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https://www.courtlistener.com/api/rest/v3/opinions/7217583/ | ORDER
Joseph Hurst, who has been jailed in Illinois since 1969, claims that the Director of the Illinois Department of Corrections and the warden for the Menard Correctional Center are depriving him of adequate living space by housing him in a cell with another inmate. The district court interpreted Hurst’s claim as arising under *241the Eighth Amendment’s prohibition against cruel and unusual punishment and dismissed for frivolousness under 28 U.S.C. § 1915A(b)(l). On appeal Hurst concedes that under the Eighth Amendment his claim fails, but he argues that the court erred because he brought his claim under the Fourteenth Amendment Due Process Clause and the Ex Post Facto Clause of Article I, § 10, cl. 1. We affirm.
According to Hurst, he obtained a liberty interest in retaining fifty square feet of personal cell space when Illinois enacted the Unified Code of Corrections in 1973. See Ill. St. Ch. 38 ¶ 1003-7-3(b) (1977) (“All new, remodeled and newly designated institutions or facilities shall provide at least 50 square feet of cell, room or dormitory floor space for each person. ” (emphasis added)). Hurst argues that the defendant prison officials deprived him of this state-created liberty interest without due process when they housed him in a cell with another inmate, resulting in less than fifty square feet of personal cell space. The Due Process Clause, however, generally safeguards only those state-created liberty interests in freedom from restraints that impose atypical and significant hardships when compared to normal prison life. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Thielman v. Leean, 282 F.3d 478, 482 (7th Cir.2002). Because inmates do not have a federally protected liberty interest in their prison placement, it follows that inmates do not have a liberty interest in the size of their cell. See Meachum v. Fano, 427 U.S. 215, 222-25, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (prison transfer to more restrictive prison does not implicate due process); Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir.1995) (same); Williams v. Faulkner, 837 F.2d 304, 309 (7th Cir.1988) (no liberty interest in “remaining in any particular wing of a prison”); see also Thomas v. Ramos, 130 F.3d 754, 757, 762 (7th Cir.1997) (segregated inmate did not have a liberty interest in not being confined to a cell “approximately as wide as his outstretched arms and twice that long” with another inmate).
Equally frivolous is Hurst’s contention that his rights under the Ex Post Facto Clause were violated when Illinois amended its statute to delete the express reference to a per person space requirement. See Ill. St. Ch. 38 ¶ 1003-7-3(b) (Cum.Supp.1984) (current version at 730 Ill. Comp. Stat. 5/3 — 7—3) (“Ah new, remodeled and newly designated institutions or facilities shall provide at least 50 square feet of cell, room or dormitory floor space.”). Even if the amendment indeed reduced the space allotment, and even if these defendants could be held responsible under § 1983 for implementing the legislative change, the Ex Post Facto Clause invalidates only laws that “increase the punishment for a crime after its commission.” Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); O’Grady v. Village of Libertyville, 304 F.3d 719, 723 (7th Cir.2002). A punishment is increased if the inmate is incarcerated for a longer period of time under the new law than the old, see Garner, 529 U.S. at 255-56 (statute violates Ex Post Facto Clause if it “lengthen[s] respondent’s time of actual imprisonment”); United States v. Shorty, 159 F.3d 312, 317 (7th Cir.1998) (Ex Post Facto Clause analysis focuses on maximum length of punishment), which is not the situation here.
The judgment is AFFIRMED. The district court’s dismissal of Hurst’s complaint and our decision here affirming the dismissal count as two of Hurst’s three allotted “strikes” under 28 U.S.C. § 1915(g). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217584/ | ORDER
Randall E. Youhas was convicted by a jury of being a felon in possession of explosives, firearms, and ammunition in violation of 18 U.S.C. §§ 842(i)(l) and 922(g)(1) and was sentenced to 15 months’ imprisonment. Youhas appeals, and his counsel moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to discern any nonfrivolous argument for appeal. Counsel’s brief is facially adequate and Youhas has not responded, although he was given opportunity to do so. See Cir. R. 51(b). We accordingly confine our review to the potential issues discussed in counsel’s brief and the related portions of the record. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). For the reasons set forth below, we grant counsel’s motion to withdraw and dismiss this appeal.
*243In January 1996 Hillside, Illinois police went to the Youhases’ home after receiving report of a break-in. They spoke to Yo-uhas’s wife, who was standing on the driveway, and then entered the house to check if the offender remained inside. Officers saw gun boxes and long-gun cases strewn around the house, and in a doorless bedroom closet they discovered both ammunition and a pried-open gun safe. In the basement they found several explosives, including firecrackers, a “quarter stick” (essentially a large firecracker), and a spool of Primacord - an explosive-impregnated cord used for detonating other explosive devices. Without removing any of the items, the officers left the house to speak to Mrs. Youhas to try to determine if any guns had been stolen. She called her husband, who was out of town, and he provided Officer Lee Wollenberg with information about the guns that should be in the house. Mr. Youhas permitted Wollen-berg to reenter the house to check the gun boxes to determine which firearms, if any, were missing. Wollenberg retrieved all the explosives, took them to the Hillside police station, and informed the ATF about them.
Later in January ATF agents executed a search warrant on the Youhases’ house. Youhas showed agents where various firearms and ammunition had been stashed, including under the bed mattress and in a bedroom closet and dresser. He also told the agents that other weapons had been taken to his father’s home for safekeeping. In May agents recovered those weapons after executing a warrant on the father’s home.
Youhas was subsequently indicted for being a felon in possession of firearms, explosives, and ammunition. He filed a motion to suppress the guns, bullets, and explosives discovered at his house, asserting that the police officers, at the time they were investigating the break-in, had re-entered his home after their initial search for a burglar without a warrant in violation of the Fourth Amendment. At a hearing on the motion, Wollenberg testified that Youhas gave him permission during their telephone conversation to reenter the house and check if any of the guns were missing. Youhas and his wife testified that they never gave the officers permission to enter the house or to search for guns, ammunition, or explosives. The district judge denied the motion, noting that he credited Wallenberg’s testimony over the Youhases’. After a jury trial Youhas was found guilty of being a felon in possession of firearms, explosives, and ammunition.
Counsel identifies two bases on which Youhas could potentially challenge his conviction. He first examines whether Youhas could assert that the district court erroneously denied the motion to suppress, but concludes that the district court did not err by finding that the search was consensual. We agree with counsel that this argument would be frivolous. At the hearing, the district court considered conflicting testimony about the consensual nature of the search, and credited Wollenberg’s testimony. Although Youhas may disagree with the district court’s determination, a factfinder’s choice between two permissible views of the evidence cannot constitute clear error. Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Given Wallenberg’s testimony, the court reasonably concluded that the Youhases consented to the search of their home and that no basis existed to suppress the evidence. See Schneckloth v. Bustamante, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (warrantless search conducted with consent constitutionally permissible); United States v. Melgar, 227 F.3d 1038, 1041 (7th *244Cir.2000) (Fourth Amendment not applicable when consent given to search).
Counsel also considers whether Youhas could challenge the sufficiency of the evidence presented at trial because the government did not prove that Youhas actually possessed any of the weapons found at his house. This argument is also frivolous. Youhas waived his challenge to the sufficiency of the evidence because he did not present a timely motion for a judgment of acquittal after the jury verdict-he filed his motion on June 19, 2000, well after the seven-day period prescribed by Federal Rule of Criminal Procedure 29 and therefore could obtain a reversal only if he demonstrated “a manifest miscarriage of justice.” See Fed.R.Crim.P. 29(c)(1); United States v. Taylor, 226 F.3d 593, 596 (7th Cir.2000).
Youhas would face an insurmountable hurdle in challenging the sufficiency of the evidence. We would review the evidence in a light most favorable to the government and would reverse only if the record is devoid of any evidence from which the jury could find him guilty. United States v. Tadros, 310 F.3d 999, 1005-06 (7th Cir.2002); United States v. Griffin, 310 F.3d 1017, 1021-22 (7th Cir.2002). Here the parties stipulated that Youhas was a felon and that the munitions had traveled in interstate commerce, so we would need to determine only if the jury correctly determined that he possessed those items. See 18 U.S.C. §§ 842(i)(1) and 922(g). Such possession can be either actual or constructive, United States v. Smallwood, 188 F.3d 905, 913 (7th Cir.1999), and constructive possession is proved when a weapon is seized at the defendant’s residence. United States v. Alanis, 265 F.3d 576, 592 (7th Cir.2001), cert. denied, 535 U.S. 1095, 122 S.Ct. 2289, 152 L.Ed.2d 1049 (2002). Uncontradicted evidence presented by the government established that the ammunition, firearms, and explosive rope were seized from Yo-uhas’s home, and this evidence adequately established his knowing possession of those items. Id.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Youhas’s appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217585/ | ORDER
The murder of an inmate at the federal penitentiary in Marion, Illinois, prompted prison officials to conduct a series of sys-temwide searches of inmates for weapons. During one of those searches, officials discovered that inmate Ralph Cutchins had concealed a plastic knife inside his rectal cavity. Cutchins pleaded guilty to possessing a prohibited weapon while imprisoned at a federal facility, 18 U.S.C. § 1791(a)(2), and was sentenced to 46 *246months’ imprisonment and 3 years’ supervised release to be served consecutively to the 12-year prison term he was already serving for bank robbery. Cutchins’ appointed counsel, who also represented him in the district court, now has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to discern a nonfrivolous basis for appeal. Although notified of his opportunity to do so, see Cir. R. 51(b), Cutchins did not respond to counsel’s motion. Because counsel’s brief is facially adequate, we limit our review to the potential issues counsel identifies. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). We agree with counsel that the potential issues are frivolous and therefore grant the motion to withdraw and dismiss Cutchins’ appeal.
We first consider counsel’s assertion that a challenge to the voluntariness of Cutchins’ guilty plea would be frivolous because the district court complied with Federal Rule of Criminal Procedure Rule 11. Counsel need not have explored the adequacy of the Rule 11 colloquy in his Anders submission because neither counsel nor Cutchins suggest that Cutchins now wishes to withdraw his plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel also examines whether Cutchins could have asserted a nonfrivolous defense to the weapons charge-namely, that Cutchins possessed the knife out of necessity, to protect himself from other inmates. But, counsel concludes, this defense would be frivolous in fight of our recent decision in United States v. Tokash, 282 F.3d 962, 970-71 (7th Cir.2002), which holds that fear of future potential violence from other inmates is not enough to justify possession of a weapon; rather, prisoners must demonstrate that they faced an immediate threat of serious bodily harm and had no reasonable alternative to violating the law. As in Tokash the government filed a pretrial motion in limine to preclude Cutchins from introducing evidence to support a necessity defense. The district court, however, did not decide the government’s motion because Cutchins pleaded guilty. Having pleaded guilty, Cutchins has waived his opportunity to present this defense. See United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); United States v. Nash, 29 F.3d 1195, 1201 (7th Cir.1994). Moreover, Cutchins acknowledged at the plea hearing that, with his plea, he was waiving any issues raised by the government’s motion in limine. Thus, unless Cutchins were seeking to withdraw his plea-and, as set forth above, nothing we have seen indicates that he wishes to do so-any argument challenging his conviction on the ground of necessity would be frivolous.
Counsel next considers whether Cutchins could mount a nonfrivolous challenge to his prison sentence. Based on the presentence report, the district court determined that Cutchins’ offense level was 14, which, combined with a criminal history category of VI, yielded a range of 37-46 months’ imprisonment. First, as counsel points out, Cutchins’ prison sentence of 46 months was not unlawful because it fell within that range as well as the five-year statutory maximum for Cutchins’ crime, see 18 U.S.C. § 1791(b)(3), and the district court had no choice under § 1791(c) but to impose the sentence consecutively. Second, counsel correctly observes that Cutchins waived any challenge to the district court’s determination of his guideline range. At sentencing, the court asked both Cutchins and his attorney whether they had any objections to the PSR; by agreeing that they had none, Cutchins has waived his right to contest on appeal the determination of his guideline range. *247United States v. Martinez-Jimenez, 294 F.3d 921, 928 (7th Cir.2002); United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). We therefore agree with counsel that any challenge to Cutchins’ sentence would be frivolous.
Lastly, counsel reports that Cutchins believes that counsel was ineffective for failing to pursue the necessity defense and for failing to successfully argue for a lesser sentence. Counsel maintains that any ineffective-assistance claim would be frivolous because Cutchins had no viable defense, his sentence was proper, and his guilt was undisputed. Based upon our review of the record, we find no reason to disagree with counsel’s assessment. But because Cutchins’ proposed claim likely would depend on evidence outside the record, it would best be brought on collateral attack rather than on direct appeal. See United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). That is particularly so where, as here, a defendant’s trial and appellate counsel are the same. See United States v. Fuller, 312 F.3d 287, 291 (7th Cir.2002). Accordingly, if Cutchins marshals evidence supporting his view that his trial attorney was deficient, he may file a motion under 28 U.S.C. § 2255.
For these reasons, we GRANT counsel’s motion to withdraw, and DISMISS the appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217586/ | *249ORDER
Glen Daniel pleaded guilty to a one-count indictment charging him as a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). At sentencing, the court increased Daniel’s offense level, pursuant to U.S.S.G. § 2K2.1(b)(5), based on its finding that Daniel had possessed or used a firearm in connection with another felony-namely, an attempted armed robbery. Daniel argued below, and maintains before this court, that the evidence suggesting a connection between himself and the attempted robbery was not reliable, and was insufficient to support a finding that he participated in the alleged crime. The court sentenced Daniel to a term of 70 months imprisonment, to be followed by three years of supervised release. We affirm.
I. Facts
In July of 1999, Glen Daniel was convicted of armed robbery in Milwaukee County Circuit Court. After serving one year in the House of Correction on the armed robbery charge,1 on August 31, 2001, Daniel was discovered by police in possession of a sawed-off shotgun that he later admitted was his. Daniel was indicted on one charge of being a felon in possession of a firearm. Pursuant to a plea agreement, Daniel pleaded guilty to the one-count felony charge. At sentencing, the Government recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) on the basis that, according to prosecutors, the firearm owned by Daniel, and found in his possession on August 31, 2001, had been used in an attempted armed robbery earlier that day.
Prosecutors presented the sentencing court with evidence that, at 5:30 a.m. on August 31, 2001, two persons attempted to rob Royce Hall near the entrance to Kern Park (the “Park”), in Milwaukee, Wisconsin. The investigating officer, Detective Timothy Duffy, was not present at the sentencing because he “[was] not ... subpoenaed,” Sent. Tr. at 39, but by agreement of the prosecution and defense counsel, Duffy’s police report was submitted to the court.
In his statement to Officer Duffy (contained in Duffy’s report, submitted to the sentencing court), Hall recounted that on the morning of August 31, 2001, as he was walking through Kern Park with his female companion, Kelly Keedy, Keedy ran ahead of him to swing on the Park’s swing set. As Hall continued to walk through the Park, he passed a row of bushes, and smelled the scent of marijuana. At that point, two men “jump[ed] out of the bushes, [and] pointfed] something at [Hall that he] fearfed] [wa]s a gun.” Sent. Tr. at 9. According to Hall, the person in possession of “what he th[ought] was a gun” demanded: “ ‘give me your mother f-ing money.” ’ Id. Despite the assailants’ further directions “n[o]t [to] move,” id., Hall gave chase, and was followed for some time by the two males who continued to yell out to him, “ ‘don’t run.” ’ Id. Hall described his assailants as two black men in dark clothing, and noted that the man whom he believed was armed was between 20 and 25 years of age, wearing a red bandana, and was approximately five feet eight or ten inches tall, with a slim to medium build.
On the morning of the incident, Ms. Carla Giano-Wergin was visiting her mother in her house, near the entrance to the Park. Giano-Wergin testified at the sentencing hearing that, around 5:30 a.m. that morning, she saw two black males, *250both wearing dark clothing, exit a car and head towards Kern Park. Suspicious that the men were dropping off a stolen vehicle, Giano-Wergin took note of the vehicle’s license plate number, which was “940-BUU.” Less than ten minutes later, Ms. Giano-Wergin noticed the vehicle was gone. She exited her mother’s house and was immediately flagged down by Kelly Keedy, who sought help because she had seen her companion, Royce Hall, chased away by two black males. The women immediately called the authorities.
When police arrived, Ms. Giano-Wergin reported the license plate number of the vehicle she had seen parked near the entrance to the Park, and described the vehicle as a “big boat, like a square model car, dark color, two door.” Sent. Tr. at 20. She also informed authorities that one of the individuals who had exited the vehicle “was wearing dark clothes and a red bandana on his head.” Sent. Tr. at 20.
The police traced the car to Defendant Glen Daniel (in whose name the plates were licensed) and dispatched officers to Daniel’s residence. Officer Herbert Smith began monitoring Daniel’s residence soon thereafter and, as he testified at the sentencing hearing, observed Daniel approach the apartment building at around 7:00 a.m. (less than two hours after the attempted robbery). Daniel was driving the same automobile Ms. Giano-Wergin had seen near the Park that morning (matching license plate, same description). Daniel was transporting two other black males who, upon arriving at Daniel’s apartment building, exited the vehicle and entered the residence. Daniel remained outside, standing next to his ear. Officer Smith noted that Daniel was around 5 foot 8 inches tall, around 135 pounds, 18 to 20 years old, was wearing a blue t-shirt and black sweat pants, matching the description given by Hall. After making these initial observations, Officer Smith approached Daniel to conduct a field interview. As soon as he spotted Officer Smith, Daniel fled. Upon searching Daniel’s abandoned car, police discovered a sawed-off shotgun in the back of the car, in plain view. The shotgun was later determined to belong to Daniel.
On September 11, 2001, after receiving a Miranda warning, Daniel admitted to police that he owned the sawed-off shotgun found in the car he was driving on August 31, and stated that the car belonged to his father, but that the license plates on the car were registered in his name. He stated that he “always” kept his sawed-off shotgun in his own car, which was broken down at the time. Sent. Tr. at 13. And, although he was using his father’s car in lieu of his own car (broken down), he claimed that he had not transferred the gun into his father’s car that morning. Instead, he denied any knowledge that the gun was in the car the morning he fled from Officer Smith.
II. Analysis
Daniel’s sentence was enhanced four levels under U.S.S.G. § 2K2.1(b)(5) for “usfing] or possess[ing] a[ ] firearm ... in connection with another felony offense,” the other offense in this case being the armed robbery attempt. U.S.S.G. § 2K2.1(b)(5). On appeal, Daniel contends that the court erred in applying the four-level increase because it: (1) improperly relied on hearsay evidence to find that a gun was used during a robbery attempt on Royce Hall, and (2) incorrectly concluded that Daniel was involved in that robbery attempt.2
*251
1. Hearsay Evidence
It is well-settled that sentencing courts are “free to consider a wide variety of information that would be inadmissible at trial, including hearsay.” United States v. Barnes, 117 F.3d 328, 336 (7th Cir.1997) (citations omitted). Thus, “[h]earsay is admissible at a sentencing hearing as long as the evidence is reliable and the defendant has the opportunity to rebut it.” United States v. Simmons, 218 F.3d 692, 695 (7th Cir.2000). We review the sentencing court’s determination as to the reliability of hearsay evidence for an abuse of discretion, see United States v. Szakacs, 212 F.3d 344, 347 (7th Cir.2000), and will reverse such a determination only if a defendant demonstrates that the evidence in question was “inaccurate,” and that the sentencing court relied upon it. Barnes, 117 F.3d at 337.
Daniel argues that the evidence that his gun was used in the robbery attempt on Royce Hall lacked even a minimal indicia of reliability, because Detective Duffy (the officer who interviewed Hall) and Hall (who provided the information regarding the use of a weapon) were not present to testify at the hearing. Appellant’s Br. at 14-16. We note at the outset that the reason that Duffy was not present at that hearing was that Defendant “ha[d] not ... subpoenaed” him, id., and because both prosecution and defense counsel had agreed that Duffy’s report would be submitted into evidence in lieu of live testimony. Because Defendant’s counsel herself failed to subpoena Duffy, and thus “asked the [sentencing court to] accept in full Officer Duffy’s reports,” Sent. Tr. at 39, we fail to ascertain the basis for Defendant’s argument, on appeal, that it was improper for the sentencing court to rely upon Duffys police report.
In any case, Daniel has cited to no evidence in the record that the hearsay contained in the report was unreliable, much less “inaccurate.” On the contrary, the testimony of Royce Hall contained in the police report was credible because it was corroborated by other evidence, including the in-court testimony of Ms. Giano-Wer-gin and Officer Smith. Hall’s statement was that two black men tried to rob him, near the entrance of Kern Park, and that, during the robbery, one of the two assailants “pointed something” toward him that he “feared” was a gun and ordered him to “turn over his f-ing” money. Hall specified that the assailant whom he “feared” was carrying a weapon was also wearing a red bandana.
The in-court testimony of Giano-Wergin corroborated Hall’s statements, insofar as she testified that, just before Hall was robbed, she observed two black men exit an automobile (later determined to be Daniel’s automobile) parked near the scene of the crime (the entrance to the Park).3 Also consistent with Hall’s statement, Gi-ano-Wergin testified that one of the men was wearing a red bandana.
Additionally, the in-court testimony of Officer Smith established that Daniel was driving a car bearing his own license plates (seen at the scene of the crime) just a short time after the incident occurred, and *252that there was a sawed-off shot gun found inside the car at that time, and also that Daniel matched Hall’s description of one of the assailants. Officer Smith’s discovery of the gun, his description of Daniel (consistent with Hall’s and Giano-Wergin’s descriptions of the perpetrator), and also his testimony that Daniel fled as soon as Smith began to approach him (in spite of Daniel’s claim that he was “unaware” that the gun was inside the car) not only linked Daniel to the robbery in Kern Park, but also served to confirm Hall’s “fear” that his assailants had used a gun to threaten him during their robbery attempt.
In closing, we reiterate that it is difficult to reconcile Daniel’s current argument that the hearsay in the police report was “unreliable” with his trial counsel’s stipulation at sentencing that the police report was admissible. Thus, we are left to ponder why defense counsel at sentencing requested that the court “accept in full Officer Duffy’s [police] report[ ],” Sent. Tr. at 39, if, as Daniel argues, the report was “unreliable.” In any event, “[a]s we have repeatedly explained, hearsay is permitted at sentencing if it is rehable [and] reliability may be established by corroborating evidence.” United States v. Martinez, 289 F.3d 1023, 1028-29 (7th Cir.2002). We are convinced that, in light of the corroboration of HaU’s account provided by the combined testimony of Officer Smith and Ms. Giano-Wergin, Hall’s hearsay testimony set forth in Officer Duffy’s police report was sufficiently reliable for use by the district court in its determination regarding the sentencing enhancement.
B. Factual finding
Daniel also objects to three of the district court’s findings of fact, which this Court reviews for clear error. U.S. v. Charles, 238 F.3d 916, 918 (7th Cir.2001). Importantly, in evaluating the available evidence, if the district court chose one of two permissible inferences, there is no clear error. Id. Thus, reversal is warranted only if “‘after considering all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996) (quoting United States v. Messina, 55 F.3d 1241, 1247 (7th Cir.1995)).
Daniel disagrees with the following inferences drawn by the sentencing court: (1) that the gun owned by Defendant and found in his father’s car (black Buick Le-Sabre)4 on August 31, 2001 was the same gun used in the attempted armed robbery of Hall earlier that morning; (2) that the car Defendant was driving, at 7:00 a.m. on August 31, 2001, was the same car involved in the robbery attempted after 5:30 a.m. that morning; and (3) that Defendant himself was involved in the attempted robbery. Unfortunately for Daniel, the district court’s conclusions with regards to these factual findings were all permissible inferences, and, as is well-settled, a district court’s “choice between two permissible inferences from the evidence cannot be clearly erroneous.” United States v. Charles, 238 F.3d 916, 918 (7th Cir.2001).
First, Daniel argues that the sentencing court should not have concluded that the sawed-off shot gun found in his car (and to which he admitted ownership) *253was used in the armed robbery earlier that morning. Specifically, he argues that “[i]f a gun was pointed at Royce Hall ... it could not have been the gun recovered from [Defendant’s car],” because the gun found in Defendant’s car was a sawed-off shotgun. Daniel reasons that, “[i]f the recovered shotgun with the 13-inch barrel was pointed at Hall, it is only reasonable that he would have known that it was, in fact, a gun ...”. Daniel’s Br. at 20. However, according to the record, it was still dark outside at the time of the attempted robbery of Mr. Hall (5:30 a.m.). Sent. Tr. at 17 (“[Was it] light out or dark out [at the time of the robbery]?” “Dark.”). Thus, considering the conditions (still dark), and the stress and excitement of the moment (attempted robbery), it was entirely understandable, and certainly not unreasonable, that Hall could not make out exactly what type of object or weapon was pointed at him-no matter how big the gun was that was used in the robbery attempt. Defendant is thus incorrect that, if the assailant had been carrying a sawed-off shotgun, Hall would have necessarily been able to identify the gun.
In any case, the court did not clearly commit error in its determination that what Hall “feared” was a weapon was in fact a gun, or that the gun pointed at Hall was Defendant’s sawed-off shotgun. Instead, the court drew permissible inferences from a number of facts established at the sentencing hearing-namely, that a car bearing Defendant’s license plates was spotted at the crime scene, carrying the perpetrators of the crime (red bandana), that Hall stated immediately after the robbery that he had observed one of the assailants point at him (Hall) “something [that he (Hall) ] fear[ed][wa]s a gun,” Sent. Tr. at 9, and that, soon after the crime, the Defendant (who matched Hall’s description of the perpetrator) was observed to be driving the car spotted at the scene of the crime, and in possession of his own sawed-off shotgun (back seat).
Daniel also argues that the court should not have concluded that the car Defendant was driving at 7:00 a.m. on August 31, 2001, was also the car used in connection with the robbery earlier that morning. But this, too, was a permissible inference of the sentencing court based on rehable evidence presented at the sentencing hearing. After all, Ms. Giano-Wergin gave testimony that two black males, in their early twenties, one with a bandana on his head, left a car bearing Daniel’s license plates (“940-BUU”) to enter the Park, at 5:30 a.m. Royce Hall reported to have been attacked in the Park, soon thereafter, by two black males, in their early twenties, one with a red bandana on his head. Moreover, Ms. Giano-Wergin noted that no one else was in the area of the Park. Such evidence sufficiently supports the Court’s inference that the black LeSabre with license plates registered to Defendant, which matched the description of the vehicle observed by Ms. Giano-Wergin near the entrance to the Park, was used in connection with the robbery.
Lastly, we are convinced that the court’s conclusion that Daniel himself was involved in the robbery was not clearly erroneous. Daniel clearly meets the victim’s physical description of the gun-wielding perpetrator (black male, 20-25 years of age, 5’ 8” to 5’ 10”, slim to medium build, wearing dark clothing), for, at the time of arrest, Daniel was, in fact, 20 years old, 5’ 11”, and 160 lbs. And, as observed by Officer Smith, Daniel was wearing a blue t-shirt and black pants on the morning of the robbery, which matched Hall’s description of the “dark clothing” worn by his attackers. Moreover, Daniel admits that the license plates on the car spotted at the crime scene were registered to him and, *254just an hour and a half after the crime, Daniel was observed driving the same car bearing his plates, in possession of a firearm (back seat of the car). Finally, when he was approached by Officer Smith for questioning, Daniel immediately fled, with no apparent reason for doing so (he denied any knowledge that the gun was in the car).
We agree with the sentencing court that, “even though Mr. Hall c[ould]n’t make a positive identification that [the sawed-off shot] gun was used [by his assailants],” the circumstantial evidence strongly implicated Daniel in the robbery (red bandana, physical description, car), and was sufficient to “allow the court to conclude that [Daniel’s gun] was possessed in connection with another felony offense.” Sent. Tr. at 61.
Affirmed.
. In addition to serving a one-year sentence in the House of Correction, Daniel was subject to ten years of probation in connection with the armed robbery charge.
. Daniel did not challenge the Government’s charge of felony in possession of a firearm, but instead plead guilty to that offense.
. Giano-Wergin’s observation of the two men whom she accurately described as leaving the parked car and entering the Park at around 5:30 a.m. was particularly significant given that, as she testified, there were no other people in the area of the park that morning. The absence of other people in the park (given the early hour) makes it highly likely that the two men observed by Giano-Wergin were the same two men involved in the attempted robbery of Mr. Hall (same time, same place). This is particularly true considering that one of the two men observed by Giano-Wergin was wearing a red bandana, as was one of the two men who (shortly thereafter) tried to rob Mr. Hall just inside the entrance to the Park.
. We note that, although the black Buick Le-Sabre was owned by Daniel’s father, Daniel himself was observed (by Officer Smith) driving the car later in the morning on the day of the attempted armed robbery. In his statement to police officers, Daniel admitted that his own car was broken down at the time, and that he had affixed his own license plates (940-BUU) to his father’s car (Buick LeSabre) so that he could use the vehicle himself. See Sent. Tr. at 13. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217587/ | ORDER
Gary Back appeals the district court’s judgment affirming the Commissioner’s decision to deny him disability insurance benefits. Following a hearing, an ALJ concluded that Back was not disabled for purposes of the Social Security Act because he did not suffer from a severe impairment (step two of the five-step inquiry). 20 C.F.R. § 404.1520(c). The district court concluded that substantial evidence supported the ALJ’s decision, and we affirm.
Background
In October 1998 Back applied for disability benefits for a period beginning in May 1997, coinciding with his being laid off from his job as an order filler in a warehouse (a job he held since 1972). He was 50 years old at the beginning of his alleged disability period. Following his onset date, Back worked part-time folding and packing clothes (from June through September 1998). At the time of his administrative hearing, he had been delivering newspapers one day per week.
Back alleged three types of disability. First, he alleged that pain in his right shoulder and neck prevented him from lifting his right arm over his head, extending it, or lifting objects. This condition relates to an automobile accident he suf*256fered in 1994. Second, he alleged cognitive limitations with memory and concentration relating to depression and grief he suffered after his wife’s death in 1991. He received counseling briefly in 1992 for this depression. Third, he alleged difficulty hearing. In addition to these disabilities, he alleged additional symptoms including arthritis, high blood pressure, nerves, and gastrointestinal problems, but he did not allege limitations based on these symptoms.
After Back’s initial request for benefits was denied, he requested a hearing, and one was held before an ALJ in September 1999. Back testified and iterated his limitations and symptoms pertaining to pain in his right shoulder and neck, and he explained that he had problems retaining information. He also discussed his daily activities such as cooking, cleaning, lifting, and laundry and his work delivering newspapers. The other relevant evidence in the record before the ALJ was the following:
X-Ray Reports: X-rays taken of Back’s right shoulder and spine did not reveal any fractures or traumatic injury, but they did note some spinal abnormalities. An x-ray report from January 1995 for his right shoulder (following his automobile accident) noted “mild chronic changes of AC joints laterally in otherwise negative left shoulder.” A report at that time for his spine noted no fractures, no traumatic injury, and normal vertebrae alignment, but also noted “cervical spondylosis with slight disc space narrowing.” A report from October 1998 (following a second accident) noted that his right shoulder was “normal” with “no acute fracture or dislocation” and “no traumatic changes.” A report for his spine from that time noted no fracture and normal alignment, but also noted “lower cervical spondylosis” as well as “moderate disc space narrowing” and “some moderate degenerative disc disease.”
Dr. Beardsley: Back’s treating physician, Dr. Beardsley, filled out reports describing Back’s physical condition following two separate examinations, one in November 1998 and one in January 1999. These examinations took place in connection with Back’s claim for disability benefits. In the first report, Dr. Beardsley noted no muscle weakness or atrophy; no sensory or reflex abnormalities; no loss of major function of extremities; no loss of grip strength; no problem with ambulation; and full range of motion of Back’s cervical and lumbar spine. Dr. Beardsley also noted, however, that Back had difficulty writing and lifting his arm over his head, and that he lacked 30 degrees of full extension of his shoulder. Finally, Dr. Beardsley noted that Back’s hearing was generally normal though he had some difficulty hearing in crowded rooms. The second report contains the same findings as the first except it does not list any limitations on range of shoulder motion and stated that Dr. Beardsley did not notice any abnormality with Back’s ability to perform fine motor skills (one of the examples listed is writing).
Dr. Barrow: In December 1998 a psychologist, Dr. Barrow, performed a consultative examination of Back for his disability claim. Dr. Barrow concluded that Back did not appear to have “symptoms consistent with an affective disorder” and “his symptoms of depression do not appear to be severe enough to warrant an adjustment disorder.” Dr. Barrow also noted that Back’s memory was “relatively adequate,” but he noted that Back’s concentration appeared to be “significantly impaired as reflected in his computational ability and ability to sustain his concentration when sequencing information,” and that his “depressive feelings ... have an *257affect (sic) on his concentration which will no doubt slow his approach to specific tasks.” Next, he noted that Back reported writing every day, including short stories and novels. Finally, he noted that Back’s “comprehension, as well as capacity for abstraction and formal judgement appear to be fully intact with his fund of general information appearing to be fully adequate as well.”
Dr. Shipley and Dr. Lavallo: A state psychologist, Dr. Shipley, and a state physician, Dr. Lavallo, each submitted reports on Back’s conditions. Neither examined Back. Dr. Shipley, relying primarily on Dr. Barrow’s report, concluded that Back did not have a severe mental impairment. Dr. Lavallo, relying primarily on Dr. Beardsley’s reports and his own conclusion that Back’s symptom reports were credible, concluded that Back could perform work consistent with “fight” work, such as lifting twenty pounds occasionally and ten pounds frequently. Two other state agency doctors later reviewed and agreed with these reports.
Dr. Rumble: Following the ALJ hearing, Back supplemented the record by submitting a “Mental Residual Functional Capacity Assessment” and “Neuropsycho-logical Testing Report” from Dr. Rumble, a psychologist who examined Back in November 1999. First, in a number of categories pertaining to memory and concentration, Dr. Rumble concluded that Back was “not significantly limited”; but in two categories pertaining to understanding, remembering, and carrying out detailed instructions, he concluded that Back was “moderately limited.” Dr. Rumble noted that Back “appeared to be somatically focused and is suspected of over-describing symptom severity because of this somatic preoccupation and self-perception that he is physically and cognitively impaired.” He concluded that Back manifested symptoms consistent with depressive, anxiety, and personality disorders. And he recommended that Back consider taking antidepressant medication and that he employ “coping strategies” to help with concentration during his delivery job, such as using a counter or writing down numbers more frequently.
After first concluding that Back did not engage in substantial gainful activity during the claimed disability period (step one), the ALJ concluded that Back did not have a severe impairment (step two). In reaching this conclusion, the ALJ found that Back did not have a medically determinable physical or mental impairment or combination of impairments that would significantly limit his ability to perform basic work activities. According to the ALJ, Back’s descriptions of his symptoms and his allegations of his limitations were not sufficient to establish a severe impairment, and Back failed to present medical or other objective evidence corroborating his alleged symptoms and limitations. In addition, the ALJ found that Back’s complaints and allegations “were not fully credible,” referring to Dr. Rumble’s statement that Back appeared to be “over-describing” his symptoms.
The district court affirmed the ALJ’s decision, concluding that it was supported by substantial evidence and free from legal error.
Discussion
On appeal Back argues that the ALJ erroneously evaluated each of his alleged disabilities. We will uphold the ALJ’s determinations so long as they are supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.2001). In addition to challenging the ALJ’s evaluations of his alleged disabilities, Back also discusses specific findings or omissions by the district court that he contends warrant *258reversal: that the ALJ (1) impermissibly “played doctor”; (2) miseharacterized Backs’s limited range of shoulder motion as “subjective”; and (3) failed to discuss x-ray reports showing that Back has spinal abnormalities.
Step two of the five-step disability inquiry states: “If you do not have any impairment or combination of impairments which significantly limits you physical or mental ability to do basic work activities, we will find that you do not have a severe impairment. ...” 20 C.F.R. § 404.1520(c); Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (upholding the validity of the “severe impairment” requirement). Additional regulations elaborate on this requirement. An impairment must result from abnormalities established by medical or laboratory evidence and “not only by [the claimant’s] statement of symptoms.” § 404.1508; § 404.1528(a). “An impairment or combination of impairments is not severe if it does not significantly limit” the claimant’s ability “to do basic work activities.” § 404.1521(a). “Basic work activities” means “the abilities and aptitudes necessary to do most jobs” including physical functions such as walking and lifting and mental functions such as understanding and remembering simple instructions. § 404.1521(b). Statements of symptoms, including pain, are evaluated to the extent to which they “can reasonably be accepted as consistent with the objective medical evidence and other evidence” including “daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work.” § 404.1529(a).
Substantial evidence supports the ALJ’s conclusion that Back did not have a medically determinable impairment or combination of impairments that significantly limited his ability to perform basic work activities. First, with respect to Back’s shoulder limitations, the ALJ discussed the relevant evidence including Back’s statements of symptoms and limitations, Dr. Beardsley’s reports, and x-rays of Back’s shoulder. The ALJ noted that the only evidence of limitation was Back’s own statements of pain, which were insufficient to establish a severe impairment. See 20 C.F.R. § 404.1508; § 404.1528(a). The ALJ further noted that Back performed substantial gainful employment at his warehouse job following his 1994 accident (the alleged cause of his shoulder problem) up until his alleged onset date in 1997. The ALJ discussed the lack of objective medical and other evidence in the record that would be consistent with Back’s alleged symptoms. See Higgs v. Bowen, 880 F.2d 860, 863-64 (6th Cir.1988) (no “severe impairment” when record lacks objective medical evidence to support allegations.) The ALJ also found that Back’s allegations were not “fully credible,” quoting Dr. Rumble’s statement that he believed Back to be “over-describing” his symptoms. See Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.1995) (ALJ’s credibility determinations are accepted unless “patently wrong”).
Second, with respect to Back’s cognitive limitations, the ALJ discussed the relevant evidence including the reports from Dr. Barrow and Dr. Rumble about Back’s cognitive limitations as well as Back’s own description of his daily activities and his delivery job. See Clifford v. Apfel, 227 F.3d 863, 871-72 (7th Cir.2000) (daily activities relevant to determine limitations caused by alleged symptoms); see also Bunch v. Heckler, 778 F.2d 396, 400-01 (7th Cir.1985) (no severe mental impairment when daily activities were consistent with basic work activities and claimant’s allegations not credible). The ALJ also noted that Back did not appear to have any memory problems at the hearing; that *259these alleged limitations (which stemmed from his wife’s death in 1991) predated his alleged disability period by a number of years; and that the findings of Dr. Barrow (i.e., no mental disorder) were more consistent with Back’s descriptions of his activities than Dr. Rumble’s findings (i.e., mental disorder). See Dixon, 270 F.3d at 1178 (when two physicians conflict, the ALJ may decide whom to believe so long as substantial evidence supports the decision). The ALJ also discussed evidence contrary to his conclusion such as Dr. Barrow’s finding that Back appeared to have moderate to significant concentration problems and concluded that this finding was not consistent with the other evidence in the record. See Diaz, 55 F.3d at 307 (ALJ may not discuss only favorable evidence). Specifically, the ALJ noted that Back’s delivery job required concentration tasks such as stopping frequently and tracking mileage and deliveries.
Third, with respect to Back’s alleged hearing problem, the ALJ discussed the relevant evidence including Dr. Beardsley’s conclusion that Back’s hearing was generally normal (except for difficulty hearing in crowded rooms). The ALJ also noted that Back did not have any trouble hearing at the administrative hearing. More importantly, the ALJ noted that Back failed to submit any medical evidence pertaining to his ability to hear. Given that the ALJ discussed the relevant evidence for these alleged limitations, resolved inconsistencies, and reached reasonable conclusions, substantial evidence supported the decision.
Even if substantial evidence supports the decision, Back contends that the ALJ committed specific errors that warrant reversal. First, Back maintains that the ALJ impermissibly “played doctor,” see Dixon, 270 F.3d at 1177; Green v. Apfel, 204 F.3d 780 (7th Cir.2000), because the ALJ stated that if Back’s shoulder pain caused the limitations he alleged, then there likely would be some physical manifestation of these limitations such as muscle weakness or atrophy. Typical cases of ALJs impermissibly “playing doctor” are when they either reject a doctor’s medical conclusion without other evidence, see Dixon, 270 F.3d at 1177, or when they draw medical conclusions themselves about a claimant without relying on medical evidence, see, e.g., Green, 204 F.3d at 782. In this case, the ALJ was relying on the report of Dr. Beardsley, who found no neurological or other physical abnormalities with Back’s shoulder. Moreover, the regulations direct the ALJ to evaluate medical evidence and to look for objective medical evidence that corroborates a claimant’s subjective statements of pain. See 20 C.F.R. § 404.1529. Here, rather than playing doctor, the ALJ appeared to be pointing out examples of the kinds of objective evidence one might expect to see if Back had the limitations he claimed.
Next, Back maintains that the ALJ mischaracterized the record by concluding that the finding in Dr. Beardsley’s report of a 30-degree limitation in shoulder motion was based on “subjective pain reporting.” Back contends that this is objective medical evidence consistent with his allegations, showing he has a severe impairment. It is not clear from the report, however, whether the limitation was based on Back’s subjective pain reporting or on objective testing. Moreover, and more important, Dr. Beardsley’s second report, submitted months after his first report, does not fist any limitation on range of motion. Given this second report, the ALJ had reason to discount the finding in the first report.
Finally, Back maintains that the ALJ erred by not discussing x-ray reports documenting spinal abnormalities. And, Back *260argues, these reports provide objective evidence to support Back’s complaints of neck pain. Back, however, was not alleging any limitations in his neck or back movements due to pain; he was alleging physical limitations with shoulder and arm movements. Moreover, Dr. Beardsley did not list any physical abnormality or limitations on range of motion with respect to Back’s back or neck. Therefore, given that Back was not alleging limitations with respect to neck or back movements, it was reasonable for the ALJ not to discuss this evidence in the decision.
AFFIRMED | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217588/ | ORDER
Bruce Lippart appeals from the district court’s order upholding the denial of his application for disability insurance benefits by the Social Security Administration (“SSA”). Lippart contends that the ALJ’s decision is not supported by substantial evidence because the ALJ rejected the opinions of his treating physicians, discredited his complaints of pain, and relied on the Medical-Vocational Guidelines (known as the “grids”) instead of his vocational expert. We affirm the district court’s judgment.
I. Background
A. Lippart’s Medical History
In July 1998 Lippart injured his back while unloading furniture from a moving van, one of his duties as a moving van driver. A MRI of his spine revealed a large central and right paracentral disk extrusion with a central compression of the right L5 nerve root. Neurosurgeon Daniel Resnick performed a lumbar diskectomy on Lippart’s spine, but when Lippart continued to experience pain in the weeks following his surgery, he underwent a reexploration of his lumbar wound, during which Dr. Resnick removed a “very large” disk fragment. Two weeks later, Dr. Res-nick reported that he was very pleased with Lippart’s progress, noting that his pain and posture were greatly improved. At Dr. Resnick’s suggestion, Lippart attended physical therapy.
Over the next two months Lippart’s condition continued to improve. He reported to Dr. Resnick that he was well enough to use a chainsaw to remove a tree limb and to carry shingles up to his roof. In October Dr. Resnick suggested that Lippart slowly ease back into work in November. Lippart, however, did not go back to work. Instead, he returned to Dr. Resnick, complaining that on the day after Thanksgiving he felt a sharp pain in his back when he extended his arm to point at his barn. He reported that the pain radiated down to his right leg. After an examination, Dr. Resnick noted that, despite this new episode of pain, Lippart’s condition “seems to have improved remarkably.” Nevertheless, Dr. Resnick recommended that Lip-part undergo another MRI, but concluded after reviewing the results that there was no evidence of nerve root compression and that the root looked “fine.”
The following month Lippart saw his treating physician, Dr. Muhammad Esmai-li. He complained of back pain, stiffness, and radiation of pain to his right toe. Dr. Esmaili opined that, considering Lippart’s stiffness and difficulty walking, he could not see how Lippart could return to work. *262He advised Lippart to see Dr. Kris Chan for a spinal consultation.
In January 1999 Dr. Chan examined Lippart and noted his back stiffness and difficulty standing and sitting down. After reviewing Lippart’s MRI scans, Dr. Chan concluded that, because Lippart’s surgery was on his right side, nothing on Lippart’s left side explained the pain across his lower back and down his left thigh. Dr. Chan assumed that such pain was “muscle pain and not a true radicular pain.” Nevertheless, Dr. Chan concluded that Lippart was not ready to resume work as a truck driver and suggested that he continue to treat his back pain with ibuprofen, hot baths, and exercise.
Later that month Dr. Resniek explained to Lippart that he could not say when he could return to work because he did not know the extent of his pain or his job requirements. Dr. Resniek advised Lip-part to rest and avoid activities that caused him pain. He suggested that Lip-part take a higher dose of ibuprofen and indicated that a functional capacity examination (“FCE”) could answer his questions regarding his ability to return to work.
In February 1999 physical therapist Kevin Beaver performed a FCE on Lip-part. Beaver evaluated Lippart for his readiness to return to work as a “heavy truck driver,” a “medium” level job:
Mr. Lippart did not meet all the physical demands of a heavy truck driver as per the job standard. He met all U.S. Dept, of Labor strength demands for “light” work. He lifted 30# and carried 40# maximum. He performed in the “light” level work range with static bench height lifting and bench height dynamic lifting. He lifted below job standard for all dynamic lifting. He measured work day tolerances of 1-5 hours vs. 8 + hours/day for 7 of 7 measured worker interface and positional tasks.
Although Lippart could not work a full eight-hour day of medium level work, Beaver specifically found that Lippart’s work day capacity of light work was “8 + ” hours. Beaver also explained that Lippart performed the tests with some difficulty, noting increased pain, sweating, shortness of breath, and difficulty changing positions.
Dr. Chan reviewed Lippart’s FCE and restricted him to “light work permanently with maximum lifting of 20 pounds.” Dr. Chan also concluded that Lippart should avoid repetitive bending and estimated Lippart’s permanent partial disability to be twelve percent of his body. Dr. Chan noted that Lippart had stopped taking ibuprofen because it no longer relieved his pain.
In May 1999 Dr. Esmaili examined Lip-part and noted that his back problem had improved, though he still had trouble bending and reported being tired after a few hours of activity. Dr. Esmaili opined that Lippart could perform light work for three to four hours daily with frequent breaks. Two months later Dr. Esmaili noted that Lippart’s back pain had reached a plateau and that his bending and movement had improved. He continued to believe that Lippart could perform three to four hours of light work with frequent breaks.
In the meantime, a state agency physician reviewed Lippart’s medical evidence and concluded that he could lift twenty pounds occasionally, ten pounds frequently, stand and/or walk for six hours in an eight-hour day, sit for six hours in an eight-hour day, and perform unlimited pushing and/or pulling. In July 1999 a second state agency physician reviewed the medical evidence and concurred with this assessment.
*263In February 2000 Dr. Esmaili noted that Lippart’s back pain had been getting “more tolerable” and that Lippart was “increasingly active though he still has pain in the left leg and the left toes which is radiating from the lumbar spine.” Two months later Dr. Esmaili recommended that Lippart see a physical therapist to evaluate his “physical capability as far as returning to work.” Dr. Esmaili declined to complete a residual functional capacity (“RFC”) questionnaire, deferring to the opinion of the physical therapist.
Lippart, however, did not see a physical therapist to complete the RFC questionnaire. Instead, Dr. Jeffrey Coe, an occupational medicine specialist who examined Lippart for worker’s compensation purposes, completed the questionnaire. Dr. Coe opined that Lippart could occasionally lift twenty pounds and frequently lift ten pounds. He concluded that Lippart could walk two to four blocks at a time, sit for thirty minutes at a time, and stand for thirty minutes at a time. He further concluded that Lippart would need to walk approximately every thirty minutes and would need to take occasional, unscheduled breaks. Dr. Coe indicated that Lippart often experienced pain severe enough to interfere with his concentration. Finally, when answering the question of how long Lippart could “sit and stand/walk total in an 8 hour working day (with normal breaks),” Dr. Coe circled the choice “about 4 hours.”
B. Lippart’s Social Security Application
In March 1999 Lippart applied for disability insurance benefits, alleging that he became disabled on July 14, 1998, due to back pain. The SSA denied his claim initially and upon reconsideration. Lippart then had a hearing before an AL J at which he testified. He also submitted a statement describing his daily activities. According to that statement, Lippart wakes at 7:00 a.m., readies his children for school, plays card games on his computer, and sometimes starts a load of laundry. He then brings his children to school and works at a kennel for approximately two hours. There he mixes two fifteen-pound bags of meat with dry dog food and water, sweeps the floors, and performs other maintenance duties. Lippart then returns home, washes the dishes, and feeds his dog. After a half-hour nap, Lippart works on a “project” such as woodworking, building things for his home, working on his garage, pulling weeds, mowing the lawn, or raking leaves. While working on a project, Lippart will not lift more than twenty pounds, and he rests after two hours. In the afternoon Lippart returns to the kennel for about a half hour to clean up and play with the dogs. One evening per week Lippart meets with Boy Scouts for a den meeting. Since he injured his back, Lip-part’s Boy Scout duties are mainly administrative. Lippart noted that he has learned to live with his pain and that he notices it less when he concentrates on something else.
After the hearing, Lippart submitted a report from a vocational expert (“VE”) who opined that there were no jobs that Lippart could perform because (1) he was unable to remain in any one physical position long enough to be truly productive; (2) he required unscheduled breaks throughout the workday lasting five to ten minutes each; and (3) his pain was often severe enough to interfere with his concentration. The VE cited many of Lippart’s medical reports, but her conclusions relied heavily on Dr. Coe’s RFC questionnaire.
After reviewing the medical evidence, Lippart’s statement, and the VE’s report, the ALJ denied Lippart’s claim, using the familiar five-step analysis. See 20 C.F.R. §§ 404.1520; Bowen v. Yuckert, 482 U.S. *264137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.2001). First, the ALJ found that Lippart had not engaged in substantial gainful activity since his onset date and that his impairment was severe. He then concluded that, although Lippart did not automatically qualify for benefits by meeting a listed impairment, he could not perform his past work of driving a truck. At Step 5, however, the ALJ concluded that Lippart was not disabled because he could perform a full range of eight hours per day of “light work with the usual breaks” and that such an exertional capacity was consistent with the reports of Dr. Chan and Dr. Esmaili, the FCE, and Lippart’s daily activities.
The ALJ rejected Dr. Coe’s conclusion that Lippart must be able to change position every thirty minutes because it was not supported by objective medical findings and was inconsistent with Lippart’s daily activities and the other medical evidence. The ALJ also rejected the VE’s opinion because she relied on Dr. Coe’s position-change requirement and had misread Dr. Coe’s RFC questionnaire to conclude that Lippart could sit, stand, or walk for a total of only four hours a day. Instead of relying on the YE’s opinion, the ALJ used the grids, which directed a finding of “not disabled” considering Lippart’s age, education, work experience, and RFC of light work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2.
After the ALJ denied his application and the Appeals Council denied review, Lip-part filed suit in the district court. A magistrate judge found that the ALJ’s decision was supported by substantial evidence, and the district court adopted that recommendation.
II. Analysis
We will uphold an ALJ’s decision that is supported by substantial evidence, but will remand the case if the decision contains legal error. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.2002). Evidence is substantial when it is sufficient for a reasonable person to conclude that the evidence supports the decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.2000).
Lippart’s primary argument is that substantial evidence does not support the ALJ’s conclusion that he can perform eight hours of light work per day.1 The ALJ based this conclusion on the FCE performed by Lippart’s physical therapist as well as on Lippart’s reported daily activities. Lippart, however, argues that the ALJ’s conclusion is not supported by substantial evidence because, he says, the FCE limited him to five hours or less of light work per day and both Dr. Esmaili and Dr. Coe limited him to four hours of light work per day.
Substantial evidence supports the ALJ’s conclusion that Lippart can perform eight hours of light work per day. First, Lippart misreads the FCE report. Although it states that Lippart “measured work day tolerances of 1-5 hours vs. 8 + hours/day of 7 of 7 measured worker interface and positional tasks,” that statement refers to Lippart’s ability to perform his past work as a truck driver. Moreover, the FCE report contains a chart listing Lippart’s workday capacity for fight work as “8 + ” hours, and the physical therapist reported that Lippart met all of the requirements for fight work. Thus, the FCE *265report supports the ALJ’s conclusion that Lippart can perform eight hours of light work per day.
Lippart is also mistaken in characterizing Dr. Esmaili’s limitation on his workday capacity. Although in May 1999 Dr. Es-maili opined that Lippart could perform “some light duty work perhaps 3 to 4 hours daily with frequent breaks,” he never restricted Lippart’s workday capacity. In fact, when asked to complete a RFC questionnaire, Dr. Esmaili declined, deferring instead to the opinion of the physical therapist. And the only physical therapist who evaluated Lippart concluded that he could perform eight hours of light work per day. Moreover, in February 2000 Dr. Esmaili reported that Lippart’s “pain has been getting more tolerable and he is becoming increasingly active although he still has pain in the left leg and the left toes which is radiating from the lumbar spine.” Thus, Dr. Esmaili’s opinions are consistent with the ALJ’s conclusion that Lippart could perform eight hours of light work.
The only doctor who suggested that Lip-part could not work a full eight-hour day was Dr. Coe. The ALJ, however, found that Dr. Coe’s report was ambiguous. When answering the question of how long Lippart could “sit and stand/walk total in an 8 hour working day (with normal breaks),” Dr. Coe circled the choice “about 4 hours.” The ALJ interpreted Dr. Coe’s answer as allowing four hours sitting and four more hours standing or walking because “[a]ny other interpretation would leave the claimant lying down for 4 to 8 horus [and][n]one of his self-reports show he does this or that it is necessary.” The ALJ’s interpretation appears to be unreasonable because the question asked how long Lippart could sit, stand, and walk “total in an 8 hour working day” and did not have spaces for separate answers for each activity. Nevertheless, substantial evidence supports the ALJ’s rejection of the other interpretation-namely, that Lip-part can sit, stand, and walk for only four hours per day. None of Lippart’s prior medical reports require him to he down for four hours per day, and Lippart’s statement of his daily activities does not include such extended rest periods. Moreover, Lippart’s physical therapist concluded that he could perform eight hours of light work per day.
Lippart argues that the ALJ must give Dr. Coe’s opinion controlling weight because he was his treating physician. See Dixon, 270 F.3d at 1177. But Dr. Coe was not Lippart’s treating physician. He examined Lippart only once, and that examination occurred after Lippart had already applied for social security benefits. Moreover, Dr. Coe provided no treatment to Lippart and examined him solely to support his application for worker’s compensation benefits and to complete the RFC questionnaire. See SSR 96-2p (controlling weight given only to opinions from a “treating source” as defined in 20 C.F.R. § 404.1502); 20 C.F.R. § 404.1502 (“We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability.”). In any event, Dr. Coe’s opinion is inconsistent with the physical therapist’s FCE and Lippart’s daily activities. See Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir.2002) (treating physician’s opinion not entitled to controlling weight if inconsistent with substantial evidence in record); Butera v. Apfel, 173 F.3d 1049, 1056-57 (7th Cir.1999) (treating physician’s opinion not entitled to controlling weight because physician examined patient only once and opinion was based in part on patient’s subjective complaints).
Lippart next contends that the ALJ did not properly evaluate his statements of *266pain in finding that they were not credible. If a claimant’s subjective complaints of pain are not supported by objective medical evidence an ALJ must consider the following factors in determining his credibility: (1) the nature and intensity of the claimant’s pain; (2) precipitating and aggravating factors; (3) dosages and effectiveness of medication; (4) treatment other than medication; (5) functional restrictions; and (6) the claimant’s daily activities. See Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001); Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994). This court will not overturn an ALJ’s credibility determination unless it is patently wrong. Zurawski, 245 F.3d at 887.
The ALJ here considered Lippart’s pain in light of these criteria. He cited various medical reports documenting Lip-part’s pain, but concluded that they did not establish that his pain rendered him disabled. The ALJ relied in particular on Dr. Esmaili’s February 2000 report that Lip-part’s pain was becoming more tolerable. Moreover, Dr. Esmaili, Dr. Chan, and Lip-part’s physical therapist all noted Lippart’s pain, but found him fit for light work. See Walker v. Bowen, 834 F.2d 635, 641-42 (7th Cir.1987) (ALJ did not err in discrediting claimant’s complaints of pain because two doctors noted his pain but nonetheless found him fit for sedentary work). The ALJ also noted that bending and sitting for long periods of time aggravated Lip-part’s pain, but he took those factors into account in restricting Lippart to light work, which requires only occasional bending and includes the normal amount of breaks in an eight-hour day. The ALJ also considered that Lippart did not use pain relieving measures such as physical therapy, home exercise, ice packs, heat, or a TENS unit. And although Lippart stopped taking ibuprofen because it no longer relieved his pain, he never used any medication intended to treat severe pain. See Powers v. Apfel, 207 F.3d 431, 435-36 (7th Cir.2000) (ALJ properly considered claimant’s failure to take medication intended to treat severe pain).
The ALJ also thoroughly discussed Lip-part’s daily activities, which not only included minimal household chores such as washing dishes and preparing dinner, but also included mixing two fifteen-pound bags of raw meat with dog food, woodworking, pulling weeds, raking leaves, and mowing the lawn. Although minimal daily activities do not undermine a claim of disabling pain, Zurawski, 245 F.3d at 887, Lippart’s activities appear to be more than minimal, see Johansen, 314 F.3d at 288 (doubting the minimal nature of “performing [a] home exercise and traction program, grocery shopping, doing laundry, driving a car, and walking one mile daily”). Thus, the ALJ considered the relevant factors in discrediting Lippart’s complaints of pain, and substantial evidence supports the ALJ’s conclusion that Lippart can perform the full range of light work.
Lippart’s final argument is that the ALJ erred in relying on the grids, instead of his VE, in determining whether there were jobs in the economy he could perform. An ALJ may not use the grids when a claimant has a nonexertional limitation that “might substantially reduce a range of work an individual can perform.” Zurawski, 245 F.3d at 889. The mere allegation of such a limitation, however, does not automatically preclude use of the grids. If the ALJ finds that the nonexertional limitation is not credible or severe enough to restrict a full range of gainful employment, then the grids may be used. Luna, 22 F.3d at 691-92; Nelson v. Sec’y of Health and Human Servs., 770 F.2d 682, 685 (7th Cir.1985). Lippart contends that he has three nonexertional limitations precluding use of the grids: (1) Dr. Coe’s restriction against repetitive bending, thus disallowing repetitive stooping; (2) his severe pain; and (3) Dr. Coe’s conclusion that Lippart’s *267pain often interferes with his concentration.
Substantial evidence supports the ALJ’s finding that Lippart’s claimed nonexertional limitations did not significantly impact his ability to perform the full range of light work. First, Social Security Ruling 83-14,2 a guideline for applying the grids, provides that occasional stooping does not restrict a full range of light work. SSR 83-14, Titles II and XVI: Capability To Do Other Work-The Medical-Vocational Rules as a Framework for Evaluating a Combination of Exertional and Nonexertional Impairments (”[T]o perform substantially all of the exertional requirements of most ... light jobs, a person ... would need to stoop only occasionally (from very little up to one-third of the time, depending on the particular job”)); see also Frustaglia v. Sec’y of Health and Human Servs., 829 F.2d 192, 195 (1st Cir.1987) (ALJ properly relied on grids even though claimant could not perform repeated bending). Thus, because Lippart can stoop occasionally, his restriction against repetitive bending was not severe enough to prevent the ALJ from using the grids. Next, an ALJ may rely on the grids if substantial evidence supports his conclusion that a claimant’s pain is not disabling and does not interfere with his ability to work. Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir.1989). As discussed above, the ALJ here reasonably found that Lippart’s pain was not disabling. Thus, Lippart’s complaints of pain did not prevent the ALJ from using the grids.
Finally, substantial evidence supports the ALJ’s rejection of Dr. Coe’s conclusion that Lippart’s pain often interfered with his concentration. Dr. Coe did not support his conclusion with objective medical evidence, and it is inconsistent with Lip-part’s daily activities, such as his ability to do paper work, complete administrative tasks for the Boy Scouts, and play computer games. Moreover, Lippart admitted that his pain is less severe when concentrating on a task. And none of his numerous other medical reports indicate that he has a concentration problem. Thus, because Lippart suffered no significant non-exertional limitations, the ALJ properly used the grids without relying on the testimony of the VE.
AFFIRMED.
. Light work involves occasionally lifting no more than twenty pounds with frequent lifting or carrying of objects weighing up to ten pounds, or it may involve infrequent lifting but require substantial walking or standing or sitting with the pushing or pulling of arm or leg controls. 20 C.F.R. § 404.1567(b).
. The Commissioner relies on SSR 85-15 to prove that Lippart’s inability to bend repeatedly did not restrict a full range of light work and thus did not prevent use of the grids. SSR 85-15, however, applies when a claimant has only nonexertional impairments. SSR 85-15, Titles II and XVI: Capability To Do Other Work-The Medical-Vocational Rules as a Framework for Evaluating Solely Nonexertional Impairments. Because Lip-part contends that he has both exertional and nonexertional impairments, SSR 83-14 applies. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217589/ | ORDER
Paul Scott pleaded guilty to one count of conspiracy to defraud investors using mail and wire communications, 18 U.S.C. §§ 371, 1341, 1343, and one count of conspiracy to engage in monetary transactions of proceeds derived from mail and wire fraud (money laundering), id. §§ 1956(h), 1957. The district court sentenced Mr. Scott to concurrent sentences of 60 months’ imprisonment and three years’ supervised release on the first count and 78 *269months’ imprisonment and three years’ supervised release on the second count. The district court also imposed special assessments totaling $200 and ordered Mr. Scott to pay $582,027 in restitution. Mr. Scott’s counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because counsel is unable to identify a nonfrivolous basis for appeal. Although notified of his opportunity to do so, see Cir. R. 51(b), Mr. Scott did not respond to counsel’s motion. Because counsel’s brief is facially adequate, we limit our review to the potential issue counsel identifies. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam).
Counsel examines whether Mr. Scott could make a nonfrivolous argument that the district court erred in denying his motion to withdraw his guilty pleas. Almost seven months after pleading guilty, Mr. Scott moved to withdraw his pleas under former Federal Rule of Criminal Procedure 32(e) (now Fed.R.Crim.P. 11(d)(1)(B)). In his motion, he offered three justifications: he had misunderstood that pleading guilty would preclude him from presenting a defense to the charges at sentencing; he had thought that the prosecutor would support the imposition of the lightest sentence possible, including probation (and it was now evident that he would be facing more than just probation); and he was a victim of selective prosecution. During the hearing on the motion, the district court reviewed Mr. Scott’s answers during the change-of-plea colloquy. Mr. Scott admitted that his pleas had been voluntary and that he was guilty but stated that he did not think a jury would convict him. The district court ultimately denied his motion, reasoning that a defendant is not permitted to withdraw his guilty pleas just because he changes his mind about wanting a jury trial and that Mr. Scott had presented no evidence of selective prosecution.
Once a district court accepts a guilty plea, a defendant does not have an unlimited right to withdraw the plea; rather, the burden is on the defendant to show a “fair and just reason” for such withdrawal. See Fed.R.Civ.P. 11(d)(1)(B) (2003); United States v. Hodges, 259 F.3d 655, 661 (7th Cir.2001); United States v. Parker, 245 F.3d 974, 976 (7th Cir.2001). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion, United States v. Dumes, 313 F.3d 372, 382 (7th Cir.2002), and will uphold factual findings as to whether the defendant has demonstrated a fair and just reason unless they are clearly erroneous, Hodges, 259 F.3d at 661.
Addressing in turn each of Mr. Scott’s reasons for wanting to withdraw his pleas, we agree with counsel that Mr. Scott could not mount a nonfrivolous challenge to the district court’s denial of his motion. With respect to Mr. Scott’s apparent misapprehension that he could present a defense at sentencing, the district judge specifically warned him during the Rule 11 colloquy that he was giving up his right to a jury trial by pleading guilty. Although legal innocence is a justifiable reason for withdrawing a plea, id., Mr. Scott admitted his guilt at both the change-of-plea colloquy and the hearing on his motion to withdraw his guilty pleas. We presume such admissions to be true. United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002).
As for Mr. Scott expecting to receive a light sentence, underestimating the severity of the sentence to be imposed is not a justifiable reason for withdrawing a guilty plea. United States v. Knorr, 942 F.2d 1217, 1220 (7th Cir.1991). As Rule 11 requires, the district court warned Mr. Scott at the change-of-plea colloquy as to *270the maximum possible penalties he was facing by pleading guilty, and that the court could not determine his sentence before reviewing the presentence report and the corresponding guideline ranges. See Dumes, 313 F.3d at 382-83 (defendant not permitted to withdraw plea based on purported misunderstanding over imposed sentence where district judge gave proper Rule 11 warnings); United States v. Milquette, 214 F.3d 859, 862 (7th Cir.2000) (same). Moreover, Mr. Scott’s own attorney noted on the record that he had informed Mr. Scott that probation was extremely unlikely. Thus, Mr. Scott cannot claim legitimately that he was ignorant of the penalties he faced by pleading guilty.
Finally, Mr. Scott presented no evidence that the government had prosecuted him, as opposed to other similarly situated individuals, based on an improper factor. See generally United States v. Alanis, 265 F.3d 576, 585 (7th Cir.2001). More importantly, he did not cite in his motion any facts regarding alleged selective prosecution that came to light only after his pleading guilty. See United States v. Nash, 29 F.3d 1195, 1201 (7th Cir.1994) (holding that pleading guilty waives all non-jurisdictional defenses). Rather, it appears that Mr. Scott just changed his mind about his odds with a jury, and that is not a “fair and just” reason for withdrawing a guilty plea. United States v. Underwood, 174 F.3d 850, 854 (7th Cir.1999). Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Mr. Scott’s appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217590/ | ORDER
Scott Swanson filed a complaint in the district court detailing a dispute with Van and Shirley Swindall concerning real property subject to bankruptcy proceedings. Swanson claimed, inter alia, that the Swindalls violated the automatic stay of Swanson’s bankruptcy action in contravention of 11 U.S.C. § 362(a)(3) & (h). The district court dismissed Swanson’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On appeal, in an unpublished order this Court vacated and remanded the district court’s dismissal of the automatic stay action. This successive appeal arises from a summary judgment in favor of the Swindalls with respect to Swanson’s § 362 claim.
In 1992, Swanson purchased certain real estate and business assets from the Swin-dalls through a contract for sale with a corresponding security agreement. In 1996, after Swanson had defaulted on his payments and abandoned the real estate, the Swindalls brought suit in Indiana state court (“the State Court action”) alleging breach of contract and seeking prejudgment possession of the real estate. In August of 1997 Swanson filed for bankruptcy. Pursuant to the automatic stay, the Swindalls ceased any further activity in the State Court action. That October the Swindalls were granted relief from the automatic stay and proceeded with their action against Swanson in Indiana state court. In November a receiver took custody of the real estate and after a hearing the Swindalls were granted immediate possession of the property due to Swanson’s refusal to cooperate with the receiver’s efforts to winterize the property and restore utilities. When the Swindalls took possession of the real estate, they found that almost all of the furniture, clothing, and other personal property had been removed from the premises except various items left in the basement, including shotguns, rifles, tools, a concrete mixer, and other odds-and-ins. In March of 1998, after the Swindalls’ motion for summary judgment was granted in the State Court action, the Swindalls requested Swanson retrieve his personal property but Swanson refused. Swanson’s bankruptcy action was dismissed in April of 1998. After the Swindalls were awarded damages of $325,550.94 in the State Court action, pursuant to a court order the personal property left in the basement was sold at a Sheriffs sale in July of 1998 and the proceeds were applied towards the satisfaction of the Swindalls’ judgment.
DISCUSSION
This Court reviews the district court’s grant of summary judgment de novo. Campbell v. Towse, 99 F.3d 820, 826 (7th Cir.1996). “A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and ... demonstrating] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party successfully carries his burden, the non-moving party must “go beyond the pleadings” and present specific facts which show that a genuine issue of material fact exists. Id. at 324. Swanson, the non-movant, failed to *272file a response to the Swindalls’ motion for summary judgment. As a result, all properly supported material facts set forth by the Swindalls are deemed admitted. See Local Rule 56.1(a), Southern District of Indiana; Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). Swanson acknowledges this, and is content to rely on the facts as set forth by the Swindalls. Thus the question before this Court is whether the Swindalls are entitled to summary judgment as a matter, of law. Albiero v. City of Kankakee, 246 F.3d 927, 931 (7th Cir.2001).
The Bankruptcy Code creates a private right of action for the violation of an automatic stay, a statutory injunction against debt-collection efforts outside of the bankruptcy proceedings. 11 U.S.C. § 362(a) & (h); Cox v. Zale Delaware, Inc., 239 F.3d 910, 913 (7th Cir.2001). A creditor may not act “to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate” subject to an automatic stay. 11 U.S.C. § 362(a)(3). The district court granted summary judgment after considering the facts in several different lights, ultimately concluding that because the personal belongings were not sold until June of 1998-more than two months after the bankruptcy was dismissed and the automatic stay was thus lifted in its entirety-no violation of the automatic stay occurred. The district court also ruled that no violation occurred as a result of the Swindalls’ pursuit of a writ of execution prior to the dismissal of Swanson’s bankruptcy because that action was permitted by the modification of the automatic stay.
Swanson argues that the Swindalls willfully violated, as a matter of law, the automatic stay still in effect for his personal property after they took possession of the real estate. In particular, Swanson alleges that the Swindalls exercised control over his personal belongings he left in the basement prior to the time that Swanson’s bankruptcy was dismissed. As examples of the Swindalls’ exertion of control over Swanson’s personal property are the Swin-dalls’ unsuccessful attempts to persuade Swanson to retrieve the property, including when the Swindalls contacted Swanson after the state court granted their motion for summary judgment and when Swanson appeared at the property and was requested-but refused-to remove his belongings, and the Swindalls’ restoration of utility services on the real estate. Without providing any detail, Swanson also accuses the Swindalls of violating three state court orders directing them to return the personal property to Swanson.
Contrary to Swanson’s assertion the record fails to reflect that the Swindalls were ordered to return the personal property to him. Instead, the November, 1997, order granting the Swindalls immediate possession of the real estate also directed the Swindalls to retain the personal property pending further court orders. Furthermore, Swanson cites no authority for the proposition that a creditor has an affirmative duty to return a debtor’s personal property, subject to an automatic stay, that is discovered on real estate of which the creditor has lawfully taken possession pursuant to a post-petition court order. Swanson cites In re Abrams, 127 B.R. 239, 243 (9th Cir.BAP 1991), for the proposition that “the duty to insure post-petition return of the property lies with the entity in possession of the property.” The duty outlined in Abrams is inapposite to the present dispute because that duty arises at the time the bankruptcy petition is filed, not when a creditor inadvertently takes possession of personal property stored on the real estate, when he takes possession thereof, which was the subject matter of the lifted stay. Swanson has cited no cases holding that such a duty exists, nor *273has our examination of the case law revealed an established duty to return personal property inadvertently acquired during the period of the automatic stay.
Essentially, Swanson is relying on § 362(a)(8) to undermine the bankruptcy court’s order lifting the automatic stay and the subsequent state court’s order granting the Swindalls immediate possession of the real estate. Equity precludes this Court from adopting Swanson’s argument: “The automatic stay may not be abused to thwart prior proper orders of the court [absent a] demonstrated change of conditions.” In re McFarland, 17 B.R. 242, 245 (Bankr.N.D.Ga., 1982). The undisputed evidence establishes that while the automatic stay was in effect, Swanson’s personal property remained on the property precisely where it had been left by Swanson. Moreover, there is no evidence that the Swindalls interfered with Swanson’s access to his personal property at any time. Swanson does not allege that the Swindalls acted outside of the scope of the state court order when they took possession of the real estate after the automatic stay was lifted with respect to the real estate, nor does Swanson dispute the validity of the subsequent sale of his personal property after the bankruptcy was dismissed. To the contrary, the record suggests that the Swindalls pursued an avenue of relief exactly as envisioned by the bankruptcy code: (1) Upon the filing of Swanson’s bankruptcy the Swindalls ceased all collection activities; (2) the Swindalls sought relief from the automatic stay with respect to assets in which the Swindalls had a security interest; and (3) after the automatic stay was lifted, the Swindalls renewed their collection activities in state court. Accordingly, the district court’s order granting summary judgment to Van and Shirley Swindall is AFFIRMED, | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217592/ | ORDER
On consideration of the petition for rehearing filed on April 14, 2003 by Petitioner-Appellant McPhetridge, pro se, all members of the original panel have voted to Deny the petition.
Accordingly, it Is ORDERED that the petition for rehearing be, and the same is hereby Denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217593/ | ORDER
On March 25, 2003, the plaintiff-appellant filed a petition for rehearing. Ah the judges on the original panel have voted to deny a rehearing. The petition is therefore DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217594/ | ORDER
Upon consideration of the Petitioner’s petition for rehearing en banc, filed on March 31, 2003, no judge in active service has requested a vote thereon and the judges on the original panel have voted to deny the petition. Accordingly,
IT IS ORDERED that the petition for rehearing en banc is hereby DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217595/ | PER CURIAM.
Antonio Soberanis-Sagrero pleaded guilty to possessing with the intent to distribute approximately 695 grams of a substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The district court1 sentenced him to 168 months imprisonment and 5 years supervised release. On appeal, counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising the issue of the plea’s validity.
We find no plain error in the court’s acceptance of the guilty plea. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). We have reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we affirm.
. The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217596/ | AMENDED MEMORANDUM**
Alexander DeJarnette, Jr. appeals pro se the denial of his motion to correct the sentence imposed following his guilty plea conviction for transporting minors with intent to engage in prostitution, transporting an adult with intent to engage in prostitution, and witness tampering, in violation of 18 U.S.C. §§ 2423(a), 2421, and 1512(b)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
DeJarnette relied on 18 U.S.C. § 3742(a)(2) for his motion contending that his sentence was incorrectly calculated because four of his prior convictions should have been treated as two. The district court properly ruled that § 3742 does not provide authority for such a motion. The district court also properly rejected the motion as an untimely Rule 35(c) motion, see United States v. Barragan-Mendoza, 174 F.3d 1024, 1030 (9th Cir.1999) (discussing seven-day time limit).1
Moreover, we enforce DeJarnette’s plea agreement’s waiver of appeal and collateral attack, foreclosing each of his contentions. See United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir.1998). He received a sentence consistent with the Rule 11(e)(1)(C) agreement, and there is no evidence that the waiver of the right to appeal was not knowing or voluntary.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. DeJarnette’s jurisdictional challenge fails because his indictment was filed within thirty days after his arrest and was not procedurally time-barred. See 18 U.S.C. § 3161(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217597/ | MEMORANDUM **
We AFFIRM the judgment of the district court with respect to the administrative law judge’s step three determination but REVERSE as to the ALJ’s determination at step four. We REMAND to the Commissioner for further proceedings.
*286Substantial evidence supports the ALJ’s step three determination that Mason’s severe impairments do not meet or equal a listed impairment. The ALJ’s failure to address the combined effects of Mason’s impairments is not reversible error because Mason has failed to suggest how a combination of his impairments meets or equals a listed impairment. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.2001). Moreover, the ALJ did not abuse his discretion in declining to seek additional advice from a medical expert on the combined effects of Mason’s impairments.
