not liable for an injury,
whether it arises out of an act or omission of the entity itself, a public employee, or any other
person. Cal. Gov. Code § 815. Under California law, since all government tort liability is
dependent on a statutory basis, a plaintiff must plead every fact with particularity, including the
statutory basis for the claim. See Susman v. City of Los Angeles, 269 Cal. App. 2d 803, 808–09
(1969).
California Civil Code § 52.1 permits individuals to bring private actions for damages
whenever the exercise or enjoyment of their constitutional rights under state or federal law is
interfered with by threat, intimidation, or coercion. It appears claims under § 52.1 may be
brought against public entities. See Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947,
950 (2012) (Bane Act claims brought against Los Angeles County). Public entities may be held
liable for injuries proximately caused by their employees within the scope of employment if the
act or omission would ―have given rise to a cause of action against that employee or his personal
representative.‖ Cal. Gov. Code § 815.2. See also San Mateo Union High Sch. Dist. v. County of
San Mateo, 213 Cal. App. 4th 418, 432–33 (2013) (―In addition to limited statutory liability for
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their own conduct and legal obligations, public entities may incur liability, based on respondeat
superior principles, for the misconduct of their employees that occurred in the scope of their
employment.‖) (citations and quotations omitted). ―[A] public employee is liable for injury
caused by his act or omission to the same extent as a private person.‖ Cal. Gov. Code § 820. ―A
public employee is not liable for his act or omission, exercising due care, in the execution or
enforcement of any law. Nothing in this section exonerates a public employee from liability for
false arrest or false imprisonment.‖ Cal. Gov. Code § 820.4.
Because the statutory basis for plaintiff‘s false arrest and false imprisonment claims is not
identified in his complaint but rather only in his opposition to the motion to dismiss, these claims
against the county must be dismissed. However, since plaintiff clearly has a statutory basis for
these claims, the court will grant him leave to amend the complaint to add the statutory bases for
these state law claims. Because plaintiff‘s claim for violation of Civil Code § 52.1 is clearly
based in statute, it may proceed, and defendant‘s motion to dismiss in this respect will be denied.
4. Plaintiff Alleges Timely Presentation of Claims
Defendants argue that plaintiff failed to comply with the Bodde maxim, which requires
claims to be presented first to a government agency for payment. According to defendants,
plaintiff failed to plead compliance with the claim presentation requirements because the claim
must be presented within six months of the accrual of the cause of action. Plaintiff was arrested
on July 25, 2014. He filed a claim against Merced County on May 12, 2015. According to
defendants, his claim was therefore untimely, presumably because defendants believe plaintiff‘s
cause of action accrued on the date he was originally arrested. Plaintiff responds that, by statute,
claims against police officers are tolled while criminal charges are pending.
In State of California v. Superior Court of Kings County (Bodde), 32 Cal. 4th 1234
(2004), the California Supreme Court noted that Government Code § 900, et seq. imposes a claim
presentation requirement for tort suits against government entities. ―[U]nder these statutes,
failure to timely present a claim for money or damages to a public entity bars a plaintiff from
filing a lawsuit against that entity.‖ Bodde, 32 Cal. 4th at 1239. The ―submission of a claim to a
public entity pursuant to section 900 et seq. is a condition precedent to a tort action and the failure
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to present the claim bars the action.‖ Id. at 1240 (citations and quotations omitted). Under
California law, this requires a plaintiff to ―allege facts demonstrating or excusing compliance
with the claim presentation requirement.‖ Id. at 1243. ―A claim relating to a cause of action for
death or for injury to person . . . shall be presented . . . not later than six months after the accrual
of the cause of action.‖ Cal. Gov. Code § 911.2.
Plaintiff argues that under California Government Code § 945.3 the statute of limitations
is tolled for actions against police officers while charges are pending. However, § 945.3
specifically excepts § 911.2, which controls timing of presentation to a board of a public entity,
stating : ―Nothing in this section shall prohibit the filing of a claim with the board of a public
entity, and this section shall not extend the time within which a claim is required to be presented
pursuant to Section 911.2.‖ Cal. Gov. Code § 945.3. All of this is, however, is immaterial, since
the time for filing a claim under § 911.2 does not begin to run until the action accrues.
A cause of action for malicious prosecution accrues when ―the underlying proceeding
[has] been terminated favorably to the malicious prosecution plaintiff.‖ Ray v. First Federal
Bank, 61 Cal. App. 4th 315, 318 (1998). More specifically, the cause accrues ―at the time of
entry of judgment in the underlying action in the trial court.‖ Stavropoulos v. Superior Court of
Los Angeles County, 141 Cal. App. 4th 190, 197 (2006). Thus, a cause of action for false
imprisonment in California ―accrues upon release from confinement.‖ Scannell v. County of
Riverside, 152 Cal. App. 3d 596, 614 (1984). Moreover, the California Supreme Court has
clarified ―[f]alse arrest and false imprisonment are not separate torts. False arrest is but one way
of committing a false imprisonment.‖ Asgari v. City of Los Angeles, 15 Cal. 4th 744, 753 n.3
(1997) (citations and quotations omitted). ―A cause of action for intentional infliction of
emotional distress accrues . . . once the plaintiff suffers severe emotional distress as a result of
outrageous conduct on the part of the defendant.‖ Cantu v. Resolution Trust Corp., 4 Cal. App.
4th 857, 889 (1992). Finally, a cause of action for defamation accrues ―at the time the
defamatory statement is ̳published,‘‖ meaning ―when the defendant communicates the
defamatory statement to a person other than the person being defamed.‖ Shively v. Bozanich, 31
/////
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Cal. 4th 1230, 1246–47 (2003).7
Here, plaintiff alleges in his complaint as follows. Plaintiff was arrested on July 25, 2014.
(Doc. No. 1 at 15.) A preliminary hearing was held in the criminal prosecution of plaintiff and
Tellez from November 10, 2014 through November 14, 2014, at the end of which plaintiff was
found to be factually innocent of the charges.
8
(Doc. No. 1 at 17.) As plaintiff was leaving the
courthouse, he heard a deputy remark, ―This is bullshit, I know this guy did it,‖ and a short while
later, a local newspaper published remarks from an unnamed source in the sheriff‘s department
that plaintiff and Tellez had ―gotten away with murder.‖ (Doc. No. 1 at 17–18.) While the
specific date is not listed in the complaint, presumably this occurred on November 14, 2014. It
therefore appears that plaintiff‘s state law claims accrued on or about November 14, 2014.
Therefore, in order to comply with § 911.2, plaintiff was required to present the claims to the
county on or about May 14, 2015. As alleged in the complaint, he timely presented the claim on
May 12, 2015, and it was rejected by Merced County on June 2, 2015. (Doc. No. 1, at 8–9.)
Accordingly, defendant‘s motion to dismiss will be denied in this regard.
5. Plaintiff Did Not Present Defamation Claims to County
Defendants‘ claim that, pursuant to the decision in Fall River Joint Unified School
District, 206 Cal. App. 3d 431 (1988), prior to filing a lawsuit against a public entity, a claimant
must present each legal theory of recovery or cause of action to that entity. According to
defendants, if a complaint alleges a factual basis for recovery against a public entity not reflected
in the written claim submitted, it must be dismissed. Further, defendants assert that although the
law allows for some variance, a wholesale change of theory between the claim and the complaint
is not permitted. Because plaintiff failed to allege facts which would support defamation in his
claim submitted to Merced County, defendants contend that any cause of action for defamation
against the county set forth in plaintiff‘s complaint in this action must be dismissed.
7
Claims brought pursuant to § 1983 are not subject to state claim presentation statutes. Ford v.
Long Beach Unified Sch. Dist., 461 F.3d 1087, 1089 (9th Cir. 2006).
8
For purposes of addressing the pending motion, the court will assume that the state court found
a lack of probable cause and therefore declined to hold plaintiff and Tellez to answer on the
charges brought against them. However, those words are not used in the complaint.
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Plaintiff responds that he ―clearly set forth facts in his government claim that Defendants
falsely and maliciously accused him of a heinous crime,‖ and these accusations were ―defamation
per se.‖ (Doc. No. 21 at 18.) According to plaintiff, this is more than sufficient to put the County
and the individual defendants on notice that the specific statements of defendants cited in ¶ 53 of
the complaint—namely, ―This is bullshit, I know this guy did it,‖ and the anonymous newspaper
comments that plaintiff got away with murder—could be the basis for defamation claims.
California Government Code § 905 states ―[t]here shall be presented . . . all claims for
money or damages against local public entities.‖ Moreover, ―no suit for money or damages may
be brought against a public entity on a cause of action for which a claim is required to be
presented.‖ Cal. Gov. Code § 945.4. Further, ―a cause of action against a public employee or
former public employee for injury resulting from an act or omission in the scope of his
employment as a public employee is barred if an action against the employing public entity for
such injury is barred‖ under § 900, et seq. Cal. Gov. Code § 950.2. Thus, claims against a public
employee or former public employee are subject to the claim presentation requirement of §§ 905
and 945.4, but only if the cause of action is ―for injury resulting from an act or omission in the
scope of [the employee‘s] employment as a public employee.‖ Cal. Gov. Code § 950.2.
The crucial question here appears to be one unaddressed by the parties—whether the
allegedly defamatory statements were ―in the scope of [the defendants‘] employment.‖ Cal. Gov.
Code § 950.2. If they were, then California‘s claim presentation requirements apply to them. If
they were not, they are not subject to the claim presentation requirements at all. Indeed, the issue
of whether the acts occurred within the scope of defendants‘ employment is of added importance
since tortious acts occurring within the scope of employment create vicarious liability for
government agencies under California law. See Cal. Gov. Code § 815.2; see also San Mateo
Union High Sch. Dist. v. County of San Mateo, 213 Cal. App. 4th 418, 432–33 (2013) (―In
addition to limited statutory liability for their own conduct and legal obligations, public entities
may incur liability, based on respondeat superior principles, for the misconduct of their
employees that occurred in the scope of their employment.‖). The court notes that plaintiff has
asserted defamation claims only against the individual defendants, and not against the county
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defendant, suggesting that he may believe the alleged acts were undertaken outside of the scope
of the defendants‘ employment and therefore provide no basis for respondeat superior liability.
9
―An employee acts within ̳the scope of his employment‘ when he is engaged in work he
was employed to perform or when an act is incident to his duty and was performed for the benefit
of his employer and not to serve his own purpose.‖ Fowler v. Howell, 42 Cal. App. 4th 1746,
1750–51 (1996) (citing Mazzola v. Feinstein, 154 Cal. App. 3d 305, 311 (1984)). ―The proper
inquiry is not whether the wrongful act itself was authorized but whether it was committed in the
course of a series of acts of the employee which were authorized by the employer.‖ Id. (quoting
Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 970 (1986)). The ―scope of employment‖
is viewed broadly to ―include willful and malicious torts as well as negligence.‖ Id. (citing John
R. v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 447 (1989). The employee need not be
―engaged in the ultimate object of his employment‖ at the time of his wrongful act in order to be
acting within the scope of his employment. Id. Ordinarily, the question of the scope of
9
The ―scope of employment‖ question appears to be dispositive. The defamation claims were
apparently not presented in the administrative claim filed by plaintiff with the county. See Fall
River, 206 Cal. App. 3d at 433–36. The California Supreme Court has stated the purpose of claim
presentation statutes is ―to provide the public entity sufficient information to enable it to
adequately investigate claims and to settle them, if appropriate, without the expense of litigation.‖
City of San Jose v. Superior Court of Santa Clara County ̧ 12 Cal. 3d 447, 455 (1974). ―A theory
of recovery not included in the claim may not thereafter be maintained, . . . [but] the claim need
not conform to pleading standards.‖ Shoemaker v. Myers, 2 Cal. App. 4th 1407, 1426 (1992).
Rather, courts employ a test of substantial, rather than strict, compliance which is satisfied if ―the
claim satisfied the purpose of the act without prejudice to the government.‖ Elias v. San
Bernardino County Flood Control Dist., 68 Cal. App. 3d 70, 74–75 (1977). Here, plaintiff has
clarified that his defamation claims are based on the two specific sets of statements: 1) a
comment plaintiff heard as he was leaving the courthouse in which an unidentified sheriff‘s
deputy said, ―This is bullshit, I know this guy did it,‖ (Doc. No. 1 at 18); and 2) anonymous
comments in a Merced Sun Star blog attributing statements that plaintiff was an accomplice to
murder and got away with murder to unnamed sources in the Merced County Sheriff‘s
Department, believed to be defendants Macias, Hale, and Sanchez (Doc. No. 1 at 18). Plaintiff
does not contend that the criminal proceeding itself was defamatory. In opposition to the pending
motion plaintiff argues the defendants knew they were falsely accusing him of murder and that
such false accusations are defamation per se. This argument is unpersuasive. Again, plaintiff is
not alleging that the criminal prosecution was itself defamatory. Rather, plaintiff alleges only
that two sets of statements made after his preliminary hearing were defamatory. Yet, there is no
reference to either set of statements in the administrative claim filed by plaintiff with Merced
County, and no reference therein to defamation. The County therefore was not given the required
notice with respect to such claims.
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employment in California law is one of fact, unless the ―facts are undisputed and no conflicting
inferences are possible.‖ Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th 291 (1995)
(quoting Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 215 (1991)). See also Farmers Ins.
Group v. Cty. of Santa Clara, 11 Cal. 4th 992, 1019 (1995).
As noted above, plaintiff has alleged the purportedly defamatory comments occurred at
two separate times and places. The court has nothing before it from which to determine what the
scope of the officers‘ employment was under California law, and whether they were acting within
it at the time these allegedly defamatory statements occurred. Nor has either party addressed this
point. Therefore, defendants‘ motion to dismiss the defamation claims on this ground will be
denied without prejudice.
6. Plaintiff’s Defamation Claims Against the Individual Defendants
According to defendants, plaintiff‘s defamation claims must also be dismissed because
his complaint does not set out ―the specific words or the substance of‖ the allegedly defamatory
statements. In particular, defendants argue that while ―each defendant may be able to make an
educated guess as to the alleged defamatory statement(s) plaintiff alleges pertains to him,‖
plaintiff must plead the specific statements and who published the statements in order to state a
cognizable defamation claim. Defendants may also be asserting plaintiff failed to plead that any
of the statements were false as is required.
―A claim for defamation requires proof of a false and unprivileged publication that
exposes the plaintiff ̳to hatred, contempt, ridicule, or obloquy, or which causes him to be
shunned or avoided, or which has a tendency to injure him in his occupation.‘‖ McGarry v.
University of San Diego, 154 Cal. App. 4th 97, 112 (2007) (quoting Cal. Civ. Code § 45). A
complaint is insufficient when it ―does not allege either the specific words or the substance of
statements‖ alleged to be defamatory. Lipman v. Brisbane Elementary Sch. Dist., 55 Cal. 2d 224,
235 (1961) abrogated on other grounds as noted in Brown v. Kelly Broad. Co., 48 Cal. 3d 711,
753 n.37 (1989). The defining feature of a defamation claim is a statement of fact that is
―provably false,‖ and ― ̳rhetorical hyperbole,‘ ̳vigorous epithet[s],‘ ̳lusty and imaginative
expression[s] of . . . contempt,‘ and language used ̳in a loose, figurative sense‘ have all been
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accorded constitutional protection.‖ Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1048
(2008) (quoting Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1401 (1999)). As one California
court has noted:
It is sometimes said to be a requirement, and it certainly is the
common practice, to plead the exact words or the picture or other
defamatory matter. The chief reason appears to be that the court
must determine, as a question of law, whether the defamatory
matter is on its face or capable of the defamatory meaning
attributed to it by the innuendo. Hence, the complaint should set
the matter out verbatim, either in the body or as an attached exhibit.
Comstock v. Aber, 212 Cal. App. 4th 931, 948 (2012) (quoting 5 Witkin, Cal. Procedure (5th ed.
2008) Pleading, § 739, p. 159).
As noted above, however, plaintiff alleges two distinct sets of statements as being
defamatory. With respect to the statements published in the Merced Sun Star, plaintiff asserts
defendant Macias, Hale, and Sanchez ―continue to defame him by accusing him of being an
accomplice to murder and stating the only reason he was not held to answer is because of the
Attorney General‘s mistakes.‖ (Doc. No. 1 at 18.) In his complaint plaintiff sets out either
specific defamatory words or the substance of statements which are purportedly defamatory. See
Lipman, 55 Cal. 2d at 235. This is sufficient to state a claim for defamation. Plaintiff need not be
able to allege which of the three named individual defendants gave unattributed statements to a
newspaper reporter, or which defendant (admittedly unknown by plaintiff) made the allegedly
defamatory statement following the preliminary hearing, prior to the conducting of discovery.
Plaintiff has adequately alleged that the statements in question were false. Therefore, defendants‘
motion to dismiss plaintiff‘s defamation claims will be denied.
7. California Civil Code § 47
Defendants also seeks dismissal of ―the state claims except for the malicious prosecution
claim‖ pursuant to California Civil Code § 47.10 They contend that ―it is fair for defendants to
presume despite the lack of clarity, the alleged slanderous statements were made while defendants
were marshaling evidence and investigating a murder,‖ and are therefore privileged. Opposing
10
Defendants clarified at the hearing on the pending motion that they seek dismissal of only the
defamation claim on the basis of Civil Code § 47.
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dismissal, plaintiff argues that the specific statements made following his preliminary hearing
were not made in furtherance of the investigation and are therefore not protected.
California Civil Code § 47(b) provides that a ―privileged publication or broadcast is one
made . . . [i]n any . . . judicial proceeding . . . .
11
As explained by the California Supreme Court,
the litigation privilege found in Civil Code § 47(b) provides a ―publication or broadcast‖ made as
part of a ―judicial proceeding‖ is absolutely privileged. Action Apartment Ass’n, Inc. v. City of
Santa Monica, 41 Cal. 4th 1232, 1241 (2007). ―The usual formulation is that the privilege applies
to any communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that has some
connection or logical relation to the action.‖ Id. The privilege applies not just to statements made
during judicial proceedings, but ―may extend to steps taken prior thereto, or afterwards.‖ Id.
(quoting Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006)). The privilege ―derives from
common law principles establishing a defense to the tort of defamation,‖ and was ―primarily
designed to limit an individual‘s potential liability for defamation.‖ Id. (quoting Oren Royal
Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1163 (1986)).
Defendants‘ argument is unavailing. The statements at issue occurred after the court
declined to hold plaintiff to answer following his preliminary hearing at which time there was a
judicial finding that probable cause was lacking. Therefore, the alleged defamatory statements
cannot be said to have been made to ―achieve the objects of the litigation,‖ since the criminal
prosecution had already concluded in plaintiff‘s favor. Defendants‘ alleged defamatory
11 In their reply, defendants argue that certain paragraphs of the complaint ―do not identify any of
the alleged defamatory statements (whatever they may be) were made with malice, implicating
Cal. Civil Code section 47(c).‖ (Doc. No. 24 at 16.) The implicated privilege—commonly
denominated the ―common interest‖ privilege—requires the defendant to first demonstrate the
statement in question was ―made on a privileged occasion,‖ after which the burden becomes
plaintiff‘s to show malice. Taus v. Loftus, 40 Cal. 4th 683, 721 (2007). The California Supreme
Court has noted, ―the common-interest privilege has proved to be a source of vexation and
bafflement to courts and commentators alike.‖ Lundquist v. Reusser, 7 Cal. 4th 1193, 1204 n.10
(1994). Defendants do not explain how the communications in question were ―made on a
privileged occasion.‖ Accordingly, dismissal is not appropriate on this ground. Similarly,
defendant do not explain how the statements at issue could be construed as having been made ―in
the proper discharge of an official duty‖ under § 47(a). Therefore, that provision provides no
basis for dismissal.
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statements are therefore not protected by the litigation privilege and are not subject to dismissal.
8. Plaintiff’s Bane Act Claim
According to defendants, plaintiff‘s Bane Act claim, brought pursuant to California Civil
Code § 52.1 should be dismissed because his complaint does not allege the existence of threats,
intimidation, or coercion separate and apart from the inherent coercion in his alleged false
imprisonment. Additionally, defendants contend that plaintiff‘s claims under § 52.1 against
Merced County must be dismissed because no allegations specific to the county are alleged in the
complaint, though defendant also says it ―believed the County‘s liability was vicarious only.‖
(Doc. No. 6 at 27.) According to plaintiff, the coercion in an intentional deprivation of one‘s
liberty without probable cause is sufficient to state a claim under § 52.1.12
Another judge of this court has recently recognized the split among the District Courts of
California concerning what is required to state a cognizable Bane Act claim:
The Bane Act, codified in the California Civil Code, authorizes
individual civil actions for damages and injunctive relief by
individuals whose federal or state rights have been interfered with
by threats, intimidation, or coercion. Cal. Civ. Code § 52.1.
Section 52.1 ―does not extend to all ordinary tort actions because its
provisions are limited to threats, intimidation, or coercion that
interferes with a constitutional or statutory right.‖ Venegas v.
County of Los Angeles, 32 Cal.4th 820, 843 (2004). After a recent
California Court of Appeal decision, Shoyoye v. County of Los
Angeles, 203 Cal. App. 4th 947 (2012), federal district courts have
reached different results in trying to answer the question whether a
plaintiff bringing a Bane Act claim must introduce independent
evidence showing threats, intimidation, or coercion, in addition to
showing a constitutional violation. See Davis v. City of San Jose, –
––F.Supp.3d ––––, No. 14–2035, 2014 WL 4772668, *6 (N.D. Cal.
Sept.24, 2014) (collecting cases). One group has concluded
intentional conduct or excessive force claims suffice alone. Id. The
other has held ―something more than an inherently coercive
violation is required to state a claim under the Bane Act.‖ Id. At
least in the Fourth Amendment context, this court has sided with
the first camp. See Johnson v. Shasta County, No. 14–01338, 2015
WL 75245, at *13 (E.D. Cal. Jan. 6, 2015) (― ̳Where Fourth
Amendment unreasonable seizure or excessive force claims are
raised and intentional conduct is at issue, there is no need for a
plaintiff to allege a showing of coercion independent from the
coercion inherent in the seizure or use of force.‘‖ (quoting Dillman
v. Tuolumne County, No. 1300404, 2013 WL 1907379, at *21 (E.D.
Cal. May 7, 2013)).
12
Plaintiff does not separately discuss any § 52.1 claims against Merced County.
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Akey v. Placer County, No. 2:14-cv-02402-KJM-KJN, 2015 WL 1291436 (E.D. Cal. Mar. 20,
2015). The order in Akey was issued shortly after the California Court of Appeals concluded that
where there is an ―allegedly unlawful arrest but no alleged coercion beyond the coercion inherent
in any arrest . . . [the] wrongful arrest or detention, without more, does not satisfy both elements
of section 52.1.‖ Allen v. City of Sacramento, 234 Cal. App. 4th 41, 69 (2015). Since the
decision in Allen, two California District Judges have come to a conclusion contrary to that
reached by the court in Allen while specifically acknowledging its holding. See Adamson v. City
of San Francisco, No. 13-cv-05233-DMR, 2015 WL 5467744, at *9 (N.D. Cal. Sept. 17, 2015)
(―[T]his court has previously held, consistent with the weight of authority in this district, that a
section 52.1 claim ̳does not require threats, coercion, or intimidation independent from the
threats, coercion, or intimidation inherent in the alleged constitutional or statutory violation.‘‖);
McKibben v. McMahon, No. EDCV 14-02171 (JGB), 2015 WL 10382396, at *4 (C.D. Cal. Apr.
17, 2015) (distinguishing Allen). ―In the absence of a controlling California Supreme Court
decision, [a federal court] must predict how the California Supreme Court would decide the issue,
using intermediate appellate court decisions, statutes, and decisions from other jurisdictions as
interpretive aids.‖ Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir.
2003).
Here, plaintiff has alleged defendants ―caused the initiation of a malicious criminal
prosecution against Plaintiff in violation of his First13 and Fourth Amendment rights under the
United States Constitution and corresponding rights under the California Constitution.‖ (Doc.
No. 1 at 20–21.) Until the California Supreme Court or the Ninth Circuit Court of Appeals holds
otherwise, the undersigned will follow the weight of authority among District Courts in California
and find that there is no need for a plaintiff to allege coercion independent from the coercion
13 Plaintiff does not allege First Amendment violations by the defendants anywhere in his
complaint. (See Doc. No. 1 at 19 (alleging causes of action under 42 U.S.C. § 1983 for violations
of the Fourth and Fourteenth Amendments).) Nor does this cause of action explain how
defendants violated his First Amendment rights in instituting a malicious prosecution against him
for murder. Plaintiff may well have made a typographical error in including reference to the First
Amendment. Accordingly, the court will ignore it.
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inherent in the seizure of the plaintiff without probable cause to state such a claim. Because
California imposes vicarious liability on public entities by statute (Cal. Gov. Code § 815.2), it
appears plaintiff may state a claim against the County of Merced for the individual defendants‘
Bane Act violations as well.
9. Plaintiff’s Claim for Negligent Infliction of Emotional Distress
Defendants argue there is no independent tort of negligent infliction of emotional distress
under California law and that such a claim may only arise in either a direct victim or bystander
setting. Further, defendants argue ―[t]he facts as alleged do not support the claim.‖ (Doc. No. 6
at 27.) Plaintiff first asserted in his opposition to the pending motion that he was simply alleging
negligence, not negligent infliction of emotional distress. However, at the hearing on the pending
motion counsel for plaintiff changed course and contended this was a separate cause of action
alleging negligent infliction of emotional distress, as approved of in Martinez v. City of Los
Angeles, 141 F.3d 1373 (9th Cir. 1998), rather than simply a negligence claim.
Defendants are correct that there is no independent tort of negligent infliction of emotional
distress under California law. Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (―We
have repeatedly recognized that ̳[t]he negligent causing of emotional distress is not an
independent tort, but the tort of negligence.‘‖) (quoting Marlene F. v. Affiliated Psychiatric
Medical Clinic, Inc., 48 Cal. 3d 583, 588 (1989))). Negligent infliction of emotional distress is
instead a subset of negligence that extends the ability to recover damages to indirect victims who,
while not suffering physical injury as the result of a tortfeasor‘s acts, nonetheless suffer severe
emotional distress. See, e.g., Dillon v. Legg, 68 Cal. 2d 728, 747–48 (1968) (allowing mother to
pursue damages for emotional trauma resulting from witnessing the death of her child).
However, when emotional distress accompanies physical injury, negligent infliction of emotional
distress is not the appropriate cause of action for seeking recovery of the resulting damages.
Rather, when a plaintiff is physically injured and suffers emotional distress as a result, damages
stemming from the emotional distress are treated as a ―parasitic item‖ to be recovered through a
claim of ordinary negligence. Thing v. La Chusa, 48 Cal. 3d 644, 651 (1989); see also Summers
v. Delta Airlines, Inc., 805 F. Supp. 2d 874, 887 (N.D. Cal. 2011) (―Under California law, it is
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well-settled that in ordinary negligence actions for physical injury, recovery for emotional distress
caused by that injury is available as an item of parasitic damages.‖) (quotation omitted).
A negligent infliction of emotional distress claim as a vehicle for recovery when one is not
directly injured is available only in limited circumstances. Under the ―direct victim‖ theory, a
plaintiff may recover damages for serious emotional distress—absent a physical injury—if the
distress results from ―a breach of duty owed the plaintiff that is ̳assumed by the defendant or
imposed on the defendant as a matter of law, or that arises out of a relationship between the
two.‘‖ Burgess, 2 Cal. 4th at 1073 (quoting Marlene F., 48 Cal. 3d at 590). ―To recover damages
for emotional distress, absent physical injury, in a ̳bystander case‘ the plaintiff must be: (1)
Closely related to the injury victim; (2) Present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the victim; and (3) Suffer emotional
distress as a result, beyond that which would occur in a disinterested witness.‖ Megargee ex rel.
Lopez v. Wittman, No. CVF 06-0684 AWI-LJO, 2006 WL 2988945, at *16 (E.D. Cal. Oct. 17,
2006) (citing Martin By and Through Martin v. United States, 984 F.2d 1033, 1037 (9th Cir.
1992)).
Plaintiff alleges he was directly—as opposed to indirectly—injured by the illegal activity
of defendants. The complaint alleges that negligently inflicted emotional distress because they
―were negligent and their negligence was a substantial factor in causing Plaintiff to suffer serious
emotional distress.‖ (Doc. No. 1 at 22.) Insofar as these allegations reflect an attempt to fit into
either the ―direct victim‖ or ―bystander‖ theories outline above, they are wholly insufficient.
Plaintiff does not state a cause of action for negligent infliction of emotional distress.14
10. Plaintiff’s Intentional Infliction of Emotional Distress Claim
According to defendants, plaintiff failed to allege he was the victim of extreme and
outrageous conduct sufficient to sustain a claim for intentional infliction of emotional distress.
Plaintiff responds that defendants‘ arrest of plaintiff ―based on misrepresentations in an arrest
14 This does not mean plaintiff may not introduce at trial evidence of his emotional distress and
attempt to recover damages for it through his other tort claims against defendants. As the
Martinez case, upon which plaintiff relies, suggests, claims for emotional distress damages are
simply derivative of the cognizable, underlying claims.
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warrant,‖ combined with the withholding of evidence from the prosecuting Deputy Attorney
General and ―wantonly refus[ing] to investigate persons who had confessed to committing the
crime . . . is extreme and outrageous conduct.‖ (Doc. No. 21 at 23.)
The tort of intentional infliction of emotional distress has three elements: ―(1) extreme
and outrageous conduct by the defendant with the intention of causing, or reckless disregard of
the probability of causing, emotional distress; (2) the plaintiff‘s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional distress by the
defendant‘s outrageous conduct.‖ Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). Extreme and
outrageous conduct is described as being conduct which is ―intentional or reckless and which is
outside the bounds of decency.‖ Christensen v. Superior Court of Los Angeles County, 54 Cal. 3d
868, 904 (1991). The California Supreme Court has noted that threats of harm or death can meet
this criteria, as can harassing e-mails or well-pled claims of sexual harassment. Id. at 1051 (citing
cases). Because there is no bright line rule for when conduct qualifies as outrageous, it is usually
a question of fact for a jury to decide. Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 671–
72 (2013). A court may dismiss such claims as a matter of law if the conduct alleged is
insufficiently outrageous, particularly where the conduct alleged amounts to ―mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.‖ Hughes, 46 Cal. 4th at
1051 (quotations and citations omitted).
Here, the conduct alleged by plaintiff in his complaint goes far beyond ―mere insults‖ or
indignities. Taking those allegations as true, the individual defendants knowingly misrepresented
information in order to arrest him and charge him with murder, apparently in order to exact
political retribution against plaintiff‘s father, a local politician who had been critical of the
Sherriff‘s Department. A jury could certainly find this behavior was extreme and outrageous and
beyond the bounds of decency. Accordingly, defendants‘ motion to dismiss this claim will be
denied
11. Defendant’s Immunity Under Government Code § 821.6
The individual defendants argue that California Government Code § 821.6 immunizes
them from liability for malicious prosecution and negligent and intentional infliction of emotional
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distress. Plaintiff responds that he is not pursuing a state law malicious prosecution because
defendants are immune, but contends that § 821.6 does not immunize the defendants from
liability under 42 U.S.C. § 1983 for malicious prosecution.15 Further, plaintiff asserts § 821.6
does not immunize defendants from claims of false arrest or false imprisonment, and therefore
should also not immunize defendants from his claims of negligence and intentional infliction of
emotional distress. In their reply, defendants suggest they are actually arguing that § 821.6 also
provides them immunity from plaintiff‘s defamation claims in addition to those other claims.
―A public employee is not liable for injury caused by his instituting or prosecuting any
judicial or administrative proceeding within the scope of his employment, even if he acts
maliciously and without probable cause.‖ Cal. Gov. Code § 821.6. ―Although Government Code
section 821.6 has primarily been applied to immunize prosecuting attorneys and other similar
individuals, this section is not restricted to legally trained personnel but applies to all employees
of a public entity.‖ Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426, 1436 (1988).
―Neither is the section ̳limited to suits for damages for malicious prosecution, although that is a
principal use of the statute.‘‖ Id. (quoting Kayfetz v. State of California, 156 Cal. App. 3d 491,
497 (1984)). This section has been held to apply to peace officers. Johnson v. City of Pacifica, 4
Cal. App. 3d 82, 86–87 (1970). However, § 821.6 does not provide immunity for false arrest,
false imprisonment, or a claim for arrest without probable cause brought under California Civil
Code § 52.1. See Gilan v. City of San Marino, 147 Cal. App. 4th 1033, 1050–51 (2007). Finally,
the Ninth Circuit has held that while § 821.6 immunizes state employees from malicious
prosecution claims, it does not affect false arrest/false imprisonment claims or claims that are
―derivative‖ of them. Cousins v. Lockyer, 568 F.3d 1063, 1071–72 (9th Cir. 2009). But see
15
This appears to be correct. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (―[S]tate
immunity law does not govern § 1983 claims.‖) More importantly, defendants did not move to
dismiss plaintiff‘s § 1983 claims on the basis of state law immunity. It is true that in their reply
(Doc. No. 24 at 17), defendants suggest that plaintiff may not state a § 1983 cause of action due
to his failure to allege an equal protection violation. See Cline v. Brusett, 661 F.2d 108, 112 (9th
Cir. 1981); Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). However, defendants allude to
this argument only in their reply and it therefore has not been briefed by the parties. Accordingly,
to the extent defendants seek dismissal of plaintiff‘s § 1983 malicious prosecution claim on this
grounds improperly raised only in reply, their motion will be denied.
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Bocanegra v. Jakubowski, 241 Cal. App. 4th 848, 854 (2015).
Above, the court has already concluded that plaintiff has failed to state a separate cause of
action for negligent infliction of emotional distress.16 Plaintiff‘s intentional infliction of
emotional distress claims are clearly derivative of his false imprisonment claim. (See Doc. No.
22 at ¶ 81) (―Defendants, in the conduct set forth above, engage in outrageous behaviors. By
such conduct, Defendants intended to cause Plaintiff emotional distress, or engaged in conduct
with reckless disregard of the probability of causing Plaintiff emotional distress or both.‖).
Defendants assert in their reply that they are immune under § 821.6 to plaintiff‘s
defamation claims. According to defendants, ―[t]he scope of the immunity [granted by the
statute] ̳is dependent not on when the acts occurred, but whether they are causally connected to
the investigation and prosecution.‘‖ (Doc. No. 24 at 16) (quoting County of Los Angeles v.
Superior Court of Los Angeles County, 181 Cal. App. 4th 218, 230 (2009).) Here, plaintiff‘s
defamation claims are based on the post-hearing statements of the individual defendants, after
both the investigation and prosecution of the criminal charges were concluded. Such statements
cannot be described as being ―part of the investigation and prosecution process‖ and, therefore,
do not fall under the immunity conferred by § 821.6. Accordingly, this aspect of defendants‘
motion to dismiss the claims will be denied.
12. County Immunity
Defendants also argue that to the extent claims are dismissed against the individual
plaintiffs or they are held immune, the claims must also be dismissed against Merced County
because plaintiff is proceeding on a vicarious liability theory. Plaintiff offers no opposition. As
set forth above, the court finds only that plaintiff failed to state a cognizable claim for negligent
infliction of emotional distress. That claim is leveled by plaintiff only against the individual
16 To the extent plaintiff is seeking to present alternate theories of false imprisonment—one
intentional, one negligent—the court will not assess the merit of each of those theories now since
defendants do not contest that plaintiff has alleged a cognizable false imprisonment claim. See
Westways Word Travel v. AMR Corp., 182 F. Supp. 2d 952, 957 (C.D. Cal. 2001) (―[I]t would be
burdensome to have the district court ̳prune‘ a complaint at the pleading stage by making a
determination with regard to each allegation within a cause of action that is legally cognizable
when viewed in its totality.‖) (quoting Bernheim v. Litt, 79 F.3d 318, 316 (2d Cir. 1996)).
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defendants. There defendants‘ motion to dismiss that claim as to the defendant County will be
denied as unnecessary.
13. Plaintiff’s Claims for Punitive Damages Against the Individual Defendants
Defendants argue that plaintiff has failed to plead sufficient facts to support a claim for
punitive damages against the individual defendants, presumably with respect to any of his causes
of action. Plaintiff argues the factual allegations suggesting defendants targeted him for
prosecution in order to exact political retribution against his father are sufficient to sustain a
punitive damages claim because they demonstrate malice and that defendants acted in conscious
disregard of plaintiff‘s constitutional rights.
―The standard for punitive damages under § 1983 mirrors the standard for punitive
damages under common law tort cases.‖ Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005).
―[M]alicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort
standards for assessing punitive damages and foster ̳deterrence and punishment over and above
that provided by compensatory awards.‘‖ Id. (quoting Smith v. Wade, 461 U.S. 30, 54 (1983)).
Here, if the facts as alleged in plaintiff‘s complain are proven, a reasonable jury could find the
individual defendants‘ behavior to be malicious, wanton, or oppressive. Accordingly, defendants
are not entitled to dismissal of plaintiff‘s punitive damages claim.
14. Defendants’ Request for a More Definite Statement
Defendants alternatively move for a more definite statement of plaintiff‘s claims under
Rule 12(e), arguing that ―the Complaint lacks any factual specificity with respect to the alleged
wrongful conduct of each of the individual defendants.‖ Plaintiff did not respond to this
argument in his opposition.
Rule 12 states a party may move for a more definite statement if the pleading is ―so vague
and ambiguous that the party cannot reasonably prepare a response.‖ Fed. R. Civ. P. 12(e). In so
moving, the party ―must point out the defects complained of and the details desired.‖ Id. Such
motions are ―not favored by the courts since pleadings in federal courts are only required to fairly
notify the opposing party of the nature of the claim.‖ Griffin v. Cedar Fair, L.P., 817 F. Supp. 2d
1152, 1154 (N.D. Cal. 2011) (quoting Resolution Trust Corp. v. Dean, 854 F. Supp. 626, 629 (D.
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Ariz. 1994)). Finally, motions for a more definite statement ―should not be granted unless the
defendant cannot frame a responsive pleading.‖ Famolare, Inc. v. Edison Bros. Stores, Inc., 525
F. Supp. 940, 949 (E.D. Cal. 1981).
Here, defendants‘ only concrete complaint about the vagueness of plaintiff‘s complaint is
that it generically refers to ―defendants‖ on occasion, rather than specifying which of the
individual defendants is alleged to have acted. However, plaintiff has included significant factual
detail in his complaint and those allegations are more than sufficient to put defendants on notice
of the claims and actions being alleged. Defendants‘ motion for a more definite statement will
therefore be denied.
IV. Conclusion
For all of the reasons set forth above, defendants‘ motion to dismiss (Doc. No. 6) is
granted in part and denied in part as follows:
1. The motion to dismiss plaintiff‘s punitive damages claim against Merced County
is granted;
2. The motion to dismiss due to plaintiff‘s failure to allege his claims with
sufficiently particularity is denied;
3. The motion to dismiss Merced County due to plaintiff‘s failure to allege a statutory
basis for his false arrest and imprisonment causes of action is granted with leave to
amend and is denied as to plaintiff‘s cause of action brought pursuant to California
Civil Code § 52.1;
4. The motion to dismiss due to plaintiff‘s failure to timely file an administrative
claim with Merced County is denied;
5. The motion to dismiss due to plaintiff‘s failure to present an administrative claim
to Merced County with respect to his defamation cause of action is denied;
6. The motion to dismiss due to plaintiff‘s failure to state a defamation cause of
action against the individual defendants is denied;
7. The motion to dismiss the defamation cause of action pursuant to Civil Code § 47
is denied;
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8. The motion to dismiss plaintiff‘s California Civil Code § 52.1 cause of action due
to his failure to allege a threat, intimidation, or coercion separate and independent
of the constitutional violation is denied;
9. The motion to dismiss plaintiff‘s negligent infliction of emotional distress cause of
action for failure to state a claim is granted;
10. The motion to dismiss plaintiff‘s intentional infliction of emotional distress cause
of action for failure to state a claim is denied;
11. The motion to dismiss plaintiff‘s state law tort claims pursuant to Government
Code § 821.6 is denied;
12. The motion to dismiss any of plaintiff‘s claims against Merced County which are
premised on the vicarious liability of the individual defendants is denied;
13. The motion to dismiss due to plaintiff‘s failure to state a claim for punitive
damages against the individual defendants‘ is denied; and
14. The motion for a more definite statement is denied.
As to the dismissed claims identified above, plaintiff is granted leave to file an amended
complaint within twenty-one days of service of this order.17
IT IS SO ORDERED.
Dated: June 13, 2016
UNITED STATES DISTRICT JUDGE
17 Plaintiff is advised that the court cannot refer to a prior pleading in order to make plaintiff's
amended complaint complete. Local Rule 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),
overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Once an
amended complaint is filed, the original pleading no longer serves any function in the case.
Finally, an amended complaint must bear the docket number assigned to this case and be labeled
―Amended Complaint.‖
Case 1:16-cv-00142-DAD-SKO Document 31 Filed 06/13/16 Page 29 of 29 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_15-cv-01435/USCOURTS-caed-1_15-cv-01435-0/pdf.json | [
[
"Goose Pond AG, Inc.",
"Defendant"
],
[
"Hancock Natural Resources Group, Inc.",
"Defendant"
],
[
"Danielle Harris",
"Defendant"
],
[
"Kern Lerdo Nuts, Inc.",
"Plaintiff"
],
[
"Dhillon R. Singh",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DHILLON R. SINGH and KERN LERDO
NUTS, Inc.,
Plaintiffs,
v.
HANCOCK NATURAL RESOURCES
GROUP, INC.; DANIELLE HARRIS;
GOOSE POND AG, INC. DOES 1-50,
Defendants.
Case No. 1:15-CV-01435-LJO-JLT
MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANTS’ UNOPPOSED
MOTIONS TO DISMISS.
(Docs. 8,13)
Plaintiffs Dhillon R. Singh (“Singh”) and Kern Lerdo Nuts, Inc. (“Lerdo”) (collectively,
“Plaintiffs”) brought this action against Defendants Hancock Natural Resources Group, Inc.
(“HNRG”), Danielle Harris (“Harris”) (collectively, “HNRG Defendants”), Goose Pond AG, Inc.
(“Goose Pond”), and Does 1-50, inclusive (collectively, “Defendants”). Doc. 1. The action seeks to
invoke this Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332 to adjudicate various state law
claims arising from negotiations surrounding a potential real estate purchase that occurred from May
to August of 2015. Id. The HNRG Defendants and Goose Pond have both moved to dismiss
Case 1:15-cv-01435-LJO-JLT Document 21 Filed 03/03/16 Page 1 of 6
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2
Plaintiffs’ Complaint. Docs. 8, 13. As Plaintiffs failed to file timely responses to either Motion (see
Doc. 18), the Court has determined that the matters are appropriate for resolution without oral
argument. See Local Rule 230(g). Having considered the record in this case, the parties’ briefing,
and the relevant law, the Court GRANTS Defendants’ Motions and DISMISSES the Complaint.
BACKGROUND
I. Factual Allegations
The following factual allegations are drawn from the Complaint (“Compl”). Doc. 1.
Lerdo is a Delaware corporation doing business in the County of Kern. Compl. ¶ 2. Singh is
the Director and President of Lerdo. Id.
Goose Pond is a Florida corporation and the owner of certain property in Kern County
which includes an almond farm (“the Ranch”). Id. ¶¶ 2,4-5.
HNRG, described in the Complaint as a Massachusetts corporation, was listed as the point
of contact in a brochure advertising sale of the Ranch. Id. ¶ 6-7. Harris is an employee of HNRG.
Id. ¶7.
On or around May 20, 2015, Plaintiffs began to take steps towards purchasing the Ranch.
Id. ¶5. Plaintiffs made an offer, which was initially accepted, but the deal eventually fell apart
during further negotiations. Id. ¶¶ 7-39. Plaintiffs were “completely perplexed and caught off
guard” as a result. Id. ¶ 31.
II. Procedural Background
Plaintiffs filed the original complaint with this Court on September 22, 2015. Doc. 1. The
complaint contains the following causes of action against all Defendants: (1) breach of contract; (2)
an action to quiet title; (3) fraud in the inducement; (4) conspiracy to commit fraud; (5) breach of
the implied covenant of good faith and fair dealing; (6) unfair and deceptive business act practices;
(7) a request for declaratory relief; and (8) a request for injunctive relief. Id., at 7-17. Plaintiffs
assert that the Court has diversity jurisdiction, under 28 U.S.C. § 1332, because Singh is a resident
of California, Lerdo is incorporated in Delaware, Goose Pond is a Florida corporation, HNRG is a
Massachusetts corporation, and because the amount in controversy exceeds the sum of $75,000
exclusive of interest and costs. Id., at 2.
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The HNRG Defendants filed a Motion to Dismiss on January 5, 2016, and Goose Pond filed
a separate Motion to Dismiss on January 29, 2016. Docs. 8, 13. Both Motions seek dismissal of the
Complaint for lack of subject matter jurisdiction. Id. The Motions are unopposed, (Doc. 18; see
also Local Rule 230(c)), and the matter is now ripe for review.
LEGAL STANDARD
Federal courts are “courts of limited jurisdiction.” Gunn v. Minton, ___ U.S. ___, 133 S.Ct.