The evidence in the record, however, is insufficient to sustain the ALJ’s step four determination that Mason was not disabled because he had the residual functional capacity (“RFC”) to perform his past relevant work. The ALJ erred in disbelieving Mason’s statements concerning his impairments and in disregarding lay testimony. The ALJ also erred in several respects in evaluating Mason’s RFC: he failed (1) to assess whether Mason is capable of working on a regular and continuing basis, (2) to address medical evidence relevant to Mason’s RFC and (3) to develop the record adequately before making his determination.
Although the ALJ provided specific reasons for rejecting Mason’s subjective pain testimony, these reasons were not “clear and convincing,” as required given that there is no affirmative evidence of malingering. Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1996). We agree that the ALJ could consider the medical testimony when he assessed Mason’s ability to work. That does cast some fight upon Mason’s claim of disabling pain. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir.2001). But, of course, that alone is not sufficient to discount his claim of what we have called “excess pain” in its entirety. See id. The ALJ pointed to more.
He mentioned Mason’s tendency to abuse pain medications, but it is not at all clear from the record that Mason intentionally overstated his pain in order to obtain medications. Moreover, it is not even clear that his possible abuse of those medications did, by itself, affect his ability to work. Indeed, one of his lay witnesses — his girlfriend — specifically indicated that he did not have “negative side effects” from his medications. She had known him for 16 years, and saw him daily for the last two.
The ALJ also noted that Mason had, unsuccessfully, performed some work during the relevant period, but did not explain how that demonstrates that Mason can successfully work. See Lester, 81 F.3d at 833-34. Moreover, although Mason does do some work about the house and can groom himself, the ALJ did not appear to take account of Mason’s girlfriend’s statement that he does precious little and that she does the laundry, dusting, vacuuming, trash removal and the cooking (he just warms up meals). Moreover, she generally does the cleaning up after cooking (he does it “sometimes”). The ALJ did not make clear why Mason’s limited activities in those regards show that he could maintain employment. Of course, Mason’s father did say that Mason could push a lawnmower about for 30 minutes at a time, which is not an inconsiderable task, even if the blades are powered by a motor, but that alone does not seem to indicate that Mason could maintain a job in fight of the fact that he then had to rest for 15 or 20 minutes, and in fight of the limitations pointed out by the girlfriend, who sees Mason quite frequently. It is not clear why the ALJ rejected her testimony. Similarly, it is not clear why the ALJ rejected her evidence that Mason’s medi*287cation did not appear to affect him adversely. In short, the ALJ simply did not adequately explain why he was rejecting the lay witness testimony, but he must do so. See Schneider v. Comm’r, 223 F.3d 968, 974-76 (9th Cir.2000).
The ALJ also erred in several respects in evaluating Mason’s RFC. First, the ALJ failed to assess whether Mason is capable of working on a “regular and continuing basis,” which “means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96—8p; see Lewis, 236 F.3d at 516; Reddick v. Chater, 157 F.3d 715, 724 (9th Cir.1998).
Second, the ALJ erred in failing adequately to explain his reasoning at step four. The ALJ’s decision does not address the medical evidence, making it difficult for this court to engage in meaningful review. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.2001) (reversing and remanding in part because the ALJ’s “very few findings” and heavy reliance on the conclusions of the vocational expert made it difficult for the court to review the ALJ’s decision). The ALJ seems to reject without comment Dr. Powell’s assessment of Mason’s ability to work. The ALJ also makes no mention of the psychological limitations reported by the state’s non-treating physician, Dr. LeBray.
Finally, the ALJ erred in failing to develop the record adequately before making his RFC determination. “In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant’s interests are considered, even when the claimant is represented by counsel.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.2001); see Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.1996). That duty is triggered “when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes, 276 F.3d at 459-60. Here, the record was inadequate to allow for proper evaluation of Mason’s RFC. For example, the record is devoid of any medical source statement from a treating physician regarding Mason’s physical capabilities. It appears that the ALJ never requested such statements. Dr. Berselli provided no such statement after examining Mason in September 1996. Although the lack of a medical source statement from a treating physician does not necessarily make the record incomplete, see 20 C.F.R. § 416.913(b)(6), when the evidence does not clearly establish the effects of the claimant’s impairments on his ability to work, the ALJ has a duty to develop the record further.
For the reasons stated above, we remand to the Commissioner for a reevaluation of Mason’s claim at step four. Costs are awarded to plaintiff-appellant.
AFFIRMED in part, REVERSED in part and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217598/ | MEMORANDUM**
Eugueni Bortnikov (Bortnikov) is a native and citizen of Russia who entered the United States on a student visa in 1994. He petitions for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of deportation. Because deportation proceedings were commenced before April 1, 1997, and the final order was issued after October 30, 1996, we have jurisdiction pursuant to former 8 U.S.C. § 1105a(a), as amended by the transitional rules for judicial review in § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). We deny the petition.
I
Substantial evidence supports the BIA’s determination that Bortnikov failed to establish past persecution on account of his political opinion, his ethnicity, or his membership in a particular social group. The Pamyat members attacked Bortnikov solely because they believed that he possessed a criminally inculpatory videotape. Regardless of whether Bortnikov may have privately harbored an anti-Pamyat *289political view, there was no nexus between Bortnikov’s views and the Pamyat members’ decision to attack him. Likewise, the facts that Bortnikov is Jewish, that Pam-yat is an anti-Semitic organization, and that Pamyat members attacked Bortnikov are not enough, by themselves, to establish persecution on account of his being Jewish. There is no evidence that Pamyat was aware that Bortnikov is Jewish when they attacked him. Finally, regardless of whether Russian journalists qualify as a particular social group for asylum purposes, Bortnikov was not targeted by Pam-yat because of his status as a Russian journalist. See Florez-de Solis v. INS, 796 F.2d 330, 335 (9th Cir.1986); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).
II
Assuming that the argument is not waived, the evidence also does not compel the conclusion that Bortnikov has a well-founded fear of future persecution on account of his political opinion, his ethnicity, or his membership in a particular social group. There is no evidence that Pamyat has imputed a political opinion to Bortnikov since he left Russia. Pamyat members have made threatening phone calls to Bortnikov’s family, but these calls have all focused on the videotape, and the one passing reference to Bortnikov’s being Jewish was interpreted by Bortnikov’s sister to be related to the videotape. Russian journalists are too large and diverse a collection of individuals to qualify as a “particular social group,” Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir.1986); De Valle v. INS, 901 F.2d 787, 792-93 (9th Cir.1990), and in any event there is no indication that Russian journalists as such are targeted by Pamyat, or anyone else.
Ill
Having failed to satisfy the lower standard of proof to establish eligibility for asylum, Bortnikov necessarily cannot show eligibility for withholding of deportation. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995).
PETITION DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217599/ | PAEZ, J.,
dissenting.
Because I do not believe that substantial evidence supports the BIA’s finding that “Pamyat members attacked Bortnikov solely because they believed that he possessed a criminally inculpatory videotape,” I respectfully dissent. Both the record and our precedent compel the conclusion that by presenting credible testimony that his persecution was “on account of’ a protected ground, Bortnikov established his eligibility for asylum.
“[I]t is often difficult to determine the exact motive ... for which harm has been inflicted.” In Re S-P-, 21 I. & N. Dec. 486, 492, 1996 WL 422990 (BIA 1996). In consequence, an asylum applicant need only “provide some evidence of [motive], direct or circumstantial.” INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original). It is well established that an applicant may qualify for asylum where persecution occurred for multiple reasons, as long as “the harm was motivated, at least in part, by an actual or implied protected ground.” Borja v. INS, 175 F.3d 732, 736 (9th Cir.1999) (en banc); see also In Re S-P-, 21 I. & N. Dec. at 494-95. Here, the evidence compels a finding that Bortni-kov’s political opinion and religion furnished significant motivation for the persecution he suffered.
Before Bortnikov revealed his political opinion, the only consequence of his capture of Pamyat’s coup attempt on tape was *290his suspension from work. When Pamyat members came to his apartment to demand the tape, Bortnikov accused them of being fascists and killing people. Only then did they physically attack him, beating him with a metal pipe until he was unconscious. This physical attack and the ongoing threats against his life did not occur until Bortnikov revealed his political opinion to the Pamyat members.
Thus, this case is closely analogous to Borja, where we held that mixed motives led to the petitioner’s persecution. 175 F.Bd at 737. Borja had refused to become a member of the New People’s Army, telling them that she was opposed to them politically. To avert their wrath, she acceded to their extortionary demands. Id. at 734-36. We held that her persecution was motivated not only by economic extortion, but also by political opinion. Id. at 736. We based this conclusion upon the temporal sequence: “We know that the NPA agents acted in direct response to her statement of political opposition and revulsion at their methods because their immediate reaction was to ‘get mad’ and point a gun at her.” Id.
Likewise, in Gonzales-Neyra v. INS, the petitioner was initially chosen as a target for extortion because of his wealth, but once he told the extortionists that he refused to support the Shining Path, they threatened to kill him. 122 F.3d 1293, 1296 (9th Cir.1997), as amended, 133 F.3d 726 (1998). “[T]he fact that the guerrillas may have initially chosen Gonzales-Neyra as a target for money because he was a successful businessman” did not prevent us from finding that his persecution was on account of political opinion. Id. at 1296.
Bortnikov’s situation is closely parallel. Although Bortnikov was initially approached in an attempt to confiscate the tape, his subsequent persecution was based at least in part on the political opinion that he voiced. Like Borja, Bortni-kov’s statement of political opinion was met with an immediate escalation of hostility. “Only by closing one’s eyes to the escalating nature of this confrontation could one see the ensuing events as strictly economic with no political component.” Borja, 175 F.3d at 737.
Moreover, although the majority is correct in stating that the attack of someone who is Jewish by an anti-Semitic organization is not alone sufficient to establish persecution on account of religion, here, Pamyat members used anti-Semitic slurs on a number of occasions while issuing threats to Bortnikov’s family that he would be killed if he returned to Russia. This evidence compels the conclusion that Bort-nikov’s Jewish ancestry was a factor in the ongoing threats, lending an additional element of hatred and willingness to commit violence to the actions of this anti-Semitic organization.1 See, e.g., Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999) (noting that on account of prong was satisfied where persecution was “coupled with explicit expressions of ethnic hatred”); Maini v. INS, 212 F.3d 1167, 1176 (9th Cir.2000) (finding on account of prong to be satisfied by beatings coupled with explicit expressions of religious hatred).
Because “the evidence compels a finding that [protected characteristics of the petitioner were] a significant motivation for the violence and abuse he endured,” Hernandez-Montiel v. INS, 225 F.3d 1084, 1096 (9th Cir.2000), Bortnikov has demon*291strated that he suffered past persecution. This showing of past persecution raises an unrebutted presumption that Bortnikov would be in danger of persecution upon return to Russia. Borja, 175 F.3d at 737-38. Thus, I would conclude that Bortnikov is eligible for asylum and grant the petition.
. The INS implies that the absence of evidence that Bortnikov legally adopted his mother’s Jewish nationality renders him insufficiently Jewish to suffer from anti-Semi-tism. Brief for Respondent, 27 n. 9. This suggestion reflects a troubling lack of understanding of the history of Eastern European and Russian anti-Semitism. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217600/ | BREYER, District Judge.*
MEMORANDUM **
Appellant Byron Lee (“Lee”) appeals the district court’s grant of summary judgment for the Commissioner of Social Security. Lee contends the Administrative Law Judge (“ALJ”) improperly applied Social Security Rule 83-12 and erroneously relied upon the testimony of the vocational expert (“VE”).
We review the district court’s grant of summary judgment de novo. See Moore v. Apfel, 216 F.3d 864, 867 (9th Cir.2000). The ALJ’s decision must be affirmed if it is supported by substantial evidence and the ALJ applied the correct legal standards. Id. Substantial evidence is more than a scintilla, but less than a preponderance. See Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.1997). “Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be upheld.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.1984).
Lee first argues that based on his impairments the “occupational base” for light work was so eroded that he should have been classified as limited to sedentary work. See SSR 83-12 (“[I]f the exertional capacity is significantly reduced in terms of the regulatory definition, it could indicate little more than the occupational base for the lower rule and could justify a finding of ‘Disabled.’ ”).
Lee’s argument misapprehends the nature of SSR 83-12. The Rule does not require the ALJ to determine if the remaining occupational base is more closely associated with the full range of light work or the full range of sedentary work, and then apply the Medical-Vocational Guideline applicable to the appropriate level. The Rule merely gives guidance. It provides that if the occupational base is significantly reduced, “it could indicate little more than the occupational base for the lower rule and could justify a finding of ‘Disabled.’ ” SSR 83-12 (emphasis added). SSR 83-12 does not mandate a finding of disabled. See Moore, 216 F.3d at 871 (concluding that “SSR 83-12 does not mandate a finding of ‘disabled’” but “[ijnstead, it mandates the use of a VE, which was exactly the process used in this instance.”).
Lee also misinterprets what is meant by “significantly reduces the occupational base.” SSR 83-12 itself explains:
When an individual’s exertional RFC does not coincide with the definition of any one of the ranges of work as defined in sections 404.1567 and 416.967 of the regulations, the occupational base is affected and may or may not represent a significant number of jobs in terms of rules directing a conclusion as to disability.
Appellant’s Addendum 12 (emphasis added). This explanation clarifies that the proper inquiry is the number of jobs— rather than the number of occupations— the claimant can perform. The ALJ makes this determination with the assistance of a vocational expert, which is what the ALJ did here. See Moore, 216 F.3d at 871.
Lee next argues that the ALJ improperly relied on the VE’s testimony because she improperly based her testimony upon the Occupational Information Network *293(“0*NET”) job classifications, rather than the Dictionary of Occupational Titles (“DOT”) classifications.
SSR 00-4p does not preclude reliance on the 0*NET; it merely provides that where there is a conflict between the DOT and another source, and the ALJ relies on the other source, the ALJ must explain his reasons for doing so. The ALJ did so here. Lee’s rebanee on the June 30, 1999 letter from Kenneth Nibah, Associate Commissioner for Disabihty, is equally unpersuasive. The letter “was not published in either the Federal Register or the Code of Federal Regulations, indicating that the [letter] was not promulgated in accordance with the procedural requirements imposed by Congress for the creation of binding regulations and was not intended to be binding.” Moore, 216 F.3d at 868-69.
Lee also argues that the ALJ should not have rebed on the VE’s testimony because the VE improperly classified the ticket seber and cashier II positions as “bght.” Lee argues that although the DOT classifies the ticket seber and cashier II positions as bght occupations in the DOT, those positions which can accommodate Lee’s restrictions are actuahy sedentary.
A VE “can testify whether particular applicants for disabihty benefits would be able to perform subcategories of jobs within the DOT.” Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir.1995). In Distasio, the VE testified that the subcategory of jobs the claimant could perform feb within the sedentary category. Id. We held that substantial evidence did not support the ALJ’s decision to use the bght work Guidebne as a framework since the record only contained evidence of sedentary work available to the claimant. Id.
This case is distinguishable from Dista-sio. Although here the VE similarly identified subcategories of bght jobs (ticket seber and cashier II positions which can accommodate Lee’s limitations), the identified subcategories of jobs do not fab within the sedentary category because the limitations exceed the requirements for sedentary work. In Distasio, in contrast, the VE identified jobs which were in fact sedentary.
AFFIRMED.
Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217601/ | MEMORANDUM *
Verizon Northwest Inc. (“Verizon”) appeals from the district court’s grant of summary judgment on review of a decision by the Oregon Public Utilities Commission (“OPUC”) approving its interconnection agreement with Electric Lightwave, Inc. pursuant to the Telecommunications Act of 1996 (“the Act”), 47 U.S.C. §§ 251-61. Verizon challenges the OPUC’s imposition of reciprocal compensation on ISP-bound traffic. Verizon also challenges the reciprocal compensation rate for traffic transported and terminated on Electric Light-wave’s network, arguing that under the Act Electric Lightwave should be compensated at the lower end-office rate, not the higher tandem rate because the functional equivalency test has not been satisfied.
We review de novo the district court’s grant of summary judgment and whether an arbitration agreement is in compliance with the Act and the implementing regulations. US W. Communications v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir.1999). We review all other issues under an arbitrary and capricious standard. Id.; see also MCI Telecomm. Corp. v. U.S.W. Communications, 204 F.3d 1262, 1266-67 (9th Cir.2000). Because the terms of the interconnection agreement between Verizon and Electric Lightwave are not contrary to the Act, we affirm the district court’s grant of summary judgment.
*295I.
Verizon first argues that the OPUC’s approval of the inclusion of ISP-bound traffic in the reciprocal compensation provision of an arbitration agreement is contrary to the act and the Federal Communications Commission’s (“FCC”) implementing regulations. Specifically, Verizon contends that (1) ISP-bound traffic is not local and therefore not subject to § 251(b)(5)’s reciprocal compensation requirements, (2) any purported authority to impose reciprocal compensation on non-local traffic is preempted by § 251(b)(5), and (3) the district court improperly relied on findings made by the arbitrator, but never adopted by the OPUC. All of these arguments are foreclosed by our decision in Pacific Bell v. Pac-West Telecomm., Inc., Nos. 01-17166, 01-17181, and 01-17161 (“Pacific Bell”), also filed today, in which we held that a state utility commission’s approval of the inclusion of ISP-bound traffic in the reciprocal compensation provision of an arbitrated interconnection agreement was not inconsistent with the Act.
As we explained in Pacific Bell, “[b]e-cause the FCC has yet to resolve whether ISP-bound traffic is ‘local’ within the scope of § 251, it is not inconsistent with this provision for the state commission to subject ISP-bound traffic to reciprocal compensation ... [and] we therefore reject Appellant’s argument that the [state regulatory commission] exceeded its statutory authority by imposing reciprocal compensation on ISP calls.” Pacific Bell. Because neither the FCC nor the Act has foreclosed the inclusion of ISP-bound traffic in the reciprocal compensation provisions of interconnection agreements, there is no conflict with federal law and OPUC’s ruling is not preempted by federal law. Finally, we reject Verizon’s argument that because the OPUC did not adopt the arbitrator’s conclusion that ISP-bound traffic is local and therefore subject to § 251(b)(5), the district court erred in relying on the arbitrator’s conclusion as the basis for upholding the OPUC’s ruling. Whether the district court erred in this regard does not influence our de novo review of whether the provision at issue in this case is contrary to the Act. As we held in Pacific Bell, a state regulatory commission’s inclusion of ISP-bound calls in a reciprocal compensation provision is permissible under the act, and therefore we affirm the district court’s summary judgment upholding the OPUC’s ruling.
II.
Verizon argues that the district court erred in affirming the reciprocal compensation rate imposed by the OPUC for traffic transported and terminated on Electric Lightwave’s network. Verizon contends that it is not obligated to compensate Electric Lightwave at the tandem switch rate because although Electric Lightwave serves a comparable geographic area to the area served by Verizon, its network is not functionally equivalent to Verizon’s and therefore it is not eligible for the higher tandem rate.
The basic requirements for setting reciprocal compensation rates are established by the Act. 47 U.S.C. § 252(d)(2)(A). The FCC has promulgated regulations to implement these statutory provisions. See 47 C.F.R. § 51.711. Here, the parties dispute the proper interpretation of § 51.711(a)(3) and the FCC’s orders implementing that rule. In the FCC’s First Report and Order, 11 F.C.C.R. 15,499, 1996 WL 452885 (Aug. 8, 1996), the FCC established guidelines for setting reciprocal compensation rates. Relying on language in the FCC’s First Report and Order with respect to the proper switch rates, Verizon argues that Electric Light-*296wave was not entitled to charge the tandem switch rate unless its switch served a comparable geographic area to that served by Verizon’s switch and was functionally equivalent to Verizon’s switch. Thus, Verizon argues that the OPUC erred by not applying the functional equivalence test in addition to the geographic scope test in deciding whether Electric Lightwave was entitled to charge the tandem switch rate.
Verizon’s argument is precluded by our decision in U.S. W. Communications, Inc. v. Wash. Utils. and Transp. Comm’n, 255 F.3d 990, 998 (9th Cir.2001), where we held that the functional equivalency test does not apply in determining whether a CLEC is entitled to charge the tandem switch rate. A CLEC is entitled to the tandem rate if its switch served a comparable geographic area. Id. Therefore, we affirm the district court’s grant of summary judgment affirming the OPUC’s approval of the reciprocal compensation rate for traffic on Electric Lightwave’s network.
AFFIRMED
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217602/ | MEMORANDUM *
Tamara Zeltser, d/b/a Medallion Jewelry & Loan (“Zeltser”), appeals several rulings by the district court in her 42 U.S.C. § 1983 action against the City of Oakland (“City”). Zeltser alleges that the Oakland Police Department (“OPD”) violated her civil rights by seizing a diamond ring, a Rolex watch, and a television from her pawn shop. In a separate published opinion, we reversed the district court’s order granting summary judgment to the City on the issue of the OPD’s liability for the seizure of the diamond ring. We dispose of Zeltser’s remaining arguments in this unpublished disposition.
We review the district court’s grant of summary judgment de novo. Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir.2002). While a district court’s denial of summary judgment is not a final order and thus unappealable, it is reviewable when it is coupled with a grant of summary judgment to the opposing party. Id. In such cases, the district court’s denial of summary judgment is also reviewed de novo. Id. A district court’s interpretation of state law is also reviewed de novo. Paulson v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir.2002) (en banc).
The district court did not err in granting summary judgment to the City on the issue of the City’s liability for OPD’s seizure of the watch. The watch was seized pursuant to a valid search warrant. As a result, the OPD could not release the watch until there was a judicial determination of ownership. CabPenal Code § 1536. No court determination had been made so Zeltser was required to petition the court for return of the watch. Cal. FimCode § 21206.8. Because Zeltser had not yet done so, the district court correctly determined that there was no violation of her civil rights.
The district court did not err in determining that Zeltser was not entitled to damages for the infliction of emotional distress. Although emotional distress damages are available in a § 1983 action, Anderson v. Central Point School Dist. No. 6, 746 F.2d 505, 508 (9th Cir.1984), *298Zeltser offered no evidence in support of her claim that she suffered emotional distress. Therefore, the district court’s grant of summary judgment in favor of the City was proper. See Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“[AJlthough mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.”).
We do not address Zeltser’s argument that she is entitled to punitive damages because that issue cannot be resolved until the district court decides the remaining qualified immunity issue.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224376/ | *1323COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2003) STIPULATION AND ORDER RE: FRASER RIVER SOCKEYE SALMON
(February 11, 2000)
BARBARA JACOBS ROTHSTEIN, District Judge.-
*1324TABLE OF CONTENTS
ORDER PAGE
Stipulation and Order re: Fraser River Sockeye Salmon (2/11/2000) 1323
Order Denying Private Land Owners’ Motion for Reconsideration and Granting-in-Part and Denying-in-Part Private Land Owner’s Motion for Amendment of the Court’s Clarifying Order (2/25/2000) 1330
Consent Decree (8/18/2000) 1331
Memorandum of Understanding Re: Coastal Coho Management (8/31/2000) See Appendix
Order Establishing Interim Halibut Fishery Management Plan (3/20/01) 1332
Order on Summary Judgment Motions (4/5/01), 143 F.S.2d 1218 See Appendix
Proposed Order re Amendment to Paragraph G of Order for Program to Implement Interim Plan (5/8/01) 1335
Order Granting United States’ and Denying Washington’s Motions for Judgment (9/6/01) 1336
Order Granting United States’ Motion for Reconsideration and Motion to Dismiss State’s Cross-Request for Determination (10/26/01) 1340
Minute Entry: In Chambers Proceedings (3/18/02) 1343
Stipulation and Order Amending Shellfish Implementation Plan (4/8/02) 1344
Order Denying the Samish Tribe’s Motion to Reopen Judgment (12/19/02) 1369
Order Denying the Samish Tribe’s Motion for Reconsideration (2/7/03) 1377
Order Denying Emergency Motion for Continued Maintenance of Status Quo and for 2003 Management Plan (2/26/03) 1379
Order Denying Motion to Strike (3/13/03) 1381
Order Denying the State of Washington’s Motion for a Preliminary Injunction (4/2/03) 1382
Order on Motion for a Temporary Restraining Order (10/10/03) 1384
Order on Motion for Reconsideration (11/24/03) 1384
STIPULATION
The parties to this Stipulation agree to the arrangements herein set forth to facilitate adoption of a new Annex to the Pacific Salmon Treaty between the United States and Canada. This Stipulation and Order is entered into under the authority of Paragraph 14 of the court’s March 22,1974 permanent injunction in United States v. Washington, 384 F.Supp. 312, 416-17 (W.D.Wash.1974) (Dkt. # 508).
I. PARTIES AND DEFINITIONS
1. The parties to this Stipulation are:
The Jamestown S’Klallam Tribe
The Lower Elwha S’Klallam Tribe
*1325The Lummi Nation
The Makah Indian Tribe
The Nooksack Indian Tribe
The Port Gamble S’Klallam Indian Tribe
The Suquamish Indian Tribe
The Swinomish Indian Tribal Community
The Tulalip Tribes
The United States of America
The State of Washington
2.A. As used herein, the term “1999 Annex” means the version of Annex IV to the Pacific Salmon Treaty that the parties to that Treaty adopted by exchange of diplomatic notes dated June 30,1999.
B. As used herein, the term “Tribes” means those Tribes signing this Stipulation and Order.
II. AGREED STATEMENTS
1. Under equitable orders entered in United States v. Washington and in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), the treaty Tribes party to United States v. Washington and the State of Washington are entitled to an opportunity to take up to 50% of the salmon available for harvest within Washington and closely adjacent marine waters, from runs that pass through tribal usual and accustomed fishing grounds. These salmon include sockeye that spawn in the Fraser River system in Canada and many chinook, coho, and chum stocks that originate in Washington waters.
2. On January 28, 1985, the United States and Canada entered into the Pacific Salmon Treaty, T.I.A.S. No. 11091. The United States Senate ratified the treaty on March 7,1985. The Pacific Salmon Treaty addresses the conservation and international allocation of salmon stocks that originate in one country and are subject to interception in the other. Stocks subject to the Pacific Salmon Treaty include sockeye and pink from the Fraser River and many chinook, coho, and chum stocks that originate in Washington. Article IV of the Pacific Salmon Treaty contemplates that the two countries will negotiate fishing regimes, which are attached to the Treaty as annexes and implemented through regulations adopted in the member countries Annex IV is concerned with fishing regimes adopted by the United States and Canada. Chapter 4 of Annex IV addresses Fraser River sockeye salmon.
3. Since the Pacific Salmon Treaty was executed, a number of chinook, chum, and coho stocks that originate in or migrate through Washington and that are subject to the Pacific Salmon Treaty have been listed as threatened or endangered under the Endangered Species Act. These include Puget Sound Chinook — threatened (64 Fed.Reg. 14308, 14319 (March 24, 1999)), Lower Columbia River Chinook— threatened (Id. at 14321), Upper Columbia River Spring Chinook — endangered (Id. at 14324), Upper Willamette River Chinook— threatened (Id. at 14323), Snake River Spring and Summer Chinook — threatened (57 Fed.Reg. 14653, 14661 (April 22, 1992)), Snake River Fall Chinook — threatened (Id. at 14661), Hood Canal Summer Run Chum — threatened (64 Fed.Reg. 14508, 14513 (March 25, 1999)), Oregon Coastal Coho — threatened (63 Fed.Reg. 42587 (Aug. 10, 1998)), and Ozette Lake sockeye — threatened (64 Fed.Reg. 14528, 14533 (March 25, 1999)). Puget Sound Coho and Lower Columbia River Coho salmon, which are also subject to the Pacific Salmon Treaty, are candidates for listing under the Endangered Species Act. 60 Fed.Reg. 38011, 38022, 38024 (July 25, 1995). All residents of Washington State have an interest in the conservation and recovery of these fish.
4. During the first four years of the Pacific Salmon Treaty, the United States’ *1326share of the Fraser River sockeye harvest opportunity was approximately 26%, the Canadian share 74%. Canada has sought to increase the Canadian share of the harvest. Disagreement over the international sharing of Fraser River sockeye has been one obstacle to the negotiation of new Annexes fo the Pacific Salmon Treaty.
5. In 1999, representatives of the United States and Canada have reached agreement on a multi-year Annex to the Pacific Salmon Treaty. Chapter 4 of the 1999 Annex addresses Fraser River salmon and is intended to remain in effect for twelve years. In the 1999 Annex, the United States has agreed to reduce its harvest of Fraser River sockeye salmon. Canada has agreed to conservation-based management regimes for harvest of salmon that originate in Washington, including salmon that have been listed or are candidates for listing under the Endangered Species Act. These arrangements are an integral part of the overall package of agreements in the 1999 Annex.
6. The State of Washington recognizes that the treaty Tribes in United States v. Washington may engage in treaty fishing only at usual and accustomed grounds and stations. Fraser River sockeye pass through the usual and accustomed grounds and stations of only some of the Tribes party to United States v. Washington, Because of that, some Tribes depend on Fraser River sockeye, while other Tribes do not. The Tribes that would suffer a reduction in sockeye opportunity are not necessarily the Tribes that might eventually benefit from increased abundance of other salmon species as contemplated in the 1999 Annex.
III. ACTIONS TO BE TAKEN BY THE PARTIES
1.Under Article VI of the Pacific Salmon Treaty, the Fraser River Panel develops regulations for the harvest of sockeye and pink salmon within the Fraser Panel Area described in Annex II of the Treaty. The Fraser Panel Area generally includes U.S. and Canadian waters within the Strait of Juan de Fuca, northern Puget Sound, and the southern Strait of Georgia. Each year, the Fraser River Panel determines a Total Allowable Catch (TAC) of sockeye salmon. The 1999 Annex defines the TAC as the remaining portion of the annual aggregate Fraser River sockeye runs after deduction of spawning escapements, the Fraser River Aboriginal Exemption, and catches in test fisheries authorized by the Fraser River Panel.
2. In 1999, the overall U.S. catch in the Fraser Panel Area shall not exceed 22.4% of the TAC, of which 50% shall be made available for harvest by the Tribes, and 50% shall be made available for harvest by the State of Washington.
3. In 2000, the Washington non-treaty fisheries shall be reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 20.4% of the TAC, of which 54.9% shall be made available for harvest by the Tribes, and 45.1% shall be made available for harvest by the State of Washington.
4. In 2001, the Washington non-treaty fisheries shall be further reduced so that the U.S catch in the Fraser Panel Area shall not exceed 18.4% of the TAC, of which 61% shall be made available for harvest by the Tribes, and 39% shall be made available for harvest by the State of Washington.
5. In 2002, the Washington non-treaty fisheries shall be further reduced so that the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be *1327made available for harvest by the State of Washington.
6. Each year from 2003 through 2010, the U.S. catch in the Fraser Panel Area shall not exceed 16.5% of the TAC, of which 67.7% shall be made available for harvest by the Tribes, and 32.3% shall be made available for harvest by the State of Washington.
7. The parties recognize that the unequal distribution of harvest reductions between treaty and non-treaty fisheries may cause hardship to the non-treaty fleet. The negotiators of the 1999 Annex have proposed that the United States Congress and the Washington State Legislature appropriate at least 30 million dollars (Congress 25-30 million and the Legislature up to 5 million) over several years to purchase and retire Washington non-treaty commercial fishery licenses so as to mitigate economic hardship to the non-treaty fleet. The parties anticipate that this buyback will be accomplished over a three-year period beginning in the fall of 1999.
8. Once any portion of the funds for the purchase and retirement of commercial fishing licenses issued by Washington has been appropriated in FY 2000 as described in Paragraph III.7, the reductions in allocations to State harvests described in Paragraphs III.3 through III.6 shall be made. This Stipulation and Order shall become null and void unless some portion of the funds described in Paragraph III.7 above is appropriated in FY 2000 and the license buyback program described above is commenced. Any party to this Stipulation may invoke this paragraph by providing evidence to all other parties of the failure of the above-referenced condition and by moving the court for an order declaring this Stipulation and Order to be null and void. Should this Stipulation become null and void, the 50-50 treaty/non-treaty sharing provisions under the equitable orders described in Paragraph II.l above shall govern the treaty/non-treaty allocation of the U.S. share of sockeye salmon within the Fraser Panel Area.
9.The parties to this Stipulation agree that impacts on chinook, coho, and summer chum in Fraser Panel fisheries will continue to be considered in the North of Cape Falcon process, within the U.S. Section of the Fraser River Panel, and in other appropriate fishery management forums.
IV. EXPECTED BENEFITS
It is in the greater interests of all of the citizens of the State of Washington that a new Pacific Salmon Treaty Annex be adopted in which Canada pledges to reduce its interceptions of Washington salmon stocks listed under the Endangered Species Act (ESA), including those described in Paragraph II.3 above. Reduced interceptions in Canada and Alaska will increase the likelihood that endangered and threatened species will recover to the point that they no longer qualify for listing and harvestable numbers of fish will once again be available to the Tribes and the State. This will significantly reduce the overall economic impact of the listings on the Tribes and the State. The current listings will likely affect urban water supplies, agricultural lands, forestry, transportation facilities, the tourist industry, and the overall wealth of the State. The reduction of the State’s share of sockeye salmon as recited in the 1999 Annex will return more threatened and endangered chinook and chum salmon and candidate coho salmon, which has major value to the State and the Tribes because it may help to reduce the duration and scope of federal ESA constraints within the State.
V. IMPLEMENTATION AND MODIFICATION
1. This Stipulation shall be effective when the following three conditions are met:
*1328A. The 1999 Annex is adopted by the United States and Canada.
B. Any hands are appropriated as referred to in Paragraphs III.7 and III.8 to mitigate economic hardship to the non-treaty fleet.
C. This Stipulation is approved by the Court and entered as a Court Order, pursuant to the Court’s continuing jurisdiction in United States v. Washington, 384 F.Supp. 312, 333, 347, 416-17 (W.D.Wash.1974).
2. Unless the parties agree on an alternative allocation, the following principles shall govern the allocation of Fraser River sockeye salmon harvest in the Fraser Panel area between the Tribes and the State of Washington after 2010:
A. If the United States and Canada have agreed on a new Annex IV Chapter 4 to the Pacific Salmon Treaty under which the United States’ share of the TAC in the Fraser Panel area remains the same as its share in 2010, the tribal/non-tribal allocation shall remain the same as the allocation agreed herein for 2010;
B. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share in the Fraser Panel area is between 16.5% and 22.4% of the TAC, the tribal allocation shall be 11.2% of the TAC plus one third of the amount that the United States’ share exceeds 16.5% but is less than 22.4% of the TAC, and the remainder shall be allocated to the State of Washington;
C. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share in the Fraser Panel area is 22.4% of the TAC or greater, the tribal allocation shall be as provided in subparagraph (B), above, and the remainder of the United States’ share shall be allocated to the State of Washington, provided, that at the point where the State’s allocation of the TAC equals the Tribal allocation, and above this point, the State of Washington and the Tribes shall share the harvest opportunity equally;
D. If the United States and Canada have agreed on a new Annex IV Chapter 4 of the Pacific Salmon Treaty under which the United States’ share is less than 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall be as agreed between the State of Washington and the Tribes or, lacking such agreement, as determined by the federal court with jurisdiction in United States v. Washington;
E. In any year after 2010 for which the United States and Canada have not agreed on a new Annex IV Chapter 4 to the Pacific Salmon Treaty, the tribal/nontribal allocation of whatever share of the TAC in the Fraser Panel area the United States proposes to harvest during the impasse with Canada shall be as follows:
i. If the United States proposes to harvest 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall remain the same as in 2010;
ii. If the United States proposes to harvest between 16.5% and 22.4% of the TAC in the Fraser Panel area, the tribal allocation shall be 11.2% of the TAC plus one third of the amount that the United States’ proposed harvest exceeds 16.5%, but is less than 22.4% of the TAC, and the remainder of the United States’ proposed harvest shall be allocated to the State of Washington;
iii. If the United States proposes to harvest 22.4% or more of the TAC in *1329the Fraser Panel area, the tribal allocation shall be as provided in subpara-graph E(ii), above, and the remainder of the harvest proposed by the United States shall be allocated to the State of Washington, provided, that at the point where the State of Washington’s allocation of the TAC equals the tribal allocation, and above this point, the State of Washington and the Tribes shall share the harvest opportunity equally;
iv. If the United States proposes to harvest less than 16.5% of the TAC in the Fraser Panel area, the tribal/non-tribal allocation shall be as agreed between the State of Washington and the Tribes or, lacking such agreement, as determined by the federal court with jurisdiction in United States v. Washington.
3. It is further agreed that the parties shall meet not later than March 1, 2010, and enter into good faith discussions regarding the allocation of Fraser River sockeye salmon harvest between the Tribes and the State of Washington after 2010.
4. Modification of this Stipulation is to be made only in a written document signed by the parties and approved and entered by the Court as an amendment to this Stipulation.
5. Except as expressly stated herein, this Stipulation and Order does not and shall not alter the terms of any settlement agreement or Court Order entered in United States v. Washington.
6. This Stipulation and Order does not affect the power of the United States under Section 6 of the Pacific Salmon Treaty Act, 16 U.S.C. § 3635.
7. The parties’ agreement to this Stipulation is only to the extent authorized by their respective laws.
8.In the event that United States v. Washington shall be terminated, the United States District Court for the Western District of Washington shall retain such jurisdiction as is necessary to enforce the terms of this Stipulation and Order.
VI. OTHER ADMINISTRATIVE MATTERS
1. This Stipulation and Order does not alter orders governing treaty/non-treaty sharing of any fish other than sockeye within the Fraser Panel Area. This Stipulation and Order applies only to fisheries within the Fraser Panel Area.
2. The question of whether Fraser River sockeye caught in Alaska should be included in the allocation between treaty and non-treaty fishers in Washington at issue in United States v. Washington Sub-proceeding 90-1 will not be pursued for the period of time that the Fraser River sockeye chapter of the 1999 Annex is in effect, nor for any subsequent years for which the allocation between treaty and non-treaty fishers in Washington is determined under Paragraph V.2A, B, C, E(i), (ii) and (iii) above, or as agreed under Paragraph V.2D or E(iv). The parties agree that if the consolidated United States v. Washington Subproceedings 83-6 and 90-1 are reinstated on the calendar of the trial court, or the question of accounting for harvests in Alaska is raised by another party in some other proceeding, any catches of Fraser River sockeye in Alaska that occur during the time the Fraser River sockeye chapter or the 1999 Annex is in effect or during the time the allocation between treaty and non-treaty fishers in Washington is determined under said Paragraph V.2A, B, C, E(i), (ii) and (iii), or as agreed under Paragraph V.2D or E(iv), will not accrue against any state or tribal party.
*13303. This Stipulation and Order contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Stipulation and Order shall be deemed to exist or to bind any of the parties hereto.
ORDER
The parties having assented to the foregoing Stipulation as evidenced by the signatures of their respective Counsel, it is hereby
ORDERED, THAT THIS STIPULATION IS HEREBY ADOPTED AS AN ORDER OF THIS COURT.
ORDER DENYING PRIVATE LAND OWNERS’ MOTION FOR RECONSIDERATION AND GRANTING-IN-PART AND DENYING-IN-.PART PRIVATE LAND OWNER’S MOTION FOR AMENDMENT OF THE COURT’S CLARIFYING ORDER
Subproceeding No. 89-3
(February 25, 2000)
EDWARD RAFEEDIE, Senior District Judge.
The Court has read and considered the papers filed in connection with Intervenor-defendants Alexander, Adkins and United Property Owners of Washington, et al. (hereinafter “Private Property Owners”) unopposed Motion For Reconsideration Or, Alternatively, Motion For Amendment of the Court’s Clarifying Order, and deeming the matter fit for resolution without the need for oral argument, now reaches the following CONCLUSIONS:
[1] The Private Property Owner’s Motion For Reconsideration relies on substantially the same argument and authority that was rejected by the Court in fashioning its Order Clarifying Implementation Order Re Tribal Access Across Private Upland Property (“Clarifying Order”). The only “new” basis for the Private Property Owners’ request for reconsideration is their assertion that the Clarifying Order “fails to consider the burdens imposed upon private owners by requiring them to litigate, on a case by case basis, whether upland access in any particular case is ‘reasonable.’ ” Memorandum In Support of Reconsideration, at 4:2-4. On the contrary, the Court carefully considered the burden imposed on both the private owners and the Tribes, and determined that the Tribes’ Treaty rights required the reasonable access defined in the Court’s Clarification Order. The burden imposed on the private land owners, though regrettable, is not a sufficient basis to abrogate the Court’s previous ruling, Accordingly, the Private Property Owners’ Motion For Reconsideration is HEREBY DENIED.
[2] The Private Property Owners argue in the alternative that the Court’s Clarification Order should be amended to “reimpose a proper balance between tribal shellfish rights and private property interests.” Memorandum In Support of Reconsideration, at 6:4-5. The Private Property Owners specifically ask for three amendments to the Clarification Order. First, they seek a requirement for “the posting of a bond by the requesting Tribe in an amount sufficient to pay for any damage to privately owned upland property and the reasonable attorney fees and costs incurred by the Private Property Owners defending against requests for upland access.” Memorandum In Support of Reconsideration, at 6:7-9. The Court does not believe it has the authority to impose such a condition on Tribal access. See, e.g., United States, et al. v. State of Washington, et al., 135 F.3d 618, 641-42 (9th Cir.1998). Further, the Tribes’ sovereign *1331immunity makes such a condition impracticable, if not impossible. Therefore, the Court rejects the Private Property Owners’ first proposed amendment.
[3] Second, the Private Property Owners request that the Court direct the Special Master “to impose the least intrusive means of access necessary to allow Tribes to enter upon tidelands to harvest shellfish.” Memorandum In Support of Reconsideration, at 6:15-17. Explicit in the Court’s original Implementation Order was the Court’s desire to impose the least intrusive burden on the Private Property Owners, a desire which is not inconsistent with the Clarifying Order. Accordingly, the Court HEREBY ORDERS that in instances where the Special Master finds that no “reasonable” access exists pursuant to section 7.2.4 and the Clarifying Order, the Special Master shall impose the least intrusive reasonable means of access necessary to allow Tribes to enter upon tidelands to harvest shellfish. “Reasonable” for purposes of this order shall be determined in the same manner as defined in the Clarifying Order, at 2-3. Further, the Special Master shall, where reasonable, give preference to existing roads and rights of way. The Court declines, however, to require that the Tribes join additional upland owners before the Special Master as requested by the Private Property Owners.
[4] Third, the Private Property Owners request that the Court direct the Tribes to “disclose all income, from all sources, and all assets of any nature, as of the preceding calendar year” for the Special Master to consider in determining whether the economic burden of accessing a particular shellfish bed is “reasonable.” Memorandum In Support of Reconsideration, at 6:22-24. The inquiry into whether an economic burden is “reasonable” does not rest on the resources of the Tribes, but rather on the actual expense required to gain access. Accordingly, the Court rejects the Private Property Owners’ request for Tribal disclosure of income.
Finally, on its own motion the Court has reviewed the Clarifying Order and finds that the following amendment is appropriate for purposes of clarity. That clause which reads “tribal members can demonstrate the reasonable absence of access by boat, public road, or public right of way,” Clarifying Order, at 2:15-16, shall be amended to read “tribal members can demonstrate the absence of reasonable access by boat, public road, or public right of way.”
For the foregoing reasons, the Private Property Owners Motion For Amendment of the Court’s Clarifying Order is DENIED-IN-PART and GRANTED-IN-PART.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve, by United States mail or by telefax, copies of this Order on counsel for the parties in this matter.
CONSENT DECREE
Subproceeding No. 00-1
(August 18, 2000)
BARBARA J. ROTHSTEIN, District Judge.
On a motion for a temporary restraining order brought by the Skokomish Indian Tribe, the Court held a hearing with the following parties present and represented by counsel: the Skokomish Indian Tribe, represented by Richard Guest; the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Lower Elwha Tribal Community of the Lower Elwha Reservation (Lower Elwha Klallam Tribe); *1332represented by Vernle C. Durocher, Jr.; and the Suquamish Indian Tribe, represented by Michelle Hansen. Following argument, the Court adjourned to chambers to discuss with counsel issues related to tribal management and treaty allocation (as defined in U.S. v. Washington) of the Dungeness crab fishery in Hood Canal.
The parties have reached agreement as follows:
1. On August 17, 2000, during the Court’s hearing, the Point No Point Treaty Council filed Regulation # S2000-124/Modified, closing the Dungeness crab fishery in Hood Canal effective Sunday, August 20, 2000 at 6:00 p.m. The parties agree that, under these circumstances, the relief requested by the Skokomish Indian Tribe and Court intervention is unnecessary.
2. The parties shall actively pursue mediation and shall notify the Court as to the selection of a mediator acceptable to all parties within seven days of the date of entry of this order. The scope of the mediation shall include the tribal management and treaty allocation (as defined in U.S. v. Washington) of the Dungeness crab fishery in Hood Canal for the 2000/2001 season ending April 15, 2001.
3. If the parties cannot mutually agree upon a mediator, the Skokomish Tribe, the Suquamish Tribe, and the legal counsel for the Port Gamble S’Klallam Tribe, the Jamestown S’Klallam. Tribe, and Lower Elwha Klallam Tribe (collectively), shall each, within three days following the expiration of the seven day interval referenced above, submit three names of mediators to the Court and the Court will select a mediator for the parties,
4.Costs of mediation shall be born equally by the parties.
IT IS SO ORDERED and decreed.
ORDER ESTABLISHING INTERIM HALIBUT FISHERY MANAGEMENT PLAN
Subproceeding 91-1
(March 20, 2001)
THIS MATTER comes before the court on three motions filed by various tribes that participate in Washington’s treaty halibut fishery. Each motion seeks entry of an order adopting an interim fishery management plan (“FMP”) for the year 2001 commercial halibut fishery. The court has received pleadings filed on behalf of the Makah, Quileute and Quinault tribes (the “Coastal Tribes”), the seven “Inside Tribes” (comprised of the Lower Elwha S’Klallam, Port Gamble S’Klallam, Jamestown S’Klallam, Tulalip, Swinomish, Su-quamish and Skokomish tribes), and the Lummi Nation.1 Having reviewed these pleadings, along with the relevant portions of the record, and being fully advised, the court finds and rules as follows:
I. BACKGROUND
Pursuant to their inherent management authority, all tribes involved in this halibut fishery have historically adopted FMPs based on negotiated agreement. These FMPs establish fishery opening dates, quotas for different phases of the fishery, catch limits, in season adjustment mechanisms, and dispute resolution procedures. The year 2000 FMP for the commercial fishery was agreed to by eleven of the *1333twelve interested tribes (except the Qui-leute, which eventually consented to the 2000 FMP as an interim management measure), and appears to have resulted in an orderly, and generally successful, fishing season. The total allowable catch (“TAC”) for the treaty fishery in 2000 was 305,500 pounds. This TAC was pursued during three “sub-fisheries” during the season. The first sub-fishery was a 48 hour “unrestricted opening,” which imposed no limitations on catch vessels. The second sub-fishery was a 30 day “restricted opening,” during which each vessel was subject to a 500 pound daily landing limit. The third sub-fishery was a variable “mop-up” period after the 30 day restricted opening, designed to capture any allowable catch remaining after the unrestricted and restricted openings.
Because the various participating tribes’ usual and accustomed fishing grounds are at diverse locations, and because the fishers’ habits and capabilities vary, they have their greatest interest in different sub-fishery phases. The Makah, for example, claim that they rely most heavily on the first unrestricted opening because they are capable of landing a large volume of fish and because the commercial price for halibut is highest early in the season. The Inside Tribes, because of their geographic location and the distribution of halibut through their fishing grounds, place more importance on the 30 day restricted opening of the fishery. Finally, tribes like the Quileute, who tend to fish later in the spring as the weather changes, are more interested than others in the late season mop-up sub-fishery. Late season fishers are also concerned that a high catch rate in the early sub-fisheries can effectively erase the opportunity for late season fishing if the TAC is met or exceeded too soon. The relative importance each tribe places on a particular stage of the halibut fishery has resulted in a divergence of opinion and, thus far, an inability to agree on a FMP for 2001.
Moreover, the year 2001 fishery is projected to be even stronger than previous years, with a calculated TAC of 406,500 pounds of fish. This 33% increase in stock abundance has spawned additional disputes among the tribes regarding how the TAC should be allocated among them, if at all. Recognizing the need for a FMP to direct the 2001 halibut fishery, even in the absence of complete tribal agreement, the tribes have approached the court with proposed interim management plans to see them through until an acceptable long term FMP can be agreed upon. Although the overall structure of the FMP sought is not in dispute, the details of the parties’ proposals differ significantly. In relevant part, the Coastal Tribes propose: 1) an initial 60 hour unrestricted opening with a catch target of 220,000 pounds; 2) additional openings thereafter, beginning on March 22, 2001, designed to bring the total harvest up to 325,200 pounds (80% of the TAC); 3) a 30 day restricted fishery designed to harvest the remaining 81,300 pounds of halibut (20% of the TAC); and 4) additional openings after April 15, 2001, during which any unharvested portion of the TAC may be taken. In addition, the Coastal Tribes’ proposal imposes gear limitations not present in previous years, based on their belief that all tribes should “play by the same rules.”
The Inside Tribes object to the Coastal Tribes’ proposal on three primary grounds: 1) the Coastal Tribes’ proposal imposes gear restrictions on halibut fishers that would disadvantage the Inside Tribes’ fishing effort; 2) the unrestricted openings are not conservatively designed to guarantee the viability of later restricted openings; and 3) there are insufficient equitable measures provided to adjust for over harvest of halibut during the unrestricted *1334sub-fishery. Essentially, the Inside Tribes maintain that the Coastal Tribes’ proposed management plan does nothing to protect the former’s opportunity to participate in this fishery. Therefore, the Inside Tribes have asked the court to “maintain the status quo” by adopting a 2001 FMP that is equivalent to the 2000 FMP and adjusted to reflect this year’s increased TAC. Thus, the parties agree that the court must put into place an FMP for the 2001 halibut fishery, and differ only on the terms of that FMP.
II. DISCUSSION
The court has retained jurisdiction to consider tribal treaty fishing issues in proceedings ancillary to Judge Boldt’s landmark decision in United States v. Washington, C70-9213, and the instant parties have consented to the authority of this court to enter an order adopting an FMP for the 2001 halibut fishery. In assessing the various proposals submitted by the parties, the court has focused on two principles. First, the court is obligated to direct management of the fishery in such a way as to preserve and maximize each tribe’s treaty right to take fish. See generally United States v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985). In addition, the court will respect to the greatest extent possible the tribes’ collective authority and ability to manage their fisheries themselves, by mutual agreement.
Turning first to the Coastal Tribes’ proposed management plan, the court notes that strenuous objections have been filed by other interested tribes. There is shared concern over whether the Coastal Tribes’ proposal would adequately protect tribal fishers’ opportunity to harvest halibut in the later stages of the fishery, and whether the proposed plan provides an effective mechanism to compensate tribes adversely effected by an excessive early harvest. Further, the gear limitations proposed by the Coastal Tribes represent an entirely new element that has not been agreed to in the past.
The Inside Tribes’ proposed FMP, by contrast, is merely a reiteration of the FMP which was formally agreed to by eleven of the twelve interested tribes, which had the eventual consent of the twelfth, and which proved to be a satisfactory arrangement overall. That proposed FMP retains all the structural, organizational and reporting provisions of the 2000 FMP, and simply changes the numerical values affected by this year’s increased TAC.
Given the totality of the circumstances present in this case, the court finds that the best, and most equitable, course of action is to continue managing the halibut fishery in essentially the same manner as applied during 2000. The court cannot, on the limited record presently before it, adopt alterations to the established regime as extensive as those proposed by the Coastal tribes without obtaining additional information. To determine whether the gear limitations suggested by the Coastal Tribes are necessary and fair, or whether their proposed openings allow for adequate late season catch for other tribes, would require a more thorough trial of the issues and presentation of substantial expert opinion and evidence than is possible at this juncture. The court, therefore, adopts the 2001 Tribal Commercial Halibut Fishery Management Plan as proposed by the Inside Tribes. See 2001 Tribal Commercial Halibut Fishery Management Plan, Exh. B to “Certain Tribes” Motion to Adopt an Interim Halibut Commercial Fishery Plan.2
*1335III. CONCLUSION
For the reasons discussed above, the court finds that the 2001 halibut fishery shall be subject to the management plan agreed to by the parties for the year 2000 fishery, with numerical catch values adjusted upwards in light of the increase in this year’s total allowable catch. The plan adopted by the court is that proposed by the seven Inside Tribes in their motion for order adopting interim management plan, and that motion [docket 59-1] is, consequently, GRANTED.3 The Coastal Tribes’ motion for adoption of their proposed 2001 management plan [docket 52-1] is DENIED.4
PROPOSED ORDER RE AMENDMENT TO PARAGRAPH G OF ORDER FOR PROGRAM TO IMPLEMENT INTERIM PLAN
Subproceeding No. 96-2
(May 08, 2001)
After examination of the stipulation of the parties that Paragraph G of the Order For Program To Implement Interim Plan, 459 F.Supp. 1020, 1037-38, should be amended, the Court finds that the amendment represents a fair and equitable settlement of the dispute as to that portion of this subproceeding. This Order is intended to affect only Paragraph G of the Order For Program To Implement Interim Plan, leaving the other provisions of the Order, as previously modified, unchanged.
ORDER
Paragraph G of the Order For Program To Implement Interim Plan, 459 F.Supp. 1020, 1037-38, is amended to read as follows:
1. Any Tribe party to this case may open a fishery within that Tribe’s previously adjudicated usual and accustomed grounds and stations for any species of fish, including non-anadro-mous fish. Before opening any fishery, the parties shall comply with applicable court orders. If any tribal or state fishery would reasonably be expected to affect another party’s fisheries, the party conducting the fishery:
a. Shall comply with the Stipulation and Order Concerning Co-Management and Mass Marking, entered in United States v. Washington Subproceeding 96-3 on April 28, 1997; and
*1336b. Shall provide data on catch and biological information concerning the fishery to any party who requests it.
2. Upon request, the biologists for the State and biologists for the Tribes shall meet to formulate general principles to be utilized as guidelines to be flexibly applied in the adoption of specific fishing regulations applicable to particular species of non-anadromous fish.
3. Any of the parties may invoke the continuing jurisdiction of this court in order to determine the procedures and/or method for adopting management principles with respect to any particular species of non-anadromous fish. The parties shall comply with the procedures of the Order Modifying Paragraph 25 of Permanent Injunction, entered in United States v. Washington on August 23,1993.
4. Paragraphs G.l and G.2 do not apply to fisheries in the United States’ Exclusive Economic Zone that are subject to a federal fishery management plan adopted under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C, 1801-1883, or that are governed by federal regulations adopted under that Act or other applicable federal law.
DONE IN OPEN COURT this 4th day of May, 2001.
ORDER GRANTING UNITED STATES’ AND DENYING WASHINGTON’S MOTIONS FOR JUDGMENT
Subproceeding No. 01-1 (Culverts)
(September 06, 2001)
THIS MATTER comes before the court on two related motions. The United States has filed a motion to strike, or for judgment on, fifteen of the twenty affirmative defenses asserted in the State of Washington’s Answer to the Plaintiff Tribes’ Request for Determination (“RFD”) and to the United States’ Response to the RFD. Washington has also filed what is essentially a cross-motion, seeking judgment on the pleadings regarding the “law of the case” in which it contends that the relief sought in the Tribes’ RFD is barred by prior judicial decisions.1 Having now reviewed the pleadings filed in support of and in opposition to these motions, together with the relevant portions of the record, and being fully advised, the court finds and rules as follows:
I. DISCUSSION
A. Washington’s Affirmative Defenses
1. Waiver and Estoppel
The affirmative defenses laid out in paragraphs 6.1 through 6.8 of Washington’s answer are based on the doctrines of waiver or estoppel. Washington believes that the United States’ conduct in funding and approving Washington’s roadway culverts prevents it from now asserting a claim that those culverts violate the plaintiff Tribes’ treaty rights. The United States argues that neither waiver nor es-toppel are tenable defenses when the United States is acting to enforce the rights of Indian tribes.
The United States has correctly identified the binding authority that forecloses Washington’s attempt to use waiver or estoppel defenses in this case. See, e.g., Cramer v. United States, 261 U.S. 219, 43 *1337S.Ct. 342, 67 L.Ed. 622 (1923) (acts of government agent do not bind government and cannot constitute waiver of Indian rights); Pine River Logging & Improvement Co. v. United States, 186 U.S. 279, 22 S.Ct. 920, 46 L.Ed. 1164 (1902) (same); United States v. Washington, 157 F.3d 630 (9th Cir.1998) (estoppel defense cannot be asserted to defeat claims enforcing Indian rights); Swim v. Bergland, 696 F.2d 712 (9th Cir.1983) (same); United States v. Ahtanum Irrigation Dist., 236 F.2d 321 (9th Cir.1956) (same). Washington has not presented any on-point authority to the contrary, and its argument in opposition to the United States’ motion fails to controvert the clear legal principles laid out in the cases cited above. Because the defenses of waiver and estoppel are simply not available to defeat the United States’ instant action to enforce the plaintiff Tribes’ treaty rights, the government is entitled to judgment as a matter of law on the affirmative defenses asserted in paragraphs 6.1 through 6.8 of Washington’s answer.
2. Constitutional Defenses
The United States argues that Washington’s constitutional defenses, asserted under the Equal Footing Clause, the Guarantee Clause, and the Tenth Amendment to the United States Constitution, are legally insufficient under the instant circumstances. Washington responds that the treaty right asserted in this case may not be consistent with its admission as a state into the federal union, that it may violate the Guarantee Clause’s promise of a republican government, and that it impinges on rights reserved to the states under the Tenth Amendment. Washington further argues that these defenses present questions that deserve further development and attention during this litigation and which preclude summary dismissal.
The court disagrees. As Washington admits, the Equal Footing doctrine has been rejected as a basis for limiting Indian tribes’ treaty fishing rights for a century or more. E.g. United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Indeed, these very parties were reminded that Washington’s admission “into the Union upon an equal footing with the original states had no effect upon the treaty rights of the Plaintiff tribes.” United States v. Washington, 157 F.3d 630, 646 (9th Cir.1998) (quoting Final Decision No. 1, 384 F.Supp. 312, 401 (W-D.Wash.1974)). Washington responds that the relief sought in this subproceeding is based not on express treaty rights, but instead on an implied right to habitat conservation, and is thus not subject to the rule last stated. However, that contention rests on a faulty and improper formulation of the plaintiff Tribes’ claim. The Tribes and the United States have asked the court to declare that Washington has a duty to manage its culverts in a certain manner so as to guarantee or protect their treaty right to take fish. Whether such a duty exists, and the measure of any such duty, has yet to be determined. What is abundantly clear at this time, however, is that the Tribes are asserting a treaty right, and that right is unaffected by Washington’s admission into the union, such that the Equal Footing affirmative defense (paragraph 6.12 of Washington’s answer) must fail as a matter of law.
The same is true for Washington’s Guarantee Clause defense (paragraph 6.17 of Washington’s answer). Washington’s claim that the Tribes seek to dictate how the state legislature shall act and to control the expenditure of state funds is simply unfounded and contrary to the plain language of the RFD. Moreover, to the extent that Washington will be forced to act in a particular manner in order to *1338comply with its treaty obligations, that compelled action is no constitutional infringement given the fact that treaties with Indian tribes are expressly part of the “Supreme Law of Land” governing all states. See U.S. Const. Art. VI (containing the “Supremacy Clause”); Missouri v. Holland, 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920). The Guarantee Clause is thus no bar to the relief sought in the plaintiffs’ RFD.
Washington’s defense under the Tenth Amendment (paragraph 6.18 of Washington’s answer) can fare no better. The Amendment protects state sovereignty and the federalist structure of our national government, but Washington has nowhere identified any threat to its reserved powers. Again, by operation of the Supremacy Clause, Indian treaties are incorporated into the body of paramount law binding both state and federal governments. There can be no valid Tenth Amendment defense when the United States seeks to enforce an obligation under one of these universally binding legal positions. Id. See also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).
3. Political Question Doctrine
The United States correctly notes that Washington’s political question affirmative defense, asserted in paragraph 6.13 of its answer, cannot be sustained where the case does not implicate the relationship between the coordinate branches of the federal government. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (holding that political question doctrine is implicated in “the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States”). Apparently conceding this point, Washington argues that a political question is raised because the Tribes have presented claims for which no judicially determinable standards for decision exist. Washington relies primarily on the procedural history of the former “Phase II” of this litigation in support of this argument.
However, Washington overstates the significance of the prior holdings in Phase II. Although the Ninth Circuit Court of Appeals vacated this court’s order with respect to the Tribes’ right to prevent environmental degradation, it left open the possibility that such a right exists and left for future tribunals the question of how to measure that right. See United States v. Washington, 759 F.2d 1353, 1357 (9th Cir.1985). There is simply no support in the record or case law for the proposition that this court is ill-equipped to determine the appropriate legal standards for deciding the issues presented herein. Under these circumstances, Washington’s political question affirmative defense lacks any merit.
A Self-execution of Treaties
Washington alleges in paragraph 6.14 of its answer that the Stevens treaties at issue in this case are not self-executing and thus not binding on the State absent Congressional ratification. This position has been repeatedly rejected, including by the Supreme Court in closely-related litigation. See Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 693, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Nevertheless, Washington seeks to save this affirmative defense by claiming that the particular rights asserted in this subproceeding are only implied by self-executing rights, and are not themselves self-executing. Yet this argument is based on the flawed characterization of the Tribes’ claims heretofore rejected by the court. See supra, § I.A.2. Because the Tribes are seeking to *1339measure and enforce their right to take fish, which right is indisputably self-executing, Passenger Fishing Vessel, 443 U.S. at 693, 99 S.Ct. 3055, this affirmative defense is legally unavailing.
5. Washington’s Compliance With the Endangered Species Act
Washington describes its Endangered Species Act (“ESA”) compliance affirmative defense as an assertion that “any alleged treaty habitat obligation affecting the State’s construction and maintenance of culverts is subsumed by Washington’s ESA compliance because the United States has expressly said so.” Washington’s Opposition to the United States’ Motion to Strike at 15. It cites nothing in support of this proposition.
Moreover, Washington’s position defies logic. Washington’s compliance with the ESA in particular actions or projects does not necessarily satisfy its treaty obligations any more than satisfying its treaty obligations would suffice for compliance with the ESA. The duties imposed by each originate with different legal sources, and are measured by different legal standards. That being so, Washington’s ESA affirmative defense essentially reduces to another variation on the waiver and estoppel argument, namely that it has complied with the Stevens treaties “because the United States said so,” summarily rejected above. However it is framed, the court concludes that this affirmative defense, set forth in paragraph 6.15 of Washington’s answer, cannot survive the United States’ motion to strike.
B. Washington’s Motion for Judgment on the Pleadings
Washington’s Motion for Judgment on the Pleadings Re: Law of the Case seeks judgment as a matter of law that the relief requested by the plaintiff Tribes, and the United States on their behalf, in this subproceeding is barred by the preclusive effect of prior legal determinations, and asks that the litigation be terminated on that basis. Specifically, Washington argues that the Tribes are not, as a matter of law, guaranteed a treaty right to “earn a moderate living” from their treaty fishery because numerous courts have already rejected that contention, citing Washington Passenger Fishing Vessel, 443 U.S. 658, 99 S.Ct. 3055, and the United States v. Washington complex of cases. Both the Tribes and the United States have filed memoranda opposing this motion, in which they argue that Washington has mischaracterized the nature of the remedy they seek and has misread the holdings on which Washington’s argument relies. The United States asks the court to strike this “law of the case” theory as an affirmative defense, which is set out in paragraph 6.11 of Washington’s answer.
Having closely reviewed the applicable pleadings, the court rejects Washington’s formulation of the relief plaintiffs seek in this matter. Washington’s motion proceeds, at the outset, on a faulty premise by suggesting that the Tribes are suing to enforce their right to earn a moderate living. This mischaracterization oversimplifies the remedies sought in the Request for Determination, and unfairly casts it in terms that may facially conflict with prior judicial decisions. Instead, it is clear to the court that the plaintiffs are seeking to prevent the state from interfering with the treaty right of taking fish by affirmatively diminishing the number of fish available for harvest.
Furthermore, the court does not read the cases Washington relies on in the manner which Washington suggests, and rejects the claim that those decisions preclude litigation of the Tribes’ instant attempt to ensure that Washington does not *1340build and manage its roadway culverts in a fashion that impermissibly blocks the passage of fish destined for the Tribes’ usual and accustomed fishing grounds. For example, the Ninth Circuit Court of Appeals, in dismissing the Phase II litigation, explicitly recognized that the “State of Washington is bound by the treaty. If the State acts for the primary purpose or object of affecting or regulating the fish supply or catch in noncompliance with the treaty as interpreted by past decisions, it will be subject to immediate correction and remedial action by the courts. In other instances [when the state does not act with the primary purpose of regulating fish supply], the measure of the State’s obligation [to avoid environmental degradation] will depend for its precise legal formulation on all of the facts presented by a particular dispute.” United States v. Washington, supra, 759 F.2d at 1357. Nothing in the Passenger Fishing Vessel decision conflicts with this recognition that Washington’s duty with respect to the environment, imposed by the treaty, is a realistic possibility.
Whether the Tribes have a treaty-based right to insist on the remedies they seek from the State remains to be determined. But nothing in prior decisions precludes this court from considering the issues raised in the RFD. Because the instant litigation is not controlled or foreclosed by prior rulings, Washington’s law of the case affirmative defense fails as a matter of law.
II. CONCLUSION
For the reasons detailed above, the court finds that fifteen of Washington’s affirmative defenses are insufficient as a matter of law. The United States’ motion to strike, or in the alternative to grant judgment on, those affirmative defenses is GRANTED and the affirmative defenses are hereby STRICKEN from Washington’s answer. The court also concludes that Washington’s motion for judgment on the pleadings is without merit, and that motion is hereby DENIED.
ORDER GRANTING UNITED STATES’ MOTION FOR RECONSIDERATION AND MOTION TO DISMISS STATE’S CROSS-REQUEST FOR DETERMINATION
Sub-proceeding No. 01-1 (Culverts)
(October 26, 2001)
THIS MATTER comes before the court on the United States’ Motion to Reconsider Court’s Order Denying Motion to Dismiss. The United States requests that the court reconsider its ruling denying the United States’ motion to dismiss Washington’s cross-request for determination. On September 5, 2001, the court called for responsive briefs, asking the parties to address the issues raised in the United States’ motion for reconsideration. Upon closer inspection, more thorough briefing, and further development of this issue, the court finds and rules as follows:
I. BACKGROUND
On January 12, 2001, the United States initiated this action, together with interested Indian tribes, to force Washington to repair and better maintain its roadway culverts so that such culverts would not impair, but would indeed promote, fish runs. On March 15, 2001, Washington filed its “Answer and Cross and Counter Requests for Determination” in which it asserts a claim against the United States for injunctive and declaratory relief. Washington claims that the United States has “unlawfully injured the State of Washington by ... placing on the State a disproportionate burden to meet any such treat-based duty” and has “managed its lands in such a way as to create a nuisance *1341that unfairly burdens the State of Washington.” State’s Answer 31 ¶¶ 7.4, 7.5. On July 20, 2001, this court issued an order denying the United States’ motion to dismiss Washington’s cross-request for determination. The United States argues, in both its previously filed motion to dismiss and now in its motion to reconsider, that Washington’s cross and counter request is improper because (1) the court lacks jurisdiction over Washington’s cross-request because of the doctrine of sovereign immunity; and (2) Washington lacks standing to assert claims on behalf of the Indian Tribes.
The United States believes that the court may have “misapprehended or overlooked” its arguments concerning sovereign immunity and standing. Specifically, the United States believes that the court may have erroneously perceived those arguments as being dependent on the United State’s alignment as a party in this action.
II. DISCUSSION
The court will ordinarily deny motions for reconsideration in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. See Local Rule CR 7(e).
1. Sovereign Immunity
Congress alone has the authority to determine whether and under what circumstances to waive the immunity of the United States. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Consent to suit cannot be provided by a court or by government officers. United States v. United States Fid. & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). Waivers of sovereign immunity are construed strictly and narrowly. United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The party who “sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity.” Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992). Moreover, “[t]he United States does not waive sovereign immunity by implication; any waiver must be unequivocally expressed.” Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 142 (9th Cir.1987). The fact that the United States is a plaintiff in this action does not, by itself, waive its sovereign immunity. See id. at 143 (“[MJerely by instituting a suit, the United States does not consent to be sued on a counterclaim based on a cause of action for which it has not otherwise given its consent to be sued.”). Indeed, “[t]he United States does not waive its sovereign immunity by instituting the action in which a defendant asserts a claim for affirmative relief against the United States.” United States v. City of Los Angeles, 595 F.2d 1386, 1389 (9th Cir.1979) (emphasis added).
The institution of an action by the United States may, however, constitute a limited waiver of sovereign immunity with respect to certain counterclaims that may be asserted by the defendant, even absent a statutory waiver of immunity. When the United States institutes an action, it waives immunity as to the counterclaims of the defendant which assert matters in recoupment — matters that arise out of the same transaction or occurrence which is the subject matter of the government’s action. Such waivers are limited to the extent of reducing or defeating the government’s claim. See Frederick v. United States, 386 F.2d 481, 488 (5th Cir.1967). A judgment which is affirmative in the sense of involving relief different in kind or nature or exceeding the amount of the government’s claim is not authorized. *1342Id.; United States v. Agnew, 423 F.2d 513, 514 (9th Cir.1970) (“[A] counter-claim may be asserted against a sovereign by way of set off or recoupment to defeat or diminish the sovereign’s recovery, [though] no affirmative relief may be given against a sovereign in the absence of consent.”).
In its Answer and Cross and Counter Requests for Determination, the State contends that the United States has “unlawfully injured the State of Washington by, among other things, placing on the State a disproportionate burden to meet any such treaty-based duty” and has “managed its lands in such a way as to create a nuisance that unfairly burdens the State of Washington.” Answer ¶¶ 7.4, 7.5. The State also claims that federal agencies operate culverts that may block fish passage. These federal actions, the State argues, by decreasing the fish supply, have increased the State’s burden to provide the Tribe’s with a “moderate living.” The State therefore asks the court to declare the alleged federal agency actions to be contrary to the treaty right, if such a right exists, and to compel the federal agencies to inventory and fix their own culverts. State’s Answer ¶¶ 8.5-8.7, 8.9-8.11. The United States rightly points out that Washington “does not merely claim that its own liability should be reduced to account for alleged conduct by the United States, but seeks affirmative relief against the United States.” Mem. In Supp. of United States’ Mot. to Recons. Court’s Order Denying Mot. to Dismiss at 3.
Since Washington’s claim requests affirmative relief against the United States, this counter request cannot fall within the judicial exception permitting counterclaims for recoupment against the United States. Fidelity & Guaranty Co., 309 U.S. at 511, 60 S.Ct. 653. While it seems that the essence of the State’s request is that its own liability should be reduced because of alleged federal actions, its claim is in the form of injunctive relief against the United States. For the reasons cited above, the State cannot seek such relief in the form of a “counter-request,” absent an unequivocal waiver of sovereign immunity.1
a. Sovereign Immunity Waiver under 5 U.S.C. § 702
The State believes that such a waiver exists. It contends that Congress has provided a waiver of immunity for its counter-request under the Administrative Procedure Act (APA), 5 U.S.C. § 702. This argument is unpersuasive.
Section 702 of the APA waives the sovereign immunity of the federal government for a plaintiff aggrieved by a specific agency action. Hawaii v. Fed. Emergency Mgmt. Agency, 78 F.Supp.2d 1111, 1122 (D.Haw.1999). While the APA provides congressional consent to sue the United States in certain circumstances, that consent is limited to a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some “agency action” that affects him in a specified manner. “Agency action” is defined in 5 U.S.C. § 551(13) as “[t]he whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” The “agency action” in question must be a “final agency action.” See 5 U.S.C. § 704. Second, the party seeking review under § 702 must show that he has “suffered] legal wrong” because of the *1343challenged agency action or is “adversely affected or aggrieved” by that action.
Washington has not identified a specific “agency action” that has adversely affected it, but instead points to an “array of administrative actions,” taken pursuant to statute, in which the United States funded, approved, or permitted the very activities about which the United States now complains. State’s Opp’n to Mot. to Dismiss at 9. The court finds this argument insufficient for the purposes of the APA. Washington is not challenging a particular agency action that caused it harm. In fact, Washington has not shown that it “suffered legal wrong” or is “adversely affected or aggrieved” as a result of any particular administrative actions. This failure to allege specific agency action and particular harm precludes waiver of sovereign immunity under the APA. See Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“Under the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.”).
3. Equitable Principles and In rem Jurisdiction
Washington argues next that the United States is subject to the court’s equitable powers under the principle that one seeking equitable relief must first do equity. Washington also argues that the court has in rem jurisdiction to protect a fishery res in its custody and may enjoin the United States from interfering with that custody without implicating the United States’ sovereign immunity. 'Both arguments are unpersuasive. As the United States points out, these arguments do not provide the “specific congressional authority” for the claims asserted by Washington against the United States. See United States v. Shaw, 309 U.S. 495, 502-03, 60 S.Ct. 659, 84 L.Ed. 888 (1940) (declining to extend the complete immunity rule in favor of cross-actions, as there is no specific congressional authority to do so); Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1005 (9th Cir.1998) (“A party bringing an action against the United States ‘bears the burden of demonstrating an unequivocal waiver of immunity.’ ”). Washington has not met its burden. If the treaties ■ are determined to create a duty on the State not to allow its culverts to block fish passage, equitable principles will no doubt play a role in whatever relief the court fashions.2 See United States v. Washington, 157 F.3d 630, 650 (9th Cir.1998). Because equitable principles, however, do not provide the requisite statutory waiver of sovereign immunity, the court does not have jurisdiction over Washington’s counter-request seeking affirmative relief against the United States.
III. CONCLUSION
Because the court finds that Washington has not demonstrated the United States’ waiver of sovereign immunity, it is unnecessary to address the standing issue. The United States’ Motion for Reconsideration and Motion to Dismiss State’s Cross-Request for Determination [docket no. 69-1] is GRANTED.
MINUTE ENTRY — IN CHAMBERS PROCEEDINGS:
Subproceeding 91-01
(March 18, 2002)
Pending before the court is the Quileute Tribe’s motion for continued *1344maintenance of status quo and interim management plan, in which motion the Quileute seek a court order requiring the Makah Tribe and Quinault Nation to maintain the status quo with respect to the 2002 commercial tribal halibut fishery. Last year, on March 20, 2001, the court issued an Order Establishing Interim Halibut Management Plan (the “Plan”), in which the court directed the parties to maintain the status quo. This year’s opening of the halibut fishery is scheduled for March 18, 2002. The Quileute believe that the Makah and Quinault intend to unilaterally change the terms of the Plan without prior approval of this court.
The Makah and Quinault state otherwise. In their response to the Quileute’s motion, the Makah and Quinault state that “[they] intend to abide by the status quo established for the treaty halibut fishery by the Court for the 2001 season, with figures revised to reflect this year’s increased tribal allocation.” Br. at 1.