1059, 1064 (2013). They possess only the power authorized by Article III of the United States
Constitution and statutes enacted by Congress pursuant thereto. See Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541-42 (1986). Relevant here, Article III, Section 2 of the Constitution
authorizes jurisdiction for district courts to hear suits between citizens of different states. The
requirements for diversity jurisdiction are set forth in 28 U.S.C. § 1332, which provides that
“district courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs and is between (1) citizens of
different states; (2) citizens of a state and citizens or subjects of a foreign state.”
“To invoke a federal court’s subject matter jurisdiction, a plaintiff needs to provide only a
‘short and plain statement of the grounds for the court’s jurisdiction,’” as required by Rule 8(a)(1),
and “must allege facts, not mere legal conclusions, in compliance with the pleading standards
established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009).” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A party may raise a
challenge to the court’s exercise of jurisdiction over the subject matter of an action under Federal
Rule of Civil Procedure 12(b)(1). Faced with a Rule 12(b)(1) motion, a party seeking to establish
diversity jurisdiction bears the burden of proving the existence of such jurisdiction. See Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000). In a “facial” attack, the challenger accepts as true the plaintiff’s allegations
but “asserts that the allegations contained in the complaint are insufficient on their face to invoke
federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a
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“factual” attack, the challenger “contests the truth of the plaintiff’s factual allegations, usually by
introducing evidence outside the pleadings.” Leite, 749 F.3d at 1121. “In such circumstances, a
court may examine extrinsic evidence without converting the motion to one for summary judgment,
and there is no presumption of the truthfulness of the Plaintiff's allegations.” Safe Air for Everyone,
373 F.3d at 1039. Moreover, the plaintiff “bears the burden of proving by a preponderance of the
evidence that each of the requirements for subject-matter jurisdiction has been met.” Leite, 749
F.3d at 1121.
DISCUSSION
There are two requirements for the proper exercise of this Court’s diversity jurisdiction.
Naffe v. Frey, 789 F.3d 1030, 1039 (9th Cir. 2015) (citing 28 U.S.C. § 1332(a)(1)). The first
requirement is “complete diversity” of the parties, meaning that “no plaintiff can be a citizen of the
same state as any of the defendants.” Majestic Ins. Co. v. Allianz Intern. Ins. Co., 133 F.Supp.2d
1218 (1220) (N.D. Cal. 2001) (citing Strawbridge v. Curtiss, 7 U.S. 267 (1806)). The second
requirement is that the amount in controversy exceeds $75,000. Naffe, 789 F.3d at 1039.
At issue in this case is the first requirement—complete diversity. Plaintiffs allege that there
is complete diversity in this case because Plaintiff Lerdo is a Delaware corporation, Defendant
Goose Pond is a Florida Corporation, and Defendant HNRG is a Massachusetts corporation.
Compl. ¶ 2. However, HNRG asserts that it is a Delaware corporation, and that this case therefore
lacks complete diversity amongst the parties. Doc. 9, at 3. This argument is echoed in Goose Pond’s
brief. Doc. 13, at 2. In support of its Motion, the HNRG Defendants have included the sworn
declaration of Donna H. Frankel, General Counsel of HNRG, averring that HNRG is a corporation
incorporated in Delaware, and is registered with the Delaware Department of State, Division of
Corporations, under file number 2460438. Doc. 10 ¶ 3. Attached to the Ms. Frankel’s declaration is
a true and correct copy of the Delaware Secretary of State’s certification that HNRG is duly
incorporated under the laws of the state of Delaware, which states, in relevant part:
I, Jeffrey W. Bullock, Secretary of State of the State of Delaware, do hereby certify
“Hancock Natural Resources Group, Inc.” is duly incorporated under the laws of the state of
Delaware and is in good standing and has a legal corporate existence so far as the records of
this office show, as of the twenty-eighth day of December, A.D. 2015.
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Doc. 10, Ex. A. Goose Pond likewise included copies of Ms. Frankel’s declaration and HNRG’s
Delaware certification with its Motion. Doc. 14. Accordingly, the Motions are a factual attack, as
they “rel[y] on extrinsic evidence and [do] not assert lack of subject matter jurisdiction solely on
the basis of the pleadings,” and the Court may review this extrinsic evidence to determine whether
it has jurisdiction, without converting the motion into one for summary judgment. See Safe Air for
Everyone, 373 F.3d at 1039.
Although the complete diversity requirement—that no plaintiff may be from the same state
as any defendant— is not explicitly mandated in either the Constitution, or the diversity jurisdiction
statute, it has long been upheld by the Supreme Court. Exxon Mobil Corp. v. Allapattah Svcs., Inc.,
545 U.S. 546, 553 (2005) (“[T]he presence in the action of a single plaintiff from the same States as
a single defendant deprives the district court of original diversity jurisdiction over the entire
action.”). Under the diversity jurisdiction statute, “a corporation shall be deemed to be a citizen of
any State by which it has been incorporated and of the State where it has its principal place of
business.” 28 U.S.C. § 1332(c)(1)(emphasis added). Here, the HNRG Defendants have proffered
extrinsic evidence that HNRG is a Delaware corporation. Doc. 10, Ex A. Thus, Plaintiffs must now
“furnish affidavits or other evidence necessary to satisfy [their] burden of establishing subject
matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)
(citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). However, as noted above,
Plaintiffs have failed to do so, as they did not file any opposition and have not provided any
evidence that could show that HNRG is not a citizen of Delaware. See Local Rule 230(c)
(“Opposition, if any, to the granting of the motion shall be in writing and shall be filed and served
not less than fourteen (14) days preceding the noticed (or continued) hearing date.”). Plaintiff’s
Complaint merely alleges that HNRG is incorporated in Massachusetts, without setting forth any
basis for this allegation. Compl. ¶ 2. Plaintiffs’ unsupported allegation, which the Court need not
presume as truthful, is contradicted by HNRG’s evidence, which demonstrates that HNRG is
incorporated in Delaware, and is therefore a citizen of Delaware for purposes of diversity
jurisdiction. See Safe Air for Everyone, 373 F.3d at 1039. Plaintiff has offered no other grounds for
the Court’s subject matter jurisdiction over this case. See Compl. Based on the evidence before it,
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the Court concludes that because Plaintiff Lerdo and Defendant HNRG are both citizens of
Delaware, this case lacks complete diversity, and dismissal of the complaint is appropriate. See Fed.
R. Civ. P. 12(h)(3); Exxon Mobil, 545 U.S. at 553. Moreover, amendment of the Complaint would
be futile, as Plaintiffs’ allegations against HNRG, the non-diverse Defendant, form a substantial
component of the Complaint. See Miller v. Rykoff-Sexton, 845 F.2d 209, 214 (9th Cir. 1988).
Therefore, the Court finds that the Complaint should be dismissed with prejudice, without leave to
amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citing Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995)) (a district court may deny leave to amend if it “determines that the
pleading could not possibly be cured by the allegation of other facts”).
CONCLUSION AND ORDER
The Court has determined, supra, that Plaintiffs have not met the requirements for the
proper exercise of diversity jurisdiction. Accordingly, the Court will GRANT the HNRG
Defendants’ Motion to Dismiss (Doc. 8) and Goose Pond’s Motion to Dismiss (Doc. 13). Plaintiffs’
Complaint is DISMISSED WITH PREJUDICE and the Clerk of the Court is directed to CLOSE
this case.
IT IS SO ORDERED.
Dated: March 3, 2016 /s/ Lawrence J. O’Neill
UNITED STATES DISTRICT JUDGE
Case 1:15-cv-01435-LJO-JLT Document 21 Filed 03/03/16 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-14-07055/USCOURTS-ca10-14-07055-0/pdf.json | [
[
"Darnell Jamar Nash",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARNELL JAMAR NASH,
Defendant - Appellant.
No. 14-7055
(D.C. Nos. 6:02-CR-00075-RAW-1 &
6:06-CV-00051-RAW)
(E.D. Okla.)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, BALDOCK, and MORITZ, Circuit Judges.
Darnell Jamar Nash is a federal prisoner proceeding pro se. He pled guilty to
drug conspiracy in violation of 21 U.S.C. § 846 and was sentenced in 2004 to
22 years’ imprisonment pursuant to the terms of his plea agreement. On appeal, this
court held that Nash’s plea agreement was knowing and voluntary. We therefore
enforced his appellate waiver and dismissed his appeal. United States v. Nash, 120 F.
App’x 770, 772 (10th Cir. 2005). Nash then filed a motion to vacate under 28 U.S.C.
§ 2255 raising several claims, including ineffective assistance of counsel. The
district court denied that motion, and this court denied a certificate of appealability
* This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
January 13, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 14-7055 Document: 01019368886 Date Filed: 01/13/2015 Page: 1
- 2 -
(“COA”). United States v. Nash, 229 F. App’x 700, 701-702 (10th Cir. 2007). Nash
now seeks a COA to appeal the district court’s denial in part and dismissal in part of
his motion filed almost seven years later, in January 2014, under Fed. R. Civ. P.
60(b)(4) and (6). We deny a COA and dismiss this appeal.
Nash must obtain a COA to pursue an appeal. See United States v. Harper,
545 F.3d 1230, 1233 (10th Cir. 2008) (holding federal prisoner must obtain a COA to
appeal district court’s dismissal of unauthorized second or successive motion under
§ 2255 for lack of jurisdiction); see also Spitznas v. Boone, 464 F.3d 1213, 1218
(10th Cir. 2006) (holding a COA is required to appeal the denial of a Rule 60(b)
motion in a habeas case filed under 28 U.S.C. § 2254). Because the district court’s
ruling rested on procedural grounds, Nash must show both “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000); see also Dulworth v. Jones, 496 F.3d 1133, 1138 (10th Cir. 2007)
(holding two-part COA standard applies in Rule 60(b) context). We liberally
construe Nash’s pro se application for a COA. See Hall v. Scott, 292 F.3d 1264,
1266 (10th Cir. 2002).
Under Rule 60(b)(4) or (6), the district court can relieve a party from a final
judgment if “the judgment is void” or for “any other reason that justifies relief.” The
grant or denial of a Rule 60(b) motion is within the district court’s discretion. See
Appellate Case: 14-7055 Document: 01019368886 Date Filed: 01/13/2015 Page: 2
- 3 -
Davis v. Kan. Dept. of Corr., 507 F.3d 1246, 1248 (10th Cir. 2007). The district
court held that a portion of Nash’s motion was properly asserted under Rule 60(b)
because he challenged a procedural ruling by the district court on his § 2255 motion
that precluded a merits determination on his claims. See Spitznas, 464 F.3d at 1216
(holding that a motion raising that kind of claim should not be treated as a second or
successive habeas application). The district court denied relief on the ground that its
judgment in Nash’s § 2255 proceeding had been effectively upheld by this court
when we denied him a COA. In his current application for a COA, Nash continues to
argue that the district court’s procedural ruling in his § 2255 proceeding was in error.
But he does not demonstrate that jurists of reason would debate whether the district
court abused its discretion in denying his Rule 60(b) motion. See Dulworth, 496 F.3d
at 1137-38.
The district court also construed a portion of Nash’s Rule 60(b) motion as an
unauthorized second or successive § 2255 motion because he asserted a claim of
ineffective assistance of counsel. It dismissed that portion of the motion for lack of
jurisdiction. See United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 2006)
(holding a Rule 60(b) motion is a second or successive § 2255 motion if it challenges
the defendant’s conviction or sentence rather than a procedural error in the previous
§ 2255 proceeding). In his application for a COA, Nash maintains that the district
court misconstrued his Rule 60(b) motion because his sole claim was directed to the
district court’s procedural ruling that precluded a merits determination in his § 2255
Appellate Case: 14-7055 Document: 01019368886 Date Filed: 01/13/2015 Page: 3
- 4 -
proceeding. But in his Rule 60(b) motion, Nash asserted grounds for claiming
ineffective assistance of counsel, and the district court only dismissed the motion to
the extent that it raised that substantive claim. Nash does not demonstrate that
reasonable jurists would debate the correctness of the district court’s ruling.
Accordingly, we deny Nash’s application for a COA and dismiss the appeal.
We grant his motion for leave to proceed on appeal without prepayment of costs and
fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
Appellate Case: 14-7055 Document: 01019368886 Date Filed: 01/13/2015 Page: 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-09-07383/USCOURTS-ca4-09-07383-0/pdf.json | [
[
"James Gooslin",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES GOOSLIN, a/k/a Jimmy,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T.
Copenhaver, Jr., District Judge. (2:05-cr-00180; 2:08-cv-00001)
Submitted: March 22, 2010 Decided: May 6, 2010
Before MICHAEL,* DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Gooslin, Appellant Pro Se. Erik S. Goes, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
* Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Appeal: 09-7383 Doc: 10 Filed: 05/06/2010 Pg: 1 of 2
2
PER CURIAM:
James Gooslin seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Gooslin has
not made the requisite showing. Accordingly, we deny Gooslin’s
motion for a copy of the Government’s motion in limine, deny a
certificate of appealability, and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
Appeal: 09-7383 Doc: 10 Filed: 05/06/2010 Pg: 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_13-cv-00098/USCOURTS-almd-2_13-cv-00098-0/pdf.json | [
[
"Capitol Hill Health Care",
"Defendant"
],
[
"Ellis Franklin",
"Plaintiff"
]
] | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ELLIS FRANKLIN, )
)
Plaintiff, )
)
v. ) CASE NO. 2:13cv98-MEF
)
CAPITOL HILL HEALTH CARE, )
)
Defendant. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
On February 14, 2013, Plaintiff filed a Complaint (Doc. 1) and a Motion to Proceed
in forma pauperis(Doc. 2). On February 20, 2013, the District Judge entered an Order (Doc.
4) referring this matter to the undersigned Magistrate Judge “for all pretrial proceedings and
entry of any orders or recommendations as may be appropriate.” On March 7, 2013, the
Court granted Plaintiff’s Motion to Proceed in forma pauperis, and service of process was
stayed pending an obligatory review pursuant to 28 U.S.C. § 1915 by the Court. (Doc. 5).
During the mandatory § 1915 review, the Court determined that Plaintiff “asserts no federal
claim in his Complaint, nor does he set forth the relief he is requesting from this Court.
Further, Plaintiff fails to specifically allege anywrongdoing byDefendant.” Order of March
21, 2013 (Doc. 7) at 2. As such, the Court ordered Plaintiff to
file an amended complaint which complies with Rule 8(a) of the Federal Rules
of Civil Procedure and sets forth the following: which of Plaintiff’s
constitutional and/or statutorily protected rights were violated by Defendant’s
actions; Defendant’s specific actions resulting in such alleged violations; the
relevant dates of all such actions; and the Plaintiff’s requested relief.
Case 2:13-cv-00098-MEF-WC Document 8 Filed 04/23/13 Page 1 of 3
Id. at 2-3. The Court clearly ordered Plaintiff to file his amended complaint “on or before
April 4th, 2013,” and cautioned Plaintiff that “his failure to file an amended complaint, as
ordered, or to otherwise abide by this or any other order of the Court, may result in the
undersigned’s recommendation that this matter be dismissed for failure to state a claim
on which relief may be granted.” Id. at 3 (emphasis in original).
As of the present date, Plaintiff has failed to file an amended complaint or any
response to the order issued on March 21, 2013. Consequently, the Court concludes this case
is due to be dismissed.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case
be dismissed without prejudice for Plaintiff’s failure to state a claim on which relief may be
granted and his failure to prosecute this action and comply with the orders of this court. It
is further
ORDERED that on or before May 7, 2013, Plaintiff may file objections to the
Recommendation. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation to which a party objects. Frivolous, conclusive or
general objections will not be considered by the District Court. The parties are advised that
this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge’s Recommendation shall bar the party from a de novo determination by the
District Court of issues covered in the Recommendation and shall bar the party from
2
Case 2:13-cv-00098-MEF-WC Document 8 Filed 04/23/13 Page 2 of 3
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Sec., Inc., 667 F.2d 33
(11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981).
Done this 23rd day of April, 2013.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
3
Case 2:13-cv-00098-MEF-WC Document 8 Filed 04/23/13 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-93-03216/USCOURTS-caDC-93-03216-0/pdf.json | [
[
"Donnie Strothers",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | <<The pagination in this PDF may not match the actual pagination in the printed slip opinion>>
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 1995 Decided March 5, 1996
No. 93-3216
UNITED STATES OF AMERICA,
APPELLEE
v.
DONNIE STROTHERS,
APPELLANT
No. 94-3004
UNITED STATES OF AMERICA,
APPELLEE
v.
WILLIAM HOYLE,
APPELLANT
On Appeal from the United States District Court
for the District of Columbia
(92-cr00285)
Richard Seligman, appointed by the court, for appellant Donnie Strothers.
Sebastian K.D. Graber, appointed by the court, for appellant William Hoyle.
Richard J. Nelson, Assistant United States Attorney, argued the cause for the appellee. On brief
were Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,
Assistant United States Attorneys.
Before: EDWARDS, Chief Judge; SENTELLE and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge SENTELLE.
KAREN LECRAFT HENDERSON, Circuit Judge: In April and May 1993, appellants Donnie
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 1 of 16
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1The appellants' two codefendants were acquitted on all counts charged against them.
Strothers and William Hoyle were tried, along with two codefendants, under a nine count indictment
alleging various drug distribution offenses. Each appellant was convicted of one count of conspiring
to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841 and one
count of distributing more than five grams of cocaine base in violation of 21 U.S.C. § 841. In
addition, Hoyle was convicted of three counts of distributing cocaine base on specific dates in
violation of 21 U.S.C. § 841.1 As a consequence, on December 17, 1993 the district court sentenced
Strothersto concurrent prison terms of life and 40 years and Hoyle to concurrent prison terms oflife,
240 months and 480 months. The appellants challenge both their convictions and their sentences on
various grounds. For the reasons set out below, we vacate each appellant's conspiracy conviction,
and his consequent life sentence, because it wasreturned after a coercive deadlock instruction to the
jury. We affirm the appellants' other convictions and the sentences thereunder.
Each appellant first challenges his convictions on the ground the trial judge delivered a
coercive "anti-deadlock" instruction. On May 19, 1993, after a lengthy trial and eight days of
deliberation, the jury foreman notified the court in writing that the jurors had reached unanimous
verdicts with respect to all defendants on all counts of the indictment except count one, which
charged all four defendants with conspiring to distribute fifty grams or more of cocaine base. The
note explained that the jury could not reach a unanimous verdict on the conspiracycount with respect
to two defendants. The trial judge, rejecting the defendants' suggestion that he take a partial verdict,
recalled the jurorsto the courtroom and delivered an "anti-deadlock" instruction. We agree with the
appellants that the instruction given impermissibly departed from the language of this circuit's
established deadlock charge and therefore vacate the appellants' conspiracy convictions under count
one because the convictions most probably were affected by the defective instruction.
In United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971), "in the exercise of our
supervisory power over the administration of the law in this circuit," we formally adopted the
American Bar Association (ABA) deadlock instruction "as the vehicle for informing jurors of their
responsibilities" in an apparent deadlock situation. 449 F.2d at 1187. The ABA instruction has since
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 2 of 16
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2We are further troubled here by the court's murky admonition to "[r]emember that the nature
of the value of your service as jurors in this case will lie on the quality of the verdict that you
return."
been included as the "Alternative A" deadlock charge in the model jury instructions for the District
of Columbia. Criminal Jury Instructions for the District of Columbia, Instruction 2.91, Alternative
A (4th ed.). In United States v. Berroa, 46 F.3d 1195 (D.C. Cir. 1995), we affirmed our adherence
to the ABA instruction and expressly held that the "Alternative B" model deadlock instruction, used
by the district judge there, "departed from the anti-deadlock instruction approved by this court in
Thomas" and "was presumptively coercive." 46 F.3d at 1198. We specifically noted that Alternative
B omitted an "important element of the ABA standard," namely " "that no juror should surrender his
honest conviction asto the weight or effect ofthe evidence solely because ofthe opinion of hisfellow
jurors, or for the mere purpose of returning a verdict.' " Id. at 1197 (quoting United States v. Spann,
997 F.2d 1513 (D.C. Cir. 1993)). Here too the trial judge inexplicably elected to use Alternative B,
which lacksthe required admonition against surrendering one's honest conviction, in violation of our
repeated directive to use the ABA deadlock instruction.2 Thus, we conclude that the trial judge erred
in giving the Alternative B instruction and that the jurors' subsequent deliberation and verdicts were
tainted by that error. Accordingly, we vacate the appellants' conspiracy convictions under count one
because the verdicts on that count appear to have resulted from post-deadlock deliberation.
Our decision to vacate the appellants' conspiracy convictions does not affect their other
convictions. We know from the jury note that the jurors had reached a unanimous verdict on all but
the conspiracy counts before receiving the anti-deadlock instruction. Contrary to the appellants'
contention, we should not presume without any corroborative evidence that, after listening to the
instruction, the jurors reconsidered or changed any of their votes on those countsto the prejudice of
the appellants. Although we find that the instruction could have coerced the jurors holding out for
acquittal on count one into voting to convict on that count, thereby breaking the deadlock and
producing a unanimous verdict, we can identify no basis in reason or fact for presuming that the
instruction could have influenced a jury already declared to be unanimous on the other counts to
change its collective mind on those counts.
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 3 of 16
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3
In light of the judge's limiting instruction we need not decide whether, as the Eleventh and
Seventh Circuits have concluded, evidence of pre-majority acts can be admitted as substantive
evidence of a conspiracy without a limiting instruction. See United States v. Cruz, 805 F.2d 1464,
1476 (11th Cir. 1986), cert. denied, 481 U.S. 1006 (1987); United States v. Doerr, 886 F.2d
944, 969 (7th Cir. 1989).
Next, Strothers argues that his conspiracy and distribution convictions should be vacated
because the indictment alleged and the district court improperly admitted evidence of criminal acts
he committed before he turned eighteen, effectively permitting the government to prosecute him for
offenses he committed as a minor in violation of the FederalJuvenile Delinquency Act (FJDA). See
18 U.S.C. §§ 5031-5042. We disagree. As the Fourth Circuit has observed, the FJDA "does not,
of course, prevent an adult criminal defendant from being tried as an adult simply because he first
became embroiled in the conspiracy with which he is charged while still a minor." The jury is
"entitled to assess [testimony of a defendant's post-majority participation in conspiracy] in light of
other evidence showing that [the defendant] had known ofthe [criminal]scheme since itsinception."
United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985). In
Spoone the Fourth Circuit upheld the appellant's conviction, concluding "[t]here is simply no reason
to believe that the jury convicted [the appellant] of conspiracy solely because of his pre-eighteenth
birthday activity, for the trial court repeatedly instructed the jury that it could not consider the
juvenile acts as evidence of [the appellant's] guilt." Id.; cf. United States v. Maddox, 944 F.2d 1223,
1233 (6th Cir.) (holding defendant "cannot be held liable for pre-eighteen conduct, but such conduct
can, of course, be relevant to put post-eighteen actions in proper context"), cert. denied, 502 U.S.
950 (1991). Here too, the trial judge circumscribed the jurors' use of the challenged evidence,
instructing them it was admitted "for the limited purpose of enabling [them] to decide when, if ever,
[Strothers] became a member ofthe conspiracy charged in count one." 5/10/93 Tr. 28. Accordingly,
we find no error in its admission.3
Next, both appellants contend that the judge erred in admitting audiotapes of alleged drug
transactions, along with a transcript thereof, because neither the tapes nor the transcript was properly
authenticated and, in any event, the jury should have been permitted to read the transcript only while
listening to the corresponding tapes. We find no reversible error in the admission of the tapes or the
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 4 of 16
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4The judge instructed the jurors:
While I am admitting [the transcript] into evidence, I want to inform you that the
best evidence of the conversation, as recorded, is what you actually hear over the
earphones, and to the extent that you may hear something over the earphones
which is at variance with something that appears in the transcript, then what you
hear over the earphones should control.
transcript.
We first conclude that the tapes were properly admitted. "The admission of recordings into
evidence is committed to the sound discretion of the trial court, so long as the tapes are authentic,
accurate and trustworthy." United States v. Dale, 991 F.2d 819, 842 (D.C. Cir.), cert. denied, 114
S. Ct. 286 (1993). Tapes may be authenticated "by testimony describing the process or system that
created the tape" or "by testimony from partiesto the conversation affirming that the tapes contained
an accurate record of what was said." Id. at 843. In this case, a police witness described the taping
and copying process and testified that the copies admitted at trial accurately represented what had
occurred. In addition, police officers and informants who were parties to the recorded conversations
themselvestestified to the tapes' accuracy. Accordingly, we find no abuse of discretion in the court's
admission of the tapes themselves. The admission of the transcript is another matter.
In United States v. Slade, 627 F.2d 293 (D.C. Cir.), cert. denied, 449 U.S. 1034 (1980), this
court affirmed the district court's decision to allow the jury to use government-prepared transcripts
when listening to tapes during trial. We explained that "the jury was made aware that the transcripts
offered only the government's interpretations" and the record in the case "provide[d] substantial
support for the relative accuracy of the transcripts." Id. at 303. In Slade, however, the transcripts
were used only as listening aids during trial. In this case, the transcript was actually admitted as
evidence, creating a risk that the jurors may have relied on the government's version of the
conversations, set out in the transcript, without simultaneously listening to the authenticated tapes
to verify the transcript's accuracy. For this reason we conclude that the district court erred in
admitting the transcript into evidence. Under the circumstances, however, it was not reversible error.
The jurors were on notice that the accuracy of the transcript was disputed and were expressly
admonished by the court to accept what they heard on the tapes over what they read in the transcript.4
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 5 of 16
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4/14/93 Tr. 160.
5We note that the appellants offered no transcript of their own to rebut the government's
transcription of the tapes.
6The district court explained:
I think it's a collateral fishing expedition beyond allowing you to inquire on voir
dire, in advance of his testifying before the jury, to determine whether or not he is,
indeed, competent to give the testimony that he gives. And I don't see anything in
any of the medical records that I have been shown which is so arcane and so
complex as to be incapable of comprehension by you in preparing a
cross-examination of him.
4/13/93 Tr. 57-58.
We may presume the jurorsfollowed the instruction, United States v. Brown, 16 F.3d 423, 430 (D.C.
Cir.), cert. denied, 115 S. Ct. 257 (1994), and conclude that the transcript's admission was therefore
harmless.5
Next, the appellants assert that the district court violated their rights to confront witnesses
and to due process by restricting their ability to impeach Anthony Pratt, a government witness with
a history ofmental health problems. Specifically, they allege the court erred in refusing to furnish the
defense with records of Pratt's mental health or to permit a psychiatric examination by a defense
expert and by insisting that, if the defense cross-examined Pratt on his hospitalization for depression,
the government be permitted to question him on redirect about the reason for his illness. We find no
error in the court's rulings. The court acted within its discretion in finding Pratt competent to testify
following his voir dire. See United States v. Day, 591 F.2d 861, 880-81 (D.C. Cir. 1978); United
States v. Heinlein, 490 F.2d 725, 730 (D.C. Cir. 1973). Nor was it an abuse of discretion to seal
Pratt's medical records or to deny the request for a psychiatric examination.6 The court at no time
prohibited the appellantsfrom impeaching Pratt'sreliability by cross-examining him about his mental
health but simply ruled that if they did the government could put Pratt's mental health into context
on redirect. The appellants themselves then made the strategic choice to limit their examination of
Pratt. They cannot now transform that choice into judicial error. Cf. United States v. Tarantino, 846
F.2d 1384, 1407 (D.C. Cir.) (holding that forcing defendant to make tactical decision whether to
cross-examine witness and thereby open door to prejudicial contextual information did not violate
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 6 of 16
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7
In any event, the appellants never explained to the district court, or to this court on appeal,
how these rulings prejudiced their defense.
8The appellants contend they were entitled to an evidentiary hearing to dispute the findings.
Such a hearing, however, is within the sentencing court's discretion. Fed. R. Crim. P. 32(c)(1)
("At the sentencing hearing, the court must afford counsel for the defendant and for the
Government an opportunity to comment on the probation officer's determinations and on other
matters relating to the appropriate sentence, and must rule on any unresolved objections to the
presentence report. The court may, in its discretion, permit the parties to introduce testimony or
other evidence on the objections."). We find no abuse of discretion here as "[t]here is no
indication that there was "any dispute over facts material to his sentence that the court could not
resolve without a full evidentiary hearing.' " See United States v. Pologruto, 914 F.2d 67, 69 (5th
Cir. 1990) (quoting United States v. Mueller, 902 F.2d 336, 347 (5th Cir. 1990)).
9Our reversal of the conspiracy conviction under count one does not affect the sentencing
court's attribution to each appellant of the total quantity of drugs distributed during his
participation in the conspiracy. See United States v. Saro, 24 F.3d 283, 286 D.C. Cir. 1994)
("[A] sentencing court may include even acquitted offenses as "relevant conduct'; a judge may
well determine that the government has proved an offense by a preponderance of the evidence
(the applicable standard for sentencing) even though the jury concluded that the offense had not
been proved beyond a reasonable doubt.") (citing United States v. Boney, 977 F.2d 624, 635-36
(D.C. Cir. 1992)).
confrontation clause or constitute abuse of discretion), cert. denied, 488 U.S. 840 (1988).7
We next conclude that the appellants' sentences, other than under count one, should be
affirmed. The appellants assert, primarily, that the district court failed to make particularized findings
to support its finding that Strothers and Hoyle should be charged with distribution of, respectively,
52.53 and 25.56 kilograms of cocaine base. See United States v. Anderson, 39 F.3d 331, 351 (D.C.
Cir. 1994) (vacating co-conspirators' sentences and remanding "for particularized factual findings
regarding the amount of cocaine attributable to each appellant's participation in the [conspiracy]"),
cert. denied, 116 S. Ct. 542 (1995). We disagree. The presentence report sets out the amounts
distributed by the drug conspiracy during the period each appellant was a participant. The report
further notes that during his participation each appellant was a full partner, sharing costs and profits
equally with each other and a third conspirator, Lazaro Santa Cruz, and is therefore chargeable with
all of the drugs then sold. The district court adopted the report's findings and we may review them
only for clear error. United States v. Clarke, 24 F.3d 257, 270 (D.C. Cir. 1994).8 Because they are
supported by the trial evidence, they are not clearly erroneous.9 Nor was it clear error to increase
each appellant's offense level by three points based on his managerial role in the conspiracy. See
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 7 of 16
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10In light of our conclusions on his drug quantity and managerial role, we need not address
Strothers's challenge to the presentence report's inclusion of pre-minority acts in his relevant
conduct which does not affect his offense level or the length of his sentence.
11In so concluding, we decline to address certain of the appellants' challenges which we have
reviewed and found to be without merit.
U.S.S.G. § 3B1.1(b) (providing for three-point increase for "a manager or supervisor" of "criminal
activity involv[ing] five or more participants."). The trial evidence showed that the appellants,
together with Santa Cruz, directed and profited from numerous drug sales carried out by subordinate
"runners."10
For the foregoing reasons, we reverse and vacate the appellants' conspiracy convictions and
sentences under count one of the indictment. We affirm the appellants' convictions and sentences
under the other counts.11
So ordered.
SENTELLE, Circuit Judge, concurring: I concur without reservation in everything expressed
in the majority opinion. I write separately only to express my concern with the existing state of circuit
law with respect to the anti-deadlock charge, which I agree with the majority, compels us to reverse
as to Count I. I have abiding reservations about the past use of the "supervisory" power of this and
other circuits to engage in the establishment of rules of law going far beyond anything I find
compelled or even permissible in existing jurisprudence. In order to articulate those misgivings, I will
review briefly what I see as the state of the law in the area of the anti-deadlock charge.
In Allen v. United States, 164 U.S. 492 (1896), the Supreme Court considered a jury
instruction that stated, in substance:
[I]n a large proportion of cases absolute certainty could not be expected; that
although the verdict must be the verdict of each individual juror, and not a mere
acquiescence in the conclusion of his fellows, yet they should examine the question
submitted with candor and with a proper regard and deference to the opinions of each
other; that it was their duty to decide the case if they could conscientiously do so;
that they should listen, with a disposition to be convinced, to each other's arguments;
that, ifmuch the larger number were for conviction, a dissenting jurorshould consider
whether his doubt was a reasonable one which made no impression upon the minds
of so many men, equally honest, equally intelligent with himself. If, upon the other
hand, the majority was for acquittal, the minority ought to ask themselves whether
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 8 of 16
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they might not reasonably doubt the correctness of a judgment which was not
concurred in by the majority.
Id. at 501. The Court concluded that there was no error in these instructions. It reasoned that the
object of the jury system is to secure unanimity by a comparison of views and by arguments among
the jurors and it therefore "cannot be the law that each juror should not listen with deference to the
arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a
different view of the case from what he himself does ... or that he should close his ears to the
arguments of men who are equally honest and intelligent as himself." Id. at 501-02.
Ninety-two years later the Court reaffirmed its reasoning in Lowenfield v. Phelps, 484 U.S.
231, 237-38 (1988), where it stated: "The continuing validity of this Court's observations in Allen
are beyond dispute, and they apply with even greater force in a case such as this, where the charge
given, in contrast to the so-called "traditional Allen charge,' does not speak specifically to the
minority jurors."
Between the Allen decision and the Lowenfield decision the Court approved a contextual
analysisto determine if a charge given a deadlocked jury is coercive. In Jenkins v. United States, 380
U.S. 445, 446 (1965) (per curiam), the Court reviewed a judge's statement to the jury that "[y]ou
have got to reach a decision in this case." Although the Court found that statement coercive and
reversed the circuit court's affirmance of the underlying conviction, it did so noting that it was
considering whether the statement "in its context and under all the circumstances of the case ... had
the coercive effect attributed to it." Id. Most circuits have applied that analysis in deciding Allen
charge appeals. See, e.g., United States v. Ajiboye, 961 F.2d 892, 893 (9th Cir. 1992) (noting Ninth
Circuit's approach is to determine the propriety of the charge in its context and to allow an Allen
charge in the absence of a showing that it was otherwise coercive); United States v. RodriquezMejia, 20 F.3d 1090, 1091 (10th Cir.) (noting that Tenth Circuit has traditionally urged caution in
the use of the Allen charge but it reviewsinstructions on case-by-case basisto determine whether the
instruction had a coercive effect), cert. denied, 115 S. Ct. 640 (1994).
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 9 of 16
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1There are numerous articles criticizing the use of the Allen charge. See, e.g., Karen Pelletier
O'Sullivan, Comment, Deadlocked Juries and the Allen Charge, 37 Maine L. Rev. 167 (1985);
Paul Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be
Permanently Defused?, 43 Mo. L. Rev. 613 (1978); Comment, On Instructing Deadlocked
Juries, 78 Yale L.J. 100 (1968); Note, Due Process, Judicial Economy and the Hung Jury: A
Reexamination of the Allen Charge, 53 Va. L. Rev. 123 (1967); Note, Deadlocked Juries and
Dynamite: A Critical Look at the "Allen Charge" 31 U. Chi. L. Rev. 386 (1964).
The Court's decision in Allen has been the subject of a great deal of criticism from scholars1
and courts of appeal alike. Three circuitsthe Third, the Seventh, and this circuithave abolished
the use ofthe traditionalAllen charge in favor of a more neutral version. United States v. Brown, 411
F.2d 930, 933-34 (7th Cir. 1969), cert. denied, 396 U.S. 1017 (1970); United States v. Fioravanti,
412 F.2d 407, 419-20 (3d Cir.), cert. denied, 396 U.S. 837 (1969); United States v. Thomas, 449
F.2d 1177, 1187 (D.C. Cir. 1971) (in banc). The majority of circuits allow an Allen charge in the
absence of a showing that it was otherwise coercive, and all have upheld some formof a supplemental
jury charge.
The Fourth Circuit has adopted a modified instruction, but has not completely barred the
Allen charge. See United States v. Sawyers, 423 F.2d 1335, 1342 n.7, 1343 (4th Cir. 1970)
(approving a modified Allen charge and recommending ABA standard). Most courts, however, have
rejected the claimthat the Allen charge isinherentlycoercive and unconstitutionalbut have urged trial
courtsto avoid substantive departuresfrom anti-deadlock instruction formulationsthat have already
received judicial approval. See United States v. Fermin, 32 F.3d 674, 680 (2d Cir. 1994) (observing
that court has consistently approved the use of an Allen charge "so long as such a charge is carefully
crafted to avoid coercing jurors"), cert. denied, 115 S. Ct. 1145 (1995); Potter v. United States, 691
F.2d 1275, 1276-80 (8th Cir. 1982). The First Circuit specifically declined to adopt the ABA
standard because it does not wish to restrict trial judges as there are "occasions when it may be
appropriate to remind the jurors of their duties in somewhat stronger terms than in the initial
instruction." United States v. Flannery, 451 F.2d 880, 883-84 (1st Cir. 1971); see also United
States v. Bailey, 480 F.2d 518, 518 (5th Cir. 1973) (in banc) (affirming prior decisions approving the
Allen charge and thereby rejecting panel's suggestion to abolish Allen in the Fifth Circuit); United
States v. Chigbo, 38 F.3d 543, 544-46 (11th Cir. 1994) (noting that the Eleventh Circuit allows the
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use of Allen charges), cert. denied, 116 S. Ct. 92 (1995).
Finally, several courts have specifically acknowledged the continuing validity of Allen and
have refused to join other circuits in holding such an instruction to be error per se. Hoosic v.
Fedders, 916 F.2d 356, 357 (6thCir. 1990) (noting that "the Supreme Court has not overruled Allen,
nor hasit called into question the propriety of that decision"); United States v. Cortez, 935 F.2d 135,
140-41 (8th Cir. 1991) (noting that the court stated more than two decades earlier in Hodges v.
United States, 408 F.2d 543, 552 (8th Cir. 1969), that the Supreme Court has not disavowed Allen,
and the Eighth Circuit was not going to resolve the issue to the contrary), cert. denied, 502 U.S.
1062 (1992); United States v. Beattie, 613 F.2d 762, 764 (9th Cir.) (noting that it had in countless
cases approved an Allen charge and refusing to join other circuits in holding such an instruction to
be error per se), cert. denied, 446 U.S. 982 (1980). I find this point quite compelling and do not
understand how this circuit has simply ignored the fact that the Supreme Court has not overruled
Allen.
In banning the use of the traditional Allen charge, all three circuits professed to be exercising
their supervisory power with the ultimate goal of uniformity and reduced appeals. In United States
v. Fioravanti, 412 F.2d at 414-20, the Third Circuit strongly criticized the use of the Allen charge,
but did not reverse the conviction being challenged. Although the court did not re-examine the
constitutional question, it noted: "Our refusal to reverse this conviction should not be taken to mean
that we have tacitly approved of the Charge or that we intend, in the future, to ponder each case on
its particular facts. On the contrary, we know from the experience in this circuit and from an
examination of the experience in others that the use of the Allen Charge is an invitation for perennial
appellate review." Id. at 419-20 (footnotes omitted). The court then instructed lower courts to use
a prescribed charge and threatened that any variation fromthis charge may well be deemed reversible
error. Moreover, the court proclaimed that it was articulating this prospective rule "[a]s a
prophylactic device to eliminate future vexation...." Id. at 420.
Similarly, the Seventh Circuit prospectively adopted an anti-deadlock instruction. United
States v. Silvern, 484 F.2d 879 (7th Cir. 1973) (in banc); United States v. Brown, 411 F.2d at 933-
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34. First, in United States v. Brown the court concluded that "it would serve the interests of justice
to require under our supervisory power" that district courts within the circuit comply with the ABA
standard when faced with deadlocked juries in the future. 411 F.2d at 933-34. In a later decision,
United States v. Silvern, the court noted that although the Brown court's intention was to produce
uniform practices within the circuit, "it has not had that result." 484 F.2d at 882. Consequently, the
court exercised its supervisory power in the interest of judicial economy and uniformity, and
mandated that district courts follow the precise language of the ABA standard. This time, however,
the court threatened that if any deviation occurred, the resulting conviction would be reversed and
remanded for a new trial. Id. at 883 (citing Fioravanti, 412 F.2d at 420). The court gave this
directive even though it found the supplemental instruction to be proper under the circumstances.
In Thomas, 449 F.2d at 1186, this court decided that "the time ha[d] come to follow the path
[the Third and Seventh Circuits] have traveled and lay down the same mandate." We reversed a
conviction based on a guilty verdict returned after the district court told the deadlocked jury that it
was not going to declare a mistrial and thereby require a retrial of the case, referred to its substantial
backlog of work, and opined that to spend another day before another jury retrying this case did not
make sense. Id. at 1183. The court also instructed that a juror in the minority should re-examine his
position. Id. at 1180. We concluded that these comments created a substantial possibility of jury
coercion, and then went on to adopt prospectively the ABA standard. Id. at 1184-88.
In Thomas we asserted that our supervisory power was clear in order to predicate our
decision on "needs ofjudicial administration." 449 F.2d at 1187. I disagree. The supervisory power
of federal courtsis a concept that, while acknowledged, has uncertain origins and dimensions. It has
been the subject of much scholarly inquiry and debate. See, e.g., Sara Sun Beale, Reconsidering
Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the
Federal Courts, 84 Colum. L. Rev. 1433 (1984) ("Reconsidering Supervisory Power"); L. Douglas
Harris, Note, Supervisory Power in the United States Courts of Appeals, 63 Cornell L. Rev. 642
(1978) ("Intermediate Supervisory Power"); Comment, Judicially Required Rulemaking as Fourth
Amendment Policy: An Applied Analysis of the Supervisory Power of Federal Courts, 72 Nw. U.L.
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2
It is very difficult "to identify a statutory basis for the appellate courts' exercise of supervisory
authority to declare new procedural rules for the district courts in the course of adjudication of
individual cases." Reconsidering Supervisory Power, 84 Colum. L. Rev. at 1479. One
commentator suggests Congress enact statutory authority or promulgate an amendment to the
Federal Rules of Criminal (and Civil) Procedure expressly granting the courts of appeals the
authority to establish procedures for the district courts within their circuits. Id.
Rev. 595 (1978) ("Judicially Required Rulemaking"); Matthew E. Brady, Note, A Separation of
Powers Approach to the Supervisory Power of the Federal Courts, 34 Stan. L. Rev. 427 (1982)
("Separation of Powers"); Alfred Hill, The Bill of Rights and the Supervisory Power, 69 Colum. L.
Rev. 181 (1969) ("Bill of Rights"); Note, The Supervisory Power of the Federal Courts, 76 Harv.
L. Rev. 1656 (1963) ("Supervisory Power").
Supervisory power has been defined as the power to control the administration of justice.
McNabb v. United States, 318 U.S. 332, 341 (1943). Although the Supreme Court's supervisory
authority appears to be rooted in Article III of the Constitution and in the doctrine of the separation
of powers, the circuit courts'supervisory authority over the district courts has a much more nebulous
origin.2 The supervisory power of appellate courts is said to encompass a "general authority over the
administration of justice in the inferior federal courts; and has been regarded as a basis for
implementing constitutional values beyond the minimum requirements of the Constitution, or at least
affording a basis for their implementation on other than constitutional grounds." Bill of Rights, 69
Colum. L. Rev. at 182. Nevertheless, "[w]hatever its historical underpinnings, the exercise of the
supervisory power denotes a distinctive form ofjudicial lawmaking by the federal courts." Judicially
Required Rulemaking, 72 Nw. U.L. Rev. at 615. Courts have invoked this doctrine for a variety of
purposes, including to establish rules that are prospective in effect.
The abolishment of the Allen charge by three federal circuitsis a prime example of the use of
supervisory power as "a convenient tool with which to control trial judge discretion, enabling
appellate courts to overturn lower court decisions in the absence of reversible errors of law."
Intermediate Supervisory Power, 63 Cornell L. Rev. at 644 (footnote omitted). The ostensible goal
of each court was, in the interest of justice, to reduce the number of appeals and the "drain on
appellate resources" by promoting uniformity among trial judges. Thomas, 449 F.2d at 1184; see
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also Silvern, 484 F.2d at 882-83; Fioravanti, 412 F.2d at 420. These courts have claimed a
supervisory power to formulate rules of general applicability, even without constitutionally
impermissible conduct in the trial court. The Seventh and Third Circuits have done so even in the
absence of a finding of reversible error. See Silvern, 484 F.2d at 882-83; Fioravanti, 412 F.2d at
420. These rulings impose more rigorous standards than the minima imposed by the Constitution.
In my opinion, and as others have said before me, a "court of appeals is not "the court of
ultimate review' and its province as a court islimited to reversing district courts only when prejudicial
error is found." Burton v. United States, 483 F.2d 1182, 1189-90 (9th Cir.) (Byrne, J., dissenting)
(emphasis in original), rev'd on other grounds, 483 F.2d 1190 (9th Cir. 1973). Moreover, I believe
that the task of writing jury instructions is one that should be left to the discretion of the district
court. If the court misstates the law in an instruction and the effect is prejudicial, then the appellate
court will ordinarily find this reversible error. But our role as an appellate court is not to write a
manual of jury instructions or engage in "a priori processes of word fixation." Silvern, 484 F.2d at
884 (Pell,J., concurring in part and dissenting in part). I view such promulgation of prospective rules
as judicial legislating.
In particular, it is unclear to me where the courts of appeals derive the power to control the
practice ofthe district courts when it is not constitutionally mandated. In Thomas we carefully noted
that we were not holding the Allen charge was per se coercive; rather we insisted that the decision
was grounded in the notion ofjudicial economy. Yet Judge Robb noted in his dissent in that case that
it was improper for this court to abolish the Allen charge "[s]ince the Supreme Court has not
disavowed the charge it is not for us to do so." Thomas, 449 F.2d at 1189 (citing Hodges, 408 F.2d
at 552). Under the aegis of judicial administration, courts have exercised their supervisory power to
formulate rules extending procedural protections beyond constitutional requirements.
I am concerned that the supervisory power has been exercised not only as legislation in
derogation of the separation of powers, but also in disregard for the Supreme Court's holding in
Allen. How is it that circuit law can supersede the Supreme Court's holding? See United States v.
U.S. Gypsum Co., 550 F.2d 115, 131 n.4 (3d Cir. 1977) (Adams, J., concurring) (noting that in the
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Third Circuit, the Fioravanti charge supersedes a supplemental instruction approved in Allen), aff'd,
438 U.S. 422 (1978). I am mystified by the notion that a circuit "can lawfully announce that an
instruction to a jurywhich the SupremeCourt hasspecifically and squarely held is not reversible error
in federal criminal trials shall in the future constitute reversible error when given in such trials
conducted in [that circuit]." Silvern, 484 F.2d at 886 (Stevens, J., concurring). Had I been faced
with the issue de novo, I too would have declined "to exalt the recommendation of the Bar
Association over the decisions of the Supreme Court of the United States." Thomas, 449 F.2d at
1191- 92 (Robb, J., dissenting). The question Judge Robb asked twenty-four years ago remains
unanswered: when the district court has used the traditional Allen charge, will we presumptively
reverse on the basis that it did not use the ABA standard in derogation of the Supreme Court's
holding in Allen? Id. at 1192. I hope the answer is no.
Recent casesin this and other circuits, including United States v. Spann, 997 F.2d 1513 (D.C.
Cir. 1993), indicate that courts purporting to require strict adherence to the circuit's adopted form
will allow variances if they are in substantial conformity with the adopted charge. Id. at 1518-19
(upholding charge as "entirely unobjectionable" because, although it did not fully comply with
Thomas, it contained the elements of the ABA standard). But see United States v. Berroa, 46 F.3d
1193, 1197-98 (D.C. Cir. 1995) (reversing a supplemental jury instruction as presumptively coercive
because the district court departed from the anti-deadlock instruction approved in Thomas and
omitted an element of the ABA standard). See also United States v. Allen, 797 F.2d 1395, 1399-
1400 (7th Cir.) (holding variance between anti-deadlock instruction given and instruction approved
in Silvern was too insignificant to constitute plain error), cert. denied, 479 U.S. 856 (1986). This
practice demonstrates how perplexing the purported basis for abolishing the Allen charge really is:
courts are now faced with appeals alleging not that the trial court departed from the law as declared
by the Supreme Court or enacted by the Congress, but rather as recommended by the ABA and
ratified by the circuits.
This result was predicted by Judge Robb, who noted that "if in spite of our pleas for
conformity district judges have strayed from the litany approved by the Supreme Court I think it is
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reasonable to assume that they may also deviate from the formula prescribed by the Bar Association.
If they hear not the Supreme Court and this court neither will they be persuaded by the Bar
Association; and, contrary to the hopes of the majority, the "aberrations of the charge' which disturb
the majority will still occur." Thomas, 449 F.2d at 1192.
The ostensible rationale for prescribing specific languagereducing or eliminating appealsis
defeated by the courts' toleration of variations from the more neutral ABA charge. Just as was the
case with variances from the traditional Allen charge, judges give modified versions of the modified
charges. See, e.g., Silvern, 484 F.2d at 888 (noting district judge recognized he gave "a modified
charge, modified from the Allen charge," which was a violation of the court's direction in Brown).
I believe that we should permit such variations, as they allow the district judges to do their job with
the flexibility that task requires. More importantly, I am convinced that we do not wield legitimate
authority to require a particular form of language, neither compelled by the Constitution, nor
mandated by the Supreme Court.
USCA Case #93-3216 Document #185096 Filed: 03/05/1996 Page 16 of 16 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_09-cv-00244/USCOURTS-caed-2_09-cv-00244-1/pdf.json | [
[
"Michael Bennett",
"Plaintiff"
],
[
"City of Fairfield",
"Defendant"
],
[
"Paula Gulian",
"Defendant"
]
] | Bennett v. Gulian, et al. 09-244 JAM KJM 1
STIPULATION FOR DISMISSAL
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CASPER, MEADOWS,
SCHWARTZ & COOK
2121 N. California Blvd.,
Suite 1020
Walnut Creek, CA 94596
TEL: (925) 947-1147
FAX (925) 947-1131
Andrew C. Schwartz (State Bar No. 64578)
CASPER, MEADOWS, SCHWARTZ & COOK
A Professional Corporation
California Plaza
2121 North California Blvd., Suite 1020
Walnut Creek, California 94596
Telephone: (925) 947-1147
Facsimile: (925) 947-1131
Karen L. Snell (State Bar No. 100266)
Attorney at Law
102 Buena Vista Terrace
San Francisco, CA 94117
Telephone: (415) 225-7592
Facsimile: (415) 487-0748
[email protected]
Attorneys for Plaintiff
MICHAEL BENNETT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL BENNETT,
Plaintiff,
vs.
CITY OF FAIRFIELD, FAIRFIELD
DETECTIVE PAULA GULIAN, in her
individual capacity, and DOES 1 through
20,
Defendants.
Case No. 09-00244 JAM KJM
STIPULATION FOR DISMISSAL
(RULE 41(a)(1) F.R.C.P.)
TO THE HONORABLE JOHN A. MENDEZ OF THE UNITED STATES DISTRICT
COURT, EASTERN DISTRICT OF CALIFORNIA:
The parties hereto, by and through their respective counsel of record, stipulate and
agree that pursuant to the terms of the settlement reached between the parties’, this action
shall be voluntarily dismissed with prejudice, each party to bear its own costs and attorneys’
fees.
PDF created with pdfFactory trial version www.pdffactory.com
Case 2:09-cv-00244-JAM -KJM Document 18 Filed 05/19/10 Page 1 of 2
Bennett v. Gulian, et al. 09-244 JAM KJM 2
STIPULATION FOR DISMISSAL
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CASPER, MEADOWS,
SCHWARTZ & COOK
2121 N. California Blvd.,
Suite 1020
Walnut Creek, CA 94596
TEL: (925) 947-1147
FAX (925) 947-1131
IT IS SO STIPULATED.
Dated: May ___, 2010 /s/ “Andrew C. Schwartz”
Andrew C. Schwartz
CASPER, MEADOWS, SCHWARTZ & COOK
ATTORNEYS FOR PLAINTIFF
Dated: May ____, 2010 /s/
Kimberly Colwell, Esq.
MEYERS, NAVE, RIBACK, SILVER & WILSON
ATTORNEYS FOR DEFENDANTS
ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: May 18, 2010 /s/ John A. Mendez____________
HONORABLE JOHN A. MENDEZ
PDF created with pdfFactory trial version www.pdffactory.com
Case 2:09-cv-00244-JAM -KJM Document 18 Filed 05/19/10 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_22-cv-01125/USCOURTS-ared-4_22-cv-01125-2/pdf.json | [
[
"Adams",
"Defendant"
],
[
"Clayton Cantrell",
"Defendant"
],
[
"Paul Criswell",
"Plaintiff"
],
[
"Does",
"Defendant"
],
[
"Tredway",
"Defendant"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
PAUL CRISWELL
v. No. 4:22-cv-1125-DPM
TREDWAY, Officer, White
Hall Police Department;
CLAYTON CANTRELL,
Investigator, While Hall Police
Department; ADAMS, Owner,
Adams Towing/Wrecker/Recovery;
and DOES, "Mike" Owner, East End
Towing/Recovery; Officers, White
Hall Police Department
ORDER
PLAINTIFF
DEFENDANTS
1. Criswell's motion to reopen, Doc. 11, is granted for good
cause based on all the circumstances. Judgment, Doc. 7, vacated.
2. Criswell says his state case is still pending. The Court
therefore directs the Clerk to stay and administratively terminate this
case. Criswell must keep the Court informed about the status of his
state case. Status report due by 30 August 2024, 28 February 2025,
29 August 2025, and every six months thereafter until the state case is
resolved.
Case 4:22-cv-01125-DPM Document 12 Filed 03/07/24 Page 1 of 2
So Ordered.
I/
D .P. Marshall Jr.
United States District Judge
-2-
Case 4:22-cv-01125-DPM Document 12 Filed 03/07/24 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-00071/USCOURTS-caed-2_14-cv-00071-1/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Nadezhda Gunko",
"Plaintiff"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
NADEZHDA GUNKO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
No. 2:14-cv-00071-AC
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying her application for supplemental security income (“SSI”) under Title
XVI of the Social Security Act. Plaintiff’s motion for summary judgment and the
Commissioner’s cross-motion for summary judgment are pending. For the reasons discussed
below, the court will grant plaintiff’s motion for summary judgment in part and deny the
Commissioner’s cross-motion for summary judgment.
PROCEDURAL BACKGROUND
Plaintiff filed her application for SSI on October 30, 2009. Administrative Record (“AR”)
26. Plaintiff’s application was denied initially on February 10, 2010, and again upon
reconsideration on June 22, 2010. Id. On February 16, 2011, a hearing was held before
administrative law judge (“ALJ”) L. Kalei Fong. AR 26, 34. Plaintiff appeared with both a client
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advocate, Svetlana Kumansky, and a translator, Alina Chekrijeva, at the hearing. AR 26. In a
decision dated May 10, 2011, the ALJ found plaintiff became disabled on April 1, 2011, but that
she was not disabled prior to that date. AR 34.
The ALJ made the following findings (citations to 20 C.F.R. and Exhibits omitted):
1. The claimant has not engaged in substantial gainful activity
since the alleged onset date.
2. Since the alleged onset date of disability, March 1, 2009, the
claimant has had the following severe impairments: hypertension,
lumbar degenerative disc disease, vertigo, headaches, reduced
vision in the right eye, and obesity.
3. Since the alleged onset date of disability, March 1, 2009, the
claimant has not had an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.
4. After careful consideration of the entire record, the undersigned
finds that prior to April 1, 2011, the date the claimant become
disabled, the claimant had the residual functional capacity to
perform medium work as defined in 20 CFR 416.967(c) that
involved occasional balancing and that allowed for the avoidance of
climbing ladders and exposure to heights.
5. After careful consideration of the entire record, the undersigned
finds that beginning on April 1, 2011, the claimant has the residual
functional capacity to perform light work as defined in 20 CFR
416.967(b). She is able to lift/carry 20 pounds occasionally and 10
pounds frequently; stand/walk for less than two hours in an eighthour day with appropriate breaks; sit for less than two hours in an
eight-hour day with appropriate breaks; occasionally bend, crouch,
reach and grasp; and very occasionally kneel. She is to avoid
climbing ladders, balancing and being exposed to heights.
6. The claimant has no past relevant work.
7. Prior to the established disability onset date, the claimant was
an individual closely approaching advanced age. The claimant’s age
category has not changed since the established disability onset date.
8. The claimant is not able to communicate in English, and is
considered in the same way as an individual who is illiterate in
English.
9. Transferability of job skills is not an issue in this case because
the claimant does not have past relevant work.
10. Prior to April 1, 2011, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national
economy that the claimant could have performed.
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11. Beginning on April 1, 2011, considering the claimant’s age,
education, work experience, and residual functional capacity, there
are no jobs that exist in significant numbers in the national
economy that the claimant can perform.
12. The claimant was not disabled prior to April 1, 2011, but
become disabled on that date and has continued to be disabled
through the date of this decision.
AR 26–34.
Plaintiff requested review of the ALJ’s decision by the Appeals Council, but it denied
review on November 25, 2013, leaving the ALJ’s decision as the final decision of the
Commissioner of Social Security. AR 1–4.
FACTUAL BACKGROUND
Born on October 31, 1956, plaintiff was 52 years old on the date her SSI application was
submitted and 54 years old at the time of her administrative hearing. AR 41, 104. Plaintiff has
never engaged in substantial gainful activity. AR 33.
LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings
of fact are supported by substantial evidence in the record and the proper legal standards were
applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);
Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,
180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are
conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is
more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th
Cir. 1996). “It means such evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938)). “While inferences from the record can constitute
substantial evidence, only those ‘reasonably drawn from the record’ will suffice.” Widmark v.
Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot
substitute its discretion for that of the Commissioner, the court nonetheless must review the
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record as a whole, “weighing both the evidence that supports and the evidence that detracts from
the [Commissioner’s] conclusion.” Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573,
576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
“The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001)
(citations omitted). “Where the evidence is susceptible to more than one rational interpretation,
one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons
stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not
rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d
871, 874 (9th Cir. 2003). In addition, “[t]he ALJ in a social security case has an independent
‘‘duty to fully and fairly develop the record and to assure that the claimant’s interests are
considered.’’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
The court will not reverse the Commissioner’s decision if it is based on harmless error,
which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the
ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
2006) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
ANALYSIS
Plaintiff seeks summary judgment on the grounds that the ALJ’s residual functional
capacity (“RFC”) assessment regarding the period prior to April 1, 2011, violates Social Security
Rule (“SSR”) 83-20.1
The Commissioner, in turn, argues that the ALJ’s findings are supported
by substantial evidence and are free from legal error. For the reasons discussed below the court
finds that the ALJ committed legal error by failing to call a medical expert to opine on the onset
date of plaintiff’s disabling impairment as required by SSR 83-20.
1
“SSRs do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.”
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). The Ninth Circuit
gives them deference so long as they do not produce “a result inconsistent with the statute and
regulations.” Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991).
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A. Legal Standards
SSR 83–20 provides guidance regarding the onset date of disability. For onset in
disabilities of a non-traumatic origin, medical records containing descriptions of examinations or
treatment of the individual serve as the primary element in onset determination. SSR 83–20.
Regarding slowly progressing impairments, the regulations give the following instructions:
With slowly progressive impairments, it is sometimes impossible to
obtain medical evidence establishing the precise date an impairment
became disabling. Determining the proper onset date is particularly
difficult, when, for example, the alleged onset and the date last
worked are far in the past and adequate medical records are not
available. In such cases, it will be necessary to infer the onset date
from the medical and other evidence that describe the history and
symptomatology of the disease process.
Id.
The regulations further state that
[h]ow long the disease may be determined to have existed at a
disabling level of severity depends on an informed judgment of the
facts in the particular case. This judgment, however, must have a
legitimate medical basis. At the hearing, the administrative law
judge (ALJ) should call on the services of a medical advisor when
onset must be inferred.
Id.
In DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991), the Ninth Circuit found that
“[i]n the event that the medical evidence is not definite concerning the onset date and medical
inferences need to be made, SSR 83–20 requires the administrative law judge to call upon the
services of a medical advisor and to obtain all evidence which is available to make the
determination.” Thus, failure to call on a medical expert to assist in determining the date of onset
when onset is not otherwise established clearly in the record is legal error. Id. at 589–90; Quarles
v. Barnhart, 178 F. Supp. 2d 1089, 1096 (N.D. Cal. 2001). “[R]egardless of how careful and well
supported the ALJ’s inference may be . . . [w]here the evidence is ambiguous and there are
indications that the claimant’s . . . condition was disabling prior to the [last date insured], then a
medical expert must be called.” Quarles, 178 F. Supp. 2d at 1096–97; see also Morgan v.
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Sullivan, 945 F.2d 1079, 1082 (9th Cir. 1991) (reversing in part an ALJ's determination of the
onset date of mental disorders without the assistance of a medical expert).
B. Medical History
Plaintiff arrived in the U.S. from Kazakhstan on February 18, 2009, and alleges that she
became disabled on March 1, 2009. AR 31. Plaintiff’s medical records indicate that her first
doctor’s visit was with Dr. Vladlen Pogorelov, M.D., at Manzanita Medical Clinic. AR 177–78.
Although the records are difficult to decipher, they do clearly indicate that plaintiff suffers from a
cataract in her right eye. AR 178. Plaintiff visited Dr. Pogorelov on several other occasions in
July, September, October, and November 2009. AR 170–76. Notes taken during these visits are
similarly illegible. Id. On May 7, 2009, plaintiff saw Dr. Spencer Silverbach, M.D., for her back
pain. AR 187. Dr. Silverbach’s report notes that plaintiff had mild disk space narrowing at levels
L3 through S1 and mild dextroscoliosis. Id. On July 8, 2009, plaintiff visited the Sacramento
Heart & Vascular Medical Associates and was seen by Dr. George Emlein, M.D. AR 186. In an
echo report generated that same day, Dr. Emlein concluded that plaintiff had normal cardiac
chamber size and function. Id.
On November 19, 2009, Dr. Elliot S. Eisenbury, M.D., wrote a report diagnosing plaintiff
with a cataract in her right eye and myopia in her left eye. AR 191–92. Dr. Eisenbury’s notes
indicate that surgery was contemplated but not performed, without explaining why. Id. Again,
much of Dr. Eisenbury’s report is illegible. Id. On December 10, 2009, Dr. Pogorelov ordered a
balance test for plaintiff to test for vertigo. AR 196. Plaintiff’s answers to that balance test
revealed that she experienced the sensation of herself spinning weekly for approximately 1 to 3
minutes at a time. AR 197. Plaintiff’s responses also indicated that she had been having these
symptoms for several years and typically got them when she bent over or turned her head while
lying down. Id. Plaintiff described her symptoms as moderate. Id. Plaintiff was subsequently
diagnosed with vertigo on December 24, 2009. AR 195.
In January 2010, Dr. James Martin, M.D., conducted an internal medicine evaluation on
plaintiff and made a number of findings. AR 212–13. Dr. Martin’s report notes that plaintiff
complained of high blood pressure and back problems, and that she had been treated for high
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blood pressure for two years and back problems for three years at that point. Id. Plaintiff also
reported that she took ibuprofen, acetaminophen, and lotensin at the time. Id. In addition,
plaintiff stated that she had stopped attending school after the 10th grade in Kazakhstan and could
read and write in her native tongue but could not speak English. Id. Dr. Martin also noted that
plaintiff’s cardiac rate and rhythm were regular without murmurs, rubs, or gallops, and that
plaintiff cooperated during the exam with minimal grimacing or vocalization of pain. Id.
Additionally, Dr. Martin’s notes indicate that plaintiff’s gait was grossly normal and she was able
to walk on her heels and toes. Id.
On January 11, 2010, plaintiff went to the Sutter General Hospital emergency room
complaining of abdominal pain and was seen by Dr. Stephen J. Jerwers, D.O. AR 218–20.
Dr. Jerwers noted that plaintiff had a history of hypertension and obesity and that she had been
taking metoprolol, Motrin, and another unknown pain medication. Id. At the time of her visit
Dr. Jerwers described plaintiff as not being in any acute distress, friendly, and alert. Id.
Although plaintiff did seem to have some discomfort with the exam, Dr. Jerwers noted that she
generally tolerated it well. Id. Nevertheless, Dr. Jerwers did direct that plaintiff be admitted to
the hospital on an inpatient status because an abdominal ultrasound revealed probable gallstone
pancreatitis. Id. At the hospital plaintiff was given aggressive IV fluids and pain control with
morphine. Id. Dr. Jerwers also noted that Dr. Jason Park, M.D., of the surgical hospitalist
department agreed to consult with plaintiff concerning her probable gallstone pancreatitis. Id.
After his examination Dr. Park opined that plaintiff was suffering from mild acute
pancreatitis, which an ultrasound confirmed was likely caused by gallstones. AR 222. Plaintiff
was then discharged to Methodist Hospital for further study and a cholecystectomy on
January 13, 2010, because of insurance concerns. AR 216–17, 319. Although plaintiff’s
pancreatitis had resolved by then, the discharge report notes that surgery was still being
considered. Id. Upon being admitted to Methodist Hospital Dr. Hung G. Hoang, M.D., ordered a
consultation with one of the hospital’s surgeons, Dr. Sen Jone, M.D. AR 319. Dr. Hoang also
noted that plaintiff had a history of mild arthritis along with hypertension and obesity. Id. During
plaintiff’s consultation with Dr. Jone she was completely asymptomatic and accordingly, after
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consulting with Dr. Jone, Dr. Hoang recommended that plaintiff be discharged to receive
outpatient laparoscopic surgery at a later date. AR 325–26. Dr. Hoang commented that plaintiff
had probably passed her gallstones, but still recommended she follow up with either him or her
primary care physician in one to two weeks. Id.
On January 21, 2010, Dr. L. Desouza, M.D., a state agency medical consultant, generated
a case analysis that found plaintiff had a cataract in her right eye, hypertension that was controlled
with medication, and back pain with mild disc space narrowing. AR 330–32. Nevertheless,
Dr. Desouza noted that plaintiff could perform full squats and walk on her heels and toes during
the examination. Id. Based on these observations and plaintiff’s medical history Dr. Desouza
opined that her impairments were non-severe. Id. On February 10, 2010, Dr. Desouza apparently
re-considered his initial assessment in light of plaintiff’s mild acute pancreatitis and affirmed it
with no changes. Id. On June 22, 2010, another state agency medical consultant, Dr. T. Nguyen,
M.D., generated a case analysis that was substantially the same on reconsideration. AR 365–66.
On April 14, 2010, plaintiff was examined by Dr. Mikhail Palatnik, M.D., who noted that
she was blind in her right eye and suffered from headaches. AR 381. Dr. Palatnik noted that
surgery had so far not been considered an option to correct plaintiff’s blindness, and that he
would continue monitoring the situation. Id. To combat plaintiff’s headaches, Dr. Palatnik
recommended ibuprofen and Vicodin. Id. On May 6, 2010, plaintiff was again examined by
Dr. Palatnik who opined that she suffered from mild disc space narrowing at L4-5 with endplate
sclerosis and spurring. AR 379. Dr. Palatnik also observed early arthritic changes in the
sacroiliac joints, with the most change on the left. Id. On May 17, 2010, plaintiff was examined
by Dr. George Mednik, M.D., who noticed she had multiple stones in her gallbladder and mild
hepatomegaly. AR 377.
On April 4, 2011, Dr. Christine E. Fernando, M.D., examined plaintiff and generated a
report detailing her abilities to do work-related activities. AR 418–30. Dr. Fernando noted that
plaintiff’s chief complaints were bad vision, lower back pain, general pain, and dizziness. AR
418. During the examination, plaintiff cited an old burn injury as the source of her blindness in
her right eye. Id. Dr. Fernando also noted that plaintiff had diffuse tender points, including 18
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out of 18 fibromyalgia tender points. AR 421. Dr. Fernando was unable to perform a station and
gait test because plaintiff was unable to stand on her heels or perform a tandem gait due to
dizziness. AR 423. Plaintiff received assistance from her husband during the exam both in
getting down from the exam table and walking. Id. In light of the fact that plaintiff seemed to
require assistance walking, as well as her history of falls, Dr. Fernando noted that she might
benefit from using a cane. Id. Based on these observations Dr. Fernando opined that plaintiff
could (1) lift and carry up to 10 pounds frequently; (2) sit for four hours both at one time and total
in an eight hour workday, but only with assistance; and (3) stand and walk for one hour both
without interruption and total in an eight hour workday, but only with assistance. AR 425–26.
Dr. Fernando also opined that plaintiff cannot ambulate far without the use of a cane due to
dizziness, can never climb ladders, balance, stoop, crouch, or crawl, and can only occasionally
climb stairs and kneel. AR 426, 428. Dr. Fernando stated that plaintiff’s vision is impaired, and
that she cannot read small print or stare at a computer screen for long. AR 428.
C. Analysis
Based on the facts set forth above, the court finds that the ALJ should have called a
medical expert to opine on the onset date of plaintiff’s disability because it was not clearly
established by the medical evidence. The ALJ’s opinion bases the chosen onset date primarily on
Dr. Fernando’s April 4, 2011, examination. AR 32–33. The ALJ’s opinion summarizes
Dr. Fernando’s findings as detailed above and concludes that plaintiff had the RFC to perform
light work as defined in 20 C.F.R. 416.967(b) beginning April 1, 2011. Id. The ALJ accordingly
concluded that plaintiff was disabled as of April 1, 2011, as directed by Medical-Vocational Rule
202.09 for someone of plaintiff’s age, education, and work experience. AR 34 (citing 20 C.F.R.
416.960(c) and 416.966). The ALJ’s opinion also refers to plaintiff’s testimony at the February
16, 2011, hearing as evidence that “the claimant’s overall strength has diminished while episodes
of pain have increased and dizziness has become progressively worse.” AR 32.
The problem is that Dr. Fernando’s opinion does not clearly establish the onset date of
plaintiff’s disability. Dr. Fernando’s opinion is strong evidence that plaintiff was disabled as of
April 4, 2011, but it says nothing about what her condition was like beforehand. What’s more,
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the ALJ’s decision does not offer any explanation as to why an earlier onset date is inappropriate
in light of evidence that plaintiff had long-lasting, slowly-developing impairments. The most
recent medical evidence the ALJ cites prior to Dr. Fernando’s relates to a doctor’s visit in May
2010, which showed “degenerative disc disease at L4-5 and early arthritic changes of the
sacroiliac joints,” along with “minimal spondylosis of the lower thoracic spine” without any acute
abnormalities.2 AR 31–32. The ALJ’s decision does not comment on the year-long period in
between that visit and plaintiff’s April 4, 2011, visit with Dr. Fernando. The ALJ’s decision is
also somewhat undermined by the ALJ’s own finding that plaintiff’s impairments were getting
progressively worse based on her February 16, 2011, testimony. AR 32. Plaintiff’s testimony
implies that her impairments were slowly progressing, and that they may have become disabling
sometime prior to the hearing on February 16, 2011.
Finally, the ALJ’s finding that plaintiff could perform medium work as defined in
20 C.F.R. 416.967(c) before April 1, 2011, is undermined by the medical evidence of plaintiff’s
blindness in her right eye. The ALJ’s decision describes plaintiff’s blindness as treatable through
surgery based on the belief that her blindness is caused by a cataract. AR 30. The ALJ’s decision
notes that surgery was discussed, but never performed; the implication being that plaintiff could
receive treatment at a time of her choosing. Id. Unfortunately, there is little evidence to support
this finding in the record, and ample evidence to refute it. The only medical record that could be
construed to support the ALJ’s finding that plaintiff’s cataract is treatable is Dr. Eisenbury’s,
which clearly states that plaintiff suffers from a cataract in her right eye, and that surgery was
contemplated but not performed. See AR 48 (citing “Ophthalmology 2-F,” Dr. Eisenbury’s
medical report). There is nothing, however, in Dr. Eisenbury’s report that indicates plaintiff’s
blindness is actually treatable. And what’s more, other evidence points to the opposite
conclusion. Dr. Palatnik’s April 14, 2010, medical report indicates that surgery on plaintiff’s
cataract was “not considered an option.” AR 381. In addition, plaintiff herself has stated that she
2
Presumably the ALJ was referring to Dr. Palatnik’s reports, although the ALJ does not
mention any doctor by name. See AR 377–78.
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has been blind since birth, and Dr. Fernando’s records actually imply it may have been the result
of some sort of burn. AR 418.
The foregoing evidence in the record shows that the onset date must be inferred from the
record, as the medical evidence is ambiguous. Accordingly, the court finds that the ALJ’s
decision not to call a medical expert to opine on the onset of plaintiff’s disability violated SSR
83–20.
B. Remand
Plaintiff requests that the decision of the ALJ be reversed and that the court award
plaintiff benefits consistent with an onset date of March 1, 2009. The decision whether to remand
for further proceedings turns upon the likely utility of such proceedings. Barman v. Apfel, 211
F.3d 1172, 1179 (9th Cir. 2000). In this matter, the court concludes that outstanding issues
remain that must be resolved before a determination of disability can be made. Pursuant to this
remand, the ALJ shall call a medical expert to testify to the date on which plaintiff’s physical
impairments became disabling.
CONCLUSION
In light of the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for summary judgment (ECF No. 13) is granted in part;
2. The Commissioner’s cross-motion for summary judgment (ECF No. 14) is denied; and
3. This matter is remanded for further proceedings consistent with this order.
DATED: August 6, 2015
Case 2:14-cv-00071-AC Document 16 Filed 08/07/15 Page 11 of 11 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-15-14526/USCOURTS-ca11-15-14526-0/pdf.json | [
[
"Fernando Cornielle Hiciano",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14526
Non-Argument Calendar
________________________
D.C. Docket No. 1:05-cr-20223-FAM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO CORNIELLE HICIANO,
a.k.a. Papiton,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 12, 2016)
Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.
PER CURIAM:
USCA11 Case: 15-14526 Date Filed: 05/12/2016 Page: 1 of 3
2
Fernando Cornielle Hiciano, a federal prisoner, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 180-month sentence for
conspiracy to possess with intent to distribute cocaine. He seeks relief based on
Amendment 782 of the Sentencing Guidelines. Hiciano argues that the district
court abused its discretion because it denied his motion solely based upon the fact
that he had previously received a reduction for substantial assistance and not based
on the 18 U.S.C. § 3553(a) factors.
When considering a § 3582(c)(2) motion, the district court must first
recalculate the guidelines range under the amended guidelines. United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000). If the defendant is eligible for a
sentence reduction, the district court must next decide “whether, in its discretion, it
will elect to impose the newly calculated sentence under the amended guidelines or
retain the original sentence.” Id. at 781. In doing so, the district court should
consider the statutory factors listed in § 3553(a) to determine whether the reduction
is warranted and the extent of the reduction. Id.; U.S.S.G. § 1B1.10 cmt. n.1(B)(i).
Although the district court must undertake this analysis, the district court retains its
discretion not to reduce the sentence. United States v. Vautier, 144 F.3d 756, 760
(11th Cir. 1998). Thus, in a § 3582(c)(2) proceeding, we review the district court’s
decision to grant or deny a sentence reduction only for abuse of discretion. United
States v. Hamilton, 715 F.3d 328, 337 n.8 (11th Cir. 2013).
USCA11 Case: 15-14526 Date Filed: 05/12/2016 Page: 2 of 3
3
Here, the district court explained that it had considered Hiciano’s §
3582(c)(2) motion. It stated that it had taken into account the § 3553(a) factors,
but reasoned that it had already “reduced the sentence due to the defendant’s
cooperation to a much greater extent than that recommended by the Government.”
For this reason, the court concluded that, even though the amendment applied,
Hiciano’s 180-month sentence was “reasonable.” The district court was not
required to articulate the applicability of each of the § 3553(a) factors. Hiciano
addressed the factors in his counseled supplemental reply, and the district court
specifically acknowledged the responses by the parties before ruling on the motion.
See United States v. Smith, 568 F.3d 923, 928 (11th Cir. 2009).
Thus, the district court’s denial of Hiciano’s § 3582(c)(2) motion was not an
abuse of discretion because the court considered the § 3553(a) factors and
determined that a 180-month sentence was reasonable. See Vautier, 144 F.3d at
760 (noting that the district court “has the discretion to decide whether to re-apply
a downward departure for substantial assistance when considering what sentence
the court would have imposed under the amended guideline”). Accordingly, we
affirm the denial of Hiciano’s motion.
AFFIRMED.
USCA11 Case: 15-14526 Date Filed: 05/12/2016 Page: 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_21-cv-01819/USCOURTS-caed-2_21-cv-01819-2/pdf.json | [
[
"Seing Chao",
"Plaintiff"
],
[
"County of Shasta",
"Defendant"
],
[
"Deanne Elliot",
"Defendant"
],
[
"Tyler Finch",
"Defendant"
]
] | 1
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1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SEING CHAO,
Plaintiff,
v.
COUNTY OF SHASTA, a public entity;
AGENT TYLER FINCH, of the Shasta
County Interagency Narcotics Task
Force; DEANNE ELLIOT; and DOES 1
to 10, inclusive,
Defendants.
No. 2:21-cv-01819-MCE-DMC
ORDER
On February 1, 2023, this Court issued a Memorandum and Order dismissing the
claims Plaintiff alleged against Defendants DeAnne Elliott and County of Shasta. The
Court granted Plaintiff leave to amend, but advised that: “If no amended pleading [was]
timely filed, the causes of action dismissed by virtue of [that] Order [would] be deemed
dismissed with prejudice upon no further notice to the parties.” ECF No. 34 at 3. No
amended complaint has been filed. Accordingly, this action is DISMISSED with
prejudice as to Defendants DeAnne Elliott and County of Shasta, and it shall only
proceed on Plaintiff’s remaining claims.
IT IS SO ORDERED.
Dated: March 8, 2023
Case 2:21-cv-01819-DJC-DMC Document 36 Filed 03/09/23 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-02104/USCOURTS-caed-2_13-cv-02104-0/pdf.json | [
[
"City of Stockton",
"Defendant"
],
[
"Paul Dona",
"Defendant"
],
[
"Gregory Dunn",
"Defendant"
],
[
"Jeremy Edens",
"Defendant"
],
[
"Thomas Hulburt",
"Defendant"
],
[
"Richard Maddern",
"Defendant"
],
[
"Jerry Moore",
"Plaintiff"
],
[
"Gerardo Munoz",
"Defendant"
],
[
"Timothy Swails",
"Defendant"
],
[
"Teresa Wentland",
"Defendant"
]
] | [PROPOSED] ORDER GRANTING STIPULATED REQUEST TO STAY CASE PENDING
BANKRUPTCY PROCEEDINGS AND TO VACATE SCHEDULING CONFERENCE:
Case No. 2:13-cv-02104-WBS-EFB
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Tai C. Bogan (SB# 241784)
LAW OFFICES OF TAI C. BOGAN
1202 “H” St., Suite D
Modesto, California 95354
Telephone: (209) 566-9591
Facsimile: (209) 566-9668
e-mail: [email protected]
Sanjay S. Schmidt SBN 247475
LAW OFFICE OF SANJAY S. SCHMIDT
1686 2nd Street, Suite 219
Livermore, CA 94550
Telephone: (925) 215-7733
Facsimile: (925) 455-2486
e-mail: [email protected]
Attorneys for Plaintiff
JERRY MOORE
JOHN M. LUEBBERKE, City Attorney
(State Bar No. 164893)
NEAL C. LUTTERMAN, Deputy City
Attorney (State Bar No. 174681)
CITY OF STOCKTON
425 N. El Dorado Street, Second Floor
Stockton, California 95202
Telephone: (209) 937-8333
Facsimile: (209) 937-8898
e-mail: [email protected]
Specially Appearing for purposes of this
Stipulation only on behalf of Defendants
CITY OF STOCKTON, PAUL DONA,
GREGORY DUNN, JEREMY EDENS,
THOMAS HULBURT, GERARDO MUNOZ,
TERESA WENTLAND, RICHARD
MADDERN, and TIMOTHY SWAILS
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION
JERRY MOORE,
Plaintiff,
vs.
CITY OF STOCKTON, a municipal
corporation, STOCKTON POLICE
OFFICERS Paul Dona, Individually,
Gregory Dunn, Individually, Jeremy Edens,
Individually, Thomas Hulburt, Individually,
Gerardo Munoz, Individually, Teresa
Wentland, Individually, STOCKTON
POLICE SERGEANTS Richard Maddern
and Timothy Swails, in their individual and
supervisory capacities, and DOES 1
THROUGH 40, Jointly and Severally,
Defendants.
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Case No. 2:13-cv-02104-WBS-EFB
ORDER GRANTING STIPULATED
REQUEST TO STAY ACTION ON
COMPLAINT PENDING CHAPTER 9
BANKRUPTCY PROCEEDINGS
CONCERNING THE CITY OF
STOCKTON AND TO VACATE
SCHEDULING CONFERENCE
Case 2:13-cv-02104-WBS-EFB Document 9 Filed 12/18/13 Page 1 of 2
[PROPOSED] ORDER GRANTING STIPULATED REQUEST TO STAY CASE PENDING
BANKRUPTCY PROCEEDINGS AND TO VACATE SCHEDULING CONFERENCE:
Case No. 2:13-cv-02104-WBS-EFB
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Having considered the parties’ stipulation and good cause appearing therefor,
IT IS HEREBY ORDERED that the Stipulated Request is granted.
In view of the Stipulation between the Plaintiff and the Defendant City of Stockton
(Case No. 12-32118, Dkt. 1200), with the City of Stockton acting on behalf of all named
Defendants in both their individual and official capacities, this action shall be stayed; the
Plaintiff shall not be required to effect service on any of the Defendants until the automatic stay
expires and the 120-day time period to serve the Complaint on Defendants shall commence at
the expiration of the automatic stay that exists as a result of the pending Bankruptcy case. The
Status (Pretrial Scheduling) Conference, previously set on October 11, 2013, scheduled for
2/3/14 at 2:00 p.m., before the Honorable Judge William B. Shubb in Courtroom No. 5 (Dkt.
4), is hereby VACATED. When the automatic stay expires, Plaintiff shall notify the Court and
request that a Pretrial Scheduling conference be re-set on an appropriate date.
IT IS SO ORDERED.
Dated: December 18, 2013
Case 2:13-cv-02104-WBS-EFB Document 9 Filed 12/18/13 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_03-cv-01808/USCOURTS-cand-4_03-cv-01808-0/pdf.json | [
[
"Raul A. Garibay",
"Petitioner"
],
[
"Gail Lewis",
"Respondent"
]
] | 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
RAUL GARIBAY,
Petitioner,
v.
GAIL LEWIS, Warden,
Respondent. ___________________________
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No. C 03-1808 CW (PR)
ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Raul Garibay, a state prisoner incarcerated at
Pleasant Valley State Prison, filed this pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a
conviction and sentence imposed by the Santa Clara County Superior
Court.
On January 19, 2006, the Court ordered Respondent to show
cause why the petition should not be granted. Respondent has filed
an answer to the petition and a memorandum of points and
authorities and exhibits in support thereof. Petitioner has filed
a traverse to the answer and exhibits in support thereof.
Having considered all of the papers filed by the parties, the
Court DENIES the petition on all claims.
PROCEDURAL HISTORY
On September 20, 2000, a jury found Petitioner guilty of rape,
inflicting corporal punishment on a cohabitant, forcible sodomy,
assault with a deadly weapon, assault by means of force likely to
produce great bodily injury, felony false imprisonment and
exhibiting a deadly weapon. On November 3, 2000, Petitioner was
sentenced to a total of sixteen years in prison.
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The California Court of Appeal affirmed the judgment in a
written opinion on September 5, 2002. Petitioner sought timely
review of the appellate court's decision. The California Supreme
Court denied review on November 15, 2002.
On April 23, 2003, Petitioner timely filed the instant federal
habeas corpus petition in this Court. In an Order dated December
31, 2003, the Court determined that the petition contained at least
three unexhausted claims. The Court dismissed the petition with
leave to amend.
On January 14, 2004, Petitioner filed a motion to stay the
petition while he exhausted his claims in state court. In an Order
dated May 6, 2004, Petitioner's motion to stay was denied, and he
was ordered to file an amended petition and a renewed request for
stay within thirty days. Petitioner filed an amended petition on
June 4, 2004 containing only exhausted claims. He also renewed his
request for the Court to stay the petition.
On May 2, 2005, Petitioner informed the Court that the
California Supreme Court had denied his state habeas petition;
therefore, he filed his second amended petition containing his
newly-exhausted claims.
On August 25, 2005, Petitioner filed a motion for relief from
judgment pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. On January 19, 2006, Petitioner's motion for relief
from judgment was granted and an Order to Show Cause was issued.
STATEMENT OF FACTS
The California Court of Appeal summarized the factual
background as follows:
In July 1998, Christina met appellant. A few months
later she began living with him. In February 2000, they
were living in a converted garage apartment located
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The facts regarding the admission of Petitioner's uncharged bad
acts are discussed in detail below. See infra Discussion Part I.A.1.
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behind appellant's mother's house in San Jose. The
relationship was marked by appellant's fits of jealousy.
On the weekend of February 5 and 6, 2000, what started
out with Christina shoving appellant, ended with her
being punched in the back and in the head, then raped
and sodomized. Appellant shot her with a blowgun and
threatened her with a knife. He twisted her neck, which
had been injured previously by a former abusive
boyfriend, Eddie, and prevented her from leaving the
apartment several times.
When Christina persuaded appellant to take her to the
hospital for her neck injury, she told the nurse that
her black eye and other injuries had been sustained in a
car wreck. However, she soon changed her story and told
the hospital staff and the police that appellant had
sexually and physically assaulted her. A few days
later, at the request of the police and in their
presence, Christina placed a pretext telephone call to
appellant wherein he made several incriminating
statements.
In March 2000, Christina began to recant. She continued
to assert that appellant had physically abused her, but
claimed at the preliminary hearing that the sexual acts
were consensual.
People v. Garibay, H022283, 2 (Sept. 5, 2002) (Opinion) (footnotes
in original).
Before trial, the prosecutor filed a motion to admit evidence
of uncharged physical and sex assaults Petitioner committed against
Kathy, a former cohabitant and mother of his three children.1 Id.
at 2. Upon finding that the probative value of the evidence was
"very great," the trial court decided to allow testimony from Kathy
and their son, Jeremy. Id. at 3.
The jury was selected and sworn on September 5, 2000. Id.
The prosecution called Christina as their first witness. Id.
While she continued to assert that appellant physically abused her,
she claimed that the sex acts were consensual. Id.
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The appellate court outlines the trial testimony of the other
witnesses as follows:
Anita Ruiz-Contreras, a nurse with the Sexual Assault
Response Team (SART) and the Violence Intervention
Program (VIP) saw Christina on the afternoon of February
6, 2000. Christina told Ruiz-Contreras that appellant
had physically and emotionally abused her for nine
months and had sexually assaulted her once nine months
earlier. Christina consented to have her injuries
photographed. Ruiz-Contreras documented her injuries
and complaints of pain. At this time, Christina had a
black eye, pain around her left thumb, a red mark on her
neck, bruises on her right upper arm, a quarter-sized
abrasion on her elbow, neck pain, a bruise on her
coccyx, and a dime-sized abrasion and a half-dollar
sized abrasion on her left wrist.
Christina told her that appellant had choked her and
finally admitted that he had sexually assaulted her.
San Jose Police Officer Brian Anderson, accompanied by
Officer Marenom, spoke with Christina at Valley Medical
Center. He observed many of Christina's injuries and
heard her complaints of pain. She was visibly upset and
shaking during the interview.
Christina told Anderson that the incident started around
9:00 a.m. on February 5, when appellant accused her of
sexually gratifying herself. He punched her in the head
and in the back causing her pain. Appellant pulled off
her clothes, raped her, turned her over and then
sodomized her for eight to ten minutes. After using the
bathroom, Christina tried to leave. Appellant grabbed
her by the hair and threw her on the bed. Christina
curled up in a ball and huddled in the corner of the bed
because she feared that appellant would continue to beat
her. Eventually, appellant calmed down and around
2:00 p.m. went to get her some aspirin from the main
house.
When he returned to the apartment he started yelling at
her again and accused her of trying to leave. He
grabbed her by both arms and threw her on the bed.
Appellant hit her in the back five to eight times. He
pointed a five-inch steak knife in her face and stated
he could kill her.
When they awoke the next morning Christina told
appellant she wanted to leave. Appellant told her he
was going to kill her. He grabbed her neck with one
hand and forced her head so far back with his other hand
that she thought her neck was breaking. After Christina
screamed for him to stop, he grabbed a blowgun.
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Christina testified that Detective Pritchard "steam rolled" her
into making the pretext phone call to Petitioner. RT 179.
5
Christina was shot on her left foot and on the back of
her left thigh with the blowgun. Appellant then removed
the blow darts from her body. He grabbed her by the
hair and threw her on the bed. Fearing for her life,
Christina had sex with appellant, and then threw up in
the bathroom.
Later that day, appellant calmed down and Christina
convinced him that she needed to go to the hospital for
her neck. They went to the hospital around 2:30 p.m. on
Sunday. From 9 a.m. on Saturday until 2:30 p.m. on
Sunday, when they went to the hospital, appellant would
not let Christina leave the apartment.
After Officer Anderson had interviewed Christina he took
her to SART and waited for her.
Patricia Crane, an expert in the area of examining
patients for evidence of possible sexual assault and
other physical trauma, documented Christina's injuries
and her account of the sexual and physical assaults
appellant perpetrated on her. Christina's account to
Crane was similar in detail to that which she had given
Officer Anderson. Crane also noted that Christina had
an anal laceration.
Detective Sean Pritchard of the Sexual Assault Unit,
accompanied by Officer Christina Thompson, interviewed
Christina on the morning of February 7, 2000. At that
time, Christina's injuries were very visible and she
reiterated that she had been beaten, raped and
sodomized.
Pritchard talked to Christina about making a pretext
phone call to appellant. Although she was nervous, she
cooperated with the officer and called appellant.
During the ensuing call appellant made incriminating
statements.
Opinion at 6-8.
A tape of the phone call was played for the jury during
Christina's testimony.2
RT 187.
During the call, Christina told Petitioner she still felt like
"clay-do thrown up against the wall." CT 210. She asked Petitioner
why he had done it and told him that she hurt all over. CT 210.
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Petitioner said he was sorry. CT 210. She told him that she had a
black eye from him hitting her in the face. CT 213. She also
mentioned that he kicked her with a certain pair of boots. CT 213.
He said that he was wearing a different pair of boots. CT 213. She
asked him why he threatened her with a knife, and he said that he
did not want her to leave him. CT 214. She also asked him why he
used a "wad of Vaseline" and sodomized her while she begged him to
stop. CT 215. He answered that he "didn't know what got into
[him]." CT 215. When she reminded him that he told her he would
have shot her if the blow gun had been a real gun, he agreed. CT
215.