It appears, therefore, that the Quileute’s motion is moot. Unless or until there is reason to believe that a party’s breach of the Plan is imminent, thereby violating this court’s order to maintain the status quo, the relief that the Quileute seek appears unnecessary.
The motion [docket no. 76-1] is hereby STRICKEN as moot.
STIPULATION AND ORDER AMENDING SHELLFISH IMPLEMENTATION PLAN
Subproceeding No. 89-3 (Shellfish)
(April 08, 2002)
EDWARD RAFEEDIE, District Judge.
In an amended opinion filed September 25,1998, at 157 F.3d 630, the Ninth Circuit Court of Appeals remanded three issues to the District Court for further proceedings: (1) determination of the minimum density of shellfish necessary to establish the existence of a natural bed, (2) the manner of implementing the Tribes’ allocation of shellfish from Growers’ beds, and (3) the manner of resolving disputes to be included in the Shellfish Implementation Plan, (the “Plan”), 898 F.Supp. 1453, 1463 et seq.
To address issues (1) and (2), the Tribes, the Growers, and the State of Washington have stipulated to revisions of sections six and eight of the Plan. The Tribes and the Growers therefore withdraw their competing proposals to revise the Plan that were filed on or about March 11, 2002. To address issue (3), all parties have stipulated to revisions of section 9 of the Plan.
In addition, the parties have stipulated to minor wording changes in other sections of the Plan to conform the language of the Plan to be consistent with the revisions to section 9.
For the convenience of the Court and the parties, Attachment A to this Stipulation and Order is a complete restatement of the Plan, including all revisions stipulated to by the parties.
STIPULATION
1. Plaintiff Indian Tribes, Puget Sound Shellfish Growers, and the State of Washington, stipulate that the revisions to sections six and eight of the Shellfish Implementation Plan, as incorporated into the restatement of those sections in Attachment A, resolve issues (1) and (2) remanded from the Ninth Circuit Court of Appeals, as described above, such that Attachment A should be entered as an Order of the Court amending the Shellfish Implementation Plan found at 898 F.Supp. 1453, 1463 et seq.
2. All parties stipulate that the revision of section 9, as incorporated into the restatement of that section in Attachment A, resolves issue (3) remanded from the Ninth Circuit Court of Appeals, as described above, such that Attachment A *1345should be entered as an Order of the Court amending the Shellfish Implementation Plan found at 898 F.Supp. 1453, 1463 et seq.
ORDER
IT IS HEREBY ORDERED:
The Shellfish Implementation Plan, 898 F.Supp. 1453, 1463 et seq., is hereby amended to read as stated in Attachment A to this Stipulation and Order.
ATTACHMENT A TO STIPULATION AND ORDER AMENDING SHELLFISH IMPLEMENTATION PLAN
REVISED SHELLFISH IMPLEMENTATION PLAN
1. INTRODUCTION
1.1 Objectives of Plan.
The primary objective of this Implementation Plan is to provide a framework, principles, and course of action for effective cooperative management of the shellfish resources subject to Treaty harvest under the Court’s decision of December 20, 1994. In effectuating the rights of the Tribes to take shellfish under the Treaties, this Order also recognizes the State’s responsibilities for conservation of public shellfish resources, subject to the Treaty right to take fish at usual and accustomed places.
1.2 Goals and Procedures.
The Implementation Plan calls for interim and then long term management plans. The management plans are to provide both Treaty and non-Treaty shellfishers, subject to their respective regulatory authorities, the opportunity to harvest their respective shares in an orderly manner, consistent with resource protection. The Plan also provides specific procedures for tribal and non-tribal harvest on State and private lands and waters. To the extent specific procedures in section 6 (applicable to commercial Shellfish Growers) and 7 (applicable to Private Property Owners) conflict with general provisions of the Plan, the relevant specific provisions apply to the Growers and Owners, respectively.
1.3 Application of Law.
All provisions of this Plan and all management plans that are developed from it must comply with the Court’s December 20, 1994 decision. No part of this plan is intended to repeal any prior decision in United States v. Washington.
1.4 Requirement of Coordination Among Tribes.
The Tribes will be responsible for coordination with all affected Tribes in the development of management plans or compliance with the interim plan, below, This requirement, however, shall not relieve any party of the obligation to give any notice required herein to any affected party-
1.5 Tribes Bound.
The Tribes bound by this implementation plan are: Lummi, Nooksack, Upper Skagit, Swinomish, Tulalip, Muckleshoot, Suquamish, Puyallup, Nisqually, Squaxin Island, Skokomish, Port Gamble S’Klallam, Jamestown S’Klallam, Lower Elwha S’Klallam, Makah, Hoh, Stillaguamish, Sauk Suiattle and Quileute. Other Tribes may become signatories to this Plan by the agreement of all parties to the Plan or by order'of the Court.
1.6 Shellfish Sanitation Consent Decree.
The Consent Decree Regarding Shellfish Sanitation Issues, entered by the *1346Court on May 4, 1994, specifies those public health requirements to be applied to Treaty shellfishing activities and establishes an intergovernmental, cooperative system for monitoring, enforcement, and dispute resolution. This Implementation Plan, along with all management plans and agreements reached pursuant to it, shall be developed, applied and interpreted in a manner consistent with that Consent Decree.
1.7 Status of Headings.
The headings in this Implementation Plan are for the convenience of the reader and are not intended to change the substance of the Plan.
2. PRINCIPLES OF SHARING THE SHELLFISH RESOURCE.
2.1Effective Date of Allocation; Mandating Equitable Adjustments.
The effective date of this Implementation Plan for purposes of calculating allocation of shellfish between tribal and nontri-bal harvest shall be the date of this Order, unless otherwise agreed between the State and Tribes. With respect to shellfish on the Growers’ and Owners’ property, the allocation between tribal and non-tribal harvest shall commence on the date a Tribe gives notice pursuant to Plan sections 6.1 and 7.1, respectively.
2.2 Cooperative Management.
Where data is not available to determine the total allowable harvest for purposes of allocation between the Tribes and State, the Tribes and State shall develop a cooperative approach to management with the goal of maximizing harvest and equalizing allocation, consistent with conservation of the resource. This shall apply for both interim and permanent management plans and agreements.
2.3 Sustainable Harvest Biomass.
“Sustainable harvest biomass” means the approximate portion of a shellfish resource that can be harvested from a shellfish population on an annual basis in perpetuity. It is analogous to the “sustained yield” or “harvestable surplus” that biologists, using sound and accepted management methods, determine can be harvested from a shellfish bed, or mobile shellfish population, while preserving the ability of the remaining shellfish population to maintain annual production of the sustainable harvest biomass in perpetuity. For certain species, such as crab and shrimp, the sustainable harvest biomass may be achieved by agreed restrictions on the size or sex taken, and/or quantity or location by limiting the type of gear used for the fishery, ensuring that a portion of the biomass remains unharvested.22
*13472.4 Management Objectives.
“Management Objectives” means the objectives of each party to meet their respective goals using their share of the har-vestable surplus of the resource and the biological goals for the continued long term health of the resource.
2.5 Sharing Provisions.
Each Tribe may take, from natural beds, up to fifty percent of the sustainable harvest biomass of any shellfish species within the usual and accustomed areas for that Tribe. The sharing shall be achieved by coordinated management plans. Such sharing shall be subject to the following provisions:
a.Sharing Sustainable Harvest Biomass. The sustainable harvest biomass of a shellfish bed or shellfish resource subject to the Treaty right shall be determined on an annualized basis or other agreed periodic basis. The sharing of shellfish shall take into account all commercial and noncommercial harvests from the sustainable biomass of shellfish. For intertidal areas, the sustainable harvest biomass shall be shared on a bed by bed basis,23 or on other established boundaries of a public land24 parcel for sharing the shellfish. Where the sustainable harvest biomass cannot be calculated for a species or area, the harvestable amount to be shared shall be determined using the best fishery management information and practices that ensure conservation and maintain production of shellfish in the area harvested.
b. Adjusting Imbalances. Unless otherwise agreed, all management plans adopted pursuant to this Implementation Plan shall include provisions for addressing imbalances in harvest where a party was not afforded the opportunity to attain its share. The means for addressing imbalances may vary depending upon the species, the management techniques used for specific fisheries, and management im-precisions.
c. Independent Management Discretion. The State and affected Tribe(s) shall have discretion to decide their respective management objectives for the harvest of their respective shares, whether commercial, recreational, ceremonial, or subsistence use.
d. Overlapping Usual And Accustomed Areas. Where two or more Tribes have overlapping usual and accustomed areas, then the combination of tribal harvesting shall not exceed fifty-percent of the sustainable harvest biomass, leaving at least fifty percent of the sustainable harvest biomass for non-Indian management.
e. Intertribal Allocation. Allocating the tribal share among affected Tribes shall be determined by the affected Tribes, with the intertribal agreement as appropriate provided to the State. Lack of an intertribal sharing agreement shall not entitle a combination of Tribes to take more than fifty percent of the sustainable harvest biomass of shellfish in a given area.
*1348f. Equal Opportunity. In sharing the opportunity for harvest of a shellfish resource, the State and Tribe may also consider the time of fishing, quality of the shellfish, ease of harvesting, and catch per unit effort for the shellfish involved to ensure that there is equal sharing of the harvest opportunity.
g. Polluted Shellfish And Shellfish Not Available. In allocating the sustainable harvest biomass between the State and affected Tribe(s), shellfish beds that are not presently harvestable due to pollution, development, or other physical causes shall not be counted in the biomass of shellfish beds which can be harvested. This shall not prevent a relay harvest of polluted shellfish in accordance with the Consent Decree Regarding Shellfish Sanitation Issues. Any such relay harvest from a polluted shellfish bed shall be accounted for and allocated separately from sharing of shellfish beds that are approved under Consent Decree.
h. Planted Oyster Beds. Oysters planted on public lands, such as on certain State Parks, that would not exist but for the State having planted those oysters are not subject to a tribal share, The Treaties did not reserve any right to such artificial oyster beds.
i.Beds Staked And Cultivated. To the extent that any shellfish bed on public land is within the definition of “any beds staked or cultivated by citizens” in the Court’s relief applicable to commercial Shellfish Growers, then such shellfish beds on public lands are not subject to tribal sharing.
Further, the provisions of section 6.3, related to the creation of new artificial beds, are applicable if the State proposes to create any new artificial beds on public land,
3. LONG-TERM AND INTERIM MANAGEMENT PLANS FOR THE SHARING OF SHELLFISH RESOURCES ON PUBLIC LANDS OR IN PUBLIC WATERS.
3.1 Management Plans.
Ultimately, tribal and non-tribal harvests of shellfish on public lands and from public waters25 will take place pursuant to management plans.26 Those management plans will be developed between the Tribes and State on a government-to-government basis. Once agreed by the parties to the plan, each such management plan shall be effective without further approval of the Court and shall have the same force and effect as this Order.27
*13493.2 Harvests Included.
All tribal harvests of shellfish by Tribes participating in this Implementation Plan, and all non-tribal harvests in areas included within the collective usual and accustomed grounds and stations of the Tribes participating in this Implementation Plan, will be subject to management plans adopted pursuant to this Implementation Plan.
3.3 Interim Plan Needed.
Because development of management plans is a long term process, an interim plan is needed to govern all shellfisheries pending adoption of permanent plans.
4. INTERIM PLAN FOR STATE AND TRIBAL HARVEST OF SHELLFISH ON PUBLIC LANDS OR FROM PUBLIC WATERS.
4.1 Scope of Interim Plan.
This interim plan shall govern shellfish-eries from the date of entry of this Order until permanent or long term management plans are adopted for particular species of shellfish. The interim plan sets out procedures all persons and parties covered by this Implementation Plan shall follow until permanent or long term management plans are adopted.
4.2 Closure of Commercial Shellfish-eries.
The State and Tribes shall close all commercial shellfisheries and prohibit the commercial landing of all shellfish on public lands or from public waters, within thirty days after entry of this Order, except where a signed interim agreement between the State and all affected Tribes is in place regarding a specific commercial shellfishery.
4.3 Adjusting Non-commercial Fisheries.
After entry of this Order, the State shall adjust non-commercial shellfisheries within forty-five days after any Tribe makes a written request to the Washington Department of Fish and Wildlife (WDFW) to do so, if necessary to ensure that no more than fifty percent of the harvestable amount will be taken by tribal or non-tribal fisheries, including commercial and noncommercial combined. A dispute over the necessity or extent of the adjustment to be made shall be subject to the dispute resolution procedure of sections 4.7 and 4.8.
4.4 Shellfish Beds With Inadequate Data.
For beaches where data is not available for determining the sustainable harvest biomass and allocation between the State and all affected Tribes, the affected Tribes and the State will:
a. manage the beach to allow for affected Tribes to take up to fifty percent of the jointly estimated shellfish harvest opportunity until more specific data is available.
b. jointly identify shellfish beds needing a survey and develop a prioritized list and time line to complete surveys and provide for more accurate management and sharing on these beaches, within efficient biological management.
4.5 Opening A Fishery By Agreement.
Where no interim agreement is in place thirty days after the entry of this Order, a *1350shellfishery closed or adjusted pursuant to section 4.2 or 4.3 may only be opened or enlarged after compliance with the procedures in section 4.6. Shellfisheries may proceed at any time, however, if agreement is reached between the State and all affected Tribes, notwithstanding the procedures otherwise applicable under this section.
4.6 Opening A Fishery Without Agreement.
Where the State or a Tribe desires to open or enlarge a shellfishery that has been closed or adjusted pursuant to section 4.2 or 4.3, it shall comply with the following procedure (unless an interim agreement is in place):
a. Before proceeding, the State and all affected Tribes shall confer at least one time in an effort to reach agreement regarding the proposed fishery.
b. Failing agreement, the party (Tribe(s) or State) proposing to open the fishery shall provide to the other party a proposed regulation for the fishery, in writing, at least fourteen days before the fishery is scheduled to begin. The party proposing the harvest shall be able to provide a sound fisheries management basis for a determination that a harvestable surplus exists and that a fishery can be operated that will not interfere with the sharing principles ordered by this Court. However, this is not intended to shift the burdens, described below, associated with contesting a fishery. The regulation (or other documents provided with the regulation) shall contain, at a minimum, the following information:
(1)The dates and hours the fishery will be open;
(2) The catch area(s) open for harvest;
(3) .The type of fishery to be opened (commercial or non-commercial);
(4) The species to be taken, including an estimate of or upper limit on the amount to be taken and the basis of the estimate;
(5) The estimated effort;
(6) The gear to be allowed;
(7) Provisions for record keeping and harvest reporting, including a schedule to ensure a timely exchange of information; and
(8) Any other information necessary for a specific fishery (such as, for example, daily limits for non-commercial fisheries).
In addition, information regarding enforcement and monitoring plans for the fishery shall be available to the State or Tribes upon request.
4.7 Contesting State or Tribal Regulations and Dispute Resolution.
A Tribe or the State may object to a proposed regulation. The party objecting must state the objection in writing and serve it on the entity proposing the fishery not more than ten days after receipt of the regulation, and at least three working days before the fishery is scheduled to begin. The objection must be based on a well-founded assertion that the proposed regulation would result in:
(1) an overharvest on an allocation or conservation basis in violation of the standards set by the Court in United States v. Washington, or other conservation standards agreed to by the State and affected Tribes; or
*1351(2) otherwise violate this Implementation Plan or other applicable orders of the Court. The objection must state the reasons for the objection, the data on which it is based, and any other pertinent information available to the objecting party.
4.8Dispute Resolution During Interim Plan.
No contested fishery shall begin unless a decision is rendered through the dispute resolution procedures of section 9 to allow the fishery. To the extent necessary, the Magistrate Judge (or Technical Advisor, if applicable, as provided for by § 9.1.2) may order the State or affected Tribe to comply with the allocation and sharing principles described by this order. In addition, the following rules shall apply:
a. The objecting party shall arrange for a hearing to be held before the Magistrate Judge (or Technical Advisor, if applicable) no more than ten working days from the date of service of the objection (see Dispute Resolution, section 9).
b. The Magistrate Judge (or Technical Advisor, if applicable) shall render a decision no more than ten working days after the conclusion of the hearing. No fishery shall open until a decision is rendered by the Magistrate Judge (or Technical Advis- or, if applicable).
c. Where an emergency exists, (for example, where the proponent’s opportunity to fish may be lost by delay), the Magistrate Judge (or Technical Advisor, if applicable) may change the above time limits if the party requesting a change in the time limits has acted in a diligent and timely manner.
4.9 Obligation to Adjust Catch and Comply With Sharing Order.
Where there is a shellfish harvest without agreement, the State or affected Tribe(s) shall either comply with this section as needed, or contest the regulation as provided above. When a Tribe authorizes the harvest-of shellfish without agreement, then the State shall reduce or adjust State regulated harvests as necessary to allow for the proposed tribal harvest. State regulated harvests shall not take a tribal share of shellfish as defined by the sharing principles, above. Tribal or State fisheries opened under this subsection shall not exceed the tribal or State share authorized by this Court and shall be adjusted by the Magistrate Judge (or Technical Advisor, if applicable), if necessary, to comply with and not exceed the tribal or State share.
4.10 Tribal Ceremonial Shellfish Harvests.
Notwithstanding the provisions of section 4.2 through 4.9, a Tribe may open a fishery for unanticipated ceremonial purposes by emergency regulation for a specific time period and for a specific allowable harvest amount.
5. DEVELOPMENT OF PERMANENT PLANS TO GOVERN STATE AND TRIBAL HARVESTS OF SHELLFISH FROM PUBLIC LANDS OR PUBLIC WATERS.
5.1 Order to Develop Plans.
Long term management plans shall be developed separately for each species of shellfish (or groups of related species, such as all crab species) for which fisheries are to take place on public lands or from public waters. Those management plans may be divided into sub-plans for specific geo*1352graphic regions, for types of fisheries (commercial, non-commercial; subtidal, intertidal; etc.), or on any other agreed basis. Each management plan shall govern both tribal and State shellfisheries. Unless otherwise agreed, each management plan shall be subject to comprehensive review and agreement by the State and Tribes every five years.
5.2 Order to Share Information and Establish Planning Committees.
The State and Tribes shall exchange all available information in either side’s possession regarding the status of shellfish populations and fisheries taking place on those populations, in response to reasonable requests for the same, to assist in carrying out their management responsibilities.
5.3 Joint Technical Working Committee.
In addition, the State and Tribes shall establish a joint technical working committee to perform tasks, including the following:
a. Exchange and review new and existing information;
b. Establish assessment methodologies;
c. Identify and prioritize management needs;
d. Develop annual or other periodic management plans.
5.4 Elements of permanent plans.
In addition to complying with the allocation ordered by the Court or otherwise agreeing, certain basic elements should be included in all management plans between State and Tribe(s).
Those elements include:
a. Definitions of relevant terms.
b. Procedures for identification of the location of shellfish resources.
c. Procedures for assessing and estimating shellfish populations and the sustainable harvest biomass.
d. Identification of geographic boundaries to be used for management and allocation of shellfish harvests (management or allocation “units”), including procedures for how and when boundaries can be modified once adopted.
e. Identification of management periods and the duration of management plans.
f. Procedures for establishing the amount to be harvested from each management area.
g. Procedures for establishing how allocations will be measured for each management or allocation unit. In intertidal areas, unless otherwise agreed or determined by the Court, harvest management shall afford both Treaty and non-Treaty harvesters the opportunity to harvest fifty percent of the har-vestable shellfish resource on each public beach, or tideland parcel having established or agreed boundaries, so long as consistent with public health and conservation requirements.
h. Procedures for enacting pre-sea-son and in-season regulations. These will include the amount of notice to be given before a fishery begins and requirements for exchanges of information.
i. Provisions regarding the content of regulations. At a minimum, these will include identification of the manage*1353ment plan under which the regulation is issued, the species to be harvested, the harvest areas, the purpose of the harvest, the gear to be used, the expected effort, the expected harvest, and the dates and times of opening and closing of the fisheries. Unless addressed in a Tribal Ordinance, the regulations will also identify the monitoring system to be used.
j. Provisions regarding law enforcement for Treaty and non-Treaty shell-fishing.
k. Provisions for record keeping and harvest reporting shall include: commercial WDFW shellfish receiving tickets, Treaty Indian receiving tickets, agreed sport harvest estimates, and agreed Treaty Ceremonial and Subsistence estimates.
l. Provisions for identification of tribally authorized harvesters taking shellfish and tribal representatives engaged in surveys, population estimates, and other management activities, including tribal fish managers, as well as tribal enforcement personnel.
m. Provisions for modifications of management plans.
6. COMMERCIAL SHELLFISH GROWERS.
The parties are bound by the definitions prescribed by the Court in this Order, the December 20, 1994 and August 28, 1995 Memorandum Decisions and Orders, and the Ninth Circuit decision, as amended September 25, 1998; and any other relevant order in United States v. Washington. In addition, the parties will agree to a chart showing the minimum density of commercial shellfish species needed to establish the existence of a natural bed (i.e., able to support a commercial livelihood on a sustainable basis) of shellfish, referred to hereafter as Exhibit A. The values included in Exhibit A shall hereafter be referred to as the “natural bed thresholds”. The species to be included in Exhibit A will be agreed to, but will include at least Manila clams, native littleneck clams, butter clams, horse clams, Pacific oysters, Olympia oysters, geoducks, eastern softshell clams and cockles. The natural bed threshold for each species will be determined by geographic regions as agreed by the parties, and by time intervals set forth in Exhibit A or otherwise agreed on by the parties. The parties shall also agree on what constitutes a sustainable commercial harvest, including the appropriate time interval for harvesting to constitute a sustainable commercial harvest, for each species and region The parties shall have six months from the date of this Order to reach agreement on all these matters. Any disagreements remaining after six months regarding the species, geographic regions, time intervals, what constitutes a sustainable commercial harvest, or the natural bed threshold for any particular species, region and time interval, shall be resolved by the dispute resolution procedure of § 9, except that the parties will be permitted a full opportunity to engage in all discovery permitted by the Federal Rules of Civil Procedure as well as to present expert testimony. Upon completion of Exhibit A, by agreement or dispute resolution, the time period set forth in § 6.1.4 shall commence.
6.1. Determination Of Tribal Shellfish Allocation on Grower Beds.
Determination of the quantity of shellfish a Tribe is entitled to harvest from *1354natural beds or enhanced natural beds (i.e., natural beds enhanced by Growers) on property owned or controlled by a Grower is triggered by notice to the Grower of the Tribe’s interest in commencing harvest.
6.1.1 Any Tribe interested in commencing harvest on property owned or controlled by a Grower shall provide notice (“Harvest Notice”) to every other affected Tribe and to the Grower. The notice shall specify the particular property owned or controlled by the Grower upon which harvest is requested to occur, and shall include the name, street and mailing address, and telephone number of a tribal representative. Each such notice, and all information received by the Tribe(s) pursuant to the below, shall be made subject to a nondisclosure agreement in a form to be agreed upon by the parties.
The Grower shall provide the information required by this § 6.1.1 Harvest Notice to the Tribes in writing within sixty days of the receipt of any such tribal notice.
In addition, the Tribes shall be given the opportunity to inspect the beds located on the land owned or controlled by the Growers. The Tribes shall give the Grower fourteen calendar days notice prior to the proposed date of inspection (“Inspection Notice”). The inspection shall occur as noticed by the Tribes and shall take place at a reasonable time. The Grower may accompany the tribal representatives during the inspection.
Upon receipt of a Harvest Notice the Grower shall provide the requesting Tribe with the following:
a. A description of how the Grower demarcates portions of the Grower’s property for purpose of managing or keeping records of shellfishing activities. (Each separately demarcated area shall be referred to as a “management unit” for purposes of this Implementation Plan.)
b. The specific location of each management unit on the Grower’s property.
c. For each commercial species listed in Exhibit A, on each management unit, the Grower shall determine if the sustainable yield density (i.e., the quantity of mature marketable shellfish per square foot that could be harvested on a sustainable basis) at the time enhancement began exceeded the natural bed threshold identified in Exhibit A for the corresponding time period and region. If it is established by agreement or dispute resolution that a shellfish bed had less than the natural bed threshold set forth in Exhibit A at the time that enhancement activities began, any such bed shall be deemed artificial. The Grower shall specify the basis for his or her assertions, including all information used to determine whether a natural bed was present prior to the time enhancement began.
d. For beds asserted to be natural beds (i.e., exceeding the natural bed identified in Exhibit A), the Grower shall specify the quantity of shellfish that the Grower asserts could be harvested on a sustainable basis, absent the Grower’s and prior Growers’ current and historic enhancement/cultivation activities, and the basis for that assertion. The Grower’s operations *1355are not required to cease or be changed in any way while the sustainable harvest level is being determined.
e. Shellfish beds shall be presumed to be artificial (and accordingly not subject to tribal harvest) for all management units where the Grower certifies that the only shellfish beds present are the result of off-bottom or an equivalent form of cultivation.
6.1.2 The Tribes shall review the Harvest Notice data provided by the Grower(s) in § 6.1.1, and any certification under § 6.1.1(e), and may conduct an inspection of the beds, if any, within one year of receipt of the Harvest Notice data. A Tribe may also request that the Grower provide all or some of the information described in subsections 6.1.2(a) through (d), if necessary for the Tribe(s) to determine whether to accept the Grower’s assertions regarding the existence of a natural bed or the sustainable harvest that would exist absent the Grower’s and prior Growers’ current and historic enhancemeni/eultivation activities. That information shall be provided within 90 days of such a request. Unless the Grower’s submission under subsection 6.1.1 is disputed in writing by a Tribe within the one-year period after receipt of Harvest Notice data, during which one-year period the Tribes may evaluate any information provided and conduct any inspection upon a proper Inspection Notice, the Grower’s submission provided under § 6.1.1 shall be final and conclusive,
a.The nature and extent of all enhancement activities undertaken by the Grower and prior Growers’ since enhancement began, if any, along with all documentation of such enhancement activities in the possession of the Grower.
b. To the extent that any of the shellfish present on any management unit are the result of seeding or transplanting of shellfish from other locations, the Grower shall provide all documentation in the Grower’s possession relating to the dates and quantities of all such seeding and transplantation. The source of the seed or transplanted shellfish shall also be identified, including specifically the management unit of that Grower’s property if such property was the source of the seed or shellfish.
c. All harvest records in the Grower’s possession for each management unit, by species. All harvest records that are not specific to particular management units shall also be provided, along with any information the Grower possesses regarding which management unit or units the shellfish were harvested from.
d. All other information in the Grower’s possession that is relevant to (a) each assertion under § 6.1.1 that no natural bed of any species was present at a particular location when the Grower began cultivation or enhancement activities at that management unit, and (b) the sustainable yield of each natural bed of any species that would exist absent the Grower’s and prior Growers’ current and historic cultivation/enhancement activities at that management unit.
6.1.3 If the parties agree on the location of any natural or enhanced natural beds and the quantity of tribal harvest permitted from each such bed, harvest shall *1356commence according to the provisions specified in § 6.2. Harvest shall also commence to the extent that there is agreement as to any bed or group of beds, meaning that the parties need not be in full agreement with respect to all beds prior to beginning any harvest. The quantity of tribal harvest permitted from each enhanced natural bed shall be fifty percent of the sustainable shellfish production (yield) from such beds that would exist absent the Grower’s and pri- or Grower’s current and historic enhancement/cultivation activities. For example, if ten clams per square foot were a sustainable yield sufficient to support a commercial livelihood at the time that enhancement began, and if a 100 square foot Grower’s bed yielded ten clams per square foot on a sustainable basis absent the Grower’s efforts to enhance the output (1000 clams), and that same bed produces fifty clams per square foot as a result of the Grower’s labor (5000 clams), the Tribes would be entitled to fifty percent of the 1000 clams or 500 clams. The sustainable harvestable level shall not include shellfish found in areas that are closed to shellfishing due to pollution.
To the extent of any disagreement which the parties are unable to work out themselves, the parties shall submit the issue to the dispute resolution procedure of § 9. The burden of proof whether a bed is artificial, and the amount of sustainable shellfish production that would exist absent a Grower’s and prior Growers’ current and historic enhancement/cultivation activities, shall be on the Growers.
6.1.4 Times When The Tribes May Give Notice Under § 6.1.1.
Tribes initially have one year after the completion of Exhibit A to give a harvest notice pursuant to § 6.1.1 to Growers subject to the Implementation Plan. After that one-year period, a Grower may operate free of additional notices of tribal claims for a three-year period. At the end of such three-year period, the Tribes shall have a ninety-day period during which they may provide notice pursuant to § 6.1. above. At the end of the ninety-day period, the Grower shall again have a three-year period free from additional tribal notices or claims. The ninety-day open period for giving notice under § 6.1 shall continue to alternate thereafter with a three-year period during which no such notice may be given.
During the ninety-day period available for Tribes to give a Harvest Notice pursuant to § 6.1.1 either a Tribe or a Grower may also give notice requesting a change in the previously agreed or established tribal harvest allocation. Such notice of a requested change must be based upon a change in circumstances affecting the harvestable quantity of shellfish that would be present absent the Grower’s and prior Growers’ current and historic enhancement/cultivation activities. The party asserting the change of circumstances will have the burden of proof to establish the change in circumstances and the burden of proof to establish the new amount of the allocation.
6.2 Harvest Plans.
Not later than thirty days after a final determination has been made of the location of one or more natural beds or *1357enhanced natural beds and the sustainable harvestable quantity of shellfish that could be taken from such natural beds or enhanced natural beds absent the Grower’s and prior Growers’ current and historic enhancement/cultivation activities, whether by agreement or through dispute resolution, the Grower and affected Tribe(s) shall coordinate the development of a harvest plan.
The harvest plan shall contain, at a minimum, the following: (1) the times for tribal harvest; (2) the species and amount of shellfish and the location from which they are to be harvested; (3) the number of tribal harvesters that can safely be present on a bed to conduct a harvest; (4) the appropriate method of access that will avoid damage to the Grower’s crops; (5) the method of harvest, e.g., blanket or spot digging; (6) a process for notification and change of harvest plan due to unusual circumstances and/or catastrophic mortalities.
The Tribe(s) must complete its harvest of allotted shellfish during the time' period prescribed in the harvest plan and shall not be permitted to make up any shortfall in future harvest periods except to the extent otherwise permitted in the harvest plan itself.
The harvest plan shall be compatible with the Grower’s farming operations and protect the Grower’s crops while respecting the tribal treaty right to harvest from natural beds. The harvest plan shall not impose any more restrictions on the Tribe(s) than are necessary to protect the Grower’s operations and crops from harm. To minimize impact to a Grower’s beds, a Grower and the Tribe(s) may agree that the tribal allocation from a particular Management Unit be taken from any alternative Management Unit under that Grower’s control, provided it is within the affected Tribe(s) usual and accustomed harvest areas and the density, quality and accessibility is equal or better than the Management Unit where the natural bed is located. Where the harvest of the natural bed would cause irreparable harm to a Grower’s artificial or enhanced natural bed to the point that the Grower in good faith will not harvest the natural bed, the harvest plan need not provide for tribal harvest from that natural bed. The following are illustrative of such circumstances:
a. An artificial bed of Manila clams cultivated over natural beds of butter or horse clams. Where typically there are multiple year classes of Manila clams in a bed at any one time and the Grower harvests only the mature clams periodically and leaves young clams behind to mature, the harvest of deep horse or butter clams would cause severe damage to the shallow Manila clams on top.
b. A natural bed of Manila clams under an artificial bed of Olympia oysters. Olympia oyster beds are continually culled and only adult oysters are harvested. The bed is never completely barren of Olympia oysters and thus there can be no access to clams underneath such oysters without risk of severe damage to the oysters.
c. When a Grower in good faith does not harvest his or her artificial or enhanced natural bed while awaiting changes in market conditions and harvest of the underlying natural bed would cause severe damage to the artificial or enhanced natural bed.
*1358If the Grower and affected Tribe(s) are unable to negotiate an acceptable harvest plan within a reasonable period of time, the matter may be submitted for dispute resolution pursuant to § 9.
The Tribes will be responsible for coordination of the development and implementation of harvest plans with all Tribes with a right to harvest shellfish from a particular Grower(s). If, during any harvest, the Tribe takes shellfish from beyond the agreed upon boundaries or causes any damage to the Grower’s property, the parties shall attempt to resolve the matter informally. If there is no resolution, the parties shall submit the matter to dispute resolution pursuant to § 9, Growers shall have no duty of care for tribal members on then-property nor shall they be held liable for any nonintentional tort (e.g. negligence) should a tribal harvester sustain an injury while on a Grower’s property.
No Grower may, instead of providing a Tribe the opportunity to harvest, insist that the Tribe take a money payment or take shellfish harvested by the Grower, as the tribal right is a right to take the shellfish by a tribal harvest. Nothing in this Plan, however, shall be interpreted to foreclose the parties from voluntarily negotiating such an agreement; the Grower simply may not force such an agreement on any Tribe.
6.3 Creation of New Artificial Beds or Enhancement of Existing Natural Beds.
Nothing in this Plan shall be construed to limit a Grower’s ability to enhance an existing natural bed or create a new artificial bed. If a Grower plans to enhance an existing natural bed or create a new artificial bed, the Grower shall give written notice to the affected Tribe(s) of his or her intention. The notice shall be provided at least sixty days prior to the proposed enhancement or creation of the bed and shall include the following: the location and species of the proposed bed and a summary of information known to the Grower regarding the history of harvest and enhancement of any species of shellfish listed in Exhibit A on the property. In addition, the notice shall explain the basis for the Grower’s determination that the sustainable yield of shellfish is below the natural bed threshold in Exhibit A or if it is above the threshold, what the sustainable harvest yield is.
If the sustainable yield density (i.e., the quantity of mature marketable shellfish per square foot that could be harvested on a sustainable basis) of the species proposed for cultivation is below the natural bed threshold in Exhibit A the Grower shall be entitled to one hundred percent of the harvest of that species in the future.
If the sustainable yield density exceeds the natural bed threshold from Exhibit A for the species proposed to be enhanced, the Grower may enhance that natural bed, however, a harvest plan must be developed to provide the tribes with fifty percent of the sustainable harvest that would exist absent the Grower’s proposed enhancement activities.
If a Tribe contests the Grower’s conclusion that there is no natural bed (i.e. the Grower’s statement that the species proposed for enhancement or cultivation is below the natural bed threshold set forth in Exhibit A) in the location of the *1359proposed enhanced or artificial bed, the Tribe shall so notify the Grower within thirty days of receiving the notice. The Tribe shall explain the basis for its position, In addition, the Tribe shall be given the opportunity to inspect the location of the proposed bed upon fourteen days notice to the Grower. The inspection shall then occur as noticed by the Tribe at a reasonable time. The Grower may have a representative accompany the Tribe during the inspection.
Where shellfish not proposed for cultivation are identified at levels which exceed the defined natural bed threshold in Exhibit A in the location where the artificial bed is planned, a harvest plan will be developed to provide the Tribes with fifty percent of the sustainable harvest of such natural bed. The tribal harvest level will not increase should the cultivation efforts for the proposed artificial bed species incidentally enhance yields of the natural bed species. If in redesigning his or her beds to create a new artificial bed, a natural bed is to be destroyed, the Grower shall only do so in good faith if it is deemed by the Grower to be necessary for their operations. A Grower will not destroy natural beds in bad faith.
In the event that an unanticipated species of shellfish establishes a new artificial bed as a result of a Grower’s efforts to create a new artificial bed for another species, the Grower shall be entitled to one hundred percent of the harvest of that unanticipated species. An example of this would be cockles settling in geoduck predator exclusion tubes and surviving in an area where there was no natural bed of cockles previously and cockles were not the notified species for artificial bed creation.
If the parties are not able to agree on the presence or absence of a natural bed or the sustainable harvest that would exist absent the Grower’s proposed en-hancemenVcultivation activities from a natural bed, it will be subject to dispute resolution. The Grower shall have the burden of proof. The Grower, pending the resolution of the matter by dispute resolution, will be permitted to continue with any enhancement or cultivation activities at his or her own risk: that is, the Grower may proceed with his or her plans at the risk that the dispute resolution could hold that the proposed area contains a natural bed that will require the development of a harvest plan with the affected Tribe(s).
6.4 No General Regulation of Grower’s activities.
Nothing in this Plan shall be interpreted as interfering in any way with the right of a Grower to engage in predator control activities or in any other activities designed to manage or benefit the Grower’s land. Moreover, nothing in this Plan shall constitute a limit on a Grower’s right to redesign his or her tidelands, even if such redesign results in the destruction of a natural bed (e.g., constructing a dike for Olympia Oysters which causes the substrate to change and eliminates a clam bed).
7. PRIVATE PROPERTY NOT USED FOR COMMERCIAL SHELLFISH GROWING.
Determination of the location of shellfish populations, population estimates, and regulations governing the harvest of shellfish *1360from privately owned tidelands not being used for commercial shellfish production shall be subject to both interim and permanent management plans adopted by the Tribes and the State. Included within those plans, however, shall be additional measures applicable to harvests from privately owned tidelands, as described below,
7.1 Population Surveys And Population Estimates.
Tribes shall survey privately owned tidelands to determine the existence of shellfish populations prior to commencing harvest on a particular tideland.
The Tribes’ surveys and population estimates shall be made consistent with the following rules, unless otherwise agreed between a Tribe and a Property Owner:
7.1.1 A survey to determine whether shellfish are present shall occur on each privately owned beach no more than once every three years. The cost of the survey is to be paid for by the Tribe. The manner and method of any survey must be of the type currently in use by the State of Washington.
7.1.2 An on-site population estimate shall occur no more than once per year. The cost of any estimate shall be paid by the Tribe.
7.1.3 Shellfish population information and data regarding a privately owned beach shall be shared with WDFW and the Property Owner.
7.1.4 Surveys and population estimates shall be done at reasonable times during daylight hours whenever feasible. Night surveys shall occur only when necessary.
7.1.5 Notice of a survey or population estimate shall be provided to the Property Owner no less than one month in advance of the survey or estimate. The notice shall include the name, street and mailing addresses, and telephone number of a tribal representative responsible for the administration of the survey or population estimate.
7.1.6 Notice shall be provided by certified mail, fax, or personal service. The Tribes may chose the type of service. The Private Property Owner shall provide the address or phone number to the Tribe where that Owner will accept service of the notice. If such information is not provided by the Private Property Owner to the Tribe, notice need only be by publication. In addition, survey schedules will be made available on a telephone hotline operated by the Tribe, if the Tribe has the means to provide such a hotline.
7.1.7 The Property Owner and the State may have representatives present during the survey and population estimate.
7.1.8 The Tribes need not conduct a comprehensive survey or population assessment of all properties potentially subject to tribal harvesting before being permitted to exercise Treaty harvest rights. However, as to a particular property, a survey or population assessment must be done prior to any tribal harvest.
7.1.9 Nothing in this Plan shall prevent a Private Property Owner from conducting his or her own survey or pop*1361ulation assessment. The Private Property Owner may then, if the results of such a survey or estimate differs from the results of the tribal survey or estimate, contact the Tribes in writing and inform them of any discrepancy. If the parties are unable to resolve the matter, it shall be submitted to the dispute resolution procedures of § 9 according to the procedure set forth in this Plan.
7.2Tribal Harvest.
In addition to the rules governing tribal harvests that are contained in management plans developed with the State, tribal harvests from private tidelands shall also be governed by the following requirements:
7.2.1 A tribal regulation opening private property for shellfish harvesting shall take into consideration the density of shellfish present and the size of the area to be harvested and limit the number of persons who may harvest accordingly.
7.2.2 The regulation opening private property for shellfish harvesting shall provide for monitoring and enforcement of the harvest. The regulation shall also ensure that proper sanitation procedures will be followed by all tribal harvesters.
7.2.3 The regulation opening private property for shellfish harvesting shall indicate the quantity of shellfish that may be taken, limits that apply to individual harvesters, if any, the purpose of the harvest (commercial, subsistence, ceremonial, or a combination), and the dates and times when harvest may take place.
Harvests may occur at night only if necessary. All harvests of properties less than 200 feet in width shall be limited to five days per calendar year. If a property is 200 feet or wider along the beach front, the number shall be increased by one additional harvest day per calendar year for every additional fifty feet of property.
7.2.4 There shall be no upland access to the private tidelands. The Tribes may access the private tidelands by water, across public lands, or by public rights of way only. Nothing in this Plan, however, shall prevent a Private Property Owner from voluntarily agreeing to upland access, although no Tribe has a right to insist on such access from the Tideland Owner.
7.2.5 Notice of a tribal harvest on private property shall be provided to the Property Owner and WDFW no less than one month in advance of the harvest. The notice shall include the name, street and mailing addresses, and telephone number of a tribal representative responsible for the administration of the harvest.
7.2.6 Notice shall be provided by certified mail, fax, or personal service. The Tribes shall chose the method of service. The Private Property Owner shall provide the address or phone number at which such notice will be received. If no address is provided, notice may be by publication.
7.2.7 If during any harvest, the Tribe damages the property of a Tideland Owner or in any way fails to harvest as stated in the notice provided to the Owner, the Owner may submit the issue to the dispute resolution procedures of § 9 as set forth in this Plan.
*13627.3Dispute Resolution.
A Private Property Owner may challenge a proposed tribal harvest of shellfish from their property through the dispute resolution procedure of section 9 by complying with the following requirements:
7.3.1 An objection to a proposed tribal harvest must be made in writing to the Tribe’s fishery department, stating the nature of the objection, the reasons for the objection, any data upon which the objection is based, and identifying any documents upon which the objection is based.
7.3.2 An objection must be based on a claim that the Tribe’s plan for harvest is not consistent with the Court’s orders in this case, an applicable management plan developed pursuant to this Implementation Plan, or other applicable law.
7.3.3 An objection to a proposed tribal harvest must be received by the Tribe not less than five working days before the harvest is scheduled to begin.
7.3.4 If the Property Owner posts a bond in the amount of $10 per lineal feet of waterfront of the property at issue, the Tribe may not harvest pending the outcome of the dispute resolution.
7.3.5 The Magistrate Judge (or Technical Advisor, if applicable) shall have discretion as to whether a decision will be made based upon the written submissions of the parties or after a live hearing.
7.4 Rights of Private Property Owners
Nothing in this Plan shall be interpreted to limit in any way the rights of a Private Property Owner to build docks or other structures on their property.
8. MISCELLANEOUS PROVISIONS.
8.1 Proposals To Establish New Artificial Shellfish Beds.
8.1.1 The State shall exercise powers granted under State law regarding permits needed for shellfish enhancement (shellfish transfer permit, import permit, Hydraulic Project Approval). A person seeking to plant shellfish seed, place gravel or other substances, or otherwise enhance natural shellfish populations through additions to the natural environment in or beneath state waters, shall comply with these requirements. When an application is received to undertake such an activity, the authorizing Department shall within five working days notify the Tribes by mailing a copy of the application to each affected Tribe’s fishery department.
8.1.2 Before granting such a permit application, the appropriate State Department may ascertain the status of existing shellfish populations, if any, where the activity is proposed to occur, to determine whether a natural shellfish bed exists. Where a Department of the State performs the assessment of existing shellfish populations, the Department shall establish procedures whereby the Tribes shall be afforded the opportunity to participate in the assessment of the status of the existing shellfish populations. Where the State chooses not to perform the assessment, the Tribes may perform an assessment.
8.1.3 Whenever the State proposes to grant a permit under section 8.1.1, it *1363shall notify the Tribes at least twenty working days before issuance of a permit. The State shall maintain copies of all documents that establish the basis for the granting of the permit and make them freely available to the Tribes at any Tribe’s request. A decision to issue a permit, and the State’s conclusion, if any, regarding the presence of a natural shellfish bed, may be challenged by a Tribe and is subject to the dispute resolution procedure if agreement is not otherwise reached.
8.1.4 Any person to whom a permit is issued to enhance shellfish production for commercial purposes shall be subject to any applicable provisions of this plan and the Court’s orders to the extent of tribal Treaty rights.
8.2 Proposals To Lease Tide lands Or Bedlands For Purposes Of Commercial Shellfish Growing.
The purpose of this section is to address state leasing of tidelands and bedlands for shellfish harvest and production and to insure any Treaty right to harvest shellfish from such leased premises is addressed prior to leasing. Public lands under lease shall be considered the same as property owned by the lessee during any lease, and are subject to this court’s provisions for private property or Growers’ property. The following additional provisions apply for all new or renewal leases for shellfish harvest or cultivation.
8.2.1 State Notice to Tribes.
Whenever the State proposes to lease tidelands or bedlands for purposes of a commercial shellfish operation, then the State shall give affected Tribes notice of the lease application and provide a date certain when the Tribes can communicate to the State regarding the assertion of a Treaty harvesting right to shellfish on the property, in accordance with this section. Notice to the affected Tribes shall include a description of the use to be authorized by the lease. The State shall evaluate the land to be leased to determine whether a natural bed exists. For leases where no enhancement activity has occurred recently enough to affect the density of shellfish beds, the determination of the existence of a natural bed shall be based upon whether the sustainable yield density exceeds the natural bed threshold identified in Exhibit A for the corresponding species, region and time period. For leases where past or present enhancement activity has affected the current density of shellfish beds, the determination of the existence of a natural bed shall be based upon a determination of whether the sustainable yield density at the time enhancement began exceeded the natural bed threshold identified in Exhibit A for the corresponding species, time period and region. The Tribes shall be afforded the opportunity to participate in the State’s assessment of whether a natural bed exists on the land. The results of any state evaluation shall be communicated to the Tribes at least thirty calendar days before a lease is issued and shall specify the date that the state proposes to enter into a lease. The underlying data and documents shall be made available to the Tribes.
8.2.2 Tribal Assertion of Treaty Right on Leased Land.
If an affected Tribe(s) contends that there is a natural bed subject to Treaty harvest by the Tribe on property to be *1364leased, the affected Tribe may notify the Washington Department of Natural Resources (DNR) in writing within thirty days after the state evaluation is provided to that tribe, or ten days before the proposed date of leasing, whichever is earlier in time, The notice shall describe the shellfish to which the Tribe asserts a Treaty right, the basis for that information, and the area and shellfish involved. Upon timely receipt of such notice, DNR shall not lease the property until compliance with paragraph 8.2.3. or 8.2.4, below. If a Tribe does not provide notice under this paragraph to DNR after DNR has complied with paragraph 8.2.1, then the Tribe shall not take shellfish from the leased property for the initial term of that lease, or ten years, whichever is shorter.
8.2.3 State and Tribal Agreement.
If a Tribe has provided notice under paragraph 8.2.2, the State and Tribe and/or prospective lessee may agree to a plan where the Tribe’s Treaty right to take shellfish from the land to be leased is addressed before issuance of the lease. Any such agreement in writing shall be binding on the State, Tribe, and other persons who enter it for the term of the agreement.
8.2.4 Dispute Resolution.
Absent an agreement between the State and Tribe and/or proposed lessee for tribal harvest from the bed to be leased, a Tribe or the State may seek dispute resolution. The dispute shall be heard by the Magistrate Judge pursuant to section 9, and the lease shall not be issued until the dispute resolution procedure has been completed. At such dispute resolution, the Magistrate Judge shall determine whether or not the leased activity authorizes the taking of shellfish subject to Treaty harvest. If the lease does not, then the lease may be issued. If the land to be leased contains shellfish subject to Treaty harvest, then the Magistrate Judge shall determine the tribal harvest of a Treaty share of such shellfish consistent with the sharing principles within paragraph 6.1.3, or allow the State and Tribe to reconsider agreement regarding tribal harvest.
8.2.5State Renewals.
Whenever the State proposes to renew a lease of tidelands or bedlands for purposes of a commercial shellfish operation, if the presence or absence of a natural bed has not previously been determined, the procedures of part 8.2.1 shall be followed as if a new lease is being proposed. If an affected Tribe has previously not objected to leasing of the property after notice pursuant to Section 8.2.1, then the State need only provide such Tribe notice of its intent to renew the lease. If the lease only allows the lessee to grow and harvest a species known not to reproduce naturally in the lease location (such as Pacific Oyster beds outside areas of Hood Canal), or to grow and harvest shellfish cultivated by an off-bottom or equivalent method and there has been no natural bed identified on the site during past leases, then the State may satisfy paragraph 8.2.1 by informing the affected Tribe of the nature of the proposed lessee use. The Tribe, however, may inspect such property or assert a claim under 8.2.2, if there is a natural bed subject to a Treaty harvest.
*13659. DISPUTE RESOLUTION.
9.1 Magistrate Judge Proceedings
Any dispute arising under the implementation plan shall be brought before the Honorable Ricardo S. Martinez, United States District Court Magistrate Judge for the Western District of Washington, at 1010 Fifth Avenue, Suite 304, Seattle, WA 98104 (“Magistrate Judge”) or a successor Magistrate Judge appointed by the Court.
9.1.1 Unless the dispute is initially heard by a Technical Advisor as provided for by paragraphs 9.1.2 and 9.1.3 of this stipulation, the Magistrate Judge will hear and determine disputes arising under the implementation plan.
9.1.2 For a dispute that raises technical questions of fishery management and/or allocation, the parties may file a joint request with the Magistrate Judge that such dispute be heard by a Technical Advisor. Based upon such request, the dispute will be heard, as soon as possible, by the Technical Ad-visor selected by the Court after nominations by the parties. If the parties do not agree that a Technical Advisor is necessary, the dispute will be heard by the Magistrate Judge who has the authority to decide the issues himself, appoint experts, and/or refer the matter to the Technical Advisor.
9.1.3 If the dispute is heard by the Technical Advisor, the Technical Ad-visor will establish procedures consistent with procedures described in paragraph 9.2 of the implementation plan. The written decision of the Technical Advisor shall resolve the dispute unless a party to the case files a petition for review of that decision before the Magistrate Judge within twenty days of the filing of the original decision. Such petition shall state the basis for seeking review, identify the alleged error in the decision, and identify the relief sought. Upon a timely petition, the Magistrate Judge shall conduct a de novo review and shall consider additional briefing, proceedings, evidence, and argument offered by the parties, if any. During the consideration of any petition filed under this subsection, the written decision of the Technical Advisor remains in effect and shall govern the parties’ conduct unless and until the Magistrate Judge overturns the written decision or expressly stays its enforcement.
9.1.4For disputes where a written decision by the Technical Advisor does not resolve the dispute, a written decision of the Magistrate Judge shall resolve the dispute unless a party to the case files a petition for review of that decision before the Honorable Robert S. Lasnik, United States District Judge, 1010 Fifth Avenue, Suite 911, Seattle, WA 98104, within twenty days of the filing of the original decision. Such petition shall be considered pursuant to the procedures established in Federal Rule of Civil Procedure 72(b), except for the time permitted to file the petition for review, as stated above. During the consideration of any petition filed under this subsection, the written decision of the Magistrate Judge remains in effect and shall govern the parties’ conduct unless and until the Court overturns the *1366written decision or expressly stays its enforcement.
9.2Procedure For Hearings Before the Magistrate Judge.
The Magistrate Judge will establish the procedures to be used in hearing disputes; those procedures may be informal, but shall include the following, except where specified otherwise in this implementation plan:
9.2.1 An opportunity for all parties to a dispute to present their evidence and arguments in writing and orally.
9.2.2 An opportunity for all parties to a dispute to respond to or challenge the evidence and arguments presented by other parties.
9.2.3 The opportunity for all parties to the dispute to compel the production of persons or documents from other parties that are necessary for full consideration of the matter in dispute.
9.2.4 In addition to considering evidence presented by experts called by a party to the dispute, the Magistrate Judge may consult with persons with technical expertise as necessary to the resolution of disputes. The persons consulted shall not be associated with the Tribes, any agency of the State of Washington (other than academic institutions) or any other person affected by the outcome of the dispute, absent agreement of all parties to the dispute. Advice received from a technical expert shall be shared with all parties to the dispute.
9.2.5 The Magistrate Judge shall issue a written opinion stating the decision and the reasons for the decision within ten working days of the conclusion of the hearing or the submission of evidence by the parties to the dispute, whichever is later, unless agreed otherwise by the parties and the Magistrate Judge. In fashioning resolution to a dispute, the Magistrate Judge shall have no authority to eliminate the Treaty fishing rights of an entire Tribe. The Magistrate Judge may, however, order that the' Tribe pay damages or may implement some other appropriate remedy.
9.2.6 The Magistrate Judge shall not be required to hear or consider disputes in the order in which they are presented. The Magistrate Judge shall consider a dispute on an emergency or expedited basis when a delay would make the dispute moot due to the closure of a fishing season or other equivalent circumstance.
Exhibit A
Minimum density of commercial shellfish species necessary to constitute a natural bed (e.g., able to support a commercial livelihood on a sustainable basis) at the time cultivation of a bed began.
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*1368[[Image here]]
*1369[[Image here]]
ORDER DENYING THE SAMISH TRIBE’S MOTION TO REOPEN JUDGMENT
Subproceeding No. 01-2
(December 19, 2002)
BARBARA JACOBS ROTHSTEIN, District Judge.
THIS MATTER comes before the court on the Samish Indian Tribe’s (hereinafter “Samish” or “Tribe”) motion, filed pursuant to Rule 60(b)(6), to reopen the judgment in United States v. Washington, 476 F.Supp. 1101 (W.D.Wash.1979), aff'd 641 F.2d 1368 (9th Cir.1981). In this motion, the Tribe argues that its 1996 federal recognition from the Department of Interior is an “extraordinary circumstance” that warrants reexamination of its treaty fishing rights under the Treaty of Point Elliott, which rights were previously denied the Tribe. Nine of the 22 treaty tribes (referred to herein as the “Opposition Tribes”), fearing dilution of their fish harvest and disruption of long-standing allocation and management agreements, oppose the Samish’s motion, as does, by separate pleading, the United States.1 The Opposition Tribes and the United States believe both that there are procedural bars to the Samish’s motion and that the Tribe’s federal recognition is not an “extraordinary circumstance” that justifies reopening this case.
Having reviewed the documents filed in support of and in opposition to this motion, and considered the parties’ oral arguments, the court finds and rules as follows:
I. BACKGROUND
A. Treaty Fishing Rights
In 1970, the United States, on its own behalf and as trustee for seven Indian tribes, brought suit seeking an injunction requiring the State to protect those tribes’ share of runs of anadromous fish. Seven other tribes intervened as plaintiffs. In 1974, United States District Judge Boldt ruled that all fourteen tribes had treaty fishing rights under several Indian treaties, including the Treaty of Point Elliott, which entitled them to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, *1370384 F.Supp. 312 (W.D.Wash.1974) (“Washington I”). Washington I declared the treaty fishing rights of only those “14 Indian entities” that had participated as plaintiffs in that proceeding and that were defined as “Treaty Tribes” in the ruling.2 384 F.Supp. at 405. Washington I contemplated that additional Indian entities might become parties in the case if any such entities demonstrated that it was “entitled to exercise fishing rights under the treaties construed herein within the Western District of Washington.” Id.
On September 20, 1974, shortly after Judge Boldt’s initial decision, the Samish Tribe, as well as the Duwamish, Snoho-mish, Steilaeoom, and Snoqualmie Tribes, moved to intervene in United States v. Washington, to assert their own treating fishing rights. Judge Boldt referred the issue of the Samish’s treaty status to Magistrate Judge Robert Cooper sitting as a Special Master. After a five-day trial, Magistrate Judge Cooper determined that the Samish was neither a treaty tribe nor a political successor to the signatory treaty tribe.
The Samish appealed this determination to Judge Boldt, who thereafter conducted a de novo evidentiary hearing. The Samish submitted additional evidence to Judge Boldt, who heard argument in January 1977. Judge Boldt issued his decision in March 1979, ruling that the Samish were not a Treaty Tribe as defined in Washington I and that its members were not entitled to exercise treaty rights under the Treaty of Point Elliott. United States v. Washington, 476 F.Supp. 1101, 1111 (W.D.Wash.1979) (“Washington II”). Judge Boldt found that the Samish Tribe was not a successor in interest to any treaty signatory and had not maintained an organized tribal structure. Id. at 1106. Judge Boldt also concluded that the Samish were not entitled to exercise treaty rights because the Tribe was not “federally recognized” by the United States Department of Interior (DOI). Id. at 1111.
The Samish appealed Judge Boldt’s ruling to the Ninth Circuit, arguing inter alia that Judge Boldt improperly adopted without substantial change the proposed findings and conclusions submitted by the United States. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). The Samish also appealed Judge Boldt’s Finding of Fact No. 27, in which Judge Boldt found that the Samish had “not lived as a continuous separate, distinct and cohesive Indian cultural or political community.” 476 F.Supp. at 1105. Because Judge Boldt had in fact adopted most of the United States’ proposed findings of fact and conclusions of law, the Ninth Circuit applied close scrutiny to the Samish’s claims. The Ninth Circuit concluded that Judge Boldt had applied an incorrect legal test in determining whether a tribe had treaty rights. Rejecting the notion that federal recognition or nonrecognition was dispositive, the Ninth Circuit instead stated that the “single necessary and sufficient condition for the exercise of treaty rights is” whether a “group of Indian descendants ... have maintained an organized tribal structure.” 641 F.2d at 1372.
Applying this test to the record, the Ninth Circuit concluded “[ajfter close scru*1371tiny, ... that the evidence supported [Judge Boldt’s] finding of fact” that the Samish had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communities].” Id. at 1373. As for the effect of the Samish’s nonreeognition, the court stated that “[n]onrecognition of the tribe by the federal government ... may result in loss of statutory benefits, but can have no impact on vested treaty rights.” Id. The court, therefore, affirmed Judge Boldt because “the district court correctly resolved this question despite its failure to apply the proper standard.” Id. at 1374. The Samish appealed this decision to the United States Supreme Court, which denied certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).
By the early 1980s, therefore, the Samish Tribe had failed to persuade at least three judicial bodies — Magistrate Judge Cooper, Judge Boldt, and the Ninth Circuit — that it was entitled to be a party to this case.
B. Federal Recognition Proceeding
In 1972, after Congress began conditioning eligibility for most programs benefit-ting Indians upon status as a federally recognized tribe, the Samish first sought federal recognition. See 25 U.S.C. §§ 450-450n. In 1978 the DOI published final regulations governing the procedure for official recognition of Indian Tribes. Apparently, the DOI took no action on the Samish’s original petition until after the 1978 regulations were promulgated, and the Samish filed a revised petition under the new regulations in October 1979. Thereafter, the Bureau of Indian Affairs (BIA) conducted an independent inquiry into the Samish’s recognition petition. The recognition petition was denied first in 1982, when the Assistant Secretary for Indian Affairs first published a preliminary determination concluding that the Samish should not be recognized. Samish objected to this decision and submitted a response and additional information and, after several years of delay, the Deputy to the Assistant Secretary for Indian Affairs issued a final decision in 1987 denying federal recognition to the Samish. 52 Fed. Reg. 3709 (Feb. 5,1987).
In 1989, the Samish filed a federal action in this district, alleging th’at the BIA’s denial of its recognition petition violated the Tribe’s due process rights and that the Samish was the successor in interest' to the treaty Samish Tribe for purposes of showing entitlement to federal recognition. Greene v. Lujan, No. 89-645Z (W.D.Wash.).3 The Tulalip Tribe sought to intervene in this case, believing that if Samish were to gain federal recognition, then treaty fishing rights would likely follow. Judge Zilly denied Tulalip’s intervenor application but permitted it to participate as amicus curiae: On an interlocutory appeal, the Ninth Circuit affirmed the denial of the Tulalip’s interve-nor application on the grounds that “the calculus for tribal treaty rights under Ninth Circuit law is separate and distinct from that for federal acknowledgment.” Greene v. United States, 996 F.2d 973, 976-77 (9th Cir.1993). Thus, the Ninth Circuit reasoned, Tulalip’s interest in the recognition proceeding did not rise to in-tervenor status since “[e]ven if' [the Samish] obtain federal tribal status, [they] would still have to confront the decisions in Washington I and II before they could claim fishing rights.” Id.
On the merits, Judge Zilly held that the Samish had been denied due process in the recognition proceedings and vacated the decision denying recognition and remand*1372ed the recognition petition to the DOI for formal adjudication under the Administrate Procedure Act (APA). February 25, 1992 Order, 1992 WL 583059. The Ninth Circuit affirmed Judge Zilly’s due process ruling, requiring an APA due process hearing for the Samish. Greene v. Babbitt, 64 F.3d 1266 (9th Cir.1995).
On remand, Administrative Law Judge (ALJ) David Torbett of the DOI Office of Hearings and Appeals conducted an APA due process hearing on the Samish’s recognition proceeding. After an eight-day hearing, on August 31, 1995 Judge Torbett issued recommended findings of fact and conclusions of law in favor of Samish recognition.
In his recommended decision, ALJ Tor-bett found that the Samish met all seven mandatory criteria necessary for federal recognition as an Indian tribe. See 25 C.F.R. § 83.7 (1993). Reviewing ALJ Tor-bett’s decision, the Assistant Secretary for Indian Affairs rejected some of his findings and conclusions, but ultimately ruled in favor of Samish recognition on November 8, 1995. The Samish appealed these rejections, and Judge Zilly reinstated the finding of fact and conclusions of law that had been rejected and affirmed the Samish recognition decision. Greene v. Babbitt, 943 F.Supp. 1278, 1288-89 (W.D.Wash.1996).
Now, having achieved federal recognition, the Samish set out again,4 pursuant to Rule 60(b)(6), to reopen the judgment in this case.
II. DISCUSSION
A. Rule 60(b)(6) Standards
Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from an otherwise final judgment. Rule 60(b) states in relevant part: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons.... ” The Rule then identifies five specific provisions, for such things as mistake, discovery new evidence, fraud, etc., that could be grounds for relief under the Rule. Subsection (b)(6) acts as a “catch-all” provision, stating that a court may grant relief from a judgment if there is “any other reason justifying relief from the operation of the judgment.” This provision applies only when there are reasons for relief other than those set out in the more specific clauses of Rule 60(b). See Liljeberg v. Health Servs. Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).
Rule 60(b)(6) “does not particularize the authority adequate to enable [courts] to vacate judgments whenever such action is appropriate to accomplish justice, [but it should] only be applied in extraordinary circumstances.” United States v. Washington, 98 F.3d 1159, 1163 (9th Cir.1996) (internal citations and quotations omitted). The Ninth Circuit has cautioned that the Rule should be used “sparingly as an equitable remedy to prevent *1373manifest injustice” and only “where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” Id.
Rule 60(b) is designed to allow courts to reconsider both factual findings and legal conclusions under the limited circumstances permitted by the Rule. Thus, even though the issue of the Tribe’s treaty status has been previously litigated, this court is not barred from reconsidering Washington II were it to find the existence of circumstances under the Rule that warrant it.5
B. Motion to Reopen
While numerous issues are raised in this matter, the court is of the opinion that there are two principal issues: (1) whether the Samish’s federal recognition is an “extraordinary circumstance” that justifies reopening the judgment in Washington II; and (2) whether the interests in finality are paramount to other interests. Each is discussed below.
1. “Extraordinary Circumstances ”
The primary inquiry on any motion under Rule 60(b)(6) is whether there are “extraordinary circumstances” that warrant vacating the judgment. United States v. Washington, 98 F.3d at 1163. Thus, the burden is on the Samish to show that their achievement of federal recognition constitutes an “extraordinary circumstance” in this context.
From the outset, the Samish face a significant burden because it has been well established that federal recognition does not necessarily restore Samish treaty rights. See Washington I, 520 F.2d at 692 (“Nonrecognition of the tribe by the federal government ... may result in loss of statutory benefits, but can have no impact vested treaty rights.”). Indeed, the Ninth Circuit has been clear that it “regards the issues of tribal treaty status and federal acknowledgment as fundamentally different.” Greene, 64 F.3d at 1270. The Ninth Circuit denied the Tulalip Tribe’s attempt to intervene in the Samish recognition proceeding because it “disagreed with their position that Samish success [in the recognition proceeding] would undermine the finality of the Washington II decision.” Id. at 1271. Put even more sharply, the Ninth Circuit has stated that “[fjederal recognition is not a threshold condition a tribe must establish to [exercise treaty rights]” and that the Samish’s recognition would have a “marginal influence at best” on the determination of whether the Tribe may exercise treaty rights. Greene, 996 F.2d at 976, 978. Thus, the Samish’s posi*1374tion that federal recognition is an “extraordinary circumstance” in this case is seemingly at odds with the Ninth Circuit’s pronouncements to the contrary.
Indeed, the kind of “extraordinary circumstances” usually alleged in Rule 60(b)(6) motions are not present here. That is, the Samish have not alleged that the Washington II proceeding was in any way inadequate or defective, precluding the Samish from adducing all evidence to support its claim to treaty fishing rights. The absence of such allegations is significant. The Samish have not identified, nor has the court’s research revealed, an instance in which Rule 60(b)(6) was successfully invoked where there was no allegation or finding that the underlying proceeding had fundamental flaws. Cf., e.g., Liljeberg, 486 U.S. at 863, 108 S.Ct. 2194 (setting aside the judgment because the trial judge had a conflict of interest and failed to recuse himself); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (setting aside denatu-ralization judgment because at the mov-ant was unable to defend himself in the proceeding due to imprisonment); Ervin v. Wilkinson, 701 F.2d 59, 61-62 (7th Cir.1983) (“Where the moving party has been prevented from presenting the merits of his case by the conduct of which he complains, Rule 60(b) relief is most appropriate.”).
The Samish argue, nonetheless, that the “nature and quality of [its] recognition” is the kind of circumstance that could warrant reexamining Washington II and that the evidence submitted during the recognition proceeding was “substantially different” — broader and more detailed — than the evidence it submitted in Washington II.6 Samish contend that a “more detailed historical picture” emerged in the recognition proceeding and that, by meeting the standard for recognition, it also met the standard for exercise of treaty fishing rights under Washington I.7
None of these arguments is persuasive. Whatever the “nature and quality” of the Samish’s recognition, the fact remains that, as discussed supra, a tribe’s recognition, or nonrecognition, has no impact on whether it may exercise treaty rights. The standard for treaty rights and for tribal recognition, while similar, are not identical, with “each determination serving] a different legal purpose and ha[ving] an independent legal effect.” Greene, 996 F.2d at 976. To gain federal recognition, the Samish had to establish the requisite social cohesion and community, continuity of political authority and an*1375cestry from a historic tribe.8 See 25 C.F.R. §§ 83-1 thru 83.7(c). To assert fishing rights, the Samish must demonstrate that they descended from a treaty signatory and “have maintained an organized tribal structure.” Washington II, 641 F.2d at 1372. Three different judicial bodies in Washington II considered the evidence the Samish submitted in that proceeding and concluded that the Tribe had not “clearly established the continuous informal cultural influence [that is] required.” Washington II, 641 F.2d at 1373. Thus, the Samish cannot rightly argue that having met the recognition standard, it has, a fortiori, met the standard for as-' serting treaty rights.
Furthermore, the Samish are precluded from arguing, as they appear to, that the evidence it submitted in the recognition proceeding should persuade this court that Washington II was wrongly decided. If, as the Samish assert, the evidence it submitted in the recognition proceeding was different and more comprehensive, creating a more “detailed historical picture,” such a fact does not entitle the Tribe to relief under Rule 60(b). First, such a claim would be properly brought pursuant to Rule 60(b)(2), which requires that motions based on newly-discovered evidence be filed within one year of the judgment. Furthermore, in addition to the timeliness problem, it is not clear that the different evidence touted by the Samish was, in fact, “newly discovered” or that it could not have been produced during the Washington II proceeding. Cf. Frederick S. Wyle P.C. v. Texaco Inc., 764 F.2d 604, 609 (9th Cir.1985) (stating that “movant is obliged to show not only that this evidence was newly discovered ... but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing”) (internal quotations omitted). There must be an end to litigation, and for that reason Rule 60(b) does not provide parties another chance at relitigating matters based on evidence gathered several years after a final judgment.
The court is mindful that the Samish’s recognition decision was excessively delayed and that, had the Samish been recognized at the time it sought to intervene in Washington II, the outcome might have been different.9 Such speculation, however, cannot be grounds for granting relief under Rule 60(b).10 In any event, other *1376Washington tribes, including the Stilla-guamish and the Upper Skagit, exercise treaty fishing rights even though not federally recognized. Washington I, 520 F.2d at 692-93. Furthermore, while the Samish’s non-recognition was dispositive to Judge Boldt in Washington II, the Ninth Circuit, after conducting its own review employing the proper standard, concluded that the Samish had not met the standard for exercising treaty rights.
In conclusion, the court finds for the foregoing reasons that the Samish’s 1996 recognition is not an “extraordinary circumstance” that justifies reopening the judgment in Washington II.
2. Finality concerns
An equally compelling factor weighs against reopening the judgment in this case: the interest in finality.
The United States and the Opposition Tribes point out that, in reliance on Washington II, this court has approved many state-tribal fish management plans, mediated and decided intertribal disputes on treaty fishing issues, determined treaty tribes’ usual and accustomed fishing places, and decided allocation issues. See, e.g., United States v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985) (collecting court’s finding and orders including, inter alia, 1985 Puget Sound Salmon Management Plan and agreements between the Tulalip Tribe and other Tribe). The United States and Opposition Tribes rightly observe that management of fish harvest involves a delicate balancing of interests within the overall framework and that these management plans — achieved after considerable time and expense — would be upset by the addition of another Tribe at this late stage.
The Samish, however, do not believe that granting the instant motion will “upset the fabric” of United States v. Washington, arguing that state tribal fish management plans and allocation decisions will suffer minimal disruption should the Samish ultimately be granted treaty status. The Samish’s accommodating intentions notwithstanding, the background of this case shows that this assertion rings false. The parties have worked diligently and extensively over the many years this case has been active to establish management frameworks that accommodate the fiercely competing needs of the various tribes and of the State. The issues have been complicated by the increasing scarcity of fish stocks and the need to preserve and conserve certain fish species. This case over a 28-year period has proven to be a battleground where many of these issues have been fought and solutions hammered out. The Samish have not convincingly rebutted, nor could they, the unmistakable conclusion that, at this stage, their addition would wreak havoc on hard-wrought management agreements and plans.11
*1377The Supreme Court has recognized that the interests of finality, as embodied in the policies of stare decisis and res judicata, are at their zenith in cases, such as this one, which involve natural resource allocation. See Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) (rejecting attempt to reopen a water rights decree to accommodate new claims to water); Arizona v. California, 460 U.S. 605, 620, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (noting that major purpose of the case was “to provide the necessary assurance to states of the Southwest ... of the amount of water they can anticipate to receive from the Colorado River system” and that “[rjecalculating the amount of practicably irrigable acreable runs directly counter to strong interest in finality in this case”). Just as states in the West rely on the finality of water-rights agreements, so too do the 22 treaty tribes in this case, as well as the State of Washington, rely on the finality of fish-allocation and countless other agreements that have been entered in this case. In reliance on the finality of such agreements, the treaty tribes have invested significant time and capital to secure their take of what, for some, might be their only natural resource. Changes in allocation agreements (on which some tribes have relied for years) could have serious repercussions for already financially hard-pressed Tribes.
III. CONCLUSION
While the court recognizes that the Samish Tribe’s quest for treaty fishing rights, beginning in the mid-1970s and concluding here, has taken them down a long and difficult path, and appreciates the commitment and perseverance demonstrated in this pursuit, there have been 28 years of post-Washington I litigation in this case, all under the assumption that Washington II was binding and conclusive. Reexamining the Samish intervention issue could require changing scores of orders and management plans in this case, thereby affecting the rights of 22 other treaty tribes as well as the United States and the State of Washington. Finality and certainty require that long-resolved issues in this case remain undisturbed.12
Now, therefore, the motion [docket no. 39-1] is hereby DENIED.
ORDER DENYING THE SAMISH TRIBE’S MOTION FOR RECONSIDERATION
Subproceeding No. 01-2
(February 07, 2003)
Before the court is the Samish Indian Tribe’s motion for reconsideration of the court’s December 19, 2002 Order Denying the Tribe’s Motion to Reopen. In that order, the court found that two factors weighed against the Samish’s request to reopen the judgment in United States v. Washington (“Washington II ”): first, that the Samish’s 1996 federal recognition was not an “extraordinary circumstance” for purposes of Rule 60(b)(6), and, second, that the interests in finality were substantial given the numerous fish allocation and management agreements that would be *1378disrupted by the Samish’s intervention. In the instant motion, the Samish ask the court to reconsider both conclusions.1
As to the first, the Samish contend that the court committed manifest error in ruling that the Tribe’s recognition was not an “extraordinary circumstance” since, in the Tribe’s paraphrase, “the Ninth Circuit clearly ruled that the Samish Tribe would be given a full and independent opportunity to litigate its treaty status if it obtained recognition.” Mot. at 6. The Ninth Circuit never made such a ruling. In Greene v. United States, 996 F.2d 973 (9th Cir.1993), the Ninth Circuit concluded that the Tulal-ip Tribe could not intervene in the Samish’s recognition proceeding because recognition did not implicate treaty rights. In response to the Tulalip Tribe’s arguments, the Ninth Circuit acknowledged that the Samish, if recognized, might next seek to assert fishing rights, but the court concluded that, even so, the Tulalip’s treaty interests were not “practically impaired” since recognition and treaty rights were unrelated. Id. at 978. The court never even suggested that the Samish would be entitled to reopen Washington II upon obtaining recognition. Any other construction of the Ninth Circuit’s statements in Greene is untenable.2
The court’s rulings regarding the effect of the Samish’s recognition are not, or so it would appear, what truly prompted the instant motion. The primary focus of the Tribe’s motion concerns whether the Tribe’s intervention would in fact be unduly disruptive to the many management and allocation agreements in this case. The Samish assert that necessary information concerning such agreements was not forthcoming from other tribal parties, precluding the Samish from addressing the disruption concerns in settlement proposals. The Samish further state that at oral argument on the motion, counsel for the Tulalip Tribe revealed a “new fact” — namely, that all such agreements and orders are matters of public record. This statement, according to the Samish, contradicted previous representations by tribal counsel that the contents of such agreements were unavailable. Having now examined these agreements, the Samish submit a proposal that purports to “address all possible disruptions its participation in U.S. v. Washington might entail.” Mot. at 3.
Notwithstanding the Samish’s efforts to craft a workable, minimally disruptive framework for the Tribe’s intervention, the court is unpersuaded that the interests in finality can or should be overcome in this case. Under any scenario, the Samish, in addition to the other newly recognized Tribes likely to seek intervention, would necessarily inject themselves into sensitive agreements and upset current treaty tribes’ allocations. The Samish assert, however, that they are “initially” interested only in “ceremonial and subsistence treaty fishing rights” and that such an exercise of fishing rights would not “cause financial impacts to other tribes.” Mot. at 4. But the Samish themselves admit they will likely want to engage in commercial *1379fishing one day and that intra-tribal allocation disputes requiring court intervention might therefore arise. Mot. at 4-5. The court remains of the opinion that finality is an overriding concern in this case.