Following the pretext phone call, Christina called
Pritchard about five times just to check in with him.
On March 16, at about 4:00 p.m. Christina called
Pritchard and said that she wanted to recant her entire
statement. She told Pritchard that she did not want
appellant to go to jail for the rest of his life. When
Pritchard confronted her with the injuries she had
sustained, she admitted her statement about the physical
assault was true. He told her that he would take her
new statement and that if she changed her mind again she
should contact him.
On February 10, 2000, Pritchard interviewed appellant
after he waived his Miranda rights. Appellant said that
Christina had called him to tell him that the police
were coming for him because of what he had done to her.
Appellant denied that he had beaten Christina and said
that the sex was consensual. When asked why Christina
would have made the claims she had made, appellant said
that it was because she was angry with him.
Diana Cunningham, the Victim Witness Coordinator for the
district attorney's office, spoke with Christina on
March 9, 2000. Christina told Cunningham she changed
her story because appellant needed counseling, not jail
or prison. Initially, Christina denied appellant
sexually assaulted her before the weekend of February 5,
but eventually she admitted he had.
. . . .
On September 20, 2000, the jury found appellant guilty
as charged in all seven counts and also found true the
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special allegation. He was sentenced to 16 years in
state prison.
Opinion at 8-9.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a federal writ of habeas corpus may not be granted with
respect to any claim that was adjudicated on the merits in state
court unless the state court's adjudication of the claims:
"(1) 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
(2) 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).
"Under the 'contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts." William v.
Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'unreasonable
application' clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from the [the Supreme] Court's decision but unreasonably applies
that principle to the facts of the prisoner's case." Id. at 413.
The only definitive source of clearly established federal law under
28 U.S.C. § 2254(d) is in the holdings of the Supreme Court as of
the time of the relevant state court decision. Id. at 412.
In determining whether the state court's decision is contrary
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to, or involved an unreasonable application of, clearly established
federal law, a federal court looks to the decision of the highest
state court to address the merits of a petitioner's claim in a
reasoned decision. Lajoie v. Thompson, 217 F.3d 663, 669 n.7 (9th
Cir. 2000). It also looks to any lower court decision examined or
adopted by the highest state court to address the merits. See
Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) (because
state appellate court examined and adopted some of the trial
court's reasoning, the trial court's ruling is also relevant).
Where the state court gives no reasoned explanation of its
decision on a petitioner's federal claim and there is no reasoned
lower court decision on the claim, a review of the record is the
only means of deciding whether the state court's decision was
objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853
(9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir.
2002). When confronted with such a decision, a federal court
should conduct "an independent review of the record" to determine
whether the state court's decision was an unreasonable application
of clearly established federal law. Himes, 336 F.3d at 853; accord
Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004).
If constitutional error is found, habeas relief is warranted
only if the error had a "'substantial and injurious effect or
influence in determining the jury's verdict.'" Penry v. Johnson,
532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.
619, 638 (1993)).
DISCUSSION
Petitioner raises six claims for relief, all of which have
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been exhausted for the purpose of federal habeas corpus review.
The following claims were raised on direct appeal and denied by the
California Court of Appeal in a reasoned decision: that prior acts
of sexual assault and domestic violence were improperly admitted
into evidence; that the trial court erred in instructing the jury
that Petitioner could be found guilty based on propensity evidence
alone using California Jury Instructions Criminal (CALJIC) Nos.
2.50.01 and 2.50.02; and that the trial court erred in instructing
the jury with CALJIC No. 17.41.1. The remaining three claims were
raised in Petitioner's state habeas petition and were denied
summarily: insufficiency of evidence to support the conviction;
prosecutorial misconduct; and ineffective assistance of trial
counsel. The Court now addresses the merits of his claims.
I. CLAIMS DENIED IN REASONED STATE COURT DECISION
A. ADMISSION OF PRIOR UNCHARGED ACTS OF SEXUAL ASSAULT AND
DOMESTIC VIOLENCE
1. Background
The California Court of Appeal set forth the factual and
procedural background regarding the admission of Petitioner's prior
uncharged acts of sexual assault and domestic violence as follows:
Before trial, pursuant to Evidence Code sections 1108
and 1109, the prosecution filed a motion to admit
evidence of uncharged physical and sex assaults
appellant committed against Kathy, a former cohabitant
and mother of three of his children. The prosecutor
wrote that three days after the preliminary hearing in
this case, a second victim [Kathy] reported to the
police that between February 1995 and April 1999,
appellant raped her approximately 20 times. During 10
of these incidents appellant also sodomized her against
her will. Also, Kathy reported that some of these
incidents occurred in front of their children and that
she was physically assaulted approximately 15 times.
Further, her bottom teeth were permanently damaged from
the assaults.
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Unless otherwise indicated statutory references herein are to
the Evidence Code.
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When the motion was heard on August 31, the prosecutor
discussed the similarities between the assault appellant
committed against Christina and those he committed
against Kathy. He argued that there was a similar
motive in each case, namely irrational jealousy.
Further, he argued there was no risk of collaboration
between the victims because there was bad blood between
them. Moreover, by coming to court Kathy was exposing
herself to penalties because there was a child custody
hearing and an issue of welfare fraud that appellant
might raise during the trial. The prosecutor advised
Kathy that he would have to report the possibility of
fraud to the welfare department.
On the same day as one of his motions in limine,
appellant moved, pursuant to Evidence Code3 section 352,
to exclude the evidence that would be provided by Kathy
and their son Jeremy.
After hearing argument from both sides, the court
weighed several factors including the consumption of
time, the risk of confusing the jury, and the
prejudicial impact of the testimony. The court decided
to allow Kathy and Jeremy to testify pursuant to
sections 1108 and 1109, but directed the District
Attorney to limit the details and number of incidents.
The court noted that while the prejudicial value of the
evidence was high, the probative value of the evidence
was "very great."
On September 5, 2000, the jury was selected and sworn.
Christina was called as the prosecution's first witness.
She continued to assert that appellant physically abused
her, but claimed that the sex acts were consensual.
Nine-year old Jeremy, Kathy and appellant's oldest son,
testified that when they lived in the garage he saw
appellant hit Kathy on the chest more than once and that
Kathy cried when this happened. Appellant and Kathy
argued. Sometimes he would see appellant get on Kathy
to have sex. He knew that she did not like this because
she would say "ow, all the time." On one occasion he
saw appellant hit Kathy in the mouth causing her teeth
to become crooked.
On September 7, 2000, a hearing was held outside the
presence of the jury to determine how Kathy would
respond when asked whether she had ever committed
welfare fraud. Before she took the stand, defense
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When the court asked whether the stipulation was acceptable to
the defense, defense counsel said, "I am completely thankful and
appreciate the District Attorney offering the stipulation. If the
Court is going to rule against me and against my request that she not
be allowed to testify at all because of the Fifth Amendment issue that
I've raised, if the Court is going to allow that she can testify on
direct, but I will allow her to assert her Fifth Amendment privilege
and if I am left with the choice of nothing or a stipulation I will
accept the stipulation. . . . [¶] By virtue of the District
Attorney's stipulation, I guess clearly that stipulation will allow me
to argue the credibility issue. But the problem I have with it is
that it will not get at the heart of her testimony. It will not --
because remember, Judge, it's not just about the testimony but as 780
it's demeanor, attitude towards the proceeding, towards me and yes,
all of that will be lost. [¶] A stipulation is an innocuous form or
arguably a watered-down form of what could be done effectively done on
cross. . . . [I]f my only choice is I don't get to ask her anything
about it because of the difficulty or accept the stipulation, that's
my last choice, I will accept the District Attorney's stipulation, but
want the Court to know that it is not my first choice."
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counsel renewed his motion to exclude her testimony on
352 grounds. The court again considered the 352
objection observing that no evidence had been presented
that would change the previous ruling. Once again, the
court found that the probative value of the evidence was
not outweighed by the time considerations, the
prejudice, and confusion of the issues. The court
determined that it would allow the testimony subject to
a section 402 hearing.
Called as a witness at the hearing, Kathy, on the advice
of her attorney, invoked her Fifth Amendment right when
asked whether she had committed welfare fraud and when
asked about forms she filled out while she was on
welfare. After defense counsel had questioned Kathy and
made his argument, the trial court sustained Kathy's
exercise of the privilege.
Defense counsel renewed a previous objection that Kathy
should not be allowed to testify. He argued that Kathy
would be allowed to say damaging and inflammatory things
about appellant, but he would not be able to . . . cross
examine her about the alleged welfare fraud. The
prosecutor then proffered the following stipulation:
"Katherine [Kathy] told the Prosecutor, George Chadwick,
in a private conversation that one, she and the
[appellant], Raul Garibay, are involved in a custody
court case. [¶] "Two, she expected Mr. Garibay to
raise the issue of the welfare fraud in that custody
case; and three, that while living with Mr. Garibay she
believes she violated welfare fraud laws."2
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The following limiting instruction was read to the jury:
"Thank you. Ladies and gentlemen. Evidence may be introduced
through the testimony of this witness for the purpose of showing that
the defendant engaged in a sexual offense or other conduct such as
domestic violence on one or more occasions other than that are charged
in this case. If you find that the defendant committed a prior sexual
offense or prior sexual violence, you may but you are not required to
infer that the defendant had a disposition to commit sexual offenses
or domestic violence.
"If you find that the defendant had this disposition, you may but
you are not required to infer that he is likely to commit or did
commit the offenses for which he's charged in this case. However, if
you find that the defendant committed the prior sexual offenses or
prior domestic violence, it is not sufficient by itself to prove
beyond a reasonable doubt that he committed the crimes charged in this
case.
"The weight and significance of the evidence, if any, are for you
to decide. For the limited purpose for which you may consider this
evidence, you must weigh it the same way or in the same manner as you
do all other evidence in the case, unless your [sic] otherwise
instructed, you are not to consider this evidence for any other
purpose."
4
Kathy testified that there were other occasions when she was not
really in the mood and did not want to have sex, but agreed to do so.
However, she was not referring to those instances when she told
police that appellant raped her.
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On September 11, 2000, outside the presence of the jury,
the trial court said both counsel had been instructed
not to ask Kathy any questions that would elicit the
exercise of her privilege against self-incrimination.
Before Kathy's testimony defense counsel again renewed
his objection to her testimony. The court then gave a
limiting instruction.3
Kathy testified that she had an eight-year relationship
with appellant. During this time appellant had raped4
her on several different occasions and forced her to
have anal sex on at least five occasions. Appellant
also punched her in the face, dislodging four of her
teeth, and hit her in the chest on one or two occasions
causing her pain. On the advice of counsel Kathy
invoked her Fifth Amendment privilege with regard to any
questions regarding her committing welfare fraud.
. . . .
Ruben Salazar, the custodian of records for the Santa
Clara County Department of Social Services, testified
that applications, including those submitted by Kathy,
were signed under penalty of perjury and witnessed by an
eligibility worker. Department of Social Services
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records indicated that Kathy filled out her first
application on June 4, 1992. Her most recent
application was made on August 27, 1998. In all but one
of the forms she had filled out, she claimed that
appellant was the father of the oldest and youngest of
her children and that he was an absent parent. Salazar
had no idea if Kathy had committed welfare fraud, but he
did acknowledge that appellant signed some of the
application forms during the time period that Kathy
reported his whereabouts were unknown.
At the conclusion of Salazar's testimony, the trial
court instructed the jury that the evidence introduced
through Mr. Salazar was permitted to show the activities
and conduct of Kathy. The evidence was admitted for the
limited purpose of determining her credibility.
Opinion at 2-6, 8-9 (footnotes and brackets in original).
Petitioner claims that the admission of his prior uncharged
acts of sexual assault and domestic violence under California
Evidence Code §§ 1108 and 1109 violated his right to due process.
He also contends that the trial court abused its discretion by
admitting such evidence, which he argues should have been excluded
under California Evidence Code § 352. Finally, Petitioner claims
that the restrictions on his cross-examination of Kathy violated
his rights under the Confrontation Clause of the Sixth Amendment.
California Evidence Code § 352 provides as follows: "The
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury." Cal. Evid. Code § 352.
California Evidence Code § 1101, provides as follows:
(a) Except as provided in this section and in Sections
1102, 1103, 1108, and 1109, evidence of a person's
character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is
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inadmissible when offered to prove his or her conduct on
a specified occasion.
(b) Nothing in this section prohibits the admission of
evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or
whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim
consented) other than his or her disposition to commit
such an act.
(c) Nothing in this section affects the admissibility of
evidence offered to support or attack the credibility of
a witness.
Cal. Evid. Code § 1101.
California Evidence Code § 1108 provides, in relevant part,
that "(a) In a criminal action in which the defendant is accused of
a sexual offense, evidence of the defendant's commission of another
sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352."
Cal. Evid. Code § 1108.
California Evidence Code § 1109 is nearly identical to section
1108, except that it permits the admission of evidence of the
defendant's offenses involving domestic violence, subject to a
balancing test of the evidence's probative value against its
prejudicial effect, in accordance with section 352. Cal. Evid.
Code § 1109(a)(1).
2. Applicable Federal Law
a. Due Process Clause
Erroneous state evidentiary rulings are not cognizable in
federal habeas corpus proceedings unless the admission of evidence
violated the petitioner's rights under the Constitution. Estelle
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v. McGuire, 502 U.S. 62, 67 (1991). The Due Process Clause of the
Fourteenth Amendment provides the framework for evaluating claims
based on alleged constitutional error in state court evidentiary
rulings. See Pulley v. Harris, 465 U.S. 37, 41 (1984). Permitting
a jury to hear evidence of prior crimes or bad acts may violate due
process. See Marshall v. Lonberger, 459 U.S. 422, 438-39 n.6
(1983); Fritchie v. McCarthy, 664 F.2d 208, 212 (9th Cir. 1981)
(citing Spencer v. Texas, 385 U.S. 554, 561 (1967)). But a federal
court cannot disturb on due process grounds a state court's decision
to admit evidence of prior crimes or bad acts unless the admission
of the evidence was arbitrary or so prejudicial that it rendered the
trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355,
1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984, 990 (9th
Cir.), cert. denied, 479 U.S. 839 (1986).
The admission of other crimes evidence violates due process
where there are no permissible inferences the jury can draw from
the evidence (in other words, no inference other than conduct in
conformity therewith). See McKinney v. Rees, 993 F.2d 1378, 1384
(9th Cir. 1993); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.
1991). The relevance of the evidence of other bad acts to motive
or intent, the opportunity for the jury to weigh the credibility of
the witness's account of the other bad acts, and the trial court's
use of a cautionary instruction to limit the jury's consideration
of the other bad acts all are factors a federal court may consider
to determine whether a due process violation occurred. See Houston
v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999) (admission of similar
prior bad acts to show motive and intent, coupled with limiting
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instructions, was appropriate); Gordon v. Duran, 895 F.2d 610, 613
(9th Cir. 1990) (admission of uncharged crimes did not violate due
process where trial court gave limiting instruction to jury, jury
was able to weigh witness's credibility and evidence was relevant
to defendant's intent); Butcher v. Marquez, 758 F.2d 373, 378 (9th
Cir. 1985) (admission of uncharged offenses does not violate
constitutional rights where jury had opportunity to weigh
credibility of complaining witness and judge admonished jury to
consider incident only as evidence of intent, not as evidence of
bad character). Juries are presumed to follow a trial court's
limiting instructions with respect to the purposes for which
evidence is admitted. Aguilar v. Alexander, 125 F.3d 815, 820 (9th
Cir. 1997).
b. Confrontation Clause
The Confrontation Clause of the Sixth Amendment guarantees the
right of a defendant in a criminal prosecution "to be confronted
with the witnesses against him." U.S. Const. amend. VI. The right
to confront is more than the right to be physically present.
Instead, "the main and essential purpose of confrontation is to
secure for the opponent the opportunity of cross-examination."
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (quoting 5 J. Wigmore,
Evidence § 1395, p. 123 (3d ed. 1940)). To prevail on a claim of a
violation of this right, a petitioner must establish that the state
courts denied his rights under the Confrontation Clause by
erroneously interpreting Supreme Court precedents or unreasonably
applying the precedents to the facts in his case. See 28 U.S.C. §
2254(d).
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3. Analysis
a. Due Process Violation
1) Constitutionality of Sections 1108 and 1109
Petitioner first claims that California Evidence Code §§ 1108
and 1109 are unconstitutional because they authorize the admission
of evidence of prior uncharged acts of sexual assault and domestic
violence solely to prove propensity.
The California Court of Appeal rejected Petitioner's challenge
to sections 1108 and 1109 by citing to the California Supreme
Court's decision in People v. Falsetta, 21 Cal. 4th 903 (1999):
"In People v. Falsetta (1999) 21 Cal.4th 903 . . .
(Falsetta), our Supreme Court addressed the
constitutionality of section 1108 . . . and upheld that
provision against due process challenge. [Citation.]"
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)
Although the Supreme Court has not addressed the
constitutionality of section 1109, the Courts of Appeal
have regularly applied the reasoning of the Falsetta
decision in upholding the constitutionality of section
1109 against similar due process challenges. (See e.g.,
People v. Johnson (2000) 77 Cal.App.4th 410, 416-420,
review den. Apr. 12, 2000; People v. Hoover (2000) 77
Cal.App.4th 1020, 1026-1029, review den. Apr. 26, 2000;
People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334,
review den. May 10, 2000; People v. Jennings, supra, 81
Cal.App.4th at p. 1310; People v. Escobar (2000) 82
Cal.App.4th 1085, 1095, review den. Oct. 25, 2000.) We
agree with the reasoning in these cases and need not
repeat the discussion here. "In short, the
constitutionality of section 1109 under the due process
clauses of the federal and state [C]onstitutions has now
been settled." (People v. Jennings, supra, 81
Cal.App.4th at p. 1310.) Consequently, we reject
appellant's constitutional challenge to sections 1108
and 1109.
Opinion at 10.
While no federal court has specifically ruled on the
constitutionality of sections 1108 and 1109, several circuit courts
have upheld the use of propensity evidence under Rules 413 and 414
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The California Supreme Court noted that section 1108 was adopted
after Rule 413 of the Federal Rules of Evidence and was modeled on it.
See Falsetta, 21 Cal. 4th at 912. Rule 413 provides in pertinent
part: "(a) In a criminal case in which the defendant is accused of an
offense of sexual assault, evidence of the defendant's commission of
another offense or offenses of sexual assault is admissible, and may
be considered for its bearing on any matter to which it is relevant."
Fed. R. Evid. 413(a).
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of the Federal Rules of Evidence.5 See, e.g., United States v.
Castillo, 140 F.3d 874, 881 (10th Cir. 1998); United States v.
Mound, 149 F.3d 799, 801 (8th Cir. 1998).
The Ninth Circuit has upheld the constitutionality of Rule
414, permitting admission of evidence of similar crimes in child
molestation cases. See United States v. LeMay, 260 F.3d 1018,
1024-25 (9th Cir. 2001), cert. denied, 534 U.S. 1166 (2002). The
court held in LeMay that Rule 414 is not unconstitutional because
it is limited in its function by Rule 403. Id. at 1026-27. Rule
403 directs judges to exclude any evidence submitted under Rule 414
that is more prejudicial than probative. Id. at 1027. The court
reasoned that this balancing process eliminates any due process
concerns from Rule 414, stating: "As long as the protections of
Rule 403 remain in place to ensure that potentially devastating
evidence of little probative value will not reach the jury, the
right to a fair trial remains adequately safeguarded." Id. at
1026.
The reasoning of LeMay applies equally to this case because
the California rules are analogous to the federal rules. Evidence
that is admissible under sections 1108 and 1109 is limited by
section 352. See Cal. Evid. Code §§ 1108(a), 1109(a)(1). Section
352 parallels Rule 403 of the Federal Rules of Evidence because it
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permits a trial judge to exclude evidence when its probative value
is substantially outweighed by its prejudicial effect. See Cal.
Evid. Code § 352. As the California Supreme Court held in
Falsetta, the requirement under section 352 to balance the
prejudicial effect of the evidence against its probative value
ensures that evidence admitted under section 1108 will not infringe
on the right to a fair trial guaranteed under the Due Process
Clause. 21 Cal. 4th at 913.
Finally, the United States Supreme Court has never held that
the admission of evidence of prior crimes violates the right to due
process. See Estelle, 502 U.S. at 75 & n.5 (declining to rule on
the constitutionality of propensity evidence); Alberni v. McDaniel,
458 F.3d 860, 864-67 (9th Cir. 2006). Because habeas relief may
not be granted unless the state court decision was contrary to, or
an unreasonable application of, clearly established federal law as
determined by the Supreme Court, see 28 U.S.C. § 2254, and there is
no Supreme Court precedent that admission of propensity evidence
violates due process, the decision of the appellate court cannot be
said to have contradicted or unreasonably applied clearly
established federal law in upholding the constitutionality of
sections 1108 and 1109. See Alberni, 458 F.3d at 866-67 (under
AEDPA, habeas relief cannot be granted on claim Supreme Court has
reserved); id. at 874-75 (although habeas relief may still be
available after AEDPA on reserved issues, as to propensity evidence
there is insufficient Supreme Court authority of any kind to
clearly establish a due process right not to have such evidence
admitted) (McKeown, J., concurring in part and dissenting in part).
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2) Improper Character Evidence
Petitioner also claims that the testimony of Kathy and Jeremy
should not have been admitted because it was prejudicial under
section 352. Specifically, Petitioner argues that this evidence
was unduly consumptive of time, and the conduct did not result in a
conviction, was too remote in time, and its probative value was
outweighed by its prejudicial effect.
On appeal, the California Court of Appeal rejected
Petitioner's claim. The appellate court stated:
Here, the trial court understood its duty under
section 352 and expressly found that although Kathy and
Jeremy's evidence was prejudicial, the likelihood of
confusing the jury was present and the consumption of
time was greater, the probative value was "very great."
Further, the trial court went on: "The analysis that
Section 352 requires, I think, is supplemented by the
Falsetta case. It asks the Court to also examine
factors I think all of which you've discussed and argued
about during your arguments. [¶] The similarities, the
prejudicial impact, the likelihood of confusing and
misleading and distracting. The degree of certainty
with respect to the alleged 1108 evidence, its nature,
relevance, possible remoteness of the 1108 evidence.
[¶] On balance, and weighing all the factors the Court
must do, I'm going to allow the District Attorney to use
the 1108 and 1109 evidence as he suggested, again
limited in detail so that it is not inflammatory as he
consented to and limited in number generally so that we
do not have to look at every single event and detail."
Opinion at 12.
The appellate court affirmed the trial court's decision upon
finding that Kathy and Jeremy's testimony was properly admitted
because the trial court weighed the evidence and determined that
its probative value was high even though it was prejudicial:
. . . [T]he trial court had specifically considered
the consumption of time and implicitly found it not to
be a determinative factor in admitting the evidence.
Further, there could be no confusion here as to why none
of these acts resulted in a conviction. Kathy testified
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that she had not told anyone about these acts before.
While Kathy's eight-year relationship with appellant had
been over for two years, there is no support for
appellant's contention that one of the acts of physical
violence described by Kathy, having her teeth injured,
was remote because it happened early in their
relationship.
The trial court notes that the evidence would be
prejudicial, but determined that the inflammatory and
prejudicial nature of the evidence would be countered by
limiting the number and details regarding the prior
offenses. A review of the record reveals that the
prosecutor strictly adhered to this limitation when
presenting Kathy and Jeremy's evidence. As we noted
above, the prejudice referred to in section 352 applies
to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which
has very little effect on the issues. Here the pattern
of abuse suffered by Kathy and witnessed by Jeremy was
remarkably similar to that which Christina has suffered.
Finally, appellant argues that the testimony was
prejudicial because it led to exposing appellant to the
jurors as having committed acts of welfare fraud, which
reflected on his honestly and could have been used to
"resolve against him the issue of the credibility of
[his] denial" to the police that he committed crimes
against Christina. We agree with respondent that this
seems inconsistent with appellant's claims that he was
not able to show that Kathy committed welfare fraud.
Further, it was never established that appellant
committed welfare fraud or was being investigated for
this offense. We fail to see how appellant was
prejudiced in light of the charge to the jury that the
evidence introduced through Mr. Salazar was permitted
only to show the activities and conduct of Kathy in
relation to Santa Clara County Department of Social
Services and was only to be used for the limited purpose
of determining the credibility or believability of
Kathy.
Thus, we conclude that the trial court sufficiently
articulated its reasons for admitting Kathy and Jeremy's
evidence under section 352, and properly permitted their
evidence to be presented and argued to the jury.
Opinion at 13-14.
Because the state court's balancing test was not contrary to
but consistent with federal law, the Court finds that Petitioner's
claim for habeas relief on this basis is unwarranted.
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Therefore, Petitioner's claim of a due process violation is
DENIED.
b. Confrontation Clause Violation
Petitioner asserts that Kathy's testimony should not have been
admitted because he was not permitted to cross-examine her
regarding her commission of welfare fraud, in violation of his
right to confront witnesses under the Confrontation Clause of the
Sixth Amendment. He also claims the stipulation that Kathy
believed she had committed welfare fraud while living with
appellant did not adequately protect his rights.
Although the opportunity of cross-examination is central to a
defendant's rights under the Confrontation Clause, the right is not
limitless. The United States Supreme Court, in Delaware v. Van
Arsdall, 475 U.S. 673 (1986), ruled that while a trial court may
not prevent a defendant from cross-examining the prosecution's
witnesses, it may place limits based on the need for fairness and
order in the proceedings. The Court stated:
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge
from imposing limits on defense counsel's inquiry into
potential bias of a prosecution witness. On the
contrary, trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment,
prejudice, confusion of issues, the witness' safety, or
interrogation that is repetitive or only marginally
relevant. And as we observed earlier this Term, "the
Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent,
the defense might wish."
Van Arsdall, 475 U.S. at 679 (quoting Delaware v. Fenester, 474
U.S. 15, 20 (1985).
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Chapman v. California, 386 U.S. 18, 21,(1967).
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To prevail in this habeas challenge, Petitioner would have to
demonstrate that the appellate court's rejection of his claim of a
Confrontation Clause violation was based on an erroneous
interpretation of this law or was an unreasonable application of
the law to the facts in his case. See 28 U.S.C. § 2254(d). He has
not done so.
The appellate court held that the trial court did not abuse
its discretion in allowing Kathy to testify in the face of her
assertion of her Fifth Amendment privilege, and that even if the
trial court erred in preventing Petitioner from pursuing this line
of questioning, it was harmless. Opinion at 15. The court stated,
"The most that appellant could have done on cross-examination was
establish that Kathy had made false statements on some of her
applications for welfare. The stipulation and appellant's witness,
Mr. Salazar, established this fact." Id.
The United States Supreme Court in Van Arsdall stated that
"the constitutionally improper denial of a defendant's opportunity
to impeach a witness for bias, like other Confrontation Clause
errors, is subject to Chapman6 harmless-error analysis. The
correct inquiry is whether, assuming that the damaging potential of
the cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt." Van Arsdall, 475 U.S. at 684 (footnote added). The
appellate court was not unreasonable in finding that it could say
just that. As the appellate court pointed out, the stipulation and
Petitioner's witness, Mr. Salazar, were sufficient to establish
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that Kathy had made false statements on some of her applications
for welfare. Any further impeachment of Kathy along the lines that
the defense attempted to pursue would have added little.
The appellate court was not unreasonable in holding that
Petitioner was not denied his constitutional right to confront
witnesses when the trial court refused him permission to crossexamine Kathy concerning her commission of welfare fraud, or that
even if he was denied this right, any error was harmless under Van
Arsdall. See 28 U.S.C. § 2254(d). Accordingly, Petitioner's claim
of a confrontation clause violation fails, and his claim for habeas
relief on this basis is DENIED.
B. ERRONEOUS JURY INSTRUCTIONS
1. Background
Petitioner argues that his due process rights were violated by
the trial court's reading of (a) CALJIC Nos. 2.50.01 and 2.50.02
because they were misleading to the jury and (b) CALJIC No. 17.41.1
because it interfered with the jury's secrecy and independent
deliberations.
2. Applicable Federal Law
A challenge to a jury instruction solely as an error under
state law does not state a claim cognizable in federal habeas
corpus proceedings. See Estelle, 502 U.S. at 71-72. To obtain
federal collateral relief for errors in the jury charge, a
petitioner must show that the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process. See id. at 72; Cupp v. Naughten, 414 U.S. 141, 147
(1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643
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(1974) ("[I]t must be established not merely that the instruction
is undesirable, erroneous, or even 'universally condemned,' but
that it violated some right which was guaranteed to the defendant
by the Fourteenth Amendment.") (quoting Cupp, 414 U.S. at 146).
The instruction "may not be judged in artificial isolation," but
must be considered in the context of the instructions as a whole
and the trial record. See Estelle, 502 U.S. at 72 (quoting Cupp,
414 U.S. at 147). In other words, the district court must evaluate
jury instructions in the context of the overall charge to the jury
as a component of the entire process. See United States v. Frady,
456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145,
154 (1977)).
In reviewing an ambiguous instruction, the inquiry is not how
reasonable jurors could or would have understood the instruction as
a whole; rather, the court must inquire whether there is a
"reasonable likelihood" that the jury has applied the challenged
instruction in a way that violates the United States Constitution.
Estelle, 502 U.S. at 72 & n.4; Boyde v. California, 494 U.S. 370,
380 (1990).
A determination that there is a reasonable likelihood that the
jury has applied the challenged instructions in a way that violates
the Constitution establishes only that a constitutional error has
occurred. Calderon v. Coleman, 525 U.S. 141, 146 (1998). If
constitutional error is found, the Court also must determine that
the error had a substantial and injurious effect or influence in
determining the jury's verdict before granting habeas relief. Id.
(citing Brecht, 507 U.S. at 637).
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3. Analysis
a. CALJIC Nos. 2.50.01 and 2.50.02
Petitioner argues that the trial court's reading of the July,
2000 revised versions of CALJIC Nos. 2.50.01 and 2.50.02 deprived
him of his due process rights because these instructions
"unconstitutionally permitted the jury to find him guilty of the
charged offenses based on a preponderance of the evidence burden of
proof." Furthermore, Petitioner argues that the instructions
constituted error not amenable to harmless error analysis.
The Due Process Clause of the Fourteenth Amendment requires
the prosecution to prove every element charged in a criminal
offense beyond a reasonable doubt. In re Winship, 397 U.S. 358,
364 (1970). This principle prohibits the use of evidentiary
presumptions in a jury charge that relieve the State of its burden
of proof beyond a reasonable doubt. See Yates v. Evatt, 500 U.S.
391, 400-03 (1991). The State may adopt a rule that makes it
easier for it to meet the requirement of proof beyond a reasonable
doubt, so long as the rule does not shift or reduce the burden of
proof or otherwise violate a principle of fairness contained in the
Due Process Clause. See Montana v. Egelhoff, 518 U.S. 37, 54-55
(1996) (due process not violated by a rule excluding intoxication
as evidence to refute mens rea even though the rule made it easier
for the State to prove mens rea beyond a reasonable doubt).
The trial court read the following July, 2000 revised version
of CALJIC No. 2.50.01 to the jury:
If you find that the defendant committed a prior sexual
offense, you may, but are not required to, infer that
the defendant had a disposition to commit sexual
offenses. If you find that the defendant had this
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disposition, you may, but are not required to, infer
that [he] was likely to commit and did commit the
[crimes] for which [he] is accused in Counts 1 and 3.
[¶] However, if you find by a preponderance of the
evidence that the defendant committed prior sexual
offense[s], that is not sufficient by itself to prove
beyond a reasonable doubt that [he] committed the
crime[s] charged in Counts 1 and 3. The weight and
significance of the evidence, if any, are for you to
decide. [¶] [Y]ou must not consider this evidence for
any other purpose.]
CT 291 (brackets in original).
The trial court also read to the jury the July, 2000 revised
version of CALJIC No. 2.50.02, which referred to Count 2 and
contained the same language as CALJIC No. 2.50.01, except "domestic
violence" was substituted for "sexual offenses." CT 293.
The appellate court correctly recognized that it must view the
challenged instructions in light of the record as a whole to
determine whether there was a reasonable likelihood that the jury
applied the challenged instruction in a way that allowed a
conviction on a lesser standard than beyond a reasonable doubt.
The court concluded that "CALJIC Nos. 2.50.01 and 2.50.02, when
read along with the rest of the jury instructions regarding
standard of proof, was not misleading or likely to be misconstrued
in the manner appellant describes." Opinion at 16. The court
explained:
In determining the propriety of an instruction, we
consider the challenged language in light of the court's
entire charge to the jury as well as argument by counsel
and ask whether there is "a reasonable likelihood" the
jury understood the instructions as appellant asserts.
(Estelle v. McGuire (1991) 502 U.S. 62, 72 and fn. 4;
People v. Cain (1995) 10 Cal.4th 1, 36.) Appellant's
jury was instructed that it should read all of the
instructions as a whole and each in light of all other
instructions. (CALJIC No. 1.01.) The jury was also
instructed that appellant was presumed innocent and the
prosecution had the burden of proving him guilty beyond
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a reasonable doubt. (CALJIC No. 2.90.) Reading the
instructions as a whole, it is not reasonably likely
that the jury would have been misled into believing it
could dispense with these instructions and leap from a
finding that appellant committed the prior sexual
offenses and acts of domestic violence by a standard
higher than a preponderance to the conclusion that he
had committed the same offenses against Christina. To
so interpret the language appellant attacks would be to
ignore the clear meaning of the other instructions
given, as well as the specific admonition in CALJIC Nos.
2.50.01 and 2.50.02 that prior sexual offenses and acts
of domestic violence were insufficient alone to prove
beyond a reasonable doubt that appellant committed the
charged offenses. We presume that the jury followed the
instructions given, not that it ignored them. (See,
e.g., People v. Horton (1995) 11 Cal.4th 1068, 1121.)
We conclude that CALJIC Nos. 2.50.01 and 2.50.02 as
given did not result in appellant being convicted of the
current charges based solely on the prior sexual
offenses and domestic violence incidents to which Kathy
testified.
Opinion at 17.
The appellate court's decision was not contrary to, or an
unreasonable application of, clearly established federal law. See
28 U.S.C. § 2254(d)(1). The United States Supreme Court has made
clear that "instructions that might be ambiguous in the abstract
can be cured when read in conjunction with other instructions" and
the trial record. United States v. Jones, 527 U.S. 373, 391
(1991).
Petitioner argues that the instructions used at his trial were
like those determined to be constitutionally infirm in Gibson v.
Ortiz, 387 F.3d 812 (9th Cir. 2004). In Gibson, the State
introduced evidence of the defendant's brutal, uncharged acts of
sexual assault and domestic violence to help prove charges of rape
and child molestation. Id. at 817. The jury was instructed with
the 1996 version of CALJIC No. 2.50.01, which did not caution the
jury that the inference it could draw from the prior offense was
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not enough to prove guilt of the charged crime beyond a reasonable
doubt. Id. at 817-18. The problem was compounded by the use of a
modified version of CALJIC No. 2.50.1, which used the preponderance
of the evidence standard as the burden of proof for prior sexual
offenses. Id. at 822. The "interplay of the two instructions
allowed the jury to find that [the defendant] committed the
uncharged sexual offenses by a preponderance of the evidence and
thus to infer that he had committed the charged acts based upon
facts found not beyond a reasonable doubt, but by a preponderance
of the evidence." Id. (emphasis in original). The Gibson
instructions, carefully followed by the jury, would allow
conviction based on a finding of the preponderance of the evidence.
See id.
The instructions read at Petitioner's trial were not the same
as the those used in Gibson and did not permit a conviction upon
less that proof beyond a reasonable doubt. The jury was instructed
with the July, 2000 revised versions of CALJIC Nos. 2.50.01 and
2.50.02, which added these paragraphs:
However, if you find by a preponderance of the evidence
that the defendant committed prior sexual offense[s],
that is not sufficient by itself to prove beyond a
reasonable doubt that [he] committed the crime[s]
charged in Counts 1 and 3. The weight and significance
of the evidence, if any, are for you to decide. [¶]
[Y]ou must not consider this evidence for any other
purpose.]
CT 291, 293 (brackets in original). Given the trial court's
explicit warning against confusing the lesser standard of proof for
prior misconduct with the required higher standard of proof for the
charged crime, the state court reasonably found no likelihood that
the jury applied the challenged instructions to convict Petitioner
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based on a preponderance of evidence or any standard below proof
beyond a reasonable doubt.
Because the appellate court's rejection of Petitioner's
challenge to CALJIC Nos. 2.50.01 and 2.50.02 was not contrary to or
an unreasonable application of clearly established federal law,
this claim is DENIED.
b. CALJIC No. 17.41.1
Petitioner argues that the use of CALJIC No. 17.41.1 denied
the jury its nullification power and violated his due process
rights because it interfered with the jury's secrecy and
independent deliberations.
Petitioner's jury was instructed pursuant to the January, 1998
version of CALJIC No. 17.41.1 as follows:
The integrity of a trial requires that jurors at all
times during their deliberations conduct themselves as
required by these instructions. Accordingly, should it
occur that any juror refuses to deliberate or expresses
an intention to disregard the law or to decide the case
based on [penalty or punishment, or] any [other]
improper basis, it is the obligation of the other jurors
to immediately advise the Court of the situation.
CT 357 (brackets in original).
On direct appeal, Petitioner claimed that the trial court
committed reversible error when it instructed the jurors with
CALJIC No. 17.41.1. He alleged that the instruction violated
various federal and state constitutional provisions by infringing
on the free speech rights of the jurors and undermining their
discretion to disagree and nullify. The California Court of Appeal
denied Petitioner's claim, stating:
The California Supreme Court has recently determined
that CALJIC No. 17.41.1 "does not infringe upon
defendant's federal or state constitutional right to
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trial by jury or his state constitutional right to a
unanimous verdict . . . ." (People v. Engelman (2002)
__Cal.4th__,__ [written opn., p. 1] (hereafter
Engelman).) The court was not persuaded that, "merely
because CALJIC No. 17.41.1 might induce a juror who
believes there has been juror misconduct to reveal the
content of deliberations unnecessarily (or threaten to
do so), the giving of the instruction constitutes a
violation of the constitutional right to trial by jury
or otherwise constitutes error under state law."
(Engelman, supra, __Cal.4th at [p. 7].)
The court explained: "[A]lthough the secrecy of
deliberations is an important element of our jury
systems, defendant has not provided any authority, nor
have we found any, suggesting that the federal
constitutional right to trial by jury (or parallel
provisions of the California Constitution, or other
state law) requires absolute and impenetrable secrecy
for jury deliberations in the face of an allegation of
juror misconduct, or that the constitutional right
constitutes an absolute bar to jury instructions that
might induce jurors to reveal some element of their
deliberations." (Engelman, supra, __Cal.4th at [pp. 6-
7].) The same can be said of defendant's claims in
terms of federal and state constitutional rights to due
process.
The court in Engelman found that "[t]he instructions as
a whole fully informed the jury of its duty to reach a
unanimous verdict based upon the independent and
impartial decision of each juror. (CALJIC No. 17.40
['The People and the defendant are entitled to the
individual opinion of each juror. [¶] Each of you must
decide the case for yourself. . . .']; CALJIC No. 17.50
[instructing that in order to reach a verdict, 'all
twelve jurors must agree to the decision'].)"
(Engelman, supra, __Cal.4th at [pp. 7-8].) As the court
in Engelman noted, CALJIC No. 17.41.1 does "not contain
language suggesting that jurors who find themselves in
the minority, as deliberations progress, should join the
majority without reaching an independent judgment." (Id.
at [p. 8].)
The instruction in this case likewise conveyed the
necessity for each juror to exercise his or her
impartial, independent judgement. We reject the
argument that CALJIC No. 17.41.1 undermines the
independence of individual jurors because it might be
used to coerce "hold-out" jurors.
As to the argument that CALJIC No. 17.41.1 infringes
upon defendant's constitutional right to jury
nullification, it is without merit in light of People v.
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Williams (2001) 25 Cal.4th 441, 449-463 (Williams). The
court in Williams declared: "Jury nullification is
contrary to our ideal of equal justice for all and
permits both the prosecution's case and the defendant's
fate to depend upon the whims of a particular jury,
rather than upon the equal application of settled rules
of law . . . ." (Id. at p. 463.) The court explained
that although the possibility of jury nullification
exists because of certain procedural aspects of our
criminal justice system, a defendant does not have a
constitutional right to that possibility. (Id. at 449-
51.)
. . . .
We have no reason to believe that CALJIC No. 17.41.1
improperly impacted the jurors' deliberations in this
case. There was no jury deadlock, there were no holdout
jurors, and there was no report to the court of any
juror refusing to follow the law. In fact the jury
deliberated for less than seven hours. Thus, any error
in instructing the jury with CALJIC No. 17.41.1 would
not require reversal, regardless of the harmless error
standard employed.
Opinion at 18-21 (footnotes omitted).
In Brewer v. Hall, 378 F.3d 952 (9th Cir.) cert. denied, 543
U.S. 1037 (2004), the Ninth Circuit rejected a state habeas
petitioner's constitutional challenge to CALJIC No. 17.41.1,
holding: "It is clear . . . that the California appellate court's
holding was not contrary to or an unreasonable application of
clearly established Supreme Court precedent, because no Supreme
Court case establishes that an instruction such as CALJIC No.
17.41.1 violates an existing constitutional right." Id. at 955-56.
Here, as in Brewer, Petitioner has pointed to no Supreme Court
precedent clearly establishing that CALJIC No. 17.41.1 -- either on
its face or as applied to the facts of his case -- violated his
constitutional rights. See id. at 957.
Because the appellate court's rejection of Petitioner's claim
was not contrary to or an unreasonable application of clearly
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established Supreme Court precedent, this claim for habeas corpus
relief is DENIED.
II. CLAIMS DENIED SUMMARILY BY STATE COURT
A. INSUFFICIENCY OF EVIDENCE
1. Background
Petitioner alleges that the evidence introduced to prove he
raped and sodomized the victim was legally insufficient because it
was based on the victim's withdrawn testimony, perjury and another
witness's irrelevant testimony.
Petitioner did not raise this claim on appeal, and the state
supreme court denied the claim on habeas review without citation or
comment. Because there is no reasoned state court opinion which
discusses the claim, the Court conducts an independent review of the
record to determine whether the California Supreme Court's summary
denial of the claim was an unreasonable application of clearly
established federal law. See Himes, 336 F.3d at 853.
2. Applicable Federal Law
The Due Process Clause "protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364 (1970). A state prisoner who alleges that the
evidence in support of his state conviction cannot be fairly
characterized as sufficient to have led a rational trier of fact to
find guilt beyond a reasonable doubt therefore states a
constitutional claim, which, if proven, entitles him to federal
habeas relief. See Jackson v. Virginia, 443 U.S. 307, 321, 324
(1979).
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The Ninth Circuit has left open the question whether 28 U.S.C.
§ 2254(d) requires an additional degree of deference to a state
court's resolution of sufficiency of the evidence claims. See Chein
v. Shumsky, 373 F.3d 978, 982-83 (9th Cir. 2004) (en banc); Bruce v.
Terhune, 376 F.3d 950, 956-57 (9th Cir. 2004). However, five other
circuits have concluded that a sufficiency of the evidence claim
presents a legal determination that must be evaluated through the
AEDPA standard of review embodied in § 2254(d)(1), and no circuit has
explicitly held that a state court's Jackson inquiry is exempt from
AEDPA's standard of review. Id. at 958-59 (O'Scannlain, J.,
concurring specially).
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A federal court reviewing collaterally a state court conviction
does not determine whether it is satisfied that the evidence
established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d
335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The
federal court "determines only whether, 'after viewing the evidence
in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319).
Only if no rational trier of fact could have found proof of guilt
beyond a reasonable doubt may the writ be granted. See Jackson, 443
U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988,
992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert.
denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor
v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838
(1984).7
If confronted by a record that supports conflicting inferences,
a federal habeas court "must presume –- even if it does not
affirmatively appear on the record –- that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to
that resolution." Jackson, 443 U.S. at 326. A jury's credibility
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determinations are therefore entitled to near-total deference. Bruce
v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most
exceptional of circumstances, Jackson does not permit a federal
habeas court to revisit credibility determinations. See id. at 952
(credibility contest between victim alleging sexual molestation and
defendant vehemently denying allegations of wrong-doing not a basis
for revisiting jury's obvious credibility determination); see also
People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47
(9th Cir. 1994) (upholding conviction for sexual molestation based
entirely on uncorroborated testimony of victim).
The prosecution need not affirmatively rule out every hypothesis
except that of guilt. Wright v. West, 505 U.S. 277, 296-97 (1992)
(quoting Jackson, 443 U.S. at 326). The existence of some small
doubt based on an unsupported yet unrebutted hypothesis of innocence
therefore is not sufficient to invalidate an otherwise legitimate
conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994)
(three hypotheses regarding petitioner's fingerprints which
government failed to rebut unsupported by evidence and therefore
insufficient to invalidate conviction).
Circumstantial evidence and inferences drawn from that evidence
may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d
1355, 1358 (9th Cir. 1995). Mere suspicion and speculation, however,
cannot support logical inferences. Id.
3. Analysis
In order to prove Petitioner's guilt as to the crime of rape
under California Penal Code § 261(a)(2), each of the following
elements must have been proved according to the January, 1997 version
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of CALJIC No. 10.00, Rape -- Spouse and Non-Spouse -- Force or
Threats, which was read to the jury as follows: "(1) A male and
female engaged in an act of sexual intercourse; (2) The two persons
were [not] married to each other at the time of the act of sexual
intercourse; (3) The act of intercourse was against the will of the
alleged victim; [and] (4) The act was accomplished by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury [to the alleged victim]." CT 311 (brackets in original).
In order to prove his guilt as to the crime of forcible sodomy
under California Penal Code § 286(c)(2), each of the following
elements must have been proved according to the July, 1999 revised
version of CALJIC No. 10.20, Unlawful Sodomy by Force or Threats,
which was read to the jury as follows: "(1) A person participated in
an act of sodomy with an alleged victim; [and] [(2) The act was
accomplished against the alleged victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on [the alleged victim].]" CT 315 (brackets in original).
The evidence adduced at trial with respect to the rape and
sodomy charges is summarized above. See supra Statement of Facts,
Discussion Part I.A.1.
Viewing the evidence in the light most favorable to the
prosecution, and resolving any conflicting inferences in favor of the
prosecution, the Court finds that a rational trier of fact could have
found the essential elements of the crimes beyond a reasonable doubt.
Payne, 982 F.2d at 338. That is, a rational juror could have found
that Petitioner was guilty of the rape and sodomy charges even though
the victim claimed the sexual acts were consensual based upon:
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Petitioner's incriminating statements during the pretext phone call;
testimony from the officers and the SART nurse who observed
Christina's demeanor and injuries shortly after the incident; and
Petitioner's prior similar bad acts.
The state court's rejection of Petitioner's insufficiency of the
evidence claim was not objectively unreasonable. See Himes, 336 F.3d
at 853. Accordingly, this claim for habeas corpus relief is DENIED.
B. PROSECUTORIAL MISCONDUCT
1. Background
Petitioner claims that the prosecutor committed misconduct by
failing to disclose allegedly exculpatory information to the
defense. Specifically, Petitioner claims that the prosecutor failed
to disclose material evidence about Kathy committing welfare fraud.
Petitioner did not raise his prosecutorial misconduct claim on
direct appeal, and the state supreme court denied the claim on habeas
review without citation or comment. Because there is no reasoned
state court opinion which discusses the claim, this Court conducts an
independent review of the record to determine whether the state
court's summary denial of the claim was an unreasonable application
of clearly established federal law. See Himes, 336 F.3d at 853.
2. Applicable Federal Law
Prosecutorial misconduct is a cognizable claim in federal
habeas corpus review. The appropriate standard of review is the
narrow one of due process and not the broad one of exercise of
supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181
(1986).
A defendant's due process rights are violated when a
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prosecutor's misconduct renders a trial "fundamentally unfair." See
id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of
due process analysis in cases of alleged prosecutorial misconduct is
fairness of trial, not culpability of prosecutor").
In Brady v. Maryland, 373 U.S. 83 (1963), the United States
Supreme Court held that "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Id. at 87.
A defendant cannot claim a Brady violation if he was "aware of
the essential facts enabling him to take advantage of any
exculpatory evidence." United States v. Shaffer, 789 F.2d 682, 690
(9th Cir. 1986) (citing United States v. Brown, 582 F.2d 197, 200
(2d Cir.), cert. denied, 439 U.S. 915 (1978)); see, e.g., United
States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995) (where
government discloses all information necessary for defense to
discover alleged Brady material on its own, government is not guilty
of suppressing evidence).
3. Analysis
Petitioner has not shown that the prosecutor failed to provide
him with exculpatory material evidence in violation of Brady. The
record shows that Petitioner was fully aware of the facts
surrounding Kathy's fraudulent welfare applications. The prosecutor
submitted the following stipulation: "(1) Kathy and the defendant
are currently involved in a child custody case, (2) Kathy expected
that the defendant would bring up a possible Welfare violation,
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(3) Kathy believes that she may have violated Welfare Fraud laws
while living with the defendant." CT 222. At trial, the defense
called Mr. Salazar to testify about the welfare applications
submitted by Kathy. Thus, the Court finds no merit in Petitioner's
claim of prosecutorial misconduct relating to any alleged failure to
disclose material evidence about Kathy committing welfare fraud.
The Court notes that Petitioner's six-page prosecutorial
misconduct claim also includes another allegation dealing with the
prosecutor's failure to disclose allegedly exculpatory evidence
relating to Christina. Petitioner states,
The prosecutor, having discovered the evidence,
specifically the forced testimony of his "star"
victim/witness (Ms. Doe), a testimony whereupon he made
"verbal threats" to subject or cause to be subjected to
imprisonment [i]f she did not physically appear before
the court to aid in the prosecution of a person that the
prosecutor knew well in advance would be exonerated of
committing acts of rape, based on his victim/witness
repeated refusal to agree to testify to such. . . .
Second Am. Pet., Prosecutorial Misconduct at 6. These assertions
are too vague to establish a constitutional violation and may be
denied on that ground alone.
A petitioner must state his claims with sufficient specificity.
See Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990);
Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979). It is
well-settled that "'[c]onclusory allegations which are not supported
by a statement of specific facts do not warrant habeas relief.'"
Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v.
Borg, 24 F.3d 20, 26 (9th Cir. 1994)). Here, Petitioner's claim
relating to Christina's "forced testimony" is no more than a
conclusory assertion lacking any factual detail or reference to the
Case 4:03-cv-01808-CW Document 28 Filed 02/02/07 Page 39 of 44
United States District Court
For the Northern District of California
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record or any other document. Even when viewed in their most likely
context, his allegations do not support a claim for prosecutorial
misconduct. Accordingly, his claim for relief on this basis is
denied. See id. (affirming district court's denial of Brady claims
which did not meet specificity requirements on habeas review).
Therefore, the state court's denial of Petitioner's
prosecutorial misconduct claim was objectively reasonable. See
Himes, 336 F.3d at 853. Accordingly, Petitioner's claim for habeas
relief on this ground is DENIED.
C. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
1. Background
Petitioner raises a claim of ineffective assistance of trial
counsel because of the defense strategy counsel pursued at trial,
specifically, failing to raise the affirmative defense of consent
and to argue that Petitioner was innocent.
Petitioner raised his ineffective assistance of counsel claim
for the first time on state habeas corpus review, where it was
denied summarily without citation or comment. Accordingly, the
Court reviews this claim under the standard set forth in Himes, 336
F.3d at 853.
2. Applicable Federal Law
A claim of ineffective assistance of counsel is cognizable as a
claim of denial of the Sixth Amendment right to counsel, which
guarantees not only assistance, but effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark
for judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
Case 4:03-cv-01808-CW Document 28 Filed 02/02/07 Page 40 of 44
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For the Northern District of California
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process that the trial cannot be relied upon as having produced a
just result. Id.
In order to prevail on a Sixth Amendment ineffectiveness of
counsel claim a petitioner must establish two things. First, he
must establish that counsel's performance was deficient, that is,
that it fell below an "objective standard of reasonableness" under
prevailing professional norms. Id. at 687-88. Second, he must
establish that he was prejudiced by counsel's deficient performance,
that is, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id.
The Strickland framework for analyzing ineffective assistance
of counsel claims is "clearly established Federal law, as determined
by the Supreme Court of the United States" for the purposes of 28
U.S.C. § 2254(d) analysis. See Williams, 529 U.S. at 404-08.
A difference of opinion as to trial tactics does not constitute
denial of effective assistance, see United States v. Mayo, 646 F.2d
369, 375 (9th Cir.), cert. denied, 454 U.S. 1127 (1981), and
tactical decisions are not ineffective assistance simply because in
retrospect better tactics are known to have been available. See
Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469
U.S. 838 (1984).
Tactical decisions of trial counsel deserve deference when:
(1) counsel in fact bases trial conduct on strategic considerations;
(2) counsel makes an informed decision based upon investigation; and
(3) the decision appears reasonable under the circumstances. See
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Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The
investigation itself must be reasonable for an attorney's tactical
decision based on that investigation to be reasonable. Wiggins v.
Smith, 539 U.S. 510, 523-24 (2003). A court must consider not only
the quantum of evidence known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.
Id. at 526-27. Evidence that the challenged trial conduct resulted
from inattention rather than from strategic considerations may also
be relevant to the inquiry. Id. at 524-25. See, e.g., McDowell v.
Calderon, 107 F.3d 1351, 1358 (9th Cir.) (no ineffective assistance
where counsel's decision to concede guilt of felony murder but
contest defendant's intent to kill "best choice from a poor lot"),
amended, 116 F.3d 364 (9th Cir.), vacated in part by 130 F.3d 833,
835 (9th Cir. 1997) (en banc).
3. Analysis
A court need not address the question of counsel's deficient
performance if it finds that the petitioner was not prejudiced
thereby. See Strickland, 466 U.S. at 697. Here, Petitioner has not
shown that as a result of any of his trial counsel's actions there
is "a reasonable probability that . . . the result of the proceeding
would have been different." Id. at 694. The tactical decisions of
his trial counsel deserve deference because the record shows that
reasonable decisions were made as part of his defense strategy. See
Sanders, 21 F.3d at 1456. Even if Petitioner disagrees with his
trial counsel's decisions, a difference of opinion as to trial
tactics does not constitute denial of effective assistance. See
Mayo, 646 F.2d at 375. His counsel's decisions were informed,
Case 4:03-cv-01808-CW Document 28 Filed 02/02/07 Page 42 of 44
United States District Court
For the Northern District of California
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strategic choices which should be given deference, and the Court
finds that the state court's rejection of Petitioner's ineffective
assistance of counsel claim was not an unreasonable application of
Strickland. See Himes, 336 F.3d at 853. Accordingly, this claim
for relief is DENIED.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED as to all claims. The Clerk of the Court shall
terminate all pending motions, enter judgment and close the file.
IT IS SO ORDERED.
DATED: 2/2/07
CLAUDIA WILKEN
United States District Judge
Case 4:03-cv-01808-CW Document 28 Filed 02/02/07 Page 43 of 44
United States District Court
For the Northern District of California
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
GARIBAY,
Plaintiff,
v.
LEWIS,
Defendant. /
Case Number: CV03-01808 CW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on February 2, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.
Pamela K. Critchfield
Frances Marie Dogan
State Attorney General's Office
455 Golden Gate Avenue
Suite 11000
San Francisco, CA 94102-7004
Raul A. Garibay
P98953
Pleasant Valley State Prison
P.O. Box 8503
Coalinga, CA 93210
Dated: 2/2/07
Richard W. Wieking, Clerk
By: Sheilah Cahill, Deputy Clerk
Case 4:03-cv-01808-CW Document 28 Filed 02/02/07 Page 44 of 44 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_08-cv-02692/USCOURTS-cand-4_08-cv-02692-0/pdf.json | [
[
"Admir Alum",
"Respondent"
],
[
"Kenneth Shapiro",
"Respondent"
],
[
"Tanyan Smith",
"Respondent"
],
[
"Charles Wang",
"Petitioner"
],
[
"Zen",
"Respondent"
]
] | 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
CHARLES WANG,
Petitioner,
vs.
TANYAN SMITH; JUDGE KENNETH
SHAPIRO; ADMIR ALUM, Assistant
District Attorney; and Officer ZEN,
Respondents. /
No. C 08-2692 PJH (PR)
ORDER FOR PETITIONER TO
SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED
FOR FAILURE TO EXHAUST
Petitioner, a California state inmate, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
An application for a federal writ of habeas corpus filed by a prisoner who is in state
custody pursuant to a judgment of a state court may not be granted unless the prisoner has
first exhausted state judicial remedies, either by way of a direct appeal or in collateral
proceedings, by presenting the highest state court available with a fair opportunity to rule
on the merits of each and every issue he or she seeks to raise in federal court. See 28
U.S.C. § 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the
burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d
1103, 1104 (9th Cir. 1981).
Petitioner alleges that his conviction was reversed in part and affirmed in part by the
California Court of Appeal, and that his attempt to petition for review by the California
Supreme Court failed because his mail did not get through to the court. Pet. at 3,
(unnumbered) 7. He also has left blank the portion of the form petition that asks if he has
filed any other proceedings other than the appeal and, if so, what they were. Id. at 4-5. A
Case 4:08-cv-02692-PJH Document 9 Filed 08/05/08 Page 1 of 2
United States District Court
For the Northern District of California
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1
In California, the supreme court, intermediate courts of appeal, and superior courts
all have original habeas corpus jurisdiction. See Nino v. Galaza, 183 F.3d 1003, 1006 n.2 (9th
Cir. 1999). Although a superior court order denying habeas corpus relief is non-appealable,
a state prisoner may file a new habeas corpus petition in the court of appeals. See id. If the
court of appeals 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. at n.3.
2
review of the California Supreme Court’s website reveals no cases by petitioner.
Although one of petitioner’s claims is that he was prevented from appealing to the
California Supreme Court, which if true would have prevented him from exhausting his
claims by way of direct appeal, he does not provide any reason why he could not have
exhausted by way of state habeas petitions.1 It thus appears he has not complied with the
exhaustion requirement. Unless he can show that he has done so, or provide a basis for
avoiding the requirement, this case must be dismissed.
Within thirty days of the date this order is entered petitioner shall show cause why
this petition should not be dismissed for failure to exhaust. If he does not, the case will be
dismissed.
IT IS SO ORDERED.
Dated: August 5, 2008.
PHYLLIS J. HAMILTON
United States District Judge
G:\PRO-SE\PJH\HC.08\WANG2692.OSC-P.wpd
Case 4:08-cv-02692-PJH Document 9 Filed 08/05/08 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-90-01341/USCOURTS-ca10-90-01341-0/pdf.json | [
[
"Charles Russell Gray",
"Appellant"
],
[
"Jerry Silva",
"Appellee"
],
[
"Duane L. Woodard",
"Appellee"
]
] | FI LED
UNITED STATES COURT OF APPEALSJnited Scates Court of Appeals
Tenth Ci!"cuit
TENTH CIRCUIT
CHARLES RUSSELL GRAY,
Petitioner-Appellant,
v.
JERRY SILVA; DUANE L. WOODARD,
Attorney General,
Respondents-Appellees.
)
)
)
)
)
)
)
)
)
)
ORDER AND JUDGMENT*
JUN 2 ° 1991
ROBERT L. HOECKER
Clerk
No. 90-1341
(D.C. No. 90-S-503)
(D. Colorado)
Before LOGAN, MOORE, and BALDOCK, Circuit Judges.
This matter is before the court on petitioner Charles Russell
Gray's application for a certificate of probable cause.
Petitioner sought a writ of habeas corpus pursuant to 28
u.s.c. S 2254, challenging his state court convictions of theft of
a motor vehicle and escape from custody. He challenges the theft
conviction on the ground that the Colorado courts did not have
jurisdiction because the crime, if it occurred at all, was committed in California. Petitioner then argues that he could not be
* This order and judgment has no precedential value and shall not
be cited, or used by any court within the Tenth Circuit, except
for purposes of establishing the doctrines of the law of the case,
res judicata, or collateral estoppel. 10th Cir. R. 36.3.
Appellate Case: 90-1341 Document: 010110128195 Date Filed: 06/26/1991 Page: 1
guilty of the escape crime because at the time of his escape, he
was serving time for an invalid conviction.
The district court outlined the procedural history of
petitioner's attempts to raise this issue and dismissed the action
for failure to exhaust state remedies. The court ruled that the
federal constitutional issues had not been raised in state court,
which is a prerequisite to federal court consideration. See
Picard v. Connor, 404 U.S. 270, 275-76 (1971). After examining
the record, we find that the petitioner did exhaust state
remedies. Petitioner collaterally attacked his convictions
through separate writs of habeas corpus to the Colorado district
and supreme courts. His petitions raised several constitutional
issues relating to Colorado's jurisdiction to convict him of the
crimes charged. Although his petition to the Colorado Supreme
Court may have been procedurally defective, the Court did consider
petitioner's arguments before denying the writ. Therefore,
petitioner has satisfied the exhaustion requirement of 28 u.s.c. §
2254(b) and Picard.
We conclude, however, that petitioner has failed to make a
substantial showing of the denial of a federal right necessary for
the issuance of a certificate of probable cause under 28 u.s.c.
§ 2253. See Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983).
Colorado's criminal jurisdiction statute authorizes prosecution if
a defendant's conduct within the state constitutes an element of
the charged offense. See Colo. Rev. Stat.§ 18-1-201. In the
instant case, petitioner's control over the vehicle in Colorado is
an element of the crime of vehicle theft. Accordingly, Colorado's
-2-
Appellate Case: 90-1341 Document: 010110128195 Date Filed: 06/26/1991 Page: 2
exercise of jurisdiction was proper, see State v. Martinez, 543
P.2d 1290, 1292 (Colo. Ct. App. 1975), and denied petitioner no
federal right. Furthermore, because petitioner's conviction is
valid, he cannot prevail on his challenge to his escape conviction.
Petitioner's application for a certificate of probable cause
is denied.
AFFIRMED.
The mandate shall issue forthwith.
-3-
Entered for the Court
James K. Logan
Circuit Judge
Appellate Case: 90-1341 Document: 010110128195 Date Filed: 06/26/1991 Page: 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_15-cv-01855/USCOURTS-cand-4_15-cv-01855-12/pdf.json | [
[
"Zahed Uddin Ahmed",
"Defendant"
],
[
"Santiago Cruz",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SANTIAGO CRUZ,
Plaintiff,
v.
ZAHED UDDIN AHMED,
Defendant.
Case No. 4:15-cv-01855-KAW
ORDER REGARDING PLAINTIFF'S
2/3/19 LETTER
Re: Dkt. No. 91
On February 3, 2017, Morgan Gilhuly and Julia Graeser of Barg Coffin Lewis & Trapp,
LLP were appointed as pro bono counsel for Plaintiff Santiago Cruz for the duration of his case.
(Dkt. No. 52.)
On January 3, 2019, Ms. Graeser sent Plaintiff a letter regarding the settlement, which
included the settlement check, and stated that the amount reflected the deduction of $1,050 for
unpaid restitution as required by state law. (Dkt. No. 91-2 at 1.) The letter also reflected that this
correspondence concluded counsel’s representation. Id.
On February 6, 2019, the Court received correspondence from Mr. Cruz. (Letter, Dkt. No.
91.) Therein, Mr. Cruz attached the January 3 letter from counsel and the CDCR Inmate State
Report, dated January 14, 2019, which showed that he still had an unpaid restitution balance of
1,060.71. (Letter at 1; Inmate Statement, Ex. B, Dkt. No. 91-2 at 3.) Mr. Cruz requested that the
Court send a “summary of the judgment” or other information to prevent the state from deducting
the restitution a second time. (Letter at 1.) Since this case was settled, however, the Court does not
have a judgment to provide to Mr. Cruz.
Accordingly, Plaintiff’s counsel shall meet and confer with Defendant to address this
apparent mistake to ensure that Mr. Cruz will not pay restitution twice. If the debit has already
Case 4:15-cv-01855-KAW Document 92 Filed 02/28/19 Page 1 of 2
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United States District Court
Northern District of California
occurred, the Court is confident that defense counsel can reverse the charge and make Mr. Cruz
whole.
IT IS SO ORDERED.
Dated: February 28, 2019
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
Case 4:15-cv-01855-KAW Document 92 Filed 02/28/19 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-14-50636/USCOURTS-ca5-14-50636-0/pdf.json | [
[
"Rachel Chapa",
"Appellee"
],
[
"Maurice Goree",
"Appellant"
]
] | IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50636
Summary Calendar
MAURICE GOREE,
Petitioner - Appellant
v.
RACHEL CHAPA, Warden, FCI La Tuna,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CV-107
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Maurice Goree, federal prisoner # 36474-044, pleaded guilty in the
United States District Court for the Eastern District of Missouri to two counts
of aiding-and-abetting the armed robbery of a financial institution, in violation
of 18 U.S.C. §§ 2, 2113(a) and (d), and one count of aiding-and-abetting the
possession of a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. §§ 2, 924(c). He filed a petition under 28 U.S.C. § 2241 in the United
States District Court for the Western District of Texas, where he is
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 6, 2015
Lyle W. Cayce
Clerk
Case: 14-50636 Document: 00512890204 Page: 1 Date Filed: 01/06/2015
No. 14-50636
incarcerated. The district court construed the petition as a 28 U.S.C. § 2255
motion and dismissed it for want of jurisdiction. Proceeding pro se, Goree
challenges the dismissal.
He contends Rosemond v. United States, 134 S. Ct. 1240 (2014), requires
reversing his conviction and sentence for aiding-and-abetting the possession of
a firearm in furtherance of a crime of violence. Because Goree challenges the
validity of his conviction, his petition was properly construed as a § 2255
motion. E.g., Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). He has
not shown his claims could be brought in a § 2241 petition under the savings
clause of § 2255(e) because, even if Rosemond applies retroactively, he has not
established his claim was foreclosed previously. The law in the Eighth Circuit,
the circuit in which he was convicted, was consistent with Rosemond and, in
fact, was cited in Rosemond. 134 S. Ct. at 1249 (citing United States v. Akiti,
701 F.3d 883, 887 (8th Cir. 2012)).
Furthermore, Goree has not shown he was convicted of a nonexistent
offense, because the record supports he had the foreknowledge required under
Rosemond to be guilty of aiding and abetting his 18 U.S.C. § 924(c) offense.
See, e.g., Christopher v. Miles, 342 F.3d 378, 382-83 (5th Cir. 2003). Thus, he
has not demonstrated the remedy under § 2255 was inadequate or ineffective
to test the legality of his detention. 28 U.S.C. § 2255(e); Jeffers v. Chandler,
253 F.3d 827, 830 (5th Cir. 2001).
Accordingly, the petition was properly dismissed because the district
court lacked jurisdiction over the § 2255 motion, which could be filed, if at all,
in the district where Goree was sentenced. E.g., Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000) (citation omitted).
AFFIRMED.
2
Case: 14-50636 Document: 00512890204 Page: 2 Date Filed: 01/06/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_14-cv-00157/USCOURTS-caed-2_14-cv-00157-10/pdf.json | [
[
"Ron E. Barnes",
"Respondent"
],
[
"George Wallace",
"Petitioner"
]
] | 1
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1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GEORGE WALLACE,
Petitioner,
v.
RON E. BARNES,
Respondent.
No. 2:14-cv-0157-MCE-EFB (HC)
ORDER
Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 19, 2015, the magistrate judge filed Findings and Recommendations herein
(ECF No. 66) which were served on all parties and which contained notice that any objections to
the Findings and Recommendations were to be filed within fourteen days. Neither party has filed
objections to the Findings and Recommendations.
The Court has reviewed the file and finds the Findings and Recommendations to be
supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY
ORDERED that:
///
///
Case 2:14-cv-00157-MCE-EFB Document 71 Filed 11/17/15 Page 1 of 2
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1. The Findings and Recommendations filed October 19, 2015 (ECF No. 66) are
ADOPTED IN FULL;
2. Respondent’s Motion to Dismiss (ECF No. 64) is DENIED as moot; and
3. Respondent is directed to file a response to the Second Amended Petition within sixty
(60) days of this order.
IT IS SO ORDERED.
Dated: November 16, 2015
Case 2:14-cv-00157-MCE-EFB Document 71 Filed 11/17/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-20-06338/USCOURTS-ca4-20-06338-0/pdf.json | [
[
"Wells",
"Appellee"
],
[
"Jesse Williams",
"Appellant"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6338
JESSE WILLIAMS,
Petitioner - Appellant,
v.
WELLS,
Respondent - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:19-cv-00244-CCE-JLW)
Submitted: May 21, 2020 Decided: May 27, 2020
Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Jesse Williams, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 20-6338 Doc: 12 Filed: 05/27/2020 Pg: 1 of 2
2
PER CURIAM:
Jesse Williams seeks to appeal the district court’s orders dismissing as untimely his
28 U.S.C. § 2254 (2018) petition and denying his Fed. R. Civ. P. 59(e) motion. With regard
to the dismissal order, the district court referred this case to a magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) (2018). The magistrate judge recommended that relief be denied
and advised Williams that failure to file timely, specific objections to this recommendation
could waive appellate review of a district court order based upon the recommendation.
The timely filing of specific objections to a magistrate judge’s recommendation is
necessary to preserve appellate review of the substance of that recommendation when the
parties have been warned of the consequences of noncompliance. Martin v. Duffy, 858
F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see
also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Williams has waived appellate review
of the district court’s order dismissing his § 2254 petition as untimely by failing to file
objections to the magistrate judge’s recommendation after receiving proper notice. As to
the Rule 59(e) motion, we conclude that Williams has not made “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2018).
Accordingly, we deny a certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
USCA4 Appeal: 20-6338 Doc: 12 Filed: 05/27/2020 Pg: 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_02-cv-02322/USCOURTS-azd-2_02-cv-02322-0/pdf.json | [
[
"Yvonne Lewis",
"Plaintiff"
],
[
"Social Security Administration",
"Defendant"
]
] | 1
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1 The full title of Plaintiff's motion is Motion for Summary Judgment on
Complaint for Judicial Review of Administrative Determination on
Claims for a Period of Disability, Disability Insurance Benefits, and
Supplemental Security Income Benefits Based on Disability. [Doc. 30].
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Yvonne Lewis,
Plaintiff,
vs.
JoAnne Barnhart, Commissioner of the
Social Security Administration,
Defendant.
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No. Civ. 02-2322-PHX-MS
ORDER
This social security disability benefits case comes before the Court on
Plaintiff's Motion for Summary Judgment1
(Doc. 30) and Defendant's Cross-motion
for Summary Judgment (Doc. 33). Oral argument was held on October 24, 2005,
and this matter was taken under advisement. The Court now grants Plaintiff's
motion, denies Defendant's motion, and remands this matter for an award of
benefits.
I. Procedural Background
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2 The decision presently being reviewed is ALJ Knight's decision of April
29, 2004. The April 29th decision pertains to the period of time between
January 1, 1998 (Plaintiff's alleged onset date), and May 26, 2000 (the
day before ALJ Alden issued her favorable decision). [Doc. 25A at 28].
ALJ Alden's decision pertains to the period commencing May 27, 2000.
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Plaintiff protectively filed applications for Disability Insurance Benefits and
Supplement Security Income payments on April 20, 1999. [Doc. 25A at 154-56].
Her claims were denied initially and on reconsideration. [Id. at 136-39, 142-45].
Plaintiff obtained a hearing before Administrative Law Judge ("ALJ") Joan Knight,
who issued an unfavorable decision on May 26, 2000. [Id. at 399-415]. Plaintiff
sought review with the Appeals Council, which denied review on September 27,
2002. [Id. at 396-97]. Plaintiff filed a Complaint in this Court on November 18, 2002.
[Doc. 1]. Pursuant to stipulation of the parties, the matter was remanded because
the transcript of the administrative hearing was lost. [Docs. 21, 22].
While Plaintiff's application for review of ALJ Knight's May 2000 decision was
pending before the Appeals Council, Plaintiff filed second applications for Disability
Insurance Benefits and Supplemental Security Income payments. [Doc. 25A at 443-
46]. ALJ Nancy Alden held a hearing on Plaintiff's second applications on February
20, 2003. [Id. at 54-73]. ALJ Alden issued a favorable decision on February 27,
2003, awarding benefits based on an onset date of May 27, 2000. [Id. at 40-48].
Although ALJ Alden's decision is not now at issue,2
this Court directed in its remand
order on Plaintiff's initial claim that, "in light of allowance on the subsequent claim,
the ALJ will be instructed to consider the evidence in the subsequent claim to
determine whether there is new and material evidence relating to the prior claim and
to expedite his or her action on the Court remand." [Doc. 22].
On remand, ALJ Knight again issued an unfavorable decision, finding that
Plaintiff was not disabled between January 1, 1998 and May 26, 2000. [Doc. 25A
at 25-39]. On July 13, 2004, the Appeals Council denied review. [Id. at 16-17]. ALJ
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Knight's April 29, 2004 decision thereby became the final decision of the
Commissioner of Social Security. [Id.].
Plaintiff's case was reopened in this Court on January 13, 2005, and her
motion for summary judgment was filed on March 23, 2005. [Docs. 23, 30].
Defendants' cross-motion was filed on April 25, 2005. [Doc. 33]. At issue is whether
ALJ Knight's April 29, 2004 decision should be affirmed or whether this matter
should instead be remanded.
II. Legal Framework
A. Standard of Review
Because the Social Security Act confines the scope of judicial review to
evidence within the administrative record, the Court will treat Plaintiff’s Motion for
Summary Judgment as a motion for reversal of the Commissioner’s decision. 42
U.S.C. § 405(g); Higgins v. Shalala, 876 F. Supp. 1224, 1226 (D. Utah
1994)(collecting cases and discussing the appropriate treatment of summary
judgment motions requesting review of administrative decisions). The appropriate
standard of review is whether the ALJ’s findings of fact are supported by substantial
evidence and whether the denial of benefits was free from legal error. Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence is “relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Smolen, 80 F.3d at 1279 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971));
accord Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). To determine
whether substantial evidence exists to support an administrative decision, the Court
must “review the administrative record as a whole, weighing both the evidence that
supports and detracts from the [ALJ]’s conclusion.” Magallanes, 881 F.2d at 750.
If the evidence can support either affirming or reversing the ALJ’s decision, the
Court must uphold the decision. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir.
1995). However, reviewing courts cannot accept post hoc rationalizations for
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agency action. See, e.g., NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 444 (1965);
Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). Thus, the decision must be
upheld, if at all, on the grounds articulated in the order by the ALJ. Pinto, 249 F.3d
at 847.
B. Regulatory Disability Standards
To qualify for disability benefits under the Social Security Act, a claimant must
show that: (1) she suffers from a medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months; and (2) the
impairment renders the claimant incapable of performing the work previously
performed and incapable of performing any other substantial gainful employment
that exists in the national economy. 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The Social Security Regulations set
forth a five-step sequential process for evaluating disability claims. See 20 C.F.R.
§ 404.1520. A claimant’s claim of disability can be rejected at any stage of the
sequential process. Id.; § 404.1520. The claimant bears the burden of proof at
steps one through four of the sequential process. 42 U.S.C. § 423(d)(5); Reddick
v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The burden shifts to the Commissioner
at step five. Reddick, 157 F.3d at 721.
At step one of the sequential process, the ALJ determines whether the
claimant is currently engaged in substantial gainful activity. Tackett, 180 F.3d at
1098; § 404.1520(b). At step two, the ALJ determines, based on the medical
evidence, whether the claimant has a “severe impairment.” Id.; § 404.1520(c). If the
claimant’s impairment is not severe, then the claimant will not be considered
disabled. If the impairment is severe, the ALJ proceeds to step three and
determines whether the impairment meets or equals a specific impairment listed in
the regulations. Id.; § 404.1520(d). When the impairment “meets or equals” one of
the specified impairments, disability will be found. When the impairment does not
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meet or equal a specified impairment, the ALJ proceeds to step four and determines
whether the claimant can still perform “past relevant work.” Id.; § 404.1520(e). If the
claimant can perform such work, the claim is denied. However, if the claimant is
unable to do past relevant work, the ALJ proceeds to the fifth step and determines,
based on the claimant’s age, education, work experience and residual functional
capacity (RFC), whether the claimant can perform other work that exists in the
national economy. Id.; § 404.1520(f). If the claimant cannot, she is entitled to a
finding of disability.
III. Discussion
A. The ALJ's Findings
The ALJ in this case found Plaintiff not disabled at step five of the sequential
evaluation process. [Doc. 25A at 25-39]. At steps one through three, the ALJ
concluded that Plaintiff has not engaged in substantial gainful activity since her
alleged onset date, that Plaintiff's bilateral carpal tunnel syndrome with pronator
entrapment amounts to a severe impairment, and that Plaintiff's condition was not
severe enough to meet or medically equal one of the impairments specified in the
regulations. [Id.]. At step four, the ALJ determined that Plaintiff's reported limitations
prevented her from performing her past relevant work. [Id.]. At step five, however,
the ALJ determined that despite some limitations, Plaintiff retained the RFC to
perform a significant range of light work. [Id.]. Specifically, the ALJ concluded that
Plaintiff could perform the functions of a flagger or an unarmed guard, two jobs
existing in significant numbers in the national economy. [Id.]. Therefore, Plaintiff
was found not disabled.
B. Medical Testimony
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3 Dr. Bobb examined Plaintiff in 1999, diagnosed Plaintiff with median
nerve entrapment in both forearms, and recommended surgical
intervention. [See Doc. 25A at 32].
4 Dr. Ruggeri, an arm, shoulder and hand surgeon, treated Plaintiff in
April, 2001. He diagnosed Plaintiff with carpal tunnel syndrome and
recommended treatment with medication, vitamin B-6 and exercise. In
July of 2001, Dr. Ruggeri recommended further conservative treatment,
including the use of a short arm cock-up splint for Plaintiff's right wrist.
[See Doc. 25A at 33].
5 In November of 2001, Plaintiff was examined by Dr. McPhee at the
request of a state agency. Dr. McPhee, who specialized in physical
medicine and rehabilitation, diagnosed Plaintiff with status post bilateral
carpal tunnel release and mid-back aches. [See Doc. 25A at 33-34].
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In conjunction with assessing Plaintiff's RFC, the ALJ discussed the reports
and opinions of various physicians, including Dr. Douglas A. Bobb,3
Dr. Sebastian
B. Ruggeri,4
and Dr. Malcolm McPhee.5 The ALJ additionally considered the
opinions of two medical experts, Dr. Sherry E. Sonka-Maarek and Dr. Vincent P.
Russo. Dr. Sonka-Maarek, a physical medicine and rehabilitation specialist, testified
at the remand hearing before ALJ Knight. Dr. Russo testified at the hearing
previously held before ALJ Alden. Ultimately, ALJ Knight adopted the opinions of
Dr. Sonka-Maarek. [Doc. 25A at 34-35]. Plaintiff now challenges the ALJ's decision.
The ALJ is responsible for evaluating the opinions of each doctor, resolving
conflicts in the medical testimony, and resolving ambiguities. Morgan v. Social Sec.
Admin., 169 F.3d 595, 601 (9th Cir. 1999); Reddick, 157 F.3d at 722; Andrews, 53
F.3d at 1039. The degree of weight given to a particular physician's opinion
depends on a variety of factors. Among the relevant factors to be considered are the
relationship between the physician and patient, the length and extent of treatment,
the physician's specialty, and the support for the physician's opinion in the medical
record. 20 C.F.R. § 404.1527(d); see also Andrews v. Shalala, 53 F.3d at 1035,
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1041 (9th Cir. 1995)(discussing the weight to be given to different types of physicians'
opinions).
Both Dr. Sonka-Maarek and Dr. Russo were non-examining medical experts.
Neither physician had a treatment relationship with Plaintiff. Evidence from nonexamining sources is considered opinion evidence. 20 C.F.R. § 404.1527(f). The
weight given to opinions from non-examining sources depends "on the degree to
which they provide supporting evidence for their opinions." 20 C.F.R. §
404.1527(d)(3).
Here, the ALJ recognized that Plaintiff had "medically determinable
impairments during the time period at issue which may be expected to have resulted
in some pain and functional limitations." [Doc. 25A at 32]. Nonetheless, the ALJ
rejected Plaintiff's disability claim, in part, on grounds that the medical evidence of
record did not substantiate the severity of Plaintiff's pain. [Id.] In support of this
determination, the ALJ relied on Dr. Sonka-Maarek's statement that the medical
records she reviewed did not contain a clear description of the severity of pain
suffered by Plaintiff. [Id. at 35]. The ALJ further rejected Dr. Russo's opinion that
Plaintiff would have moderate to moderately severe pain during the time period at
issue based on her symptoms, stating that Dr. Sonka-Maarek's opinion was more
specific and would be adopted.
Plaintiff now contends that the ALJ erred by using Dr. Sonka-Maarek's
testimony as a basis for finding Plaintiff's pain less severe than alleged because Dr.
Sonka-Maarek did not consider the severity of Plaintiff's pain when assessing
Plaintiff's limitations during the relevant time period. [Doc. 31 at 3-5]. In
comparison, Dr. Russo testified that Plaintiff's moderate to moderately severe pain
would relate back to 1998. [Id.]. Plaintiff asserts that Dr. Russo's opinion was
improperly rejected, and Dr. Sonka-Maarek's opinion improperly adopted. [Id.].
Additionally, Plaintiff maintains that because she submitted objective evidence of an
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underlying medical impairment, the ALJ could not properly reject her claim on
grounds that the severity of her symptoms was not objectively verifiable. [Id.].
The Court agrees with Plaintiff that the ALJ placed undue reliance on Dr.
Sonka-Maarek's opinion. Although Dr. Sonka-Maarek testified that the medical
records under review did not reveal documentation of the severity of Plaintiff's pain,
the doctor did not affirmatively rule out the possibility that Plaintiff in fact suffered
severe pain as a result of her carpal tunnel syndrome. [See Doc. 25A at 106-07].
Indeed, Dr. Sonka-Maarek recognized that Plaintiff's medically determinable
impairment could reasonably be expected to lead to some degree of pain, even
though the degree of pain was not clearly documented. [Id. at 111]. Therefore, Dr.
Sonka-Maarek's opinion did not necessarily conflict with Dr. Russo's assessment of
moderate to moderately severe pain, and the ALJ's purported reason for rejecting
Dr. Russo's testimony was insufficient.
The Court further finds that the ALJ erroneously discredited Plaintiff's
complaints of pain on grounds that the severity of her pain was not substantiated by
her medical records. "Once a claimant produces medical evidence of an underlying
impairment which is reasonably likely to be the cause of some pain, the ALJ may not
discredit a claimant's testimony of pain and deny disability benefits solely because
the degree of pain alleged by the claimant is not supported by objective medical
evidence." Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995)(quoting Bunnell,
947 F.2d at 346-47); accord Reddick, 157 F.3d at 722. As the ALJ properly
conceded, the medical evidence of record clearly indicates that Plaintiff suffered
from carpal tunnel syndrome. [See Doc. 25A at 32-35]. Thus, accepting Dr. SonkaMaarek's observation that the severity of Plaintiff's pain was undocumented does not
mandate a conclusion that Plaintiff was not disabled. Rather, proof of the existence
of an underlying impairment necessitates further inquiry into the persistence and
intensity of Plaintiff's symptoms, including consideration of Plaintiff's subjective
complaints of pain. See 20 C.F.R. § 404.1529(c); Reddick, 157 F.3d at 722. For
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these reasons, the ALJ's reliance on Dr. Sonka-Maarek's opinion alone in
determining Plaintiff's RFC was improper.
Unless there is affirmative evidence that she was malingering, the ALJ has the
burden of presenting clear and convincing reasons for rejecting the Plaintiff’s
testimony regarding the severity of her symptoms. Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001). Analysis of the ALJ's credibility findings is therefore critical
to the determination of whether the ALJ's decision is sustainable.
C. Plaintiff's Credibility
The ALJ found that, although Plaintiff had medically determinable impairments
and limitations, Plaintiff's subjective reports of pain were not fully credible. [Doc. 25A
at 38]. Plaintiff challenges the ALJ's credibility determination on grounds that the
ALJ failed to identify specific parts of Plaintiff's testimony that were not credible and
cited reasons for rejecting Plaintiff's testimony that fall short of satisfying the clear
and convincing evidence standard. [Doc. 31 at 5-8].
It is within the province of the ALJ to make credibility determinations. An ALJ
may discredit a claimant’s testimony by providing specific, cogent reasons supported
by substantial evidence. Andrews, 50 F.3d at 749-50; Reddick, 157 F.3d at 722. In
determining whether allegations of pain support a claim of disability, the ALJ may
consider various factors, including: the claimant's daily activities, effectiveness of
pain medication, and relevant character evidence." Bunnell, 947 F.2d at 346; see
also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)(listing similar factors considered by
the ALJ in assessing a claimant's credibility). In addition, the ALJ must consider the
claimant's work record, observations of treating or examining physicians and other
third parties, precipitating and aggravating factors, and functional restrictions caused
by the symptoms. Smolen, 80 F.3d at 1284 (citing SSR 88-13); Bunnell, 947 F.2d
at 346.
As noted previously, the ALJ could not discredit the claimant's testimony about
the severity of her symptoms solely on grounds that her complaints are unsupported
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by the objective medical evidence. Reddick, 157 F.3d at 722. However, Plaintiff's
description of her own pain and other symptoms "shall not alone be conclusive
evidence of disability." 42 U.S.C. § 423(d)(5)(A); Fair, 885 F.2d at 603-04. The key
issue instead is whether the pain precludes the claimant from engaging in
substantial gainful employment. Id. Because Plaintiff produced some evidence that
she had an underlying impairment that could reasonably be expected to produce the
type of complaints she allegedly suffered, and because there is no evidence of
malingering, the ALJ could only reject Plaintiff's pain testimony for clear and
convincing reasons. Regennitter, 166 F.3d 1294, 1296 (9th Cir. 1999); Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1996).
The ALJ provided several reasons for rejecting Plaintiff's testimony. The ALJ
observed that Plaintiff was a low-income earner who had a baby in 1998. In the
ALJ's view, Plaintiff's income and parenting status "at least raise[d] the question
whether the claimant's unemployment was due to her alleged impairments." [Doc.
25A at 36]. The ALJ additionally noted that Plaintiff was not treated for chronic pain
syndrome or severe pain syndrome, that Plaintiff's medical records did not contain
clear descriptions of her pain during the relevant time period even though she sought
medical treatment for unrelated conditions, that conservative treatment was
recommended to Plaintiff, and that Plaintiff managed her pain without medication.
[Doc. 25A at 33, 35]. Finally, the ALJ opined that Plaintiff's reports to her doctors
differed from her reports to the Social Security Administration.
The Court finds that the ALJ's determinations are unsupported by clear and
convincing reasons or substantial evidence. First, the ALJ's conclusion that
Plaintiff's unemployment might be attributed to the birth of her child and her low
earnings history rather than from her disability rests on pure speculation. There is
no evidence in the record that Plaintiff was malingering or that she chose not to work
because of her personal situation. To the contrary, the record evidences the fact
that Plaintiff had a history of carpal tunnel syndrome for at least two years prior to
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6 Even the ALJ's discussion fell short of stating that the evidence was
sufficient to reject Plaintiff's testimony. The ALJ merely stated that
Plaintiff's status "at least raised the question" whether Plaintiff's
disability was the reason for her unemployment.
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the date she claimed disability. The ALJ's unsupported speculation is not a clear
and convincing reason, and is not supported by substantial evidence. See
Regennitter, 166 F.3d at 1298 (rejecting an ALJ opinion that rested on speculation);
SSR 96-7p, 1996 WL 374186 *4 ("The finding on the credibility of the individual's
statements cannot be based on an intangible or intuitive notion about an individual's
credibility).6
Second, as explained fully above, the ALJ's finding that Plaintiff likely did not
suffer the degree of pain alleged because Plaintiff's treatment records did not verify
the severity her complaints, is not itself a valid basis for rejecting her testimony.
Reddick, 157 F.3d at 722; SSR 96-7p. The fact that Plaintiff was not treated for
chronic pain syndrome also does not establish that she did not suffer pain. Similarly,
the fact that Plaintiff did not report pain associated with her carpal tunnel syndrome
to doctors who were treating her for unrelated conditions does not negate her claim
that she also suffered pain in association with her carpal tunnel syndrome. See,
e.g., Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (finding that absence
of notation of mental problems in treatment records related to claimant's physical
ailments was not probative of Plaintiff's mental condition because the doctors
treating the claimant's physical ailments "had no duty to inquire about, consider, or
document anything other than the injury for which plaintiff sought treatment").
Furthermore, Plaintiff provided a legitimate reason to explain any lack of treatment
history– she was uninsured. The ALJ erred by cursorily disregarding this
explanation. See Smolen, 80 F.3d at 1284 (finding that Plaintiff's failure to take
medication was not a clear and convincing reason for discrediting Plaintiff's
testimony where Plaintiff testified that she had no insurance).
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The ALJ additionally relied on the fact that "conservative treatment" was
recommended to Plaintiff and observed that Plaintiff "managed her pain for
significant periods of time without medication." [Doc. 25A at 33, 35]. However,
conservative treatment was recommended after Plaintiff had undergone surgery that
failed to provide long-term relief of her symptoms, and after she was informed that
future surgery would have less likelihood of success than her initial surgery. [Id. at
239]. Thus, the recommendation of conservative treatment is not at odds with
Plaintiff's claim that she suffered ongoing pain as a result of her carpal tunnel
syndrome.
Moreover, Plaintiff was prescribed medication for her pain on more than one
occasion. [Id. at 218, 225, 534, 541]. Additionally, she stated that she took overthe-counter medicine. Although Plaintiff was not extensively questioned by ALJ
Knight on remand, she explained in the hearing before ALJ Alden that she took overthe counter pain relievers because she was "not really . . . big on medicine." [Doc.
25A at 59]. Nonetheless, she testified that she continued to suffer "really bad pain."
Id. Further, as noted above, gaps in Plaintiff's treatment history can be explained
by her lack of insurance. Thus, the record does not support a conclusion that
Plaintiff effectively managed her pain for significant periods of time without
medication.