Such finality concerns, however, were not the sole or even the chief basis for denying the Tribe’s motion to reopen. The court recognizes the effort the Samish have made to draft a practicable framework for intervention, but such efforts are futile unless the Tribe can demonstrate that, under Rule 60(b), it should be allowed to reopen the judgment. To focus on mitigating the effects of reopening a judgment, rather than on whether reopening a judgment is procedurally allowable, is to put the cart before the horse. In the earlier Order, the court noted the reasons that Rule 60(b)(6) could not be used to relieve the Samish of the final judgment in Washington II. Among those reasons is that, unlike in other instances in which Rule 60(b)(6) was successfully invoked, the Tribe has never challenged the fairness of the Washington II proceeding. During that proceeding, the Samish had a full and fair opportunity to prove its entitlement to fishing rights and failed to do so. In its motion to reopen, the Tribe never argued that there was a fundamental defect in that earlier proceeding, which defect constitutes an “extraordinary circumstance.”
The court need not reiterate all of the bases for denying the Tribe’s motion to reopen. It is enough to note, however, that, even putting aside the finality concerns that the Samish seek to allay in the instant motion, there are ample reasons to deny the Tribe another chance at litigating its treaty status. No less than three courts have decided the issue against the Samish. Rule 60(b) was not designed to allow parties numerous bites at the same apple absent certain extraordinary circumstances not present in this case.
CONCLUSION
For the foregoing reasons, the motion for reconsideration [docket no. 69-1] is hereby DENIED.
ORDER DENYING EMERGENCY MOTION FOR CONTINUED MAINTENANCE OF STATUS QUO AND FOR 2003 MANAGEMENT PLAN
Subproceeding No. 91-1
(February 26, 2003)
Before the court is the Quileute Tribe’s Emergency Motion for Continued Maintenance of Status Quo and for 2003 Managements Plan. This subproceeding involves the commercial halibut treaty fishery of twelve Indian Tribes. In this motion, the Quileute seek, pursuant to this court’s March 20, 2001 Order, to enforce the status quo with respect to the upcoming tribal halibut fishery. The motion was prompted by indications that the Makah Tribe intended to conduct an unrestricted halibut fishery on March 1, 2003. This date, according to the Quileute, contravenes the status quo, which requires that the fishery not begin until March 15, 2003.
The treaty halibut fishery has largely been managed through a series of annual intertribal harvest management plans.1 The parties have historically utilized three sub-fisheries to harvest halibut allocation. The first is a 48-hour “unrestricted opening,” which imposes no limits on catch vessels. The second is a thirty-day “restricted opening,” in which each vessel is allowed to land no more than 500 pounds of halibut per day. This sub-fishery has always begun at the same time as the unrestricted opening. Finally, there is a *1380variable “mop-up” period, designed to exhaust the allocation, which takes place after the restricted fishery is completed.
The tribes have varying stakes in each sub-fishery because “fishing grounds are at diverse locations, and because the fishers’ habits and capabilities vary.” 2001 Order at 3. For similar reasons, whether the halibut fishing commences earlier or later in March can affect the tribes’ allocation, as well as the market price for the halibut. The inclement weather more likely to occur earlier in March tends not to affect those, like the Makah, with larger fishing vessels. Conversely, tribes such as Quileute, who have smaller vessels, prefer later opening dates when the weather is better and conditions are, therefore, safer.
Inasmuch as the tribes have, to some degree, discordant interests, allocation and timing disputes have arisen in the past as the opening of the halibut fishery approached. On March 20, 2001, the court held that if the parties “wish to substantially change the status quo and cannot reach a consensus, the interested tribes should present the issues early enough to allow for a hearing and careful consideration by the court.” Order at 8 n. 3. Thus, last-minute changes to the fishery management plans are not allowed.
Neither the Quileute nor the Makah believe that them proposed opening date constitutes a change to the management plan. The Quileute characterize the status quo as requiring that the tribes’ halibut fishery open in mid-March, as it has in the last few years. The Makah, however, believe the status quo calls for commencing the halibut fishery on the date set by the International Pacific Halibut Commission (IPHC).
It is clear that the opening of the coast-wide halibut fishery is determined by the IPHC, which, on January 27, 2003, announced a March 1, 2003 coast-wide opening date for treaty and non-treaty fishermen. The opening date for the halibut fishery chosen by IPHC has varied; the treaty tribe’s adherence to that date has not. In the last few years, the opening date has been in mid-March. From 1988 through 1993, the opening date was March 1. None of the tribes has presented evidence that the opening of the commercial tribal halibut fishery has ever strayed from the date chosen by IPHC.
In arguing that March 15 should again be the opening date for the treaty tribes, the Quileute maintain that there has never been an agreement to make the opening date of the unrestricted sub-fishery coincide with the opening date established by the IPHC. This argument is unavailing. Whether by agreement or tradition, the opening of the unrestricted and restricted subfisheries has occurred on the date selected by the IPHC for the opening of the coast-wide fishery.2 In fact, the Quileute themselves recognize that the tribes’ halibut fishery has always begun on the date selected by the IPHC. See Quileute’s Reply Br. at 2 (“The restricted fishery has always opened at the same time as the unrestricted fishery; and it has always opened on the first day fishing was allowed by the IPHC) (emphasis in original). In arguing for a mid-March opening date, the Quileute offer reasons that the March 1 date might disadvantage them. Such equitable factors, while undoubtedly of prime *1381concern to the Quileute, cannot alter the guiding principle in this case — namely, that the status quo not be altered absent a proper adjudication by the court. Maintaining the status quo for present purposes requires that the unrestricted and restricted fishery commence on the date selected by the IPHC, which, this year, is March 1, 2003.3
CONCLUSION
For the foregoing reasons, the Quileute Tribe’s Emergency Motion for Continued Maintenance of Status Quo and for 2003 Management Plan [docket no. 89-1] is DENIED.
ORDER DENYING MOTION TO STRIKE
Subproceeding No. 01-2
(March 13, 2003)
Before the court is the plaintiff Tribes’ motion to strike certain portions of the Samish Motion for Reconsideration, which motion requested that the court reconsider its December 19, 2002 Order denying the Samish Tribe’s motion to reopen.1 On February 7, 2003 the court denied the Samish’s motion for reconsideration. In this motion, the plaintiff Tribes, joined by the State of Washington and the United States, ask the court to strike those portions of the Samish’s reconsideration motion referencing statements and events at the Meet and Confer meeting of March 8, 2002, and the inclusion of a “settlement” proposal contained in pages 4 and 5 of the Samish’s motion. The Samish oppose the motion to strike, arguing that neither its reference to statements at the settlement conference nor its proposal was improper under Federal Rule of Evidence 408.2
In its motion for reconsideration, the Samish Tribe referenced statements made by counsel for the Tulalip Tribes at the Meet and Confer meeting, arguing that those statements were inconsistent with counsel’s statement at oral argument on the Samish’s Rule 60(b)(6) motion. In referencing those statements, the Samish intended to show that, prior to the court’s adjudication of their motion to reopen, *1382they were under the false impression that the management plans in this ease were not part of the public record. According to the Samish, they could not, therefore, make specific proposals to mitigate the disruption concerns raised by the court.3 The plaintiff Tribes now argue that the Samish’s reference to these statements is in violation of Federal Rule of Evidence 408, which provides that “[e]vidence of conduct or statements made in compromise negotiations is ... not admissible.”
The plaintiff Tribes’ argument misses the mark. As the Tribes themselves recognize, “the Rule applies to disclosure of conduct that reveals the details of the settlement negotiations ... [and] not to conduct that does not bear on the dispute.” Reply at 5 n. 4. The statements at issue have no bearing on the substance of the settlement negotiations and are, to that extent, not within the ambit of Rule 408. The court therefore declines to strike these statements from the Samish’s motion.
Next, the plaintiff Tribes argue that the Samish’s proposal to minimize the disruption concerns, put forth in the body of their motion for reconsideration, is also an improper submission of settlement matters. In that proposal, the Samish propose, inter alia, that they would agree to exercising treaty rights of the Lummi, Swinomish and Upper Skagit Tribes under existing orders applicable to those Tribes. The Samish further state that they would limit the exercise of those rights, at least initially, to ceremonial and subsistence purposes.
The Samish believe their proposal has now become characterized as a settlement proposal (partly as a result of the court’s request to the opposition Tribes), which was not their intention. Instead, the proposal was, according to the Samish, intended to show the court that a workable framework could be drafted to minimize the disruption caused by their intervention.
The court finds nothing improper about the submission of this proposal. It is clear that the Samish did not advance this proposal for settlement purposes but to address the court’s concern regarding the potential for disruption to the management plans caused by the Samish’s intervention. That the proposal took on the nature of a settlement proposal is no doubt due in part to the court’s request to the opposition Tribes to consider whether the proposal addressed any of their concerns. In sum, the court finds that the proposal was properly submitted and that there is no basis to strike it from the record.
CONCLUSION
For the foregoing reasons, the motion to strike [docket no. 76-1] is hereby DENIED.
ORDER DENYING THE STATE OF WASHINGTON’S MOTION FOR A PRELIMINARY INJUNCTION
Subproceeding 03-1
(April 02, 2003)
Before the court is the State of Washington’s (the “State”) motion for a preliminary injunction, requesting that the Hoh Tribe’s fishery targeting wild steel-head close after 10:00 a.m. on March 25, *13832003.1 The Hoh Tribe oppose the motion, arguing that, if it closes its steelhead fishery at that time, the Tribe will be prevented from taking its 50% share of the steel-head run.
The Hoh Tribe started its winter steel-head fishery on December 2, 2002 and plans to complete its fishery on April 2, 2002. The non-treaty fishery began on December 1, 2002 and is planned to continue until April 15, 2002.
The State and Hoh Tribe met several times over the last few months to discuss technical as well as allocation issues with respect to the winter steelhead fishery. The parties successfully reached agreement regarding the technical issues of run-size and appropriate escapement numbers. The parties agreed for this year that the expected Hoh River run size is 8,350 steel-head, comprised of 5,310 wild and 3,040 hatchery steelhead. The escapement goal for the wild steelhead was set at 2,400. In total, 5,950 steelhead are available for harvest from the winter run, which breaks down to 2,975 steelhead each for the treaty and non-treaty fisheries. The Hoh Tribe’s proposed fishing schedule estimated a yield of 3,002 steelhead, which is approximately a 50% share of the winter steelhead run.
In this motion, the State does not assert that the Hoh Tribe will exceed its share of the combined stocks of wild and hatchery-bred fish that comprise the harvestable winter steelhead run. Instead, the State contends that the Hoh’s fishery plan will result in the Tribe’s taking more than its 50% share of the wild steelhead component of the fishery. Thus, the instant dispute is whether, when allocating shares of harvestable steelhead, hatchery and wild shares are to be aggregated and considered together or whether, as the State argues, the two components are considered separately, in which case the State is entitled to a 50% share of the wild component. As noted above, there is no dispute about whether the Tribe’s overall allocation of steelhead will be approximately 50%. Indeed, the State admits that, “[i]f the Court [does] approve grouping the two runs together, the State’s argument about fair allocation would obviously be moot.” Reply Br. at 2.
On such a limited record and shortened time, the court is not prepared to make a finding of fact as to whether steelhead should be considered separately or together for allocation purposes. As the State points out, the allocation of treaty and non-treaty shares is based upon forecasts of particular “runs” of fish, which the.court has defined as “[a] group of anadromous fish on its return migration, identified by species, race and water of origin.” United States v. Washington, 384 F.Supp. 312, 405 (W.D.Wash.1974). There appears to be some question about whether hatchery and wild steelhead should be considered part of the same “run.”
While the State, argues that the historical practice has always been to treat the two components separately, the historical evidence appears inconclusive. The biologists for the Tribe and the State differ on whether the hatchery and wild steelhead have historically been separately allocated. Cf. 2d Freymond Decl. ¶ 4 (State’s fish biologist) (“The Hoh Tribe and [the State] have historically managed hatchery and wild steelhead as two distinct runs.”); with Jorgensen Deck, ¶ 10 (Tribe’s biologist) (“Steelhead are managed separately for *1384wild and hatchery components to ensure that the wild escapement is reached, but that has no effect on achieving allocation of the steelhead run.”); and Grayum Decl. ¶ 3 (Director of Fishery Services for the Northwest Indian Fisheries Commission) (“As a general rule, treaty/non-treaty allocation is computed on a species by species and river by river basis ... With an allocation unit, wild and hatchery fish are not allocated separately unless there is an agreement to do otherwise.”).2
Therefore, inasmuch as the present record is inconclusive, the court is of the opinion that the State has not carried its burden to show that an injunction should issue and thereby alter the status quo. Indeed, at least two factors weigh against issuing the requested relief. First, it appears that, on at least some occasions in the past, the State and tribal fishery managers have agreed to a separate allocation for hatchery and wild steelhead. It is undisputed, however, that there was no such agreement this year, and none of the previous allocation agreements are binding on this winter’s steelhead fishery.
Second, the evidence suggests that there will be no harm to future harvests from allowing the Hoh to continue its fishery. Even if the Tribe completes its fishing season, there will be an excess escapement of approximately 369 wild steelhead (beyond the 2400 goal). Thus, even if the Hoh continue its fishery schedule, the escapement goals for wild steelhead will nonetheless have been exceeded.
CONCLUSION
Assuming the allocation issue raised in the State’s motion has not already been resolved in prior Orders, that issue requires consideration of factors that have yet to be fully presented to the court. Inasmuch as this allocation issue is capable of repetition, it therefore remains ripe for consideration. Thus, as stated in the March 25, 2003 telephonic hearing, unless the parties are able to resolve the issue themselves, they must agree on a schedule for bringing the issue to the court for full and proper consideration. Such schedule should be filed with the court no later than April 4, 2003,
For the foregoing reasons, the State’s motion for a preliminary injunction [doc. no. 1-1] is DENIED.
ORDER ON MOTION FOR A TEMPORARY RESTRAINING ORDER
Subproceeding No. 89-3
(October 10, 2003)
RICARDO S. MARTINEZ, United States Magistrate Judge.
This matter is before the Court for consideration of a Temporary Restraining Order (TRO), under authority conferred by the Stipulation and Order Amending Shellfish Implementation Plan ¶ 9.1 (April 8, 2002). Three tribes, namely the Tulalip Tribes, the Swinomish Indian Tribal Community, and the Upper Skagit Indian Tribe (“Tribes”) seek a Court order enjoining the Suquamish Tribe from engaging in crab fishing in Puget Sound Crustacean Management Region 2E during the current season, which began October 1, 2003. Oral argument was heard on October 9, 2003, and the Court now finds and rules as set forth below. The parties are familiar *1385with the factual and legal background of this dispute, so only a brief summary of facts relevant to the current situation will be given. Citations to the documents shall reference the pages as numbered in the movants’ exhibits unless otherwise specified.
(1)Pursuant to the amended Shellfish Implementation Plan entered in this case April 8, 2002, the State and tribes have created a Puget Sound Dungeness Crab Management Agreement, in order to “ensure that treaty Indian and State fishers ... shall be accorded the opportunity to harvest their shares of shellfish as determined by the court in this case.” Ex. 38. The Puget Sound Dungeness crab population is a limited, and dwindling, resource, and it is in the best interests of both tribal and non-tribal fishermen, as well as the general public, to ensure that it is managed properly to “preserve, protect, and ORDER ON MOTION FOR A TRO-1 perpetuate the ... resource.” Ex. 34. Many tribes beyond those represented here are potential signatories to this agreement. Ex. 49-51.1 Specific harvest plans are negotiated for each region; the one at issue here controls Region 2E. A harvest management plan for Region 2E for the period from April 1, 2003 through March 31, 2004 (“Plan”) was circulated among the State and five named tribes, the Lummi2, the Suquamish, the Swinomish, the Tulalip, and the Upper Skagit. Ex. 65. The Plan allocates a total of 850,000 pounds of crab to the tribal fishery, with the quota for the summer season (April 1 through September 30) being 650,000, and the remaining 200,000 pounds allocated to the winter fishery beginning October 1, 2003. Ex. 62. The 2E plan was signed on behalf of the Tulalip Tribes on April 29, 2003; the Swinomish Tribal Community on May 4, 2003; and the Suquamish Tribe on September 28, 2003. Ex. 65, 66, 67. The Suquamish did not participate in the summer crab fishery in Region 2E.
(2) The final level of management for Region 2E is an Intertribal Harvest Sharing Agreement. Ex. 68. This agreement was negotiated among the three Tribes, movants here, for the 2003 summer crab season. The Suquamish tribe is not a party to this agreement. By its own express terms, it was in effect only until the beginning of the non-treaty winter commercial fishery, and no later than October 1, 2003.
(3) On September 30, 2003, the Suquamish tribe issued regulations opening crab harvesting in crab management areas within Region 2E to Suquamish crab fishers. Ex. 86-87. The Tribes now seek a TRO enjoining Suquamish from exercising their tribal fishing rights in Region 2E because they have not complied with the Crab Management Agreement, the 2E Plan, or the Intertribal Harvest Sharing Agreement. Specifically, they assert,
Recent actions by Suquamish to issue crab fishing regulations in Region 2E are in contravention of the Implementation Order, State and tribal plans, and the Shellfish Stipulation. They threaten to undermine the balance struck in favor of maintaining the status quo for tribal fishing. Absent intervention by this Court, the court formulated plan for cooperation and orderly fisheries will be violated and the ability of the Tribes to *1386ensure adequate harvest and conservation of shellfish in these areas for their fishermen will be irreparably harmed.
Motion for TRO, p. 6. Although the motion was brought under F.R.Civ. Proc. 65(b)(1), notice and a hearing were provided to the parties, so it shall be treated as one under F.R. Civ. Proc. 65(a).
(4) The parties agree that the standard for obtaining a TRO, as for a preliminary injunction, is well-settled: To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits together with the possibility of irreparable harm, or (2) that serious questions are raised, and the balance of hardships tips sharply in favor of the moving party. Rucker v. Davis, 237 F.3d 1113, 1117 (9th Cir.2001).
(5) The movant Tribes have not met either prong of this test. First, they have failed to show a threat of irreparable harm. Counsel for the Tribes represented at the hearing that of the original 192,000 pounds of crab allocated to the winter fishery, only 60,000 remain uncaught. Eighty boats from the Tribes are eligible to fish for the remaining crabs; the addition of eight Suquamish boats will not affect the catch per boat in any significant way. Nor will the resource suffer any adverse impact; the total amount of crab to be harvested has already been determined and remains the same, no matter how many tribes participate in the catch. As for the probability of success on the merits, the Court is not persuaded by the Tribes’ arguments that the Suquamish are seeking to seriously alter the status quo by fishing in Region 2E. The Tribes assert that the Suquamish have never fished for crab in the waters of Regions 2E. TRO motion, p. 5. The Suquamish, in response, state that they did fish for crab throughout Region 2 prior to the year 2000, when it was divided into 2E and 2W. Declaration of Robert Purser. Since that time, each time Suquamish sought to issue regulations to open crab fishing in Region 2E, the Tulalip Tribes would threaten to initiate a suit to adjudicate their primary rights to that region. Id. Therefore, Su-quamish did not attempt to' assert their rights, until this winter season.3
(6) As to the second prong of the test, the Court finds that serious questions would be raised by a tribe’s circumvention of the orderly process set forth in the plans and agreements. However, while Suquamish’s actions may not have been in compliance with the spirit of the harvest management plan, neither were they technically in violation. As there is no actual requirement as to when the harvest management plan was to be signed, the Su-quamish signature on September 28, 2003, constituted their agreement to abide by the terms of the 2E plan, and entitled them to issue regulations to fish for crab in the winter season. The Tribes’ argument that Suquamish failed to participate in negotiating with the State on the Crab Harvest Management Plan for region 2E is not persuasive. The Plan, as adopted, bears a signature line for the Suquamish tribe, and clearly contemplates their participation. Ex. 65. The Suquamish state that, while *1387they did not attend meetings, they did review drafts of the 2E Plan, and discussed it with other tribes. Declaration of Robert Purser. No explanation was offered at the hearing on the motion as to why the Suquamish did not attend meetings, but a passing reference by tribal counsel to a “hostile environment” is cause for some concern. As to the intertribal harvest sharing agreement, there were conflicting statements at the hearing as to whether the Suquamish tribe was even invited to participate.4 However, since this agreement is no longer in force as of October 1, 2003, it is not necessary for the Court to consider it further.
Although no formal testimony was taken at the hearing, it appears from the representations of counsel that both sides have participated to some degree in the breakdown of communication and cooperation that brought them to Court. Thus, it cannot be said that the balance of hardship tips sharply in favor of either party.
(7) Accordingly, the Tribes’ motion for a TRO or preliminary injunction is DENIED.
ORDER ON MOTION FOR RECONSIDERATION
Subproceeding No. 89-3
(November 24, 2003)
The Court, having considered the Tulal-ip Tribes and Swinomish Tribal Community’s Motion for Reconsideration, together with the supporting and opposing memo-randa, does now find and ORDER:
On October 27, 2003, the Tulalip Tribes and Swinomish Tribal Community (“Movants”) filed a motion for reconsideration, asking the Court to reconsider its October 10, 2003 Order denying Movants’ motion for a TRO. Movants contend that reconsideration is required because the Court either overlooked or misapprehended certain facts and issues, as described below. Movants also assert that the Court erred in applying the traditional TRO standards. However, the motion was clearly designated and noted as a motion for a temporary restraining order, and was properly treated as such by the Court.
Movants assert that irreparable harm will ensue if the Court does not enforce the Revised Shellfish Implementation Plan, specifically ¶¶ 14.6 to 4.9 regarding opening a disputed fishery. However, the Court’s ruling denying the TRO was based on a finding that ¶ 4.6 does not apply, because this is not a disputed fishery that “has been closed or adjusted pursuant to section 4.2 or 4.3.” Motion for TRO, Ex. 14. It is, instead, a fishery opened by agreement under ¶ 4.5, as stated in the Puget Sound Dungeness Crab Management Agreement. Motion for TRO, Ex. 14, 33. Movants also argue that the Su-quamish are in violation of that Agreement, because, they contend, it requires that “a tribe cannot commence fishing ... until they have signed this Agreement and jointly developed [a] regional management plan.” Motion for Reconsideration, p. 5. However, as Movants later acknowledged in their reply memorandum, this is not the language of the Agreement. Instead, it states that no tribe may commence fishing “until they have signed this Agreement and a jointly developed regional management plan.” Motion for TRO, Ex. 36, *1388While this language does imply that the Agreement contemplates joint development of a management plan, it does not absolutely require the active participation of all signatories in that development. Therefore the Suquamish, in signing the Region 2 East Harvest Plan on September 28, 2003, were not in violation of this provision of the Crab Management Agreement, and Movants are not entitled to a TRO based on the alleged violation.
Next, Movants contend that allowing the Suquamish to fish for crab in Region 2E will upset the status quo, because the Su-quamish have never before fished for crab in Region 2E. The Suquamish, while conceding that they have not fished for crab in Region 2E since its creation in 2000, explain that every time they have issued regulations seeking to open a fishery there, they have been threatened with a lawsuit. Declaration of Robert Purser re: Opposition to Motion for TRO. Nowhere have Movants addressed this allegation. In the absence of a countervailing explanation, the court declines to uphold a status quo that, according to the Suquamish, has been created and maintained by intimidation. Although Movants have alluded to an agreement between the parties that the purpose of the Region 2 division into 2 East (2E) and 2 West (2W) was to give the Suquamish exclusive fishing rights in Region 2W, and the Movants exclusive rights in 2E, they have not provided any proof of such agreement, either formal or informal.
Movants also object on the basis that these proceedings do not constitute an adjudication of primary rights in Region 2E. To the extent that footnote 3 in the court’s Order could be construed as such a finding, Movants’ request to strike the footnote is GRANTED. The balance of the motion for reconsideration is DENIED. However, although Movants have not met the standards for granting a TRO, the Court is concerned that the underlying issues in this matter have not been resolved, and may arise again. Therefore, the Court acknowledges Movants’ alternative request for an “appropriate remedy” through the dispute resolution procedures set forth in ¶ 9.2 of the Revised Shellfish Implementation Plan. Counsel shall contact the courtroom deputy for Magistrate Judge Martinez, either Lowell Williams or Laurie Cuaresma, at 553-7416 to schedule a conference at the earliest possible date.
. The Lummi Nation initially supported a 2001 FMP that contained some of the terms proposed by the Makah, along with additional safeguards designed to preserve late season harvest opportunities. However, on February 22, 2001, the Lummi Nation filed a brief joining in the Inside Tribes' opposition to the Coastal Tribes’ motion and joining in the Inside Tribes' request for entry of an interim plan based on the 2000 FMP.
. The court notes that the fishery opening date as proposed by all parties was March 15, *13352001. To the extent that tribal halibut fishing has not yet commenced, the FMP adopted by the court shall be enforced as if March 20, 2001 was the projected opening date, and all subsequent dates shall be altered accordingly. In the event that fishing has already begun, the remainder of the halibut fishery shall be conducted according to the terms of the FMP adopted herein.
. The Quileute separately filed a motion for maintenance of status quo and entry of an order adopting interim management plan, in which they urged the court to manage the fishery in keeping with the 2000 FMP as adjusted for the increased TAC. Thereafter, the Quileute joined the Quinault and Makah in requesting entry of the proposed FMP submitted with the Coastal Tribes’ motion. In light of that development, the court STRIKES the Quileute's motion [docket 56-1] as withdrawn.
. There is a distinct possibility that the parties will return to the court in succeeding years seeking further orders establishing management regimes for this, or other, treaty fisheries. In the event that the parties wish the court to issue an order adopting a long-term fishery management scheme, or wish to substantially change the status quo and cannot reach a consensus, the interested tribes should present the issue early enough to allow for a hearing and careful consideration by the court. Nevertheless, the parties’ good faith attempt to resolve the instant matter with the assistance of Magistrate Judge Arnold is both noted and appreciated.
. Washington’s motion for judgment re: law of the case separately seeks judgment as a matter of law on this affirmative defense, which is also embraced by the United States’ motion to strike.
. Should it devolve that the State’s liability should be reduced because of federal actions, the court can consider this in fashioning relief.
. Equitable principles could conceivably require that federal culverts contributing to fish run degradation be repaired or replaced.
. This definition corresponds with the relief provided for tribal harvest of anadromous fish: the court defined the harvestable number of fish in terms of that amount that would not impair the amount of fish needed to maintain the run at existing levels. See generally Washington I, 384 F.Supp. at 405-407, 409, 417.
This definition, however, is intended to apply to the order sharing shellfish harvests, not to change existing standards regarding the limited application of state laws to treaty Indians exercising treaty fishing rights.
. Where a shellfish bed straddles publicly and privately owned land, the provisions of this section apply to the shellfish on public land only.
. For purposes of this Implementation Plan, "public land(s)” means any land owned by the State, or any of its subdivisions or agencies, unless such land is being leased to a Shellfish Grower.
.The relief provided in the above section applies to all shellfish species located on or in all public owned lands, (such as clams, oysters, geoduck clams, and mussels that are embedded in or attached to public owned lands), and to all mobile shellfish species that live in the waters of the State, (such as crab, shrimp, sea cucumber, sea urchin, squid, octopus, and others).
Separate provisions of the Implementation Plan define the State's role in tribal harvest of shellfish on private tidelands, or commercial Shellfish Grower lands.
. As indicated in § 7, such interim and long-term management plans shall also contain provisions specifically applicable to harvest from non-commercial, privately owned tidelands.
. To the extent the parties have already entered interim agreements, those agreements have the same status as future management plans or agreements under this Plan.
. The State of Washington has filed a brief statement of non-opposition to the Samish's motion,
. On appeal, the State challenged Judge Boldt's confirmation of Treaty rights for the then-unrecognized Stillaguamish and Upper Skagit, Sauk-Suiattle tribes, which thereafter attained federal recognition between Judge Boldt’s decision and the appeal. The Ninth Circuit affirmed Judge Boldt's conclusion that these tribes were entities possessing treaty rights, holding that "[njonrecognition of the tribe by the federal government ... can have no impact on vested treaty rights.” United States v. Washington, 520 F.2d 676, 692 (9th Cir.1975).
. Bruce Babbitt was later substituted for Manuel Lujan as Secretary of the Interior.
. An earlier, unrelated attempt to set aside the judgment in Washington II occurred on November 22, 1993, when three Tribes, including the Samish, moved for relief under Rule 60(b)(6) on the grounds that Judge Boldt might have been mentally incompetent at the time he signed the final findings in the case. This court, on January 23, 1995, denied the motion on three grounds: (1) that courts should avoid the finality of judgments; (2) that a ruling for the Tribes would open the floodgates to future challenges to judgments on grounds of judicial incompetence; and (3) the Tribes suffered no manifest injustice since the magistrate judge and the Ninth Circuit reached the same conclusion as Judge Boldt. The Ninth Circuit affirmed this court’s ruling. United States v. Washington, 98 F.3d 1159 (9th Cir.1996).
. The court is mindful of the fact that Judge Zilly, in the recognition litigation, ruled that the Samish were precluded by Washington II from litigating its treaty tribe status. See Order, 1992 WL 533059 at *2. While Judge Zilly could not, in unrelated litigation, properly reconsider the findings and conclusions in Washington II, this court is not barred from such reconsideration if there are "extraordinary circumstances” within the meaning of Rule 60(b) that justify it. To hold otherwise would preclude Rule 60(b) motions, since the non-moving party could always plead res judi-cata.
A related issue, raised by the United States, is whether this court can properly consider the Samish's motion in light of the Ninth Circuit's decision affirming Washington II. This issue is easily resolved. In Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976), the Supreme Court stated that an appellate mandate "relates to the record and issues then before the court, and does not purport to deal with possible later events.” See also 11 Wright, Miller & Kane, Federal Practice & Procedure § 2873 (1995) ("An appellate court may not know whether the requirements for reopening a case under the rule are met until there has been a full record developed. Such a record can only be made in the trial court.”).
. The Samish also contend, relying on a phrase in a Finding of Fact in Washington II, that that decision was not intended to be the final word on its treaty status. See Washington II, 476 F.Supp. at 1111 (“[T]he Samish ... [are not] at this time a treaty tribe in the political sense within the meaning of [Washington /].") (emphasis added). The Samish believe that the phrase "at this time” suggests that, should the Tribe later achieve the requisite continuity and organization of treaty tribes, the court might reconsider its treaty status. This argument merits only a brief response. First, the phrase "at this time,” at the very least, admits of another interpretation — namely, that, while the Tribe might have at one time exhibited the attributes of a treaty tribe, it no longer did so. Second, the standard for exercise of treaty rights includes, inter alia, that a tribe "have maintained an organized tribal structure,” which suggests that a break in that necessary structure forecloses a tribe’s ability to meet the standard.
. The Samish point out that they could not use the Treaty of Point Elliott in the recognition proceeding. That they nonetheless achieved recognition, the Samish contend, is a testament to the strength of the evidence, as treaties are the primary way of showing recognition.
. In announcing Samish federal recognition in 1996, the federal government found that the Samish met this standard:
We find that the Samish Tribal Organization has been continuously identified through history as Indian or aboriginal, has existed as a distinct community since first sustained European contact, has maintained political influence within itself as an autonomous entity and that 80 percent of its members are descendants of the historical Samish tribe or families which became incorporated into that tribe. We conclude, therefore, that the Samish Tribal Organization has met the mandatory criteria for acknowledgment....
Samish Acknowledgment Decision, Ex. 8, 61 Fed.Reg. 15826.
. Judge Zilly noted that the "Samish people's quest for federal recognition as an Indian tribe has a protracted and tortured history, and their long journey for recognition has been made more difficult by excessive delays and governmental misconduct.” Greene, 943 F.Supp. at 1281.
.Nor can the Tribe rely on the fact that the United States has in the past qualified its opposition to Samish intervention on the grounds that future federal recognition might justify reconsideration. The Samish stress that their potential future recognition was stressed at all stages of Washington II because, they argue, it was relevant in allowing the court to deny treaty status at that time. The United States cannot dispute its previous statements regarding the potential effect of Samish recognition, but it asserts only that it agreed to consider whether recognition might justify reconsideration. Whether the United *1376States agreed to reconsider its opposition to the Samish's treaty tribe status upon federal recognition is of little moment. Samish place great weight on these statements, but there are no comparable statements from the court in Washington II that recognition might justify reconsideration. To the contrary, the Ninth Circuit in Washington II specifically stated that "[n]onrecognition of the tribe ... [has] no impact on vested treaty rights.” See Washington I, 520 F.2d at 692.
. At oral argument, counsel for the United States pointed out that, in addition to the Samish, two of the other five Tribes that sought intervention in Washington II have attained federal recognition since that decision. Therefore, if the court were to grant the Samish intervention in United States v. Washington, it is likely that at least two other tribes would also move to reopen the judgment in Washington II, thereby potentially injecting further complications into the long-negotiated management plans in this case.
. Having found that the Samish’s recognition does not constitute an "extraordinary circumstance” and that finality concerns outweigh other considerations, the court need not consider the remaining issues, including whether the Samish’s motion was filed within a reasonable period. Another issue of no import is the Samish’s motion to strike, in which motion the Samish argue that the Opposition Tribe’s brief was filed three days late. Assuming that the brief was filed late, the Samish have suffered no prejudice, having filed its reply brief, as provided by the agreed briefing schedule, thirty days after receipt of the Joint Opposition brief.
. Because the court is not persuaded that it committed manifest error in its order, it has not asked for responsive briefing from the other parties.
. It is worth mentioning, moreover, that none of the issues before the court on the Samish’s motion to reopen — such as the requirements of Rule 60(b)(6) and the finality interests— were before the Ninth Circuit in Greene. Therefore, whatever remarks the Ninth Circuit made about the prospect of the Samish returning to this forum should be construed warily. This is especially true in light of the Ninth Circuit’s statement that Samish recognition "would have a marginal influence at best” on the Tribe’s entitlement to fishing rights. Greene, 996 F.2d at 978.
. A more complete background of this matter is set forth in the March 20, 2001 Order.
. Other treaty tribes (the Swinomish, Lummi, and the Tulalip Tribes) have submitted pleadings confirming that the selection of the halibut fishery opening has traditionally coincided with the date selected by the IPHC. To the extent there is no formal agreement to tie the tribes' opening to the date selected by the IPHC, the tribes may choose to address that issue with or without the court’s assistance.
. The status quo is also maintained by opening both the unrestricted and restricted fisheries at the same time. Inasmuch as there is no consensus on the Makah’s proposal to open the restricted fishery on March 15, 2003, the court is of the opinion that the tribes should not stray from the traditional opening b: both the restricted and unrestricted fishery on the same date.
. The motion to strike was submitted by the Tulalip Tribe, the Lummi Indian Nation, the Swinomish Tribal Community, the Upper Skagit Indian Tribe, the Suquamish Tribe, the Pt. Gamble, Lower Elwha, Jamestown S'Klal-lam and the Skokomish Indian Tribe, and the Puyallup Tribe. In this order, the court refers to these Tribes alternately as the "opposition Tribes” and the "plaintiff Tribes.” In relation to the Samish’s motion to reopen, these Tribes are "opposition Tribes,” but in the overall context of the United States v. Washington, these are "plaintiff Tribes.”
. The Samish contend that the plaintiff Tribes inexcusably delayed filing the motion. In light of the practical necessities of this case, the court disagrees. Given the timing of the court's request to the Tribes to consider the Samish’s proposal, and the number of Tribes involved, the court is of the opinion that there is nothing improper about timing of this motion
The court also briefly notes that, while Local Rule 7(g) provides that requests to strike should not be presented in a separate motion but should be included in the responsive brief, there was no responsive brief in this case. The court did not ask for a responsive brief on the Samish’s motion for reconsideration. Thus, under these circumstances, the opposition Tribes argues, and the court agrees, that a separate motion to strike is appropriate.
. While the potential for disruption to these plans was and is a consideration in assessing the practicality of Samish intervention, the court, as set forth in both its orders dated December 19, 2002 and Februaiy 7, 2003, found far more persuasive the fact that the Samish had not come forward with an "extraordinary circumstance” that warranted reopening the judgment in this case under Rule 60(b)(6).
. The parties brought this dispute to the court only days before March 25, 2003, the date the State requests the Hoh Tribe stop its steel-head fishery. Because of time constraints, the court, on March 25, 2003, held a telephonic hearing with the parties and gave tin oral ruling, denying the motion for a preliminary injunction. This written Order follows.
. By way of comparison, the Director of the Quileute Department of Natural Resources for the Quileute Tribe has submitted a declaration stating that the "current 2002-2003 Quil-layute River Steelhead Management Agreement between the State and Tribe prescribes that the division of harvestable fish between the parties shall be based on the combined total hatchery plus wild harvestable fish.” Moon Decl. ¶ 3.
. The copy provided to the Court does not bear any actual signatures but that of the Washington Department of Fish and Wildlife.
. The Lummi tribe is not a party to these proceedings. At the hearing, the Court granted Lummi counsel’s oral motion to strike all references to actions taken by the Lummi tribe in the motion for a TRO and accompanying declaration.
. The Court notes that this proceeding is not the place to adjudicate primary rights. However, to the extent that it is relevant to the current dispute, the Court notes that Judge Boldt defined the Suquamish "usual and accustomed" fishing places as "the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion and also Hood Canal.” U.S. v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash. 1978). The Court finds this to mean all marine waters of Puget Sound, not just the western side as movants argue.
. The Court notes that the 1998 Dungeness Crab Management Agreement between the State and all the tribes appointed the Tulalip Tribes as the entity responsible for "coordination and communications concerning all Tribal fisheries” in Region 2. Ex. 38. This designation imposes upon the Tulalip Tribes a heightened responsibility to maintain open communication and cooperation. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217603/ | *299MEMORANDUM *
George Butler appeals the district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 action against prison officials for failing to protect him from a severe beating at the hands of other inmates and for failing to provide medical treatment after his release from prison. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291 and, after de novo review, we affirm.
The district court held both that the defendants were entitled to qualified immunity and that the defendants’ conduct did not deprive Butler of any constitutional rights. However, the court did not apply the qualified immunity analysis adopted in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In Saucier, the Supreme Court held that “[a] court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer’s conduct violated a constitutional right?” Id. at 201. If there would be no constitutional violation even were the allegations taken as true, then “there is no necessity for further inquiries concerning qualified immunity.” Id.
Under the Eighth Amendment, prison officials have a duty to protect prisoners from violence at the hands of other inmates. See Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). However, the Eighth Amendment is violated only when the inmate shows that he is incarcerated under conditions posing a substantial risk of serious harm, and that officials displayed “deliberate indifference” to inmate health or safety. Id. at 834; see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988). Butler’s Eighth Amendment right was not infringed because the prison officials did not act or fail to act knowing of a substantial risk of serious harm to him.
Neither party has cited authority for the proposition that the Eighth Amendment protects against deliberate indifference to serious medical needs following release from prison. Because there was no violation of a constitutional right, summary judgment was properly granted against this claim. Saucier, 533 U.S. at 201.
AFFIRMED
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217604/ | MEMORANDUM **
Alfredo Gonzalez-Rodriguez pled guilty to possession of a firearm as an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A). A jury also convicted him of one count of manufacturing and aiding and abetting the manufacture of over 500 grams of a mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a) & (b)(1)(A) and 18 U.S.C. § 2, and one count of conspiring to manufacture over 500 grams of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 846.
In this appeal, Gonzalez-Rodriguez challenges his sentence on three grounds. First, he argues that the district court applied the wrong version of the Sentencing Guidelines resulting in a higher sentence, in violation of the Ex Post Facto clause. Second, he disputes the district court’s approximation of his drug quantity. Third, Gonzalez-Rodriguez claims that the district court erred in determining the relevant conduct for which he should be held accountable. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here except as necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. Applicable Version of Sentencing Guidelines
Gonzalez-Rodriguez claims that the district court erred by applying the 2001 version of the Guidelines Manual, which was in effect on the date of sentencing, rather than the 1998 version of the Guidelines,1 which was in effect when he committed the instant offenses. He notes that, in the 2001 version of § 2D1.1, Application Note 10 specifically sets forth a conversion ratio for determining pseudoephedrine’s marijuana equivalent for the purpose of computing a base offense level. In contrast, the 1998 version of § 2D1.1 does not include pseudoephedrine in the Drug Quantity Table, nor does it provide instructions for converting pseudoephedrine into a marijuana equivalent. Gonzalez-Rodriguez argues that the district court’s application of the 2001 Guidelines resulted in a higher sentence, in violation of the Ex Post Facto Clause.
Generally, a district court must apply the version of the Sentencing Guidelines in effect on the date of sentencing. United States v. Chea, 231 F.3d 531, 539 (9th Cir.2000) (quoting United States v. Johns, 5 F.3d 1267, 1269 (9th Cir.1993)). “However, it is well-established in this circuit that whenever application of an amended version of a guideline would result in a harsher sentence than the earlier version, application of the new guideline would violate the Ex Post Facto Clause.” Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir.1996) (citations omitted). In order to demonstrate an Ex Post Facto Clause violation, the defendant must demonstrate “more than a speculative risk” of an increase in punishment; that is, he must “demonstrate an increase in punishment with certain*302ty.... Under such circumstances, ... the defendant [must] be sentenced pursuant to the guidelines in effect at the time of the offense.” Id. at 967-68 (citations omitted); see also Chea, 231 F.3d at 539.
Gonzalez-Rodriguez’s claim fails because the district court’s application of the 2001 Guidelines did not result in a harsher sentence than he would have received under the 1998 Guidelines. Although the 1998 Guidelines did not provide a formula for converting pseudoephedrine into marijuana, they did instruct the district court to approximate drug quantity where “there is no drug seizure or the amount seized does not reflect the scale of the offense .... ” § 2D1.1, cmt. n. 12; see United States v. Roberts, 5 F.3d 365, 372 (9th Cir.1993). Since law enforcement officers did not seize any significant quantities of methamphetamine in the instant case, the district court properly approximated Gonzalez-Rodriguez’s drug quantity. Specifically, the district court relied on Traci Rose, the Government’s chief witness, who established that there were 6.36 kilograms of pseudoephedrine at a Gervais, Oregon location. Rose made a conservative estimate of the amount of methamphetamine Gonzalez-Rodriguez could have produced from the pseudoephedrine “us[ing] the lowest number, ... 50 percent [yield] ... [which] would result in 3.18 kilograms of methamphetamine.” [Transcript (“Tr.”) 374] Under the 1998 Guidelines, 3.18 kilograms of methamphetamine (actual) results in a base offense level of thirty-eight. See § 2D1.1(c)(1) (1998).
Likewise, under the 2001 Guidelines’ Drug Equivalency Table, Gonzalez-Rodriguez would have a base offense level of thirty-eight because 6.36 kilograms of pseudoephedrine is the equivalent of 63,-300 kilograms of marijuana. See § 2Dl.l(c)(l) & cmt. n. 10 (2001). Because Gonzalez-Rodriguez’s base offense level is the same under both the 1998 and 2001 versions of the Guidelines, the district court’s application of the latter did not result in a harsher punishment and there was no Ex Post Facto Clause violation.2
II. Drug Quantity
Gonzalez-Rodriguez contends that the district court based its determination of his drug quantity on unreliable evidence. The district court’s determination whether a particular item of evidence is sufficiently reliable to be considered at sentencing is reviewed for an abuse of discretion. United States v. Blitz, 151 F.3d 1002, 1009 (9th Cir.1998). In the instant case, the district court initially stated that the Government’s chief expert, Rose, based her opinion on “a lot of ifs[.]” [Tr. 414] However, it ultimately concluded that Rose was reliable. The record supports the district court’s conclusion. Rose detailed her training and certification, as well as the procedures she took when she obtained and tested samples from the methamphetamine lab. She also explained that her case analysis underwent a routine peer review process before being released to the court. We cannot say that the district court abused its discretion in relying on Rose’s testimony.
Gonzalez-Rodriguez also challenges the district court’s determination of the clandestine methamphetamine lab’s capacity. He notes that, although law enforcement officers found pseudoephedrine, *303a precursor chemical, they did not actually seize any substantial quantities of methamphetamine. Gonzalez-Rodriguez disputes the district court’s conclusion that the lab could have produced 3.18 kilograms of methamphetamine using the seized precursor chemicals.
The “ ‘capability of a drug operation is a factual issue reviewed for clear error.’” United States v. Rosacker, 314 F.3d 422, 427 (9th Cir.2002) (quoting United States v. Bertrand, 926 F.2d 838, 846 (9th Cir.1991)). “Review under the clearly erroneous standard is significantly deferential, requiring for reversal a definite and firm conviction that a mistake has been made. The standard does not entitle a reviewing court to reverse the finding of the trial court simply because the reviewing court might have decided differently.” United States v. Asagba, 77 F.3d 324, 326 (9th Cir.1996) (citations omitted); see also United States v. Palafox-Mazon, 198 F.3d 1182, 1186 (9th Cir.2000).
Where, as here, “there is no drug seizure or the amount seized does not reflect the scale of the offense,” the sentencing court “shall approximate the quantity of the controlled substance.” U.S.S.G. §§ 2D1.1, cmt. n. 12; United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir.1995). “This court specifically has allowed a sentencing court to calculate ‘potential’ methamphetamine based on seized precursor chemicals.... [It has] also approved a sentencing court’s reliance on expert testimony that estimates production capability, even when the expert must assume the availability of precursor chemicals that were not seized or were found in short supply.” Basinger, 60 F.3d at 1409 (citations omitted); see also Bertrand, 926 F.2d at 846; Roberts, 5 F.3d at 372.
In the instant case, the district court’s drug quantity estimate was not clearly erroneous. The Government’s evidence established that there were substantial quantities of all of the precursor chemicals necessary to manufacture methamphetamine through the “red phosphorous” method. In addition, there were traces of methamphetamine, as well as phenyl-2-propanone, a by-product formed along with the methamphetamine, at the clandestine lab. Taking into account the quantity of available precursor chemicals, Rose estimated that the “potential” methamphetamine that could have been produced using the seized precursor chemicals was 3.18 kilograms. [Tr. 374]
Gonzalez-Rodriguez argues that the district court should not have relied on Rose, or any of the other Government witnesses, because they “said that the lab could have produced some methamphetamine or no methamphetamine. The evidence showed that success in manufacturing methamphetamine was contingent on using the correct chemicals, doing it correctly and ‘cooking it long enough.’ ” [AOB 12 (citing Tr. 377), 23-25] However, the witnesses were merely stating the obvious fact that a cook’s yield will depend on his having the necessary precursor chemicals and cooking the chemicals properly.
Furthermore, there was evidence demonstrating that Gonzalez-Rodriguez and his co-conspirators had the' necessary chemicals and were able to cook them correctly. Law enforcement officers located ample quantities of the “correct” chemicals at the clandestine lab and found active chemical reductions being performed. Moreover, various individuals affiliated with the conspiracy testified that Gonzalez-Rodriguez was involved with purchasing and cooking the chemicals at the lab, and that he even oversaw the work of other members of the conspiracy. Indeed, Gonzalez-Rodriguez admitted that he helped produce methamphetamine. [Tr. 452]
Thus, contrary to Gonzalez-Rodriguez’s claim, the Government’s evidence was not *304vague about the production capability of the lab. The estimate set forth by the Government, and accepted by the district court, was a reasonable one based on evidence of a very well-stocked, well-equipped methamphetamine lab and Gonzalez-Rodriguez’s knowledge of methamphetamine production. We, therefore, affirm the district court’s determination of drug quantity.
III. Relevant Conduct
Pursuant to U.S.S.G. § 1B1.3, the “district court may only sentence a defendant for relevant conduct within the scope of the defendant’s agreement that was reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake jointly.” United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir.1996) (citations omitted). “In other words, under the Sentencing Guidelines, each conspirator is to be judged on the basis of the quantity of drugs which he reasonably foresaw or which fell within ‘the scope’ of his particular agreement with the conspirators, rather than on the distribution made by the entire conspiracy.” Id. (citation omitted); see also United States v. Whitecotton, 142 F.3d 1194, 1198 (9th Cir.1998); § 1B1.3, cmt. n. 2.3 The district court’s finding of relevant conduct is reviewed for clear error. United States v. Fox, 189 F.3d 1115, 1118 (9th Cir.1999).
Gonzalez-Rodriguez argues that he could not reasonably foresee that the conspiracy would produce the estimated quantity of potential methamphetamine. [AOB 30] The record belies his claim. Gonzalez-Rodriguez lived on the site of the methamphetamine lab. He obtained and prepared chemical supplies, helped cook the chemicals, oversaw his co-conspirators work in the lab, and packaged methamphetamine. In light of these facts, the district court did not clearly err by determining that Gonzalez-Rodriguez was responsible for the total amount of methamphetamine that could have been produced using the precursor chemicals at the Gervais lab.
Gonzalez-Rodriguez also contends that the district court did not make sufficient factual findings to support a conclusion that he could have foreseen the quantity of drugs upon which the district court based his sentence. A “district court must make an express factual finding regarding the amount of drugs that the defendant reasonably foresaw as being part of the conspiracy[.]” Whitecotton, 142 F.3d at 1198 (citations omitted). However, it may “satisfy the requirement that it make factual findings by specifically adopting the findings of the presentence report[.]” Id.; see also United States v. Naranjo, 52 F.3d 245, 249 (9th Cir.1995). Here, the district court expressly adopted the findings of the PSR, which set forth evidence of Gonzalez-Rodriguez’s participation in the conspiracy’s manufacture of methamphetamine and concluded that, “[f]or purposes of relevant conduct, defendant is accountable for the precursor chemicals found during the search of’ the Gervais location. [PSR ¶¶29, 36] The district court’s adoption of the PSR was sufficient to support its finding of Gonzalez-Rodriguez’s relevant conduct.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Gonzalez-Rodriguez actually argues that the district court should have applied the 1999 version of the Guidelines since he was convicted for actions committed before October 26, 2000. However, there was no 1999 version of the Guidelines. Rather, the 1998 version, together with a Supplement issued on May 1, 2000, was the operative manual during 1999. We assume that Gonzalez-Rodriguez meant to refer to the 1998 version, which would have been applicable when he committed the instant offenses.
. Gonzalez-Rodriguez also appears to claim that, if the district court had applied the 1998 Guidelines, there would have been a Fifth Amendment violation because "the 199[8] version [of the Guidelines] did not provide for punishment based on a quantity of pseu-doephedrine unless the defendant was charged under 21 U.S.C. § 841(d).” [Appellant's Opening Brief ("AOB”) 10] His claim is foreclosed by this court’s decision in United States v. Roberts, 5 F.3d 365, 372 (9th Cir.1993).
. § 1B1.3, cmt. n. 2 states, "With respect to offenses involving ... controlled substances[,] the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217606/ | MEMORANDUM ***
Joseph Ryncarz appeals his conviction and 262-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) with an armed career criminal enhancement pursuant to 18 U.S.C. § 924(e)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
We review a district court’s decision to admit evidence for an abuse of discretion. United States v. Leon-Reyes, 177 F.3d 816, 819 (9th Cir.1999); see also United States v. Williams, 291 F.3d 1180, 1189 (9th Cir.2002) (discussing Federal Rule of Evidence 404(b)).
Threatening a witness to intimidate her shows consciousness of guilt and is therefore relevant. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir.1996); United States v. Meling, 47 F.3d 1546, 1557 (9th Cir.1995). This type of evidence is “second only to a confession in terms of probative value.” Meling, 47 F.3d at 1557. Moreover, “evidence of ... attempts to induce witnesses to lie is indicative of consciousness of guilt and may be placed before the jury.” United States v. Collins, 90 F.3d 1420, 1428 (9th Cir.1996).
The district court did not abuse its discretion in admitting the letters that Ryncarz wrote to Gonzalez or his friends. The letters show that Ryncarz was threatening Gonzalez, inducing her to lie, and attempting to fabricate a defense. Although “[t]he potential of unfair prejudice from the introduction of threats is ‘severe,’ ” Ortiz-Sandoval, 81 F.3d at 898 (quoting United States v. Check, 582 F.2d 668, 685-86 (2nd Cir.1978)), the prejudicial effect of these letters does not outweigh their probative value. The threat was neither specific nor inflammatory, and the court gave the jury a limiting instruction. Id.
Even though Ryncarz failed to renew his motion for acquittal at the close of all the evidence, we review for plain error. See, e.g., United States v. Carlson, 235 *308F.3d 466, 468 (9th Cir.2000). Because the testimony of at least four witnesses overwhelmingly supports a finding that Ryn-carz possessed the firearm listed on the indictment, no error exists.
We review a district court’s denial of a motion for a new trial for an abuse of discretion. United States v. Hursh, 217 F.3d 761, 769 (9th Cir.2000). The district court did not abuse its discretion in denying Ryncarz’s motion for a new trial. Because Ryncarz committed a felony in 2001, his two 1992 convictions were admissible for impeachment purposes under Federal Rule of Evidence 609(c).
We review an Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), challenge de novo. United States v. Smith, 282 F.3d 758, 771 (9th Cir.2002). Because Ryncarz’s sentence was within the prescribed statutory maximum allowed under 18 U.S.C. § 924(e)(1), his claim falls outside the Apprendi rule. See United States v. Bland, 961 F.2d 123, 128 (9th Cir.1992) (holding that the maximum sentence allowed under 18 U.S.C. § 924(e)(1) is life). Moreover, the district court found by a preponderance of the evidence that there had been a threat of violence and assault using a firearm, making a base level of 34 appropriate under U.S.S.G. § 4B1.4(3).
We cannot review a district court’s discretionary refusal to depart from the Sentencing Guidelines. United States v. Romero, 293 F.3d 1120, 1126 (9th Cir.2002). Because the district court understood that it had discretion to depart from the Guidelines but refused to exercise its discretion to do so, we do not have jurisdiction to consider this claim.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217607/ | MEMORANDUM ***
Travis Hawk appeals his twenty-seven month sentence that the district court imposed following his guilty plea to two counts of possession with intent to distribute methamphetamine. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the sentence and remand for resen-tencing.
‘We have jurisdiction to review a sentencing court’s refusal to depart downward as long as the refusal rested on the court’s conclusion that it possessed no discretion, and not on the belief that exercise of its discretion was unwarranted.” United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir.1993). When “the record supports an inference that the sentencing court’s refusal to depart rested on the court’s conviction that it lacked the discretion to do so, we will treat the refusal as a product of the court’s interpretation of the guidelines, subject to appellate review.” United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993).
The district court refused to exercise its discretion to grant Hawk a downward departure because the district court thought it was “precluded from considering” this departure due to Hawk’s voluntary drug use. The district court was mistaken.
“[Djrug abusers are not categorically disqualified from [the reduced mental capacity] departure. Under the plain language of the guideline, they are disqualified only if their voluntary alcohol or drug use caused their reduced mental capacity. If the reduced mental capacity ... causes the defendant to use alcohol or another drug, the defendant is eligible for the departure.” Cantu, 12 F.3d at 1514 (internal citations omitted). The record does not support a finding that voluntary drug use caused any reduced mental capacity Hawk may have had when he committed the charged crime. Therefore, the district court may consider departure pursuant to U.S. Sentencing Guidelines Manual § 5K2.13 (2001).
VACATED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217608/ | MEMORANDUM***
Ursula Straub appeals the district court’s summary dismissal of her civil *311rights action against various state and county officials (“Defendants”). When a district court dismisses an action without prejudice, the order is final and appeal-able. See Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir.2001). Therefore, we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s dismissal de novo. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998). We affirm in part, reverse in part, and remand.
The district court erred in dismissing Straub’s First Amendment claim. “Courts have recognized detainees’ and prisoners’ first amendment right to telephone access.” Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir.1986); see Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996). In Carlo v. City of Chino, we affirmed “the existence of a First Amendment right to telephone access subject to reasonable security limitations.” 105 F.3d 493, 496 (9th Cir.1997); see also Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir.1998).
Here, Straub’s allegations are sufficient to set forth a viable claim against Defendants for violating her First Amendment right to make a telephone call while in police custody. Moreover, the district court erred in raising the defense of qualified immunity sua sponte on behalf of the defendants. See Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity is an affirmative defense that must be raised and affirmatively established by the Defendants, not the district court. Id.
The district court also erred in summarily dismissing Straub’s state tort claims. “The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (citing Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982)). This rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (citing Eldridge, 832 F.2d at 1137). While Straub’s allegations are set forth in a conclusory manner, Federal Rule of Civil Procedure 8 does not require a high degree of specificity. In fact, the Federal Rules only require that Straub set forth a “short and plain statement of the claim” in her pleadings. Fed.R.Civ.P. 8(a). Here, Straub’s claims are supported with sufficient facts to warrant the reversal of the district court’s summary dismissal.
Lastly, Straub’s argument that the district court erred in dismissing her § 1983 claims for false arrest and malicious prosecution is without merit. Straub was convicted of the underlying traffic offenses, and a valid bench warrant was issued for her arrest. Neither the citations nor the bench warrant was ever invalidated or successfully challenged. As a result, the constitutionality of Defendants’ actions with respect to her arrest, prosecution, and conviction cannot be challenged in a § 1983 action. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that in order to recover damages for allegedly unconstitutional conviction or imprisonment, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged, declared invalid by an appropriate state tribunal, or been called into question by the issuance of a federal writ of habeas corpus). Defendants were merely executing their duties as police officers. Straub’s claim against Officer K. McDonough also fails because her conviction for driving without a license remains valid. It has never been ex*312punged or invalidated. Straub forfeited her opportunity to challenge this citation when she failed to appear for her hearing in 1997.
Accordingly, the district court’s dismissal of Straub’s First Amendment claim and state tort claims is REVERSED. The district court’s judgment in all other respects is AFFIRMED. This action is REMANDED for further proceedings consistent with this Memorandum. On remand, the district court also should reconsider whether Straub’s in forma pauperis application should be granted.
Each party to bear its own costs.
AFFIRMED in part; REVERSED in part; and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the *311courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217609/ | MEMORANDUM **
Daymon Boyd appeals from the district court’s denial of his motion to dismiss the indictment and vacate his conviction for armed robbery and use and carrying of a firearm during the commission of a crime of violence. A jury found Boyd guilty of three counts of armed robbery in violation of 18 U.S.C. § 2113(a) and (d), and one count of use and carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1), (2) (“use and carrying”). It acquitted him on one count of armed robbery and on three counts of use and carrying. The district court sentenced him to 215 months in prison followed by five years of supervised release, restitution in the amount of $8,422 and a $400.00 penalty assessment. He now challenges his conviction on the grounds that: (1) the district court erred in failing to dismiss the indictment based on the government’s subornation of perjury before the grand jury, (2) the government unlawfully paid two trial witnesses for their testimony, (3) the conviction of him on two armed robbery counts is inconsistent with acquittal of him on two of the related counts of use and carrying and (4) the district court erred in admitting his confession into evidence because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Because the parties are familiar with the factual and procedural history of this case, we will not recount it here. For the reasons discussed below, we reject the arguments of the defendant and affirm the trial court.
A. Motion to Dismiss the Indictment
We review the district court’s decision to deny a motion to dismiss an indictment based on prosecutorial misconduct under a de novo or abuse of discretion standard. See United States v. Woodley, 9 F.3d 774, 777 (9th Cir.1993) (explaining that courts are divided “as to whether the denial of a motion to dismiss an indictment is reviewed de novo or for an abuse of discretion”). We need not decide which standard applies here because we affirm using either standard.
Boyd argues that the District Court should have dismissed the underlying indictment because of prosecutorial misconduct. Specifically, Boyd states that Gene White perjured himself in front of the grand jury when he testified, in response to leading questions from the prosecutor, that he was not testifying pursuant to a cooperation agreement.
Generally “a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Once a defendant is convicted by a jury after trial “any error in the grand jury proceeding connected with the charging decision [is deemed] harmless beyond a reasonable *314doubt.” United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) (quoted in People of Territory of Guam v. Muna, 999 F.2d 397, 399 (9th Cir.1993)). In such a case an indictment may be dismissed “only where the ‘structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair.’ ” Muna, 999 F.2d at 399 (quoting Bank of Nova Scotia, 487 U.S. at 257). In determining whether the proceeding is fundamentally unfair a court looks to whether the “ ‘violation substantially influenced the grand jury’s decision to indict’, or if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at 256 (quoting Mechanik, 475 U.S. at 78 (O’Connor, J. concurring)). “The relevant inquiry therefore focuses not on the degree of culpability of the prosecutor, but on the impact of his misconduct on the grand jury’s impartiality.” United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1392 (9th Cir.1983) (citations omitted).
Assuming, without deciding, that prosecutorial misconduct existed in this case,1 Boyd does not allege the type of misconduct that raises grave doubt that the decision to indict was free from the substantial influence of such violations nor does he sufficiently demonstrate that White perjured himself. Testimony given at trial by White and the statements made by his attorney, Jeanne Knight, indicate that the question of whether a cooperation agreement existed between the government and White remained a source of confusion. Moreover, “if sufficient non-perjurious testimony exists to support the indictment, the courts will not dismiss the indictment due to the presence of perjured testimony before the grand jury, on the assumption that the grand jury would have returned an indictment without the perjurious evidence.” United States v. Claiborne, 765 F.2d 784, 791 (9th Cir.1985) abrogated on other grounds, Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Accordingly, we affirm the district court’s denial of the motion to dismiss the indictment.
B. “Bribery” of Trial Witnesses
The court reviews a district court’s decision to admit or exclude testimony for abuse of discretion. See United States v. Beckman, 298 F.3d 788, 792 (9th Cir.2002).
Boyd argues that the district court should have excluded the testimony of two cooperating witnesses, Anthony Jackson and Gene White, because the government “bribed” these witnesses in violation of 18 U.S.C. § 201(c)(2). Boyd states that the prosecutor gave value — plea agreements, with a chance for lesser charges — in exchange for testimony. However, it is well established in the Ninth Circuit that leniency or immunity in exchange for testimony is not actionable under the bribery statute. See, e.g., United States v. Smith, 196 F.3d 1034, 1039-40 (9th Cir.1999) (“Recently, we ruled that the government’s promise of leniency to a cooperating witnesses does not violate 18 U.S.C. § 201(c)(2).”); United States v. Mattarolo, 209 F.3d 1153, 1160 (9th Cir.2000) (finding *315no merit to defendant’s argument that a grant of leniency equaled bribery within the meaning of § 201(c)(2)). Accordingly, we conclude that the District Court did not abuse its discretion in allowing White and Jackson to testify at trial.
C. Inconsistent Verdict
We review de novo the legal determination of whether a defendant may upset a verdict because it is inconsistent with an acquittal. United States v. Hart, 963 F.2d 1278, 1279 (9th Cir.1992). However, Boyd raises the issue of inconsistent verdicts for the first time on appeal. Because he failed to raise the issue below we review for plain error. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993). Plain error exists “if, viewing the error in the context of the entire record, the impropriety seriously affects the fairness, integrity or public reputation of judicial proceedings, or where failing to reverse a conviction would amount to a miscarriage of justice.” Id. (internal quotations omitted). Boyd has failed to demonstrate plain error.
The jury found Boyd guilty of armed robbery in violation of 18 U.S.C. § 2113(a) and (d), as charged in counts one and three of the superseding indictment. The jury acquitted him on the two charges of use and carrying as alleged in counts two and four of the superseding indictment. Counts two and four corresponded to the robberies alleged in counts one and three. He argues that the jury’s verdict is inconsistent and thus his conviction on counts one and three should be set aside.
“Consistency in the verdict is not necessary.” Hart, 963 F.2d at 1281 (quoting Dunn v. United States, 284 U.S. 390, 393, 62 S.Ct. 189, 76 L.Ed. 366 (1932)), and “tj]ury verdicts are insulated from review for inconsistency.” United States v. Dota, 33 F.3d 1179, 1187 (9th Cir.1994); see also United States v. Powell, 469 U.S. 57, 65-67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (rejecting exceptions to the rule that inconsistent verdicts may not be challenged). The Hart court explained that because of “the Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity ... the best course to take is simply to insulate jury verdicts from review on this ground [of inconsistency].” Hart, 963 F.2d at 1281.
D. Miranda Violation
The voluntariness of a confession is determined by the totality of the circumstances, which the court reviews de novo. United States v. Andaverde, 64 F.3d 1305, 1310 (9th Cir.1995). Factual findings made by the district court are reviewed for clear error. United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir.1998).
At trial, Boyd moved to exclude his confession on the ground that his statement was taken after he invoked his right to counsel. Specifically, he argues that he told the arresting agent that he wanted an attorney. The district court made factual findings that Agent Brown did not hear Boyd’s request for counsel. It also found that Boyd did not tell the interrogating agent, Agent Bowdich, that he had requested an attorney. The district court concluded that Boyd voluntarily and knowingly waived his right to counsel before confessing his involvement in the robberies.
The defendant points to no evidence contradicting the factual findings of the district court and does not allege any clear error in the court’s finding that Agent Brown did not hear Boyd’s request for counsel at the time of arrest. Nor does he dispute the finding that he did not inform Agent Bowdich of his request. Pri- or to any custodial interrogation, Agent Bowdich read Boyd his Miranda rights *316and Boyd signed a waiver indicating that he understood his rights but waived his right to counsel. After reviewing the totality of the circumstances we conclude that the district court did not err in finding that Boyd’s confession was voluntary and knowing.
AFFIRM.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. The government argued quite strenuously at oral argument that no prosecutorial misconduct occurred. While we do not believe that the alleged misconduct compromised the “structural protections of the grand jury ... as to render the proceedings fundamentally unfair” we note that the better course of action would have been to inform the grand jury of the existence of the 1998 cooperation agreement. The leading questions asked by the prosecutor could have left an impression that there had never been an agreement between White and the government; this was not correct. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217610/ | MEMORANDUM**
Judith B. Walker appeals pro se the district court’s summary judgment in favor of her mortgage lender, Washington Mutual Bank (“WMB”), in her action alleging *317violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et. seq., and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, and California state law claims for fraudulent misrepresentation, wrongful foreclosure, and forcible detainer. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.
The district court did not err in holding that Walker’s TILA claim was barred by the one-year statute of limitations. TILA states that “[a]ny action under this section may be brought ... within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). “[T]he limitations period in Section 1640(e) runs from the date of consummation of the transaction but ... the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action.” King v. California, 784 F.2d 910, 915 (9th Cir.1986). Walker borrowed $840,000 and read and signed the loan documents in May 1994 but did not bring this action until December 2001, more than seven years later. Moreover, Walker was aware that the loan was negatively amortizing in July 1994. Nothing prevented Walker from comparing the loan documents and TILA’s statutory and regulatory requirements. Thus, the statute of limitations bars her TILA claim. See id.
The district court also correctly held that there had been no violation of TILA’s disclosure requirements. The disclosures in the TILA statement provided Walker regarding the finance charge, the APR, the amount financed, and the payment schedule were accurate and in compliance with TILA and its implementing regulations. See 15 U.S.C. § 1638; 12 C.F.R. § 226.4; 12 C.F.R. Pt. 226, Supp. I, at § 226.17(c), ¶ 12. Walker provided no evidence to the contrary. The Note and Rider, which Walker testified she read and signed, met the requirements of 12 C.F.R. Pt. 226, Supp. I, § 226.19(b)(2)(vn) concerning disclosure of the possibility of negative amortization. Thus, the district court did not err in granting summary judgment against Walker’s TILA claim.
Summary judgment was properly granted against Walker’s claim for fraudulent misrepresentation because it is subject to the three-year statute of limitations of Cal.Code Civ. Proc. § 338(4). See Meadows v. Bicrodyne Corp., 785 F.2d 670, 672 (9th Cir.1986) (cause of action accrues when aggrieved party discovers facts constituting fraud). Her claim accrued at the latest in July 1994, when she knew the loan was negatively amortizing, more than three years before she filed her complaint.
Summary judgment was also properly granted against Walker’s claims for wrongful foreclosure, forcible detainer, and RICO violations because her claims are based on alleged TILA violations. Since there were no violations, WMB rightfully foreclosed on Walker’s house. Walker’s RICO claim similarly fails: there was no mail fraud because there were no TILA violations.
Walker’s motion to strike WMB’s Answer because it was not verified was properly denied by the district court. The Federal Rules of Civil Procedure do not require that an answer be verified.
Walker’s motions to compel the production of documents by WMB and to compel the deposition of MaryAnn Hopp were denied by Magistrate Judge Eick. Walker did not file objections to these rulings with *318the district court as required by Fed. R.Civ.P. 72(a). Thus, she has forfeited her right to appellate review of these decisions. See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.1996).
The district court did not abuse its discretion when it denied as moot Walker’s motion to strike the affidavits filed by WMB in support of its motion for partial summary judgment.
Walker’s motion for a continuance under Fed.R.Civ.P. 56(f) was properly denied because Walker’s motion did not specify what evidence she sought to discover that might have precluded summary judgment. See Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir.1998).
The district court did not abuse its discretion in issuing the motion pre-filing order. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.1990). The record indicates that Walker filed numerous unmeri-torious motions during the course of the proceedings before the district court.
CONCLUSION
The judgment of the district court is AFFIRMED.1
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Walker's and WMB’s requests for judicial notice are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217612/ | MEMORANDUM **
California state prisoner James Ray Roberts appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm.1 Roberts raises several constitutional challenges, which we find unavailing.
First, the restrictions on Roberts’s phone use and library access during trial did not violate his self-representation rights because he had advisory counsel and an investigator to assist him. See Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985) (stating that the right of self-representation is not violated by reasonable prison restrictions when advisory counsel is available to assist with those tasks).
Second, any error resulting from Roberts’s absence at a brief pretrial scheduling hearing did not result in a denial of due process. See United States v. Gagnon, 470 U.S. 522, 526-27, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) (concluding that an in camera discussion without the defendants or their counsel did not violate due process when their presence was not required to ensure fundamental fairness or a reasonably substantial opportunity to defend against the charge).
Third, instructing the jury on a theory of constructive possession did not implicate the Ex Post Facto Clause. See Cal. Dep’t of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (stating that the Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts”) (inter*321nal quotation marks omitted). Even if the instruction was an incorrect statement of California law, giving it did not violate due process because the evidence of actual possession was overwhelming. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (stating that a jury instruction that violates state law can be the basis of federal habeas relief only when the instruction “so infected the entire trial that the resulting conviction violates due process”) (internal quotation marks omitted).
Thus, the district court properly denied Roberts’s petition. See 28 U.S.C. § 2241(c)(3) (providing that the “writ of habeas corpus shall not extend to a prisoner unless ... he is in custody in violation of the Constitution or laws or treaties of the United States”).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. To the extent Roberts has requested that we broaden the certificate of appealability to include an Eighth Amendment claim and a challenge to the validity of his waiver of the right to counsel, that request is denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217789/ | Dismissed by unpublished PER CURIAM opinion.
PER CURIAM:
Chauncy Mouzone, a federal prisoner, seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). We have independently reviewed the record and conclude Mouzone has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of ap-pealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). 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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217613/ | MEMORANDUM**
Former Arizona state prisoner Ellis RL Thomas Jr. appeals pro se the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging that Arizona prison officials violated the Fourteenth Amendment, the Eighth Amendment and the Arizona Uniform Act to Secure the Attendance of Witnesses (“Uniform Act”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th Cir.2002), and we affirm.
Thomas alleged that Arizona prison officials, who arranged for his transport to Indiana to testify at his brother’s criminal trial, failed to adequately protect him from being arrested upon arrival in Indiana and subsequently convicted of murder and sentenced to 110 years in Indiana state prison.
In Thomas’ criminal proceedings in Indiana, the state court determined that Thomas went to Indiana voluntarily, even at the risk of being charged in connection with the shootings for which his brother was charged. Thomas is collaterally es-topped from relitigating the issue of volun-tariness. See Allen v. McCurry, 449 U.S. 90, 103-04, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (collateral estoppel applies to section 1983 actions when a plaintiff attempts to rehtigate in federal court issues decided against him in a state court criminal proceeding); Lombardi v. City of El Cajon, 117 F.3d 1117, 1121 (9th Cir.1997) (state court’s rulings are binding on a federal court if they are binding under state collateral estoppel law in section 1983 action).
In fight of the fact that Thomas went to Indiana voluntarily, Arizona officials were under no obligation to invoke the procedures of the Uniform Act, see A.R.S. § 13-4092 (describing the process by which one state may summon a witness from another state to testify at a criminal proceeding), and did not cause Thomas to be deprived of his Fourteenth Amendment right to due process and Eighth Amendment right to be free from cruel and unusual punishment. See City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (stating that a municipality can be found liable under section 1983 only where the municipality itself causes the constitutional violation at issue).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217614/ | MEMORANDUM **
Miguel Rodriguez appeals his conviction and the resulting 51-month sentence after he pleaded guilty to importing marijuana and possessing marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 952 & 960. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.
Rodriguez’s contention that 21 U.S.C. §§ 841 and 960 are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed by our decisions in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002), and United States v. Buckland, 289 F.3d 558, 562 (9th *324Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). His contention that the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules Buckland and Mendoza-Paz is foreclosed by our decision in United States v. Hernandez, 322 F.3d 592, 600-02 (9th Cir.2003).
Rodriguez further contends that the district court erred by (1) enhancing his offense level two points under U.S.S.G. § 3C1.2 for reckless endangerment during flight, and (2) refusing to decrease his offense level under U.S.S.G. § 3B1.2 based on his minor or minimal role in the criminal activity. We disagree.
The presentenee report (“PSR”) initially recommended a two-point increase in the offense level pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. After Rodriguez objected to this enhancement, the probation officer amended the PSR to clarify that the upward adjustment was appropriate under section 3C1.2 rather than section 3C1.1.1 At sentencing, the government argued that the upward adjustment could be made under either section of the guidelines. Although the district court did not specify which section it relied upon, the court stated that: “The adjustment is predicated upon the flight occurring as a part of the process o[f] resisting arrest.” This finding is consistent with an adjustment under section 3C1.2. See U.S.S.G. § 3C1.2, comment, (n.3) (“ ‘During flight’ is to be construed broadly ... this adjustment also is applicable where the conduct occurs in the course of resisting arrest.”)2
The undisputed facts show that Rodriguez resisted arrest by assaulting a customs inspector and attempted to flee by placing his vehicle in gear in a crowded area of the port of entry. Thus, the district court did not clearly err by applying the upward adjustment under section 3C1.2 because Rodriguez’s conduct created a substantial risk to other persons. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1483-84 (9th Cir.1997) (reviewing for clear error the district court’s factual determination that defendant’s conduct constituted reckless endangerment under section 3C1.2 and holding that the adjustment is proper if the defendant’s behavior while resisting arrest recklessly creates a substantial risk to a law enforcement officer or other persons).
Finally, the district court did not clearly err by finding that Rodriguez’s attempt to flee with the marijuana and his possession of $1,480 demonstrated a proprietary interest in the drugs and showed that he was not a minor or minimal participant in the criminal activity under U.S.S.G. § 3B1.2. See United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir.1994) (reviewing for clear error and holding that the district court did not err by denying downward adjustment under section 3B1.2 where defendant knew he was transporting drugs and received money in return, demonstrating that he was trusted with responsibility).
Accordingly, we affirm the district court’s judgment.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Fleeing from arrest by itself, even if the defendant recklessly endangered others while fleeing, cannot form the basis of an upward adjustment under section 3C1.1. United States v. Christoffel, 952 F.2d 1086, 1089 (9th Cir.1991).