Third, the record does not clearly support all the alleged inconsistencies
between Plaintiff's reports to the Social Security Administration and the reports made
to her doctors cited by the ALJ. For example, the ALJ opined that although Plaintiff
claimed she frequently dropped items, she did not report this to her doctors. Yet,
Plaintiff did specifically report dropping things in 1996, and later reported that her
previous symptoms were recurring. [Doc. 25A at 225, 516]. She also consistently
complained to her doctors that she had pain, swelling, numbness and weakness.
[Doc. 25A at 234, 239, 276, 516]. In her testimony before ALJ Alden, she explained
that she often dropped items because she could not feel them in her hand. [Doc.
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25A at 63]. This statement is consistent with the symptoms she reported to her
doctors.
The Court also questions the ALJ's finding that Plaintiff's disability claim was
inconsistent with her medical records on grounds that Plaintiff reported to her
doctors in February 1999 that she had only been symptomatic for the three previous
months, but alleged a disability onset date of January, 1998 to the Social Security
Administration. The treatment note upon which the ALJ relied for this conclusion
reads as follows: "Had surgery on [both] hands for carpal tunnel and they are giving
me problems now. X 3 mos. they get bumps on the arms and swell and hurt really
bad..." [Doc. 25A at 516]. A fair interpretation of this note is that Plaintiff had been
experiencing bumps and swelling in her arms for three months, not that she had only
been experiencing symptoms for three months. Even construing any ambiguity in
favor of the ALJ's interpretation, however, the Court does not find the ALJ's
reasoning to be clear and convincing, especially in light of Plaintiff's medical history
before and after her alleged onset date. She reported the symptoms of carpal tunnel
syndrome on several occasions between 1996 and 2001. At most, the February
note raised a question about Plaintiff's treatment between January 1998 and
February 1999 that could have been, but was not, explored further by the ALJ.
The ALJ also found it significant that "the record in this case reveals no
restrictions recommended by a treating physician." Id. at 36. It is not clear,
however, whether Plaintiff's treating physicians were ever asked to evaluate whether
Plaintiff should be restricted from work. Further, even Dr. Sonka-Maarek, whose
opinion the ALJ adopted, determined that Plaintiff's restrictions dated from the
alleged onset date. Although Dr. Sonka-Maarek's opinion was limited as explained
above, the record reflects that Plaintiff's complaints extended as far back as 1996.
Dr. Russo also testified that Plaintiff's symptoms would relate back to her onset date.
There is no evidence indicating that a date different than the alleged onset date
should be used, and no evidence of malingering. For these reasons, the lack of
Case 2:02-cv-02322-MS Document 44 Filed 10/27/05 Page 13 of 16
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7 The Court further observes that it does not appear that the ALJ
questioned Plaintiff about this issue, or attempted to obtain records
related to her back pain.
- 14 -
unsolicited restrictions by Plaintiff's physicians does not a provide clear and
convincing reason for rejecting Plaintiff's testimony or provide substantial evidence
relating to the ALJ's residual functional capacity assessment. See, e.g., Hutsell v.
Massanari, 259 F.3d 707, 712 (8th Cir. 2001).
The final "inconsistency" found by the ALJ, that Plaintiff alleged to the
Administration that she suffered from back pain but her medical records do not
reflect treatment for back pain, finds some support in the record. The Court
observes, however, that Plaintiff did not report back pain until she filed supplemental
disability paperwork in 2001.7
[Doc. 25A at 453-475]. She also informed Dr.
McPhee, a state agency physician, that she was suffering back pain in 2001. [Id. at
33, 551]. She did not allege back pain during the period of time now in question.
Therefore, Plaintiff's medical records for the period between January 1, 1998 and
May 26, 2000 are not inconsistent with her disability claims for the contemporaneous
time period. The Court is unconvinced that Plaintiff's statement regarding back pain
on disability paperwork in 2001 provides a clear and convincing reason for rejecting
her testimony in its entirety.
The Court additionally agrees with Plaintiff that the ALJ failed to point to
specific portions of Plaintiff's testimony that were not credible. Instead, the ALJ
merely listed the aforementioned general reasons for rejecting Plaintiff's claims and
speculated about the truth of her assertions. An ALJ's credibility findings must be
sufficiently specific to allow a reviewing court to conclude that the hearing officer
rejected the testimony on permissible grounds rather than arbitrarily discrediting it.
Rollins, 261 F.3d at 856. The ALJ may not reject a claimant’s testimony without
specifically identifying the portions of the testimony found not credible and explaining
what evidence contradicts or undermines the testimony. Aukland v. Massanari, 257
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- 15 -
F.3d 1033, 1036 n.1 (9th Cir. 2001); Rollins, 261 F.3d at 856; Reddick, 157 F.3d at
722. Here, the ALJ failed in her obligation to identify the problematic testimony and
point to contradictory evidence.
For the foregoing reasons, the ALJ erred in failing to adequately consider the
Plaintiff's subjective complaints of pain.
D. Remand
Having found error, this Court must determine whether to remand for further
consideration or for the award of benefits. McCartey v. Massanari, 298 F.3d 1072,
1076-77 (9th Cir. 2002); Smolen, 80 F.3d at 1292. An award should be directed on
remand when: (1) the ALJ failed to provide legally sufficient reasons for rejecting
evidence, (2) there are no outstanding issues that must be resolved, and (3) it is
clear from the record that the ALJ would be required to find the claimant disabled
were the rejected evidence credited. Smolen, 80 F.3d at 1292; see also Benecke
v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). However, remand for further
consideration is appropriate where issues are unresolved and enhancement of the
record is required. Id.
Plaintiff argues that this case should be remanded for an award of benefits
rather than to allow further proceedings. [Doc. 38 at 7]. The Court agrees. All the
requirements of Smolen have been met. First, as explained previously, the ALJ did
not provide legally sufficient reasons for rejecting evidence of Plaintiff's pain.
Moreover, there are no outstanding issues that must be resolved on remand.
Pursuant to this Court's prior remand order, the evidence presented to ALJ Alden
was properly before ALJ Knight on remand. [Doc. 22]. At the hearing before ALJ
Alden, the vocational expert testified that a person with Plaintiff's limitations, as
established by the testimony of Plaintiff and Dr. Russo, would not be able to sustain
work. Thus, further inquiry into whether Plaintiff would be found disabled if the
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8 Additionally, Defendant conceded at oral argument that an award of
benefits would be proper were the Court to find that ALJ's reasons
were not clear and convincing and to credit Plaintiff's testimony.
- 16 -
improperly discredited evidence were credited is not required.8 It is clear that
Plaintiff would be entitled to a finding of disability. For these reasons, the Court
finds that an award of benefits is warranted. Benecke, 379 F.3d at 593; Smolen, 80
F.3d at 1292.
IT IS THEREFORE ORDERED granting Plaintiff's Motion for Summary
Judgment (Doc. 30);
IT IS FURTHER ORDERED denying Defendant's Cross-Motion for Summary
Judgment (Doc. 33);
IT IS FURTHER ORDERED remanding this matter to the Social Security
Administration, and directing the Administration to provide Plaintiff with disability
benefits for the period of time between January 1, 1998 and May 26, 2000.
DATED this 27th day of October, 2005.
Case 2:02-cv-02322-MS Document 44 Filed 10/27/05 Page 16 of 16 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_24-cv-01909/USCOURTS-caed-2_24-cv-01909-0/pdf.json | [
[
"High End Development, Inc.",
"Defendant"
],
[
"Starr Indemnity & Liability Company",
"Plaintiff"
]
] | 1
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35872444.1:10462-0206 -1-
STIPULATED DISMISSAL AND ORDER OF DISMISSAL
WOOD, SMITH, HENNING
& BERMAN LLP
7108 NORTH FRESNO STREET, SUITE 250
FRESNO, CALIFORNIA 93720-2952
TELEPHONE 559.437.2860 ♦ FAX 559.705.1934
Patrick S. Schoenburg (State Bar No. 162842)
[email protected]
WOOD, SMITH, HENNING & BERMAN LLP
7108 North Fresno Street, Suite 250
Fresno, California 93720-2952
Phone: 559.437.2860 ♦ Fax: 559.705.1934
Attorneys for Plaintiff, STARR INDEMNITY &
LIABILITY COMPANY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO DIVISION
STARR INDEMNITY & LIABILITY
COMPANY,
Plaintiff,
v.
HIGH END DEVELOPMENT, INC.,
Defendant.
Case No. 2:24-cv-01909-WBS-CKD
STIPULATED DISMISSAL AND ORDER
OF DISMISSAL
Plaintiff Starr Indemnity & Liability ("Starr") and Defendant High End Development,
Inc,("High End"), hereby stipulate under Federal Rule of Civil Procedure 41(a)(1)(ii) that this
action be dismissed with prejudice as to all claims, causes of action, and parties, with each party
bearing that party’s own attorney’s fees and costs.
DATED: December 13, 2024 WOOD, SMITH, HENNING & BERMAN LLP
By: /s/ PATRICK S. SCHOENBURG
PATRICK S. SCHOENBURG
Attorneys for Plaintiff, STARR INDEMNITY &
LIABILITY COMPANY
DATED: December 13, 2024 IRONHORSE LAW GROUP, P.C.
By: /s/ NATHAN L. SCHEG
NATHAN L. SCHEG
DYLAN Y. FUKAI
Attorneys for Defendant, HIGH END
DEVELOPMENT, INC.
Case 2:24-cv-01909-WBS-CKD Document 15 Filed 12/17/24 Page 1 of 2
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35872444.1:10462-0206 -2-
STIPULATED DISMISSAL AND ORDER OF DISMISSAL
WOOD, SMITH, HENNING
& BERMAN LLP
7108 NORTH FRESNO STREET, SUITE 250
FRESNO, CALIFORNIA 93720-2952
TELEPHONE 559.437.2860 ♦ FAX 559.705.1934
ORDER OF DISMISSAL
Pursuant to the stipulation of the parties under Federal Rule of Civil Procedure 41(a)(1)(ii),
IT IS ORDERED THAT THIS ACTION BE, AND HEREBY IS, DISMISSED WITH
PREJUDICE as to all claims, causes of action, and parties, with each party bearing that party’s
own attorney’s fees and costs. The Clerk is directed to close the file.
Dated: December 17, 2024
Case 2:24-cv-01909-WBS-CKD Document 15 Filed 12/17/24 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca3-09-01036/USCOURTS-ca3-09-01036-0/pdf.json | [
[
"Commissioner of Internal Revenue",
"Appellee"
],
[
"David Jahn",
"Appellant"
]
] | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1036
___________
DAVID JAHN,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
____________________________________
On Appeal from the United States Tax Court
(T.C. No. 07-6162)
Tax Court Judge: Honorable Maurice B. Foley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 17, 2010
Before: FUENTES, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 20, 2010)
___________
OPINION
___________
PER CURIAM
David Jahn did not file an income tax return for several years, including 2004.
The Commissioner executed a return for him pursuant to Internal Revenue Code
(“I.R.C.”) § 6020(b). In the return, the Commissioner allowed Jahn the standard
Case: 09-1036 Document: 003110259330 Page: 1 Date Filed: 08/20/2010
2
deduction and assessed a deficiency. Jahn filed a petition in Tax Court to challenge the
determination, arguing in pertinent part that he was entitled to itemize deductions. The
Tax Court disagreed. Jahn appeals.
We have jurisdiction pursuant to 26 U.S.C. § 7482. Our review of the Tax Court’s
resolution of a question of law is plenary. See Lerman v. Commissioner, 939 F.2d 44, 46
(3d Cir. 1991). Upon review, we will affirm the Tax Court’s decision.
As the Tax Court held, a taxpayer must file a return in order to itemize deductions.
The I.R.C. provides that “unless an individual makes an election under [I.R.C. § 63(e)]
for the taxable year, no itemized deduction shall be allowed for the taxable year.” I.R.C.
§ 63(e). The I.R.C. also directs that the election “shall be made on the taxpayer’s return.”
Id. Jahn did not file a return or properly claim itemized deductions on a return, so he was
not entitled to them. See id.; see also I.R.C. § 63(b) (stating that an individual who does
not elect to itemize his deductions for the taxable year is entitled to the standard
deduction). In his reply brief, Jahn urges us to interpret the word “shall” in I.R.C.
§ 63(e)(2) (“[a]ny election . . . shall be made on the taxpayer’s return”) as permissive
instead of mandatory. See R.R. Co. v. Hecht, 95 U.S. 168, 170 (1877). However, in the
context of I.R.C. § 63(e), which uses the word “may” to denote a permissive action, see I.R.C.
§ 63(e)(3), we conclude that “shall” describes a mandatory requirement.
Jahn also argues that he was denied his right under 26 U.S.C. § 6213 to file a
petition with the Tax Court for the redetermination of a deficiency. He further contends
Case: 09-1036 Document: 003110259330 Page: 2 Date Filed: 08/20/2010
We note that Jahn provided no reason why he did not raise the argument in his 1
proposed supplemental brief sooner. In any event, the argument would not have changed
the disposition of this case.
3
that the Tax Court erred by failing to consider his evidence, namely his statement of
deductions and exemptions. We reject his contentions. He filed, and the Tax Court
considered, his petition for redetermination of the deficiency. A decision unfavorable to
him is not equivalent to a denial of the right to petition for a redetermination of a
deficiency. Furthermore, in coming to its decision, the Tax Court recognized that Jahn
sought to itemize deductions (and heard his other arguments, including his argument
relating to why he should not sign a tax return). Although Jahn initially mentioned
exemptions in his petition and repeats the fleeting reference in his opening brief on
appeal, we conclude that he has waived the issue, having nowhere developed it. See
Emerson v. Thiel College, 296 F.3d 184, 190 n.5 (3d Cir. 2002); cf. DIRECTV, Inc. v.
Seijas, 508 F.3d 123, 125 n.1 (3d Cir. 2007).
For these reasons, we will affirm the Tax Court’s decision. We deny Jahn’s
motion for leave to file a supplemental brief.1
Case: 09-1036 Document: 003110259330 Page: 3 Date Filed: 08/20/2010 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-04030/USCOURTS-ca10-15-04030-0/pdf.json | [
[
"Jon T. McBride",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JON T. MCBRIDE,
Defendant - Appellant.
No. 15-4030
(D.C. No. 1: 13-CR-00027-TS-1)
(D. Utah)
ORDER AND JUDGMENT*
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
Jon T. McBride made a lot of money but did not report any of it to the Internal
Revenue Service (IRS). And when it came knocking at his door, he took steps to hide his
assets. He told the jury his actions were justified because he “sincere[ly]” believed none
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
FILED
United States Court of Appeals
Tenth Circuit
July 25, 2016
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 1
- 2 -
of his earnings constituted “income” and claimed he was not “hid[ing]” his assets but
merely “protect[ing]” them based on those sincerely-held beliefs. (R. Vol. 2 at 639-40,
669, 694-95.) The jury did not buy it and convicted him of several tax-related counts.
He claims prosecutorial misconduct based on several closing remarks the prosecutor
made in rebuttal argument. Most of the comments were not improper but even the
improper ones do not warrant reversal.
I. Background
We recite the facts in the light most favorable to the jury’s verdict. United States
v. Pablo, 696 F.3d 1280, 1284 n.5 (10th Cir. 2012). From 1998 to 2009, McBride earned
substantial income selling cell phone belt clips, first through The Clip Company and then
through Cliphanger, both limited liability companies (LLCs).1
He failed to report any of
it to the IRS. For instance, McBride earned $109,785 from The Clip Company in 2005;
yet the only income he reported on his 2005 individual tax return (Form 1040) was
$3,662 in interest earnings. He listed his occupation as “American Citizen” and stamped
the return: “Not Liable.” (Supp. R. Vol. 2 at 2-3, 5-6.) Two years later, he filed an
amended return for 2005 (Form 1040X). This time he attached the Schedule K-1 he had
received from The Clip Company showing the $109,785. Yet he did not report this
1
An LLC is a “flow through entity,” meaning it does not pay taxes on its earnings;
instead, its earnings are passed on to its owners, called members, based on their
ownership share. (R. Vol. 2 at 92.) The members in turn are required to report these
earnings as income on their individual tax returns (Form 1040) and pay taxes on those
earnings. An LLC provides its members with a Schedule K-1 reporting each member’s
earnings. Although it does not pay taxes, an LLC must still file a “partnership return”
(Form 1065) with the IRS reporting its earnings.
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 2
- 3 -
amount as income on the amended return. In the section of that return allowing for an
explanation of the reasons for the amended return, McBride wrote: “I HAVE . . .
ATTACHED A K-1 FROM THE CLIP CO. LLC. THE CLIP CO. LLC IS NOT A
FEDERALLY CONNECTED BUSINESS. IT IS PRIVATE. ALL PROCEEDS
(REVENUE) I RECEIVED WERE NOT FEDERALLY CONNECTED. ALL
EARNINGS RECEIVED WERE PRIVATE SECTOR EARNINGS.” (Supp. R. Vol. 2 at
8.) McBride continued these antics from 2006 to 2009. During this time period, he
earned over $400,000 from The Clip Company and Cliphanger.2
Yet he reported no
income on his 2006 tax return, did not file a 2007 tax return, and did not report any of
these earnings on his 2009 return.3
Not only did McBride not report his earnings from The Clip Company and the
Cliphanger, he also failed to report other income. In 2006, he sold his vacation home in
Garden City, Utah. A few days before closing, he transferred his interest in the home to
2
McBride’s businesses experienced losses in 2008. He did not have any taxable
income for 2008.
3
Starting in 2006, McBride created nominee entities to distance himself from his
earnings. In 2006, he formed Ho Hsing Plastics Industries, LLC, to replace him as a
member in The Clip Company and Cliphanger. The next year, he formed Mainstar
Electric, LLC, to replace Ho Hsing Plastics as a member in Cliphanger. Although
McBride was no longer a named member of The Clip Company and Cliphanger, the
money Ho Hsing and Mainstar made as members of these entities passed through to
McBride. He was to report it to the IRS on his individual tax returns. As already
indicated, he did not do so. He was also responsible for filing partnership returns for Ho
Hsing and Mainstar with the IRS to report the money these entities received as members
of The Clip Company and the Cliphanger. He did not do so for Ho Hsing in 2006 and
2007 and, although he filed a return with the IRS for Mainstar for 2007, he falsely
reported no income.
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 3
- 4 -
J&J Trust; after the sale, he directed the trust to use the proceeds (over $200,000) to pay
down the mortgage on his primary residence. That same year, McBride received over
$27,000 in retirement distributions. He did not report the sale proceeds or the retirement
distributions as income on his 2006 return.
McBride also took steps to hide his assets from the IRS. In 2006, he and his wife
transferred their interest in their primary residence to Pacific Homes, an LLC established
under New Mexico law, which does not require disclosure of an LLC’s members.
McBride also did not have a personal bank account; instead, he used his wife’s bank
account or those of his nominee entities, see supra n.3, to pay his personal expenses.
McBride was indicted with one count of filing a false tax return (the 2005
amended return) in violation of 26 U.S.C. § 7206(1) (Count 1) and three counts of
attempted evasion of a tax assessment (for the tax years 2006, 2007 and 2009) in
violation of 26 U.S.C. § 7201 (Counts 2-4). At trial, McBride relied on the good-faith
defense. See Cheek v. United States, 498 U.S. 192 (1991). He testified to sincerely
believing his business earnings, retirement distributions, and the proceeds from the sale
of his vacation home did not constitute “income” and therefore were not subject to tax.
He also claimed he was not “hid[ing]” his assets but merely “protect[ing]” them from the
IRS based on his sincerely held beliefs. (R. Vol. 2 at 694-95.) The jury was not
persuaded and convicted him on all four counts. He was sentenced to 27 months
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 4
- 5 -
imprisonment.4
II. Discussion
McBride argues the prosecutor made improper remarks during rebuttal closing
argument. He filed a motion for a mistrial or new trial, challenging the improper
comments. The judge denied the motion. Our review is for an abuse of discretion.5
United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).
4
McBride was also indicted with evading the payment of taxes due ($839,328) for
1999 to 2002 (Count 5). The jury acquitted him on this count and the judge declined to
consider it as relevant conduct for purposes of sentencing. We need not discuss it in any
significant detail. For our purposes it suffices to say that the $839,328 tax assessment
resulted from an IRS audit of The Clip Company and McBride from 2004 to 2005.
McBride responded to the amount personally assessed against him with his belief that his
earnings from The Clip Company did not constitute “income”—the same theory he used
to justify his non-payment of taxes from 2005 to 2009 (Counts 1-4). But the jury also
heard evidence that McBride and his partner in The Clip Company had hired an attorney
to appeal from the taxes assessed against the company and that appeal was never
resolved. Moreover, there was evidence that McBride reasonably believed that the
company’s appeal had to be resolved before his tax liability for 1999 to 2002 could be
determined. This evidence, which was not applicable to Counts 1-4, may explain the
reason for the acquittal on Count 5, which required the government to prove, among other
things, that McBride “owed substantial income tax in addition to the tax liability which
he reported on his income tax returns for tax years 1999 to 2002” and had “willfully”
evaded the payment of the taxes. (R. Vol. 1 at 282.)
5
According to McBride, we should apply de novo review, which we do when a
trial court overrules a contemporaneous objection to prosecutorial misconduct but the
defendant makes no post-trial motion. Gabaldon, 91 F.3d at 94. He claims it is unfair to
subject him to an abuse of discretion standard simply because he later put his
contemporaneous objections in a motion. Doing so, he claims, discourages defendants
from seeking relief from the trial court in the first instance. But we cannot overturn
Gabaldon absent an intervening Supreme Court or en banc decision invalidating it.
United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1333 (10th Cir. 2003). In any
event, McBride is benefitting from his post-trial motion because it subjects the comments
to which he did not object to the abuse of discretion standard rather than the more
onerous plain error standard. See United States v. Fleming, 667 F.3d 1098, 1103 (10th
Cir. 2011).
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 5
- 6 -
A. Improper Remarks
During closing argument, defense counsel argued extensively as to how McBride
sincerely believed his earnings were not income and therefore were not subject to tax and
this good-faith belief constituted a complete defense on all counts. He also claimed
McBride was not hiding anything from the IRS. Specifically as to Count 1, he argued
McBride had not made a false statement on his 2005 amended tax return because,
although he reported no income in the appropriate box on the return, he did attach the
Schedule K-1 revealing his earnings. According to defense counsel, such conduct was
not a failure to “report” income, an element of the offense. (R. Vol. 1 at 268, Supp. R.
Vol. 1 at 66.)
In rebuttal, the prosecutor began by appealing to the jurors’ common sense:
“Thank goodness, ladies and gentlemen, for common sense, your common sense. Mr.
Rice [defense counsel] has just spent a lot of time asking you to suspend common sense.
Common sense is probably the most valuable tool you have for evaluating the evidence in
the case.” (Supp. R. Vol. 1 at 69.) A short time later, the prosecutor responded to
defense counsel’s argument that attaching the Schedule K-1 to the 2005 amended return
satisfied McBride’s duty to “report.” (Id. at 71.) He told the jury such conduct is not
“reporting” income, especially when McBride indicated on the amended return it was not
income. (Id.) He added: “So [the IRS is] supposed to divine that it is income when he
says it’s not income, [it is] supposed to divine that . . . he meant to put it on the 1040 but
he didn’t and put it on for him. That’s just a ruse, ladies and gentlemen, just a ruse, and
in defiance of common sense.” (Id. at 71-72.) Defense counsel immediately objected to
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 6
- 7 -
the term “ruse.” Before the judge could respond, the prosecutor quipped: “Well, it’s a
double ruse then.” (Id. at 72.) The judge warned the prosecutor to “be careful, please.”
(Id.) Later, in responding to defense counsel’s argument regarding Count 5, to which the
jury ultimately acquitted, see supra n.4, the prosecutor referred to “[defense] counsel
[having] taken us down a long detour that led to a dead end . . . .” (Id. at 75.)
The prosecutor then turned to refuting the sincerity of McBride’s beliefs, arguing
they constituted a disagreement with the law, which does not satisfy the good-faith
defense. He concluded rebuttal with the following:
Ladies and gentlemen, having earned millions of dollars, Mr. McBride
decided to pick up the bogus philosophy to try to save what he had left. To him
paying taxes, it seems, is for schmucks, working stiffs like you and me, who go to
work everyday, earn our keep, and pay our taxes. He placed himself above that.
It’s the ultimate irony, ladies and gentlemen, that Mr. McBride, who speaks so
passionately about his love for the Constitution, has taken a course that would
present a great danger to the Constitution of the United States. The Constitution is
based on a few bedrock principles that we hold dear. One of them is that we are a
nation ruled by laws, not by men. There are very few countries that can say that.
(Id. at 87.)
At this point, defense counsel lodged an objection, claiming the prosecutor was
improperly inciting the jury. The judge told the prosecutor to “[g]o ahead.” (Id.) The
prosecutor continued:
There are two things that remind me of this great principle. One is when
the Office of the Presidency of the United States changes hands from one political
party to another. That’s inspiring. The other experience that reminds me of the
rule of law is when I walk into this building, because it is here that the rule of law
is acted out each and everyday.
Mr. McBride stands in opposition to the rule of law. He stands for the
proposition that each person may be a law unto himself. If we don’t like the law,
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 7
- 8 -
we just interpret it our way. If I don’t like to pay taxes, I just adopt the belief that
earnings are not income and hope to fool people into thinking I’m acting in good
faith. Where would that lead, ladies and gentlemen? It would lead to anarchy and
chaos.
Perhaps none of us loves paying taxes, but we do it, don’t we? We may
grumble a bit, but we do it because we’re in this together. This great country
thrives because the vast majority of its people have accepted a priceless social
contract, a common commitment to do our part to maintain this country’s
greatness. We pay our taxes because we want to contribute to the wellbeing of our
communities and our nation, we pay them because we don’t want to be a burden,
our -- we don’t want the burden of our taxes to fall on others. And if there are
those who, through no fault of their own, can’t pay, we gladly carry their load. If
we didn’t, who would pay for the freeways that Mr. McBride drives on everyday,
who would pay for the airport security that protects him on his flights to China, if
we didn’t, who would pay his medical expenses when he gets old, and for that
matter, who would pay ours? Those things cost money. Mr. McBride has been
enjoying them for free for the past nine years or more. And whether he pays
another dollar of taxes, we’ll keep paying ours. But if he’s getting a free pass,
ladies and gentlemen, by committing the crimes charged in this Indictment, then it
is time to hold him accountable in the interest of what we hold dear. Thank you.
(Supp. R. Vol. 1 at 87-89.)
B. Analysis
Evaluating a claim of prosecutorial misconduct is a two-step process. United
States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011). First we ask “whether the
conduct was, in fact, improper.” United States v. Oberle, 136 F.3d 1414, 1421 (10th Cir.
1998) (quotation marks omitted). If so, we then determine whether reversal is warranted.
Id. When the alleged prosecutorial misconduct is based on improper argument by the
prosecutor, we will not overturn a conviction unless the misconduct “was enough to
influence the jury to render a conviction on grounds beyond the admissible evidence
presented.” Id. (quotation marks omitted). In so deciding, we do not consider the
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prosecutor’s remarks in a vacuum. Id. Rather, we consider the trial as a whole, including
the trial court’s curative acts, the extent of the misconduct, and its role within the case.
Id. Factors relevant to determining whether a prosecutor’s argument deprived the
defendant of fair trial include “whether the instance was singular and isolated, whether
the district court instructed the jury that the attorneys’ argument was not evidence, and
whether there was substantial evidence of the defendant’s guilt.” Id.
The prosecutor’s appeal to the jurors’ “common sense” was not improper. Jurors
are permitted to use their common sense to evaluate the evidence. Webb v. United States,
347 F.2d 363, 364 (10th Cir. 1965) (“[T]he jury’s function [in a criminal case] is broad
enough to allow it to make common sense inferences from proven facts . . . .”); see also
United States v. Durham, 211 F.3d 437, 441 (7th Cir. 2000) (“[I]t is well established that
juries are allowed to draw upon their own experience in life as well as their common
sense in reaching their verdict. While common sense is no substitute for evidence,
common sense should be used to evaluate what reasonably may be inferred from
circumstantial evidence.”) (quotation marks omitted). Nor was the “long detour”
comment inappropriate. Placed in context, it was not a personal attack on defense
counsel. Rather, it was nothing more than the prosecutor’s response to defense counsel’s
claim that the IRS’s mishandling of the Clip Company and McBride’s appeals negated
liability on Count 5. Essentially, the prosecutor claimed any mishandling of those
appeals was irrelevant to McBride’s liability. Obviously, the jury did not agree because it
rendered an acquittal on that count. The jury’s decision reveals it not to have been
improperly influenced by the comment.
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The “ruse” remark was also not improper. It was made in reference to McBride
attaching his Schedule K-1 to his 2005 amended return. Thus, far from attacking defense
counsel personally, it was a fitting characterization of McBride’s actions and an
appropriate argument in response to defense counsel’s claim that McBride did “report”
his income on the 2005 amended return because he attached the Schedule K-1. See
United States v. Anaya, 727 F.3d 1043, 1056 (10th Cir. 2013) (“We generally give
prosecutors latitude in making closing arguments when defense counsel ‘invites’ the
argument.”).6
The “double ruse” remark is trickier (no pun intended). It is unclear how
McBride’s actions in attaching his Schedule K-1 to his amended 2005 return constitute
6
McBride also claims the prosecutor misstated his argument concerning the 2005
amended return. According to him, he never suggested or implied that he intended to list
his earnings as taxable income on the amended return but failed to do so due to
inadvertence or mistake. Rather, he claimed that by attaching his Schedule K-1 to the
return, he had reported his income. But the “ruse” remark was just a small portion of the
prosecutor’s response to defense counsel’s argument concerning the amended return.
That response, in its entirety, shows no misstatement:
[W]ith respect to . . . the Amended Return that was filed by Mr. McBride, his
counsel has represented that he did report his income because he attached a K-1.
That’s not reporting your income. A 1040 is for reporting your income. You
know that, I know that. That’s common sense. That’s what that form is for. The
K-1 is a form for Cliphanger to report the income paid to McBride. So he puts a
zero on his 1040, but you can’t expect the IRS to go in and take a number from . . .
the K-1 and put it on a 1040. That’s not the IRS’s job to tamper with a return and .
. . change the numbers on the return. That would be a violation of law, in fact, for
the IRS to do that, and especially where he says on the K-1 that this is not income.
So [the IRS is] supposed to divine that it is income when he say it’s not income,
[its] supposed to divine that . . . he meant to put it in the 1040 but he didn’t and put
it on for him. That’s just a ruse . . . and in defiance of common sense.
(Supp. R. Vol. 1 at 71-72.)
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two acts of trickery. And the comment was made immediately after defense counsel
objected. Personal attacks on defense counsel are improper. Stouffer v. Trammell, 738
F.3d 1205, 1221 (10th Cir. 2013). Some might say the remark was directed at defense
counsel personally. But, in truth, it was directed at counsel’s argument—fair game.
Moreover, it was a stray remark made in response to defense counsel’s objection to
which the judge cautioned the prosecutor. And it was a mere two words of a rebuttal
closing argument transcript numbering almost 20 pages and of a trial transcript spanning
over 700 pages.
On the other hand, the prosecutor’s remarks in his rebuttal argument inviting the
jurors to convict based on their pecuniary interests as taxpayers are most likely improper.
United States v. Morris, 573 F. App’x 712, 725 (10th Cir. 2014) (unpublished)
(“‘Remarks invoking the individual pecuniary interests of jurors as taxpayers are
universally viewed as improper.’”) (quoting United States v. Palma, 473 F.3d 899, 902
(8th Cir. 2007)); see also United States v. Lopez-Medina, 596 F.3d 716, 740 (10th Cir.
2010) (“The cardinal rule of closing argument is that counsel must confine comments to
evidence in the record and to reasonable inferences from that evidence.”) (quotation
marks omitted). It was coupled with commentary suggesting to the jury that it had a civic
duty to convict to prevent “anarchy and chaos” and other social ills. See United States v.
Rogers, 556 F.3d 1130, 1143 (10th Cir. 2009) (“Prosecutors are not permitted to incite
the passions of a jury by suggesting they can act as the community conscience to
society’s problems.”) (quotation marks omitted); Wilson v. Sirmons, 536 F.3d 1064, 1120
(10th Cir. 2008) (“It is improper for a prosecutor to suggest that a jury has a civic duty to
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convict.”) (quotation marks omitted); United States v. Taylor, 514 F.3d 1092, 1095 (10th
Cir. 2008) (“Appeals about the need to address societal ills speak not to the question
whether the accused committed the crime alleged, but divert attention from that
dispositive question and confuse the task of the jury—as finder of fact—with the task of
elected officials—as the authors of social policy.”); but see Fleming, 667 F.3d at 1104
(the restriction against inciting the passions of a jury “is balanced . . . by the
acknowledgment that in an emotionally charged trial, the prosecutor’s closing argument
need not be confined to such detached exposition as would be appropriate in a lecture”)
(quotation marks omitted). That combination of argument may well have pushed the
remarks over the line. But that is only the beginning, not the end, of our analysis.
Reversal is not warranted in this case. Although the judge did not specifically tell
the jury to disregard the “double ruse” remark, he did warn the prosecutor to “be careful.”
(Supp. R. Vol. 1 at 72.) The jury likely interpreted that warning as indication the
comment was inappropriate or, at the very least, close to the line. McBride did not seek
further instruction to ameliorate any harm. In any event, as to any possibly improper
comments, the jury was told its verdict must be based on the evidence and that the
argument of counsel was not evidence.7
We presume jurors follow their instructions.
7
Before trial, the jury was told “[s]tatements, arguments, and questions by
lawyers” and “[o]bjections to questions” are not evidence. (R. Vol. 1 at 249.) After the
close of the evidence, the jury was again told “not to consider the opening statements and
the arguments of counsel as evidence.” (Id. at 257.) McBride argues these standard
instructions did nothing to cure the misconduct in this case because they address the
situation where a prosecutor attempts to fill holes in the government’s case with
(Continued . . .)
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United States v. Almaraz, 306 F.3d 1031, 1037 (10th Cir. 2002).
Importantly, the extent of the possible misconduct was minimal. The concluding
remarks were lengthy but they still spanned less than three pages of transcript. And,
while the record indicates the prosecutor’s rebuttal closing argument may have been
scripted, there is no indication the “double ruse” comment was anything other than a
spontaneous, off-the-cuff remark to defense counsel’s objection. Lopez-Medina, 596
F.3d at 740 (“We have often held that a stray improper remark in closing is no basis for
upsetting a trial and requiring the parties and district court to redo their ordeal.”)
(quotation marks omitted).
The role of the claimed misconduct at trial was negligible. The concluding
remarks, even if technically inappropriate, merely stated the obvious—that tax revenues
are used to fund public services and if an individual ignores his responsibility to pay his
taxes the burden to fund those services falls on those who do. See Morris, 573 F. App’x
at 725 (no plain error where prosecutor argued that when the defendant stole from the
IRS, it stole from the jury; “[i]t would surprise no jury to learn that IRS refunds consist of
taxpayer dollars—and that fraudulently obtaining refunds depletes tax revenues”). They
were also interspersed with proper argument, weakening their improper effect.8
In any
argument. He says the problem in this case is that “the prosecutor’s remarks teach the
jury that defense counsel is a liar and the defendant a threat to the very fabric of the
nation.” (Appellant’s Reply Br. at 19.) We disagree. The standard instructions told the
jury that its verdict cannot be based on the prosecutor’s argument, improper or not.
8
The evidence and the reasonable inferences from that evidence demonstrated
McBride “earned millions of dollars,” “decided to pick up the bogus philosophy to try to
(Continued . . .)
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event, there is no indication the jury convicted McBride based on these comments (or, for
that matter, the “double ruse” remark or the combination of both), as opposed to the
evidence. Indeed, had the comments so inflamed the passions of the jury, it seems
unlikely it would have acquitted on Count 5.
Finally, the evidence at trial overwhelmingly established McBride’s guilt. As to
Count 1, he reported zero income on his 2005 amended return even though the Schedule
K-1 he received from The Clip Company for 2005 (and which he attached to the
amended return) showed that was not true. With regard to Counts 2-4, the evidence
revealed he (1) earned over $400,000 from The Clip Company and Cliphanger from 2006
to 2009, (2) netted substantial proceeds from the sale of his vacation home, and (3)
received over $27,000 in retirement distributions. Yet, he reported none of it to the IRS.
And although McBride testified he sincerely believed these things were not income and
therefore not subject to tax, there was ample other evidence demonstrating this belief was
not sincere but rather a convenient theory he adopted to avoid paying taxes. Or the jury
could have simply disbelieved him. United States v. Oliver, 278 F.3d 1035, 1043 (10th
Cir. 2001) (“It is left to the jury to weigh conflicting evidence and to consider the
credibility of witnesses.”) (quotation marks omitted).
McBride’s arguments are unconvincing, not to mention damning in the
save what he had left,” “placed himself above [paying taxes],” “stands in opposition to
the rule of law” and “[didn’t] like to pay taxes, [so he] adopt[ed] the belief that earnings
are not income and hope[d] to fool people into thinking [he’s] acting in good faith.”
(Supp. R. Vol. 1 at 87-88.)
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desperation they reveal. He claims the prejudice resulting from the “double ruse” and
concluding remarks was exacerbated by the fact they were made by a prosecutor, whose
opinions carry the imprimatur of the government, in rebuttal closing argument, the last
thing the jury heard before beginning its deliberations and at a time when he no longer
could respond. He also claims the judge “compound[ed] the prosecutorial impropriety
with judicial imprimatur” by not taking curative action. (Appellant’s Op. Br. at 25.) But
our review of prosecutorial misconduct obviously accounts for the fact it occurs at the
hands of the prosecutor. Similarly, our abuse of discretion standard of review accounts
for the fact that judges may sometimes (and properly) leave prosecutorial misconduct
uncorrected. Finally, the context in which prosecutorial misconduct occurs is important
and has been considered in this case. But reversal is only required if that misconduct
deprived McBride of a fair trial. While it may not have been perfect, it was abundantly
fair. United States v. Brooks, 727 F.3d 1291, 1307 (10th Cir. 2013) (“It is a well-settled
principle that a litigant is entitled to a fair trial, albeit not a perfect one.”) (quotation
marks omitted).
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
Appellate Case: 15-4030 Document: 01019661775 Date Filed: 07/25/2016 Page: 15 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-alsd-1_03-cv-00615/USCOURTS-alsd-1_03-cv-00615-1/pdf.json | [
[
"Jo Anne B. Barnhart",
"Defendant"
],
[
"Annie C. Holmes",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANNIE C. HOLMES, )
)
Plaintiff, )
)
vs. ) CIVIL ACTION NO. 03-0615-P-B
)
JO ANNE B. BARNHART, Commissioner )
of Social Security, )
)
Defendant. )
ORDER ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
After due and proper consideration of all portions of this file deemed relevant to the issues
raised, and there having been no objections raised, the Report and Recommendation of the Magistrate
Judge made pursuant to 28 U.S.C. § 636(b)(1)(B) and dated November 17, 2005 (doc.24), is hereby
ADOPTED as the opinion of this court.
Accordingly, it is ORDERED that plaintiff’s Application For Attorney’s Fees Under the Equal
Access to Justice Act, 28 U.S.C. § 2412 (doc.21), be and is hereby GRANTED, and that plaintiff’s
counsel, Byron A. Lassiter, be awarded attorney’s fee, in the amount of $2,237.50 (17.9 hours x
$125.00 per hour = $2,237.50).
DONE the 15th day of December, 2005.
S/Virgil Pittman
SENIOR UNITED STATES DISTRICT JUDGE
Case 1:03-cv-00615-P-B Document 25 Filed 12/15/05 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-04-01045/USCOURTS-caDC-04-01045-0/pdf.json | [
[
"Federal Communications Commission",
"Appellee"
],
[
"Marc D. Sobel",
"Appellant"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2004 Decided February 1, 2005
No. 02-1175
JAMES A. KAY,JR.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
Consolidated with
No. 04-1045
Appeals of Orders of the
Federal Communications Commission
Barry Richard argued the cause for appellants. With him
on the briefs were Elliot H. Scherker. Robert J. Keller, and
Aaron P. Shainis.
Roberta L. Cook, Counsel, Federal Communications
Commission, argued the cause for appellee. With her on the
brief were John A. Rogovin, General Counsel, Austin C. Schlick,
Deputy General Counsel, and Daniel M. Armstrong, Associate
General Counsel. Jane E. Mago, Assistant General Counsel,
entered an appearance.
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 1 of 12
2
Before: EDWARDS, SENTELLE, and RANDOLPH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: These are consolidated appeals
from orders of the Federal Communications Commission
sanctioning James A. Kay, Jr., and Marc D. Sobel for
intentionally trying to mislead the Commission, and for
engaging in an unauthorized transfer of control of Sobel’s land
mobile service facilities. Kay and Sobel argue that the
administrative record does not contain substantial evidence to
support the orders.
I.
Since the early 1980’s Kay has provided two-way radio
mobile service in the Los Angeles area through a sole
proprietorship -- Lucky’s Two-Way Radio. He held many land
mobile licenses pursuant to Part 90 of the Commission’s rules,
47 C.F.R. § 90.1 et seq., including 34 licenses in the 800 MHz
band. Sobel also was involved in the land mobile business in
and around Los Angeles. He too held licenses for commercial
land mobile radio stations, including 15 licenses on the 800
MHz band.
In the early 1990’s the Commission received information
that Kay might have been evading certain regulatory restrictions
by conducting business under other names. One of the names
was “Marc Sobel dba Airwave Communications.” Other
information suggested additional violations. The Commission
may require licensees to submit written statements of fact
bearing on the question whether their licenses should be
revoked. 47 U.S.C. § 308(b). To that end, the Commission’s
Wireless Telecommunications Bureau sent Kay a letter in
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 2 of 12
3
January 1994 requesting several categories of information,
including the identity of the stations for which Kay held
licenses and the stations Kay managed. Kay’s lawyer responded
with a series of demands and complaints, but supplied none of
the information the Bureau sought.
In December 1994 the Commission issued an order
designating issues for a hearing, including: (1) whether Kay had
violated § 308(b) by failing to provide the information
requested; (2) whether he had willfully violated Commission
rules governing station construction and operation; (3) whether
he had abused the Commission’s processes by filing applications
in multiple names to avoid complying with the channel sharing
and recovery rules; and (4) whether, in view of the evidence
adduced on those issues, Kay was fit to be a licensee. The order
identified 164 call signs subject to the hearing, eleven of which
were held in Sobel’s name.
About one month later, in January 1995, Kay filed a
sixteen-page motion with the administrative law judge assigned
to the case. Among other things, the motion requested deletion
of Sobel’s call signs from the hearing designation order. Kay’s
motion stated:
James A. Kay, Jr. is an individual. Marc Sobel is a
different individual. Kay does not do business in the name
of Marc Sobel or use Sobel’s name in any way. As shown
by the affidavit of Marc Sobel attached as Exhibit II hereto,
Kay has no interest in any of the licenses or stations held by
Marc Sobel. Marc Sobel has no interest in any of the
licenses or stations authorized to Kay or any business entity
in which Kay holds an interest. Because Kay has no
interest in any license or station in common with Marc
Sobel and because Sobel was not named as a party to the
instant proceeding, the presiding officer should either
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 3 of 12
4
change the [Order] to delete the reference to the stations
identified as stations 154 through 164 . . . or should dismiss
the [Order] with respect to those stations.
In a signed affidavit accompanying his motion, Kay declared
under penalty of perjury that the statements in the motion were
“true and correct.”
Sobel’s affidavit, attached to the motion, stated:
I, Marc Sobel, am an individual, entirely separate and
apart in existence and identity from James A. Kay, Jr. Mr.
Kay does not do business in my name and I do not do
business in his name. Mr. Kay has no interest in any radio
station or license of which I am the licensee. I have no
interest in any radio station or license of which Mr. Kay is
the licensee. I am not an employer or employee of Mr.
Kay, am not a partner with Mr. Kay in any enterprise, and
am not a shareholder in any corporation in which Mr. Kay
also holds an interest. I am not related to Mr. Kay in any
way by birth or marriage.
The ALJ certified the matter to the Commission and the
Commission deleted Sobel’s licenses from the Kay proceeding.
Kay Modified HDO, 11 F.C.C.R. 5324 (1996). Thereafter, on
June 11, 1996, the Bureau sent a § 308(b) letter of inquiry to
Sobel, asking him for information about his business
relationship with Kay. Sobel Order, 17 F.C.C.R. 1872, 1873 ¶ 4
(2002). In his response, dated July 3, 1996, Sobel attached a
“Radio System Management and Marketing Agreement.” The
Management Agreement, originally executed by Sobel and Kay
in October 1994 and re-executed on December 30, 1994, set out
the terms under which Kay had been managing, during the
previous three years, fifteen of Sobel’s stations, licensed on the
800 MHz band. (Kay had given the Bureau a copy of the same
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 4 of 12
5
agreement on March 24, 1995, in response to the Bureau’s
discovery request seeking all management agreements to which
Kay was a party.)
By early 1997, Sobel had 13 license applications pending
with the Commission. Rather than grant any of them, the
Commission designated them, and the licenses Sobel already
held, for a hearing to determine whether Sobel had transferred
control of the stations named in the Agreement to Kay, in
violation of § 310(d) of the Communications Act, 47 U.S.C.