. The district court later stated that: "There is a two-level upward adjustment based upon the obstruction.” We note, however, that both section 3C1.1 and section 3C1.2 fall within the portion of the guidelines entitled "Part C — Obstruction.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217615/ | MEMORANDUM**
Shawn Hawk, a California state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his conviction for first degree murder and conspiracy to commit murder. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Hawk first contends that the prosecutor knowingly used false testimony by putting Deborah Cremeans on the stand, because the prosecutor believed she was not completely truthful. This contention lacks merit. Hawk fails to demonstrate that the prosecutor actually knew which of Deborah Cremeans’ statements were untruthful. See United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir.1989). Moreover, the prosecutor at closing argument openly discredited the specific statements which he believed untruthful. As such, he did not knowingly use perjured testimony to gain the conviction. See United States v. Bagley, 473 U.S. 667, 678-79, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Hawk raises several additional claims of prosecutorial misconduct, but fails to show that the prosecutor’s statements were improper, much less “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The prosecutor “did not manipulate or misstate the evidence, nor ... implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. at 182-83. The district court properly concluded that, at most, the prosecutor argued reasonable inferences supported by the facts, challenged the credibility of defense counsel’s argument, and asserted that Hawk was lying, none of which were improper. See United States v. Birges, 723 F.2d 666, 672 (9th Cir.1984); Williams v. Borg, 139 F.3d 737, 745 (9th Cir.1998) (stating that a prosecutor is entitled to challenge credibility of defense counsel’s argument and may characterize a defense argument with an epithet as well as a rebuttal). Accordingly, the state court’s determination that no prosecutorial misconduct occurred was not unreasonable. See Darden, 477 U.S. at 181.
Hawk next contends that the prosecutor’s use during trial of prior tape-recorded interviews from an unrelated case, in which Hawk voluntarily gave information to sheriffs deputies about the murder at issue here, violated his privilege against self-incrimination. We are unpersuaded. Hawk’s interviews were taken pursuant to a plea agreement, entered into voluntarily, in which Hawk promised to provide full, candid, and complete cooperation to the authorities in their investigation of the murder at issue here. See Minnesota v. Murphy, 465 U.S. 420, 427, 104 *327S.Ct. 1136, 79 L.Ed.2d 409 (1984) (stating general rule that Fifth Amendment privilege speaks of compulsion and does not apply when witness testifies voluntarily). Moreover, Hawk waived his privilege against self-incrimination prior to the interviews and, contrary to his assertions, he would not have faced the threat of revocation of probation or the loss of any other liberty by attempting to assert the privilege. Cf. Murphy, 465 U.S. at 427, 436 (discussing exception to general rule where assertion of privilege is penalized, in the context of probation conditions requiring the respondent to appear and give testimony). Accordingly, Hawk’s reliance on Murphy on this point is unavailing.
Hawk further contends that the evidence presented was insufficient to prove a conspiracy existed, and to prove intent to murder. This contention is belied by the facts. Hawk borrowed the car as well as the gun used in the murder; he and Deborah Cremeans practiced shooting -with it; Ms. Cremeans testified that Hawk shot the victim; and further testimony at trial established that Ms. Cremeans told a friend that she and Hawk were going to kill the victim. Viewed in the light most favorable to the state, this evidence is more than sufficient for a rational trier of fact to find the essential elements of the crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Finally, Hawk claims that trial counsel was ineffective for failing to: (1) object to the prosecutorial misconduct alleged; (2) raise a motion to suppress the tape-recorded interviews; and (3) argue more vigorously the motion to dismiss the conspiracy charge. These arguments are not persuasive. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996) (holding that defendant suffers no prejudice from counsel’s alleged failures when there is no reasonable probability that he would have prevailed on the issues had they been raised). Accordingly, the district court properly denied Hawk’s petition. See Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (stating that federal habeas scheme “authorizes federal-court intervention only when a state-court decision is objectively unreasonable”), reh’g denied, U.S. -, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217616/ | MEMORANDUM **
Raul Pacheco-Duarte pled guilty to conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(vii) and 846, and conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(a)(1) and (h). He appeals from his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Pacheco-Duarte challenges the district court’s two-level enhancement for possession of a dangerous weapon in connection with a conviction for drug trafficking under U.S.S.G. § 2D1.1. We review for clear error the district court’s finding by a preponderance of the evidence that Pacheco-Duarte possessed the gun in connection with the drug conspiracy. See United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir.1997). The gun was found in PachecoDuarte’s residence, in the nightstand of a bedroom containing Pacheco-Duarte’s personal documents and clothing that would have fit him. It was not clear error to conclude that Pacheco-Duarte possessed the gun.
Pacheco-Duarte also challenges the district court’s two-level enhancement because he was a manager or supervisor of the drug trafficking organization under U.S.S.G. § 3Bl.l(c). First, the district court did not abuse its discretion in relying on the hearsay evidence of his role. See United States v. Berry, 258 F.3d 971, 976 (9th Cir.2001). The general description of his role was corroborated by testimony at the sentencing hearing, and there was ample physical evidence for further corroboration. Second, the district court did not clearly err in concluding that he was a *329manager or supervisor. See United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir.2000). The court relied on evidence that Martin Balderrama managed a marijuana stash house for Paeheco-Duarte, as well as the testimony of Agent Jesus Lopez that another codefendant told him he was the middleman between Pacheco-Duarte and another codefendant. Additional evidence connected Pacheco-Duarte to the receipt of large sums of money, such as the $800,000 in unexplained income over a three-year period. “[Piersons who exercise a supervisory or managerial role in the commission of an offense tend to profit more from it.” U.S.S.G. § 3B1.1, Background to Application Notes; United States v. Avila, 95 F.3d 887, 891 (9th Cir.1996).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217618/ | MEMORANDUM**
California state prisoner Earl Otha Jones appeals the district court’s denial of his 28 U.S.C. § 2254 petition challenging his 1997 state sentence for petty theft with a prior felony conviction in violation of California Penal Code § 666. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Jones contends that his 25 year to life sentence under California’s three strikes law, CaLPenal Code Ann. § 667 (West 1999), is cruel and unusual punishment, in violation of the Eighth Amendment. This claim is foreclosed by the Supreme Court’s recent decisions in Lockyer v. Andrade, — U.S.-, 123 S.Ct. 1166, 1175-76, 155 L.Ed.2d 144 (2003) (“affirmance of two consecutive 25 years to life sentences for petty theft was not contrary to or an unreasonable application of clearly established federal law”), and Ewing v. California, — U.S.-, 123 S.Ct. 1179, 1190-91, 155 L.Ed.2d 108 (2003) (holding that petitioner’s 25 years to life sentence under the California three strikes law did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment).
Jones also contends that the manner in which California prosecutes the offense of petty theft with a prior felony conviction within the context of a three strikes offense violates the constitutional prohibition against double jeopardy. This argument lacks merit because “the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” See United States v. Kaluna, 192 F.3d 1188, 1198 (9th Cir.1999) (en banc) (quoting Witte v. United States, 515 U.S. 389, 399, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) for the proposition that recidivist sentencing schemes do not violate double jeopardy clause).
Accordingly, the state court’s denial of Jones’ habeas petition was not an unreasonable application of clearly established Supreme Court authority, and the district court did not err by denying his federal habeas petition. See 28 U.S.C. § 2254(d); Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam), reh’g denied, — U.S. -, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).
AFFIRMED.1
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. All pending motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224379/ | MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Presently before the Court is a motion by the Defendant Jose Bernardino Parra-do (the “Defendant”), pro se, for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, the Court finds that the Defendant is ineligible for a sentence reduction and therefore his motion is denied.
I. BACKGROUND
On June 30, 1994, following a jury trial, the Defendant was convicted of six counts of a twelve-count indictment, including one count of conspiracy to distribute and possess 1,035 kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 846, 841(b)(1)(B) (“Count One”). Based on his conviction on that count under the United States Sentencing Guidelines Manual (the “Sentencing Guidelines”), the Defendant faced a base offense level of 40, with a two-point enhancement for acting in a supervisory capacity, resulting in an adjusted offense level of 42.
In this regard, the August 26, 1994 Pre-Sentence Report (“PSR”) filed by the United States Probation Department noted that with respect to Count One, the Sentencing Guidelines for a 21 U.S.C. § 846 offense was 2Dl.l(a)(3), which at the time provided that offenses involving at least 500 kilograms but less than 1500 kilograms of cocaine had a base offense level of 40. As such, the PSR reported that the base offense level was 40 in the Defendant’s case, because the offense he was convicted of involved 1,035 kilograms of cocaine. Further, the PSR indicated that there needed to be an adjustment for the Defendant’s role in the offense; specifically, since the Defendant acted in a supervisory capacity, 2 levels needed to be added pursuant to Sentencing Guideline 3Bl.l(c), resulting in a total offense level of 42. In addition, having no other previous criminal convictions, the Defendant fell within Criminal History Category I.
Accordingly, based on the total offense level of 42 and a Criminal History of Category I, the Sentencing Guidelines imprisonment range was 360 months to life. Nevertheless, because the maximum statutory term on Count One was 40 years (480 months), the restricted Sentencing Guidelines imprisonment range was 350 to 480 months.
However, the PSR advised, in relevant part, as follows:
According to information from the [United States] Sentencing Commission, there is a proposed amendment to the *299[Sentencing] Guidelines [] effective November 1, 1994 that will limit the maximum base offense level for certain narcotics cases. Under this proposal, the maximum base offense level for narcotics cases under Guideline 2Dl.l(a) will be capped at level 38. As noted in [] this report, the base offense level for Count [One] is now level 40. Whereas, if the amendment is enacted, this level would be level 38. This issue could be considered for possible downward departure under the provisions of Policy Statement 5K2.0. Using the proposed amendment as guidance, the following represents the possible overall guideline modifications if the Court were to downwardly depart by 2 levels, with all other factors being equal:
Total Offense Level: 40
Guideline Imprisonment Range: 292 to 365 months
No other factors are affected.
(PSR, ¶ 85.) On November 1, 1994, the amendment discussed in the PSR went into effect, thereby limiting the maximum base offense level for narcotic cases under Sentencing Guideline 2Dl.l(a) to 38 (the “1994 amendment”).
Approximately three months later, on February 1, 1995, the Court sentenced the Defendant. In this regard, the Court considered, among other items, the PSR, which included the recommendation that the Court consider the 1994 amendment to the Sentencing Guidelines mentioned above. Accordingly, in alignment with the 1994 amendment, the Court held that the total offense level for sentencing purposes in the Defendant’s case was 40 — that is, the Court applied a base offense level of 38 with 2 levels added because the Defendant was found to have acted in a supervisory capacity. In this way, the total offense level for the Defendant was reduced from the pre-1994 amendment total offense level of 42. Based on a total offense level of 40, the Court noted that the resulting Sentencing Guidelines range was 292 to 365 months. As such, the Court sentenced the Defendant to concurrent 292-month prison terms on the six counts of conviction, which included Count One.
The Defendant appealed his conviction and sentence, but his appeal was denied by the Second Circuit on all grounds. United States v. Parrado, 99 F.3d 402 (2d Cir.1995).
II. DISCUSSION
A. Legal Standard
As a general rule, a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007). However, Congress has allowed an exception to that rule, providing in 18 U.S.C. § 3582(c)(2) that:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the [United States] Sentencing Commission pursuant to 28 U.S.C. 994(o), ... the court' may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). The policy statement governing § 3582(c) proceedings is located in § 1B1.10 of the Sentencing Guidelines, and, effective November 1, 2011, gives retroactive effect to the Guidelines Amendments. See § lB1.10(c).
In Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), the United States Supreme Court identified a two step-inquiry for courts to follow in *300adjudicating a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c). At the first step, a court must determine whether the defendant is eligible for a sentence reduction. Dillon, 560 U.S. at 827, 130 S.Ct. 2683. If, and only if, the court finds that the defendant is eligible for a sentence reduction under § 3582(c) and § 1B1.10, “then the second step of the analytical framework set forth in Dillon requires the district court ‘to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.’ ” United States v. Mock, 612 F.3d 133, 137 (2d Cir.2010) (quoting Dillon, 560 U.S. at 827, 130 S.Ct. 2683).
In order for a defendant to be eligible for a sentence reduction, the defendant’s applicable guideline range must have been lowered by the Guidelines Amendment. See § 1331.10(a)(1); see also United States v. Johnson, 633 F.3d 116, 117 (2d Cir.2011). Whether a defendant’s guideline range would be lowered under the Guidelines Amendment requires a court to “determine the amended guideline range that would have been applicable to the defendant if the [applicable Sentencing Guidelines amendment] had been in effect at the time the defendant was sentenced.” § 1131.10(b)(1). - “In making such determination, the court shall substitute only the [Sentencing Guidelines amendment] for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id. Application Note 1 to § 1B1.10 further clarifies that the applicable Sentencing Guidelines range referenced in § ÍB1.10 is “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.l(a), which is determined before any departure provision in the [Sentencing] Guidelines [ ] or any variance.” § 1B1.10 Application Note 1(A).
B. As to Whether the Defendant is Eligible for a Sentence Reduction
Effective November 1, 1994, the United States Sentencing Commission (“Sentencing Commission”) approved the 1994 amendment which altered the base offense levels in § 2Dl.l(a) of the United States Sentencing Guidelines from 40 to 38. In addition, the Sentencing Commission gave the 1994 amendment retroactive application. Relying on this amendment, the Defendant now seeks a reduction in his sentence.
However, the Defendant fails to recognize that at the time of sentencing, the Court did consider the 1994 amendment and applied it to the Defendant’s case. In other words, the Defendant is not eligible for any further sentence reduction, as he has already received the reduction he now seeks at the February 1, 1995 sentencing hearing. Therefore, the Defendant’s request is without merit.
To the extent the Defendant contends in his reply that a reduction is required because the Court applied a total offense level of 40 instead of 38, the Defendant’s argument is unavailing. This is because the Defendant conflates the base offense level with the total offense level. However, the 1994 amendment reduced the base offense levels from 40 to 38, but did not limit the total offense level that could be utilized. In this case, the Court applied a base offense level of 38, in compliance with the Sentencing Guidelines, including the 1994 amendment. The Court then added two levels because the Plaintiff had acted in a supervisory capacity, giving him a total offense level of 40. Accordingly, the Defendant is not eligible for any additional *301reductions to his sentence. See, e.g., Carter v. United States, 91 CR. 586 RPP, 1999 WL 228407, at *3 (S.D.N.Y. Apr. 19, 1999) (“[The defendant] asserts that the November 1, 1994 amendment to the Drug Table is applicable to him and that his sentence should be reduced from a Base Offense Level of 43 to 38 accordingly. However, ... the Court ... utilized a Base Offense Level of 38 and then added three levels for [the defendant’s] supervisory role and two levels for his use of firearms in connection with the offense. Thus, [the defendant’s] Total Offense Level, not his Base Offense Level, was calculated at 43.... For [this] [ ] reason[ ], the Sentencing Guidelines were not applied incorrectly in this case.”).
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED, that the Defendant’s motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) is denied.
SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224380/ | MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On August 31, 2012, the Petitioner John Kaiser (the “Petitioner”), pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The Petitioner, who is presently incarcerated, does not challenge his prison sentence, but rather seeks to receive jail credit for time served on home detention with electronic monitoring. In this regard, the Petitioner argues that the Federal Bureau of Prisons (the “BOP”) has wrongly refused to grant him credit for the approximately 884 days that he was under home confinement in connection with his bail conditions.
For the reasons that follow, the petition is denied.
I. BACKGROUND
On March 25, 2009, the Petitioner was arrested and charged with violating 18 U.S.C. § 2252(a)(2), Receipt of Child Pornography, a Class C Felony. On that same date, March 25, 2009, the Petitioner appeared with CJA-appointed counsel before United States Magistrate Judge A. Kathleen Tomlinson, at which time he was arraigned. The Petitioner was released on a $400,000 secured bond with special conditions, which included home detention with electronic monitoring. Under his home detention, the Petitioner was allowed to leave his residence for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; and other activities pre-approved by the United States Pretrial Services Agency.
On April 23, 2009, the Government filed an eight-count Indictment, charging the Petitioner with receiving child pornography and being in possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), 2252(b)(1) and 3352 et seq. Subsequently, on April 30, 2009, the Petitioner was arraigned on the Indictment and entered a plea of not guilty.
On February 16, 2010, with the Government’s consent, the Petitioner, through his counsel, sought modification of his bail conditions. Specifically, the Petitioner requested that his bail conditions be modified to allow for a night-time curfew of 11:00 p.m., so as to permit the Defendant to work overtime and to attend medical appointments with his wife. The Court granted the Petitioner’s request on February 17, 2010.
On June 14, 2010, the Plaintiff pled guilty before the Court to Count One of the Indictment. Count One charged that on August 8, 2005, the Defendant received child pornography in violation of 18 U.S.C. § 2252(a).
*303On September 9, 2011, the Plaintiff was sentenced in connection with his guilty plea on Count One. In this regard, the Court sentenced the Defendant to seventy-two months. The Court directed that the Plaintiff was to receive credit for time already served, if any, to be followed by five years of supervised release. In addition, upon the Government’s motion, the Court dismissed the remaining seven counts in the Indictment. The Petitioner was remanded to the custody of the United States Marshal.
At the time of his sentencing, the Petitioner had allegedly spent approximately 884 days, or almost two and a half years, under home detention with electronic monitoring as a result of his bail conditions stemming from his original arraignment on March 25, 2009. According to the Petitioner, he should have received jail credit toward his seventy-two month sentence for the time he spent in home confinement prior to his sentencing. However, the BOP will not grant him this credit.
Further, the Petitioner claims that he has attempted to exhaust his administrative remedies to challenge the BOP’s determination, but that he had only completed three of the four steps involved in the administrative remedy process at the time he filed his petition. In this regard, on August 29, 2012, the Petitioner alleges he filed an appeal to the BOP Central Office in Washington, DC (the “Central Office”) challenging the Regional Office’s decision to deny him jail credit. As of November 27, 2012, the Petitioner was still waiting for a final determination from the Central Office on his appeal.
II. DISCUSSION
A. Legal Standard Under 28 U.S.C. § 2255
Relief is available under 28 U.S.C. § 2255 “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir.2000) (internal quotations and citations marks omitted). The Court’s discretion to grant such relief is to be exercised sparingly, for such applications “are in ‘tension with society’s strong interest in the finality of criminal convictions.’ ” Elize v. United States, No. 02-CV-1350 (NGG), 2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008) (NGG) (internal citations omitted); see also Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness,” and “[tjhose few who are ultimately successful [in obtaining ha-beas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation”) (internal quotations and citations omitted).
B. As to the Petition
In this case, the Petitioner seeks habeas corpus relief from this Court in the form of an order either (1) directing the BOP to grant the Petitioner 884 days of jail credit toward his seventy-two month sentence or (2) reducing his sentence to forty-two .months, thereby reflecting the approximately thirty months he served on home detention with electronic monitoring. In support of his position, the Petitioner contends, among other arguments, that the execution of his sentence has (1) violated his right to due process under the Fifth Amendment to the United States Constitution; (2) violated his right to effective assistance of counsel under the Sixth Amendment to the United States Constitu*304tion; and (3) violated his right to equal protection under the Fourteenth Amendment to the United States Constitution.
However, the Court finds the Petitioner’s arguments to be unavailing. “[T]he date from which a defendant’s time is measured to begin the defendant’s sentence is a matter committed to the Bureau of Prisons.” United States v. Masso, 935 F.Supp.2d 739, 740 (S.D.N.Y.2013) (citing United States v. Whaley, 148 F.3d 205, 207-07 (2d Cir.1998)); see also United States v. Savoy, 199 F.3d 1324, 1324 (2d Cir.1999) (“District courts lack authority to downwardly depart on the basis of a defendant’s pretrial home detention: ‘Credit for prior custody ... is granted by the Attorney General through the Bureau of Prisons after a defendant is sentenced, not by a district court at the time of sentencing.’ ”) (quoting United States v. Keller, 58 F.3d 884, 894 (2d Cir.1995)). Accordingly, “[the Petitioner] ‘must first exhaust his administrative remedies before seeking judicial relief ” with respect to his application for jail credit for his pretrial home confinement. Savoy, 199 F.3d at 1324 (quoting Keller, 58 F.3d at 894). The Petitioner has failed to do so, as he admits that he brought this petition prior to receiving any determination on his appeal from the Central Office.
Moreover, “time spent in home confinement is generally not considered to be time in prison for which the defendant is afforded credit.” Masso, 935 F.Supp.2d at 740 (citing United States v. Edwards, 960 F.2d 278, 283 (2d Cir.1992), rev’d on other grounds by United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992)); see also Paul v. United States, 938 F.Supp.2d 405, 409 (E.D.N.Y.2013) (“This court rejects ... that [the petitioner] was entitled to credit for time served while he was on pretrial release .... [A]ny such argument is not only without merit, but frivolous”). Indeed, “[d]espite the restrictive conditions associated with home confinement and electronic monitoring, home confinement does not qualify as ‘official detention’ within the meaning of [the Bail Reform Act, 18 U.S.C.] § 3585(b).” Lewis v. United States, 10-CV-00718 ENV, 2012 WL 2394810, at *2 (E.D.N.Y. June 25, 2012) (citing United States v. Edwards, 960 F.2d 278, 283 (2d Cir.1992)). In addition, despite the Petitioner’s arguments to the contrary in his petition and reply papers, “there is no constitutional requirement that [the Petitioner] had to be notified that home confinement would not be credited against a subsequent sentence ... [Judicial officers setting bail are not required to give notice that pretrial home detention will not be credited against a subsequently imposed sentence!.]” Cucciniello v. Keller, 137 F.3d 721, 725 (2d Cir.1998).
For these reasons, the Court finds the Petitioner’s § 2255 habeas petition is without merit and it is dismissed in its entirety.
III. CONCLUSION
The Petitioner’s § 2255 habeas petition is dismissed in its entirety, and the Clerk of the Court is instructed to close this case.
SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224381/ | MEMORANDUM AND ORDER
TOWNES, District Judge:
In January 2008, plaintiffs Sergeants Benevolent Association Health and Welfare Fund (“SBA”), New England Carpenters Health Benefits Fund (“NEC”) and Allied Services Division Welfare Fund (“ASD”) (collectively “Plaintiffs”) and others commenced this action on behalf of themselves and others similarly situated, principally alleging that defendants sanofi-aventis U.S. LLP and sanofi-aventis U.S., Inc. (collectively, “Defendants”) violated the Racketeer Influenced and Corrupt Organizations Act “(RICO”), 18 U.S.C. § 1961 et seq., and various state laws by misrepresenting the safety and efficacy of Ketek, a prescription antibiotic marketed by Defendants. In December 2011 — after this Court denied Plaintiffs’ motion to certify a nationwide class — Defendants moved for summary judgment. By order dated January 4, 2012, this Court referred the motion to Magistrate Judge Ramon E. Reyes (“Judge Reyes”) for a report and recommendation.
On September 17, 2012, Judge Reyes issued his report and recommendation (the “R & R”)—Sergeants Benev. Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S., LLP, No. 08-CV-0179 (SET) (RER), 2012 WL 4336218 (E.D.N.Y. Sept. 17, 2012) (“Sergeants III”)—which recommends that Defendants’ motion for summary judgment be granted in its entirety. On October 4, 2012, Plaintiffs collectively filed objections to almost every aspect of the R & R. For the reasons set forth below, this Court, having conducted a de novo review of those portions of the R & R to which Plaintiffs object, now adopts Judge Reyes’ R & R except to the extent that it recommends limiting Plaintiffs’ cause of action for violations of various consumer protection statutes to claims brought pursuant to the laws of Plaintiffs’ home states of New York, Massachusetts and Illinois. However, Defendants are granted leave to file a second motion for summary judgment once Plaintiffs clarify the scope of their state-law claims under Counts III and IV of the Second Amended Complaint.
BACKGROUND
In setting forth the facts of this case, the R & R incorporates by reference a much more detailed statement of facts contained in Judge Reyes’ report and recommendation on Plaintiffs’ motion for class certification (the “Prior R & R”): Sergeants Benev. Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S., LLP, No. 08-CV-0179 (SLT) (RER), 2011 WL 824607 (E.D.N.Y. Feb. 16, 2011) (“Sergeants I”), adopted, 2011 WL 1326365 (E.D.N.Y. Mar. 30, 2011) (“Sergeants II”). The Prior R & R itself largely relied on facts set forth in Plaintiffs’ Second Amended Complaint and Plaintiffs’ Proffer of Facts in Support of the Motion for Class Certification (“Plaintiffs’ Proffer”).
*309The following summary of the facts in this case relies, in part, on the Prior R & R. As indicated by the citations contained in the Prior R & R, not all of these facts may be undisputed. However, to the extent that the facts are disputed, the following summary is based on Plaintiffs’ version of events.
Defendants are United States subsidiaries of sanofi-aventis SA, a French pharmaceutical firm (Sec. Am. Complt., ¶¶ 5-6; Answer, ¶¶ 5-6). According to Defendants, the corporation named by Plaintiffs as Sanofí-Aventis U.S., Inc. is actually named sanofi-aventis U.S. Inc. and is not a proper party to this action (Answer, p. 2); the entity named by Plaintiffs as Sanofi-Aventis U.S., LLP, is actually a limited liability company, sanofi-aventis U.S. LLC (id., at 1); and some of the acts which Plaintiffs attribute to Defendants were actually committed by a related entity, Aven-tis Pharmaceutical, Inc. (“API”) (see id., ¶¶ 5, 14-16). For purposes of this memorandum and order, this Court will attribute acts and omissions on the part of one or more of these related entities to Defendants so as to avoid unnecessary complexity.
Sometime prior to March 2000, Defendants developed a prescription antibiotic, telithromycin, which was marketed under the brand name Ketek (Sec. Am. Complt., ¶ 10; Answer, ¶ 10). Early in 2000, Defendants submitted a New Drug Application (“NDA”) to the Office of New Drugs at the United States Food and Drug Administration (“FDA”), seeking approval to sell Ke-tek in the United States (Sec. Am. Complt., ¶ 12; Answer, ¶ 12). That NDA sought to have Ketek approved for the treatment of four specific conditions or “indications”: acute bacterial sinusitis (“ABS”), acute exacerbation of chronic bronchitis (“AECB”), community-acquired pneumonia (“CAP”), and tonsillopharyngi-tis (id.).
In June 2001, the FDA determined that it would not approve Ketek for treatment of tonsillopharyngitis and would only approve Ketek for the treatment of the other three indications if Defendants provided more evidence of Ketek’s safety and efficacy (Sergeants I, 2011 WL 824607, at *1 (citing Plaintiffs’ Proffer at 28)). To provide this evidence, Defendants commissioned a large clinical study known as “Study 3014” (Sec. Am. Complt., ¶ 14; Answer, ¶ 14). Defendants hired Pharmaceutical Product Development, Inc. (“PPD”), a contract research organization, to monitor the study and contracted with another entity, The Copernicus Group, Inc. (“Copernicus”), to monitor patient safety (Sergeants I, 2011 WL 824607, at *2).
Early in the course of its evaluation, PPD raised concerns regarding the integrity of data collected by the office of Dr. Marie Anne Kirkman Campbell, a physician who treated the largest number of patients in the study (Sergeants I, 2011 WL 824607, at *2 (citing Plaintiffs’ Proffer at 31)). Thereafter, the FDA’s Office of Criminal Investigation (“the OCI”) determined that there had been misconduct and protocol violations at several other sites with high patient enrollment (id. (citing Plaintiffs’ Proffer at 38-39)). However, after the FDA again declined to approve Ketek and requested more information regarding Study 3014, Defendants issued a report that, Plaintiffs claim, not only omitted any mention of the study’s problems but falsely represented that the study had been conducted in accordance with good clinical practice (id. (citing Sec. Am. Complt., ¶26)). According to Plaintiffs, Defendants also claimed Ketek’s safety and efficacy profile matched that of other antibiotics, even though they (i) knew “that Study 3014 actually showed that Ketek *310was almost three times more likely to result in a possibly medication-related, serious adverse event; (ii) knew that Ketek was neither more efficacious nor as safe as widely available alternatives; and (iii) knew that claims that Ketek did better against antibiotic resistant pathogens were not scientifically supported” (id. (citing Plaintiffs’ Memorandum In Support Of Class Certification at 3, nn. 10-14)).
In April 2004, after receiving Defendants’ report, the FDA approved Ketek for three indications: ABS, AECB and CAP (Defendants’ Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment (“Defendants’ 56.1”), ¶ 1; Plaintiffs’ Response to Defendants’ Local Rule 56.1 Statement of Undisputed Facts (“Plaintiffs’ 56.1”), ¶ 1). Immediately thereafter, Defendants launched a marketing campaign, seeking to have Ketek prescribed for “off-label” uses in addition to the three indications for which it was approved (Sergeants I, 2011 WL 824607, at *3). The parties agree that physicians are legally permitted to prescribe Ketek for an indication for which it was never approved, and that physicians frequently did so (Defendants’ 56.1, ¶ 50; Plaintiffs’ 56.1, ¶ 50).
That marketing campaign, which was aimed at physicians and other members of the healthcare community, initially proved successful. According to the Prior R & R, Ketek was prescribed over 3 million times in 2005 and had been prescribed over 6.1 million times by 2006 (Sergeants I, 2011 WL 824607, at *3). However, Ketek sales began to decline in January 2006 after the FDA released a public health advisory that warned physicians to monitor Ketek patients for potential liver problems (id.). In June 2006, after “[twenty-three] cases of acute severe liver injury and [twelve] cases of acute liver failure, [four] of them fatal, had been linked to Ketek,” Defendants changed Ketek’s label to include additional warnings, precautions, contraindications, and adverse reactions pursuant to FDA requirements and sent letters to healthcare professionals about these risks (id. (citing Plaintiffs’ Proffer at 81) (brackets in Sergeants I)). In early February 2007, after Ketek had been “implicated in [fifty-three] cases of hepatotoxic effects” (id. (brackets in Sergeants I)), the FDA withdrew its approval for two indications: ABS and AECB (Defendants’ 56.1, ¶ 3; Plaintiffs’ 56.1, ¶ 3). Even though Ketek remained an FDA-approved drug for the treatment of CAP, Defendants thereafter ceased actively promoting Ketek in the United States (Defendants’ 56.1, ¶¶4-5; Plaintiffs’ 56.1, ¶¶ 4-5).
The Plaintiffs Herein
Plaintiffs are health benefit providers (“HBPs”), which provide health care benefits, including prescription drug benefits, to their members or beneficiaries. SBA, which has its principal place of business in New York, is a not-for-profit benefit fund, established and maintained to provide comprehensive health care benefits to active and retired sergeants of the New York City Police Department and their dependents (Sec. Am. Complt. at ¶ 2; Defendants’ 56.1, ¶ 8; Plaintiffs’ 56.1, ¶ 8). NEC has its principal place of business in Massachusetts and is an employee welfare benefit plan, as defined in section 3(1) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1) (Sec. Am. Complt. at ¶ 3; Defendants’ 56.1, ¶ 9; Plaintiffs’ 56.1, ¶ 9). ASD, which has its principal place of business in Illinois, is a multiemployer employee welfare benefit plan, within the meaning of section 3(37) of ERISA, 29 U.S.C. § 1002(37) (Sec. Am. Complt. at ¶ 4; Defendants’ 56.1, ¶ 10; Plaintiffs’ 56.1, ¶ 10).
Plaintiffs and other HBPs are also called third-party payors or “TPPs” because they pay certain medical costs on behalf of their *311members. However, the decision regarding what medications will be prescribed for Plaintiffs’ members is made by the members’ physicians. The parties agree that a variety of factors contribute to a physician’s decision, including patient-specific factors and the physician’s own experience with, and knowledge about, the various options (Defendants’ 56.1, ¶¶ 38-41; Plaintiffs’ 56, 1, ¶¶ 38-41). Plaintiffs maintain that safety is “paramount” concern which impacts every prescription decision (Plaintiffs’ 56.1, ¶¶ 38-41), but neither Plaintiffs nor Defendants maintain that safety is the sole determinant. Plaintiffs and Defendants agree that Ketek has competitors, some of which are more expensive than Ketek and some of which are lower-priced generics (Defendants’ 56.1, ¶ 48; Plaintiffs’ 56.1,¶ 48). In addition, the parties agree that those physicians who elect not to prescribe Ketek for AECB and ABS are likely to prescribe one of these competing antibiotics (Defendants’ 56.1, ¶ 47; Plaintiffs’ 56.1,¶ 47).
The prescription drug benefits offered by Plaintiffs are administered by Pharmacy Benefit Managers (“PBMs”). In addition, at least one of the Plaintiffs — NEC— has delegated to a PBM the decision regarding what medications to include in the “formulary” — the list of drugs for which the TPP will pay (Defendants’ 56.1, ¶ 13; Plaintiffs’ 56.1, ¶ 13). PBMs typically use Pharmacy and Therapeutics (“P & T”) Committees comprised of pharmacists, physicians and other healthcare professionals to determine what medications to include (Defendants’ 56.1, ¶ 14; Plaintiffs’ 56.1,¶ 14). If a particular drug is prescribed for a plan’s participant and is included in a plan’s formulary, the HBP pays for that prescription in an amount determined by the formulary.
While Plaintiffs all included Ketek -in their formularies at the time relevant to this action, not all Plaintiffs employed the same type of formulary or provided the same extent of coverage. Two of the three Plaintiffs in this case — NEC and ASD— employed a “three tiered formulary,” in which a beneficiary’s co-payment for a particular drug depends on the tier in which that drug is placed (Defendants’ 56.1, ¶ 24; Plaintiffs’ 56.1, ¶ 24). The first tier, in which co-payments are the lowest, typically includes generic drugs (Defendants’ 56.1,¶ 23; Plaintiffs’ 56.1, ¶ 23). The second tier typically includes preferred brand-name drugs and the third tier includes non-preferred brand-name drugs (id.). The third Plaintiff, SBA, did not employ a tiered formulary (Defendants’ 56.1,¶ 25; Plaintiffs’ 56.1, ¶ 25).
The degree to which Plaintiffs covered prescriptions for Ketek is unclear. The parties agree that, between 2002 and 2008, Sav-Rx provided formulary services to ASD (Defendants’ 56.1, ¶ 26; Plaintiffs’ 56.1,¶ 26). However, the corporate representative provided by ASD during discovery did not know the tier in which Ketek appeared, or whether Ketek had been moved from one tier to another during the time in which Sav-Rx served as PBM (Defendants’ 56.1, ¶ 27; Plaintiffs’ 56.1, ¶ 27). ASD switched to another PBM in 2008, which listed Ketek in Tier 2 as of March 2010 (Defendants’ 56.1, ¶¶ 28-29; Plaintiffs’ 56.1, ¶¶ 28-29).
NEC has employed at least two different PBMs since June 1, 2004 (Defendants’ 56.1,¶ 31; Plaintiffs’ 56.1, ¶ 31). Although Ketek has always remained a covered drug under NEC’s plan, it was apparently moved to Tier 3 — the tier with the highest co-payment — at some point in December 2006 (Defendants’ 56.1, ¶ 32; Plaintiffs’ 56.1,¶ 32).
In contrast, the parties agree that SBA’s coverage of Ketek has remained the same since the drug was approved by the FDA *312in 2005 (Defendants’ 56.1, ¶ 30; Plaintiffs’ 56.1, ¶ 30). However, the parties disagree about the degree of coverage. Defendants maintain that SBA’s formulary covered all FDA-approved drugs and did not distinguish between preferred, non-preferred and generic drugs (Defendants’ 56.1, ¶ 25). In contrast, Plaintiffs maintain that, at all relevant times, SBA employed a “mandatory generic program” to “promote the use of costreffective generic alternatives” (Plaintiffs’ 56.1, ¶ 25). However, SBA did not cease paying for brand-name drugs that have a generic equivalent until January 1, 2009 (Id.).
The Instant Action
The three Plaintiffs and Louisiana Attorney General Charles C. Foti, Jr. — acting in his official capacity and on behalf of, inter alia, the Louisiana Department of Health and Hospitals — commenced this action against Defendants on January 14, 2008. The original complaint sought to bring a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of “a class of consumers and third-party payors that have paid or incurred costs for ... Ketex” (Complaint at ¶ 2). In an amended complaint filed approximately two weeks later, the proposed class was amended to omit “consumers,” The amended complaint identified the class that Plaintiffs sought to represent as “consisting of all health insurance companies, third-party administrators, health maintenance organizations, self-funded health and welfare benefit plans, third-party payors and any other health benefit provider, including governmental entities, which paid or incurred costs for ... Ketex” (Am. Complt., ¶ 1).
The original complaint and the amended complaint both alleged that this Court had subject-matter pursuant to 28 U.S.C. § 1332(d)(2), which provides for original jurisdiction over class actions in which the matter in controversy exceeds $5 million and “any member of a class of plaintiffs is a citizen of a State different from any defendant” (Complt., ¶ 9; Am. Complt. at ¶ 9). The amended complaint raised only two causes of action or “counts,” both of which were based on violations of state law. The first cause of action alleged that Defendants engaged in unfair competition or unfair or deceptive acts or practices in violation of various state consumer protection statutes, including laws of New York, Massachusetts and Illinois — the States in which Plaintiffs are based. The second cause of action alleged unjust enrichment.
On May 21, 2008, Attorney General Foti filed a notice of voluntary dismissal, dismissing the Louisiana plaintiffs’ claims against Defendants without prejudice. About two weeks later, Plaintiffs filed a Second Amended Complaint. That pleading not only deleted all references to the Louisiana defendants but also added two RICO claims: one count alleging a substantive violation of 18 U.S.C. § 1962(c), and a second count alleging a RICO conspiracy in violation of 18 U.S.C. § 1962(d).
The substantive RICO claim alleges that the “association-in-fact” between Defendants, PPD, and Copernicus constituted a criminal enterprise, which Plaintiffs dub the “study 3014 Enterprise,” According to Plaintiffs, the members of the criminal enterprise had “a common purpose — to enable Sanofi-Aventis to fraudulently represent that Ketek had valid regulatory approval for broad antibiotic uses” (Sec. Am. Complt., ¶ 74). To that end, they participated in a criminal scheme “calculated to ensure that Ketek was approved, and approved for as many indications as possible, despite the lack of adequate safety studies, the lack of superior efficacy and inferi- or safety profile compared to other safer, less expensive antibiotics already sold in the US. market” (Id. at ¶ 80). In further-*313anee of the scheme, Defendants allegedly “conducted and participated in the affairs of the study 3014 Enterprise through patterns of racketeering activity,” including “acts indictable under 18 U.S.C. § 1341 (mail fraud), § 1343 (wire fraud), § 1512 (tampering with witnesses), and § 1952 (use of interstate facilities to conduct unlawful activity)” (Sec. Am. Complt., ¶ 77) (parentheses in original).
The RICO conspiracy claim alleges that the Defendants violated 18 U.S.C. § 1962(d) by conspiring to violate § 1962(c) in the manner described above. According to the Second Amended Complaint, the “object of this conspiracy was and is to conduct or participate in, directly or indirectly, the conduct of affairs of the study 3014 Enterprise ... through a pattern of racketeering activity” (Sec. Am. Complt., ¶ 88). In furtherance of the conspiracy, Defendants allegedly committed numerous overt acts, including “(a) Multiple instances of mail and wire fraud violations of 18 U.S.C. §§ 1341 and 1342; (b) Multiple instances of mail fraud violations of 18 U.S.C. §§ 1341 and 1346; (c) Multiple instances of wire fraud violations of 18 U.S.C. §§ 1341 and 1346; and (d) Multiple instances of unlawful activity in violation of 18 U.S.C. § 1952 (Sec. Am. Complt., ¶ 92) (parentheses and brackets added).
In May 2010, Plaintiffs moved to certify a class including all TPPs which paid or incurred costs for Ketek between April 1, 2004, and February 12, 2007. This Court referred the motion to Judge Reyes for a report and recommendation. On February 16, 2011, Judge Reyes issued the Prior R & R — Sergeants I — recommending that class certification be denied because Plaintiffs could not establish through generalized proof that Defendants’ alleged RICO violations caused Plaintiffs’ alleged injuries. In reaching that determination, Judge Reyes principally relied on UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir.2010) (“Zyprexa”) — a case which had been decided approximately six months before Judge Reyes issued his Pri- or R & R.
Plaintiffs timely objected to portions of the Prior R & R. However, in a memorandum and order dated March 30, 2011— Sergeants II — this Court concluded that those objections were without merit and adopted the Prior R & R in its entirety. Plaintiffs then petitioned the Second Circuit Court of Appeals for leave to appeal this Court’s order on class certification, but that petition was denied on July 28, 2011, on the ground that immediate appeal was unwarranted.
Defendants’ Motion for Summary Judgment
On December 22, 2011, Defendants moved for summary judgment with respect to all four causes of action or “counts” listed in the Second Amended Complaint. Defendants’ motion essentially consists of two parts, which are discussed separately and in some detail in the Discussion section below. First, Defendants argue that the RICO claims set forth in Counts I and II fail as a matter of law because Plaintiffs cannot prove causation under RICO and cannot establish that they themselves suffered any injury as result of the alleged RICO violations. Second, Defendants argue that Plaintiffs’ state-law claims fail as a matter of law because Plaintiffs cannot prove a violation of any of the state consumer protections statutes listed in Count III of the Second Amended Complaint and cannot make out unjust enrichment under New York, Massachusetts or Illinois law.
On January 4, 2012, the Court referred Defendants’ motion for summary judgment to Judge Reyes for a report and recommendation. On September 17, 2012, Judge Reyes issued the R & R—Sergeants III— *314in which he recommends that Defendants’ motion be granted in its entirety. On October 4, 2012, Plaintiffs collectively filed objections to the R & R, specifically addressing almost every portion of the R & R. Judge Reyes’ recommendations with respect to each portion of Defendants’ motion and Plaintiffs’ objections thereto are discussed below.
DISCUSSION
I. Standards of Review
In reviewing a plaintiffs objection to a report and recommendation issued by a magistrate judge, the district court applies the standard of review set forth in 28 U.S.C. § 636(b)(1) and Rule 72(b)(3) of the Federal Rules of Civil Procedure. Under both provisions, a district court is to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); accord Fed.R.Civ.P. 72(b)(3). Upon de novo review, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A district court, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
In conducting de novo review of those portions of the R & R which recommend granting summary judgment, this Court is mindful that summary judgment is appropriate only when “there is no genuine issue as to any material fact and the movant party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, ie., whether it concerns facts that can affect the outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotation marks omitted; brackets added).
The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the movant meets this burden, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990); see Fed.R.Civ.P. 56(e). The non-movant cannot avoid summary judgment “through mere speculation or conjecture” or “by vaguely asserting the existence of some unspecified disputed material facts” Western World, 922 F.2d at 121 (internal quotations and citations omitted). Moreover, the disputed facts must be material to the issue in the case, in that they “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
When evaluating a motion for summary judgment, “[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it appears that the evidence supporting the non-movant’s case is *315so scant that a rational jury could not find in its favor.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996). “If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (quoting Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505) (brackets in Scotto).
II. The RICO Claims
A. Defendants’ Motion for Summary Judgment on Counts I and II
In the first portion of their motion for summary judgment, Defendants focus primarily on causation, one of the elements of a RICO claim. Defendants note that, in order to prove this'element, Plaintiffs must prove that the predicate acts underlying the RICO violations alleged in Counts I and II of the Second Amended Complaint were both the but-for cause and proximate cause of an injury to Plaintiffs. Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment (“Defendants Memo”) at 9. Citing to Zyprexa, Defendants argue that Plaintiffs cannot prove but-for causation through generalized proof, since the individual physicians’ decisions to prescribe Ketek for Plaintiffs’ beneficiaries were based on many factors and not solely on Plaintiffs’ exaggerated claims regarding Ketek’s safety and efficacy. Id. at 10. Defendants maintain that “for each Ketek prescription that allegedly caused Plaintiffs injury,” Plaintiffs have to prove that the “physician would not have prescribed Ketek but for the Defendants’ alleged fraud.” Id. at 11.
In addition, Defendants argue that Plaintiffs cannot establish proximate causation through generalized proof. Defendants note that a member’s physician’s decision to prescribe Ketek would not result in injury to a Plaintiff unless Ketek was included in that Plaintiffs’ formulary. Id. at 12. Defendants assert that “to prove RICO causation, Plaintiffs must ... prove that Defendants’ alleged fraud caused the P & T Committees to approve the use and reimbursement of Ketek in a manner that was different from what would have occurred absent Defendants’ alleged fraud” and “prove that the P & T Committees’ decisions that were based on Defendants^] alleged fraud actually resulted in Plaintiffs paying for more Ketek prescriptions than they otherwise would have.” Id. at 12-13. Defendants then argue that there is no evidence to prove that Plaintiffs’ PBMs relied on Defendants’ alleged fraud in making formulary decisions regarding Ketek and that generalized proof on this issue will not suffice. Id. at 13-15.
Finally, Defendants contend that Plaintiffs cannot establish that they were injured as a result of the RICO violations unless “they can prove that they made a prescription drug payment that they would not have made absent Defendants’ alleged fraud.” Id. at 17. Defendants note that “[i]t is undisputed that, had physicians not prescribed Ketek for AECB and ABS, they likely would have prescribed some other antibiotic,” id., and that “Plaintiffs admit that several of the alternative^] ... were more expensive than Ketek.” Id. at 18. Again relying on Zyprexa, Defendants assert that Plaintiffs cannot prove by common evidence what antibiotic would have been prescribed in lieu of Ketek. Defendants note that Plaintiffs do not offer any individualized proof, but instead assume that “every prescription for a non-CAP indication caused the class members injury in an amount equal to the amounts they paid for the Ketek prescriptions.” Id. (emphasis in original).
B. Plaintiffs’ Opposition
In their Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs’ *316Opposition”), Plaintiffs acknowledge that, in order to establish RICO causation, Plaintiffs must establish a “sufficiently direct” relationship between Defendants’ alleged RICO violations and Plaintiffs’ alleged injury. Plaintiffs’ Opposition at 10. However, Plaintiffs maintain that, despite the presence of other factors in the causal chain, a sufficiently direct relationship may exist “so long as the plaintiffs injury was ‘a foreseeable and natural consequence of the defendant’s misconduct.” Id. (citing Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 658, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)). Plaintiffs emphasize that Bridge and other Supreme Court cases establish that plaintiffs need not prove that they themselves relied on Defendants’ misrepresentations in order to make out RICO causation. Id. at 11.
Plaintiffs assert that Zyprexa — the Second Circuit case on which Defendants rely and on which Judge Reyes relied in recommending that this Court deny Plaintiffs’ motion for class certification — was incorrectly decided. Specifically, Plaintiffs assert that the Second Circuit “misreads” Hemi Group LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010)—the most recent of the Supreme Court’s four opinions on RICO causation — in holding that a physician’s prescribing decision interrupted the causal chain between a pharmaceutical company’s misrepresentations and a TPPs injuries. Plaintiffs’ Opposition at 14. Plaintiffs read Zyprexa as holding that “independent actions” of third or fourth parties render the relationship between the company’s wrongdoing and the TPPs’ injuries insufficiently direct, and assert that Hemi Group held only that “there is no proximate cause when those non-party actions are ‘independent’ of the RICO scheme.” Plaintiffs’ Opposition at 14. Plaintiffs assert that this case is analogous to Desiano v. Warner-Lambert Co., 326 F.3d 339 (2d Cir.2003), and BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750 (7th Cir.2011)—cases in which courts found RICO causation under facts which, Plaintiffs assert, are similar to the facts herein. Plaintiffs’ Opposition at 15.
Plaintiffs concede that physicians may consider individual factors in determining what medication to prescribe, but argue safety considerations lie at the “heart of every prescription decision.” Plaintiffs’ Opposition at 17. Plaintiffs reason that Defendants’ “omission of critical health risk information necessarily affected, and was a substantial contributing factor for, every prescription decision by a physician as well as Plaintiffs’ coverage and payment decisions.” Id. at 18. Plaintiffs do not specifically address Defendants’ claims that Plaintiffs have failed to prove that Defendants’ alleged misconduct affected the PBMs’ decision making, arguing that “[wjhere Ketek existed on Plaintiffs’ for-mularies is irrelevant.” Id. at 16 (brackets added). Plaintiffs argue that what is relevant is that “Plaintiffs paid for Ketek prescriptions that would not have been written but for [Defendants’] fraud.” Id. (brackets added). In support of the latter proposition, Plaintiffs cite to testimony from their expert, Dr. Meredith Rosenthal, for the proposition that “the most important factor [is] that [Ketek] went from a blockbuster drug within eighteen months to virtually zero.” Id. at 17 (brackets in original). Plaintiffs note that their own experiences also support this proposition, noting that SBA paid for nearly 1,000 Ke-tek prescriptions between 2004 and the end of 2006, 24 prescriptions in 2007, and no prescriptions at all in 2008. Id.
C. Judge Reyes ’ Recommendations
In his R & R, Judge Reyes concludes that “Plaintiffs’ RICO claims fail as a matter of law” because Plaintiffs can*317not establish causation, an essential element of such claims. Sergeants III, 2012 WL 4336218, at *4. Quoting Zyprexa, Judge Reyes notes that in order to make out a RICO claim, a plaintiff must establish, inter alia, that the RICO violation was the proximate cause of plaintiffs injury. In the Civil RJCO context, proximate causation requires a “direct relationship between the plaintiffs injury and the defendant’s injurious conduct.” Id. at *3 (quoting Zyprexa, 620 F.3d at 132). However, Judge Reyes holds that, in this case as in Zyprexa, “ ‘the independent actions of prescribing physicians’ interrupt the causal relationship between the predicate act and Plaintiffs’ harm, thereby ‘thwart[ing] any attempt to show proximate cause through generalized proof,”’ Id. (quoting Zyprexa, 620 F.3d at 135) (brackets in Sergeants III). Construing Zyprexa as “recogniz[ing] that prescribing decisions are based, to varying degrees, on factors independent of the alleged misrepresentation,” id. at *4, Judge Reyes concludes that individualized proof is required to show proximate cause under RICO and that “Plaintiffs’ generalized proof is insufficient.” Id.
The R & R specifically addresses some of Plaintiffs’ arguments in opposition to summary judgment. First, Judge Reyes rejects Plaintiffs’ contention that “a party who suffers an injury that is a ‘foreseeable and natural result’ of a defendant’s conduct may satisfy RICO causation even where intervening factors are present.” Id. at *3. Judge Reyes notes that the Supreme Court has emphasized that “in the RICO context, the focus is on the directness of the relationship between the conduct and the harm,” rather than on foreseeability. Id. (quoting Hemi Group, 559 U.S. at 12, 130 S.Ct. 983). Second, Judge Reyes responds to Plaintiffs’ assertion that Zyprexa “misreads” the Supreme Court’s decision in Hemi Group by noting that “district courts are bound ‘to follow controlling precedents of the courts of appeals for their circuits.’ ” Id. (quoting Jackson v. Good Shepherd Servs., 683 F.Supp.2d 290, 292 (S.D.N.Y.2009)). Third, in response to Plaintiffs’ argument that “Defendants’ alleged omission of critical health information necessarily affected every physician’s prescribing decision because physicians always consider safety in making treatment decisions,” id. at *4, the magistrate judge notes that “[although safety may be a fundamental consideration in a physician’s prescription decision,” the Second Circuit has recognized that “physicians ... make prescribing decisions based on a multitude of factors,” and “that prescribing decisions are based, to varying degrees, on factors independent of the alleged misrepresentation.” Id.
D. Plaintiffs’ Objections
Plaintiffs objeqt to Judge Reyes’ recommendation that their RICO claims be dismissed, relying on Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), for the proposition that RICO’s proximate causation requirement can be “satisfied where the plaintiffs injury was a foreseeable and natural result of the defendant’s conduct, even where other actors served as links in the causal chain.” Plaintiffs’ Objections to the Sept. 17, 2012, Report & Recommendation (“Objections”) at 7. Asserting that this case “parallels BCS Services ” — a Seventh Circuit case which the Second Circuit has allegedly cited with approval — Plaintiffs argue that BCS Services implies that the intervening acts of third parties do not' necessarily “break the chain of causation” when a “plaintiff presents evidence that he suffered the sort of injury that would be the expected consequence of the defendant’s wrongful conduct.” Id. at 10-11. Plaintiffs distinguish Hemi Group, noting *318that the plaintiffs injury in that case was “unrelated to the defendant’s fraud.” Id. at 12.
Plaintiffs also assert that “[njeither RICO nor any rule of civil procedure or evidence bars the use of aggregate evidence” in this case. Id. at 13. Plaintiffs assert that Defendants’ “omission of critical safety information about Ketek’s serious liver risks affected all doctors and all Ketek prescription decisions for sinusitis and bronchitis indications at issue,” claiming that prescriptions for those two indications “completely disappeared” once the liver risks were disclosed. Id. at 14 (emphasis in original). Plaintiffs further assert that the R & R implies that “the only way to show marketing fraud ... is to drag each and every doctor into court to talk about each and every prescription decision he or she made to determine whether [Defendants’] omission of critical safety information had any effect on each decision ...,” id., and that this would be practically impossible.
E. Discussion
The RICO claims set forth in Plaintiffs’ first two causes of action are brought pursuant to 18 U.S.C. § 1964(c), which provides a private right of action to “[a]ny person injured in his business or property by reason of a violation of [Title 18,] section 1962” of the United States Code. The first cause of action alleges that Defendants violated the 18 U.S.C. § 1962(c), which makes it “unlawful for any person employed by or associated with” an enterprise engaged in or affecting interstate or foreign commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity .... ” The second cause of action alleges that Defendants violated 18 U.S.C. § 1962(d) by conspiring to violate § 1962(c) in the manner described above.
The Supreme Court has recognized that language of § 1964(c) “can ... be read to mean that a plaintiff is injured ‘by reason of a RICO violation, and therefore may recover, simply on showing that the defendant violated § 1962, the plaintiff was injured, and the defendant’s violation was a ‘but for’ cause of plaintiffs injury.” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-66, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). However, in Holmes, the Supreme Court expressly declined to give the language “such an expansive reading,” finding it very unlikely that “Congress meant to allow all factually injured plaintiffs to recover.” Id. at 266, 112 S.Ct. 1311. Rather, the Holmes Court — like many Circuit Courts of Appeals that had previously considered the issue, id. at n. 11 (citing, inter alia, Sperber v. Boesky, 849 F.2d 60 (2d Cir.1988))—held that not mere factual, but proximate, causation is required. Id. at 268, 112 S.Ct. 1311.
The Holmes Court “use[d] ‘proximate cause’ to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts.” Id. at 268, 112 S.Ct. 1311. Thus, “[p]roximate cause for RICO purposes ... should be evaluated in light of its common-law foundations.... ” Hemi Group, 559 U.S. at 9, 130 S.Ct. 983. However, “RICO causation is a concept distinct from ‘proximate causation as that term is used at common law.’ ” McBrearty v. Vanguard Group, Inc., 353 Fed.Appx. 640, 642 n. 1 (2d Cir.2009) (summary order) (quoting Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 237 (2d Cir.1996)). “The concepts of direct relationship and foreseeability are ... two of the ‘many shapes [proximate cause] took at common law,’ ” Hemi Group, 559 U.S. at 12, 130 S.Ct. 983 (quot*319ing Holmes, 503 U.S. at 268, 112 S.Ct. 1311) (brackets in Hemi Group), and “foreseeability is often the test of proximate causation at common law.” McBrearty, 353 Fed.Appx. at 642 n. 1 (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928)). However, forseeability is not the focus of the proximate cause determination in RICO cases. Rather, “the focus is on the directness of the relationship between the conduct and the harm.” Hemi Group, 559 U.S. at 12, 130 S.Ct. 983. In analyzing whether there is proximate cause in the RICO context, the Supreme Court has placed “particular emphasis on the ‘demand for some direct relation between the injury asserted and the injurious conduct alleged,’” Bridge, 553 U.S. at 654, 128 S.Ct. 2131 (quoting Holmes, 503 U.S. at 268, 112 S.Ct. 1311), stating that “[w]hen a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiffs injuries.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006).
There are three rationales for this emphasis on a direct relationship between the defendant’s wrongdoing and the plaintiffs’ injury. As the Supreme Court has explained:
The direct-relation requirement avoids the difficulties associated with attempting “to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent, factors,” Holmes, 503 U.S., at 269, 112 S.Ct. 1311; prevents courts from having “to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the viola-tive acts, to obviate the risk of multiple recoveries,” ibid.; and recognizes the fact that “directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely,” id., at 269-270, 112 S.Ct. 1311
Bridge, 553 U.S. at 654-55, 128 S.Ct. 2131.
Because “[pjroximate cause ... is a flexible concept that does not lend itself to a black-letter rule that will dictate the result in every case,” id. at 654, 128 S.Ct. 2131 (internal quotations and citations omitted) (brackets and ellipses added), there is no precise standard that can be used to determine whether RICO causation exists. However, the Supreme Court has decided four cases over the last 22 years which have directly addressed the issue. In the last of those four cases — the 2010 decision in Hemi Group — the Supreme Court reviewed the three prior cases and extracted some basic principles relating to RICO causation.
Writing for a four-justice plurality in Hemi Group, Chief Justice Roberts first discussed Holmes, the 1992 case which first enunciated the RICO causation standard, In Holmes, the Securities Investor Protection Corporation (“SIPC”), a private nonprofit corporation which has a duty to reimburse customers of certain registered broker-dealers in the event that the broker-dealers are unable to meet their financial obligations, brought a RICO claim against 75 defendants who had allegedly conspired to manipulate stock prices. When the conspiracy was detected, stock prices declined, rendering the broker-dealers unable to meet their obligations and leaving SIPC to reimburse the broker-dealers’ customers.
The Holmes Court held that SIPC could not recover against the conspirators under RICO because it could not establish that it was injured “by reason of’ the alleged fraud as required by 18 U.S.C. § 1964(c). After holding that proximate causation re*320quired “some direct relation between the injury asserted and the injurious conduct alleged,” 503 U.S. at 268, 112 S.Ct. 1311, the Holmes Court held that the connection between the alleged conspiracy and SIPC’s injury was “too remote” to satisfy RICO’s direct relationship requirement. Id., at 271, 112 S.Ct. 1311. The Court stated:
[T]he link is too remote between the stock manipulation alleged and the [broker-dealers’] customers’ harm, being purely contingent on the harm suffered by the broker-dealers. That is, the conspirators have allegedly injured these customers only insofar as the stock manipulation first injured the broker-dealers and left them without the wherewithal to pay customers’ claims. Although the customers’ claims are senior (in recourse to “customer property”) to those of the broker-dealers’ general creditors, the causes of their respective injuries are the same: The broker-dealers simply cannot pay their bills, and only that intervening insolvency connects the conspirators’ acts to the losses suffered by the nonpurchasing customers and general creditors.
Id. (internal citation omitted; bracketed material added). After laying out these multiple steps between the alleged wrongdoing and the plaintiffs injury, the Holmes Court noted that “[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step,” and that this general tendency also applied to proximate cause inquiries under RICO. Id. at 271-72, 112 S.Ct. 1311 (internal quotations and citations omitted).
The Hemi Group plurality next examined Anza, a 2006 decision which addressed a RICO claim brought by the Ideal Steel Supply Corporation (“Ideal”) against a competing entity, National Steel Supply, Inc., and its principals, Joseph and Vincent Anza (collectively, “National”). Ideal claimed that National had defrauded New York State by failing to charge and remit sales taxes, enabling National to undercut Ideal’s prices and, thereby, to attract customers at Ideal’s expense. Although the district court granted National’s motion to dismiss, the Second Circuit reversed, holding that “where a complaint alleges a pattern of racketeering activity ‘that was intended to and did give the defendant a competitive advantage over the plaintiff, the complaint adequately pleads proximate cause, and the plaintiff has standing to pursue a civil RICO claim.’ ” Anza, 547 U.S. at 455, 126 S.Ct. 1991 (quoting Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 263 (2d Cir.2004)).
The Supreme Court reversed the Second Circuit, finding the link between the tax fraud allegedly perpetrated upon the State of New York and the injury suffered by Ideal to be “attenuated.” Id., at 459, 126 S.Ct. 1991. As Chief Justice Roberts explained in Hemi Group, Anza:
recognized that Ideal had asserted “its own harms when [National] failed to charge customers for the applicable sales tax.” But the cause of Ideal’s harm was “a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State).” The alleged violation therefore had not “led directly to the plaintiffs injuries,” and Ideal accordingly had failed to meet RICO’s “requirement of a direct causal connection” between the predicate offense and the alleged harm.
Hemi Group, 559 U.S. at 10-11, 130 S.Ct. 983 (internal citations omitted, brackets and parentheses in original).
In deciding Hemi Group, Chief Justice Roberts compared the facts in that case to the facts in Holmes and Anza. In Hemi Group, the City of New York, which taxes the possession of cigarettes, brought a *321RICO action against Hemi Group, a New Mexico entity which sells cigarettes online, seeking to recover amounts lost in unre-covered tax revenues. While New York State and City laws did not require Hemi Group to charge, collect, or remit the tax, a federal law — -the Jenkins Act — required ■Hemi Group to provide customer information to the states into which their cigarettes were shipped. Pursuant to an agreement between New York State and New York City, the State would forward the Jenkins Act information to the City, enabling the latter to take action to collect taxes from the online purchasers.
In analyzing the City’s causal theory in Hemi Group, Chief Justice Roberts found it “far more attenuated than the one ... rejected in Holmes.” 559 U.S. at 9, 130 S.Ct. 983. The Chief Justice noted that the City’s theory involved multiple steps, stating:
According to the City, Hemi committed fraud by selling cigarettes to city residents and fading to submit the required customer information to the State. Without the reports from Hemi, the State could not pass on the information to the City, even if it had been so inclined. Some of the customers legally obligated to pay the cigarette tax to the City failed to do so. Because the City did not receive the customer information, the City could not determine which customers had failed to pay the tax. The City thus could not pursue those customers for payment. The City thereby was injured in the amount of the portion of back taxes that were never collected.
Id. After citing Holmes for the proposition that the “general tendency ... not to go beyond the first step” “applies with full force to proximate cause inquiries under RICO” Chief Justice Roberts concluded, “Because the City’s theory of causation requires us to move well beyond the first step, that theory cannot meet RICO’s direct relationship requirement.” Id. at 10, 130 S.Ct. 983.
Chief Justice Roberts then compared the facts- of Hemi Group to Anza, and concluded:
The City’s claim suffers from the same defect as the claim in Anza. Here, the conduct directly responsible for the City’s harm was the customers’ failure to pay their taxes. And the conduct constituting the alleged fraud was Hemi’s failure to file Jenkins Act reports. Thus, as in Anza, the conduct directly causing the harm was distinct from the conduct giving rise to the fraud.
Id. at 11, 130 S.Ct. 983 (internal citation omitted).
At the end of his opinion, the Chief Justice distinguished the Supreme Court’s 2008 decision in Bridge — a case involving competing bidders at a county tax-lien auction. In those auctions, liens on real property were awarded based on how small a tax penalty the bidder was willing to accept from property owners. Since multiple bidders routinely offered not to charge any tax penalty, the county allocated the liens between such bidders on a rotating basis. Recognizing that bidders who employed agents to bid on their behalf could obtain a disproportionate share of the liens, the county adopted a “Single, Simultaneous Bidder Rule,” requiring each bidder to submit bids in its own name and prohibited bidders from using agents to submit simultaneous bids for the same parcel.
In Bridge, one regular participant in the auctions, Phoenix Bond and Indemnity Co. (“Phoenix”), brought RICO claims against another participant, alleging a violation of the Single, Simultaneous Bidder Rule. Although Phoenix alleged that its competitor *322had defrauded the county, and not Phoenix, the Supreme Court held that Phoenix had met RICO’s causation requirement. As Chief Justice Roberts explained in his opinion in Hemi Group:
[T]he plaintiffs theory of causation in Bridge was “straightforward”: Because of the zero-sum nature of the auction, and because the county awarded bids on a rotational basis, each time a fraud-induced bid was awarded, a particular legitimate bidder was necessarily passed over. The losing bidders, moreover, were the only parties injured by petitioners’ misrepresentations. The county was not; it received the same revenue regardless of which bidder prevailed.
559 U.S. at 14-15, 130 S.Ct. 983 (internal quotations and citations omitted; brackets added). The Chief Justice then contrasted the facts in Hemi Group to those in Bridge, stating:
The City’s theory in this case is anything but straightforward: Multiple steps ... separate the alleged fraud from the asserted injury, And in contrast to Bridge, where there were “no independent factors that accounted] for [the plaintiffs] injury,” here there certainly were: The City’s theory of liability rests on the independent actions of third and even fourth parties.
Id. at 15, 130 S.Ct. 983 (internal citation omitted) (brackets in original).
In their Objections to that portion of the R & R which recommends granting Defendants summary judgment dismissing Plaintiffs’ civil RICO claims, Plaintiffs principally rely on BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750 (7th Cir.2011)—a case arising from the same exact facts as Bridge. In Bridge, the Supreme Court affirmed a Seventh Circuit opinion authored by Judge Posner: Phoenix Bond & Indemnity Co. v. Bridge, 477 F.3d 928 (7th Cir.2007). On remand, the district court granted summary judgment to the defendants on the ground that the plaintiffs could not prove that the fraud was a “proximate cause” of their alleged losses. The plaintiffs then appealed to the Seventh Circuit, which consolidated the case with BCS Services, a case which the Seventh Circuit deemed “materially identical” to Bridge. 637 F.3d at 751.
Although BCS Services involves the same facts as Bridge, the Supreme Court made a critical assumption in Bridge: that the county auctioneers had awarded the tax liens in cases in which multiple bidders tied for lowest bidder on a “rotational basis.” Bridge, 553 U.S. at 643, 128 S.Ct. 2131. As Judge Posner clarified in his opinion in BCS Services, that assumption was incorrect. In fact, auctioneers attempted to award the bids to the low bidder who raised his or her hand first. BCS Services, 637 F.3d at 752. However, while the awards were not made on a “strict rotational basis,” they could nonetheless be characterized as “the random product of guesswork.” Id. at 753.
Although the facts in this case are quite different from the facts in BCS Services and Bridge, Plaintiffs argue that “[t]he instant case parallels BCS Services.” Objections at 11. In advancing this argument, Plaintiffs make much of the factual distinction between BCS Services and Bridge, arguing:
BCS Services involved the actions of independent third parties — auctioneers— whose decisions ultimately determined whether the plaintiffs would be harmed or not: whether they would win the tax liens on which they bid. The presence of these third parties did not disrupt the forseeability or directness of the injury to the plaintiffs.... ”
Objections at 11.
The three-judge panel which decided BCS Services, however, viewed the factual *323distinction between that case and Bridge as essentially insignificant. In his opinion on behalf of the unanimous panel, Judge Posner found the relationship between the defendants’ wrongdoing and the plaintiffs’ injuries direct enough to satisfy the proximate cause requirement. See BCS Services, 637 F.3d at 756. Although the defendants violated the county’s rule limiting related entities to a single bidding agent, that rule “was intended for the benefit of unrelated bidders,” rather than for the benefits of the county itself, which received the same amount of money regardless of who won the auction. Id. Accordingly, the defendants’ law-abiding fellow bidders were both the intended and only victims of the RICO violation.
While the Seventh Circuit recognized that the auctioneers decisions were intervening acts in the chain of causation, it tacitly concluded that these random decisions, over time, would produce roughly the same result as awarding bids on a strictly rotational basis. The Seventh Circuit noted:
The only intermediate cause and effect pair was the raising of hands (cause) and the auctioneer’s determination of the winning bid (effect), and this pair doesn’t weaken the inference that by having more hands in the air the defendants stole tax liens from the other bidders. That would be obvious if the auctioneers awarded tax liens in identical-bid cases on a strictly rotational basis, as the Supreme Court assumed when, in its opinion affirming our previous decision, it characterized the plaintiffs’ theory of causation as “straightforward.” 553 U.S. at 647, 128 S.Ct. 2131; see also Hemi Group.... Straightforward it was and after discovery straightforward it remains because ... random awards ... are similar to awards made on a strictly rotational basis.
BCS Services, 637 F.3d at 757. In other words, although an individual decision by an auctioneer might be unpredictable (like a single coin flip), the auctioneers’ random decisions over time could be expected to result in an equal distribution across all bidders (just as a long series of coin flips can be expected to average 50% heads, 50% tails). Since the intervening acts of the auctioneers were, in the aggregate, as predictable as a strict rotation, the effect of the misconduct on the honest bidders remained calculable. See Hemi Group, 559 U.S. at 14, 130 S.Ct. 983 (implying that the injury to the honest bidders in Bridge (and BCS Services) was calculable “[b]e-cause of the zero-sum nature of the auction, and because the county awarded bids on a rotational basis, each time a fraud-induced bid was awarded, a particular legitimate bidder was necessarily passed over”).
In this case, in contrast, the intervening acts which interrupt the causal chain between Defendants’ RICO violations and Plaintiffs’ injuries cannot be readily predicted. Very broadly stated, Defendants in this case allegedly violated RICO by fraudulently exaggerating the safety and efficacy of a prescription antibiotic in order to boost sales and revenues. However, Defendants’ alleged misconduct would not result in injury to Plaintiffs unless doctors relied on the fraudulent information in prescribing the antibiotic to patients insured by Plaintiffs. As recognized by the Second Circuit in Zyprexa— the case on which Judge Reyes relied in his R & R — the prescribing decisions of physicians are based on so many factors as to defy any efforts to categorically attribute them to a particular cause.
In Zyprexa, as here, TPPs sued a pharmaceutical company, Eli Lilly & Company (“Lilly”), alleging that the company exaggerated the efficacy and safety of a pre*324scription medication, Zyprexa, in the course of promoting off-label uses of the medication. The TPPs moved to certify a class of TPPs that had paid for Zyprexa prescriptions, arguing that these class members had been injured (1) “by paying for Zyprexa prescriptions that would not have been issued but for the alleged misrepresentations” (the “Quantity Effect Theory”) and (2) “by paying a higher price for Zyprexa than would have been charged absent the alleged misrepresentations” (the “Excess Price Theory”). Zyprexa, 620 F.3d at 123. Lilly cross-moved for summary judgment. The district court, believing that the case, “[bjoiled down,” presented “an overpricing claim,” denied the motion for summary judgment, In re Zyprexa Prods. Liab. Litig., 493 F.Supp.2d 571, 576 (E.D.N.Y.2007), and certified a class of TPPs under the Price Effect Theory. In re Zyprexa Prods. Liab. Litig., 253 F.R.D. 69 (E.D.N.Y.2008).
Both of the district court’s decisions were appealed to the Second Circuit, which addressed both appeals simultaneously in Zyprexa. That opinion began by addressing the class certification issue, noting that the parties agreed that the requirements of Federal Rule of Civil Procedure 23(a) were satisfied but disagreed as to whether questions of law or fact common to class members predominated over any questions .affecting only individual members. Zyprexa, 620 F.3d at 131. After observing that “[e]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof,” id. (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002)), the Second Circuit proceeded to consider whether “substantial elements” of the civil RICO claim against Eli Lilly could be “established by generalized, rather than individualized, proof.” Id.
The Second Circuit first addressed the Excess Price Theory and determined that neither but-for causation nor proximate causation could be established through generalized proof. First, the Court held that since “doctors do not generally consider the price of a medication when deciding what to prescribe ... [,] reliance by doctors on misrepresentations as to the efficacy and side effects of a drug ... was not a but-for cause of the price that TPPs ultimately paid for each prescription.” Id. at 133-34. Second, the Court held that the multiple step causal chain and the “independent actions of third and even fourth parties” precluded using generalized proof to establish proximate causation. Id. at 134. The Second Circuit stated:
[I]f plaintiffs’ factual allegations are correct, the chain of causation runs as follows: Lilly' distributes misinformation about Zyprexa, physicians rely upon the misinformation and prescribe Zyprexa, TPPs relying on the advice of PBMs and their Pharmacy and Therapeutics Committees place Zyprexa on their formular-ies as approved drugs, TPPs fail to negotiate the price of Zyprexa below the level set by Lilly, and TPPs overpay for Zyprexa. Thus, in this case “the conduct directly causing the harm was distinct from the conduct giving rise to the fraud.” Hemi Group, 130 S.Ct. at 990. Plaintiffs’ “theory of liability rests on the independent actions of third and even fourth parties,” id. at 992, as physicians, PBMs, and PBM Pharmacy and Therapeutics Committees all play a role in the chain between Lilly and TPPs.
Id.
The Second Circuit then turned to the Quantity Effect Theory, holding that cau*325sation could not be established by generalized proof under that theory, either. The Court noted that the chain of causation was “simpler” under the Quantity Effect Theory than under the Excess Price Theory, comprising only four steps:
TPPs place Zyprexa on their formular-ies as approved drugs, Lilly distributes misinformation about Zyprexa, physicians rely upon the misinformation and prescribe Zyprexa, and TPPs pay for too many Zyprexa prescriptions.
Id. at 135. However, the Court noted that the third step involved an intervening act — the writing of prescriptions — which interrupted the causal chain, stating:
The nature of prescriptions ... means that this theory of causation is interrupted by the independent actions of prescribing physicians, which thwarts any attempt to show proximate cause through generalized proof. Plaintiffs argue that “the ultimate source for the information on which doctors based their prescribing decisions was Lilly and its consistent, pervasive marketing plan.” Lilly was not, however, the only source of information on which doctors based prescribing decisions. An individual patient’s diagnosis, past and current medications being taken by the patient, the physician’s own experience with prescribing Zyprexa, and the physician’s knowledge regarding the side effects of Zyprexa are all considerations that would have been taken into account in addition to the alleged misrepresentations distributed by Lilly.
Id.
In addition, the Court noted that the plaintiffs could not show injury by generalized proof. The plaintiffs’ expert, Dr. Harris, assumed, inter alia, that Zyprexa sales would never have risen above the levels which existed after more accurate information about Zyprexa’s side effects became public and that all prescriptions above that level constituted “excess” prescriptions, for which the plaintiffs were entitled to recover. However, the Second Circuit rejected the expert’s reasoning, expressing “uncertainty about what the alternatives to an ‘excess’ prescription would have been.... ” Id. The Court stated:
Dr. Harris ... seems to imply that the alternative to an off-label prescription is no prescription at all.... Plaintiffs have not presented any evidence to show that, had Zyprexa not been prescribed, no medication would have been prescribed, nor that possible alternatives, such as antidepressants, would have been less expensive than Zyprexa.
Id. at 135-36. The Court then summarized:
All of these variables show that the quantity effect theory is. no more demonstrable with generalized proof than the excess price theory. Plaintiffs cannot use generalized proof when individual physicians prescribing Zyprexa may have relied on Lilly’s alleged misrepresentations to different degrees, or not at all, when some excess prescriptions may not have actually caused loss, given the likelihood of substitute prescriptions for other drugs, and when different TPPs may have paid for different “excess” quantities of prescriptions.
Id. at 136 (citing Hemi Group, 130 S.Ct. at 992).
After “declining] to affirm class certification based on the quantity effect theory,” id. (alteration added), the Second Circuit vacated the district court’s order denying summary judgment to Lilly. First, the Court held that the Excess Price Theory was no longer viable in light of Hemi Group, stating, “[ajfter Hemi Group, it is clear that plaintiffs’ overpricing theory is too attenuated to ‘meet RICO’s requirement of a direct causal *326connection between the predicate offense and the alleged harm.’ ” Id. (citing Hemi Group, 130 S.Ct. at 990). Because the district court had “not considered] individual claims under the quantity effect theory when it ruled on Lilly’s motion for summary judgment,” id. (Brackets added), the Court declined to consider whether summary judgment with respect to the quantity effect theory was appropriate. However, the Second Circuit noted, “The quantity effect theory ... is less attenuated, and while that theory cannot support class certification, it is not clear that the theory is not viable with respect to individual claims by some TPPs or other purchasers.” Id.
In his R & R, Judge Reyes relies on Zyprexa in recommending that this Court grant the Defendants’ motion for summary judgment. However, Judge Reyes does not rely upon the portions of Zyprexa which addressed the motion for summary judgment in that case. Rather, the R & R relies on Zyprexa for the proposition that RICO causation cannot be proved through generalized proof. Judge Reyes reasons that, since Plaintiffs rely entirely on generalized proof, they cannot prove their civil RICO claims and Defendants are entitled to summary judgment on the Second Amended Complaint’s first two causes of action.
Plaintiffs object to this portion of the R & R on various grounds. First, referencing arguments raised in connection with the motion for class certification, Plaintiffs argue that “Zyprexa is both wrong and distinguishable from this case.” Objections at 13. Plaintiffs concede “that doctors consider a multitude of variables when making prescription decisions, including issues individual to each patient,” but argue that safety considerations are central to the prescription decision and are “always considered in treatment decision making.” Id. at 15. Thus, Defendants’ “omission of critical safety information about Ketek’s serious liver risks affected ... all Ketek prescription decisions for sinusitis and bronchitis indications at issue,” as evidenced by the fact that “prescriptions for these two indications ... completely disappeared” after the liver risks were disclosed. Id. at 14 (emphasis omitted). Plaintiffs argue that these facts are sufficient to establish RICO causation in this case. Id. In addition, Plaintiffs argue that the federal rules permit the use of aggregate proof and that such proof is the only feasible and reliable way to establish the effects of Defendants’ wrongdoing. Id.
To begin, this Court does not believe that Zyprexa was wrongly decided. However, even if it were, this Court would nonetheless be obligated to follow it. As Judge Reyes correctly "notes in his R & R, “district courts are bound ‘to follow controlling precedents of the courts of appeals for their circuits.’ ” 2012 WL 4336218, at *3 (quoting Jackson v. Good Shepherd Servs., 683 F.Supp.2d 290, 292 (S.D.N.Y.2009)).
This Court agrees with Plaintiffs that this case is distinguishable from Zyprexa, albeit not in ways that are material to the outcome of this case. In Zyprexa, the alleged racketeering enterprise — which the plaintiffs in that case dubbed “the Off-Label Promotion Enterprise” — was alleged to be engaged in mail and wire fraud aimed at promoting the off-label use of Zyprexa by misrepresenting the drug’s safety and efficacy. Zyprexa, 620 F.3d at 131. Accordingly, Lilly’s wrongdoing was primarily aimed at physicians and consumers. In this case, the “Study 3014 Enterprise” primarily sought to obtain FDA approval “for as many indications as possible, despite the lack of adequate safety studies, the lack of superior efficacy and inferior safety profile compared to other safer, less *327expensive antibiotics already sold in the U.S. market.” Second Amended Complaint at ¶ 80. Having obtained FDA approval, Defendants then represented to physicians and consumers “that Ketek had valid regulatory approval for broad antibiotic uses.” Second Amended Complaint at ¶ 74.
The causal chain in this case, therefore, is slightly longer than in Zyprexa. To prove liability under the Quantity Effect Theory, for example, the plaintiffs in Zy-prexa had to establish: “TPPs place Zy-prexa on their formularies as approved drugs, Lilly distributes misinformation about Zyprexa, physicians rely upon the misinformation and prescribe Zyprexa, and TPPs pay for too many Zyprexa prescriptions.” Zyprexa, 620 F.3d at 135. In order to prove liability under the Quantity Effect Theory in this case, Plaintiffs have to establish that Defendants fraud resulted in FDA approval for additional indications, that Plaintiffs placed Ketek on their for-mularies as approved drugs, that Defendants represented to physicians and consumers that Ketek had valid regulatory approval for broad antibiotic uses, that these representations resulted in “excess” prescriptions for Ketek, and that Plaintiffs paid for these excess prescriptions.
Given the length of the causal chain, this Court has concerns as to whether the causal connection between Defendant’s alleged wrongdoing and Plaintiffs injury might be too attenuated to meet RICO’s causation requirement. As noted above, there are multiple steps between Defendants’ alleged wrongdoing and Plaintiffs’ alleged injury. However, even assuming, arguendo, that the chain of causation is not too attenuated, Plaintiff cannot prove causation through generalized proof for the same reasons stated in Zyprexa. First, here as in Zyprexa, Plaintiffs’ “theory of causation is interrupted by the independent actions of prescribing physicians.” Zyprexa, 620 F.3d at 135. A physician’s decision regarding what antibiotic to prescribe can be based on a number of factors: the patient’s diagnosis, past and current medications being taken by the patient, the physician’s (and the patient’s) experience with a particular antibiotic, and the physician’s knowledge of the side effects of the antibiotics. See id. Thus, even assuming that safety considerations are “central,” as Plaintiffs contend, those considerations are not necessarily determinative of a doctor’s decision regarding what to prescribe.
Obviously, in situations where the health risks of a drug are extremely severe, safety considerations might be the sole determinant of a physician’s decision. Plaintiff suggests that this case presents such a situation, asserting that “doctors stopped prescribing Ketek” when “information [regarding the medication’s hepatic side effects] became available.” Objections at 4. However, Plaintiffs’ assertions are inconsistent with the actual prescription figures, as reflected in a chart reproduced in Judge Reyes’ Prior R & R 2011 WL 824607, at *9. Sales did not drop to zero immediately after the FDA issued a public health advisory relating to Ketek’s liver toxicity in January 2006, Rather, sales declined in a manner consistent with the cyclical manner in which sales had declined during the same months the previous year.
Even assuming that the decline in Ketek sales was caused exclusively by safety considerations, one cannot use generalized proof to determine the injury to Plaintiffs caused by Defendants’ misconduct. Here, as in Zyprexa, determination of the extent of Plaintiffs’ financial injury as a result of Defendants’ deception is complicated by uncertainty as to what alternatives to Ke-tek would have been prescribed had doctors known of Ketek’s true efficacy and *328side effects. Given the existence of other antibiotics, one cannot assume that the alternative to a Ketek prescription would be no prescription at all and permit Plaintiffs to recover the entire amount they expended on Ketek prior to the exposure of Defendants’ fraud. Rather, to calculate the injury to Plaintiffs, one would have to consider several variables, including the alternatives to Ketek that could be prescribed for a particular condition and the relative costs of those alternatives.
The variables discussed above distinguish this case from In re U.S. Foodservice Inc. Pricing Litigation, 729 F.3d 108 (2d Cir.2013), the case on which Plaintiffs principally rely in their Second Notice of Supplemental Authority. That case involved fraud by a large food distributor— U.S. Foodservices, Inc., or “USF” — which contracted to supply its customers with goods at a set mark-up over USF’s costs. The RICO scheme “centered on six Value Added Service providers (“VASPs’), which ... allegedly] were shell companies established and controlled by USF for the purpose of fraudulently inflating USF’s cost to its customers.” Id. at 113 (ellipses and brackets added).
In upholding class certification in a suit brought by USF’s customers, the Second Circuit emphasized the lack of variables. For example, the Second Circuit noted, inter alia, that- “the thrust of the RICO claim is USF’s scheme to create and employ the VASPs to inflate the invoices so as to overbill each class member in the exact same manner,” id. at 119 (emphasis in original); that “USF’s cost-plus contracts” with various customers were, “substantially similar in all material respects,” id.; that there was no need for individual proof that customers relied on the fraudulent representations because payment of the inflated invoices could “constitute circumstantial proof of reliance based on the reasonable inference that customers who pay the amount specified in an inflated invoice would not have done so absent reliance upon the invoice’s implicit representation that the invoiced amount was honestly owed,” id. at 120; and that calculation of damages was “straightforward: customers are entitled to the difference between the amount they paid on fraudulently inflated cost-plus invoices and the amount they should have been billed.” Id. at 123. Accordingly, In re U.S. Foodservice Inc. Pricing Litigation was unlike this case in that there were no customer-specific variables to interrupt the chain of causation between the alleged fraud and the injury to the plaintiff class.1
For the reasons stated above, this Court agrees with Judge Reyes’ conclusion that individualized proof would be necessary to establish RICO causation in this case. Since Plaintiffs do not argue that they are prepared to offer individualized proof, this Court also agrees with Judge Reyes’ con-*329elusion that Defendants are entitled to summary judgment on the RICO claims.
III. The State Law Claims
In addition to moving to dismiss the RICO claims raised in Counts I and II of Plaintiffs’ Second Amended Complaint, Defendants move to dismiss the state-law claims raised in Count III and IV. Count III alleges that Defendants, through misrepresentations and omissions of material fact aimed at Plaintiffs, the Class and “the medical and scientific community,” engaged in unfair competition or unfair or deceptive acts or practices in violation of 43 state statutes, including 815 Ill. Comp. Stat. 505/2 et seq.; Mass. Gen. Laws, ch. 93A, § 1 et seq.; and N.Y. Gen. Bus. Law § 349 et seq. Count IV alleges that Defendants were unjustly enriched as a result of their alleged wrongdoing and seeks “restitution of Defendants’ wrongful profits, revenues and benefits to the extent and in the amount ... deemed appropriate by the Court ....”
A. Defendants’ Motion for Summary Judgment on Count III
In seeking summary judgment on Count III, Defendants assert that “Plaintiffs cannot prove violations of any state consumer protection act.” Defendants’ Memo at 19. However, noting that “Plaintiffs’ Complaint does not state under which state consumer protection acts Plaintiffs bring their individual claims,” Defendants assume that Plaintiffs are suing either “under the state consumer protection acts of their home states, New York, Illinois, and Massachusetts,” or Defendants’ home state of New Jersey. Id. at 19 & n. 17. Accordingly, Defendants do not analyze the consumer protection statutes of any other states other than New York, Illinois, Massachusetts, and New Jersey, but “reserve the right” to make arguments “[t]o the extent Plaintiffs’ response to Defendants’ Motion for Summary Judgment clarifies Plaintiffs’ individual claims.” Id. at 19, n. 16.
Some of Defendants’ arguments for summary judgment are state specific. First, citing to In re Rezulin Products Liability Litigation, 392 F.Supp.2d 597, 614 (S.D.N.Y.2005) (“Rezulin”), Defendants argue that “Plaintiffs’ ... claims under New York law fail because the alleged deceptive conduct of Defendants was not directed at consumers.” Defendants’ Memo at 19 (emphasis in original). Defendants also rely on Rezulin in arguing that Plaintiffs’ claims under New Jersey’s consumer fraud act fail “for the same reason — the alleged fraud was not directed at consumers.” Id. at 19, n. 17.
The remainder of Defendants’ arguments apply to all of Plaintiffs’ home states. Defendants cite to various cases for the proposition that the consumer protection acts in Plaintiffs’ home states “require that a plaintiff prove that the alleged wrongful conduct by the defendant caused an actual injury to the plaintiff.” Id. at 19. Defendants argue that Plaintiffs have no proof that either “individual prescribing physicians” or “their own PBMs relied on Defendants’ alleged fraud and thereby caused Plaintiffs’ economic injury.” Id. at 20. In addition, Defendants argue that “Plaintiffs themselves did not take any action as a result of Defendants’ alleged fraud that caused them economic injury.” Id.
B. Plaintiffs’ Opposition to Defen-, dants’Motion regarding Count III
In their opposition to Defendants’ Motion, Plaintiffs clarify that they are seeking to sue under the consumer protection laws of all states in which doctors prescribed Ketek for a condition other than CAP which was filled by one of their *330beneficiaries. Plaintiffs’ Opposition at 21. Plaintiffs assert that there are “at least nineteen different states” in which these prescriptions were written and filled: Arizona, California, Connecticut, Florida, Georgia, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah and Washington. Id. at 21 & n. 116. However, because Defendants’ arguments related, to only four of these states, Plaintiffs’ Opposition does not discuss the laws of the other fifteen states.
In addressing Defendants’ arguments, Plaintiffs distinguish Rezulin on its facts. Plaintiffs point out that Rezulin involved misrepresentations allegedly made to PBMs by a pharmaceutical manufacturer seeking to have its drugs included on for-mularies. Plaintiffs argue that this case is distinguishable because Plaintiffs “complain of misrepresentations and omissions directed to the health care community at large, including to physicians, not just to PBMs.” Id. at 23. Plaintiffs further argue that this case is analogous to Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 704 N.Y.S.2d 177, 725 N.E.2d 598 (N.Y.1999), which involved “an .extensive marketing campaign” with a “a broad impact on consumers at large.” Plaintiffs’ Opposition at 23.
Plaintiffs also argue that the laws of Plaintiffs’ home states do not require proof of reliance on Defendants’ misrepresentations. Citing to several Massachusetts and Illinois cases, Plaintiffs argue that causation can be established through evidence that “the deceptive advertising could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have acted.... ” Id. at 22 (internal quotations omitted, brackets in original). In addition, Plaintiffs argue that actual injury can be established simply from the fact that physicians stopped prescribing Ketek after the truth regarding its safety and efficacy emerged. Id.
In their reply papers, Defendants cite to cases from all nineteen states listed by Plaintiffs in arguing that “the consumer fraud statutes of each of the states ... require proof of causation and/or actual injury.” Defendants’ Reply Memorandum of Law (“Defendants’ Reply”) at 6, Defendants argue that Plaintiffs cannot prove that Defendants’ alleged fraud caused them to pay for Ketek prescriptions because they have not offered any evidence that their PBMs’ placement of Ketek on their formularies would have been different if they had known of Ketek’s “ ‘true’ safety and efficacy” and cannot “show that the physicians who prescribed Ketek would have written a different prescription but for the alleged fraud.” . Id. at 8. Defendants also argue that this case is similar to Rezulin and distinguishable from Gaidon because the misrepresentations at issue were made to sophisticated parties rather than consumers. Id.
C. Judge Reyes’ Recommendations and Plaintiffs’ Objections Thereto
Relying on Rezulin and In re K-Dur Antitrust Litigation, Civil Action No. 01-1652(JAG), 2008 WL 2660783, at *5 (D.N.J. Mar. 19, 2008) (report and recommendation of Special Master) (“K-Dur”), Judge Reyes recommends that this Court consider only those state-law claims that arise under the laws of Plaintiffs’ home states. Sergeants III, 2012 WL 4336218, at *5. Judge Reyes then analyzes Plaintiffs claims under the New York, Massachusetts and Illinois statutes named in Count III of the Second Amended Complaint. With respect to New York law, the magistrate judge notes that New York General Business Law § 349 protects against de*331ceptive acts and unlawful practices that are “consumer oriented,” but that the acts and practices in this case were aimed at sophisticated parties, not consumers. 2012 WL 4336218, at *5-*6. Second, principally relying on Rule v. Fort Dodge Animal Health, Inc., 604 F.Supp.2d 288 (D.Mass.2009), aff'd, 607 F.3d 250 (1st Cir.2010), Judge Reyes concludes that Plaintiffs cannot establish the actual injury necessary to make out a claim under chapter 93A of the Massachusetts General Laws. 2012 WL 4336218, at *6. Finally, citing to Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 850 (Ill.2005), Judge Reyes holds that Plaintiffs must prove “that they suffered actual damage proximately caused by [Defendants’] alleged deception to prevail on their Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) claim.” 2012 WL 4336218, at *7 (alteration added). Judge Reyes concludes that Plaintiffs lack such proof for “the same reasons Plaintiffs were unable to establish RICO causation.” Id.
Plaintiffs object to all of Judge Reyes’ recommendations. First, Plaintiffs again argue that Rezulin is distinguishable because it involved misrepresentation to the PBMs alone, not to “the health care community at large.” Objections at 17. Second, Plaintiffs cite to several Second Circuit cases for the proposition that HBPs are “consumers” under New York law, and argue that omissions which have a broad impact on consumers violate New York General Business Law § 349. Objections at 17-18. Third, Plaintiffs assert that the evidence they have adduced is sufficient to establish actual injury under chapter 93A of Massachusetts General Law and the ICFA. Objections at 18-19.
D. Discussion regarding Count III
Before addressing the merits of the claims set forth in Count III of Plaintiffs’ Second Amended Complaint, this Court must address the question of what state law violations must be considered in this case. In his R & R, Judge Reyes, principally relying on Rezulin, 392 F.Supp.2d at 611 n. 85, recommends that this Court consider only those state-law claims that arise under the laws of Plaintiffs’ home states. 2012 WL 4336218, at *5. Plaintiffs object to this portion of the R & R, arguing that the cases on which Judge Reyes relied are distinguishable. Objections at 16-17.
This Court agrees with Plaintiffs, To be sure, Rezulin involves facts which seem similar to the case at bar. In Rezulin, as here, the plaintiffs were health benefit plans which claimed that the defendant, a pharmaceutical company, misrepresented the safety and efficacy of one of its drugs. However, in Rezulin, unlike this case, “[t]he premise of the suit [was] ... that the plaintiffs would have excluded Rezulin from their formularies and thus paid less ... if [the defendant] had not made those alleged misrepresentations.” 392 F.Supp.2d at 599.
In the portion of the Rezulin opinion quoted by Judge Reyes, Judge Kaplan addressed the question of whether a New York plaintiff, “ES,” could assert “claims under the consumer protection and deceptive trade practices statutes of 26 states”— namely, New York and 25 other states in which the drug at issue was dispensed to ES’s beneficiaries. Id. at 611. However, ES was “not suing derivatively for injury to its members,” but rather for misrepresentations made by the New Jersey-based pharmaceutical company, ‘WL,” to the plaintiff and its New Jersey-based pharmacy benefits manager, “Medco.” Id. at 611, n. 85. Since there was “nothing in the record to suggest that activities in connection with the misrepresentations occurred *332anywhere other than New Jersey and, perhaps, New York,” the only “potentially relevant states” were “(1) New York, the state in which ES is based and in which it suffered injury, and (2) New Jersey, the state in which WL and Medco are based and in which WL made the alleged misrepresentations to Medco.” Id. at 611 & n. 85. The laws of the states in which the drug was distributed to plan beneficiaries were “immaterial.” Id. at 611, n. 85.
In this case, however, Plaintiffs claim that Defendants’ misrepresentations and omissions were “directed to the health care community at large, including physicians, not just to PBMs” or HBPs. Plaintiffs’ Opposition at 23. Thus, the misrepresentation and omissions at issue in this case were made in states in which the physicians who prescribed Ketek to Plaintiffs’ members practiced, not just in the states in which the HBPs or their PBMs were based. This Court cannot, therefore, cannot rely on Rezulin in dismissing all. claims brought under the laws of states other than New York, Illinois and Massachusetts — the states in which Plaintiffs are based.2
In their motion for summary judgment, Defendants analyze only the New York, Illinois, Massachusetts, and New Jersey laws listed in Count III of the Second Amended Complaint. Indeed, while Defendants’ Memo reserved the right to make arguments relating to any other state laws on which Plaintiffs relied, Defendants’ Memo at 19, n. 16, arguments relating to other state laws first appeared in Defendants’ Reply. Since Plaintiffs have not had a chance to respond to these arguments, this Court will not address them at this time. Rather, this Court will address only the arguments relating to New York, New Jersey, Illinois and Massachusetts law at this time.3
1. New York Law
Section 349(a) of the New York General Business Law prohibits “[djeceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” in the State of New York. “As enacted in 1970, the statute entrusted sole enforcement power to the Attorney-General.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (N.Y.1995). However, in 1980, the Legislature enacted section 349(h), which creates a private right of action for “any person who has been injured by reason of any violation of [§ 349].”
In order to make out a claim under § 349, a plaintiff must prove three elements: “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608, 611 (N.Y.2000). In their motion for summary judgment, Defendants argue that Plaintiffs cannot make out the first or third element. *333However, Judge Reyes’ R & R addressed only the first of these elements, recommending that this Court grant Defendants summary judgment on the ground that Defendants’ acts or omissions were not consumer-oriented. Sergeants III, 2012 WL 4336218, at *5-*6.
The “consumer-oriented” element has its origins in Oswego Laborers’ Local 211 Pension Fund, swpra — a case brought by two union funds against a bank to recover lost interest. In that case, the Court of Appeals limited the scope of the statute by defining the term “deceptive acts and practices” to mean “representations or omissions ... likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers’ Local 214 Pension Fund, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d at 745. However, while recognizing that § 349 was “directed at wrongs against the consuming public,” id., 85 N.Y.2d at 24, 623 N.Y.S.2d 529, 647 N.E.2d at 744, the Court of Appeals did not limit the protection of the statute to unsophisticated consumers. Rather, the Court of Appeals made clear that “plaintiffs claiming the benefit of section 349” could be “entities such as the plaintiffs” in that action — union funds similar to Plaintiffs. Id., 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d at 744. Indeed, even “corporate competitors ... have standing to bring a claim under this [statute] ... so long as some harm to the public at large is at issue.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033 (2d Cir.1992)) (brackets and second set of ellipses in Schnabolk, first set of ellipses added).
In requiring that the defendant’s conduct be “consumer-oriented,” the Court of Appeals sought to exclude from the scope of the statute “[pjrivate contract disputes” and other conduct “unique to the parties.” Oswego Laborers’ Local 214 Pension Fund, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d at 744. Thus, the Court required plaintiffs to “demonstrate that the acts or practices have a broader impact on consumers at large.” Id. Even though the parties in Oswego Laborers’ Local 211 Pension Fund were both sophisticated parties, “defendant Bank dealt with plaintiffs’ representative as any customer entering the bank to open a savings account, furnishing the Funds with standard documents presented to customers upon the opening of accounts.” Id., 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d at 745. Noting that “[t]he account openings were not unique to these two parties, ... private in nature or a ‘single shot transaction,’ ” the Court of Appeal held that the union funds “satisfied the threshold test in that the acts they complain of are consumer-oriented in the sense that they potentially affect similarly situated consumers.” Id., 85 N.Y.2d at 26-27, 623 N.Y.S.2d 529, 647 N.E.2d at 745.
Similarly, the New York Court of Appeals held that the consumer-oriented requirement was satisfied by the plaintiffs in Gaidon v. Guardian Life Ins. Co., supra, a putative class action brought on behalf of those who had purchased a particular type of life insurance policy from the defendants. Although the named plaintiffs included the trustees of trust funds, the Court of Appeals focused on the nature of the defendants’ allegedly wrongful practices, rather than the named plaintiffs’ level of sophistication. The Court held that, “[i]n contrast to a private contract dispute as to policy coverage,” the defendants’ practices “involved an extensive marketing scheme that had ‘a broader impact on consumers at large.’ ” Gaidon, 94 N.Y.2d at 344, 704 N.Y.S.2d 177, 725 N.E.2d at 603.
*334In construing § 349, the Second Circuit has expressly recognized that misrepresentations to regulatory entities can constitute “consumer-oriented” acts or omissions. In Securitron Magnalock, supra, the manufacturer of electromagnetic locks and related locking system equipment brought a § 349 claim against the president of one of its competitors, alleging that the defendant had, inter alia, made false statements to the New York City Bureau of Standards and Appeals (“BSA”) concerning the plaintiffs products. After a jury found for the plaintiff on the § 349 claim, the defendant appealed, arguing that there was “absolutely nothing ... showing that this private commercial dispute between the plaintiff and the defendant was aimed at the public.” Securitron Magnalock, 65 F.3d at 264 (emphasis omitted). The Second Circuit rejected that argument, stating:
We think that the harm to the public was manifest. The evidence demonstrated that appellants gave false information about the Securitron Magnalock to the BSA, a regulatory agency primarily concerned with the safety of the public. Schnabolk caused the BSA to undertake unnecessary investigations and interfered with its decision making process by complaining of non-existent “potential danger ... in fire safety situations.” His activities in this respect surely were contrary to the public interest.
Id.
In light of Gaidon and Securitron Magnalock, this Court cannot find that Defendants’ alleged wrongdoing was not consumer-oriented. In this case, as in Gaidon, the alleged wrongdoing is a marketing scheme aimed at the consuming public. As in Securitron Magnalock, the alleged wrongdoing involved misrepresentations to a regulatory agency which were calculated to infect the agency’s decision-making processes in Defendants’ favor and to the possible detriment of consumers. Although these same misrepresentations may also have been made to PBMs, this was not a case, like Rezulin, in which the misrepresentations were made exclusively to PBMs.
Nonetheless, this Court finds that Plaintiffs cannot make out a violation of § 349 because they lack the evidence to prove the third element: that they suffered injury as a result of Defendants deceptive acts. While “reliance is not an element of a section 349 claim,” Plaintiffs “must prove ‘actual’ injury to recover under the statute,” Stutman, 95 N.Y.2d at 29, 709 N.Y.S.2d 892, 731 N.E.2d at 612. That injury need not be pecuniary, id., but it cannot be indirect or derivative. See City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 622, 883 N.Y.S.2d 772, 911 N.E.2d 834, 838 (N.Y.2009).
In this case, Plaintiffs have not adduced sufficient proof of actual injury. Plaintiffs contend that, “[w]hile the truth remained hidden, ... Plaintiffs paid thousands of dollars for hundreds of Ketek prescriptions,” and that Plaintiffs are entitled to recover these payments from Defendants. Plaintiffs’ Opposition at 22. However, this analysis assumes that Plaintiffs would not have had to pay for any antibiotics at all had no misrepresentations been made. There is simply no evidence to support this highly dubious proposition.
To be sure, this Court perceives ways in which Plaintiffs might have suffered actual injury as a result of Defendants’ actions. For example, Plaintiffs could have suffered actual injury if its beneficiaries sustained liver damage as a result of using Ketek or if Defendants’ misrepresentations caused Ketek to be prescribed for conditions for which it was ineffective, necessitating prescriptions for a second round of antibiotics.
*335However, Plaintiffs have not adduced proof of any such circumstances. Moreover, even if they had, such proof might be too indirect or derivative to make out actual injury for purposes of § 349. See, e.g., Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 3 N.Y.3d 200, 207, 785 N.Y.S.2d 399, 818 N.E.2d 1140, 1145 (N.Y.2004) (“Although [the insurer] actually paid the costs incurred by its subscribers, its claims are nonetheless indirect because the losses it experienced arose wholly as a result of smoking related illnesses suffered by those subscribers.”); see also Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 239 (2d Cir.1999) (injuries held to be indirect where they were “purely contingent on harm to third parties”).
2. Massachusetts Law
Plaintiffs have also failed to make out a claim under chapter 93A of Massachusetts General Law. Section 9(1) of chapter 93A creates a private right of action in favor of any person “who has been injured” by another’s unfair or deceptive act. To prove a claim under chapter 93A, section 9(1), a plaintiff “must establish (1) that the defendant has committed a violation of G.L. c. 93A, § 2; (2) injury; and (3) a causal connection between the injury suffered and the defendant’s unfair or deceptive method, act, or practice.” Herman v. Admit One Ticket Agency LLC, 454 Mass. 611, 615-16, 912 N.E.2d 450, 454 (Mass.2009).
In his R & R, Judge Reyes focused on the second element, concluding that defendants’ conduct did not cause cognizable injury. In reaching his conclusion, Judge Reyes relied on Rule v. Fort Dodge Animal Health Inc., 607 F.3d 250 (1st Cir.2010), a case brought by a dog owner who had purchased and administered a heart-worm medicine, ProHeart 6, to her pet. After learning that the medicine had risks which the manufacturer had concealed at the time of her purchase, the plaintiff commenced a putative class action to recover “the difference between the price ... actually paid for ProHeart 6 and what it would have been worth had safety risks been adequately disclosed.” Rule, 607 F.3d at 251-52. Essentially, the plaintiff argued that “she purchased Proheart 6 because of a deception (failure to disclose the risk), the product was ‘in reality’ worth less than she paid for it (because of that undisclosed risk), and so she suffered damage measured by the difference between what she paid and what she would have paid if the risk had been disclosed.” Id. at 253 (parenthetical in original).
In holding that the plaintiff had not suffered a cognizable injury, the First Circuit distinguished Iannacchino v. Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879 (Mass.2008), a class action in which owners of vehicles with allegedly defective door latches alleged a violation of chapter 93A. Although the plaintiffs’ own doors had not malfunctioned, the Supreme Judicial Court of Massachusetts ruled that the plaintiffs had suffered an economic loss redressable under chapter 93A. Id., 451 Mass. at 630, 888 N.E.2d at 886. Specifically noting that the plaintiffs continued to own the vehicles, the Supreme Judicial Court held that the defective vehicles were worth less than the safety-standard-compliant vehicles the plaintiffs thought they were purchasing and that the plaintiffs’ overpayment constituted economic loss compensable under chapter 93A.
In Rule, the First Circuit noted, the pet owner no longer owned any ProHeart 6. Having administered it to her pet, she had obtained the benefits of the product. However, her pet had not suffered any of the adverse health effects — the risks of which caused the product to be worth less. Accordingly, the First Circuit concluded *336that plaintiff had suffered no economic damage since she obtained the heartworm protection sought without any detriment from the concealed latent defect. Rule, 607 F.3d at 254-55.
The First Circuit’s conclusion was consistent with the result in Hershenow v. Enterprise Rent-A-Car Co., 445 Mass. 790, 840 N.E.2d 526 (Mass.2006), a case brought by rental-car customer who had purchased collision damage waivers that contained onerous provisions which violated state law. Although the plaintiffs had returned their cars without damage — giving the rental company no occasion to seek to enforce the allegedly unlawful restrictions — the plaintiffs nonetheless sued the rental car company under chapter 93A. The Supreme Judicial Court, noting that the plaintiffs were not “worse off during the rental period” than if the waiver had fully complied with statutory requirements, held that the plaintiffs could not demonstrate that the illegal contract had caused them any loss or injury. Hershenow, 445 Mass. at 800-01, 840 N.E.2d at 535. As the First Circuit noted, Hershe-now “dooms a claim that an undisclosed risk that is never realized and can never be realized in the future constitutes damages merely because it existed at an earlier stage.” Rule, 607 F.3d at 254.
In seeking damages under chapter 93A in this case, Plaintiffs are not making the exact argument rejected by Rule and Her-shenow. The plaintiffs in those cases were explicitly advancing a price effect theory: namely, that they bought a product which was worth less than it would have been absent its potential risks. Plaintiffs herein argue that doctors would not have prescribed Ketek, and that they would have never paid for Ketek, absent Plaintiffs’ deceptive acts and omissions.
The narrow definition of injury enunciated in Rule and Hershenow, however, dooms Plaintiffs’ chapter 93A claims. Even assuming that doctors would not have prescribed Ketek and that Plaintiffs would not have paid for Ketek, there is no evidence that Plaintiffs suffered any injury for purposes of chapter 93A. Plaintiffs provide no proof that the severe, but rare, risks of Ketek use were ever realized by any of their beneficiaries who took the medicine, causing Plaintiffs’ to incur additional expenses. Moreover, there is no proof that Ketek proved ineffective, causing Plaintiffs to have to pay for a second round of antibiotics. In addition, Plaintiffs do not contend that they themselves possess any Ketek for which they might seek a refund. Accordingly, Plaintiffs have not established an injury of the sort compensa-ble under chapter 93A.
3. Illinois Law
Plaintiffs have also not made out a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq. (the “ICFA”). Section 2 of the ICFA prohibits, inter alia, “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ....” Section 10a(a) of the ICFA,provides a private cause of action for violations of section 2, stating, in pertinent part, “[a]ny person who suffers actual damage as a result of a violation of [the ICFA] committed by any other person may bring an action against such person.”
Although section 2 expressly provides that “unfair or deceptive acts or practices” are unlawful regardless of “whether any person has in fact been misled, deceived or damaged thereby,” the Supreme Court of Illinois has held that that provision applies *337only to actions brought by the Attorney General. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (Ill.2002), In contrast, the Supreme Court has read the language of section 10a as imposing a proximate causation requirement. Id. Thus, “[t]o prove a private cause of action under section 10a(a) of the Act, a plaintiff must establish: (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180, 296 Ill.Dec. 448, 835 N.E.2d 801, 850 (Ill.2005) (citing Oliveira, 201 Ill.2d at 149, 267 Ill.Dec. 14, 776 N.E.2d at 160).
In his R & R, Judge Reyes recommends dismissing Plaintiffs claims under the ICFA, stating that, “[f|or the same reasons Plaintiffs were unable to establish RICO Causation,” Plaintiffs cannot prove that Defendants’ “alleged deception caused them actual harm.” Sergeants III, 2012 WL 4336218, at *7. In support of this conclusion, Judge Reyes cites to Siegel v. Shell Oil Co., 612 F.3d 932 (7th Cir.2010), a putative class action brought by a gasoline consumer who asserted that the defendant oil companies acted in concert by manipulating refinery margins and capacity to reduce the nation’s supply of gasoline and, thereby, caused him to purchase the defendants’ branded gasoline at artificially inflated prices. In particular, Judge Reyes cites to that portion of Siegel in which the Seventh Circuit held that the plaintiff could not “show that the defendants’ conduct caused him to purchase their gasoline, because many factors contributed to Siegel’s gasoline purchasing decision.” Siegel, 612 F.3d at 937.
In their objections to the R & R, Plaintiffs essentially concede that the causation analysis under the ICFA is “similar” to RICO causation. Objections at 19. Plaintiffs argue that they “satisfy RICO causation,” and “likewise satisfy causation under [the ICFA].” Id. Plaintiffs do not cite to any Illinois or Seventh Circuit cases in support of this argument and make no effort to distinguish Siegel.
For purposes of this memorandum and order, there is no need to gauge the degree of similarity between RICO causation and the causation requirement under the ICFA. Rather, this Court holds that, for the same reasons noted above, Plaintiffs cannot prove the fourth and fifth elements of an ICFA claim. First, as noted in this Court’s analysis pursuant to New York General Business Law § 349, Plaintiffs have not established that they suffered actual harm as a result of Defendants’ deceptive acts or omissions. While Plaintiffs may have paid more for Ketek than they would have paid absent Defendants’ conduct, there is no evidence that doctors would have prescribed no antibiotics, or less expensive antibiotics, for Plaintiffs’ beneficiaries absent the deception. Second, even if Plaintiffs could establish that they suffered actual harm, there would be no way to establish that the harm was caused by the deception. As this Court noted in discussing RICO causation, many factors contribute to a physician’s decision of what antibiotic to prescribe. Plaintiffs’ generalized proof is insufficient to establish that those physicians who would have prescribed a less expensive antibiotic than Ketek (or no antibiotic at all) would not have prescribed Ketek absent Defendants’ deceptive acts and omissions.
E. Defendants’ Motion for Summary Judgment on Count TV
Unlike Count III, which alleged the violation of 43 specific state statutes, Count *338IV of Plaintiffs’ Second Amended Complaint does not refer to any particular state laws. Count IV alleges that, as a result of Defendants’ “conscious wrongdoing,” Plaintiffs paid for Ketek “when they otherwise would not have done so and paid for the drug at a higher price than they would have paid but for the Defendants’ wrongful conduct.” Sec. Am. Complt. at ¶¶ 147, 149. Plaintiffs allege that Defendants “profited and benefítted” from Plaintiffs’ payments, and that Plaintiffs are “entitled in equity to seek restitution of Defendants’ wrongful profits, revenues and benefits....” Id. at ¶¶ 147, 150.
In seeking summary judgment with respect to Count IV, Defendants analyze Plaintiffs’ unjust enrichment claims under the laws of the Plaintiffs’ home states: New York, Massachusetts and Illinois. First, citing to various cases, Defendants argue that Plaintiffs lack the sort of direct relationship with Defendants that is necessary to state an unjust enrichment claim under New York law. Defendants’ Memo at 21-22. Second, Defendants argue that, “[ujnder Illinois law, unjust enrichment does not exist as a separate claim and fails when the underlying fraud claim fails.” Id. at 21. Third, citing to Smith v. Jenkins, 626 F.Supp.2d 155, 170 (D.Mass.2009), and Lopes v. Commonwealth, 442 Mass. 170, 179-80, 811 N.E.2d 501, 509 (Mass.2004), Defendants contend that unjust enrichment is also not a separate cause of action under Massachusetts law. Defendants’ Memo at 21. Finally, Defendants assert that under all three of the home states’ laws, “Plaintiffs’ unjust enrichment claims fail for the simple reason that Plaintiffs cannot prove that Defendants were unjustly enriched by any payment for Ketek by Plaintiffs.” Id. at 22. Defendants contend that “Plaintiffs do not even allege that any Ketek for which they paid was ineffective or caused an adverse effect,” and that “Defendants cannot be found to have been unjustly enriched if the Ketek prescribed to Plaintiffs’ members and paid for by Plaintiffs performed exactly as represented.” Id.
F. Plaintiffs’ Opposition to Defendants’ Motion relating to Count IV
In opposing Defendants’ motion for summary judgment, Plaintiffs do not address Defendants’ state-specific claims. Rather, citing to cases from the First, Second and Seventh Circuit Courts of Appeals, Plaintiffs imply that the essential elements of an unjust enrichment claim— that the defendant inequitably retained a benefit to the plaintiffs detriment — are the same in New York, Massachusetts and Illinois. Plaintiffs assert that they have established these essential elements by proving that Defendants “profited handsomely by making material misrepresentations and omissions” about the safety and efficacy of Ketek for non-CAP uses, and that permitting Defendants to retain these benefits would violate “the fundamental principles of justice, equity, and good conscience.” Plaintiffs’ Opposition at 24.
G. Judge Reyes’ Recommendations and Plaintiffs’ Objections Thereto
In his R & R, Judge Reyes declines to “simply presume that unjust enrichment claims are substantially identical across [the three] states.” Sergeants III, 2012 WL 4336218, at *7 (brackets added). Instead, Judge Reyes details “the nuances of the three jurisdictions’ respective unjust enrichment regimes,” concluding that Plaintiffs can bring “a standalone unjust enrichment claim” under New York and Massachusetts law, but that an unjust enrichment claim under Illinois law “must be tied to a related action.” Id., at *7-*8. After concluding that Plaintiffs’ unjust enrichment claim under Illinois law cannot stand if Plaintiffs’ ICFA claim is dis*339missed, the R & R analyzes Plaintiffs’ claims under New York and Massachusetts law and concludes that Plaintiffs did not suffer any detriment and that Defendants are not entitled to recoup the money they paid for Ketek. The R & R notes that “Plaintiffs do not allege that they paid a premium for Ketek due to Defendants’ alleged fraud” or “that Defendants artificially inflated Ketek prices.” Id. at *8.
In their objections to the R & R, Plaintiffs do not specifically address Judge Reyes’ finding that Plaintiffs’ unjust enrichment claim under Illinois law must fail if Plaintiffs’ ICFA claim has been dismissed. Rather, Plaintiffs assert that the laws of Illinois and two other states not mentioned by Plaintiffs or Judge Reyes— Arizona and Louisiana — permit unjust enrichment claims if there is no adequate remedy at law. Plaintiffs also argue that “[t]he unjust enrichment laws of all states, including Illinois, New York, and Massachusetts ..., are fundamentally the same.” Objections at 19. Citing to cases from 20 states, Plaintiff assert that each state’s unjust enrichment laws “requires a showing that the plaintiff conferred a benefit on the defendant, the defendant accepted or retained the benefit, and it would be inequitable for the defendant to retain the benefit.” Id.4 Plaintiffs then repeat the argument made in their opposition to the motion for summary judgment, noting that Defendants “profited handsomely by omitting critical safety information about Ke-tek, causing consumers like Plaintiffs to pay” thousands of dollars for non-CAP prescriptions. Id. at 20.
H. Discussion regarding Count IV
Although Plaintiffs’ Objections to the R & R address the unjust enrichment laws of 20 states, Defendants’ motion for summary judgment addressed the laws of only Plaintiffs’ home states: New York, Illinois, and Massachusetts. As Judge Reyes correctly states, this Court cannot simply presume that the unjust enrichment claims are identical in all relevant states. Accordingly, this memorandum and order will discuss only the laws of Plaintiffs’ home states. Since this Court has already granted Defendants leave to renew their arguments relating to the consumer protection statutes of states other than Plaintiffs’ home states, see n. 3, ante, this Court will also permit Defendants to renew their arguments relating to the other states’ unjust enrichment laws after Plaintiffs amend their complaint to clarify Count IV.
1. Illinois Law
Plaintiffs do not specifically object to that portion of the R & R which holds that Plaintiffs’ unjust enrichment claims under Illinois law must be dismissed because they are tied to the ICFA claim which was previously dismissed. Rather, Plaintiffs cite to F.H. Prince & Co., Inc. v. Towers Financial Corp., 275 Ill.App.3d 792, 804, 211 Ill.Dec. 950, 656 N.E.2d 142, 151 (Ill.App.1995), for the proposition that there is no claim for unjust enrichment under Illinois law if there is an adequate remedy at law. Objections at 21. To the extent Plaintiffs are implying that a plaintiff can bring a standalone unjust enrichment claim under Illinois law if a plaintiff lacks an adequate remedy at law, F.H. Prince does not support this proposition. That case held only that an unjust enrichment claim which rests on an implied or quasi-contract theory is untenable where *340there is a specific contract which governs the relationship of the parties. F.H. Prince, 275 Ill.App.3d at 804, 211 Ill.Dec. 950, 656 N.E.2d at 151.
2. New York and Massachusetts Law
Plaintiffs object to that portion of the R & R which holds that Plaintiffs have failed to make out unjust enrichment claims under either New York or Massachusetts law. See Objections at 20-21. However, Plaintiffs do not explain why Judge Reyes’ reasoning is incorrect. Rather, they largely repeat the arguments set forth in their motion for summary judgment.
This Court agrees with Judge Reyes’ conclusions. First, the New York Court of Appeals has long held that “[a]n unjust enrichment claim is rooted in ‘the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another.’ ” Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743, 746 (N.Y.2012) (quoting Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337, 339 (N.Y.1916)). To make out a claim for unjust enrichment under New York law, “[a] plaintiff must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104, 1110 (N.Y.2011) (internal quotations and citations omitted; brackets in original). The New York Court of Appeals considers the third element to constitute the “essential inquiry” in any action for unjust enrichment. Id. (citing Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 393, 285 N.E.2d 695 (1972)).
Like New York Courts, “Massachusetts courts emphasize the primacy of equitable concerns in a finding of unjust enrichment_” Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir.2009). “[T]here must be ‘unjust enrichment of one party and unjust detriment to another party.’ ” Id. (quoting Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 234 n. 7 (1st Cir.2005)).
Like Judge Reyes, this Court finds nothing inequitable or unjust in permitting Defendants to retain profits from sales to Plaintiffs’ beneficiaries. There is no question that Defendants provided Ketek to Plaintiffs’ beneficiaries and that Plaintiffs were contractually obligated to pay on behalf of those beneficiaries. While Defendants may have procured the sales by failing to disclose certain risks and by exaggerating the efficacy of Ketek, there is no evidence that Plaintiffs’ beneficiaries suffered any ill-effects or found Ketek to be ineffective. Absent such evidence, there is no reason why Plaintiffs should obtain a full refund. Moreover, Plaintiffs, who disavow reliance on a price effect theory, do not allege that they paid artificially inflated prices for Ketek.
Moreover, even assuming Plaintiffs’ beneficiaries suffered ill-effects or found Ke-tek ineffective, it is those beneficiaries who should be compensated. As Judge Reyes correctly notes, Plaintiffs are not bringing a derivative action on behalf of those beneficiaries. Plaintiffs themselves would not suffer any harm unless they paid extra to treat those ill-effects or to purchase a second round of antibiotics, and there is no evidence that they did so.
CONCLUSION
For the reasons set forth above, this Court adopts Judge Reyes’ report and recommendation dated September 17, 2012, except to the extent that it recommends *341limiting Plaintiffs’ cause of action for violations of various consumer protection statutes to claims brought pursuant to the laws of Plaintiffs’ home states of New York, Massachusetts and Illinois, Within 30 days of the date of this memorandum and order, Plaintiffs shall amend Counts III and IV of their pleading as necessary to clarify the scope of, and basis for, their state-law claims, providing, inter alia, a list of the states in which their beneficiaries allegedly obtained and filled prescriptions for Ketek. Defendants are granted leave to file a second motion for summary judgment with respect to those state-law claims. Within 15 days after receiving a copy of Plaintiffs’ amended pleading, Defendants shall confer with Plaintiffs and submit a proposed briefing schedule with respect to the second motion for summary judgment.
SO ORDERED.
. This Court sees no need to discuss the out-of-Circuit cases cited in Plaintiffs’ supplemental submissions in detail. While this Court recognizes that the First Circuit has rejected the view that RICO causation cannot be established through generalized proof, In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d 60, 69 (1st Cir.2013), cert. denied sub nom. Pfizer Inc. v. Kaiser Found. Health Plan, Inc., - U.S. -, 134 S.Ct. 786, 187 L.Ed.2d 594 (2013), the First Circuit’s opinion, unlike Zyprexa, is not controlling on this Court. Indeed, even if this Court were to find the First Circuit’s reasoning persuasive, it would nonetheless be obliged to follow Second Circuit precedent. See Jackson, 683 F.Supp.2d at 292. This Court does not view the Supreme Court’s recent refusal to review the First Circuit's decision as implying a rejection of Zyprexa. After all, the Supreme Court also declined to grant certiorari in Zy-prexa a year and one-half ago. See Sergeants Benev. Ass’n Health & Welfare Fund v. Eli Lilly Co., - U.S. -, 131 S.Ct. 3062, 180 L.Ed.2d 903 (2011).
. The other case cited by Judge Reyes in his R & R—In re K-Dur Antitrust Litigation, supra, 2008 WL 2660783—is also distinguishable. That case involved anti-trust claims brought by TPPs on their own behalf. Noting that "a Plaintiff's home state has a paramount interest in protecting its citizens from the kind of anticompetitive conduct alleged in this case,” id. at *4, the special master who authored the report and recommendation in K-Dur con-eluded that the laws of the individual TPPs home states should govern their antitrust claims.
. Defendants can renew their argument relating to the other state laws after Plaintiffs amend Count III of their pleading to clarify the state laws under which they actually seek to recover.
. In addition to citing to cases from New York, Massachusetts, and Illinois, Plaintiffs cite to cases from Arizona, California, Connecticut, Florida, Georgia, Louisiana, Missouri, Nevada, New Hampshire, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah and Washington. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224383/ | MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On September 3, 2013, the Plaintiffs Michael Spagnuoli (“Spagnuoli”), Kellie Shea (“Shea”) and Joseph Veselak (“Veselak,” and collectively, the “Plaintiffs”), individually and on behalf of all other persons similarly situated, commenced this action, by filing a Complaint against the Defendants Louie’s Seafood Restaurant, LLC (“Louie’s”), and/or other entities affiliated with, controlling or controlled by Louie’s; Martin Piccone (“Piccone”); and Michael Guinnane (“Guinnane,” and collectively, the “Defendants”). The Plaintiffs assert causes of action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207 and 216(b); New York Labor Law (“NYLL”) §§ 190 et seq., 663 and 650 et seq.; and 12 New York Codes, Rules and Regulations (“NYCRR”) §§ 146-1.4 and 1.6. In this regard, the Plaintiffs seek to recover unpaid overtime compensation and spread of hours compensation allegedly owed to them by the Defendants.
Presently before the Court is the Defendants motion to disqualify the Plaintiffs’ Counsel, Leeds Brown LLC (“Leeds Brown”), or in the alternative, to deny Leeds Brown class counsel status. For the reasons that follow, the motion is denied.
I. BACKGROUND
A. Underlying Facts
According to the Complaint, the Defendant Louie’s is a domestic corporation organized and existing under the law of the State of New York. Louie’s principal place of business is located in Port Washington, *351New York, and it is engaged in the restaurant business. Its gross yearly sales are alleged to be greater than $500,000. At all relevant times, the Defendants Pieone and Guinnane were officers, directors, president, vice president and/or owners of Louie’s or related entities.
The named Plaintiffs are all residents of New York and are all former employees of the Defendants. In this regard, the Plaintiff Spagnuoli worked for the Defendants as a waiter from August of 2010 to August of 2011; the Plaintiff Shea worked for the Defendants as a bartender from an unspecified month in 2003 to April of 2012; and the Plaintiff Veselak worked for the Defendants as a waiter from April of 2010 to December of 2011. The potential class members in this case are also former employees of the Defendants.
The Plaintiffs allege that the Defendants failed to pay their employees overtime wages, at the rate of one and one half times the regular rate of pay, for all hours worked in excess of forty hours in any given week. They further allege that the Defendants failed to pay spread of hours compensation of one additional hour at the regular hourly wage rate for days worked in excess of ten hours.
For example, according to the Plaintiffs, Spagnuoli worked six days per week, for approximately seventy to ninety-six hours per week, including between fifteen to sixteen hours per day. He was paid $4.60 to $5.00 per hour plus tips and alleges that he was only compensated for forty hours of work per week. He claims that he was not paid overtime at time and one-half his regular hourly wage for those hours over the forty hours that he worked, nor was he paid spread of hours compensation for the days that he worked more than ten hours.
Similarly, Shea and Veselak worked five to six days per week, ten to twelve hours a day, for a total of fifty to seventy hours per week. Their salaries were $5.00 per hour plus tips. According to the Plaintiffs, Shea and Veselak were not paid overtime at time and one-half their regular hourly wage for all the hours they worked over forty hours per week. In addition, they contend that they did not receive spread of hours compensation for those days they worked more than ten hours.
The Plaintiffs allege that the Defendants “willfully disregarded and purposefully evaded recordkeeping requirements of the FLSA and applicable New York State law by failing to maintain and complete time-sheets or payroll records.” (Compl., ¶ 54.) Moreover, they claim that “[t]he Named Plaintiffs and putative class were all subject to [the] Defendants’ policies and willful practices of (1) failing to pay overtime wages, at the rate of one and one half times the regular rate of pay, for all hours worked in excess of 40 hours in any given week; and (2) failing to pay spread of hours compensation.” (Compl., ¶ 18.)
B. The Mendez Action
On June 27, 2012, Oscar Mendez (“Mendez”), individually and on behalf of all other persons similarly situated, commenced a class action lawsuit, Mendez v. Louie’s Seafood Restaurant, LLC, et al., Case No. 12-CV-3202 (the “Mendez Action”), against the same Defendants that are named in the present action. Mendez was represented by Leeds Brown and, like the Plaintiffs here, brought claims pursuant to the FLSA, NYLL and NYCRR to recover unpaid overtime compensation and spread of hours compensation allegedly owed to him by the Defendants. The Mendez Action was assigned to United States District Judge Joanna Seybert and United States Magistrate Judge A. Kathleen Tomlinson.
Discovery was never formally conducted in the Mendez Action. On December 21, *3522012, Mendez and the Defendants entered into a fully executed settlement agreement (the “Settlement Agreement”). In relevant part, the Settlement Agreement contained a “No Solicitation or Current Representation” provision, which stated as follows:
[Mendez’s] attorneys in this matter, Leeds Brown [ ], represent and warrant that neither the firm nor any attorneys affiliated with the firm (individually, together, or in conjunction with other attorneys) represent any other employee or former employee of the [Defendants] in connection with an employment-related issue against the [Defendants] or Releases.
(Graff Affirmation, Exh. B., pg. 4.) The Settlement Agreement also contained a “Confidentiality” provision.
On January 1, 2013, the Mendez parties filed the Settlement Agreement with the court and moved for settlement approval. On January 17, 2013, Judge Seybert denied the motion without prejudice. In this regard, Judge Seybert took issue with the Settlement Agreement’s inclusion of the Confidentiality provision, and directed the parties, within thirty days, to proceed in one of three ways: (1) the parties could file a revised Settlement Agreement and exclude the Confidentiality provision; (2) the parties could submit for in camera review a letter signed by both parties explaining why the court should approve the Settlement Agreement containing a Confidentiality provision; or (3) the parties could submit a letter indicating their intention to abandon their settlement and move forward with litigating the Mendez Action.
On February 7, 2013, the Mendez parties filed a letter, dated February 6, 2013, advising Judge Seybert that they agreed to file the Settlement Agreement publicly instead of under seal, but wished to include a Confidentiality provision so as to prohibit Mendez from discussing the settlement or encouraging others to come forward. By Order dated May 1, 2013, Judge Seybert denied the Mendez parties’ joint request to approve the Settlement Agreement.
In this regard, Judge Seybert’s May 1, 2013 Order raised the following issues: (1) the Settlement Agreement erroneously referred to the Mendez Action by the wrong case number; (2) even though the Settlement Agreement was filed on the public docket, the Confidentiality provision nevertheless contravened the legislative purpose of the FLSA; (3) the Court could not determine whether the settlement amount contained in the Settlement Agreement was fair and reasonable because neither Mendez nor the Defendants provided the Court with sufficient information to examine the credibility of the dispute. Therefore, Judge Seybert directed the Mendez parties, within thirty days of the date of the May 1, 2013 Order, to submit a revised Settlement Agreement for judicial approval, which had to include, at minimum (1) the correct case number; (2) the removal of the Confidentiality provision; and (3) additional information, such as affidavits or other documentary evidence, detailing as to why the proposed settlement amount was fair and reasonable. Judge Seybert advised that in the event the parties failed to renew their request for judicial approval of the Settlement Agreement within the thirty-day period allotted, the case would be referred to Judge Tomlinson for discovery.
Following Judge Seybert’s second rejection of the Settlement Agreement, on May 7, 2013, Shea filed her consent to become a party in the Mendez Action, which, a indicated above, was brought by Mendez as a class action. Shortly thereafter, on May 24, 2013, Spagnuoli and Veselak filed sepa*353rately their consents to become parties in the Mendez Action.
On May 31, 2013, the Defendants submitted an affidavit by Picone explaining that the settlement amount was fair and reasonable. The Mendez parties failed to submit a revised Settlement Agreement nor did Mendez, as the named plaintiff in the case, submit any additional documentary evidence concerning whether the settlement amount was fair and reasonable. Accordingly, on June 26, 2013, Judge Sey-bert found that the Mendez parties were no longer interested in settlement and referred to Judge Tomlinson discovery, as well as any other nondispositive pretrial matters.
Also on June 26, 2013, counsel for Mendez filed a letter advising Judge Seybert that there had been an error with filing the Settlement Agreement onto the Electronic Case Filing System and that the parties had intended to file the revised Settlement Agreement on May 31, 2013 along with the Picone affidavit. Mendez’s attorney enclosed the revised Settlement Agreement with the June 26, 2013 letter. She asked Judge Seybert to excuse the administrative error and to accept the revised Settlement Agreement as if it had been filed on May 31, 2013. Of note, despite the fact that Shea, Spagnuoli and Veselak had opted-in to the Mendez Action, the revised Settlement Agreement still retained the “No Solicitation or Current Representation” provision as it appeared in the original Settlement Agreement.
A little more than one month later, on August 5, 2013, the Mendez parties filed their notice of consent to have Judge Tom-linson conduct all proceedings in the action. On August 9, 2013, Judge Seybert reassigned the case to Judge Tomlinson.
By stipulation dated August 2, 2013 and filed on August 14, 2013, Leeds Brown, on behalf of Shea, Spagnuoli, Vesalak and Jackson Weber (“Weber”), who is another class member in the action before this Court, and counsel for the Defendants in the Mendez Action agreed to toll the statute of limitations for any FLSA and NYLL claims brought by Shea, Spagnuoli, Veselak and Weber. Also on August 14, 2013, the Mendez parties appeared for a status conference before Judge Tomlinson and Judge Tomlinson held that the revised Settlement Agreement, with the changes ordered by Judge Seybert, was fair and reasonable. However, before granting final approval of the revised Settlement Agreement, Judge Tomlinson directed the Mendez parties to resolve the issue of the opt-in plaintiffs and to report back to her with a status update on or before August 26, 2013.
On August 15, 2013, Shea, Spagnuoli and Veselak each filed separate notices withdrawing their consents to become a party in the Mendez Action. Also on that date, August 15, 2013, Judge Tomlinson declined to “so order” the stipulation filed on August 14, 2013 because (1) the stipulation had no caption; and (2) the stipulation contained no case number. The next day, August 16, 2013, Judge Tomlinson found that the August 15, 2013 notices by Shea, Spagnuoli and Veselak were insufficient because they had not been individually and personally signed.
On August 20, 2013, Shea, Spagnuoli, Veselak, Weber and the Defendants filed a revised stipulation tolling the statute of limitations for any FLSA and NYLL claims brought by Shea, Spagnuoli, Vese-lak or Weber. Judge Tomlinson “so ordered” the revised stipulation on August 21, 2013. Also on August 21, 2013, Shea, Spagnuoli and Veselak separately filed revised notices indicating that they were withdrawing their consent to opt-in to the Mendez Action. In compliance with Judge *354Tomlinson’s August 16, 2018 Order, each notice was individually and personally signed.
On August 22, 2018, Judge Tomlinson issued an Order of Settlement. In this regard, she noted that the three opt-in plaintiffs in the Mendez Action — that is, Shea, Spagnuoli and Veselak — had all withdrawn from the Mendez Action and would be participating as plaintiffs in a separate action, which is the case presently before the Court. Accordingly, Judge Tomlinson granted final approval of the revised Settlement Agreement and directed the Clerk of the Court to close the Mendez Action.
C. Procedural History in the Pending Action
As stated above, this lawsuit was commenced on September 3, 2013, when the Plaintiffs filed a Complaint against the Defendants. One week later, on September 10, 2013, Spagnuoli, Shea, Veselak and Weber filed separate consents to join this FLSA collective action. Also on September 10, 2013, and prior to the Defendants appearing in the instant case, the Plaintiffs filed an unsigned copy of the August 2, 2013 stipulation that had been filed in the Mendez Action and which had been “so ordered” by Judge Tomlinson on August 15, 2013. The stipulation was “so ordered” by this Court on September 12, 2013. About one month later, on October 15, 2013, Rosemarie Gunning (“Gunning”) opted-in to this action.
On December 16, 2013, the Defendants appeared in this case represented by different counsel than the counsel who represented them during the Mendez Action. On December 24, 2013, the Defendants answered the Complaint.
Thereafter, on January 27, 2014, the Plaintiffs moved to conditionally certify a FLSA collective action pursuant to 29 U.S.C. § 216(b). On January 30, 2014, the Defendants requested an extension of time to oppose the Plaintiffs’ motion to conditionally certify a FLSA collective action and to make a cross-motion seeking an order from the Court denying Leeds Brown class counsel status in the event the Court granted conditional certification of the class.
On February 2, 2014, the Court respectfully referred the Plaintiffs’ motion for conditional class certification and the Defendants’ related letter application to United States Magistrate Judge Arlene R. Lindsay for a decision. In this regard, the Court explained that because the Plaintiffs’ motion only involved a preliminary determination and was not dispositive, Judge Lindsay could exercise jurisdiction. As such, the Plaintiffs’ motion for conditional certification is currently pending before Judge Lindsay.
On February 21, 2014, the Defendants filed their cross-motion. However, rather than seeking an order from the Court denying Leeds Brown class counsel status should the Court conditionally certify a class, the Defendants sought the disqualification of Leeds Brown as the Plaintiffs’ attorneys in this action or, in the alternative, an order denying Leeds Brown class counsel status. On February 24, 2014, Judge Lindsay advised the Defendants that they had to redirect their motion to this Court in the first instance.
On February 26, 2014, the Defendants refiled their motion to this Court’s attention, as instructed by Judge Lindsay. This is the motion presently before the Court. Of note, to date, the Plaintiffs have not moved to certify a class pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 23 and only seek, at this time, to conditionally certify a collective action pursuant to 29 U.S.C. 216(b).
*355II. DISCUSSION
A. Legal Standard
“The authority of federal courts to disqualify attorneys derives from their inherent power to ‘preserve the integrity of the adversary process.’” Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir.2005). (quoting Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979)). In exercising this power, the Court must “be solicitous of a client’s right freely to choose his counsel — a right which of course must be balanced against the need to maintain the highest standards of the profession.” Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir.1978); see also Hempstead Video, Inc., 409 F.3d at 132. In the Eastern District of New York, ethical standards are governed by the New York State Rules of Professional Conduct (“NYRPC”). See Local Civil Rule 1.3.
Whether or not disqualification is warranted is subject to the Court’s discretion. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir.1990). However, given the “immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons ... [and] inevitably cause delay,” Nyquist, 590 F.2d at 1246, “motions to disqualify are subject to a high burden of proof,” Hickman v. Burlington Bio-Medical Corp., 371 F.Supp.2d 225, 229 (E.D.N.Y.2005). See also Government of India, 569 F.2d at 739. Accordingly, “[u]nder the restrained approach adopted by the Second Circuit, relief will be granted only when the facts concerning the lawyer’s conduct poses a significant risk of trial taint,” particularly when the “ ‘attorney is at least potentially in a position to use privileged information concerning the other side through prior representation ..., thus giving his present client an unfair advantage.’” Mitchell v. Metro. Life Ins. Co., Inc., 01 CIV. 2112(WHP), 2002 WL 441194, at *4 (S.D.N.Y. Mar. 21, 2002) (quoting Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir.1980), vacated on other grounds and remanded, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981)); see also Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir.1981).
This Court has recognized three grounds on which an attorney could be disqualified “(1) where an attorney’s conflict of interests undermines the court’s confidence in the vigor of the attorney’s representation of his client[;] (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation thus giving his present client an unfair advantage[;] ... [or (3) ] where an attorney is in a position to use confidential information obtained from a potential client,” which is “derive[d] from the New York Code of Professional Responsibility Rule 1.18.” Miness v. Ahuja, 762 F.Supp.2d 465, 478-79 (E.D.N.Y.2010) (citations and internal quotation marks omitted). However, as indicated above, “the issue is whether there is a real risk that the trial will be tainted.” Hickman, 371 F.Supp.2d at 229 (citations and internal quotation marks omitted).
B. As to the Defendants’ Motion to Disqualify Leeds Brown as the Plaintiffs’ Counsel
As an initial matter, the Defendants use a significant portion of their motion and reply papers to challenge Leeds Brown’s adequacy as class counsel. In this regard, the Defendants argue that Leeds Brown is inadequate because (1) Leeds Brown has an alleged conflict since it is representing the Plaintiff Shea in another litigation, namely a state action claiming sexual harassment by the Defendants (the “State *356Action”); (2) Leeds Brown allegedly solicited the Plaintiffs to join this class action, in violation of NYRPC 7.3; and (3) Leeds Brown has an alleged history of ethical lapses litigating other class actions, including breaching the Settlement Agreement from the Mendez Action.
However, in large part, the issues raised by the Defendants are not appropriate for the Court to consider at this stage of the litigation. This is because the Plaintiffs have only moved to conditionally certify a collective action pursuant to 29 U.S.C. § 216(b) for the purposes of litigating their FLSA claims, and have not taken any action to move to certify a Fed.R.Civ.P. 23 class with respect to their NYLL and NYCRR claims. Importantly, “[a] collective action under the FLSA is different from the typical class action under the Federal Rules of Civil Procedure, the strict requirements of which — numerosity, commonality, typicality, and adequate representation — do not apply to a collective action.” Puglisi v. TD Bank, N.A., 998 F.Supp.2d 95, 99-100, CV 13-00637 LDW GRB, 2014 WL 702185, at *3 (E.D.N.Y. Feb. 25, 2014). See also Ahmed v. T.J. Maxx Corp., 10-CV-3609 ADS ETB, 2013 WL 2649544, at *7 (E.D.N.Y. June 8, 2013) (Spatt, J.) (“A collective action under Section 216 is distinguishable in several ways from the more common class action under Fed.R.Civ.P. 23. First, a collective action requires class members to opt into the case, rather than opt out. In addition, a party seeking conditional certification of a collective action need not demonstrate the Rule 23 requirements of numerosity, commonality, typicality, and adequacy of representation.”) (citing Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y.2007); Scholtisek v. Eldre Corp., 229 F.R.D. 381, 386 (W.D.N.Y.2005)).
Rather, certification of a collective action class in an FLSA case is analyzed in two steps. The first step is called conditional certification, which is what the Plaintiffs currently seek and which is the subject of their motion pending before Judge Lindsay. Conditional certification is generally completed prior to the commencement of any significant discovery, Lynch v. United Servs. Auto. Ass’n, 491 F.Supp.2d 357, 368 (S.D.N.Y.2007), and only requires a plaintiff to make “a modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law,” Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998). Once a court conditionally certifies a collective action, it may then facilitate notice to all of the putative class members by approving a notice form. Lynch, 491 F.Supp.2d at 367 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).
The second step in a collective action certification generally arises only after discovery is completed, and only if it appears that some or all members of a conditionally certified class are not similarly situated. In that case, a defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated. Lynch, 491 F.Supp.2d at 367. Of note, neither the first step nor the second step of certifying an FLSA collective action class requires an inquiry into the adequacy of class counsel. Summa v. Hofstra Univ., 715 F.Supp.2d 378, 385 (E.D.N.Y.2010) (“Notably, in relation to the conditional certification of an action under the FLSA, ‘a named plaintiff in a collective action need not demonstrate other facts— numerosity, commonality, typicality, and adequacy of representation — which are required to bring a class action’ under Rule *35723.”) (quoting Sexton v. Franklin First Fin’l, Ltd., No. 08-CV-4950 (JFB)(ARL), 2009 WL 1706535, at *4 (E.D.N.Y. June 16, 2009)).
As a consequence, to the extent the Defendants seek to disqualify Leeds Brown as Plaintiffs’ counsel on the grounds that they are inadequate to serve as class counsel, the Court rejects these arguments as inappropriately raised at this time, since no Fed.R.Civ.P. 23 motion is before the Court. For example, the Defendants argue that Leeds Brown should be disqualified because of alleged ethical lapses in litigating previous class actions outside of the present case, including purportedly breaching the revised Settlement Agreement entered into in the Mendez Action. While this contention might pertain to the adequacy of representation prong in the context of a Rule 23 analysis, in the Court’s view, it is not a sufficient ground to disqualify Leeds Brown as the Plaintiffs’ counsel in this lawsuit. See, e.g., Pullman v. Alpha Media Pub., Inc., 12 CIV.1924 PAC JCF, 2012 WL 3114939, at *5 (S.D.N.Y. July 31, 2012); Shabbir v. Pakistan Int’l Airlines, 443 F.Supp.2d 299, 312 (E.D.N.Y.2005). Indeed, “[t]he proper forum to address violations of the Rules of Professional Conduct is a federal or state bar disciplinary proceeding.” Pullman, 2012 WL 3114939, at *5. However, should the Plaintiffs decide to move for class certification pursuant to Fed.R.Civ.P. 23 for their NYLL and NYCRR claims, the Defendants may raise these arguments in opposition to the motion.
Concerning the Defendants’ contention that Leeds Brown should be disqualified because it has a conflict of interest, the Court is unpersuaded. In this regard, the Defendants claim that Leeds Brown’s representation of Shea against the Defendants in the State Action creates a conflict of interest, in that Shea in the State Action and the Plaintiffs here are all attempting to recover from the same pool of money. As such, according to the Defendants, Leeds Brown’s loyalty will be divided during potential settlement negotiations or in the event a judgment is issued in either this action or the State Action.
“Rule 1.7 of the New York Rules of Professional Conduct [ ] states in pertinent part that ‘a lawyer shall not represent a client if a reasonable lawyer would conclude that [] the representation will involve the lawyer in representing differing interests[.]’ ” Merck Eprova AG v. ProThera, Inc., 670 F.Supp.2d 201, 208 (S.D.N.Y.2009) (quoting NYRPC 1.7(a)(1)). “Where a conflict is alleged,” and “the representation is concurrent, it is ‘prima facie improper for an attorney to simultaneously represent a client and another party with interests directly adverse to that client.’ ” Id. (quoting Hempstead Video, 409 F.3d. at 133). Although “the ‘per se’ standard applies,” an attorney may nevertheless avoid disqualification if “he can demonstrate ‘at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.’ ” Id. (quoting Hempstead Video, 409 F.3d at 133).
Courts in this Circuit have analyzed, for Rule 23 purposes, whether a conflict exists when an attorney represents different plaintiffs in separate actions against the same defendant, but it appears no court has ever considered disqualifying an attorney on this basis. See, e.g., Seijas v. Republic of Argentina, 606 F.3d 53, 57 (2d Cir.2010) (affirming the district court’s ruling that although class counsel also represented individual plaintiffs in non-class actions and “all of these plaintiffs [were] theoretically in competition with one another to recover on their judgments,” that “the potential conflicts of interest would *358threaten the damages phase of the proceedings, not the liability phase” and that it would “revisit the damages issue if necessary, recognizing its continuing obligation to do so”); Sriram v. Pittore, 92 CIV. 5244(JSM), 1992 WL 367106, at *1 (S.D.N.Y. Nov. 24, 1992) (“[The] defendants’ sole objection [to the motion for class certification] is an alleged conflict arising from the fact that counsel is also counsel for a class of plaintiffs suing some of the same defendants in [a separate lawsuit]. [The] Defendants allege that since they do not have sufficient funds to pay judgments in both actions, counsel will have a conflict of interest. Here, the benefits to the class of having the same counsel involved where the issues of fact overlap far outweigh any danger of prejudice to the class members from the alleged conflict.”). The Court finds no reason to diverge from this precedent. Moreover, again, the Defendants can raise this argument should the Plaintiffs move for class certification pursuant to Fed.R.Civ.P. 23.
Lastly, the Defendants suggest that Leeds Brown should be disqualified because they solicited some of the Plaintiffs to join this action in violation of NYRPC 7.3(a). This rule prohibits a lawyer from “engaging] in solicitation [ ] by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client....” NYRPC 7.3(a)(1).
However, the only evidence that the Defendants offer in support of their contention that Leeds Brown solicited clients is a vague and undated Facebook message the Plaintiff Shea sent to an employee of the Defendants, Spyro Agnew. In this regard, her message states as follows:
Hey Spyro,
I wanted to let you know that there is a class action law suit [sic] against Louies [sic] for non payment [sic] of overtime. I was contacted by a law firm. We are all owed money. Contact me if you’re interested. If you can think of anyone who was a busboy or worked in the kitchen and did not receive overtime pay please let them know.
Talk to you soon ... Hope all is well!
(Graff, Exh. K, ellipse in original.) Shea’s message is unsworn to and unsigned. Further, it does not identify which law firm contacted her. In addition, even assuming Shea was contacted by Leeds Brown, it is possible that Leeds Brown contacted Shea after she first reached out to them.
Indeed, Shea’s signed declaration indicates that in February of 2013, she was searching for a firm to represent her in the State Action and discovered Leeds Brown through using the online search engine Google. After contacting Leeds Brown, Shea then met with them on February 22, 2013 for a consultation. Shea states in her declaration that she never communicated with Leeds Brown prior to her contacting them in February of 2013. In addition, she explains that while she stayed in touch with former co-workers through Facebook and informed them about this case, she was never directed by Leeds Brown to solicit clients on their behalf. See, e.g., German v. Fed. Home Loan Mortgage Corp., 885 F.Supp. 537, 557 decision clarified on reargument sub nom. 896 F.Supp. 1385 (S.D.N.Y.1995) (“The affidavits and declarations of most tenants in the building negate the claims by defendants regarding solicitations. The allegations of improper solicitation have not been established by the defendants in this case.”).
In any event, even assuming that Leeds Brown did improperly solicit clients, such a violation of the NYRPC would not, in the *359Court’s view, support disqualification here. See, e.g., U.S. v. Occidental Chemical Corp., 606 F.Supp. 1470, 1476-78 (W.D.N.Y.1985) (finding that although counsel for the defendants’ actions constituted an improper solicitation of business, disqualification was not warranted). In fact, the Defendants offer no case that would support such a result, and the Court has not discovered any court within this Circuit that has disqualified an attorney when confronted with similar circumstances.
Accordingly, the Court denies the Defendants’ motion for disqualification or, in the alternative, to deny Leeds Brown class counsel status in its entirety. The Court notes that this ruling is without prejudice, in that the Defendants are free to raise these issues again at the appropriate time in the event the Plaintiffs move for class certification under Fed.R.Civ.P. 23.
III. CONCLUSION
For the foregoing reasons, it is hereby:
ORDERED, the Defendants’ motion for disqualification or, in the alternative, to deny Leeds Brown class counsel status is denied. This ruling is without prejudice, in that the Defendants are free to raise these issues again at the appropriate time in the event the Plaintiffs move for class certification under Fed.R.Civ.P. 23.
SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217622/ | MEMORANDUM**
The State appeals the district court’s denial of its motion for judgment on the pleadings based on Eleventh Amendment sovereign immunity. The facts and prior proceedings are known to the parties, and are restated herein only as necessary.
The denial of a state’s motion for judgment on the pleadings on the grounds of Eleventh Amendment immunity is an interlocutory appeal and need not await final judgment. See Clark v. California, 123 F.3d 1267, 1269 (9th Cir.1997) (“This court has jurisdiction to hear an interlocutory appeal from an order denying a state’s motion to dismiss on the ground of immunity under the Eleventh Amendment.” (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993))). The Respondent contends, however, that we must look at each ease to determine whether the appeal involves a “serious and unsettled question of law.” We disagree. We have never required such a showing for an interlocutory appeal of Eleventh Amendment immunity, see, e.g., Thomas v. Nakatani 309 F.3d 1203, 1206-07 (9th Cir.2002), nor has the Supreme Court, see, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993), and we decline to require such a showing at this *337time. Accordingly, we have jurisdiction over the State’s appeal.
Our precedent clearly commands the conclusion that the State is not entitled to Eleventh Amendment immunity under Title II of the ADA. See, e.g., Dare v. California, 191 F.3d 1167, 1175 (9th Cir.1999); Clark, 123 F.3d at 1270. And, although the State makes a valiant attempt to persuade us that the Supreme Court’s decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), requires us to revisit our precedent, we have already done so and have already rejected the State’s claims. See Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1171, reh’g en banc denied 294 F.3d 1166 (9th Cir.2002), and cert. dismissed — U.S.-, 123 S.Ct. 1779, 155 L.Ed.2d 508 (2003); Thomas v. Nakatani, 309 F.3d 1203, 1209 (9th Cir.2002) (stating that Hason reaffirmed Clark’s and Dare’s holding that Congress abrogated sovereign immunity under Title II); Lovell v. Chandler, 303 F.3d 1039, 1050-51 (9th Cir.2002) (same). We decline further review of our settled precedent.
Likewise, our precedent is clear that the State waived its Eleventh Amendment immunity under Section 504 of the Rehabilitation Act by accepting federal funds. See, e.g., Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 820, as amended, 271 F.3d 910 (9th Cir.2001), and reh’g en banc denied, 285 F.3d 1226 (9th Cir.2002). Again, the State points to “intervening Supreme Court precedent,” this time College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 675-76, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), which it contends undermines our Eleventh Amendment waiver jurisprudence. Once again, we have already addressed the issue, reaffirming our precedent that a State waives Eleventh Amendment immunity by accepting federal funds. Vinson v. Thomas, 288 F.3d 1145, 1151 (9th Cir.2002) (reaffirming Douglas’s holding that by accepting federal funds, a state waives its sovereign immunity); Lovell, 303 F.3d at 1051 (same). We find the State’s claims without merit.