§ 310(d). Marc Sobel, 12 F.C.C.R. 3298, 3300 (1997). Section
310(d) provides that no “station license, or any rights
thereunder, shall be transferred . . . to any person except upon
application to the Commission and upon finding by the
Commission that the public interest, convenience and necessity
will be served thereby.” The Commission later added another
issue: whether Sobel had misrepresented facts or lacked candor
in the affidavit he submitted in support of Kay’s January 1995
motion to remove Sobel’s licenses from the Kay hearing. Marc
Sobel, FCC 97M-82 (released May 8, 1997).
Sobel’s hearing, in which Kay intervened, was the first to
be completed. See Marc Sobel, 12 F.C.C.R. 22879 (ALJ 1997).
ALJ Frysiak determined that Sobel had illegally transferred
control of the stations identified in the Management Agreement.
The evidence showed that Kay was managing the stations; that
Kay had prepared Sobel’s license applications; that Kay
provided all the money and equipment to build the stations; that
Kay’s employees were involved in nearly all aspects of the dayto-day operation of the stations; that Kay paid all the expenses
of the stations; that the revenues from operations went into
Kay’s bank accounts; that Sobel received none of the operating
revenues; and that Kay had an option to purchase each of the
stations at any time for $500 each. 12 F.C.C.R. at 22901. ALJ
Frysiak also found that, in light of this evidence, Sobel’s
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 5 of 12
6
statement in his affidavit that Kay had “no interest” in any of his
radio stations or licenses was “intended to mislead and deceive
the Commission with respect to Kay’s actual role in the affairs
of Sobel’s 800 MHz stations.” The evidence also showed that
Sobel, in response to problems identified in his applications,
provided the Commission with customer invoices for the
stations listed in the Agreement. On the invoices, Kay had
masked out the name and address of “Lucky’s Two Way
Radio”-- a name under which Kay conducts business. ALJ
Frysiak found that both Sobel and Kay thought it crucial to
withhold this information, which would have revealed to the
Commission that Kay and Sobel were “not as independent of
one another as Sobel has claimed.” Id. at 22902, 22898-99. The
ALJ concluded that all of Sobel’s licenses designated for the
hearing should be revoked and that his applications should be
denied.
Nearly two years after the ALJ’s decision in Sobel’s case,
ALJ Chachkin issued his decision in Kay’s case. James A. Kay,
Jr., FCC 99D-04, 1999 WL 700534, ¶ 223 (ALJ, released Sept.
10, 1999). ALJ Chachkin accepted the ruling in the Sobel case
that Kay had participated in an unauthorized transfer of control
of Sobel’s stations. But he found “entirely credible” Kay’s and
Sobel’s testimony that they had not intended to deceive the
Commission about their business arrangement. ALJ Chachkin
also accepted as “entirely reasonable and credible” Kay’s
testimony that when his motion stated he had no “interest” in
Sobel’s “licenses or stations,” he meant that he had no
“ownership interest” in any “station license” held by Sobel. He
discounted the findings in the Sobel hearing, believing them
“tainted” because the Bureau had “deliberately concealed” from
ALJ Frysiak the fact that Kay had produced the Agreement in
March 1995, in response to a discovery request. Id. at ¶¶ 168-
69, 210.
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 6 of 12
7
The Commission considered the Sobel and Kay cases
concurrently and issued decisions in both cases on the same day.
For reasons we will discuss in a moment, the Commission found
that Sobel had engaged in an unauthorized transfer of control of
the stations listed in the Agreement, in violation of § 310(d), that
Sobel and Kay lacked candor when they denied that Kay had an
interest in Sobel’s stations, and that Kay violated § 308(b) when
he failed to provide information the Bureau requested. One
Commissioner dissented from the findings regarding lack of
candor and § 308(b). As sanctions for Sobel’s two violations,
the Commission revoked his licenses listed in the Management
Agreement, and denied all of his pending 800 MHz applications.
With respect to Kay, the Commission revoked his 25 licenses in
the 800 MHz band and assessed a $10,000 forfeiture for failing
to comply with § 308(b). (Kay does not challenge the
forfeiture.)
II.
We will discuss first the Commission’s determination that
there had been an unauthorized transfer of control of Sobel’s
stations to Kay, in violation of § 310(d), a determination that
bears heavily on the lack of candor question. Kay and Sobel
argue that there is no substantial evidence that they engaged in
a transfer of control because Sobel retained a proprietary interest
in the stations, had unfettered access to the facilities, regularly
visited the transmitter sites and gave Kay only an option to
purchase the stations.
The evidence Kay and Sobel mention may point against the
Commission’s conclusion, but that is not the test. “Substantial
evidence,” in the sense used in the Administrative Procedure
Act, 5 U.S.C. § 706(2)(E); see 47 U.S.C. § 402(e), is the amount
of evidence constituting “‘enough to justify, if the trial were to
a jury, a refusal to direct a verdict when the conclusion sought
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 7 of 12
8
to be drawn . . . is one of fact for the jury.’” Illinois Cent. R.R.
v. Norfolk & W. Ry., 385 U.S. 57, 66 (1966), quoting NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300
(1939); see Ass’n of Data Processing Orgs., Inc. v. Bd. of
Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.
Cir. 1984). Adhering to its decision in Intermountain
Microwave, 24 Rad. Reg. (P&F) 983, 984 (1963), the
Commission considered evidence bearing on six factors to
determine whether Sobel had transferred control of the
Management Agreement stations to Kay. On the first factor, it
agreed with Sobel that he had unfettered access to the stations.
On the second factor -- who controls the daily operations of the
stations -- the evidence was overwhelming that Kay did. The
Management Agreement provided as much: Kay’s duties
included “all administrative and office functions” and “all
management functions.” In addition, under the Agreement Kay
was the “sole and exclusive supplier of all equipment and
labor.” The third Intermountain factor asks who determines and
carries out policy decisions and prepares and files applications
with the Commission. The evidence showed that Kay prepared
Sobel’s applications, set billing rates, and arranged for the
acquisition of stations. The fourth factor asks who is in charge
of personnel. Sobel had no employees; all of the employees at
the Management Agreement stations were Kay’s. The fifth
factor asks who is in charge of financing. Here again the
evidence showed that Kay was in charge. For instance, the
Management Agreement relieved Sobel of liability for the
operation and construction of the stations; Kay paid all the
operating expenses; and Kay purchased all the equipment. The
sixth Intermountain factor asks who receives profits from the
operation of the stations. The Commission pointed to evidence
that all revenues from operation of the stations had been
deposited into Kay’s account and that Sobel had received
nothing in his capacity as an owner of the stations. Under the
Management Agreement, revenues could be shared equally
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 8 of 12
9
between Kay and Sobel if the stations generated enough profit,
but that had not occurred. The Commission viewed this
arrangement as “in the manner of partners.” Sobel Order, 17
F.C.C.R. 1872, 1884 ¶ 45 (2002).
In the face of this evidence, there is no doubt that a
reasonable jury, instructed on the law set forth in Intermountain,
could have reached the same conclusion as the Commission --
that Sobel had transferred control of his stations to Kay without
Commission authorization. See Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 366-67 (1998).
This brings us to the Commission’s finding that Kay and
Sobel lacked candor with respect to their business relationship.
Because effective regulation depends on the information
licensees provide to the Commission, see Leflore Broadcasting
Co., v. FCC, 636 F.2d 454, 461 (D.C. Cir. 1980), the
Commission defines lack of candor to include not only
providing false information but also “concealment, evasion or
other failure to be fully informative accompanied by an intent to
deceive.” TrinityBroad. of Fla., Inc., 10 F.C.C.R. 12020, 12063
(1995). While Kay and Sobel have several arguments against
the Commission’s lack of candor findings, their principal
contention is that they did not intend to deceive and that the
Commission erred in not accepting ALJ Chachkin’s finding that
their testimony to this effect was credible.
The law is settled that an agency is not required to adopt the
credibility determinations of an administrative law judge. This
much follows from § 557(b) of the APA: “On appeal from or
review of the initial decision, the agency has all the powers
which it would have in making the initial decision . . . .” On
questions of facts, an agency reviewing an ALJ decision is not
in a position analogous to a court of appeals reviewing a case
tried to a district court. See Rule 52(a), FED. R. CIV. P. The
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 9 of 12
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Supreme Court, in Universal Camera Corp. v. NLRB, 340 U.S.
474 (1951), rejected the idea that an agency must accept an
ALJ’s findings unless those findings are clearly erroneous. This
is so even if the ALJ’s findings rested on his evaluation of the
credibility of the witnesses. FCC v. Allentown Broad. Corp.,
349 U.S. 363-64 (1955). Although the agency may give much
weight to an ALJ’s credibility determinations, the question for
the reviewing court remains the same whether the agency agrees
or disagrees with the ALJ -- is the agency’s decision supported
by substantial evidence. The rejected factual determinations of
the ALJ are simply a factor for the reviewing court to consider
in its substantial evidence inquiry. See Universal Camera, 340
U.S. at 496-97; Swan Creek Communications, Inc. v. FCC, 39
F.3d 1217, 1222 (D.C. Cir. 1994); WHW Enters., Inc. v. FCC,
735 F.2d 1132, 1141 (D.C. Cir. 1985).
Here, of course, the Commission faced conflicting findings
by two ALJs who heard essentially the same testimony. Kay
and Sobel stress that only ALJ Chachkin made express
credibility determinations. This is true, but it does not render his
findings more deserving of credit. As the Commission
recognized, ALJ Frysiak’s findings clearly rested on his
disbelief of Kay’s and Sobel’s testimony. FCC Decision (James
A. Kay), 17 F.C.C.R. 1834, 1860 ¶ 86 (2002). Nor did the
Commission err in rejecting the ALJ Chachkin’s findings on the
ground that the proceedings before ALJ Frysiak were somehow
tainted in view of the Bureau’s failure to reveal that Kay, in
response to a production of documents request, had given a copy
of the Management Agreement to the Bureau at the end of
March 1995. ALJ Chachkin made much of this supposed
“scheme” and accused the Bureau of misleading ALJ Frysiak.
The Commission gave two responses, both of which were
sufficient. First, Kay’s production of the Agreement in March
was not material. It is conceded that neither he nor Sobel
supplied a copy of the Agreement with the January 1995
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 10 of 12
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pleading and affidavit that stands at the center of their lack of
candor. Second, the record shows that Sobel brought Kay’s
production to ALJ Frysiak’s attention. He requested the Bureau
to admit receiving the document (ALJ Frysiak denied the
request as irrelevant) and he requested the ALJ to take official
notice of Kay’s production.
As to the rest of the evidence bearing on lack of candor, the
record as a whole demonstrates ample support for the
Commission’s conclusions. The affidavit and the pleading were
false and misleading. Kay, in the pleading, and Sobel, in his
affidavit, denied that Kay had any “interest” in Sobel’s licenses
and stations. As the evidence relating to transfer of control
shows, Kay had a very substantial interest in Sobel’s stations.
Kay and Sobel testified that when they used the word “interest”
they meant an ownership interest and that their statements were
therefore accurate because Sobel retained ownership of his
licenses. But what of the stations? According to their
testimony, they meant to refer only to ownership of Sobel’s
radio station licenses, not the stations themselves. Excerpts
from July 29, 1997 Hearing Transcripts in WT Docket No. 97-
56, reprinted in JA 532 (testimony of Marc Sobel); Excerpts
from Jan. 19, 1999 Trial Transcript in WT Docket No. 94-147,
reprinted in JA 1043 (testimony of James Kay). The
Commission was entitled to reject that testimony. At the least,
the Commission could find that the statements they filed were
misleading and intentionally so. The sheer implausibility of
their explanations; their motive to divert the Bureau’s
investigation, which threatened to uncover the unauthorized
transfer of control; the fact that they discussed the meaning of
the word “interest” before they filed the pleading and affidavit;
the fact that Kay told Sobel the word meant “a direct financial
stake,” which describes Kay’s relationship to Sobel’s stations --
all this, and more, convince us that substantial evidence
supported the Commission’s findings of lack of candor. In other
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 11 of 12
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respects the Commission found the statements filed in January
1995 misleading, but it is unnecessary to discuss why we find
substantial evidence to support those findings. It is enough to
point out that “the Commission must rely heavily on the
completeness and accuracy of the submissions made to it, and its
applicants in turn have an affirmative duty to inform the
Commission of the facts it needs in order to fulfill its statutory
mandate.” RKOGen., Inc. v. FCC, 670 F.2d 215, 232 (D.C. Cir.
1981). The Commission reasonably concluded that Kay and
Sobel intentionally failed to perform their affirmative duty in
their attempt to remove Sobel’s licenses and stations from the
original hearing on Kay’s fitness to be a licensee.
Affirmed.
USCA Case #04-1045 Document #873972 Filed: 02/01/2005 Page 12 of 12 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_14-cv-00997/USCOURTS-caed-1_14-cv-00997-0/pdf.json | [
[
"Harris Farms, Inc.",
"Defendant"
],
[
"Harris Ranch Inn & Restaurant",
"Defendant"
],
[
"Cecil Shaw",
"Plaintiff"
]
] | STIPULATION FOR DISMISSAL OF ACTION; ORDER
Page 1
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Tanya E. Moore, SBN 206683
MOORE LAW FIRM, P.C.
332 North Second Street
San Jose, California 95112
Telephone (408) 298-2000
Facsimile (408) 298-6046
Email: [email protected]
Attorneys for Plaintiff
Cecil Shaw
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CECIL SHAW,
Plaintiff,
vs.
HARRIS FARMS, INC. dba HARRIS
RANCH INN & RESTAURANT,
Defendant.
)
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No. 1:14-cv-00997-MCE-SKO
STIPULATION FOR DISMISSAL OF
ACTION; ORDER
Case 1:14-cv-00997-MCE-SKO Document 19 Filed 01/07/15 Page 1 of 2
STIPULATION FOR DISMISSAL OF ACTION; ORDER
Page 2
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IT IS HEREBY STIPULATED by and between Plaintiff Cecil Shaw and Defendants
Harris Farms, Inc., dba Harris Ranch Inn & Restaurant, the parties to this action, by and
through their respective counsel, that pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii), the above-captioned action be dismissed with prejudice in its entirety. Each
party is to bear its own attorneys’ fees and costs.
Date: January 5, 2015 MOORE LAW FIRM, P.C.
/s/ Tanya E. Moore
Tanya E. Moore
Attorneys for Plaintiff
Cecil Shaw
WANGER JONES HELSLEY PC
/s/ Michael S. Helsley
Michael S. Helsley
Attorneys for Defendant
Harris Farms, Inc., dba Harris Ranch Inn &
Restaurant
ORDER
The parties having so stipulated, IT IS HEREBY ORDERED that this action be
dismissed with prejudice in its entirety. Each party shall bear its own attorney’s fees and costs,
and the Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: January 5, 2015
Case 1:14-cv-00997-MCE-SKO Document 19 Filed 01/07/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_10-cv-01514/USCOURTS-caed-1_10-cv-01514-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Anitra J. Summers",
"Plaintiff"
]
] | OAO 240A (Rev. 1/94)
UNITED STATES DISTRICT COURT
EASTERN District of CALIFORNIA
ANITRA J. SUMMERS ORDER ON APPLICATION
Plaintiff TO PROCEED WITHOUT
V.
PREPAYMENT OF FEES
COMMISSIONER of SOCIAL SECURITY, CASE NUMBER: 1:10-AT-609
Defendant
Having considered the application to proceed without prepayment of fees under 28 USC §1915;
IT IS ORDERED that the application is:
X GRANTED.
X The clerk is directed to file the complaint.
X IT IS FURTHER ORDERED that the clerk issue summons and the United States marshal serve a
copy of the complaint, summons and this order upon the defendant(s) as directed by the plaintiff.
All costs of service shall be advanced by the United States.
G DENIED, for the following reasons:
ENTER this 20th day of August , 2010 .
/s/ Sandra M. Snyder
Signature of Judicial Officer
SANDRA M. SNYDER, U.S. MAGISTRATE JUDGE
Name and Title of Judicial Officer
Case 1:10-cv-01514-JLT Document 4 Filed 08/20/10 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_10-cv-02070/USCOURTS-caed-1_10-cv-02070-0/pdf.json | [
[
"Victory Ilsung",
"Plaintiff"
],
[
"Robert Mobert",
"Defendant"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
VICTORY ILSUNG,
Plaintiff,
vs.
ROBERT MOBERT,
Defendant.
_____________________________/
CASE No. 1:10-cv-02070-AWI-MJS (PC)
FINDINGS AND RECOMMENDATION
DENYING DEFENDANT’S MOTION TO
DISMISS ACTION FOR FAILURE TO
EXHAUST ADMINISTRATIVE
REMEDIES
(ECF No. 23)
OBJECTIONS DUE WITHIN
FOURTEEN (14) DAYS
I. PROCEDURAL HISTORY
Plaintiff Victory Ilsung, a state prisoner proceeding pro se and in forma
pauperis, filed this civil rights action on November 8, 2010 pursuant to 42 U.S.C. §
1983. (ECF No. 1.)
The Court screened the First Amended Complaint and ordered service as to
cognizable claims for First Amendment retaliation and Eighth Amendment medical
indifference against Defendant Mobert. (ECF No. 14.) On August 3, 2012, Defendant
Mobert filed a Motion to Dismiss the Eighth Amendment claim pursuant to Fed. R. Civ.
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P. 12(b) on grounds Plaintiff failed to exhaust administrative remedies. (Mot. Dismiss.,
ECF No. 23.) Therein Defendant notified Plaintiff of his rights, obligations and methods
for opposing the Motion to Dismiss pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir.
2012) and Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Plaintiff filed Opposition to
the Motion to Dismiss on October 15, 2012. (Opp’n to Mot. Dismiss.,ECF No. 29.) On
October 23, 2012, Defendant filed a Reply to the Opposition. (Reply to Opp’n, ECF No.
30.) On November 13, 2012, Plaintiff filed a purported response to Defendant’s reply.1
(Resp. to Reply, ECF No. 31.) The Motion to Dismiss is now ready for ruling.
II. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff, an inmate at the California Substance Abuse Treatment Facility and
State Prison at Corcoran (“SATF”), requires dialysis and has a medical chrono for ice
chips to be provided three times a day. Defendant Mobert is a correctional officer at
SATF. Defendant Mobert deliberately refused to provide Plaintiff with medical ice
during June-September 2009 notwithstanding knowledge that Plaintiff’s medical chono
required the ice; Plaintiff would become extremely ill without the ice; and his supervisor
had ordered Mobert to provide the ice.
Plaintiff’s inmate appeal relating to the denial of ice was granted. Defendant
Mobert retaliated by continued refusal to allow delivery of the ice and by following
Plaintiff to re-assigned housing and repeatedly searching his cell and confiscating and
destroying his personal property. Mobert told Plaintiff he was doing so because Plaintiff
“wrote him [] up”. Plaintiff filed a further grievance which resulted in a finding of staff
misconduct.
Plaintiff seeks unspecified injunctive relief, monetary damages, costs and fees.
III. LEGAL STANDARD
The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be
Plaintiff’s surreply is unauthorized and is not considered by the Court.
1
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brought with respect to prison conditions under [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Therefore, prisoners are required to exhaust all available administrative remedies prior
to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court held that
“the PLRA's exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). Further, the exhaustion of remedies is required, regardless of the relief sought
by the prisoner, as long as the administrative process can provide some sort of relief
on the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001). “[P]roper
exhaustion of administrative remedies is necessary,” and “demands compliance with
an agency's deadlines and other critical procedural rules . . . .” Woodford v. Ngo, 548
U.S. 81, 90-91 (2006).
The California Department of Corrections and Rehabilitation (“CDCR”) has an
administrative grievance system for prisoner complaints; the process is initiated by
submitting a CDCR Form 602. Cal. Code Regs. tit. 15, §§ 3084.1, 3084.2(a) (2009).
During the time relevant to this case, four levels of appeal existed: an informal level, a
first formal level, a second formal level, and a third formal level, also known as the
“Director's Level”; each successive appeal had to be submitted within fifteen working
days of the event being appealed. Id. at §§ 3084.5, 3084.6(c).
Section 1997e(a) does not impose a pleading requirement, but rather, is an
affirmative defense under which Defendants have the burden of raising and proving
the absence of exhaustion. Jones, 549 U.S. at 215; Wyatt, 315 F.3d at 1119. The
failure to exhaust non-judicial administrative remedies that are not jurisdictional is
subject to an unenumerated Rule 12(b) motion, rather than a summary judgment
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motion. Wyatt, 315 F.3d at 1119, citing Ritza v. Int'l Longshoremen's &
Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998). In deciding a motion to
dismiss for failure to exhaust administrative remedies, the Court may look beyond the
pleadings and decide disputed issues of fact. Wyatt, 315 F.3d at 1119–20. If the Court
concludes that the prisoner has failed to exhaust administrative remedies, the proper
remedy is dismissal without prejudice. Id.
IV. ARGUMENTS
A. Defendant’s Moving Argument
Plaintiff, who submitted twenty-three appeals during the period June 1, 2009
through April 10, 2012, did not obtain a third level decision on his Eighth Amendment
medical ice claim.
He filed only three grievances relating to deprivation of medical ice, none of
which was exhausted at the third level.
More specifically:
Appeal No. 09-02406 filed on July 17, 2009, alleged staff misconduct concerning
medical ice and retaliatory failure to properly handle Plaintiff’s laundry. This Appeal was
granted in part at the Second Level, such that an investigation was conducted finding
no staff violation of CDCR policy. This Appeal was not exhausted at the third level. An
appeal decision regarding only staff misconduct does not exhaust as to any direct relief
sought in the Appeal.
Appeal No. 09-02441 filed on July 21, 2009, alleged ADA deprivation of threetimes-a-day medical ice, denial of sheet exchange, and a request for different housing.
This Appeal was granted in part at the first level, that “[Plaintiff] will receive [his] ice
chips as prescribed and [instructing Plaintiff] on when to have [his] sheets ready for
exchange.” (First Am. Compl. Ex. B at 28.) The request for housing change was not
granted at or appealed beyond the first level.
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A purported Appeal was filed on July 22, 2009, concerning ice chips. This Appeal
was screened out as duplicative of the above two Appeals, and not exhausted.
Woodford, 548 U.S. at 83-84.
Accordingly, Plaintiff did not exhaust at the third level any appeal concerning
medical ice. (Zamora Decl. at ¶¶ 5-6; Lozano Decl. at ¶¶ 3-11.)
B. Plaintiff’s Opposition Argument
Plaintiff mailed Appeal No. 09-02406 to the third level on October 13, 2009, but
received no response because third level employees are working with Defendant
Mobert to interfere with Plaintiff’s appeal rights.
Thus Plaintiff was prevented from exhausting Appeal No. 09-02406 at the third
level. He exhausted all appeal remedies available to him.
C. Defendant’s Reply Argument
Plaintiff concedes he failed to obtain a third level decision on his Eighth
Amendment medical ice claim. He fails to provide facts supporting his contention he
mailed Appeal No. 09-02406 for third level review.
Plaintiff provides no facts supporting his contention that third level review staff
interfered with his Appeal No. 09-02406. Moreover, Plaintiff’s successful submission of
an appeal for third level review in January 2010 belies the alleged staff interference.
Plaintiff may have completed the purported third level appeal request attached
as Exhibit 1 to his Opposition only after the fact and in response to the instant motion.
V. ANALYSIS
Defendant argues the Appeals that included a medical ice claim were not
exhausted at the third level and that any Appeal decision regarding only staff
misconduct does not exhaust as to any direct relief sought.
After carefully reviewing the record, the undersigned concludes Defendant’s
Motion should be denied. Plaintiff’s medical ice appeal was granted, providing him with
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all relief sought therein and exhausting administrative remedies on that claim.
A. Plaintiff’s Appeal for Three Times-A-Day Ice Chips Granted
Plaintiff’s Appeal No. 09–02441, which alleged denial of ice chips three times a
day as prescribed, and denial of sheet exchange, was granted at the first level as to
three times-a-day ice chips. (First Am. Compl., Ex. B at 28.) This fully satisfied Plaintiff’s
ice chips claim, which is the basis for his Eighth Amendment claim in this action.
The court rejects Defendant’s argument that a third level appeal response is
necessary to satisfy the exhaustion requirement and the mere absence of a third level
response entitles him to dismissal. Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir.
2005) (“[A] prisoner need not press on to exhaust further levels of review once he has
either received all ‘available’ remedies at an intermediate level or has been reliably
informed by an administrator that no remedies are available.”)
An inmate has no obligation to appeal from a grant of relief, or a partial grant that
satisfies him, in order to exhaust his administrative remedies. Nor is it the prisoner's
responsibility to ensure that prison officials actually provide the relief that they have
promised. See Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (“A prisoner who
has not received promised relief is not required to file a new grievance where doing so
may result in a never-ending cycle of exhaustion.”).
Plaintiff, having received all relief he sought as to medical ice chips, the
administrative process allowed for no further relief. Booth, 532 U.S. at 741.
The primary purpose of a grievance is to alert the prison to a problem and
facilitate its resolution,” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). This
Plaintiff accomplished to the point of complete resolution of his medical ice claim.
The Court need not, and does not reach the balance of the arguments presented
and expresses no opinion thereon.
///////
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VI. CONCLUSIONS AND RECOMMENDATION
Plaintiff’s appeal seeking three times-a-day medical ice was granted at the first
level of review. Defendant has not carried his burden of establishing Plaintiff’s failure to
exhaust available administrative remedies pursuant to 42 U.S.C. § 1997e(a) on the
Eighth Amendment medical ice claim.
Accordingly, for the reasons stated above the Court RECOMMENDS that
Defendant’s Motion to Dismiss (ECF No. 23) be DENIED. These findings and
recommendation are submitted to the United States District Judge assigned to the
case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14)
days after being served with these findings and recommendation, any party may file
written objections with the Court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate Judge's Findings and Recommendation.”
Any reply to the objections shall be served and filed within ten (10) days after service of
the objections. The parties are advised that failure to file objections within the specified
time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d
1153 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: February 1, 2013 /s/Michael J. Seng
12eob4 UNITED STATES MAGISTRATE JUDGE
-7-
Case 1:10-cv-02070-AWI-MJS Document 32 Filed 02/01/13 Page 7 of 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00102/USCOURTS-caed-2_15-cv-00102-0/pdf.json | [
[
"Centex Homes",
"Defendant"
],
[
"Centex Real Estate Corporation",
"Defendant"
],
[
"St. Paul Mercury Insurance Company",
"Plaintiff"
]
] | 1
Case No. 2:15-cv-00102-TLN-AC
ORDER ON STIPULATION TO FILE FIRST AMENDED COMPLAINT
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION
ST. PAUL MERCURY INSURANCE
COMPANY, a Connecticut corporation
Plaintiff,
v.
CENTEX HOMES, a Nevada general
partnership, CENTEX REAL ESTATE
CORPORATION, a Nevada corporation; and
DOES 1 through 10 inclusive,
Defendants.
)
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Case No. 2:15-cv-00102-TLN-AC
Hon. Troy L. Nunley
ORDER ON STIPULATION TO FILE
FIRST AMENDED COMPLAINT
Pursuant to a stipulation of Plaintiff ST. PAUL MERCURY INSURANCE
COMPANY(hereinafter, referred to as “TRAVELERS”) and Defendant CENTEX HOMES and
CENTEX REAL ESTATE CORPORATION (hereinafter referred to collectively as “CENTEX”)
and for good cause showing:
IT IS HEREBY ORDERED THAT TRAVELERS shall file a First Amended Complaint
by April 6, 2015;
Case 2:15-cv-00102-TLN-AC Document 5 Filed 03/30/15 Page 1 of 2
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Case No. 2:15-cv-00102-TLN-AC
ORDER ON STIPULATION TO FILE FIRST AMENDED COMPLAINT
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IT IS FURTHER ORDERED THAT CENTEX has no obligation to respond to Travelers’
original Complaint filed January 14, 2015;
SO ORDERED.
Dated: March 27, 2015
Case 2:15-cv-00102-TLN-AC Document 5 Filed 03/30/15 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca9-06-35718/USCOURTS-ca9-06-35718-0/pdf.json | [
[
"Pacific Fisheries Inc",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC FISHERIES INC.,
No. 06-35718 Plaintiff-Appellant,
D.C. No.
v. CV-04-02436-JLR
UNITED STATES OF AMERICA,
OPINION Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
March 11, 2008—Seattle, Washington
Filed August 21, 2008
Before: Betty B. Fletcher, Richard A. Paez, and
N. Randy Smith, Circuit Judges.
Opinion by Judge B. Fletcher
11297
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COUNSEL
Robert J. Chicoine, Cori Flanders-Palmer, Cory L. Johnson,
Chicoine & Hallett, P.S., Seattle, Washington, for the
plaintiff-appellant.
Jonathan S. Cohen, David M. Katinsky, Gretchen M. Wolfiner, U.S. Department of Justice, Tax Division, Washington,
PACIFIC FISHERIES v. UNITED STATES 11299
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D.C.; John McKay, U.S. Attorney for the Western District of
Washington, Seattle, Washington, (on briefs) for the
defendant-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Pacific Fisheries, Inc. (“Pacific Fisheries”) appeals the district court order granting summary judgment to the Internal
Revenue Service (“IRS”) on its claim that the IRS improperly
withheld or redacted certain documents responsive to Pacific
Fisheries’ Freedom of Information Act (“FOIA”) request. See
5 U.S.C. § 552. We reverse in part, affirm in part, and remand
to the district court to determine whether the treaty exemption
applies and whether factual portions of certain documents
subject to the deliberative process privilege were properly
segregated and disclosed.
I
This case arises out of a tax investigation by the Russian
government of Mr. Konstantin Voloshenko (“Voloshenko”),
a Pacific Fisheries employee. Pursuant to the Convention
between the United States of America and the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and
Capital (“Tax Treaty”), the Russian authorities requested the
U.S. government’s assistance in the investigation. On April
23, 2004, in furtherance of the Russian authorities’ request,
the IRS issued two third-party summonses to Bank of America, seeking records relating to Pacific Fisheries and Voloshenko. Pacific Fisheries notified the IRS that the summonses
were defective, but the government refused to withdraw them.
Pacific Fisheries then filed a petition to quash the summonses
for various reasons, including bad faith, relevance, and timeli11300 PACIFIC FISHERIES v. UNITED STATES
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ness. The IRS subsequently withdrew the summonses and did
not defend the action.
Pacific Fisheries made several attempts to obtain the documents that served as the basis for the issuance of the summonses. These included a discovery request in the district court,
which the government opposed as moot after withdrawing the
summonses, and a FOIA request dated July 27, 2004. In its
FOIA request, Pacific Fisheries asked for all documents
related to the issuance of the summonses, as well as “[a]ny
and all tax returns, tax information or other documents which
may have been provided by the Internal Revenue Service to
Russian authorities concerning Pacific Fisheries, Inc.”
On August 23, 2004, the IRS Seattle Disclosure Office
notified Pacific Fisheries that it had transferred the FOIA
request to the IRS Headquarters FOIA Office in Washington,
D.C. On October 12, 2004, not having received a response,
Pacific Fisheries submitted a follow-up request for documents
to the Washington, D.C. office. On November 10, 2004, the
IRS informed Pacific Fisheries that it needed additional time
to determine whether it would produce the documents. As of
December 9, 2004, no documents had been produced. Pacific
Fisheries then filed this FOIA action in the district court seeking a court order requiring the IRS to produce the requested
documents.
The government filed its answer on March 2, 2005, asserting that all documents responsive to the FOIA request were
exempt from disclosure. The government cited FOIA exemption three, which applies to documents that are “specifically
exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3),
and two provisions of the Internal Revenue Code prohibiting
disclosure of tax-convention information and third-party tax
return information.
Notwithstanding this initial refusal to disclose any responsive documents, on March 27, 2006, the day that dispositive
PACIFIC FISHERIES v. UNITED STATES 11301
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motions were due in the district court, the government
released (in whole or in part) 313 of 465 responsive documents. At that time, the government also filed a motion for
summary judgment asserting that all other responsive documents were exempt from disclosure either under FOIA
exemption three and the Internal Revenue Code or under
FOIA exemption five, which incorporates both the executive
deliberative process privilege and the attorney work-product
privilege. In support of its motion the government filed a declaration from Helene R. Newsome of the Office of Chief
Counsel, Disclosure & Privacy Law, of the IRS (“Declaration
I”) stating which exemption or exemptions applied to each
document that was withheld in whole or in part. Withheld
documents were identified by page number and a general
description such as “letter” or “email.” Declaration I grouped
documents together according to these general descriptions,
and did not include identifying details such as dates or
authors.
That same day, Pacific Fisheries filed its own motion for
summary judgment, arguing that the government had failed to
carry its burden of demonstrating that the withheld documents
were exempt. Pacific Fisheries also took issue with the fact
that the government did not disclose the documents until the
day that dispositive motions were due, a delay that was
unnecessary, in violation of the statute and regulations, and
which deprived Pacific Fisheries of the opportunity to review
the documents and claimed exemptions before filing its
motion for summary judgment.
On April 24, 2006, after reviewing the disclosed documents
and Declaration I, Pacific Fisheries filed its opposition to the
government’s motion for summary judgment. In its opposition, Pacific Fisheries specifically challenged the government’s failure to segregate and disclose factual portions of the
documents that were withheld pursuant to the deliberative
process privilege. In response, the government submitted a
second declaration from Helene Newsome (“Declaration II”)
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reiterating the previous description of the document search,
stating that Newsome “attempted to make all reasonably segregable non-exempt portions of documents available to plaintiff,” and noting that many documents are covered by more
than one exemption, a factor that could affect the segregability analysis.
Finally, on May 5, 2006, Pacific Fisheries filed its reply to
the government’s opposition to Pacific Fisheries’ motion for
summary judgment. Pacific Fisheries continued to argue that
the government failed to demonstrate the adequacy of its
search or to produce all relevant documents. Additionally, and
for the first time, it challenged the government’s assertion that
the tax-convention information is exempt from disclosure
under 26 U.S.C. § 6105(c)(1)(E), arguing that the government’s position was based on an erroneous interpretation of
the law because the requested information was not confidential vis-à-vis Pacific Fisheries.
On June 1, 2006, the district court filed its order denying
Pacific Fisheries’ motion for summary judgment and granting
the government’s motion. The court first concluded that the
IRS’s search for responsive documents was reasonable. Next,
the court concluded that Declaration I was sufficiently thorough to permit Pacific Fisheries to “intelligently advocate
release of the withheld documents.”
Turning to the specific exemptions, the district court
rejected Pacific Fisheries’ arguments regarding segregation of
factual portions of documents withheld pursuant to FOIA
exemption five because Pacific Fisheries had failed to explain
why it believed that some of the redacted materials might contain factual portions that must be segregated and disclosed,
and because the attorney work-product privilege extends to
factual material contained in work product. The court therefore concluded that the IRS had sustained its burden of showing that the documents were properly redacted or withheld.
The court also rejected Pacific Fisheries’ tax convention
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information argument. Although the court noted that Pacific
Fisheries “inexplicably” waited until its reply brief to raise the
issue, thus depriving the IRS of the opportunity to respond,
the court rejected the argument on the merits, concluding that
Pacific Fisheries had not created any question of fact over
whether the IRS properly withheld treaty information.
Finally, the district court ordered the government to show
cause why the court should not impose sanctions. The court
opined that the IRS “unreasonably and vexatiously multiplied
proceedings” by refusing to disclose documents for almost
two years and then producing the disclosed documents on the
day that dispositive motions were due. The court ordered the
parties to attempt to negotiate a settlement on the issue of
appropriate compensation for Pacific Fisheries and ordered
the IRS to file a pleading in response to the order to show
cause if the parties were unable to reach an agreement.
On June 22, 2006, Pacific Fisheries filed a notice of settlement with the district court. The government agreed to pay
Pacific Fisheries $17,274.10 as reimbursement for attorneys’
fees. Both parties reserved the right to appeal the district
court’s order with respect to any issue other than sanctions.
That same day, the district court dismissed the case. Pacific
Fisheries timely appealed.
II
The Freedom of Information Act is premised on the theory
that in order for democracy to function properly, citizens must
have access to government information, particularly where
access might be “needed to check against corruption and to
hold the governors accountable to the governed.” John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978)). It thus mandates “full agency disclosure” unless
information is clearly exempted under one of FOIA’s nine
statutory exemptions. Id.
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A.
[1] Although FOIA espouses a policy of broad disclosure,
exemption three protects documents “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). At issue
here is 26 U.S.C. § 6105(a), a provision of the Internal Revenue Code prohibiting the disclosure of tax-convention information, which is defined as “information exchanged pursuant
to a tax convention which is treated as confidential or secret
under the tax convention,” 26 U.S.C. § 6105(c)(1)(E).
The government withheld 24 documents in their entirety
and 45 documents in part as confidential tax-convention information. In its reply brief to the district court, Pacific Fisheries
argued that the government’s position was based on an erroneous interpretation of law. The district court rejected this
argument on the merits. On appeal, the government argues
that Pacific Fisheries waived the tax convention information
argument by failing to raise it in its motion for summary judgment or opposition brief.
[2] We decline to hold that Pacific Fisheries waived the tax
convention information argument. Pacific Fisheries received
the disclosed documents and Declaration I on the same day
that dispositive motions were due in the district court. By
waiting until that day to make the disclosure, the government
deprived Pacific Fisheries of the opportunity to review and
challenge the claimed exemptions in its motion for summary
judgment. Although Pacific Fisheries could have raised the
argument in its opposition to the government’s motion for
summary judgment, it was not required to do so. It is enough
that Pacific Fisheries raised the issue in the district court and
that the district court rejected the argument on the merits. See
Glaziers & Glassworkers Local Union No. 767 v. Custom
Auto Glass Distribs., 689 F.2d 1339, 1342 n.1 (9th Cir. 1982).
However, because the government has not briefed the merits
of this issue, we remand so that the district court can consider
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the question in the first instance, after thorough briefing by
the parties.
B.
[3] Under FOIA exemption five, an agency can withhold
“inter-agency or intra-agency memorandums [sic] or letters
which [sic] would not be available by law to a party other
than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). This exemption “entitles an agency to withhold
. . . ‘documents which a private party could not discover in
litigation with the agency.’ ” Maricopa Audubon Soc’y v. U.S.
Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997) (quoting
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975)).
Specifically, it protects documents that would be covered by
the attorney work-product privilege and the executive deliberative process privilege.1
Id. However, the agency must disclose “[a]ny reasonably segregable portion of a record . . .
after deletion of the [exempt] portions.” 5 U.S.C. § 552(b).
[4] The attorney work-product and deliberative process
privileges are both rooted in the law of discovery and are
designed (in part) to encourage the author of a document to
be candid. See Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 864, 867 (D.C. Cir. 1980). But they differ in
important ways, not the least of which is their treatment of
factual material within documents. Factual portions of documents covered by the deliberative process privilege must be
segregated and disclosed unless they are “so interwoven with
the deliberative material that [they are] not [segregable].”
United States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir.
2000).
[5] The same is not true for documents withheld pursuant
to the attorney work-product privilege. See id. That privilege
1
It also incorporates the attorney-client privilege, but that privilege is
not at issue in this appeal.
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shields both opinion and factual work product from discovery.
Fed. R. Civ. P. 26(b)(3) (“Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation . . . .”); Hickman v. Taylor, 329 U.S.
495, 510 (1947) (holding that attorney’s notes of client interviews are not discoverable absent a showing of “necessity or
justification”); cf. Fed. R. Crim. P. 16(a)(2) (providing that as
a general matter, criminal defendants are not entitled to “discovery or inspection of reports, memoranda, or other internal
government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case”). Therefore, if a document is
covered by the attorney work-product privilege, the government need not segregate and disclose its factual contents. See
5 U.S.C. § 552(b); Maricopa Audubon Soc’y, 108 F.3d at
1092.
The burden is on the agency to establish that all reasonably
segregable portions of a document have been segregated and
disclosed. 5 U.S.C. § 552(a)(4)(B), (b). “Courts must apply
that burden with an awareness that the plaintiff, who does not
have access to the withheld materials, is at a distinct disadvantage in attempting to controvert the agency’s claims.”
Maricopa Audubon Soc’y, 108 F.3d at 1092 (internal quotation omitted). The agency can meet its burden by offering an
affidavit with reasonably detailed descriptions of the withheld
portions of the documents and alleging facts sufficient to
establish an exemption. Id.; see also Wiener v. FBI, 943 F.2d
972, 979 (9th Cir. 1991) (holding that the FBI’s explanation
was not sufficiently specific when it “provide[d] no information about particular documents and portions of documents
that might be useful in contesting nondisclosure”). The affidavits must not be conclusory. Church of Scientology of Cal. v.
U.S. Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1979).
Rather they should disclose “as much information as possible
without thwarting the claimed exemption’s purpose.” Wiener,
943 F.2d at 979 (citation omitted).
PACIFIC FISHERIES v. UNITED STATES 11307
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We employ a two-part test in reviewing a district court
order granting summary judgment in a FOIA case. Lion Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir.
2004). First, we determine “whether the district court had an
adequate factual basis for its decision.” Id. Whether a particular set of documents gives the court an adequate factual basis
for its decision is a question of law that we review de novo.
Id. If we determine that an adequate factual basis exists to
support the district court’s decision, we review the district
court’s conclusions under either the clearly erroneous or de
novo standard of review, depending on whether the district
court’s conclusions are primarily factual or legal. See id.
The government withheld 108 documents in their entirety
and 26 documents in part claiming that they were protected by
either the deliberative process privilege, the attorney workproduct privilege, or both. In the district court, Pacific Fisheries challenged the government’s failure to segregate and
disclose factual materials in documents withheld pursuant to
the deliberative process privilege. In response, the government filed Declaration II, stating that “[i]n asserting the deliberative process privilege, [Newsome] attempted to make all
reasonably segregable non-exempt portions of documents
available to plaintiff,” but noting that many documents were
withheld under both the deliberative process privilege and the
attorney work-product privilege, the latter of which covers
factual material as well as opinions. The district court granted
summary judgment to the government because Pacific Fisheries had failed to explain why it believed that the government
might have improperly redacted factual material and, moreover, the attorney work product privilege extends to factual
materials contained in work product. On appeal, Pacific Fisheries argues that the district court improperly shifted the burden of proof from the government to Pacific Fisheries and that
factual portions of documents are not exempt from disclosure.
Pacific Fisheries further argues that the district court erred by
not conducting in camera review of the redacted documents.
11308 PACIFIC FISHERIES v. UNITED STATES
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[6] We interpret Pacific Fisheries’ first argument as a challenge to the sufficiency of the factual record on which the district court based its decision. We conclude that the record was
insufficient because it did not provide Pacific Fisheries or the
district court with specific enough information to determine
whether the IRS had properly segregated and disclosed factual
portions of those documents that the IRS claimed were
exempt under the deliberative process privilege but not the
attorney work-product privilege. We have identified five
pages of responsive documents that meet this description.2
Although Declaration II states that Newsome attempted to
segregate all factual portions of these documents, that statement is too conclusory to meet the agency’s burden. Given
the inadequacy of the factual record, the district court erred in
granting the IRS’s motion for summary judgment on this
point.
[7] On remand the district court must make specific findings as to whether factual information has been properly segregated and disclosed in all documents or portions of
documents that the IRS claims are exempt from disclosure
under the deliberative process privilege but not the attorney
work-product privilege. See Church of Scientology of Cal.,
611 F.2d at 744. In order to assist the district court, the IRS
should submit affidavits describing in more detail the with2We identified pages 59, 138, 143, 193, and 199. On remand, however,
Pacific Fisheries may identify additional documents. We understand that
the IRS claimed that each of the documents we identified was also exempt
in part because they contained either tax-convention information or confidential information regarding a third party. This does not alter our conclusion that the agency has failed to meet its burden. Given that we have
ordered the district court to consider Pacific Fisheries’ tax convention
information argument on remand, we currently cannot rely on that claimed
exemption as a basis for determining that the IRS has met its burden. As
for the documents containing confidential third-party information, the
record is insufficient to establish that these documents do not contain disclosable factual information that could be reasonably segregated from any
confidential information regarding third parties.
PACIFIC FISHERIES v. UNITED STATES 11309
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held portions of these documents so that both the district court
and Pacific Fisheries can evaluate the government’s claims of
exemption. If the government is unable to provide sufficiently
specific affidavits, the district court should review the documents in camera to determine whether the factual portions
were properly segregated and disclosed. See Harvey’s Wagon
Wheel, Inc. v. NLRB, 550 F.2d 1139, 1143 (9th Cir. 1976)
(noting that in camera review is “appropriate and perhaps
necessary” where there is a factual dispute as to the nature of
the documents withheld).
III
[8] We affirm the district court order in so far as it held that
factual portions of documents withheld pursuant to the attorney work-product privilege need not be segregated and disclosed. We reverse the district court order in so far as it held
that the IRS was not required to segregate and disclose factual
portions of documents withheld pursuant to the deliberative
process privilege, as well as the conclusory holding, without
the benefit of thorough briefing by the parties, that the IRS
properly applied the tax convention information exemption.
The order of the district court is vacated and the case is
remanded for further proceedings consistent with this opinion.
Each side shall bear their own costs on appeal.
VACATED AND REMANDED.
11310 PACIFIC FISHERIES v. UNITED STATES
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s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-azd-2_04-cr-00852/USCOURTS-azd-2_04-cr-00852-0/pdf.json | [
[
"Pedro Flores-Palma",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | WO UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
UNITED STATES OF AMERICA
v.
Pedro Flores-Palma
ORDER OF DETENTION PENDING FURTHER ORDER OF
THE COURT
Case Number: CR-04-852-PHX-JAT
In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), the issue of detention was submitted to the Court on 3/29/12 .