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217623/ | MEMORANDUM *
Wayne Perry Burgess appeals the district court’s summary judgment in his action brought under the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 401 et seq., against the Sailors Union of the Pacific (“SUP”). Burgess sought damages and injunctive relief including reinstatement arising from his ouster, as a result of a union disciplinary proceeding, from his office as Port Agent of the Wilmington, California, branch of the SUP. The district court granted summary judgment to the union on the ground that removal from an elected union office does not constitute discipline under the LMRDA, 29 U.S.C. § 411(a)(5). The district court also found that the complaint did not state a claim for retaliation under § 411(a)(2). After the entry of judgment, Burgess filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), a motion for leave to file an amended complaint under Rule 15(a), and a proposed amended complaint adding a claim under § 411(a)(2). The motions were denied. Burgess appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*339We review a grant of summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). We review the denial of a Rule 59(e) motion for abuse of discretion. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001).
Burgess argues that, although his claim was expressly labeled as arising under the procedural due process protections of § 411(a)(5) and the complaint emphasized procedural violations, the district court erred in concluding that he did not also state a claim for violation of § 411(a)(2). Although the theory stated in the pleading is not controlling, see Haddock v. Bd. of Dental Examiners, 111 F.2d 462, 464 (9th Cir.1985), Burgess did not allege facts showing that his dismissal was the direct result of his intra-union political activity as required to state a claim under § 411(a)(2). See Casumpang v. Int’l Longshoremen’s & Warehousemen’s Union, Local 142, 269 F.3d 1042, 1058 (9th Cir.2001), cert. denied, 535 U.S. 1078, 122 S.Ct. 1961, 152 L.Ed.2d 1021 (2002).1 Thus, the district court did not err in its summary judgment ruling.
Burgess also challenges the district court’s denial of his post-judgment motions to amend the judgment and the complaint. He contends that, given the lenient amendment standards, the district court should have permitted him to amend his pleading to add the § 411(a)(2) claim. Burgess, however, and the cases he relies on, fail to recognize that here the motion to amend was not made until after the entry of judgment. In that posture, we require a plaintiff to reopen a case before amending a pleading. See Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir.2001). The rationale requiring courts to liberally grant leave to amend is inapposite after the entry of judgment. Id.
In order to succeed on his 59(e) motion, Burgess had to demonstrate that the district court was (1) presented with newly discovered evidence, (2) committed clear error, or (3) there was an intervening change in the controlling law. Id. This showing is a “high hurdle.” Id. A judgment is not properly reopened “absent highly unusual circumstances.” Id.
Burgess does not argue that newly discovered evidence or an intervening change in law supported his motion. Rather, he argues that the complaint and motion papers raised the retaliation claim. As previously discussed, the complaint does not adequately raise the claim. Thus, there was no error, much less clear error. In addition, we have held that district courts do not err in failing to consider issues that have not been plead but only raised in opposition to summary judgment. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). Thus, the district court did not abuse its discretion in denying Burgess’ Rule 59(e) motion.
*340For the foregoing reasons, the judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
. Citing two Seventh Circuit cases, Burgess also argues that his discovery questions put SUP on notice of his § 411(a)(2) claim. These cases, however, are inapposite. See Sundstrand Corp. v. Standard Kollsman Indus., Inc., 488 F.2d 807, 811-12 (7th Cir.1973) (holding that the trial was not limited to the specific examples of wrongdoing alleged in the complaint when the plaintiff's answers to interrogatories identified other acts of wrongdoing that it would litigate under the same general theory); Bob Willow Motors, Inc. v. Gen. Motors Corp., 872 F.2d 788-791-92 (7th Cir.1989) (rejecting the defendant’s argument that it was not on notice of an unconscionability claim where it had previously argued that the unconscionability claim was "subsumed” in the complaint’s wrongful termination claim). Here, the cited deposition questions emphasized bias and did not indicate that Burgess’ intra-union political activity directly affected his removal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217624/ | MEMORANDUM**
Terry Ray Hornbeck (“Hornbeck”) appeals his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a)(d). Hornbeck raises four issues on appeal; we have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
Hornbeck first argues that there was insufficient evidence to establish that he was the perpetrator of the bank robbery. Because Hornbeck failed to move for acquittal at the close of all of the evidence at trial, we review the sufficiency of the evidence for plain error. United States v. Carpenter, 95 F.3d 773, 775 (9th Cir.1996); see also United States v. Mora, 876 F.2d 76, 77 (9th Cir.1989). Here, however, “[i]t makes little difference whether we review [Hornbeck’s] claim of insufficiency of the evidence for plain error ... or under the usual standard for properly preserved issues ... [Hornbeck’s] attack fails under either standard.” Carpenter, 95 F.3d at 775 (internal citations omitted).
Hornbeck contends that because witnesses provided differing testimony regarding his height and weight and because the two tellers could not identify him as the bank robber, there was insufficient evidence to establish that he was the one who robbed the bank. In light of the ample evidence identifying Hornbeck as the person who committed the robbery and the corroborating testimony supporting the conviction, this argument fails.
The testimony of the victim tellers regarding the physical description of the robber, the bait bills, the bank employee’s testimony regarding the robber’s possession of a teal bag that matched the description of the bag recovered from Horn-beck’s car, the testimony and evidence linking the light blue Cadillac to Hornbeck, the testimony of the deputy sheriff who found Hornbeck in the lemon grove with assistance from Molly the bloodhound, and the fact that the money from the bank robbery, a gun matching the description of the gun used in the robbery, and a bandana matching the description of the bandana worn during the robbery were found in the light blue Cadillac all amounted to more than sufficient evidence to support the jury’s verdict. Thus, even under the standard that would apply if Hornbeck’s attorney properly had preserved the error for review, a rational trier of fact could have concluded that Hornbeck was the robber and could have found all of the essential elements of the crime beyond a reasonable doubt.
*342II.
Hornbeck next argues that the district court erred in denying his motion in limine to exclude evidence concerning the bloodhound alert. Hornbeck asserts that the evidence is inherently unreliable, and therefore could not meet the methodology and reliability requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Hornbeck argues that any probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” and therefore should have been excluded under Fed.R.Evid. 403. Id., at 594-95. We review the district court’s decision to admit or exclude evidence for an abuse of discretion, United States v. Beckman, 298 F.3d 788, 792 (9th Cir.2002); it was well within the discretion of the district court to admit this evidence.
First, the canine tracking evidence was probative. The evidence made it more likely that Hornbeck was the bank robber by connecting the car with the evidence from the robbery (the money and the bandana, for example) to Hornbeck. Additionally, when the district court conducted a pretrial hearing on Hornbeck’s motion in limine to exclude the dog scent evidence, it assessed the reliability of the evidence and determined that a proper foundation had been established for the admission of the scent tracking evidence. As noted by the district court:
We have received information that the K-9 Trainer has been doing so [working in the field successfully alerting police to defendants] for the past eight years and the bloodhound had been used in 22 criminal investigations. And accordingly, the foundation has been established, the reliability of the dog and the handler has been established, and therefore I see no impediments to allowing those matters to be received into evidence.
Furthermore, even if we concluded that the trial court failed to apply or misapplied the methodology and reliability requirements of Daubert, “the nonconstitutional errors alleged here would not require reversal unless it was more ‘probable than not’ that they affected the verdict.” United States v. Soulard, 730 F.2d 1292, 1296 (9th Cir.1984) (citing Fed.R.Crim.P.52(a)). In light of the other evidence connecting Hornbeck to the robbery, any alleged error would have been harmless. In sum, the district court did not abuse its discretion when it determined that the canine tracking evidence was relevant and not unfairly prejudicial.
III.
Hornbeck next argues that the government’s expert testimony concerning the absence of fingerprints should have been excluded “because it was irrelevant, and the prejudicial impact of the evidence substantially outweighed any probative value it arguably had.” Because the evidence was relevant and not unfairly prejudicial, the court did not abuse its discretion in admitting the evidence to explain why a defendant’s fingerprints might not be recoverable from the scene of a crime or from evidence retrieved from the crime.
Here, the investigators did not recover Hornbeck’s fingerprints from the BB gun allegedly used during the robbery or from inside the bank. “The testimony aided the jury in understanding why [Hornbeck’s] fingerprints might not be found on items that the jury knew he had touched, which explanation would not otherwise have been readily apparent. We have in the past upheld the admission of expert testimony that explained the possible reasons why fingerprints would not be found on an object.” United States v. Burdeau, 168 *343F.3d 352, 356-57 (9th Cir.1999), citing United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987). There was no abuse of discretion.
IV.
Hornbeck requested that the district court give a “mere presence” instruction pursuant to Ninth Circuit Model Criminal Jury Instruction 6.9. Because Hornbeck’s counsel failed to object to the instructions at the time of trial, we review for plain error. United States v. Long, 301 F.3d 1095, 1104 (9th Cir.2002).
The mere presence instruction explains that a defendant’s “mere presence” at the scene of a crime does not demonstrate guilt. Here, however, Hornbeck was not arguing that he was merely present at the bank, and did not commit the robbery. On the contrary, he argued vigorously that neither the bank employees nor the witness who identified the blue Cadillac on Sawyer Avenue had sufficiently consistent descriptions of him to identify him as the man who committed the robbery or as someone who was near the scene of the crime. The evidence presented by the government was not limited to Hornbeck’s presence at the crime scene. The government presented evidence to prove that Hornbeck entered the bank, threatened the tellers with a gun, took almost $19,000, and led the deputy sheriffs on a high speed chase that resulted in his arrest. Thus, as in Medrano, the government’s case here was not one that “rested primarily on defendant’s presence, and no more than just presence.” United States v. Medrano, 5 F.3d 1214, 1218 (9th Cir.1993) (internal citation omitted). As in Medrano, the government’s case rested on Hornbeck’s presence and his “affirmative conduct.” Medrano, 5 F.3d at 1219.
To the extent that Hornbeck is claiming that his mere presence at the orchard warrants a mere presence instruction, this argument must be rejected. The requested instruction addresses a defendant’s mere presence at the scene of the crime. The scene of the crime here was the bank, not the orchard. The district court did not err when it declined to give the mere presence instruction.
AFFIRMED
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217625/ | MEMORANDUM *
Romano J. Santos appeals his conviction under 18 U.S.C. § 922(g)(3) for possession *344of a firearm by an unlawful drug user and possession of ammunition by an unlawful drug user. Santos assigns error to the district court’s failure to suppress evidence obtained from his vehicle in purported violation of the Fourth Amendment. The district court ruled that the search was legal for two reasons. First, the search was incident to a lawful arrest. Second, the officers had probable cause to search the car without a warrant. We adopt the district court’s second rationale. We affirm Santos’ conviction on that basis, and need not reach the issue of incidental to arrest.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts *344of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217626/ | MEMORANDUM *
Petitioner challenges the actions of two prior counsel in his deportation proceedings. Attorney Heinrich Davis allegedly conceded petitioner’s deportability without discussing the decision with him. Subsequently, new counsel Arthur Avazian, either personally or through his agent Eric Avazian, allegedly misinformed petitioner about the consequences of appealing his order of deportation to the Board of Immigration Appeals (BIA). According to petitioner, he was incorrectly told that he would be deported if he appealed the Immigration Judge’s (IJ’s) decision. Moreover, one of the Avazians failed to inform him that he would receive 30 days to depart voluntarily even if his BIA appeal failed. Petitioner asserts that he would not have waived his appeal right had he been apprised of the correct facts.
In addition, the INS concedes petitioner’s contention that the IJ “did not fully comply with the regulation” requiring IJs to recite the factual allegations and charges against an alien in deportation proceedings. See 8 C.F.R. § 1240.48(a).
“As a predicate to obtaining relief for a violation of procedural due process rights in immigration proceedings, an alien must show that the violation prejudiced him.” Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir.2003) (en banc); see also United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000) (holding that petitioner must show that he had a plausible ground for relief to establish prejudice). The requirement to show prejudice applies to *345ineffective assistance of counsel claims, see Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003), and to violations of INS regulations, see Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.1993). Reviewing the case de novo, Iturribarria, 321 F.3d at 894, and assuming that a due process violation occurred, we conclude that petitioner has not demonstrated that he was prejudiced.
Petitioner offers absolutely no evidence to oppose the finding of deportability, nor does he present any ground for relief. Nothing is alleged that, had it been done otherwise, would plausibly have ameliorated the outcome of petitioner’s deportation proceedings.
The petition is therefore DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217790/ | Petition denied by unpublished PER CURIAM opinion.
PER CURIAM:
George Miller petitions for a writ of mandamus alleging that the district court has unduly delayed acting on his 28 U.S.C. § 2254 (2000) petition. He seeks an order from this court directing the district court to act. After Miller filed the instant mandamus petition, the district court entered an order denying relief on Miller’s habeas petition. Accordingly, we deny Miller’s mandamus petition as moot but grant his motion to proceed in forma pauperis. 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.
PETITION DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217627/ | MEMORANDUM**
This preliminary injunction appeal comes to us for review under Ninth Circuit Rule 3-3. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
We subject a district court’s order regarding preliminary injunctive relief only to limited review. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir.1999). Our review of an order regarding a preliminary injunction “is much more limited than review of an order involving a permanent injunction, where all conclusions of law are freely reviewable.” Id. A decision regarding a preliminary injunction is reviewed for abuse of discretion, which occurs only if the district court based its decision on either an erroneous legal standard or clearly erroneous factual findings. Id.
We cannot say that the district court abused its discretion here. We therefore affirm the district court’s order granting Extreme Crushing’s request for a preliminary injunction. Our disposition will affect the rights of the parties only until the district court renders final judgment. Sports Form, Inc. v. United Press International, 686 F.2d 750, 752 (9th Cir.1982).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217630/ | MEMORANDUM***
Mark Anthony Jarvey appeals the conviction and sentence imposed following his guilty plea to sexual abuse of a minor in violation of 18 U.S.C. §§ 1158, 2241(c), and 2248(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion by denying Jarvey’s motion to withdraw his guilty plea. See United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998) (the standard of review for denial of a motion to withdraw a guilty plea is abuse of discretion). The district court was entitled to credit Jarvey’s testimony at the Rule 11 hearing over his subsequent allegations and acted within its discretion by determining that the plea was voluntary and intelligent. See, e.g., United States v. Castello, 724 F.2d 813, 814-15 (9th Cir.1984).
The district court’s finding that Jarvey obstructed justice is supported by the record. See United States v. Lofton, 905 F.2d 1315, 1316 (9th Cir.1990) (a district court’s finding that the defendant obstructed justice is reviewed for clear error); United States v. Hinostroza, 297 F.3d 924, 929 (9th Cir.2002) (once the court made a finding that the defendant obstructed justice enhancement was required).
We lack jurisdiction to review the district court’s refusal to depart horizontally from criminal history category II to criminal history category I because the record does not show that the district court mistakenly believed that it had no authority to depart. See United States v. Berger, 103 F.3d 67, 69 (9th Cir.1996) (this court lacks jurisdiction to review a district court’s discretionary refusal to depart downward when sentencing a defendant under the Sentencing Guidelines).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224384/ | MEMORANDUM AND ORDER
HURLEY, Senior District Judge:
Plaintiff Hong Yin (“plaintiff”) commenced this action against defendant North Shore Long Island Jewish Health System (“defendant”) asserting claims of “discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and The Americans with Disabilities Act Amendment Act (“ADAAA”).” (Complaint at I.) Initially, defendant moved to dismiss these claims, however, plaintiff “agree[d] to withdraw” the claims in her original Complaint, conceding that “upon reviewing Defendant’s motion to dismiss, [she] realized that she might benefit from addressing alleged deficiencies pointed out in Defendant’s motion and that the initial Complaint could benefit from significant revision.” (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss and in Supp. of Mot. to Amend (“Pl.’s Mem. in Opp’n”) at 1, 8.) Plaintiff, although she does not oppose the dismissal of her original complaint, seeks leave to file an amended complaint. Towards that end, she submits a proposed First Amended Complaint (“FAC”), claim*363ing that it “cures any alleged deficiencies discussed in Defendant’s motion to dismiss.” (Id. at 2.) Plaintiffs FAC does not assert any claims pursuant to Title VII, and it contains “additional material facts” and additional claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102 et seq., and the New York State Human Rights Law (“NYSHRL”), New York Executive Law § 290 et seq. (Id.) Specifically, plaintiff claims that: (1) she was discriminated against because she was disabled and because defendant perceived her to be disabled; (2) defendant failed to reasonably accommodate her disability; (3) defendant retaliated against her; and (4) defendant subjected her to a hostile work environment.
Given plaintiffs withdrawal of her original complaint, defendant’s motion to dismiss her original complaint claims is moot. The remaining question before the Court is whether plaintiff should be given leave to file her FAC. For the reasons set forth below, plaintiffs motion to file an amended complaint is denied.
BACKGROUND
Plaintiff began employment as a physician in defendant’s obstetrics and gynecology residency program at Long Island Jewish Medical Center1 (“LIJMC”) on July 1, 2010. (FAC ¶ 9.) During plaintiffs employment, Adiel Fleischer, M.D. (“Dr. Fleischer”) was the Chairman of the OB/ GYN Department at LIJMC and Leah A. Kaufman, M.D. (“Dr. Kaufman”) was the Director of the OB/GYN Residency Program. (Id.).
At the age of fifteen, plaintiff was diagnosed with major depressive disorder and anxiety disorder, which she managed through behavioral therapy and pharma-cotherapy. (Id. ¶ 12.) Additionally, during her time in defendant’s residency program, plaintiffs psychiatrist diagnosed her with Post Traumatic Stress Disorder (“PTSD”). (Id. ¶ 13.) Throughout her residency, plaintiff regularly saw her psychiatrist. (Id. ¶ 14.)
From July 1, 2010 to August 28, 2010, plaintiff worked nights in Obstetric Service. (Id. ¶ 16.) During this time, plaintiff received praise from various doctors for her performance. (Id.) According to plaintiff, “[t]here were a few incidents during this period when [she] briefly cried,” and “[a]fter one of [those] instances a nurse practitioner insisted that Plaintiff go home.”2 (Id.) From August 30, 2010 to September 24, 2010, plaintiff worked in Emergency Department Service. (Id. ¶ 17.) During this time, the attending physicians were satisfied with plaintiffs performance and praised her. (Id.) From September 26, 2010 through October 23, 2010, plaintiff worked in Gynecology Service. (Id. ¶ 18.) There, plaintiffs performance continued to be satisfactory, although she received some criticism for her “tone.” (Id.) From October 24, 2010 to December 25, 2010, plaintiff worked days in Obstetric Service. (Id. ¶ 19.) Plaintiffs performance during this period remained satisfactory, and she received additional positive feedback. (Id.) During this rotation, however, Dr. Kaufman .“acknowledged that Plaintiff was unhappy and asked if Plaintiff was receiving appropriate emotional support,” to which plaintiff responded that she was. (Id.) From December 26, 2010 to January 21, 2011, plaintiff *364served in Medical ICU, and her performance continued to be satisfactory. (Id. ¶ 20.)
In January of 2011, plaintiffs psychiatrist prescribed her Klonopin to treat her anxiety. (Id. ¶ 22.) Around this time, plaintiff met with Dr. Kaufman for her semi-annual review, during which Kaufman inquired about her emotional status and stated that she felt plaintiffs ratings were influenced by people’s perceptions of plaintiff as being depressed. (Id. IT 23). Between January 24, 2011 and March 21, 2011, Kaufman inquired about plaintiffs emotional status on multiple occasions. (Id. ¶ 24.) On January 31, 2011, plaintiff disclosed to Kaufman that she “suffered from mental illness and was under the care of a psychiatrist for appropriate management.” (Id.) Plaintiff asserts that after she disclosed her depression to Kaufman, she was scrutinized at a higher level than her classmates and received more negative feedback than she had prior to disclosing her disability. (Id. ¶¶ 25, 27.) Plaintiff also asserts that other residents were treated with more leniency, specifically a resident who was only given a “light warning” for her repeated tardiness while plaintiff was “often berated for her perceived or alleged deficiencies.” (Id. ¶ 28.)
From January 24, 2010 to February 18, 2011, plaintiff worked in the Antenatal Testing Unit in the mornings, in the Medicine Clinic in the afternoons, and in the Obstetric Service on the weekends. (Id. ¶ 29.) During this time, plaintiff maintains that her work was satisfactory, but she mentions “two incidents [that] occurred in February for which [she] received negative feedback.” (Id.) Although plaintiff does not provide any circumstances surrounding these instances, she claims that the “two incidents were discriminatorily held against [her] and given undue weight, despite the fact that [she] had improved her performance.” (Id.)
From February 21, 2011 to March 21, 2011, plaintiff worked in Gynecology Service. During this time, plaintiff asserts that she was “subjected to incessant and unjustifiable criticism by Dr. Kaufman.” (Id. ¶30.) Examples of this treatment included Dr. Kaufman characterizing an educational question plaintiff asked Dr. Katz, another of plaintiffs supervisors, as inappropriate despite Dr. Katz’s opinion to the contrary, Dr. Kaufman’s criticism of plaintiffs performance on a surgical case, Dr. Kaufman calling plaintiff into her office to “chastise and harass her” and tell plaintiff her “performance ha[d] deteriorated to a level that [was] unacceptable,” and Dr. Kaufman’s “demand[ ] that Plaintiff see her psychiatrist more regularly.” (Id.) During this time, Dr. Kaufman assigned plaintiff a new mentor, Dr. Leong, whom plaintiff first met with on February 25, 2011. (Id.) Dr. Leong told plaintiff that “her contract would not be renewed” and that “this [was her] last chance.” (Id.) Dr. Leong also told plaintiff that “she [could] not expect ‘coddling’ like [she] had received in the Midwest” and that “she had to face the culture here in New York.” Dr. Leong also told plaintiff that she was “too emotional,” that “some people are just not strong enough for this profession,” that she “needed to have a ‘type A personality’ like her or Dr. Kaufman in order to survive,” and told plaintiff “to get it through her head that this was not a luxurious setting and that even eating was a luxury.” (Id.)
On March 3, 2011, plaintiff contacted Dr. Kaufman to inquire about her progress, and Dr. Kaufman responded that plaintiffs performance was “absolutely inappropriate,” however “refused to provide any current examples” of her poor performance. (Id.) Around this time, plaintiff requested *365written feedback from other attending physicians, but Dr. Kaufman disapproved of this behavior and told another employee to tell plaintiff to stop requesting these evaluations. (Id.) Additionally, Dr. Kaufman “expressed concern about Plaintiff attending her psychiatric appointments,” and plaintiff responded by having her psychiatrist email Dr. Kaufman to confirm that plaintiff “should be able to function at work and that [she] was meeting with her psychiatrist regularly.” (Id.)
On March 16, 2011, after all other residents had been offered employment contract renewals, plaintiff approached Dr. Kaufman to inquire about her contract status. (Id.) Dr. Kaufman refused to speak to plaintiff at length and stated that plaintiff “would most likely get the contract for renewal the following week.” (Id.) Following this meeting, Dr. Leong encouraged plaintiff to meet with her. (Id.) During their meeting, Dr. Leong stated that plaintiff “was too emotional,” could not expect any “coddling,” and had acquired a reputation as “the resident that cries.” Dr. Leong mentioned that people had a tendency to blame plaintiff when something went wrong, “even when it was not her fault,” comparing plaintiff to a criminal who gets out of jail and has to persuade others “that he turned his life around.”
On March 21, 2011, Dr. Kaufman gave plaintiff a letter stating that her performance was unacceptable and indicating that she would be placed in a remediation program. (Id. ¶ 32.) Dr. Kaufman was “unreceptive” to plaintiffs attempt to discuss the letter. (Id.) During her meeting with Dr. Kaufman plaintiff “felt frozen, felt intense fear, and tried not to fall apart” and became “extremely sad” and “cried uncontrollably” after the meeting. (Id.) Dr. Katz drove the plaintiff home, and plaintiff “commenced medical leave that same day.”3 (Id. ¶¶ 32-33.)
During the week of March 27, 2011, when Dr. Kaufman was on vacation, plaintiff requested evaluations from multiple attending physicians, and these evaluations “ranged from satisfactory to excellent.” (Id. ¶ 34.) Additionally, plaintiff met with Dr. Katz at the end of March, and Dr. Katz “opined that the claims in Kaufman’s March 21, 2011 letter were misrepresenta-tive.” (Id. ¶ 35.) When Dr. Kaufman returned from vacation approximately two weeks later, doctors were hesitant to provide plaintiff with evaluations.” (Id. ¶ 37.)
On or around April 1, 2011, plaintiff met with Dr. Fleischer to request an investigation to “clarify her academic status and performance evaluation,” and she asked that “senior residents be interviewed about her performance, as they spent the most time with Plaintiff.” (Id. ¶ 36.) At this meeting, plaintiff complained of the “inappropriate way that she was being treated, including the way she was being treated by Dr. Kaufman, and the discrepancy between Kaufman’s March 21, 2011 letter and the evaluations that Plaintiff had obtained.” (Id.)
On April 8, 2011, plaintiff spoke with Dr. Fleischer to inquire about the status of the investigation that she had requested. (Id. ¶ 39.) Although Dr. Fleischer “acknowledged the discrepancy” between plaintiffs evaluations and Dr. Kaufman’s letter, Dr. Fleischer suggested that plaintiff remain in remediation and informed her that no investigation had been conducted. (Id.) At this meeting, plaintiff “stated that she could not trust the facility or remain in the program and felt that she had no choice but to resign.” (Id. ¶ 40.) Following plaintiffs meeting with Dr. Fleischer, Dr. Kaufman asked plaintiff to sign a formal *366resignation letter, “verbally attacked [her], suggesting that Plaintiff was inconsiderate.” (Id. ¶ 41.) Following this conversation, plaintiff was contacted by an employee that “told Plaintiff that Kaufman had instructed her to contact Plaintiff about signing a resignation letter.” (Id. ¶ 42.)
On May 2, 2011, plaintiff states that she “explicitly complained about and/or opposed the discriminatory practices of Defendant,” yet does not elaborate regarding the method of her stated opposition or give any details about what she stated in her complaint. (Id. ¶ 45.) After leaving the defendant’s residency program,4 in July 2012, plaintiff began a new residency program and has been doing “extremely well.” (Id. ¶ 49.) As such, plaintiff is not seeking reinstatement into the defendant’s residency program. (Id. ¶ 1.)
DISCUSSION
I. Motion to Amend Standard
Federal Rule of Civil Procedure (“Rule”) 15(a)(2) states that “[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). An “[o]utright refusal to grant the leave without any justifying reason for the denial is an abuse of discretion.” Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir.2002); See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). A motion to amend a complaint may be denied, however, if the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (outlining factors to consider when determining a motion seeking leave to amend a complaint, including undue delay, bad faith, dilatory motive, repeated failure to remedy deficiencies in the complaint, undue prejudice to the defendant, or futility). “A proposed amendment to a pleading is deemed to be futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis.” Kirk v. Heppt, 423 F.Supp.2d 147, 149 (2d Cir.2006) (citing Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir.2003)).
II. Whether Plaintiff’s Amendment Would be Futile
A. Primary Jurisdiction
According to defendant, plaintiffs amendment would be futile because her “claims are precluded by New York Public Health Law § 2801-b.” (Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem. in Supp.”) at 7.) New York Public Health Law § 2801-b provides:
1. It shall be an improper practice for the governing body of a hospital to refuse to act upon an application for staff membership or professional privileges or to deny or withhold from a physician ... staff membership or professional privileges in a hospital, or to exclude or expel a physician ... from staff membership in a hospital or curtail, terminate or diminish in any way a physician’s ... professional privileges in a hospital, without stating the reasons therefore, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.
2. Any person claiming to be aggrieved by an improper practice as defined in this section may, by himself or his attorney, make, sign and file with the public health council [ (“PHC”) ] a verified complaint in writing which shall state the name and address of the hospital *367whose governing body is alleged to have committed the improper practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the council.
According to defendant, pursuant to this statute “a physician seeking to challenge the termination of her hospital privileges or separation from a residency program ... must file a complaint with the PHC and await its review of the complaint,” and “[o]nly after the PHC has had the opportunity to review the factual issues of the complaint may a court consider the physician’s claims.” (Def.’s Mem. in Supp. at 8.)
Under the doctrine of primary jurisdiction, “[generally, a physician in New York challenging the termination of hospital privileges must first file a complaint with the PHC and may pursue the matter in the courts only after the PHC has had the opportunity to review the factual issues.” Deshpande v. Medisys Health Network, Inc., 2008 WL 2004160, at *2 (E.D.N.Y. May 7, 2008). Courts in this circuit, however, have recognized two narrow exceptions to this doctrine. “The first applies where the physician alleges that his or her privileges have been terminated for reasons unrelated to medical care and therefore do not require the particular expertise of the PHC.” Id. “The second applies where the physician seeks damages, but not reinstatement, and where the presence or absence of a proper medical reason for terminating the plaintiffs privileges is not dispositive of the plaintiffs claims.” Id.; Johnson v. Nyack Hosp., 964 F.2d 116, 121 (1992) (holding that physician was required to file complaint with PHC where physician “[could] not prevail on his antitrust claim if defendants had legitimate medical reasons to terminate his surgical privileges”).
Although either exception may prevent a plaintiff from having to file a complaint with the PHC, the circumstances of this case clearly fall within the second exception, thus obviating the need to discuss the first exception. Here, plaintiff is not seeking reinstatement. (PL’s Mem. in Opp’n at 6.) Furthermore, the presence or absence of a proper medical reason for deciding not to renew plaintiffs contract is not dispositive of plaintiffs claims because even if the defendant had legitimate medical reasons for not renewing the contract, the plaintiff could still succeed on his or her ADA and NYSHRL claims by proving that the proffered legitimate reasons were a pretext for discrimination.5 See Chandra v. Beth Israel Med. Ctr., 2010 WL 5600373, at *5 (Dec. 2, 2010), adopted by 2011 WL 180801 (S.D.N.Y. Jan. 19, 2011) (finding that whether defendants had proper medical reasons for firing plaintiff was not dispositive of plaintiffs discrimination claim because plaintiff “could potentially prevail on his claim even if the hospital had legitimate medical reasons for its actions” by showing that discrimination was a motivating factor in termination); Hamad v. Nassau Cnty. Med. Ctr., 191 F.Supp.2d 286, 298 (E.D.N.Y.2000) (finding that doctrine of primary jurisdiction did not apply because “even if PHC finds that defendants had legitimate reason for termination of [plaintiffs] surgical privileges, *368[plaintiff] may still prevail in this action if he can prove that the proffered reasons were merely pretext for discrimination”). As a result, the doctrine of primary jurisdiction does not preclude plaintiffs claims and do not render plaintiffs FAC futile.
B. Administrative Exhaustion
Although the doctrine of primary jurisdiction does not bar plaintiffs claims, the Court also must analyze whether plaintiffs claims under the ADA are precluded because plaintiff failed to exhaust her administrative remedies regarding these claims by filing a complaint with the EEOC. In particular, according to defendant, plaintiffs EEOC charge “did not include any factual allegations or raise any claims concerning perceived or ‘regarded as’ discrimination, an alleged failure to accommodate or a claim for constructive discharge.” (Def.’s Mem. in Opp’n to Pl.’s Mot. to Amend (“Def.’s Mem. in Opp’n”) at 4.)
“Title I of the ADA require[s] a plaintiff to exhaust all available administrative remedies prior to commencing an employment discrimination action in federal court.” Manello v. Nationwide Mutual Ins. Co., 2012 WL 3861236, at *8 (E.D.N.Y. Sept. 4, 2012). “Claims that were not asserted in an EEOC charge may be pursued in a federal action only if they are ‘reasonably related’ to those that were filed with the agency.” Id. at *9. The Second Circuit has stated that “[a] claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made.” Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.2006).
With respect to plaintiffs claim that defendants discriminated against her because they perceived her to be disabled, plaintiff makes no allegations in the EEOC charge related to this claim. In the EEOC charge, plaintiff states that she is disabled due to her “medical history of depression,” (Ex. C to Gegwieh Aff. (“EEOC charge”) ¶ 13), but fails to allege any facts that defendant regarded her as having a disability or any facts suggesting that she was making such a claim. These facts would have been “particularly relevant because a regarded as claim turns on the employer’s perception of the employee, not whether the employee actually has a disability.” See Cadely v. New York City Department of Trans., 2008 WL 465199, at *10 (S.D.N.Y. Feb. 16, 2008) (internal citations and quotation marks omitted). As a result, whether defendant perceived plaintiff as disabled would not have fallen within the scope of the investigation resulting from plaintiffs EEOC charge. The EEOC charge is therefore not reasonably related to the claim in plaintiffs complaint alleging discrimination based on a perceived disability. Furthermore, plaintiffs perceived disability claim is precluded and allowing plaintiff to amend her complaint to add this claim would be futile.6
C. Plaintiffs Remaining Claims Fail to State Claims Upon Which Relief Can Be Granted
Defendant argues that allowing plaintiff to file the remaining claims would be futile because each of them fails to state a claim under Rule 12(b)(6). In recent years, the Supreme Court has clarified the pleading *369standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561, 127 S.Ct. 1955. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action -will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court provided further guidance, setting a two-pronged approach for courts considering a motion to dismiss. First, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
Second, “[w]hen there are well-pleaded factual allegations a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The Court defined plausibility as follows:
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. 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. 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.’ ”
Id. at 678, 129 S.Ct. 1937 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted). In other words, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — that the pleader is entitled to relief.” Id. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)).
Generally, in deciding a motion to dismiss pursuant to Rule 12(b)(6), the court may only consider facts stated in the complaint or “[documents that are attached to the complaint or incorporated in it by reference.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007); see also Gillingham v. *370Geico Direct, 2008 WL 189671, at *2 (E.D.N.Y. Jan. 18, 2008). Although defendant has attached materials outside of the FAC to its motion papers, the Court has not considered these extraneous materials in its analysis.
1. Plaintiff’s Hostile Work Environment Claims Under the ADA and NYSHRL
In order to establish a hostile work environment claim under the ADA, a plaintiff must show: 1) that she is a member of a protected class; 2) that she suffered unwelcome harassment; 3) that she was harassed because of her membership in a protected class; and 4) that the harassment was sufficiently severe or pervasive to alter the abusive work environment.7 See Scott v. Memorial Sloan-Kettering Cancer Ctr., 190 F.Supp.2d 590, 598 (S.D.N.Y.2002). “This test has objective and subjective elements: the misconduct shown must be ‘severe or pervasive enough to create an objectively hostile or abusive work environment,’ and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); see also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006) (“Plaintiff must show not only that she subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.”).
“Isolated incidents typically do not rise to the level of a hostile work environment unless they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to create such an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir.2004)). However, “[tjhere is no fixed number of incidents that a plaintiff must endure in order to establish a hostile work environment,” and instead, courts are to “view the circumstances in their totality, examining the nature, severity, and frequency of the conduct.” Alfano, 294 F.3d at 379. It is necessary for the plaintiff to establish a link between the actions by defendants and plaintiffs membership in a protected class. Id. at 374; Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001).
Defendant argues that plaintiffs FAC fails to state a plausible hostile work environment claim because “plaintiffs allegations are neither severe nor pervasive.” (Def.’s Mem. in Opp’n at 6.) The Court agrees. First of all, many of plaintiffs allegations, for example, that she was generally “harass[ed] and berate[d]” (FAC ¶ 30e) and that “two incidents [in February] were discriminatorily held against [her] unfairly and given undue weight,” (FAC ¶ 29b), without more detail, are too vague and conclusory to support a claim. Argeropoulos v. Exide Techs., 2009 WL 2132443, at *6 (E.D.N.Y. Jul. 8, 2009) (“[The Court need not accept as true Plaintiffs conclusory and entirely non-specific allegation[s].]”). Moreover, plaintiff alleges only three specific occasions where her supervising doctors made arguably negative comments to her regarding her disability. The first incident occurred on or around February 24, 2011 when Dr. Kaufman told plaintiff that her performance was ' unacceptable and “demanded *371that Plaintiff see her psychiatrist more regularly.” The other incidents occurred during plaintiffs two meetings with Dr. Leong where Dr. Leong told plaintiff that she was “too emotional,” could not expect “coddling,” and that she was developing a reputation as “the resident who cries.” (FAC ¶ 30.) These incidents, however, are too isolated and minor to warrant relief under a hostile environment theory. See Forgione v. City of New York, 2012 WL 4049832, at *7 (E.D.N.Y. Sept. 13, 2012) (dismissing hostile work environment claim where defendant “made several offensive quips to [plaintiff] about his perceived disability and told [plaintiff] he needed to see a psychiatrist”).
Furthermore, plaintiffs allegations that after she disclosed her disability she “was scrutinized at a higher level than her classmates,” (FAC ¶ 25), that she was given negative feedback, and that Dr. Kaufman was “overly critical” of her, (FAC ¶¶ 27, 30b), are not only vague, but insufficient as a matter of law to support a hostile work environment claim. Salerno v. Town of Bedford, NY, 2008 WL 5101185, at *8 (S.D.N.Y. Dec. 3, 2008) (“Allegations of negative job evaluations or excessive reprimands are insufficient to establish a hostile environment claim.”). Finally, any contact Dr. Kaufman had with plaintiff about signing her resignation letter came after plaintiff had expressed her desire to resign and cannot be considered hostile. (FAC ¶¶ 40-42.) In conclusion, the allegations in plaintiffs complaint, viewed in their totality, do not state a plausible hostile work environment claim. Since NYSHRL hostile work environment claims are governed by the same standard as federal claims, plaintiffs state claim also fails. Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir.2006). As a result, allowing plaintiff to amend her complaint to add federal and state hostile work environment claims would be futile.
2. Plaintiff’s Discrimination Claims Under the ADA and NYSHRL
The ADA prohibits employment discrimination by a “covered entity ... against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). Employment discrimination claims under the ADA are evaluated under the now familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas and its innumerable progeny, (1) a plaintiff must first establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions; if the employer does so, the McDonnell Douglas framework and its presumptions and burdens disappear, leaving the sole remaining issue of “discrimination vel non;” and thus, (3) the burden shifts back to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations omitted). “For a disability discrimination claim under the ADA, a plaintiff must demonstrate that her disability was at least ‘a motivating factor’ for the adverse employment action.”8 See Wes*372ley-Dickson v. Warwick Valley Cent. School Dist., 973 F.Supp.2d 386 (S.D.N.Y.2013) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir.2000)). Although intermediate evidentiary-burdens shift back and forth under this framework, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id.
In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) his employer is subject to the ADA; (2) the plaintiff was disabled within the meaning of the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) the plaintiff suffered [an] adverse employment action because of his disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004) (citing Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.2003)); Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d Cir.2003).
“For the most part, the ADA and the NYSHRL are construed similarly, and the clear legislative purpose in drafting the NYSHRL was ‘to enact a definition of disability coextensive with comparable federal statutes.’ ”9 Burton v. Metro. Transp. Auth., 244 F.Supp.2d 252, 257 (S.D.N.Y.2003) (quoting Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155 (2d Cir.1998), superseded by statute on other grounds as stated in Hilton v. Wright, 673 F.3d 120 (2d Cir.2012)). Moreover, claims brought under the NYSHRL are analyzed under the same McDonnell Douglas burden-shifting framework as ADA claims. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000).
Here, defendant challenges the sufficiency of plaintiffs allegations that she suffered adverse action. According to plaintiff, “[t]he adverse actions committed by Defendant include (1) unjustifiably placing her in a remediation program, thereby5 significantly diminishing her material responsibilities and subjecting her to humiliation in front of her peers; (2) unnecessarily assigning her a second mentor who discriminated against her and harassed her based on her disability; (3) failing to investigate her discrimination claims even though Plaintiff complained and requested an investigation, (4) attempting to prevent Plaintiff from obtaining objective evaluations and causing discriminatory and inaccurate evaluations and comments to be made concerning Plaintiff, and (5) creating an environment so toxic, prejudicial and hostile to Plaintiff that it amounted to her constructive discharge.” (Pl.’s Mem. in Opp’n. at 11-12 (internal quotation marks and citations omitted).) Plaintiff also asserts that her “contract renewal was unduly delayed.” (Pl.’s Reply at 7.) Defendant responds that “[n]one of the circumstances identified by Plaintiff constitutes an adverse employment action and, as such, her claims should be considered futile.” (Def.’s Mem. in Opp’n at 11.)
*373The Supreme Court has stated that in order to be actionable under federal discrimination laws, an adverse employment action must be “tangible” or “material.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir.2006) (“A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.”) (citation and internal quotation marks omitted). “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. Materially adverse employment actions also include “a demotion evidenced by a decrease in wage or salary, a less distinguished title, ... or other indices ... unique to a particular situation.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir.2004) (citations and internal quotations omitted). However, a “bruised ego,” a “demotion without change in pay, benefits, duties, or prestige,” or “reassignment to [a] more inconvenient job” are all insufficient to constitute a tangible or material adverse employment action. Ellerth, 524 U.S. at 761, 118 S.Ct. 2257 (internal quotations and citations omitted).
First, regarding plaintiffs remediation program, plaintiff alleges only that her placement in the program was “an adverse action that was unwarranted and discriminatory.” (FAC ¶ 32.) Plaintiff does not allege any facts from which one could infer that her placement in the program created a materially adverse change in her working conditions. Similarly, plaintiff does not allege any facts suggesting that assigning her to a new mentor, Dr. Leong materially altered the terms of her employment. Moreover, plaintiffs allegations that defendant prevented her from obtaining evaluations and evaluated her inaccurately do not rise to the level of adverse action. Weeks v. New York State (Div. of Parole), 273 F.3d 76, 86 (2d Cir.2001) abrogated on other grounds (“It hardly needs saying that a criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.”); See Browne v. City Univ. of New York, 419 F.Supp.2d 315, 332 (E.D.N.Y.2005) aff'd by 202 Fed. Appx. 523 (2d Cir.2006) (“A negative evaluation alone, absent some accompanying adverse result such as a demotion, diminution of wages, or other tangible loss, does not constitute an adverse employment action.”); Hall v. New York City Dep’t of Trans., 701 F.Supp.2d 318, 335-36 (E.D.N.Y.2010) (denying claim because plaintiff failed to establish that she suffered any adverse employment action as a result of alleged increased scrutiny) (collecting cases).
In addition, the FAC does not sufficiently allege that plaintiff suffered an adverse action because defendant engaged in undue delay in renewing her contract. Although plaintiff alleges that by March 16, 2011, she was the only resident who had not been offered a contract renewal, she also alleges that on that date, Dr. Kaufman told plaintiff that she “would most likely get the contract for renewal the following week.” (FAC ¶ 30j.) Following that encounter, defendant placed plaintiff in a remediation program where she seems to have remained until she expressed her desire to resign on April 8, 2011. (FAC ¶¶ 39-40.) It can be inferred from the complaint that plaintiff herself decided to terminate her employment relationship with defendant and resigned. (FAC ¶40 (“Plaintiff stated that she could not trust *374the facility or remain in the program and felt that she had no choice but to resign”); ¶ 47 (Plaintiffs conversation with another resident “confirmed Plaintiffs view that [she] could not return to the program.”)-) These facts alone do not support an inference that defendant’s conduct materially altered the terms of plaintiffs employment.
Furthermore, as defendant correctly states, an employer’s failure to investigate discrimination claims is not an adverse employment action. Price v. Cushman & Wakefield, Inc., 808 F.Supp.2d 670, 690 (S.D.N.Y.2011); Hayes v. Kerik, 414 F.Supp.2d 193, 203 (E.D.N.Y.2006); cf. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d Cir.2010) (holding that in retaliation context “an employer’s failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint”).
Finally, as the Court has already found that plaintiff has not sufficiently alleged a hostile work environment claim, her constructive discharge claim must fail. See Zick v. Waterfront Comm. of New York Harbor, 2012 WL 4785703, at *7 (S.D.N.Y. Oct. 4, 2012) (“Constructive discharge is a subset of ‘hostile work environment.’ Conditions that do not qualify as a hostile work environment under Title YII are, by definition, not sufficiently intolerable to force an employee to quit.”) As a result, plaintiffs FAC fails to state disability discrimination claims under both the ADA and NYSHRL10, and allowing plaintiff to amend her complaint to add these claims would be futile.
3. Plaintiff’s Retaliation Claims Under the ADA and NYSHRL
The ADA makes it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the [ADA].” 42 U.S.C. § 12203(a). Retaliation claims under the ADA and the NYSHRL are analyzed under the same McDonnell Douglas burden-shifting framework as discrimination claims. Tse v. New York Univ., 2013 WL 5288848, at *16 (S.D.N.Y. Sept. 19, 2013). In order to state a claim for retaliation under the ADA, a plaintiff must plead: (i) plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action. Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 148-49 (2d Cir.2002).
Protected Activity
A plaintiff may establish that she engaged in protected activity under the ADA by pleading that she engaged in “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry, and expressing support of co-workers who have filed formal charges.” Correa v. Mana Prods. Inc., 550 F.Supp.2d 319, 327 (E.D.N.Y.2008) (citing Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990)). “However, such informal complaints must be sufficiently specific to make it clear that *375the employee is complaining about conduct prohibited by [federal anti-discrimination law]”. Risco v. McHugh, 868 F.Supp.2d 75, 110 (S.D.N.Y.2012).
Here, plaintiff claims that she engaged in protected activity when “(1) After Plaintiff commenced medical leave on March 21, 2011, she opposed the discrimination, harassment, and creation of a hostile work environment by complaining of her unfair treatment to Dr. Fleischer, who presumably knew of Plaintiffs disability or perceived her to be disabled, (2) Shortly after March 21, 2011, Plaintiff opposed the_ discrimination, harassment, and creation of a hostile work environment by attempting to obtain objective evaluations from people she had worked with at Defendant’s facilities; (3) Plaintiff also opposed the discrimination, harassment, and creation of a hostile work environment by asking Dr. Fleischer for an investigation regarding her performance and the inappropriate way that she was being treated; and (4) On May 2, 2011, Plaintiff explicitly complained about and/or voiced opposition to the Defendant’s discriminatory practices to Defendant, including Dr. Kaufman and Dr. Fleischer.” (Pl.’s Mem. in Opp’n at 13.)
According to defendant, “Plaintiff does not plausibly allege that she engaged in protected activity prior to May 2, 2011.” (Def.’s Mem. in Opp’n at 21.) The Court agrees with defendant that plaintiffs allegations that she engaged in protected activity when she attempted to obtain evaluations from co-workers are insufficient because plaintiff does not allege how these incidents constituted any opposition to discriminatory practices. Moreover, it is not clear from plaintiffs allegation that when she met with Dr. Fleischer on April 1, 2011 “regarding the inappropriate way that she was being treated,” (FAC ¶ 36), she complained about being discriminated against because of her disability, and as such that allegation does not suffice. Mayling Tu v. OppenheimerFunds, Inc., 2012 WL 516837, at *10 (S.D.N.Y. Feb. 16, 2012) (“While an informal complaint to management may be protected .activity, the plaintiff offers no evidence that she communicated a belief that [defendant] was discriminating against her. Absent such evidence, plaintiffs [complaints] do not support a retaliation claim.”) (internal citations omitted).
Plaintiff alleges that on “May 2, 2011, [she] explicitly complained about and/or opposed the discriminatory practices of Defendant discussed at length in this Complaint.” (FAC ¶ 45.) Even assuming that this vague allegation is a sufficient pleading of protected activity, plaintiff does not plead a causal connection between this complaint and any adverse actions because as defendant states, any “alleged retaliation occurred prior to her protected activity.” (Def.’s Mem. in Opp’n at 24.) Plaintiff does not allege any facts occurring after May 2, 2011 that could plausibly amount to adverse action. In particular, plaintiffs claim that defendant “attempted to prevent Plaintiff from obtaining objective evaluations and caused discriminatory and inaccurate evaluations and comments to be made concerning Plaintiff’ concern incidents that plaintiff alleges occurred in February and March (FAC ¶ 31i) and early April of 2011 (FAC ¶ 37). In addition, as stated above, defendant’s failure to investigate a discrimination complaint does not amount to retaliation based on that same complaint. Fincher, 604 F.3d at 721 (“an employer’s failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint”). Furthermore, plaintiffs allegation that defendant “intensely pressured her to resign and created an *376environment so toxic, prejudicial and hostile to Plaintiff that it amounted to her constructive discharge shortly after the May 2, 2011 complaint” (FAC ¶¶ 73, 105) is insufficient as plaintiff alleges absolutely no facts after May 2, 2011 supporting her allegation that defendant created an environment so hostile it forced her to resign. As a result, plaintiffs state and federal retaliation claims would be futile because they do not withstand a 12(b)(6) motion to dismiss.
4. Plaintiff’s Failure to Accommodate Claims Under the ADA and NYSHRL
In order to plead a plausible claim of a disability discrimination based on a failure to accommodate, a plaintiff must allege facts showing that (1) the employer is subject to the ADA, (2) she is disabled within the meaning of the ADA, (3) she could perform the essential functions of the job with or without reasonable accommodation, and (4) the employer had notice of the disability and failed to provide such accommodation. Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515 (2d Cir.1995). “Aside from the broader scope of covered disabilities under New York Executive Law § 296, [a plaintiffs] state law reasonable accommodation claim is governed by the same legal standards as federal ADA claims.” Timmel v. West Valley Nuclear Services Co., 2011 WL 5597350, at *11 (W.D.N.Y. Nov. 17, 2011) (internal citations and quotation marks omitted).
Under the fourth prong, it is the employee’s responsibility not only to notify the employer about the alleged disability, but also to “demonstrate to an employer that she needs an accommodation for reasons related to a medical condition disability.” MacEntee v. IBM, 783 F.Supp.2d 434, 443-44 (S.D.N.Y.2011) (holding that plaintiffs informing her manager that she was depressed did not provide sufficient notice, or demonstrate a request for an accommodation that IBM refused, under the ADA “because she in no way inferred that her depression required any accommodations”). Here, plaintiff alleged that she “disclosed to Dr. Kaufman that she suffered from mental illness and was under the care of a psychiatrist for appropriate management,” but fails to allege that she requested any accommodation from defendant at any point. (FAC ¶ 24b.) Although she claims that “Defendant should have offered [her] a reasonable accommodation if it believed Plaintiffs disability to be interfering with her performance,” plaintiff has not alleged any facts stating that she disclosed the limitations of her depression or requested any accommodations. (Id. ¶ 26.) As a result, she has not adequately alleged a reasonable accommodation claim. See MacEntee, 783 F.Supp.2d at 444 (“[U]nlike disabilities that are visible to an employer, the presence, duration and ever-varying severity of depression cannot be adequately perceived or accommodated unless an employee informs in some manner her employer of her limitations as a result of such disability.”). As a result, plaintiffs FAC fails to state a claim for a reasonable accommodation.
CONCLUSION
As mentioned above, plaintiff has withdrawn her original complaint. As a result, defendant’s motion to dismiss that complaint is denied as moot. In addition, for the foregoing reasons, plaintiffs filing the FAC would be futile and her motion to amend is denied. The clerk of the Court is directed to close this case.
SO ORDERED.
. LIJMC "is a full-service academic medical center and a member institution of North Shore Long Island Jewish Health System ("North Shore-LIJ”). (Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem. in Supp.”) at 1.)
. Plaintiff does not elaborate on the circumstances surrounding these crying episodes.
. It is unclear from the FAC when plaintiffs medical leave ended.
. It is unclear from the FAC whether plaintiff's employment relationship with LIJMC ended due to her resignation or defendant’s refusal to renew her contract.
. As discussed infra, plaintiff's ADA and NYSHRL claims are analyzed according to the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which requires that a plaintiff must first establish a prima facie case of discrimination, and if it does so then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions; if the employer does so, the burden shifts back to the plaintiff to prove that the legitimate reasons offered by the defendant were a pretext for discrimination.
. Although defendant also argues that plaintiff's constructive discharge claim and failure to accommodate claim are precluded because plaintiff did not exhaust her administrative remedies, the Court need not address these arguments here because the Court will address the sufficiency of those claims below.
. Though the Second Circuit has not explicitly recognized a hostile work environment claim pursuant to the ADA, many district courts in this circuit have recognized such a claim. See e.g., Wesley-Dickson v. Warwick Valley Cent. School Dist., 973 F.Supp.2d 386, 404-06 (S.D.N.Y.2013); Forgione v. City of New York, 2012 WL 4049832, at *7, n. 6 (E.D.N.Y. Sept. 13, 2012).
. In Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), the Supreme Court held that in order to withstand summary judgment, a plaintiff claiming a violation under the Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. § 621 et seq., must raise a triable issue that age was the “but for” reason for the adverse employment action. Despite the similarities in language between the ADEA and *372the ADA, the defendant does not argue that the heightened standard applies here. The Court declines to sua sponte pursue that issue — as yet undecided by the Second Circuit, see Najjar v. Mirecki, 2013 WL 3306777, at *7 (S.D.N.Y. July 2, 2013) — because its application would not affect the viability of plaintiffs proposed FAC.
. Although "the definition of a disability under New York law is not coterminous with the ADA definition,” that difference is not of importance to this decision. Giordano v. City of N.Y., 274 F.3d 740, 754 (2d Cir.2001) (citing, inter alia, State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 491 N.Y.S.2d 106, 480 N.E.2d 695 (1985)).
. This includes plaintiff's claims under the NYSHRL that she was discriminated against because she was disabled and because of defendant's perception that she was disabled. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217634/ | MEMORANDUM **
Sevaro Perasa-Pena appeals the judgment of conviction and 35-month sentence following his guilty plea to Harboring Illegal Aliens in violation of 8 U.S.C. § 1324(a)(l)(A)(iii). His attorney has filed a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a brief stating that counsel cannot identify any nonfrivolous issues for review.
We have conducted an independent review of the record and the briefs on appeal pursuant to Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which disclosed that Perasa-Pena knowingly and voluntarily waived his right to appeal his conviction and he was sentenced within the terms of the plea agreement. Accordingly, we enforce the waiver and dismiss the appeal. United States v. Martinez, 143 F.3d 1266, 1270-72 (9th Cir.1998) (enforcing waiver of right to appeal where waiver is knowing and voluntary and sentence is in accordance with plea agreement).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217635/ | MEMORANDUM **
August C. Manna appeals the district court’s orders denying his two Fed. R.Civ.P. 60(b) motions, to set aside the judgment in his employment discrimination action. In No. 01-17529, we have jurisdiction pursuant to 28 U.S.C. § 1291, we review for abuse of discretion, see Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir.1999), and we affirm. In No. 02-16175, we lack jurisdiction and dismiss.
The district court did not abuse its discretion by denying relief from judgment under Rule 60(a), because summary judgment was not the product of a clerical mistake or error. See Fed.R.Civ.P. 60(a).
Moreover, Manna’s unjustified failure to file an opposition in the four-month period between the motion for summary judgment and the order granting summary judgment did not warrant relief under Fed.R.Civ.P. 60(b)(1) on the basis of mistake, inadvertence or excusable neglect. See Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir.2001); see also Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir.1986) (rejecting pro se litigant’s argument that district court had a duty to advise him of measures he should take to oppose defendants’ summary judgment motion).
The district court properly denied relief under Fed.R.Civ.P. 60(b)(3) because Manna faked to produce clear and convincing evidence that opposing counsel committed fraud, misrepresentation, or other misconduct that prevented Manna from opposing summary judgment. See De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir.2000).
Because all of the bases for Manna’s motion for reconsideration are covered by other subsections of Rule 60(b), Rule 60(b)(6) is inapplicable. See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1050 (9th Cir.1993).
We do not consider Manna’s contentions regarding the underlying summary judgment, because Manna did not file a timely notice of appeal from that order. See Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995); see also Fed. R.App. P. 3(c)(1)(B), 4(a)(4)(F).
The district court’s refusal to consider the merits of Manna’s second motion for reconsideration for want of jurisdiction is not a final, appealable order. See Defend*353ers of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.2000). Accordingly No. 02-16175 is dismissed.
No. 01-17529 is AFFIRMED; No. 02-16175 is DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217637/ | MEMORANDUM**
Erik Zuniga-Mendez appeals the sentence imposed following his guilty plea to conspiracy to distribute and possess with intent to distribute, distribution of heroin, and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2.
Zuniga-Mendez contends that he is entitled to a downward departure for exceptional family circumstances. Because the district court recognized its discretion to depart on this ground, we lack jurisdiction to review its discretionary refusal to depart downward. United States v. Rivera-Sanchez, 222 F.3d 1057, 1064 (9th Cir.2000).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217975/ | ORDER
BRYSON, Circuit Judge.
Don Roger Norman et al. (Norman) move to voluntarily dismiss their petition *224for a writ of mandamus as moot.*
Upon consideration thereof,
IT IS ORDERED THAT:
The motion to voluntarily dismiss the mandamus petition is granted.
Norman requests that the dismissal be "without prejudice.” It is not this court’s usual practice to designate a dismissal as being with or without prejudice, and in this instance there is no indication why the dismissal should be labeled as such. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217640/ | MEMORANDUM**
Pedro Flores-Carmona appeals his conviction pursuant to guilty plea and his 78-month sentence for unlawful reentry by a deported, removed and/or excluded alien in violation of 8 U.S.C. § 1326. We affirm.
Flores-Carmona contends that he cannot be subjected to a sentencing enhancement under 8 U.S.C. § 1326(b) because that statute applies to aliens who have been removed, and not to aliens who have been excluded, as Flores-Carmona was. This contention lacks merit because we have held that there is no legally significant distinction between “deportation,” “exclusion” and “removal” for purposes of the crime defined by 8 U.S.C. § 1326(a) and the enhancement under section 1326(b). United States v. Luna-Madellaga, 315 F.3d 1224, 1225 fn. 2 (9th Cir.2003); United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).
Flores-Carmona also contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because 8 U.S.C. § 1326(b) describes a separate crime from subsection (a), and must be *357pled in the indictment. As he acknowledges, this issue has been foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217641/ | MEMORANDUM***
Tom Olsen appeals pro se the district court’s judgment dismissing his action alleging failure to comply with a Department of Labor (“DOL”) compensation order entered in 1982, after Olsen was injured while employed by Triple A Machine Shop, Inc. We have jurisdiction under 28 U.S.C. § 1291. After de novo review, United Dairymen of Ariz. v. Veneman, 279 F.3d 1160, 1163 (9th Cir.2002), we affirm.
The district court properly concluded that it lacked jurisdiction over this action under the Longshore and Harbor Workers’ Compensation Act because, in effect, Olsen sought to modify, rather than enforce, the DOL compensation orders. See 33 U.S.C. § 921(d); Thompson v. Potashnick Constr. Co., 812 F.2d 574, 576 (9th Cir.1987) (holding that a district court lacks jurisdiction to “affirm, modify, suspend or set aside the order”).
Contrary to Olsen’s contention on appeal, he was not entitled to file a “whistle blower” complaint under the Energy Reorganization Act. See 42 U.S.C. § 5851(b) (setting out the administrative procedure for filing a retaliation suit).
All pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217643/ | MEMORANDUM**
Marcus Ruben Ellington, a California state prisoner, appeals pro se the district court’s summary judgment in his action alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment and violation of his rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc), and we affirm.
The district court properly granted summary judgment on Ellington’s Eighth Amendment claim because he failed to raise a genuine issue of material fact as to whether the course of treatment the prison doctors chose was medically unacceptable under the circumstances. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996). The record shows only a reasonable difference of opinion about the proper course of medical treatment. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).
Ellington’s claim of intentional discrimination under the ADA fails because he did not raise a genuine issue of material fact as to whether he suffered intentional discrimination due to a disability. See Duvall v. County of Kitsap, 260 F.3d 1124, 1138-40 (9th Cir.2001).
We deny Ellington’s requests for judicial notice because we have considered the documents in question as part of the district court record.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217644/ | MEMORANDUM**
Renee’ Martin appeals pro se the district court’s judgment dismissing her action under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir.1996). We affirm.
The district court properly dismissed Martin’s Title VTI claim because the licensing activities of the Department of Real Estate (“DRE”) are beyond the reach of Title VII. See Haddock v. Bd. of Dental Examiners of Calif., 777 F.2d 462, 463-64 (9th Cir.1985). Martin does not allege that the DRE is involved in the day-to-day operations of real estate brokers to such a degree that Title VII would apply to its activities. See Ass’n of Mexican-American Educators v. State of Calif., 231 F.3d 572, 580-84 (9th Cir.2000) (en banc).
Martin’s attempt to state an equal protection claim under section 1983 fails because her complaint lacks specific factual allegations showing the defendant participated in the alleged discriminatory prae-tice. See Richards v. Harper, 864 F.2d 85, 88 (9th Cir.1988).
We are unpersuaded by Martin’s contentions regarding the district court’s denial of a preliminary injunction and its failure to encourage the defendant to settle.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217646/ | MEMORANDUM**
Lee V. Quillar, a California state prisoner, appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging violation of his First, Eighth, and Fourteenth Amendment rights. We review de novo a dismissal for failure to exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir.1999). We affirm.
The district court correctly dismissed Quillar’s action because it was clear from the face of the amended complaint that he had failed to exhaust available prison administrative remedies. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 739-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Quillar’s contention on appeal that the district court erred in applying Booth to his case is unpersuasive because the Supreme Court’s interpretation of federal law is applied retroactively to all cases still open on direct review. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217647/ | MEMORANDUM**
Derrick J. Newsome, an Arizona state prisoner, appeals pro se the district court’s sua sponte dismissal of Newsome’s civil rights action alleging that his due process rights were violated in a prison disciplinary hearing which deprived him of good time credits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo a dismissal under the screening provisions of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915A(a), 1915A(b)(1) & (2). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) *363(order), cert. denied, 525 U.S. 1154, 119 S.Ct. 1058, 143 L.Ed.2d 68 (1999). Newsome’s action is barred by Heck v. Humphrey, 512 U.S. 477, 483-84, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because Newsome’s claims challenge the duration of his confinement, and Newsome may not bring such a 42 U.S.C. § 1983 action unless and until his disciplinary conviction is overturned. See Edwards v. Balisok, 520 U.S. 641, 647, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217648/ | MEMORANDUM**
Taxpayers Antonio and Brenda Gomez appeal pro se the district court’s Fed. R.Civ.P. 12(b)(6) dismissal of their action against the Internal Revenue Service and an IRS employee, claiming that they were entitled to an income tax refund for the tax year 2000. The Gomezes concede that they received $132,000 in wages in 2000, but allege that the wages are not subject to federal income tax. They also allege that the IRS agent had no authority to determine their claim was frivolous.
The district court did not err in concluding that the Gomezes failed to state a claim. Compensation for labor or services, paid in the form of wages or salary, is income subject to taxation. United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). The Gomezes are taxpayers within the meaning of the Internal Revenue Code and are subject to federal tax laws and income tax. Id. The district court also properly concluded that the IRS and its employee were not proper parties to a tax refund suit. 26 U.S.C. § 7422(f). We will not review the Gomezes’ remaining claims, which they raise for the first time on appeal. Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217649/ | MEMORANDUM**
Federal prisoner Jack Kenneth Mirth appeals the sentence imposed following his guilty plea conviction for bankruptcy fraud and aiding and abetting, in violation of 18 U.S.C. §§ 152(1) and 2. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s compliance with Fed.R.Crim.P. 32, see United States v. Houston, 217 F.3d 1204, 1206 (9th Cir.2000), and for abuse of discretion its decision to allow testimony at a sentencing hearing, see United States v. Upshaw, 918 F.2d 789, 791 (9th Cir.1990). We affirm.
Mirth contends the district court violated his due process rights and Fed. R.Crim.P. 32 at sentencing by considering letters from plaintiffs who had brought various civil actions against him. Rule 32 is inapposite because Mirth never objected to the findings and recommendations contained in his presentence report (“PSR”) or moved to have the letters produced. See Fed.R.Crim.P. 32(c) (1994). Mirth’s due process claim similarly fails. See United States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir.2000) (concluding that sentencing court’s reliance on hearsay evidence contained in PSR did not violate due process where defendant failed to object to PSR or submit contrary evidence).
The district court did not abuse its discretion in allowing testimony at Mirth’s sentencing hearing, as it merely restated information contained in the PSR, and evinced sufficient indicia of reliability. See United States v. Marina-Cuevas, 147 F.3d 889, 894-95 (9th Cir.1998) (citing U.S.S.G. § 6A1.3).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217650/ | MEMORANDUM**
Gregory O. Thomas, an inmate at the Washington State Penitentiary (“WSP”), appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials violated the First and Fourteenth Amendments by refusing to deliver to him magazines deemed to be “sexually explicit” under WSP policy 450.100. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review dismissals under 28 U.S.C. § 1915A(b)(1) de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and dismissals under 28 U.S.C. § 1915(e)(2)(B)© for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). We affirm in part, vacate in part, and remand.
Thomas alleged that the prison officials violated his equal protection rights by permitting the WSP library to stock allegedly sexually explicit books, but refusing to deliver similarly sexually explicit magazines to him. The district court properly dismissed this claim. See Lee v. City of Los Angeles, 250 F.3d 668, 686-87 (9th Cir.2001).
However, the district court improperly dismissed Thomas’ First Amendment challenge to WSP policy 450.100 because, in the absence of published Ninth Circuit *366precedent directly on point, it is not clear from the face of the complaint that this claim is frivolous or that Thomas cannot state a claim upon which relief can be granted. Cf. Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989) (reversing section 1915(e) dismissal because, if true, plaintiffs allegations “arguably” stated an Eighth Amendment claim).
We deny Thomas’ “Motion for Admission.” We also decline to consider the “appendix” received on March 28, 2008 because it contains documents that were not part of the district court record. See Fed. R.App. P. 10.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217651/ | MEMORANDUM**
Jose Alfonso Espinosa-Herrera appeals his conviction by guilty plea and the sentence imposed for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960.
Espinosa-Herrera’s contention that 21 U.S.C. § 960 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002) and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002), is foreclosed by United States v. Hernandez, 322 F.3d 592 (9th Cir.2003).
Espinosa-Herrera’s contention that a mens rea requirement applies to the elements of drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) and Hernandez, 322 F.3d at 602.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224385/ | DECISION AND ORDER
ELIZABETH A. WOLFORD, District Judge.
I. INTRODUCTION
Pro se plaintiff Jose Hector Merino Acevedo (“Plaintiff’) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) 1 denying his application for Social Security Disability benefits (“SSD”). (Dkt. 1). Presently before the Court is the Commissioner’s motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 9). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. As a result, judgment is entered in favor of the *380Commissioner and Plaintiffs complaint is dismissed.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Overview
On December 1, 2008, Plaintiff filed an application for SSD, alleging a back injury beginning April 1, 2007. (Transcript of Administrative Record (hereinafter “Tr.”) at 225-30, 249). At the time of the hearing, Plaintiff was 89 years old, had a ninth grade education, and previously worked in construction. (Tr. 56-57, 257-58). Plaintiff is from El Salvador, and at the time of the hearing, Plaintiff had been in the United States for 11 years. (Tr. 56-57). Plaintiff spoke little English. (Tr. 57).
Plaintiffs initial request for SSD was denied on February 6, 2009. (Tr. 105). Plaintiff timely requested a hearing and appeared, without counsel, to testify at the hearing held on April 29, 2010, before Administrative Law Judge (“ALJ”) Thomas Mercer Ray. (Tr. 7, 47-73).2 Plaintiff was assisted by a Spanish translator. (Id.). Vocational expert (“VE”) Kathleen San-beck also testified at the hearing. (Tr. 65-70).
On February 17, 2011, the ALJ issued a decision determining that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 8-22). In making this determination, the ALJ found that “the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Tr. 22). The Appeals Council denied review on August 7, 2012, and the ALJ’s decision became the final decision of the Commissioner. (Tr. 1-3). Plaintiff then filed this action on October 3, 2012. (Dkt. 1).
B. Non-Medical Evidence
1. Plaintiffs Testimony
Plaintiff testified that -he injured his back while working with an air hammer on a construction site. (Tr. 58). He received Workers’ Compensation benefits for three years following the incident. (Tr. 58-59). Plaintiff testified that his back pain prevents him from working. (Tr. 59). According to Plaintiff, he experiences permanent pain in his back and has shaking in his legs. (Tr. 58). Plaintiff reported a “pinching” feeling when he bends over, showers, or brushes his teeth. (Tr. 61). He indicated that he has difficulty sleeping, but that over the counter pain medications, such as Advil or Tylenol, relieve the pain. (Tr. 61-62). Additionally, Plaintiff stated that he has diabetes and injects himself with insulin. (Tr. 61). Plaintiff testified that he lives on a first floor apartment with friends. (Tr. 60-61). Plaintiff stated that he is able to cook, clean, drive, dress, and bathe independently. (Tr. 64). Additionally, Plaintiff said that he did not think it would be “impossible” for him to work at a job where he could “sit most of the time for eight hours a day,” indicating that “if it were that job, I would try to do it, and I will try to move when I feel bad, when I feel pain.” (Tr. 70).
2. Testimony of the Vocational Expert
VE Sanbeck testified that Plaintiffs past relevant work as a construction laborer is considered an unskilled position performed at a very heavy exertional level. (Tr. 66-67). She opined that a hypothetical, person with the same age, residual functional capacity (“RFC”), educational history, and *381vocational profile as Plaintiff could not perform Plaintiffs past relevant work. (Tr. 68). However, the VE identified other jobs existing in the national economy that Plaintiff could perform, including laundry folder, finish inspector, and small product assembler. (Tr. 68-69). The VE noted that adding illiteracy to the hypothetical profile would reduce the potential job openings by approximately ten percent. (Tr. 69-70).
3. Plaintiffs Self-Reported Disability Reports and Functional Capacity Assessments
In one undated Disability Report, Plaintiff stated that he became disabled on April 1, 2007, because of a “Car accident back injury” that led to “... difficulty bending, lifting, [and] standing up for long periods of time.” (Tr. 249). Plaintiff indicated that he stopped working on his alleged disability onset date because he had difficulty bending, lifting, and standing for long periods of time. (Id.). Plaintiff also stated that he stopped working because he was laid off after the light duty work that his employer provided for three months was no longer available. (Id.).
On January 19, 2009, Plaintiff completed a Function Report. (Tr. 265). In this report, Plaintiff indicated that a typical day would begin with a shower and back exercises, followed by studying English, cleaning his room, and taking an early afternoon walk around his neighborhood. (Id.). Plaintiff stated that he could clean, shave, eat, and generally care for himself, albeit with some back pain. (Tr. 268). Plaintiff claimed that he could not work or play soccer and that everyday tasks would take longer because of his back pain. (Tr. 266). Plaintiff indicated that back pain would wake him up in the night. (Id.). Plaintiff claimed that he could not lift more than ten pounds, stand for more than 25 minutes, or walk for more than 30 minutes without experiencing pain. (Tr. 270). However, Plaintiff stated that he did walk, use public transportation, drive, shop, and prepare meals. (Tr. 268). Plaintiff indicated that he read, watched sports on television, and listened to music for enjoyment. (Tr. 269).
On January 19, 2009, Plaintiff completed a Pain Questionnaire. (Tr. 274). Plaintiff complained of a stabbing pain in his lower back whenever he bent, knelt down, or tried to pick items up off of the floor. (Tr. 274-75). Plaintiff claimed the pain would last for approximately 10 minutes and go away slowly. (Tr. 274). Plaintiff did indicate that Advil provided pain relief. (Tr. 275).
4. Workers’ Compensation Order
On May 23, 2008, Workers’ Compensation ALJ Gerald Roberson issued a Compensation Order finding that Plaintiff was entitled to benefits for a “temporary and total disability with a total wage loss” for the period of December 4, 2006, through January 8, 2007 for “differential incurred when [Plaintiff] returned to light duty and payment for loss of wages due to attending medical appointment.” (Tr. 220). ALJ Roberson relied on the opinions of insurance physician Dr. Gardiner and the physical therapists from Rehab At Work to find that Plaintiff was self-limiting, and “voluntarily limited his income by failing to accept employment within his physical abilities....” (Tr. 213-14, 220). ALJ Roberson added that Plaintiff testified at his April 10, 2008 workers’ compensation hearing that he could perform the duties of a light work assignment. (Tr. 215). Further, ALJ Roberson indicated that Plaintiff briefly returned to light duty work with his employer but was terminat*382ed due to insubordination. (Tr. 210).3
C. Summary of the Medical Evidence
The Court assumes the parties’ familiarity with the medical record, which is summarized below.
On January 30, 2007, Plaintiff started a four-week work hardening program with Rehab at Work after Dr. Mark Scheer, M.D. referred Plaintiff to the program. (Tr. 297, 319). The goal of the treatment was to enable Plaintiff to return to heavy exertional work. (Tr. 321).
Physical therapist Valerie Center performed an initial functional capacity evaluation on January 30, 2007, and found that Plaintiff made a “submax effort” for numerous tasks and was “self-limiting” due to his low back pain. (Tr. 319). Ms. Center opined that Plaintiff was able to meet the physical demands of a light exertional level for an eight hour workday. (Id.). Because of Plaintiffs self-limiting behavior, Ms. Center noted that Plaintiffs performance was not a valid representation of his true functional capacity. (Tr. 321). She further noted that Plaintiff perceived his abilities as less than sedentary, but was performing within a light physical demand level. (Tr. 320). Ms. Center indicated that Plaintiff had full lumbar flexion, did not show signs of leg trembling, and “demonstrated 10 out of 19 possible findings for Symptom Magnification, which is within the Moderate range and indicates a potential to improve.” (Tr. 321). Ms. Center reported that Plaintiff was managing his symptoms with Advil and rest. (Tr. 320).
After his first session with Rehab At Work, physical therapists Angie Teymou-rian and Carolina Diaz indicated that Plaintiff delivered “submax effort” in performing tasks. (Tr. 317). However, Ms. Teymourian and Ms. Diaz noted that Plaintiff had “potential to improve” in three of the four areas of symptom management and in all three areas of symptom magnification. (Id.). Further, they noted that Plaintiff “demonstrates qualities necessary for successful placement in gainful employment.” (Tr. 318).
Following the first full week of the program, Ms. Teymourian and Ms. Diaz reported that Plaintiff had gained the ability to lift an additional 10 pounds, carry an additional 10 pounds, and lift an additional six pounds over his head. (Tr. 315). The physical therapists noted no musculoskele-tal deficits, but opined that Plaintiff was still magnifying his symptoms by self-limiting tasks and utilizing poor body mechanics. (Id.).
At the conclusion of the second week of the program, Ms. Teymourian and Ms. Diaz noted that Plaintiff had gained an additional seven pounds in all lifting and carrying tasks except for overhead' lifting, where he gained five pounds. (Tr. 313). The physical therapists identified no mus-culoskeletal deficits or tenderness. (Id.). Ms. Teymourian and Ms. Diaz opined that Plaintiff “continues to self[-]limit activities at the onset of pain and thus he is not demonstrating his true máximums.” (Id.). They indicated that Plaintiff had the “potential to improve” in all areas of symptom management, symptom magnification, and worker traits. (Tr. 314).
At the end of the third week of the program, Ms. Teymourian and Ms. Diaz noted that Plaintiff had lifted a maximum of 35 pounds and frequently lifted up to 17.5 pounds. (Tr. 311). The physical therapists remarked that Plaintiffs lifting and carrying abilities now placed him at a medium exertional level. (Id.). The ther*383apists again stated that Plaintiff “[d]oes not appear to be giving maximum effort as he self[-]limits tasks due to “weakness.’ ” (Id.).
After the fourth and final week of the program, Ms. Teymourian and Ms. Diaz indicated that Plaintiff continued to lift 17.5 to 35 pounds, and demonstrated no notable deficits in strength or range of motion other than a slight functional strength deficit in the trunk and legs. (Tr. 309). The physical therapists made a note of Plaintiffs self-limiting behaviors. (Id.). Plaintiff was discharged from the program having advanced from the light to the medium physical demand level for at least three hours of workplace tolerance in addition to “working modified duty.” (Tr. 307).