Defendant was present and was represented by counsel. I conclude by a preponderance of the evidence the defendant is a flight risk
and order the detention of the defendant pending trial in this case.
FINDINGS OF FACT
I find by a preponderance of the evidence that:
: The defendant is not a citizen of the United States or lawfully admitted for permanent residence.
: The defendant, at the time of the charged offense, was in the United States illegally.
: If released herein, the defendant faces removal proceedings by the Bureau of Immigration and Customs
Enforcement, placing him/her beyond the jurisdiction of this Court and the defendant has previously been deported
or otherwise removed.
9 The defendant has no significant contacts in the United States or in the District of Arizona.
9 The defendant has no resources in the United States from which he/she might make a bond reasonably calculated
to assure his/her future appearance.
9 The defendant has a prior criminal history.
9 The defendant lives/works in Mexico.
9 The defendant is an amnesty applicant but has no substantial ties in Arizona or in the United States and has
substantial family ties to Mexico.
9 There is a record of prior failure to appear in court as ordered.
9 The defendant attempted to evade law enforcement contact by fleeing from law enforcement.
9 The defendant is facing a maximum of years imprisonment.
The Court incorporates by reference the material findings of the Pretrial Services Agency which were reviewed by the Court
at the time of the hearing in this matter, except as noted in the record.
CONCLUSIONS OF LAW
1. There is a serious risk that the defendant will flee.
2. No condition or combination of conditions will reasonably assure the appearance of the defendant as required.
DIRECTIONS REGARDING DETENTION
The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in
a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending
appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court
of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the
defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
APPEALS AND THIRD PARTY RELEASE
IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to
deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District
Court.
IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial
Services sufficiently in advance of the hearing before the District Court to allow Pretrial Services an opportunity to interview and
investigate the potential third party custodian.
DATED this 29th day of March, 2012.
Case 2:04-cr-00852-JAT Document 26 Filed 04/02/12 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_06-cv-01914/USCOURTS-caed-2_06-cv-01914-0/pdf.json | [
[
"Robert Chason",
"Defendant"
],
[
"Kenneth A. Smith",
"Plaintiff"
]
] | 1
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KENNETH A. SMITH,
Plaintiff, No. CIV S-06-1914 LKK EFB PS
vs.
ROBERT CHASON,
Defendant. FINDINGS & RECOMMENDATIONS
/
By order filed September 15, 2006, plaintiff’s complaint was dismissed with
thirty days leave to amend. The thirty day period has now expired, and plaintiff has not filed an
amended complaint or otherwise responded to the court’s order.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed
without prejudice. See Local Rule 11-110; Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days
after being served with these findings and recommendations, plaintiff may file written objections
with the court. Such a document should be captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” Failure to file objections within the specified time may waive
the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.
Case 2:06-cv-01914-LKK -EFB Document 5 Filed 11/08/06 Page 1 of 2
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1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
DATED: November 8, 2006.
Case 2:06-cv-01914-LKK -EFB Document 5 Filed 11/08/06 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-00783/USCOURTS-caed-2_07-cv-00783-0/pdf.json | [
[
"Brannon Harper-Kent",
"Defendant"
],
[
"Mikuni Midtown, Ltd.",
"Defendant"
],
[
"Nicole Wong",
"Plaintiff"
]
] | 1
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The failure of one or more of the parties to 1
participate in the preparation of the Joint Status Report does
not excuse the other parties from their obligation to timely file
a status report in accordance with this Order. In the event a
party fails to participate as ordered, the party timely
submitting the status report shall include a declaration
explaining why it was unable to obtain the cooperation of the
other party or parties.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NICOLE WONG, )
) 2:07-cv-783-GEB-GGH
Plaintiff, )
)
v. ) ORDER CONTINUING STATUS
) (PRETRIAL SCHEDULING)
MIKUNI MIDTOWN, LTD.; BRANNON ) CONFERENCE AND FED. R.
HARPER-KENT; DOES 1-XX, inclusive, ) CIV. P. 4(m) NOTICE
)
Defendants. )
)
The Joint Status Report filed July 24, 2007 reveals
Defendant Brannon Harper-Kent has not yet been served. (JSR at 2.)
Therefore, the Status (Pretrial Scheduling) Conference set for August
13, 2007 is continued to October 1, 2007, at 9:00 a.m. A further
joint status report shall be filed no later than fourteen days prior
to the status conference.1
Plaintiff is hereby notified that Defendant Harper-Kent may
be dismissed without prejudice under Federal Rule of Civil Procedure
4(m) if Defendant Harper-Kent is not served by August 23, 2007. To
avoid dismissal, a proof of service shall be filed for Defendant
Harper-Kent no later than August 27, 2007.
Case 2:07-cv-00783-GEB-GGH Document 10 Filed 08/08/07 Page 1 of 2
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If Plaintiff believes she has good cause to justify
extension of Rule 4(m)’s 120-day service period for Defendant HarperKent, she shall file a declaration no later than August 23, 2007
showing “good cause” for the extension.
IT IS SO ORDERED.
Dated: August 7, 2007
GARLAND E. BURRELL, JR.
United States District Judge
Case 2:07-cv-00783-GEB-GGH Document 10 Filed 08/08/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-00130/USCOURTS-caed-2_16-cv-00130-0/pdf.json | [
[
"Jackson National Life Insurance Company",
"Defendant"
],
[
"John Uyeyama",
"Plaintiff"
]
] | 1
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHN UYEYAMA,
Plaintiff,
v.
JACKSON NATIONAL LIFE
INSURANCE COMPANY,
Defendants.
No. 2:16-cv-00130-KJM-CKD
ORDER
In June of this year, the parties filed a stipulated request that this action be
dismissed without prejudice, ECF No. 12, and the action was dismissed without prejudice under
Federal Rule of Civil Procedure 41(a)(1)(A)(ii), ECF No. 13. The parties now request the court
order that dismissal was entered with prejudice. ECF No. 14. “[T]he district court has no role to
play once a notice of dismissal under Rule 41(a)(1) is filed. The action is terminated at that point,
as if no action had ever been filed.” Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074,
1080 (9th Cir. 1999). The court loses jurisdiction over the action. Id. at 1076. The parties’ request
is therefore DENIED.
IT IS SO ORDERED.
DATED: July 7, 2016.
Case 2:16-cv-00130-KJM-CKD Document 15 Filed 07/08/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_20-cv-00126/USCOURTS-caed-2_20-cv-00126-1/pdf.json | [
[
"S. Hanlon",
"Defendant"
],
[
"D. Rosario",
"Defendant"
],
[
"Michael Aaron Witkin",
"Plaintiff"
]
] | 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MICHAEL AARON WITKIN,
Plaintiff,
v.
D. ROSARIO, et al.,
Defendants.
No. 2:20-CV-0126-TLN-DMC-P
ORDER
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is plaintiff’s verified original complaint. See ECF
No. 1.
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d
1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the
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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege
with at least some degree of particularity overt acts by specific defendants which support the
claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is
impossible for the Court to conduct the screening required by law when the allegations are vague
and conclusory.
I. PLAINTIFF’S ALLEGATIONS
This action proceeds on plaintiff’s verified original complaint. See ECF No. 1.
Plaintiff names the following as defendants: (1) D. Rosario; and (2) S. Hanlon. See id. at 1, 2.
Plaintiff claims defendants violated his Fourth Amendment rights by conducting a warrantless
search of his cell and then performing a strip search. Plaintiff also claims defendants’ conduct
violated his right to equal protection under the Fourteenth Amendment because his cell was
searched while the cells of other inmates in his unit were not. See id. at 7. For relief, plaintiff
seeks monetary damages. See id.
II. DISCUSSION
In this case, plaintiff complains of Fourth and Fourteenth amendment violations
arising from a cell search and strip search. The Court finds plaintiff fails to state any claims for
relief and that this action should be dismissed with prejudice.
Plaintiff alleges he was subject to a warrantless cell search in violation of his rights
under the Fourth Amendment. This claim is meritless as a matter of law because prisoners have
no Fourth Amendment right of privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 525-
26 (1984); see also Seaton v. Mayberg, 10 F.3d 530, 534 (9th Cir. 2010) (recognizing a right of
privacy in traditional Fourth Amendment terms is fundamentally incompatible with the continual
surveillance of inmates and their cells to ensure security and internal order).
/ / /
/ / /
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Plaintiff also alleges he was subject to a strip-search in violation of the Fourth
Amendment. Generally, strip searches of prisoners do not violate the Fourth Amendment. See
Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 1988). If, however, the strip search is
vindictive, excessive, or harassing, it may be unconstitutional. See Id. at 332. Plaintiff’s current
pleading does not describe the alleged purpose for or manner of the strip search. To the extent
plaintiff can allege facts sufficient to state a claim, he will be provided an opportunity to amend.
Finally, plaintiff contends defendants’ conduct violated his equal protection rights
under the Fourteenth Amendment because his cell was searched whereas the cells of other
inmates in his unit, whom he claims were thus similarly situated, were not. This claim is too
vague, and fails to specify the nature of the alleged discrimination. Plaintiff has not described
why he believes he was treated differently. Plaintiff does not allege racial discrimination. Nor
does he allege discrimination based on religion. Plaintiff will be provided leave to amend to
allege additional facts in support of his Fourteenth Amendment claim.
III. CONCLUSION
Because it is possible that some of the deficiencies identified in this order may be
cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the
entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff
is informed that, as a general rule, an amended complaint supersedes the original complaint. See
Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to
amend, all claims alleged in the original complaint which are not alleged in the amended
complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if
plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make
plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be
complete in itself without reference to any prior pleading. See id.
/ / /
/ / /
/ / /
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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). The complaint must allege in specific terms how
each named defendant is involved, and must set forth some affirmative link or connection
between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Because some of the defects identified in this order cannot be cured by
amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now
has the following choices: (1) plaintiff may file an amended complaint which does not allege the
claims identified herein as incurable, in which case such claims will be deemed abandoned and
the court will address the remaining claims; or (2) plaintiff may file an amended complaint which
continues to allege claims identified as incurable, in which case the court will issue findings and
recommendations that such claims be dismissed from this action, as well as such other orders
and/or findings and recommendations as may be necessary to address the remaining claims.
Finally, plaintiff is warned that failure to file an amended complaint within the
time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at
1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply
with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).
See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s complaint is dismissed with leave to amend; and
2. Plaintiff shall file a first amended complaint within 30 days of the date of
service of this order.
Dated: April 1, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
Case 2:20-cv-00126-TLN-DMC Document 10 Filed 04/02/20 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-14-07125/USCOURTS-ca13-14-07125-0/pdf.json | [
[
"Robert A. McDonald",
"Appellee"
],
[
"Burt C. Veres",
"Appellant"
]
] | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
BURT C. VERES,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-729, Judge William A. Moorman.
______________________
JUDGMENT
______________________
N. ALBERT BACHARACH, JR., N. Albert Bacharach, Jr.,
P.A., Gainesville, FL, argued for claimant-appellant.
STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER; Y. KEN LEE,
Case: 14-7125 Document: 58-2 Page: 1 Filed: 08/14/2015
MARTIN J. SENDEK, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
THIS CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
PER CURIAM (PROST, Chief Judge, NEWMAN and
TARANTO, Circuit Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
August 14, 2015 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
Case: 14-7125 Document: 58-2 Page: 2 Filed: 08/14/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-09-02188/USCOURTS-ca4-09-02188-0/pdf.json | [
[
"Cecelia Contreras",
"Appellee"
],
[
"L. Ruther",
"Appellant"
],
[
"Mark Simmons",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2188
L. RUTHER,
Plaintiff - Appellant,
v.
CECELIA CONTRERAS; MARK SIMMONS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:09-cv-00495-RLW)
Submitted: June 1, 2010 Decided: June 4, 2010
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Ruther, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 09-2188 Doc: 11 Filed: 06/04/2010 Pg: 1 of 2
2
PER CURIAM:
L. Ruther appeals the district court’s order
dismissing his civil complaint under 28 U.S.C. § 1915(e)(2)(B)
(2006). We have reviewed the record and find no reversible
error. Accordingly, we affirm for the reasons stated by the
district court. Ruther v. Contreras, No. 3:09-cv-00495-RLW
(E.D. Va. Sept. 25, 2009). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
Appeal: 09-2188 Doc: 11 Filed: 06/04/2010 Pg: 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-cand-4_19-cv-00154/USCOURTS-cand-4_19-cv-00154-0/pdf.json | [
[
"Nancy A Berryhill",
"Defendant"
],
[
"Christopher Contreras",
"Plaintiff"
]
] | 1
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER CONTRERAS,
Plaintiff,
v.
NANCY A BERRYHILL,
Defendant.
Case No. 19-cv-00154-KAW
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 13, 14
Plaintiff Christopher Contreras seeks judicial review, pursuant to 42 U.S.C. § 405(g), of
the Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the
alternative, for further proceedings.
Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s
cross-motion for summary judgment. Having considered the papers filed by the parties, and for
the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and
DENIES Defendant’s cross-motion for summary judgment.
I. BACKGROUND
Plaintiff filed for Title II disability benefits on July 17, 2014. (Administrative Record
(“AR”) 486.) Plaintiff asserted disability beginning June 7, 2013. (AR 486.) The Social Security
Administration (“SSA”) denied Plaintiff’s application initially and on reconsideration. (AR 389,
397.) Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”); the hearing
was held on April 18, 2017. (AR 251, 402.)
Following the hearing, the ALJ denied Plaintiff’s application on April 18, 2017. (AR 20-
32.) A request for review of the ALJ’s decision was filed with the Appeals Council on August 24,
2018. (AR 481.) The Appeals Council denied Plaintiff’s request for review on November 7,
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2018. (AR 1.) On January 9, 2019, Plaintiff commenced this action for judicial review pursuant
to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.)
Plaintiff filed his motion for summary judgment on May 9, 2019. (Pl.’s Mot., Dkt. No.
13.) Defendant filed an opposition and cross-motion for summary judgment on June 6, 2019.
(Def.’s Opp’n, Dkt. No. 14.) Plaintiff filed his reply on June 10, 2019. (Pl.’s Reply, Dkt. No. 15.)
II. LEGAL STANDARD
A court may reverse the Commissioner’s denial of disability benefits only when the
Commissioner's findings are 1) based on legal error or 2) are not supported by substantial
evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097
(9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a
preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In
determining whether the Commissioner's findings are supported by substantial evidence, the
Court must consider the evidence as a whole, weighing both the evidence that supports and the
evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible
to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r
of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Under Social Security Administration (“SSA”) regulations, disability claims are evaluated
according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir.
1998). At step one, the Commissioner determines whether a claimant is currently engaged in
substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At
step two, the Commissioner determines whether the claimant has a “medically severe impairment
or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at
721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner
proceeds to step three, and determines whether the impairment meets or equals a listed impairment
under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is
met, the claimant is disabled. Reddick, 157 F.3d 715 at 721.
If a claimant does not have a condition which meets or equals a listed impairment, the
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fourth step in the sequential evaluation process is to determine the claimant's residual functional
capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis,
despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can
perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal
standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a).
If the claimant meets the burden of establishing an inability to perform prior work, the
Commissioner must show, at step five, that the claimant can perform other substantial gainful
work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the
burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th
Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954.
III. DISCUSSION
Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ’s failure to consider
Plaintiff’s chronic pain syndrome in determining the RFC, (2) the ALJ’s failure to give more
weight to Plaintiff’s treating physician and the state agency doctors, and (3) the ALJ’s failure to
address Plaintiff’s concentration issues. (Pl.’s Mot. at 16.)
A. Failure to Consider Chronic Pain Syndrome
Plaintiff argues that the ALJ erred in not only failing to consider Plaintiff’s chronic pain
syndrome as a severe impairment, but in failing to recognize it at all. (Pl.’s Mot. at 16-17.)
The Court agrees that the ALJ erred. In identifying Plaintiff’s severe impairments, the
ALJ only identified Plaintiff’s degenerative disc disease of the lumbar spine. (AR 22.) The ALJ
never specifically addressed Plaintiff’s chronic pain syndrome, despite summarizing numerous
medical findings, medical opinions, third-party statements, and Plaintiff’s testimony that stated
Plaintiff suffered from pain, and that Plaintiff’s pain impacted his ability to work. (AR 26-31.)
Defendant argues that the error is harmless because Plaintiff did not state what additional
limitations the ALJ should have included in the RFC. (Def.’s Opp’n at 5-6.) The Court disagrees
that the error is harmless. First, Plaintiff does identify additional limitations, including his ability
to concentrate. (Pl.’s Mot. at 20-21.) Second, and more significantly, as discussed below, many
of the limitations opined by Plaintiff’s treating physician and the state agency doctors were
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directly attributed to Plaintiff’s pain. Accordingly, the Court finds that the ALJ erred in not
specifically considering Plaintiff’s chronic pain syndrome.
B. Failure to Properly Weigh Medical Opinions
The court “distinguish[es] among the opinions of three types of physicians: (1) those who
treat the claimant (treating physicians); (2) those who examine but do not treat the claimant
(examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining
physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight
should be given to the opinion of a treating source than to the opinion of doctors who do not treat
the claimant.” Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). “At least where
the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for
‘clear and convincing reasons.’” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.
1991)). If a treating physician’s medical opinion is contradicted by another doctor, the ALJ must
identify specific legitimate reasons supported by substantial evidence to give more weight to the
non-treating doctor’s opinion. Id.
i. Dr. Massey
John Massey, M.D., is Plaintiff’s treating physician. Unlike the ALJ’s RFC, which found
that Plaintiff was capable of performing a full range of light work, Dr. Massey opined in June
2015 that Plaintiff would be able to sit, stand, and/or walk less than two hours in an eight-hour
workday, would need a sit-stand option, lift and/or carry twenty pounds occasionally and ten
pounds frequently, rarely twist and bend, and never crouch or climb ladders and stairs. (AR 26,
1024-25.) Dr. Massey also found that Plaintiff would miss more than four days of work per
month. (AR 1026.) In October 2016, Dr. Massey opined that Plaintiff could stand for ten minutes
at a time, lift ten pounds occasionally and less than ten pounds frequently, and occasionally stoop
while carrying weight. (AR 618-19.)
The ALJ gave little weight to Dr. Massey’s opinion. (AR 30.) The Court finds that the
ALJ’s reasons in rejecting Dr. Massey’s opinion are not specific legitimate reasons supported by
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substantial evidence.1 See Lester, 81 F.3d at 830.
First, the ALJ found that Dr. Massey made no observations about muscle weakness. It is
not clear, however, why this is relevant to Dr. Massey’s findings, as there is no suggestion that Dr.
Massey’s findings were related to muscle weakness. Rather, Dr. Massey’s opinions were based on
Plaintiff’s suffering from pain. For example, in his June 2015 opinion, Dr. Massey explained that
Plaintiff had constant pain that was variable in intensity, and would be aggravated by bending,
carrying, sitting, and standing. (AR 1023.) Likewise, in his October 2016 opinion, Dr. Massey
noted that Plaintiff’s limitations of lumbar spine motion were “due to pain.” (AR 616.) He also
stated that Plaintiff was receiving care from a pain specialist. (AR 619.) Thus, the fact that Dr.
Massey made no observations about muscle weakness is not inconsistent with his opined
limitations. See Marshall v. Berryhill, Case No. 16-cv-666-BAS-PCL, 2017 U.S. Dist. LEXIS
73756, at *43 n.14 (S.D. Cal. May 12, 2017) (faulting ALJ for failing to “specify how normal
muscle strength and full range of joint motion undermine reports of pain related to [the plaintiff’s]
chronic pain syndrome or migraines”).
Second, the ALJ found that Dr. Massey opined that Plaintiff suffered from the described
limitations since February 1995, which would have rendered the claimant unable to work. (AR
30, 1026.) Plaintiff, however, continued to work until 2013. (AR 30.) Plaintiff acknowledges
this discrepancy, but responds that Dr. Massey was likely explaining that the impairments
stemmed from Plaintiff’s 1995 accident. (Pl.’s Mot. at 19.) Plaintiff further notes that Dr. Massey
had only treated Plaintiff since June 2014. (Id.; see also AR 1023.) The Court finds that while
this appears to be an error, this is not alone a reason to reject Dr. Massey’s opinion entirely. It
does not affect or relate to his other medical opinions, as Dr. Massey had only treated Plaintiff
starting in June 2014, more than nine years after the February 1995 accident. Dr. Massey’s
opinion of the onset date was not dependent on when the limitations started. At most, this would
1 The ALJ gave great weight to the opinion of Nayyar Masood, M.D., a consultative examiner.
(AR 29.) Contrary to Dr. Massey, Dr. Masood opined that Plaintiff could sit for six hours, stand
and walk for six hours, and lift, push, and pull thirty pounds occasionally and fifteen pounds
frequently. (AR 29.) Thus, there is a conflicting medical opinion and the ALJ need only identify
specific legitimate reasons to reject Dr. Massey’s opinion.
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be a reason to reject Dr. Massey’s opinion about when the limitations started.
Finally, the ALJ found that Dr. Massey’s opinions were “inconsistent with the generally
conservative nature of the claimant’s impairments.” (AR 30.) In support, Defendant focuses on
the normal findings in the record of full motor strength and normal gait. (Def.’s Opp’n at 3-4.)
Again, however, Plaintiff’s full motor strength and normal gait are not necessarily relevant to the
limitations described, as those related to pain. An individual can have full motor strength and
normal gait, but be unable to sustain or perform certain activities due to pain.
Further, the ALJ focused repeatedly on Plaintiff’s “conservative” treatment, but the record
clearly demonstrates that Plaintiff’s treatment was not conservative. On June 25, 2014, Dr.
Massey observed that Plaintiff’s “treatment to date has been conservative and yet complex,”
including “rest, medications, physical therapy, chiropractic, acupuncture [sic] but culminated in a
[intradiscal electrothermal therapy].” (AR 920.) After this observation, however, Plaintiff’s
treatment included stem cell therapy, as well as eight series of trigger point injections between
September 1, 2016 and February 15, 2017. (See AR 834, 920, 1693, 1695, 1697, 1699, 1701,
1703, 1705, 1707.) These injections included four trigger point injections on September 1, 2016,
four trigger point injections on September 9, 2016, ten trigger point injections on September 26,
2016, three trigger point injections on October 11, 2016, twelve trigger point injections on
November 29, 2016, twelve trigger point injections on December 6, 2016, ten trigger point
injections on December 15, 2016, and ten trigger point injections on February 15, 2017. (AR
1693, 1695, 1697, 1699, 1701, 1703, 1705, 1707.) Numerous courts have rejected the argument
that trigger point injections are “conservative.” See Birkenstein v. Colvin, Case No. SA CV 12-
1525-SP, 2013 U.S. Dist. LEXIS 104636, at *26 (C.D. Cal. July 25, 2013) (“trigger point
injections may not be considered conservative”); Christie v. Astrue, Case No. CV 10-3448-PJW,
2011 U.S. Dist. LEXIS 105918, at *10-11 (C.D. Cal. Sept. 16, 2011) (finding that while
treatments such as trigger point injections “may not be the most aggressive available, like surgery,
for example, they are certainly not what the Court would categorize as conservative”); Brown v.
Astrue, Case No. CV 12-1902-SP, 2013 U.S. Dist. LEXIS 3544, at *28-29 (C.D. Cal. Jan. 9, 2013)
(“trigger point injections may not be considered conservative”); Lapeirre-Gutt v. Astrue, 382 Fed.
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Appx. 662, 664 (9th Cir. 2010) (suggesting that treatments such as occipital nerve blocks and
trigger point injections did not constitute conservative treatment). As Plaintiff’s treatment cannot
be deemed conservative, the Court finds that this is not a specific legitimate reason for giving Dr.
Massay’s opinion little weight.
Accordingly, the Court finds that the ALJ erred in giving Dr. Massay’s opinion little
weight because he failed to identify any specific legitimate reasons.
ii. State Agency Doctors
Plaintiff also challenges the ALJ’s decision to give little weight to the opinions of the state
agency doctors. (Pl.’s Mot. at 19.) “The Commissioner may reject the opinion of a nonexamining physician by reference to specific evidence in the medical record.” Sousa v. Callahan,
143 F.3d 1240, 1244 (9th Cir. 1998).
Dr. I. Ocrant opined that Plaintiff would be able to stand and/or walk for three hours in an
eight-hour workday; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs;
and never climb ladders, ropes, and scaffolds. (AR 366-68.) On reconsideration, Dr. H. Samplay
concurred with these findings. (AR 383-85.) The ALJ gave little weight to these opinions
because they were “inconsistent with the generally conservative nature of the claimant’s
impairments,” and also “inconsistent with treatment records from August 2016[, which] detail that
the claimant’s gait was stable, coordinated, and smooth.” (AR 29.)
As with Dr. Massey, the ALJ’s finding that these opinions were inconsistent with the
“conservative” nature of the claimant’s impairments is not based on specific evidence in the
record. Further, the finding that Plaintiff’s gait was stable, coordinated, and smooth does not
necessarily contradict the state agency’s doctors findings. Dr. Samplay, for example, specifically
identified pain in his explanation of findings. (AR 385.) Findings of gait also do not address the
state agency doctors’ opinions about ability to stand, walk, balance, crawl, and climb throughout
an eight-hour workday. See Stradley v. Berryhill, Case No. 1:16-cv-423-EJL-CWD, 2017 U.S.
Dist. LEXIS 191080, at *14 (D. Idaho Oct. 30, 2017) (“gait simply refers to the manner of
walking, not the ability to sustain walking for a period of time over the course of an 8-hour work
day”). Accordingly, the Court finds that the ALJ erred in giving little weight to these opinions.
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C. Ability to Concentrate
Finally, Plaintiff argues that the ALJ failed to properly address Plaintiff’s issues with
concentration. (Pl.’s Mot. at 20-21.) In finding that Plaintiff had only “mild limitation” in
concentrating, persisting, or maintaining pace, the ALJ pointed to Plaintiff’s ability to pay bills,
count change, handle a savings account, and use a checkbook/money orders. (AR 25.) The ALJ
also noted that although Plaintiff testified that he was frequently distracted due to pain, he was still
able to participate in a weekly podcast.2 (AR 25.) Further, the ALJ specifically rejected
Plaintiff’s reporting of his concentration problems, noting that this was inconsistent with
Plaintiff’s research on the Sasquatch (the subject of the weekly podcast), his report that he worked
on patents, and caring for his son. (AR 31; see also AR 265-66, 946, 1010.)
Plaintiff does not explain why these reasons do not support the ALJ’s findings. Instead,
Plaintiff only points to other parts of the record that demonstrate Plaintiff’s struggles with
concentration. (Pl.’s Mot. at 21; Pl.’s Reply at 8.) The Court, however, must “affirm the ALJ’s
findings of fact if they are supported by substantial evidence and if the ALJ’s decision was free of
legal error. Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2018). While
Plaintiff “argues that the ALJ could have come to a different conclusion,” he fails to demonstrate
“that the ALJ’s interpretation of the available evidence was not rational.” Id. Thus, the Court
finds that the ALJ did not err in excluding concentration issues from the RFC.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s motion for summary
judgment and DENIES Defendant’s cross-motion for summary judgment.
Because it is not clear from the record that the ALJ would be required to find Plaintiff
disabled if all the evidence was properly evaluated, remand is appropriate. On remand, the ALJ
must properly evaluate the medical evidence based on applicable law and consistent with this
///
2 The Court notes that Plaintiff’s participation in the podcast does not appear to be minimal; he
stated that he was the co-host of the podcast. (AR 265-66.)
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United States District Court
Northern District of California
opinion.
IT IS SO ORDERED.
Dated: February 10, 2020
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
Case 4:19-cv-00154-KAW Document 16 Filed 02/10/20 Page 9 of 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-19-03942/USCOURTS-ca6-19-03942-0/pdf.json | [
[
"Chesapeake Exploration, LLC",
"Appellee"
],
[
"Dale H. Henceroth",
"Appellant"
],
[
"Melinda J. Henceroth",
null
],
[
"Marilyn S. Wendt",
"Appellant"
]
] | NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0286n.06
Case No. 19-3942
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DALE H. HENCEROTH; MARILYN S.
WENDT,
Plaintiffs-Appellants,
MELINDA J. HENCEROTH, et al.
Plaintiffs
v.
CHESAPEAKE EXPLORATION, LLC,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO
BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Chesapeake Exploration extracts oil and gas from the Utica Shale
and other formations in eastern Ohio. A class of plaintiffs with land over the formations claims
that the company short-changed them on royalties. The district court rejected their claims, and so
must we.
I.
Over a decade ago, hundreds of landowners signed leases granting Anschutz Exploration
rights to the oil and gas beneath their property. In exchange, Anschutz agreed to give the
landowners one-eighth of the proceeds it received from oil and gas sales as a royalty.
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 1
Case No. 19-3942, Henceroth v. Chesapeake Expl.
2
Chesapeake Exploration purchased these leases and assumed the extraction rights and
royalty obligations under them. Its parent company, Chesapeake Energy, divides its work between
two subsidiaries. Chesapeake Exploration is the lessee under the contracts. It operates the wells
that extract the oil and gas. Chesapeake Exploration then sells the oil and gas to an affiliate,
Chesapeake Marketing, which prepares the product for sale. That costs money—above all the
costs of transporting the oil and gas to the relevant pipelines. Once downstream and ready for sale,
Chesapeake Marketing sells the finished products to buyers at a price that reflects the value of
these additional services.
The two Chesapeake affiliates and the landowners divide the proceeds from the sales.
Chesapeake calculates how much the oil and gas were worth at the well (what Chesapeake
Marketing owes to Chesapeake Exploration) using the “netback” method. The netback price is the
final purchase price minus the post-production costs incurred to move the oil and gas downstream
and prepare it for sale. That calculation accounts for the fact that the products are more valuable
after they have been processed. Chesapeake Exploration in turn uses the netback price as the
royalty base for calculating payments to the landowners. The landowners take a one-eighth share
from that price.
Dissatisfied with this practice, a class of over 600 landowners led by Dale Henceroth sued
Chesapeake Exploration in 2015. As they see things, royalty payments should be calculated as
one-eighth of the price to the ultimate buyers, not the price paid by Chesapeake Marketing.
According to their damages expert, using a downstream royalty base would have led to $2.01
million in additional royalties since 2011, distributed among over 600 property owners with
various sized tracts of land. At the close of discovery, the district court granted summary judgment
to Chesapeake Exploration.
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 2
Case No. 19-3942, Henceroth v. Chesapeake Expl.
3
II.
Oil and gas leases are governed by ordinary rules of contract interpretation, meaning that
the “language” of the “lease agreement,” the first rule of contract interpretation, sets the parties’
rights and obligations. Lutz v. Chesapeake Appalachia, LLC, 71 N.E.3d 1010, 1011 (Ohio 2016).
The short answer is that Chesapeake Exploration’s actions conform to the language of the leases.
It sells oil and gas at the well to Chesapeake Marketing, and pays royalties to the landowners based
on the proceeds it receives from that sale.
The long answer ends in the same place. Start with the gas leases. The gas royalty
provision says that Chesapeake Exploration must pay “an amount equal to one-eighth of the net
proceeds realized by Lessee [Chesapeake Exploration] from the sale of all gas and the constituents
thereof produced and marketed from the Leasehold.” R. 147-3 at 3. The key language is
“produced and marketed from the Leasehold,” and it shows that the first sale price is the proper
royalty base. Chesapeake Exploration extracts the raw product from the ground (“produced”) and
immediately sells it to Chesapeake Marketing (“marketed”). Title passes in exchange for a price,
which qualifies as a sale under Ohio law. See Ohio Rev. Code Ann. §§ 1302.01(A)(11),
1302.03(A). And all of this happens at the property (“from the Leasehold”), not downstream. That
geographic limitation calls to mind the more common “at the well” language, which courts have
interpreted to authorize a netback royalty calculation even in the absence of an actual sale at the
well (like we have here). Poplar Creek Dev. Co. v. Chesapeake Appalachia, LLC, 636 F.3d 235,
242–43 (6th Cir. 2011); see also 8 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers, Oil
and Gas Law, Manual of Oil & Gas Terms at “A” (2019) (collecting cases).
Turn to the oil leases. Chesapeake Exploration must “deliver to the credit of [the
landowner], free of cost, a Royalty of the equal one-eighth part of all oil and any constituents
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 3
Case No. 19-3942, Henceroth v. Chesapeake Expl.
4
thereof produced and marketed from the Leasehold.” R. 147-3 at 3. This provision contains the
same “produced and marketed from the Leasehold” language, and the same interpretation follows.
That the lease says the landowners may take “part” of the oil itself instead of money (a common
formulation in the industry), 3 Martin & Kramer, Oil and Gas Law, § 659 (2019), further supports
Chesapeake’s view. Otherwise, the lease would require Chesapeake to process and move oil away
from the property at considerable expense, then separate out one-eighth of the refined product and
transport it back. The symmetry makes sense. Whether the royalty is paid in cash or oil, the oneeighth calculation occurs before the oil has been refined and transported and after considering its
value at that point.
Chesapeake Exploration also complies with the “free of cost” limitation in the oil royalty
provision because it does not deduct its own costs—the extraction costs. This too is standard
industry lease language and standard practice: Oil and gas royalties are typically “free of the costs
of production.” Id. § 642.3. And this language does not call the netback method into question.
The calculation merely deducts Chesapeake Marketing’s processing and transportation costs, not
Chesapeake Exploration’s production costs. As other courts have determined in the face of similar
clauses, the netback method does not deduct costs. It is “nothing more than a method of
determining market value at the well in the absence of comparable sales data at or near the
wellhead.” Potts v. Chesapeake Expl., LLC, 760 F.3d 470, 475 (5th Cir. 2014).
Also supporting this interpretation is trade “usage.” Ohio Rev. Code Ann. § 1310.09(A);
Abram & Tracy, Inc. v. Smith, 623 N.E.2d 704, 709 (Ohio Ct. App. 1993). It is standard practice
in the industry to calculate the wellhead sales price using the netback method and to use the netback
price to calculate landowners’ royalties. Why? A netback royalty base avoids a windfall to
landowners. “If the landowner’s royalty is calculated on the amount received by the lessee
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Case No. 19-3942, Henceroth v. Chesapeake Expl.
5
downstream . . . [,] the landowner receives more than one-eighth of the value of the raw gas
produced from his property.” Baker v. Magnum Hunter Prod., 473 S.W.3d 588, 595 (Ky. 2015).
He instead receives a royalty based on “an enhanced product, without having borne any of the
costs associated with turning the raw gas into that more valuable product.” Id. The netback
method takes care of this problem and is “fair in every sense.” Id.; see also Schroeder v. Terra
Energy, Ltd., 565 N.W.2d 887, 894 (Mich. Ct. App. 1997).
Henceroth says that three words in the leases—“sale,” “marketed,” and “realized”—lead
to a different conclusion. Consider them one at a time.
Sale. Henceroth maintains that the gas sales from Chesapeake Exploration to Chesapeake
Marketing are invalid because they are conducted under an unsigned contract. But contracts need
not be signed, or sometimes even be in writing, to be enforceable. A contract for the sale of goods
can be formed “in any manner sufficient to show agreement, including conduct by both parties
which recognizes the existence of such a contract.” Ohio Rev. Code Ann. § 1302.07(A); Am.
Bronze Corp. v. Streamway Prods., 456 N.E.2d 1295, 1300 (Ohio Ct. App. 1982). A consistent
practice of purchase orders, delivery, and money exchanged (as here between Chesapeake
Exploration and Chesapeake Marketing) suffices. See, e.g., Am. Bronze, 456 N.E.2d at 1300. That
remains true even if the signature page of the contract remains blank. See Richard A. Berjian,
D.O., Inc. v. Ohio Bell Tel. Co., 375 N.E.2d 410, 413–14 (Ohio 1978).
Also unavailing is Henceroth’s argument about oil sales. He claims that this contract does
not apply in Ohio, noting that the contract covers land leases “described on the attached Exhibit
‘A’” and Exhibit A does not list any Ohio locations. R. 148-7 at 4. But another term in the contract
undermines the point. The contract’s title refers to “all states,” bolded and underlined at the top.
R. 148-7 at 4. “[A]cts by the parties” at any rate may “demonstrate the construction they gave to
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 5
Case No. 19-3942, Henceroth v. Chesapeake Expl.
6
their agreement.” Lutz, 71 N.E.3d at 1012. Chesapeake Exploration and Chesapeake Marketing
have consistently treated the contract as covering Ohio. Nearly ten years into this relationship, it’s
too late to change that reality now.
Marketing. Henceroth argues that Chesapeake Exploration does not “market” oil and gas
to Chesapeake Marketing; the only marketing occurs when the latter sells products to unaffiliated
third parties. But an Ohio appellate court recently rejected a different plaintiff’s attempt to make
this argument, indeed against Chesapeake Exploration itself. The court reasoned that Chesapeake
Exploration “marketed” oil and gas at the well when it sold products to Chesapeake Marketing.
Gateway Royalty, LLC v. Chesapeake Expl., et al., No. 19 CA 0933, 2020 WL 1671626, at *4–*5
(Ohio Ct. App. Apr. 3, 2020). The decision takes some of the Erie guesswork out of our task in
this diversity case. See Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., 249 F.3d 450, 454 (6th Cir.
2001). It also seems right. The definition of “market” is “to expose for sale in a market” or to
“sell,” Merriam-Webster Unabridged Online (2016), which is what happens when Chesapeake
Exploration sells oil and gas to Chesapeake Marketing. See also Gateway Royalty, 2020 WL
1671626, at *4. The “ordinary meaning” of “marketing” does not require a set level of promotional
activities. See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995). Nor does it matter that
Chesapeake Marketing, true to its name, also markets oil and gas. There’s nothing unusual about
multi-level vertical supply chains that include sales and marketing at each level. Try getting a job
at any level of a supply chain while disclaiming an interest in sales or marketing.
Realized. Noting that the gas lease requires payment in “an amount equal to one-eighth of
the net proceeds realized,” R. 147-3 at 3, Henceroth insists that Chesapeake Exploration does not
“realize” any proceeds because it receives an intercompany receivable from Chesapeake
Marketing, not cash. But an accounting entry of this sort does not mean that the transfer does not
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 6
Case No. 19-3942, Henceroth v. Chesapeake Expl.
7
generate money. Chesapeake’s accounting expert confirmed as much, explaining that
“Chesapeake Exploration realizes revenue” when it sells oil and gas to Chesapeake Marketing. R.
148-11 at 22. Chesapeake Exploration also treats the payment as money, using it to pay expenses,
confirming that it indeed “realizes” proceeds from the sales.
Henceroth does not challenge this conclusion with an accounting expert of his own. He
instead relies on out-of-context language from a few cases—mostly outside of Ohio, none from
this circuit. His one Ohio case, Hamlin v. Collins, 459 N.E.2d 520 (Ohio 1984), concerned the
appropriate amount of backpay for a wrongfully discharged employee. The court interpreted the
word “receivable” in a pension contribution statute to mean money “due or owing.” Id. at 525.
That meant the defendant had to make pension contributions based on the salary the employee
should have gotten after he was wrongfully discharged, rather than the reduced salary he actually
received, because the higher salary was “due or owing.” Id. at 525. But the court never looked at
what matters here: the accounting effect of a transaction or the meaning of “realized.”
Henceroth’s other authorities are no more helpful, and none contradicts our analysis. See
In re O’Neil, 177 B.R. 809, 814 (Bankr. S.D.N.Y. 1995) (interpreting the Internal Revenue Code’s
definition of “money”); Frank Briscoe Co., Inc. v. Travelers Indem. Co., 899 F. Supp. 1304, 1313
(D.N.J. 1995) (determining that the words “net proceeds realized” in an insurance contract were
“synonymous with ‘received’”). One case even supports our conclusion, reasoning that “accounts
receivable[]” are “a form of current assets, which include cash.” Emerald Coast Finest Produce
Co. v. United States, 79 Fed. Cl. 466, 473 (Fed. Cl. 2007) (quoting Robert N. Anthony & James
S. Reece, Accounting Principles 34 (5th ed. 1983)).
Sham transaction. A common theme running through Henceroth’s arguments is that the
transaction between Chesapeake Exploration and Chesapeake Marketing should not be respected
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 7
Case No. 19-3942, Henceroth v. Chesapeake Expl.
8
because Chesapeake Exploration lacks adequate physical office space and employees. But that
tells half the story. While Chesapeake Exploration may be thinly staffed, that is because it
conducts operations through a different entity, Chesapeake Operating. Under an agency agreement
between the two entities, Chesapeake Operating handles Chesapeake Exploration’s day-to-day
activities, including collecting payments and disbursing royalties. Henceroth never explains why
this matters at any rate. The corporate form must be respected in the absence of (among other
things) “fraud, an illegal act, or a similarly unlawful act.” Dombroski v. WellPoint, Inc., 895
N.E.2d 538, 545 (Ohio 2008). No such allegation appears in the complaint, which raises a run-ofthe-well claim of breach of contract. That’s presumably why Henceroth never argues that the
corporate form should be ignored or that Chesapeake Exploration is a mere alter ego of another
Chesapeake entity. He instead suggests that Chesapeake Exploration’s supposed deficiencies
mean its actions are legally void. That’s veil-piercing by another name and without the necessary
predicate.
He claims that two decisions support this theory. See Potts v. Chesapeake Expl., LLC, No.
3:12-CV-1596-O, 2013 WL 874711 (N.D. Tex. Mar. 11, 2013); Schoop v. Devon Energy Prod.
Co., No. 3:10-CV-650, 2013 U.S. Dist. LEXIS 188345 (N.D. Tex. Mar. 28, 2013). That they are
unpublished and come from outside the circuit only partly explains their deficiency. Potts ruled
in Chesapeake’s favor, concluding that the sale between Chesapeake Exploration and Chesapeake
Marketing was valid and amounted to the proper time to calculate the royalty. Potts, 2013 WL
874711, at *6, *8. Schoop also concluded that the at-the-well sale was legitimate. 2013 U.S. Dist.
LEXIS 188345, at *44. And while it did let a “sham transaction” theory go to trial, the relevant
affiliate was far more ephemeral than Chesapeake Exploration. It lacked its own “financial
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 8
Case No. 19-3942, Henceroth v. Chesapeake Expl.
9
statements,” “property,” and “business ident[ity],” id. at *49–*51, it did not have an operating
company to back it up, and the party in fact made a piercing-the-veil argument.
That leaves one last argument. Citing another out-of-circuit district court case, Henceroth
says a new “body of law,” Appellant Br. 28, controls the post-production costs Chesapeake
Exploration may deduct from the royalty base. Pollock v. Energy Corp. of Am., No. 10-1553, 2015
WL 3795659 (W.D. Pa. June 18, 2015). But this argument depends on accepting that Chesapeake
Exploration is deducting its own costs, accepting in other words the key premise of his case: that
there is no independent sale of oil and gas from Chesapeake Exploration to Chesapeake Marketing.
That argument has already been raised and refuted.
We affirm.
Case: 19-3942 Document: 40-2 Filed: 05/21/2020 Page: 9 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-00099/USCOURTS-caed-2_13-cv-00099-4/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Stephanie Arlene Tsouvas",
"Plaintiff"
]
] | 1
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Ann M. Cerney, SBN: 068748
CERNEY KREUZE & LOTT, LLP
42 N. Sutter Street, Suite 400
Stockton, CA 95202
(209) 948-9384
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
STEPHANIE ARLENE TSOUVAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.
No. 2:13-CV-0099-AC
STIPULATION AND ORDER
EXTENDING PLAINTIFF’S TIME TO
REPLY TO DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT
IT IS HEREBY STIPULATED by and between the parties, through their respective
undersigned attorneys, with the approval of the Court, that Plaintiff’s time to reply to
Defendant’s Cross-Motion For Summary Judgment in the above-referenced case is hereby
extended from the present due date of January 6, 2014, by fourteen days, to the new response date
of January 20, 2014. This extension is requested because Plaintiff has a particularly heavy
briefing schedule this month.
Case 2:13-cv-00099-AC Document 26 Filed 01/06/14 Page 1 of 3
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DATED: January 3, 2014 BENJAMIN B. WAGNER
United States Attorney
DONNA L. CALVERT
Acting Regional Chief Counsel, Region IX
/s/ Ann M. Cerney /s/ Tina R. Saladino
ANN M. CERNEY, TINA R. SALADINO,
Attorney for Plaintiff (As authorized via E-mail on 01/03/14)
Special Assistant U S Attorney
Attorneys for Defendant
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Ann M. Cerney, SBN: 068748
CERNEY KREUZE & LOTT, LLP
42 North Sutter Street, Suite 400
Stockton, California 95202
Telephone: (209) 948-9384
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
STEPHANIE ARLENE TSOUVAS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.
No. 2:13-CV-0099-AC
ORDER EXTENDING PLAINTIFF’S TIME
TO FILE A REPLY TO DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT
Pursuant to the stipulation of the parties showing good cause for a requested extension of
Plaintiff’s time to file a Reply to Defendant’s Cross-Motion For Summary Judgment, the request
is hereby APPROVED.
Plaintiff shall file her Reply to Defendant’s Cross-Motion For Summary Judgment on or
before January 20, 2014.
SO ORDERED.
DATED: January 6, 2014
Case 2:13-cv-00099-AC Document 26 Filed 01/06/14 Page 3 of 3 |
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