On September 12, 2007, Plaintiff treated with Dr. Rafael Lopez Steuart, M.D. (“Dr. Lopez”),4 an orthopedic surgeon, complaining of lower back pain. (Tr. 349). Dr. Lopez noted reduced lumbar flexion of 50 degrees with tenderness and spasm, but no motor deficits. (Id).5 Dr. Lopez assessed Plaintiff with “[p]ersistent diskogenic/facet syndrome” and declared Plaintiff disabled. (Id.). He prescribed “etodolac,” “raniti-dine,” and “carisoprodol” for the pain and spasms. (Id.). Plaintiff again treated with Dr. Lopez on October 3, 2007, and the doctor noted that Plaintiff was tolerating medication well, but was considered disabled, with an improved lumbar flexion of 60 degrees. (Tr. 347).
On October 8, 2007, Dr. Lopez diagnosed Plaintiff with facet syndrome and administered facet joint injections that were well-tolerated' by Plaintiff. (Tr. 346). On October 18, 2007, Plaintiff informed Dr. Lopez that he experienced 20% improvement following the facet injections. (Tr. 345). Dr. Lopez recommended that Plaintiff adhere to the prescribed medication regimen and noted no motor deficits or tension signs, despite lumbar flexion of 45 degrees. (Id.).
In treatment notes dated November 15, 2007, Dr. Lopez noted Plaintiffs continued reports of pain as well as tenderness and spasm with lumbar flexion of 60 degrees. (Tr. 343). Dr. Lopez opined that Plaintiff was “not fit for duty.” (Id.). Dr. Lopez produced nearly identical treatment notes on December 12, 2007. (Tr. 342).
On January 10, 2008, Dr. Lopez noted “worsening symptomatology,” but that additional diagnostic studies were not approved. (Tr. 341). Dr. Lopez opined that Plaintiff was “not fit for duty.” (Id.). In treatment notes dated February 14, 2008, Dr. Lopez stated that Plaintiff was a “reasonable candidate for surgery.” (Tr. 340). The doctor noted tenderness and spasm but no motor deficits and recommended Plaintiff continue the prescribed pain medication regimen. (Id).
In one page of undated treatment notes, Dr. Lopez noted “persistent and worsening symptomatology.” (Tr. 339). Dr. Lopez *384assessed Plaintiff with a herniated disc at L5-5, and a small disc herniation at L5-Sl, which Dr. Lopez opined was caused by Plaintiffs work injury. (Id.). Dr. Lopez recommended surgery and further stated “[i]n my opinion within a reasonable degree of medical certainty, the patient’s condition is regressing and the surgery is indicated to reduce his pain and improve his flexion and function.” (Id.).
On November 6, 2008, Plaintiff returned to Dr. Lopez, complaining of “persistent moderate to severe lower back pain” and reporting “significant limitations in activities of daily living.” (Tr. 338). Dr. Lopez noted no significant neurologic deficits, but found that “straight leg raising test causes back pain and buttock pain bilaterally.” (Id.). Dr. Lopez stated that Plaintiff stood with a “slight list” and had difficulty “heel toe walking and squatting,” but that Plaintiff had lumbar flexion measured at 65 degrees. (Id.). Dr. Lopez assessed Plaintiff with a multilevel herniated lumbar disc as a result of a work injury, recommended the use of over the counter anti-inflammatory medications, and prescribed Pereocet for pain management. (Id.). Dr. Lopez admonished the insurance doctor for suggesting that Plaintiff was magnifying his symptoms and stated “this recommendation lacks empathy, compassion, and appropriate medical judgment.” (Id.).
On December 17, 2008, Dr. Lopez examined Plaintiff and noted that Plaintiff reported persistent back pain but was tolerating ibuprofen well. (Tr. 337). Surgery was recommended but denied by Plaintiffs workers’ compensation carrier. (Id.). Dr. Lopez noted no neurologic deficits, but found that movement produced pain for Plaintiff, who had lumbar flexion of 60 degrees. (Id.). Dr. Lopez further stated that “[c]urrent management with activity restriction, anti-inflammatory medication, the controlled administration of narcotics, intermittent injections and physical methods have been successful in controlling symptomatology and maintaining the current level of functioning.” (Id.).
On January 15, 2009, Dr. Lopez examined Plaintiff and assessed “[hjerniated lumbar disc secondary to work injury of March 31, 2004. Surgery has been recommended but not approved by his workers^] compensation carrier.” (Tr. 336). Dr. Lopez noted Plaintiffs pain, but found “no significant neurologic deficits.” (Id.). Plaintiffs lumbosacral flexion improved to 70 degrees, and extension improved to 20 degrees. (Id.). Dr. Lopez administered a trigger point injection and recommended use of over the counter pain medications during the day supplemented by Perco-cet® as needed for pain. (Id.). Dr. Lopez concluded that Plaintiff was disabled and unable to work, and noted that Plaintiffs activities of daily living were restricted. (Id.).
III. DISCUSSION
A. Standard of Review
This Court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c)(3). “In reviewing a decision of the Commissioner, the Court may ‘enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing.’” Emerson v. Comm’r of Soc. Sec., No. 12 Civ. 6451(PAC)(SN), 2014 WL 1265918, at *9 (S.D.N.Y. Mar. 27, 2014) (quoting 42 U.S.C. § 405(g)). Title 42 U.S.C. section 405(g) directs the Court to accept findings of fact made by the Commissioner, so long as the findings are supported by substantial evidence in the record. Substantial evidence is “more than a mere scintilla,” and “relevant evidence as a reasonable mind might accept as adequate *385to support a- conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). “Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have [his] disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987).
Therefore, the scope of the Court’s review is limited to determining whether the Commissioner applied the appropriate legal standards in evaluating the plaintiffs claim, and whether the Commissioner’s findings were supported by substantial evidence on the record. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (stating that a reviewing Court does not examine a benefits case de novo). If the Court finds no legal error, and that there is substantial evidence for the Commissioner’s determination, the decision must be upheld, even if there is also substantial evidence for the plaintiffs position. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996).
Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988).
“When, as here, the Court is presented with an unopposed motion, it may not find for the moving party without reviewing the record and determining whether there is sufficient basis for granting the motion.” Emerson, 2014 WL 1265918, at *9. See Wellington v. Astrue, No. 12 Civ. 03523(KBF), 2013 WL 1944472, at *2 (S.D.N.Y. May 9, 2013) (recognizing, in an action appealing the denial of disability benefits, a court’s obligation to review the record before granting .an unopposed motion for judgment on the pleadings). “Although ... failure to respond ‘may allow the district court to accept the movant’s factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law.’ ” McDowell v. Commissioner, No. 08-CV-1783 (NGG), 2010 WL 5026745, at *1 (E.D.N.Y.2010) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir.2004)). “Pro se litigants ‘are entitled to a liberal construction of their pleadings,’ and therefore their complaints ‘should be read to raise the strongest arguments that they suggest.’” Emerson, 2014 WL 1265918, at *9 (quoting Green v. United States, 260 F.3d 78, 83 (2d Cir.2001)); see also Alvarez v. Barnhart, No. 03 Civ. 08471(RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005) (describing liberal pro se standard in reviewing denial of disability benefits).
B. Determining Disability Under the Social Security Act
The Social Security Act provides that a claimant will be deemed to be disabled “if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see Rembert v. Colvin, No. 13-CV-638A, 2014 WL 950141, at *6 (W.D.N.Y. Mar. 11, 2014). A disabling impairment is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostics techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The burden is on the *386claimant to demonstrate that he is disabled within the meaning of the Act. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002). The individual will only be declared disabled if his impairment is of such severity that he is unable to do his previous work and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether; based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1620, 416.920.
C. Analysis of the ALJ’s Sequential Evaluation
Reading Plaintiffs complaint liberally, Plaintiff appears to contest the ALJ’s RFC determination and credibility analysis, stating: “[b]ack pain makes it very difficult to perform most work related tasks.” (Dkt. 1 at 1).
1.Step One: Substantial Gainful Activity
In applying the five-step sequential analysis at the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity for the relevant time period. (Tr. 13-14). The parties do not contest this determination and it is supported by substantial evidence. The ALJ noted that Plaintiff received an award of workers’ compensation benefits in May 2008 as a result of Plaintiffs back injury. (Tr. 14).
2. Step Two: Severe Impairments
At the second step, the ALJ determined that Plaintiffs diabetes and degenerative disc disease were severe impairments. (Tr. 14). These findings are uncontested and supported by substantial evidence.
3. Step Three: Listed Impairments
At the third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment — specifically Listings 1.04 and 9.08 — of 20 C.F.R. Pt. 404, Subpt. P, App’x 1. (Tr. 14). He reached this conclusion because, although the medical evidence established degenerative disc disease, it did *387not satisfy the criteria with regard to “evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation.” (Tr. 14); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04; See Corson v. Astrue, 601 F.Supp.2d 515, 526 (W.D.N.Y.2009) (stating the criteria to satisfy Listing § 1.04). Additionally, Plaintiffs medical records did not document the specific impairments required to satisfy the listing-level diabetes mellitus diagnosis. (Id.).6 These findings are uncontested and are supported by substantial evidence.
4. Step Four: The ALJ’s Determination of RFC
The ALJ determined that Plaintiff had the residual functional capacity:
to perform light work as defined in CFR 404.1567(b) except the claimant can frequently lift or carry 10 pounds, and lift or carry 20 pounds on an occasional basis. The claimant retains the ability to sit for six hours or stand and/or walk for four hours in an eight-hour day. The ability to push/pull with the upper and lower extremities is unlimited, other than as shown for lift and carry. The claimant can stoop, kneel, crouch, crawl, balance, and climb stairs or ramps on an occasional basis, but must never climb ladders, ropes, or scaffolds.
(Tr. 14). Accordingly, at the fourth step, the ALJ found that Plaintiff could not perform his past relevant work in the construction industry. (Tr. 21).
i. Substantial Evidence
The medical evidence consisted of treatment notes and opinions of Plaintiffs treating orthopedic surgeon and physical therapists from the Rehab At Work program relating to Plaintiffs workers’ compensation claim.
Treating physicians “may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.... ” 20 C.F.R. §§ 404.1527(c)(2), 416.927(C)(2). The “treating physician rule” requires the ALJ to give “controlling weight” to the opinion of a claimant’s treating physician “on the issue(s) of the nature and severity of [the claimant’s] impairments ... [if it] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).
An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various “factors” to determine how much weight to give to the opinion. 20 C.F.R. § 404.1527(d)(2). Among those factors are: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the consistency of the opinion with the record. as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration’s atten*388tion that tend to support or contradict the opinion.
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). An ALJ does not have to explicitly walk through these factors, so long as the Court can “conclude that the ALJ applied the substance of the treating physician rule ... and provide[d] ‘good reasons’ for the weight she [gave] to the treating source’s opinion.” Id. (quotation omitted).
In the instant case, the ALJ accorded “less weight” to Dr. Lopez, Plaintiffs treating orthopedic surgeon, and assigned “the most significant weight” to the opinions of the therapists that conducted Plaintiffs work hardening program. (Tr. 21). The ALJ explained that this shifting in the assignment of weight was due to the “better reasoning employed in rendering [the therapists’] well-documented assessments.” (Id.).
Specifically, the ALJ noted that, although Dr. Lopez was Plaintiffs treating physician and had “specialized training and professional qualifications as an orthopedic surgeon,” Dr. Lopez did not discuss Plaintiffs functional abilities in rendering his opinion that Plaintiff was “totally disabled” from September 2007 to January 2009. (Tr. 20; 336-49). The ultimate determination as to whether or not an individual is disabled is a determination left to the Commissioner. 20 C.F.R. § 404.1527(d)(1); Williams v. Comm’r of Soc. Sec., 423 F.Supp.2d 77, 83 (W.D.N.Y.2006) (“A treating source’s statement that a plaintiff ‘is disabled,’ however, is not considered a ‘medical opinion’ under the treating physician’s rule, and is not entitled to controlling weight because it represents an opinion on an issue reserved to the Commissioner.”).7 Absent a discussion of Plaintiffs functional abilities, the opinions of Dr. Lopez offered little information for the ALJ to consider in conducting his RFC assessment. Therefore, the ALJ provided good reasons for assigning Dr. Lopez’s opinion little weight.8
*389By contrast, the ALJ relied heavily on the clinical observations of Plaintiffs work hardening program therapists. A physical therapist is not an “acceptable medical source” as defined in the social security regulations. 20 C.F.R. § 404.1513. “Nonetheless, a physical therapist is an ‘other source’ whose opinion the ALJ may consider regarding the severity of a claimant’s impairment and how it affects the claimant’s ability to work.” Sixberry v. Colvin, No. 7:12-CV-1231(GTS), 2013 WL 5310209, at *8 (N.D.N.Y. Sept. 20, 2013); 20 C.F.R. § 404.1513(d)(1). Although physical therapists are not acceptable medical sources, the opinions of physical therapists may constitute substantial evidence where the opinions are well documented and supported by the medical evidence. See Social Security Ruling 06-03p, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006).
An opinion from a “non-medical source” who has seen the claimant in his or her professional capacity may, under certain circumstances, properly be determined to outweigh the opinion from a medical source, including a treating source. For example, this could occur if the “non-medical source” has seen the individual more often and has greater knowledge of the individual’s functioning over time and if the “non-medical source’s” opinion has better supporting evidence and is more consistent with the evidence as a whole.
Id. “In considering the opinion of a physical therapist, the ALJ can utilize the same factors used to assess medically acceptable opinions....” Bulger v. Astrue, No. 6:07-CV-542, 2009 WL 1924767, at *11 (N.D.N.Y. July 1, 2009). “[T]he adjudicator generally should explain the weight given to opinions from ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.” Id. (quoting SSR 06-03p, 2006 WL 2329939, at *6). “[T]he ALJ has the discretion to determine the appropriate weight to accord the [other source’s] opinion based on all the evidence before him.... ” Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir.1995).
Here, in considering the opinions of the Rehab At Work physical therapists, the ALJ carefully described the supporting observations recorded by the physical therapists. (Tr. 18). The ALJ discussed Ms. Center’s opinion that Plaintiff was self-limiting as well as her conclusion that there were “negligible objective findings” to support Plaintiffs reported pain levels. (Id.). The ALJ noted that the physical therapists opined that Plaintiff was not demonstrating his true maximum ability, and that Plaintiff was able to perform full light duty work with three hours of medium level work by the end of his work hardening program. (Id.). As the ALJ notes, these opinions and observations were supported by objective findings, including Plaintiffs 11 to 20 pound increase in his lifting and carrying ability. (Id.). The opinions of the physical therapists at Rehab At Work extensively outlined the medical support for their opinions as to Plaintiffs functional limitations. Based on the opinions of the physical therapists, the ALJ determined that “[Plaintiffs] demonstrated functional abilities ... weigh heavily against a finding that the [Plaintiffs] musculoskeletal impairment is of the severity alleged.” (Tr. 20). Because the opinions were well-documented and well-*390reasoned, these opinions provided substantial evidence to support the ALJ’s conclusion that Plaintiff was capable of performing a reduced range of light work, and the ALJ did not err in relying on the opinions. Cf. Colon v. Astrue, No. 09-CV-6527, 2010 WL 2925969, at *3 (W.D.N.Y. July 23, 2010) (finding ALJ’s reliance on physical therapist’s function report over opinion of treating physician reversible error where ALJ did not clearly explain reasons for failing to give treating physician controlling weight).
ii. Credibility Assessment
The Social Security regulations require a two-step process for the ALJ to consider the extent to which subjective evidence of symptoms can reasonably be accepted as consistent with the medical and other objective evidence. Brownell v. Comm’r of Soc. Sec., No. 1:05-CV-0588 (NPM/VEB), 2009 WL 5214948, at *3 (N.D.N.Y. Dec. 28, 2009). First, the ALJ considers whether the medical evidence shows any impairment “which could reasonably be expected to produce the pain or other symptoms alleged....” 20 C.F.R. § 404.1529(a). Second, if an impairment is shown, the ALJ must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R. § 404.1529(b). When the objective medical evidence alone does not substantiate the claimant’s alleged symptoms, the ALJ must assess the credibility of the claimant’s statements considering the details of the case record as a whole. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
Here, in considering Plaintiff’s credibility, the ALJ properly applied the two step analysis. First, the ALJ determined that, “[a]fter careful consideration of the evidence ... the elaimant[’]s medically determinable impairment could reasonably be expected to cause the alleged symptoms_” (Tr. 16). However, the ALJ determined at the second step that the objective medical evidence did not substantiate Plaintiffs alleged symptoms. (Id.). Further, the ALJ found that Plaintiffs statements were not fully credible because the medical record did not show that Plaintiffs condition was as serious as Plaintiff alleged. (Id.).
Plaintiff has consistently claimed that significant lower back pain renders him disabled. The medical record as a whole demonstrates that Plaintiff does have degenerative changes in his spine. The ALJ’s findings acknowledge that Plaintiffs degenerative disc disease is severe. However, the record also supports the ALJ’s findings that Plaintiffs lower back pain is not as debilitating as Plaintiff claims. As a result, the ALJ’s credibility finding was supported by substantial evidence in the record.
“ ‘It is the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant.’ ” Aponte v. Sec’y, Dep’t Health and Human Servs., 728 F.2d 588, 591 (2d Cir.1984) (quoting Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983)). “The ALJ ‘has discretion to evaluate the credibility of a claimant and to arrive at an independent judgment ... [which he must do] in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant.’ ” King v. Astrue, No. 12-CV-6186T, 2013 WL 3154129, at *8 (W.D.N.Y. June 21, 2013) (quoting Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984)) (alteration in original). “If ‘after weighing the objective medical evidence in the record, the claimant’s demeanor, and other indicia of credibility, the ALJ decides to discredit plaintiffs claim of severe and dis*391abling pain, that decision is supported by substantial evidence.’ ” Drennen v. Astrue, No. 10-CV-6007MAT, 2012 WL 42496, at *6 (W.D.N.Y. Jan. 9, 2012) (quoting Pascariello v. Heckler, 621 F.Supp. 1032, 1036 (S.D.N.Y.1985)).
Here, in considering Plaintiffs credibility, the ALJ fully summarized the entirety of Plaintiffs hearing testimony. (Tr. 15-16). Notably, although Plaintiff claimed that he could not lift more than 10 pounds, and could not stand for more than 25 minutes or walk for more than 30 minutes at a time, Plaintiff stated that he exercises daily, cleans his room, and walks around his neighborhood. (Tr. 17). Plaintiff testified that he prepares his own meals, does his own laundry, goes grocery shopping alone, and drives a car. (Id.). Plaintiffs own statements of self-sufficiency undermine his allegations that he is totally disabled. Rather, this testimony supports a finding that Plaintiff is capable of performing some light work.
Plaintiff also testified that he received pain relief from over-the-counter medications like Advil and Tylenol. (Tr. 61-62, 221, 337, 375). See 20 C.F.R. § 404.1529(e)(3)(iv). Further, Plaintiff stated that he experienced improved back pain by 20% after Dr. Lopez administered facet joint injections and trigger point injections to Plaintiffs spine on October 8, 2007, and January 15, 2009, respectively. (Tr. 336, 346). See 20 C.F.R. § 404.1529(c)(3)(v).
Treatment notes from Plaintiffs physical therapists showed that Plaintiff was capable of light work before he even began physical therapy sessions. (Tr. 319). During Plaintiffs physical therapy sessions, he was noted to report his limitations to be limited to a sedentary level, despite the fact that he was actually performing at a light exertional level. (Tr. 320). By the end of Plaintiffs work hardening program, he was lifting 17.5 to 35 pounds, which placed him at a medium exertional level. (Tr. 311).
As the ALJ noted, even treatment notes from Dr. Lopez, who opined that Plaintiff was totally disabled, reported that Plaintiff was experiencing an improvement in his pain and had received pain relief from over the counter medications and spinal injections. (See Tr. 335-37).
Plaintiffs own testimony, in combination with the medical evidence, undermines Plaintiffs credibility as to the severity of symptoms alleged. Therefore, the ALJ did not err in finding Plaintiffs testimony to be less credible. “Because the ALJ’s credibility analysis and factual findings are based on application of the proper legal principles, the Court may not examine the evidence and substitute its own judgment for that of the Commissioner.” Williams, 423 F.Supp.2d at 84.
5. Step Five: Jobs in the National Economy for Plaintiff to Perform
At the fifth step, the ALJ found that Plaintiffs ability to perform all or substantially all of the requirements of a light level of work was impeded by additional limitations. (Tr. 21). Therefore, the ALJ posed hypothetical questions to the VE concerning an individual with Plaintiffs age, education, work experience, and RFC to determine if there were jobs in the national economy in significant numbers that Plaintiff could perform. (Tr. 21-22). The ALJ relied on the VE’s testimony to conclude that Plaintiff could perform jobs existing in the national economy, including laundry folder, finish inspector, and small product assembler. (Id.). The ALJ noted that the VE testified that there may be a 10% reduction, but no significant change, in the light occupational job base if *392the individual had a “marginal education and was functionally literate in the English language.” (Tr. 22). In light of these findings, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (Id.).
Because the ALJ’s RFC was supported by substantial evidence, and because the ALJ did not commit legal error in evaluating Plaintiffs claim, the Court finds that the ALJ properly relied on the VE testimony to find that there are significant jobs in the national economy that Plaintiff can perform, and that Plaintiff is therefore not disabled within the meaning of the Act. See Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.1983) (finding the ALJ properly relied on the VE’s responses to a hypothetical that was based on the ALJ’s substantially supported RFC assessment).
IV. CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is. granted. Plaintiffs complaint is dismissed with prejudice.
SO ORDERED.
. Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. As such, the Court hereby amends the caption of the case sua sponte to reflect that Ms. Colvin is the Defendant.
. This hearing was the third scheduled hearing. At the October 19, 2010 hearing, Plaintiff requested the opportunity to seek assistance of counsel, and the hearing was adjourned. (Tr. 38). Plaintiff did not appear for the second hearing scheduled for January 12, 2011. (Tr. 41-46).
. The Court notes that this indication contradicts Plaintiff's statement that he was terminated because there was insufficient light duty work. (Tr. 249).
. Dr. Rafael Lopez Steuart at times signs his treatment notes as "Rafael Lopez Steuart, M.D.” (see, e.g., Tr. 336-37, 343-49), and at other times signs his name as "Rafael A. Lopez, M.D., F.A.C.S.” (see, e.g., Tr. 338-42). The ALJ did not notice that "Dr. Stuart [sic]” and “Dr. Lopez” are the same person. (Tr. 20). As discussed infra, this error is harmless.
. Normal range of motion for lumbar flexion is approximately 80-90 degrees, and the normal range of motion, for lumbar extension is approximately 20-25 degrees. See Son Oh v. Murray, No. 07-CV-5145(CPS), 2009 WL 605796, at *6 n. 7 (E.D.N.Y. Mar. 9, 2009) (quoting normal ranges cited by Plaintiff's physician as 80 and 25 degrees, respectively); Walker v. Astrue, No. 06-cv-05978 (NGG), 2009 WL 2252737, at *5 (E.D.N.Y. July 28, 2009) (indicating that normal range is 90 and 20 degrees, respectively).
. "Listing section 9.08 requires a diagnosis of diabetes mellitus with A) neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station; B) acidosis occurring at least on the average of once every 2 months documented by appropriate blood chemical tests; or C) retinitis proliferans.” (Tr. 14); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 9.08; see Farnham v. Astrue, 832 F.Supp.2d 243, 262 (W.D.N.Y.2011) (stating the criteria required to satisfy Listing § 9.08).
. The Court notes that Dr. Lopez provided his opinions while contemplating Plaintiffs workers’ compensation claim. The standard for total or partial disability in a workers’ compensation claim differs from the standard of disability set forth by the Social Security Act. See Kara v. Apfel, 11 F.Supp.2d 375, 380 (S.D.N.Y.1998) (noting a doctor’s finding that plaintiff was totally disabled for workers' compensation claim was not binding on the Commissioner because of the differences in the definitions of disability); Verginio v. Apfel, No. 97-CV-456, 1998 WL 743706, at *7-8 (N.D.N.Y. Oct. 23, 1998) (finding plaintiff not precluded from performing work, despite doctor's opinions that he was partially disabled for purposes of workers’ compensation claim). As a result, Dr. Lopez’s findings of "total disability” may well have been in reference to -Plaintiff’s inability to return to his past work as a construction laborer. The ALJ did not contest this finding, but determined that there was other light work that Plaintiff could perform. (Tr. 20). Dr. Lopez did not provide an opinion or function report for the purposes of Plaintiff’s social security claim.
. The ALJ also discussed the opinion of "Dr. Stuart." (Tr. 20). The Court notes that the full name of Dr. Lopez is Dr. Rafael Lopez Steuart. (Tr. 330). Therefore, it appears that the ALJ was discrediting another opinion of Dr. Lopez. Although the ALJ had the incorrect name of the doctor, this is a harmless error. The ALJ’s analysis of "Dr. Stuart’s” opinion discredits the opinion, and therefore further supports the ALJ’s assignment of less weight to Dr. Lopez's opinion. The ALJ noted that "Dr. Stuart’s” opinion claimed that Plaintiff's condition was worsening despite objective clinical findings in the doctor's own treatment notes that Plaintiff's physical function had improved. (Tr. 20). “Dr. Stuart” opined that Plaintiff was not fit for work despite objective medical evidence that Plaintiff's range of motion had improved, and despite Plaintiff’s own statements to the doctor that he had a 20% improvement in pain. (Id.). In light of the evidence and Plaintiff’s own statements, the ALJ provided good reasons for discrediting this opinion. Because the ALJ also discredited the "Dr. Stuart” opinion, the ALJ’s error in misidentifying Dr. *389Lopez is harmless, as the ALJ’s decision would not change with the correct identification. See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) ("Where application of the correct legal principles to the record could lead only to the same conclusion, there is no need to require agency consideration.”) (internal quotation omitted). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217653/ | MEMORANDUM**
Raul Alberto Lopez-Ramirez appeals his conviction by guilty plea and the sentence imposed for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960.
Lopez-Ramirez’s contention that 21 U.S.C. § 960 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that United States v. Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002) and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002), is foreclosed by United States v. Hernandez, 322 F.3d 592 (9th Cir.2003).
Lopez-Ramirez’s contention that a mens rea requirement apphes to the elements of drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) and Hernandez, 322 F.3d at 602.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217654/ | MEMORANDUM **
Manuel Adolfo Fimbres-Gonzalez appeals his conviction by guilty plea and the sentence imposed for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960.
Fimbres-Gonzalez’s contention that 21 U.S.C. § 960 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that Harris v. U.S., 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002) and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002), is foreclosed by United States v. Hernandez, 322 F.3d 592 (9th Cir.2003).
Fimbres-Gonzalez’s contention that a mens rea requirement applies to the elements of drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) and Hernandez, 322 F.3d at 602.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217656/ | MEMORANDUM **
California state prisoner Eddie Young appeals pro se the district court’s judgment dismissing Young’s 42 U.S.C. § 1983 action alleging that a federal magistrate judge refused to consider new evidence, to hold an evidentiary hearing, and to return evidence to Young in a prior habeas action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a suit based on judicial immunity, Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir.1996), and we affirm.
The district court properly dismissed Young’s action because the acts of which he complained were wholly judicial in na*372ture and were within the magistrate judge’s jurisdiction. See id. at 1244.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217657/ | MEMORANDUM **
Francisco Aguilar, a California state prisoner, appeals pro se the judgment of the district court dismissing his action with prejudice pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2), 1915A(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, we review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
Because Aguilar’s first amended complaint failed to cure the deficiencies outlined in the magistrate judge’s order dismissing the original complaint with leave to amend, the district court properly dismissed the first amended complaint with prejudice. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.2000) (en banc) (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir.1998) (order holding that complaint must sufficiently allege defendant’s personal involvement in constitutional violation).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217976/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. RApp. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217977/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224386/ | DECISION AND ORDER
. ELIZABETH A. WOLFORD, District Judge.
I. INTRODUCTION
Represented by counsel, Plaintiff Dar-quin L. Phelps (“Plaintiff’) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (“the Commissioner”),1 denying Plaintiffs application for Supplemental Security Income (“SSI”) benefits. (Dkt. 1). Presently before the Court are the parties’ competing motions for judgment on the *396pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 7 & 9). Because this Court finds that the decision of the Commissioner is supported by substantial evidence and is in accordance with applicable law, the Commissioner’s motion for judgment on the pleadings is granted, and Plaintiffs motion is denied.
II. BACKGROUND AND PROCEDURAL HISTORY
A. Overview
On June 17, 2009, an application for SSI was protectively filed on behalf of Plaintiff, who was then a child under the age of 18. (Administrative Transcript (hereinafter “Tr.”) at 152-54). In his application, Plaintiff alleged disability due to hearing loss in his left ear, with a disability onset date of August 1, 2003. (Tr. 152,189). On December 1, 2009, the Commissioner denied Plaintiffs application. (Tr. 80). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). On May 10, 2011, Plaintiff, represented by counsel, and his mother, Cassandra Lenore Matthews (“Ms. Matthews”), appeared and testified at a video hearing before ALJ Jennifer Whang. (Tr. 53-79). Vocational Expert (“VE”) Arthur M. Brown also appeared and testified. (Id.).
On May 23, 2011, ALJ Whang issued a decision finding that Plaintiff was not disabled. (Tr. 85-99). On October 3, 2012, the Appeals Council denied Plaintiffs request for review, making the ALJ’s decision the final decision of the Commissioner. (Tr. 7-9). Plaintiff commenced this civil action appealing the final decision of the Commissioner on January 15, 2013. (Dkt. 1).
B. The Non-Medical Evidence
1. Testimony of Plaintiff
At the May 10, 2011 hearing, Plaintiff testified that he was 18 years old and he was in eleventh grade regular education classes, but he did receive after-school help. (Tr. 72). Plaintiff stated that he had trouble hearing with his left ear, but his hearing was good in his right ear. (Id.). Plaintiff testified that he enjoyed listening to music and had friends in the neighborhood. (Tr. 74). However, Plaintiff said he did not have friends in school because they had graduated. (Tr. 73). He had a driver’s license and planned to go to trade school after graduation. (Tr. 74). According to Plaintiff, he had worked as a landscaper and cleaner the summer before the hearing, and also held a volunteer position supervising children at the local recreation center. (Tr. 72-73). Plaintiff testified that he left those positions when the school year started again. (Tr. 73).
2. Testimony of Ms. Matthews
Plaintiff’s mother, Ms. Matthews, testified that Plaintiff lived with her and two of his siblings. (Tr. 60-61). According to Ms. Matthews, Plaintiffs multiple ear infections as a child caused hearing difficulties that caused Plaintiff to use a FM system for hearing amplification beginning when he was an elementary student and continuing until he was in ninth grade. (Tr. 62-64). Ms. Matthews said the school stopped providing the systems after Plaintiff destroyed three or four of them. (Tr. 67).
Ms. Matthews testified that Plaintiff has “a lot of behavioral issues” and was “constantly suspended.” (Tr. 64). Ms. Matthews also testified that Plaintiff experienced anxiety and fits of “destructiveness” at home and at school. (Id.). Ms. Matthews stated that Plaintiff has received counseling for anger management. (Tr. *39765). She acknowledged that Plaintiff performed volunteer work over the summer that went well, but said that Plaintiff sometimes had trouble finishing tasks that he had started. (Id.). She also testified that Attention Deficit Hyperactivity Disorder (“ADHD”) ran in Plaintiff’s family, and that Plaintiff had previously attended counseling and anger management classes, but stopped attending because Plaintiffs father was not consistently taking him to appointments. (Tr. 66-68).
3. Testimony of the Vocational Expert
VE Brown testified that a hypothetical individual with Plaintiffs age, education, and experience who has no exertional limitations should avoid concentrated exposure to noise and would be limited to jobs that do not require fine hearing capacity. (Tr. 77). The VE further noted that a person with these limitations would be able to perform jobs that exist in the national economy, including industrial cleaner, production laborer, and sorter. (Tr. 77-78). According to VE Brown, these positions require light to medium levels of exertion. (Tr. 78).
C. Summary of the Medical Evidence
The Court assumes the parties’ familiarity with the medical record, which is summarized below.
On October 6, 1997, licensed audiologist Patricia'Wissman tested Plaintiffs hearing capabilities. (Tr. 242). Testing indicated “moderately severe’ hearing loss in the high frequencies” in Plaintiffs left ear. (Id.). Ms. Wissman recommended “preferential classroom seating in close proximity to the teacher/speaker and in clear view of all available visual cues.” (Id.).
Licensed audiologist Robin Parsons evaluated Plaintiff on March 24, 2004. Testing indicated poor word recognition in the left ear at “slightly elevated speaking levels.” (Tr. 244). Ms. Parsons found “[w]ith hearing loss of this degree and nature [Plaintiff] can be expected to have difficulty hearing in some listening situations, especially in the presence of competing background noise.” (Id.). Additionally, she found Plaintiff will “have difficulty localizing the sound source.” (Id.).
One June 14, 2006, treatment note from Westside Health Services indicated that Plaintiff may have Attention Deficit Disorder (“ADD”), and set a plan to refer Plaintiff to a psychologist to discuss a Ritalin prescription. (Tr. 256).
A May 17, 2007, treatment note from Westside Health Services showed that Plaintiff was assessed as a healthy 14-year old. (Tr. 258). Evaluations showed normal hearing in the right ear and mild hearing loss in the left ear. (Tr. 257).
On July 29, 2009, Ms. Wissman noted Plaintiffs academic reports were “generally unfavorable in terms of grades and behavior,” and that Plaintiffs father stated Plaintiff would be getting a medical evaluation for his “fidgety behavior.” (Tr. 234). Testing showed “moderately severe hearing loss levels across high frequencies of the left ear.” (Id.). Plaintiffs “ability to hear single-syllable words clearly at a comfortable listening level” was found to be “poor to good.” '(Id.). . Ms. Wissman opined that Plaintiff “can be expected to have difficulty hearing in certain listening situations.” (Id.). She recommended that Plaintiff have preferential classroom seát-ing and that his teachers provide visual cues such as gestures and the use of pictures. (Tr. 235).
Speech and language pathologist Miriah Brunetto examined Plaintiff on October 14, 2009. (Tr. 217). Testing revealed “moderate to severe receptive and expressive language delay.” (Tr. 218). Plaintiff showed delays in several areas of language skills. (Tr. 217). Ms. Brunetto said that *398these impairments “may adversely affect [Plaintiffs] academic performance, social functioning, life experiences, communication at an age appropriate level, production of speech at an acceptable rate, and ability to follow directions and instructions.” (Tr. 218). However, Ms. Brunetto opined the prognosis was good with appropriate intervention. (Id.). Ms. Brunetto described Plaintiff as cooperative and friendly, and noted that he provided thoughtful responses during formal testing. (Tr. 217). Ms. Brunetto also indicated that Plaintiffs attention and concentration were appropriate to the tasks. (Id.).
On November 24, 2009, J. Weir, a consultative speech and language pathologist, found that Plaintiff had a marked impairment in acquiring and using information; no limitation in attending and completing tasks; a less than marked limitation in interacting and relating with others; no limitation in moving about and manipulating objects; no limitation in caring for himself; and a less than marked limitation in health and physical well-being. (Tr. 229-31).
On December 1, 2009, R. Gauthier, a medical internist consultant, found that Plaintiff had a marked limitation in acquiring and using information and a less than marked limitation in interacting and relating with others and/or health and physical well-being. (Tr. 228-31).
On October 4, 2010, licensed audiologist Sheryl Reid evaluated Plaintiffs hearing loss. (Tr. 195). Testing showed a “relatively unchanged mild to moderately severe loss in the left ear.” (Id.). Word recognition was “fair in [Plaintiffs] better right ear and poor in the left ear.” (Id.). Ms. Reid stated that “[w]ith hearing loss of this degree and nature, [Plaintiff] can ‘hear’ but will have difficulty understanding in certain situations, such as hearing faint or distant speech” and will have difficulty localizing sounds and voices. (Id.). Ms. Reid recommended that Plaintiff secure seating close to the teacher and use hearing protection whenever noise exposure might occur. (Id.).
D. Determining Disability Under the Social Security Act and the ALJ’s Decision
1. Standard for Child SSI Benefits
“Under the Social Security Act, an individual under the age of 18 is entitled to SSI benefits when he or she has a medically determinable physical or mental impairment which results in marked and severe functional limitations and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Hart v. Colvin, No. 12-CV-1043-JTC, 2014 WL 916747, at *3 (W.D.N.Y. Mar. 10, 2014) (citing 42 U.S.C. § 1382c(a)(3)(C)(i)). In considering a child’s application for Social Security Disability benefits, the Commissioner uses a three-step evaluation process to determine whether a child is disabled. 20 C.F.R. §§ 416.924(a)-(d). First, the ALJ determines whether the child is engaged in any substantial gainful activity. 20 C.F.R. § 416.924(b). Second, if the child is not engaged in any substantial gainful activity, the ALJ determines whether the child has a medically severe impairment or combination of impairments that cause “more than a minimal functional limitation.” 20 C.F.R. § 416.924(c). Third, the ALJ determines whether the child’s severe impairments) meets, medically equals, or functionally equals the criteria of any listed impairment in 20 C.F.R. Part 404, Sub-part P, Appendix 1 (“Listing of Impairments”). If the child’s impairment(s) medically meets or equals a listed impairment, the child will be found disabled. 20 C.F.R. § 416.926(d)(1).
*399If a child’s impairment(s) does not meet or equal a listed impairment, the ALJ will assess all functional limitations caused by the child’s impairment(s). 20 C.F.R. § 416.926a(a). The ALJ considers how a child/functions in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for self; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(l). A child is classified as disabled if the child’s impairment(s) result in “marked” limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R. §§ 416.926a(a), (d). “A ‘marked’ limitation exists when the impairment ‘interferes seriously with [the child’s] ability to independently initiate, sustain, or complete activities.’ ” Hart, 2014 WL 916747, at *3 (citing 20 C.F.R. § 416.926a(e)(2)(i)) (alteration in original). “An ‘extreme’ limitation is an impairment which ‘interferes very seriously with [the child’s] ability to independently initiate, sustain, or complete activities.” Id. (citing 20 C.F.R. § 416.926a(e)(3)(i)) (alteration in original).
In the instant- case, in applying the three-step evaluation process, the ALJ made the following determinations. At the first step, the ALJ determined that Plaintiff was a minor at the time the application was filed and that he had not engaged in substantial gainful activity since the application date. (Tr. 89-90). At the second step, the ALJ found that Plaintiff suffered from the severe impairments of hearing loss in the left ear and speech and language delay. (Tr. 90). At the third step, the ALJ determined that these impairments did not meet or functionally equal the listings of impairments. (Id.).
The ALJ then assessed the functional limitations caused by Plaintiffs impairments and determined that, before turning 18, Phelps had a marked limitation in the domain of acquiring and using information; no limitation in attending and completing tasks; a less than marked limitation in interacting and relating with others; no limitation in moving about and manipulating objects; ■ no limitation in the ability to care for himself; and a less than marked limitation in health and physical well-being. (Tr. 90-96). As a result of these findings, the ALJ determined that Plaintiff was not disabled.
2. Standard for Adult SSI Benefits
The Social Security Act provides that a claimant applying for SSI will be deemed to be disabled “if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see Rembert v. Colvin, No. 13-CV-638A, 2014 WL 950141, at *6 (W.D.N.Y. Mar. 11, 2014). A disabling impairment is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostics techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). The burden is on the claimant to demonstrate that he is disabled within the meaning of the Act. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002). The individual will only be declared disabled if his impairment is of such severity that he is unable to do his previous work and cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, the ALJ follows a five-step sequential analysis. If the ALJ makes a determination at any step, the evaluation will not *400continue to the next step. 20 C.F.R. § 416.920(a)(4). The following five steps are followed:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has. the burden on the first four steps.
Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000); see 20 C.F.R. §§ 404.1520, 416.920.
In applying the five-step sequential analysis, the ALJ made the following determinations. At the first step, the ALJ found that Plaintiff was not currently engaged in substantial gainful activity. (Tr. 89). At the second step, the ALJ found that Plaintiff had not developed any new severe impairment. (Tr. 99). At the third step, the ALJ reiterated that Plaintiff did not have a listed impairment that would render him disabled. (Tr. 97). At the fourth step, the ALJ determined that, since turning 18, Plaintiff had the residual functional capacity (“RFC”) to perform “a full range of work at all exertional levels but with the following nonexertional limitations: claimant must avoid all concentrated exposure to extreme noise; and he is limited to jobs that do not require fine hearing capability.” (Tr. 97). Because Plaintiff had no past relevant work, the ALJ moved on to step five. (Tr. 98). At the fifth step, considering Plaintiffs RFC, age, education, and work experience, as well as the testimony of the VE, the ALJ further found that, as an adult, “the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Tr. 99). The ALJ adopted the VE’s opinion testimony that Plaintiff was able to perform jobs that exist-in the national economy, including industrial cleaner, production laborer, and sorter. (Id.). Based on these findings, the ALJ concluded that Plaintiff was not disabled. (Id.).
III. DISCUSSION
A. Standard of Review
This Court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c)(3). “In reviewing a decision of the Commissioner, the Court may ‘enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing.’ ” Emerson v. Comm’r of Soc. Sec., No. 12 Civ. 6451(PAC)(SN), 2014 WL 1265918, at *9 (S.D.N.Y. Mar. 27, 2014) (quoting 42 U.S.C. § 405(g)). Title 42 *401U.S.C. section 405(g) directs the Court to accept findings of fact made by the Commissioner, so long as the findings are supported by substantial evidence in the record. Substantial evidence is “more than a mere scintilla,” and “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). “Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987).
Therefore, the scope of the Court’s review is limited to determining whether the Commissioner applied the appropriate legal standards in evaluating Plaintiffs claim, and whether the Commissioner’s findings were supported by substantial evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (stating that a reviewing Court does not examine a benefits case de novo). If the Court finds no legal error, and that there is substantial evidence for the Commissioner’s determination, the decision must be upheld, even if there is also substantial evidence for the plaintiffs position. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996).
Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crofters, Inc., 842 F.2d 639, 642 (2d Cir.1988).
B. The ALJ fully developed the record.
“Although the claimant has the general burden of proving that he or she has a disability within the meaning of the Act, because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Ubiles v. Astrue, No. 11-CV-6340T(MAT), 2012 WL 2572772, at *7 (W.D.N.Y. July 2, 2012) (internal quotations omitted). This duty to develop the record exists even when the claimant is represented by counsel. Perez, 77 F.3d at 47. Where there is reason to believe that additional information is necessary to reach a decision, the ALJ is required to develop a complete medical history of the claimant for at least a twelve month period prior to the application date. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999).
Plaintiff contends the ALJ failed to develop the record because she did not, order a psychiatric consultative examination in light of Ms. Matthew’s testimony that Plaintiff may have ADD or ADHD, (Tr. 66-68), as well as a treatment note dated June 14, 2006, which indicated that Plaintiff may have ADD and set a plan to refer Plaintiff to a psychologist to discuss a Ritalin prescription (Tr. 256). (Dkt. 8 at 8).
The ALJ has discretion on a case-by-case basis to determine whether a consultative examination is needed, and is only required to order such an examination where the examination is necessary to resolve a conflict or ambiguity in the record. 20 C.F.R. § 404.1519a(b)(4); see Simon v. Colvin, No. 6:12-CV-6381 MAT, 2013 WL 4094612, at *6-7 (W.D.N.Y. Aug. 13, 2013) (finding no psychiatric consultative evaluation needed where substantial evidence in the record to support ALJ’s conclusion); Battaglia v. Astrue, No. 11 Civ. 02045, *4022012 WL 1940851, at *10 (E.D.N.Y. May 29, 2012) (determining no psychiatric consultative examination necessary where claimant voluntarily discontinued psychiatric treatment and subsequent treatment notes indicated claimant appeared well). “An ALJ is not obligated to order a consultative examination if the facts do not warrant or suggest the need for such an examination.” Brown v. Astrue, No. 11-CV-6329T, 2012 WL 2953213, at *7 (W.D.N.Y. July 19, 2012). On the other hand, it is a reversible error for the ALJ to fail to obtain a consultative examination if such an evaluation is necessary for the ALJ to make an informed decision. Falcon v. Apfel, 88 F.Supp.2d 87, 90-91 (W.D.N.Y.2000).
In this case, a consultative examination was not necessary for the ALJ to reach a decision. Plaintiffs alleged treatment for ADD was only cited once in a treatment note dated June 14, 2006. (Tr. 256). The note recommends that Plaintiff follow up with a psychologist, but there is no evidence in the record to suggest that Plaintiff received any treatment for ADD during 'the remaining relevant application period. Although there are references to Plaintiffs disruptive behavior (see Tr. 64-65; 91; 94; 215; 256), there are no records after a single note in 2006 to indicate that Plaintiff was diagnosed with ADD or receiving treatment for the condition. Plaintiff contends that Ms. Matthews’ comments that Plaintiff may have ADHD within the relevant time period created an ambiguity sufficient to require a psychiatric consultative examination. However, “[a] parent’s testimony alone is not enough to establish a physical or mental impairment.” Agee ex rel. M.P.W. v. Astrue, No. 12-cv-0657, 2013 WL 6384595, *11 (W.D.N.Y. Dec. 6, 2013) (citing 20 C.F.R. § 416.928(a)).
In fact, there is substantial evidence in the record to demonstrate that Plaintiff was functioning well. During medical examinations, Plaintiff had a positive affect and provided thoughtful responses to conversation. (Tr. 215-19). Ms. Brunetto opined that Plaintiff had a good prognosis, despite a moderate to severe expressive language delay.' (Tr. 91, 215-19). Plaintiff was in regular education classes. (Tr. 215). Plaintiff testified that he enjoyed listening to music, was able to drive, and enjoyed spending time with friends in the neighborhood. (Tr. 73-74). Plaintiff was able to perform two summer jobs and do volunteer work. (Tr. 63, 73). Further, treatment notes in the record from May 17, 2007, and July 15, 2008, assessed Plaintiff as healthy with “normal growth and development.” (Tr. 258, 260). Additionally, the Court notes that Plaintiff did not allege ADD or ADHD as a source of disability in his application for SSI, nor did Plaintiff testify to these conditions at the hearing. {See Tr. 72-74,188,168).
Absent any additional medical evidence to demonstrate that Plaintiff was undergoing treatment for an attention deficit condition, and in light of the medical evidence supporting the ALJ’s determination, the Court concludes that the ALJ fully developed the record and was not required to order a consultative psychiatric examination.
C. The ALJ conducted a credibility analysis as to Plaintiffs and Ms. Matthews’ testimonies that was supported by substantial evidence.
Plaintiff contends the ALJ erred by failing to make proper credibility findings as to both Plaintiffs testimony and Ms. Matthews’ testimony. (Dkt. 8 at 9).
1. The ALJ’s credibility analysis as to Plaintiffs testimony is supported by substantial evidence.
The Social Security regulations require a two-step process for the ALJ to consider *403the extent to which subjective evidence of symptoms can reasonably be accepted as consistent with the medical and other objective evidence. Brownell v. Astrue, No. 05-CV-0588 (NPM/VEB), 2009 WL 5214948, at *3 (N.D.N.Y. Dec. 28, 2009). First, the ALJ considers whether the medical evidence shows any impairment “which could reasonably be expected to produce the pain or other symptoms alleged....” 20 C.F.R. § 404.1529(a). Second, if an impairment is shown, the ALJ must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R. § 404.1529(b). When the objective medical evidence alone does not substantiate the claimant’s alleged symptoms, the ALJ must assess the credibility of the claimant’s statements considering the following factors: (1) claimant’s daily activities; (2) location, duration, frequency, and intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant’s functional limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
Here, in considering Plaintiffs credibility, the ALJ properly applied the two step analysis. First, the ALJ found that Plaintiffs medically determinable impairments could be expected to cause the alleged symptoms. (Tr. 97). Second, the ALJ considered Plaintiffs testimony that he had worked over the past summer, and that he enjoyed listening to music, hanging out with friends, and playing basketball. (Tr. 91). The ALJ also considered the fact that claimant had taken regular classes despite his alleged impairments and had testified to only mild limitations in social functioning and life experiences. (Tr. 92). In light of these statements, the ALJ found that Plaintiffs statements “concerning the intensity, persistence, and limiting effects of his symptoms” were “not entirely credible.” (Tr. 97).
‘“It is the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant.’ ” Aponte v. Sec’y, Dep’t Health and Human Servs., 728 F.2d 588, 591 (2d Cir.1984) (quoting Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983)). “The Commissioner may discount a plaintiffs testimony to the extent that it is inconsistent with medical evidence, the lack of medical treatment, and activities during the relevant period.” F.S. v. Astrue, No. 10-cv-444, 2012 WL 514944, at *20 (N.D.N.Y. Feb. 15, 2012). If the ALJ does find that a claimant’s testimony is not credible, then the ALJ’s determination must “be set forth with sufficient specificity to permit intelligible plenary review of the record.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988). It appears that the ALJ properly considered Plaintiffs statements in light of the required factors and made a determination that Plaintiffs testimony was not entirely credible in light of the evidence. (Tr. 97-98). Further, as required, the ALJ specifically noted the evidence reviewed to support that finding. (Id.). Accordingly, the. Court finds that the ALJ did not commit a legal error in evaluating Plaintiffs credibility.
2. The ALJ’s credibility analysis as to Ms. Matthew’s testimony is supported by substantial evidence.
Plaintiff argues that the ALJ was required to consider Ms. Matthews’ *404testimony as lay witness testimony, and that the ALJ’s decision did not contain specific reasons for the weight she gave to Ms. Matthews’ testimony. (Dkt. 8 at 10; Dkt. 10 at 2-3); see also Brownell, 2009 WL 5214948, at *3 (“[A] lay witness’ testimony is evidence in a disability determination proceeding and the ALJ must consider it.”). “As a fact-finder, an ALJ is free to accept or reject the testimony of a parent.” F.S. v. Astrue, 2012 WL 514944, at *19 (citing Williams, 859 F.2d at 260). It is evident from the text of the ALJ’s decision that she at least considered the lay witness testimony of Ms. Matthews. However, a finding that any witness, including Ms. Matthews, is not credible must be set forth with specificity to allow for proper review of the record. Id
Here, the ALJ referred to Ms. Matthews’ testimony in three sections of the decision. (Tr. 90, 91, 94). First, the ALJ noted that Ms. Matthews had testified that Plaintiff might have ADHD or a mood disorder. (Tr. 90). The ALJ stated that the record did not include any medical diagnosis for ADHD or any mood disorders, so Ms. Matthews’ testimony was disregarded. (Id).2 Second, the ALJ recognized that Ms. Matthews had testified that Plaintiff had behavioral problems and was disrespectful at home. (Tr. 91). The ALJ does not specifically address the weight that she did or did not give to this testimony. (Id). Third, within her consideration of the domain of interacting and relating with others, the ALJ addressed Ms. Matthews’ testimony that Plaintiff had anger management problems and had been suspended from school for his behavior. (Tr. 94). The ALJ discredited this testimony because Ms. Brunetto described Plaintiff as cooperative and friendly. (Id).
Although the ALJ did not expressly state the weight she did or did not give to Ms. Matthews’ testimony (e.g. “little weight” or “great weight”), the ALJ did discuss the testimony in such a way as to make it clear to a reviewer of the decision that she discredited Ms. Matthews’ opinion. When “the evidence of record permits us to glean the rationale of an ALJ’s decision, we do not require that [s]he have mentioned every item of testimony presented to [her] or have explained why [s]he considered particular evidence unpersuasive or insufficient to lead [her] to a conclusion of disability.” Mongeur, 722 F.2d at 1040 (citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.1982)).
Even if the ALJ did consider Ms. Matthews’ testimony to have great weight, this consideration would not impact the ultimate outcome of the finding of no disability because there was no clinical evidence in the record to support a finding of disability. Statements alone cannot be conclusive evidence of disability; instead, “[m]edical signs and laboratory findings, established by medically acceptable clinical or laboratory diagnostic techniques, must show the existence of a medical impairments) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 416.929(b).
Therefore, any error in failing to assign a specific weight to Ms. Matthew’s opinion is a harmless error. See Zabala v. Astrue, *405595 F.3d 402, 409 (2d Cir.2010) (“Where application of the correct legal principles to the record could lead only to the same conclusion, there is no need to require agency consideration.”) (internal quotation omitted). The ALJ’s credibility determination as to Ms. Matthew’s testimony is supported by substantial evidence and does not warrant remand.
D. The ALJ’s determination that Plaintiffs impairments do not functionally equal a listed impairment is supported by substantial evidence.
The ALJ determined that Plaintiff has a marked limitation in acquiring and using information, but found no additional “marked” or “extreme” limitation to find Plaintiff disabled through a functional equivalent analysis. (Tr. 96). Plaintiff argues that the ALJ should have concluded that Plaintiff had a marked limitation in the domain of interacting and relating with others. (Dkt. 8 at 10-11).
When considering a child’s limitations in the domain of interacting and relating with others, the Commissioner weighs a claimant’s ability to “initiate and sustain emotional connections with others, develop and use the language of [his] community, cooperate with others, comply with rules, respond to criticism, and respect and take care of the possessions of others.” 20 C.F.R. § 416.926a(i).
Here, considering the evidence as a whole, there is substantial evidence supporting the ALJ’s determination that Plaintiff did not suffer from an inability to appropriately interact with others such that he would have a marked limitation in the domain. Despite Ms. Matthews’ description of impairments, there was no substantial medical evidence from the relevant time period to support her statement, making her testimony less credible. See Lanzo ex rel. J.I.C. v. Astrue, No. 10-cv-271S, 2012 WL 838921, at *6 (W.D.N.Y. Mar. 12, 2012) (finding mother’s testimony not credible where there was no clinical evidence to support her statements). The ALJ is not required to “reconcile every conflicting shred of medical testimony.” Falcon, 88 F.Supp.2d at 90-91 (citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir.1981)). “This Court must afford the Commissioner’s" determination considerable deference, and will not substitute ‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.’” Lanzo, 2012 WL 838921, at *1 (citing Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984)) (alteration in original).
As the Commissioner notes, during medical examinations, Plaintiff had a positive affect and provided thoughtful responses to conversation. (Tr. 215-19). Ms. Brunette opined that Plaintiff had a good prognosis, despite a moderate to severe expressive language delay. (Tr. 91, 215-19). Plaintiff was in regular education classes. (Tr. 215). Plaintiff testified that he enjoyed listening to music, was able to drive, and enjoyed spending time with friends in the neighborhood. (Tr. 73-74). Plaintiff was able to perform two summer jobs and volunteer work. (Tr. 63, 73).
There is also evidence in the record that is not cited in the ALJ’s decision which provides support for the finding that Plaintiff had a less than marked limitation in the domain of interacting and relating with others. An ALJ’s failure to cite specific evidence in her opinion does not indicate that the evidence was not considered. See Barringer v. Comm’r of Soc. Sec., 358 F.Supp.2d 67, 79 (N.D.N.Y.2005) (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.2000)).
*406The record shows that medical consultants Weir and Gauthier opined that Plaintiff had a less than marked limitation in the domain of interacting and relating with others. (Tr. 230). In addition, on May 17, 2007, Plaintiff was assessed as a healthy 14-year old. (Tr. 258). On July 15, 2008, Plaintiff was assessed as a healthy 15-year old male with “normal growth and development.” (Tr. 260). In light of the above facts, there was substantial evidence to support a finding that Plaintiff had a less than marked limitation in the domain of interacting and relating with others. As a result, the Court concludes that the ALJ did not make an error in determining that Plaintiffs impairments did not functionally equal a listed impairment.
E. The ALJ appropriately relied on VE testimony.
At step five of the sequential analysis for determining whether or not an adult is disabled, the burden shifts to the Commissioner to demonstrate that there are a substantial number of jobs available in the national economy for Plaintiff to perform. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.1998). The Commissioner will utilize the Medical Vocational Guidelines or “grids” found at 20 C.F.R. Part 404, Subpart P, Appendix 2. Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir.1996). However, “if a claimant has nonexertional impairments which ‘significantly limit the range of work permitted by his exertional limitations,’ then the Commissioner cannot rely upon the grids, and instead ‘must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform.’ ” Griffith v. Astrue, No. 08-cv-6004 (CJS), 2009 WL 909630, at *4 (W.D.N.Y. Mar. 31, 2009) (citing Pratts, 94 F.3d at 39). A VE may be consulted to provide evidence concerning the existence of jobs in the national economy that a claimant with particular functional limitations could perform. 20 C.F.R. § 416.966(e).
Plaintiff contends that the ALJ erred in relying on the VE testimony because the hypotheticals posed to the VE were created with an RFC that Plaintiff claims were not supported by substantial evidence in the record. (Dkt. 8 at 11-12). As discussed, the ALJ did not commit legal error in conducting her analysis of Plaintiffs disability claim, and therefore her RFC determination and hypothetical questions were supported by substantial evidence. As a result, Plaintiffs contentions concerning the ALJ’s reliance on the VE’s testimony are misplaced.
IV. CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings (Dkt. 9) is granted, and Plaintiffs motion for judgment on the pleadings (Dkt. 7) is denied. Plaintiffs complaint is dismissed with prejudice.
SO ORDERED.
. Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. As such, the Court hereby amends the caption of the case sua sponte to reflect that Ms. Colvin is the Defendant.
. The June 14, 2006 treatment note from Westside Health Services stated "Psych. ADD ... will discuss w/ PCP re: Ritalin ... Cont [sic] FLU psychologisi/refer to Psychiatry....” (Tr. 256). The note indicated that Plaintiff "was seeing” a psychologist once per week. (Id.). As a result, although this note indicated that Plaintiff may have ADD and set a plan to refer Plaintiff to a psychologist to discuss a Ritalin prescription, the note did not clearly state that Plaintiff was diagnosed with ADD. (Id.). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217659/ | MEMORANDUM **
George and Nancy Benoit appeal pro se the decision of the Tax Court which dismissed their petition for redetermination of federal income taxes for tax year 1998. We affirm for the reasons stated in the Tax Court’s Oral Bench Opinion, issued on June 26, 2002.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217660/ | MEMORANDUM **
Glenn Broderick appeals pro se the judgment of the Tax Court, following a bench trial, dismissing his action contesting tax deficiencies for the years 1995, 1996, and 1997. We have jurisdiction pursuant to 26 U.S.C. § 7482. We review a Tax Court’s dismissal for failure to prosecute for abuse of discretion, Roat v. Commissioner, 847 F.2d 1379, 1383 (9th Cir.1988), and we affirm.
The Tax Court did not abuse its discretion by dismissing Broderick’s action for failure to prosecute because he did not comply with Tax Court Rules 123(b) and 149(b), which require parties to stipulate to facts, identify or prove any deductions, and refute the Commissioner’s deficiency determination. See Roat, 847 F.2d at 1383 (affirming Tax Court’s dismissal for failure to prosecute under Rules 123(b) and 149(b) where taxpayers “made a tactical choice not to prosecute the merits of their deficiencies”); Larsen v. Commissioner, 765 F.2d 939, 941 (9th Cir.1985) (per curiam) (affirming Tax Court’s dismissal of action under Rule 123 because taxpayer refused to stipulate to facts as required by Rule 91).
The Tax Court properly denied Broder-ick’s motion in limine because Broderick was not entitled to notice of the third-party subpoena served on Wells Fargo Bank. See 26 U.S.C. § 7609(c)(2)(B) (a taxpayer is not entitled to notice of subpoenae “issued to determine whether or not rec*375ords of the business transactions or affairs of an identified person have been made or kept”). In addition, contrary to Broder-ick’s contention, the bank records should not have been precluded under the “fruit of the poisonous tree” doctrine. See Weiss v. Commissioner, 919 F.2d 115, 118 (9th Cir.1990).
The record does not support Broderick’s contention that the Tax Court improperly required him to bear the burden of proving that he did not receive unreported income. In any event, the Commissioner proved Broderick’s receipt of unreported income by producing a Form 4340, and Broderick refused to challenge that determination at the bench trial. See Hardy v. Commissioner, 181 F.3d 1002, 1004-05 (9th Cir.1999).
Broderick also contends that the Tax Court violated his Fifth Amendment right against self-incrimination when it deemed true the Commissioner’s proposed stipulation of facts. This contention fails because Broderick “may not invoke the Fifth Amendment privilege to justify his refusal to comply with discovery.” See McCoy v. Commissioner, 696 F.2d 1234, 1236 (9th Cir.1986).
We do not consider the Tax Court’s denial of Broderick’s post-judgment “Motion to Vacate Decision” or imposition of a penalty pursuant 26 U.S.C § 6673, because Broderick does not challenge those rulings on appeal. See DHL Corp. & Subsidiaries v. Commissioner, 285 F.3d 1210, 1224 n. 10 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217661/ | MEMORANDUM **
William A. Wheelis appeals pro se the decision of the Tax Court upholding the Commissioner’s determination of federal income tax deficiencies for the years 1995 and 1996. We affirm for the reasons stated in the Tax Court’s opinion, issued on April 16, 2002.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217663/ | MEMORANDUM ***
Chris Hyongchyong Kim appeals his jury conviction of conspiracy to distribute pseudoephedrine on the ground that 21 U.S.C. § 841(c)(2) is unconstitutionally vague. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo and affirm. See United States v. Davis, 36 F.3d 1424, 1434 (9th Cir.1994) (constitutionality of a criminal statute is reviewed de novo).
Section 841(c)(2) criminalizes the “knowing” or “intentional” possession or distribution of a listed chemical by a person “knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance .... ” The evidence at trial demonstrated that Kim had cause to believe that the pseudoephedrine he was purchasing and distributing in large quantity was going to be used in the manufacture of methamphetamine. Because the statute provided Kim with adequate notice that his conduct was criminal, it is not unconstitutionally vague as applied to him. Easyriders Freedom F.I.G.H.T v. Hannigan, 92 F.3d 1486, 1493 (9th Cir.1996) (where a law at issue does not implicate First Amendment rights, it may be challenged for vagueness only as applied); United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir.1985) (a criminal statute is not vague if it provides adequate notice that the defendant’s conduct is prohibited in terms that a reasonable person of ordinary intelligence would understand); United States v. Pruitt, 719 F.2d 975, 977 (9th Cir.1983) (per curiam) (same).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217668/ | MEMORANDUM **
Derrick George Wynter appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action, which alleged an illegal search and seizure. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the judgment dismissing pursuant to 28 U.S.C. § 1915A(b)(1), Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm.
The district court properly dismissed the action without prejudice because Wyn-ter may not bring such an action unless and until his conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.1995) (dismissing without prejudice).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224387/ | OPINION AND ORDER
SEIBEL, District Judge.
Before the Court is Defendants’ Motion for Summary Judgment. (Doc. 19.) For the following reasons, Defendants’ Motion is granted.
I. BACKGROUND
In October 2009, Plaintiff was enrolled as an undergraduate student at the State University of New York campus in Purchase, New York (“SUNY Purchase”). (P’s 56.1 ¶ 1.)1 Also in October 2009, Defendants Philip Milano and Luis Sanchez *410were employed by SUNY as police officers and assigned to the SUNY Purchase campus. (Id. ¶¶ 2-3.)
Plaintiff claims that shortly after midnight on Saturday, October 10, 2009, he and a few other SUNY Purchase students stopped at his Toyota Camry to pick up Plaintiffs i Pod while walking from the SUNY Purchase student center to Plaintiffs dormitory. (Banks Decl. Ex. D (“P’s Dep.”), at 11-12.)2 The Camry was parked in the SUNY Purchase Phase II parking lot, which was directly behind Plaintiffs dormitory. (Id. at 14.) When they arrived at Plaintiffs car, Plaintiff and the other students entered it to get out of the rain. (Id. at 12-13.)3 Plaintiff claims that he and the other students sat in the car for about 20 seconds before Officer Milano, who was patrolling the SUNY Purchase campus with Officer Sanchez, (Mila-no Decl. ¶ 4),4 tapped on the front passenger-side window, (P’s Dep. 13, 20).
Officer Milano testified that he approached the Camry out of concern for the welfare of the individuals in the car, because he knew that SUNY Purchase students often held parties on Friday nights and that they and their guests sometimes fell asleep while intoxicated inside a vehicle. (Joseph Decl. Ex. 3 (“Milano Dep.”), at 16-17.)5 While Officer Milano could not see what was happening in the Camry because it was dark and the car’s windows were foggy, (P’s 56.1 ¶¶ 6-7), he could see that there were five individuals in the Camry, (Milano Dep. at 18). Moreover, he testified that despite the Camry’s foggy windows, he was able to see that the key was in the ignition before he knocked on the front passenger-side window. (Id. at 20.) Plaintiff, however, testified that he put the key in the ignition after Officer Milano tapped on the window because Plaintiffs Camry has power windows which cannot function while the car is off. (See P’s Dep. 20-21.)
Officer Milano, who received basic drug detection training at the police academy, (Milano Dep. 8), testified that after the front passenger-side window was lowered, he sinelled marijuana and alcohol, (id. at 22). Officer Sanchez, who stood at the rear of the Camry, (P’s 56.1 ¶ 26), testified that he also smelled marijuana coming from the vehicle and that he heard Officer Milano say that he smelled marijuana, (Joseph Decl. Ex. 2 (“Sanchez Dep.”), at 17-18). Officer Milano stated that, in addition to smelling marijuana, he saw a “rolled up cigar, which appeared to be a marijuana cigar,” on the center console after the front passenger-side window was lowered. (Milano Dep. 22-23.) Plaintiff disputes that any marijuana was in plain view, (P’s Dep. 17-18), or that either Defendant could have smelled marijuana because the car did not smell of marijuana and nobody had smoked marijuana in the car, (id. at 17).
After the front passenger-side window was lowered, Officer Milano told Plaintiff to remove the key from the ignition and *411place it on the dashboard. (Milano Decl. ¶ 9.) Once Plaintiff removed the key from the ignition, Officer Milano directed him to exit the car. (P’s 56.1 ¶ 16.) When Plaintiff exited the car, Officer Milano observed that Plaintiff had bloodshot, glassy eyes and his breath smelled like alcohol. (Id. ¶ 18.) Officer Milano also observed that Plaintiff appeared to be lethargic and had difficulty following directions. (Id. ¶ 19.) Because of these observations, Officer Mi-lano believed Plaintiff was intoxicated. (Milano Dep. 27-28.) Officer Milano did not, however, administer a field sobriety test or breathalyzer while in the Phase II parking lot. (See id.) Plaintiff admits that he had consumed four cans of beer between approximately 10:00 PM and 11:30 PM, (P’s Dep. 15-16), and that this amount of alcohol was sufficient to intoxicate him, (P’s Mem. 5).6 Plaintiff did not, however, feel intoxicated. (P’s Dep. 16.)
The parties dispute several facets of the subsequent events. Plaintiff testified that he exited the Camry and was then frisked, handcuffed and placed in the back of Defendants’ patrol car. (Id. at 22.) Officer Milano claims that after Plaintiff exited the car, he was frisked but not immediately handcuffed. (Milano Dep. 26-27.) Rather, Plaintiff stood towards the rear of the Camry with Officer Sanchez as Officer Milano directed the other occupants to exit the car and frisked them. (See Milano Decl. ¶ 11.) Officer Milano did not find contraband on Plaintiff or any of the other individuals in the Camry. (Id.) After all the students were frisked, Plaintiff, the other four occupants of the Camry and Officer Sanchez stood at the rear of the car while Officer Milano searched it. (Id. ¶¶ 11-12; Milano Dep. 31.) Officer Milano claims that although nobody was free to leave, nobody was handcuffed while he searched the car. (Milano Dep. 27, 31.)
During his search of the Camry, Officer Milano inspected the cigar he claims was on the center console and found that it contained a green leafy substance that appeared to be marijuana. (Milano Aff. ¶ 12.) Underneath the driver’s seat, Officer Milano found a small plastic glassine envelope, which also appeared to contain marijuana, and a glass pipe, which appeared to be stained with marijuana residue. (P’s 56.1 ¶ 24.) Officer Milano found a second glass pipe, which appeared to be stained with marijuana residue, under the front passenger seat. (Id.) Officer Milano claims he also found three Zig-Zag rolling paper containers and a New York learner’s permit and driver’s license containing Plaintiffs name and an altered date of birth. (Milano Aff. ¶ 12.) Plaintiff admits that Officer Milano found the cigar and that it contained marijuana, but claims it was not on the center console. (P’s 56.1 ¶ 24.) Plaintiff also admits that the glas-sine envelope contained marijuana and that Officer Milano found all of the drug paraphernalia except the rolling paper containers. (Id. ¶¶ 24-25.) Plaintiff disputes that Officer Milano found a forged driver’s license or learner’s permit. (Id. ¶ 25.)
Officer Milano testified that after he completed his search of the Camry, he asked if the marijuana and drug paraphernalia belonged to any of the car’s occupants, and that Plaintiff responded that the marijuana and drug paraphernalia were his. (Milano Dep. 26-27.) Plaintiff, however, claims he did not say the marijuana and drug paraphernalia belonged to him, (P’s Dep. 19-20), and Officer Sanchez testified that he did not hear Plaintiff assert ownership of the marijuana, (Sanchez *412Dep. 23-24). Officer Milano testified that he handcuffed Plaintiff only after Plaintiff asserted Ownership of the marijuana. (Mi-lano Dep. 33.)
It is undisputed that the Defendants, at some point, handcuffed Plaintiff, placed him in the back of the patrol car and drove him to the campus police station, and allowed the four other occupants of the Camry to leave. (P’s 56.1 ¶29; Milano Dep. 33.) Defendants assert that at the time Plaintiff was taken to the campus police station, he was under arrest for unlawful possession of marijuana and detained on suspicion of driving while intoxicated. (P’s 56.1 ¶ 30.) After arriving at the campus police station, Officer Milano escorted Plaintiff inside and Officer Sanchez left to resume his patrol. (Id. ¶ 34.) Officer Milano then administered three standardized field sobriety tests, all of which Plaintiff failed. (Id. ¶¶ 36-37.) Plaintiff also submitted to a breathalyzer test, which showed that he had a blood alcohol content (“BAC”) of .08 percent. (Id. ¶ 38.)
Based on the results of the field sobriety tests and the breathalyzer, Officer Milano signed a Simplified Information/Complaint charging .Plaintiff with driving while intoxicated in violation of New York Vehicle & Traffic Law (“VTL”) §§ 1192(2) and (3). (Joseph Decl. Ex. 7.) Officer Milano also filed a Violation Information charging Plaintiff with unlawful possession of marijuana in violation of New York Penal Law § 221.05. (Id. Ex. 9.). Plaintiff posted bail and was released from custody at approximately 3:00 AM. (P’s 56.1 ¶¶ 41-43.)
On November 12, 2009, Officer Milano signed a Felony Complaint that charged Plaintiff with felony violations of VTL §§ 1192(2) and (3). (Joseph Decl. Ex. 8.) These charges were later reduced to misdemeanors. (P’s 56.1 ¶ 45.) On May 18, 2010, the Westchester County District Attorney’s Office (the “DA’s Office”) withdrew all charges against Plaintiff. (Id. ¶ 46; Banks Decl. Exs. E, F.) Officer Sanchez did not participate in any criminal proceedings, (P’s 56.1 ¶ 47; Sanchez Decl. ¶ 18),7 and there is no evidence that Officer Sanchez communicated with the DA’s Office regarding Plaintiffs charges or assisted in Plaintiffs prosecution in any way.
Plaintiff commenced this action on September 25, 2012, bringing Section 1983 claims based on false arrest and malicious prosecution. (Complaint (“Compl.”), (Doc. 1), ¶¶ 1-34.) Defendants now seek summary judgment on all claims. (Doc. 19.)
II. DISCUSSION
A. Legal Standards
1. Summary Judgment
Summary judgment is appropriate when “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). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. The *413movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.... ” Fed. R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008). In the event a party “fails to properly .address another party’s assertion of fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed. R.Civ.P. 56(e)(2), (3).
2. Section 1983
To state a claim under Section 1983, Plaintiff must allege that state officials, acting under color of state law, deprived him of a right guaranteed by the Constitution or federal law. 42 U.S.C. § 1983; see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). Here, Plaintiffs Section 1983 claims are predicated on allegations that he was falsely arrested and maliciously prosecuted.
a. False Arrest
Plaintiffs false arrest claim must be analyzed under the law of the state in which the arrest occurred — here, New York. See Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir.2004). To establish a false arrest claim under New York law, “a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir.2003) (internal quotation marks omitted). In this case, the parties dispute whether there was a justification or privilege for Plaintiffs arrest. (See Ds’ Mem. 8.)8
*414An arrest is justified or privileged if it is based on probable cause. LaFontaine v. City of N.Y., No. 08-CV-1555, 2009 WL 3335362, at *5 (S.D.N.Y. Oct. 14, 2009); see Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (“There can be no federal civil rights claim for false arrest where the arresting officer had probable cause.”). Probable cause exists when an officer has “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Jocks, 316 F.3d at 135 (internal quotation marks omitted); accord Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The focus is not on the arresting officer’s certitude, but rather on the likelihood of criminal activity. See Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); LaFontaine, 2009 WL 3335362, at *5. “[PJrobable cause is evaluated under an objective standard,” under which “courts look to the information available to the law enforcement officer at the time of the arrest and consider the totality of the circumstances.” Michaels v. City of N.Y., No. 10-CV-2666, 2011 WL 570125, at *5 (S.D.N.Y. Feb. 16, 2011) (internal quotation marks omitted); accord Gates, 462 U.S. at 230-31, 103 S.Ct. 2317. Once a law enforcement officer “has a reasonable basis for believing there is probable cause” to arrest a suspect, “he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest,” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.1997), and “the validity of an arrest is not contingent upon an ultimate finding of guilt or innocence,” Bulanov v. Town of Lumberland Constable Meehan, No. 00-CV-4292, 2002 WL 181365, at *4 (S.D.N.Y Feb. 6, 2002).
Moreover, because probable cause is evaluated under an objective standard, it need not be “predicated upon the offense invoked by the arresting officer, or even upon an offense ‘closely related’ to the offense invoked by the arresting officer,” and “the ‘subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.’ ” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.2006) (quoting Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). The focus is simply on “the validity of the arrest, and not on the validity of each charge.” Id. at 154, 125 S.Ct. 588 (emphasis in original). Finally, an arrest is justified if one officer participating in the arrest or investigation knew of facts sufficient to provide probable cause, because such knowledge is imputed to each officer who participated in the arrest. Carpenter v. City of N.Y., 984 F.Supp.2d 255, 263-65, No. 11-CV-8414, 2013 WL 6196968, at *5-*6 (S.D.N.Y. Nov. 27, 2013) (citing Savino v. City of N.Y., 331 F.3d 63, 74 (2d Cir.2003)).
b. Malicious Prosecution
As with Plaintiffs false arrest claim, Plaintiffs malicious prosecution claim must be analyzed under New York law. See Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir.2010). To establish a malicious prosecution claim under New York law, “a plaintiff must prove (1) the initiation or continuation of a criminal pro*415ceeding against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.” Id. (internal quotation marks omitted). The parties dispute the first, third and fourth elements of Plaintiffs malicious prosecution claim. {See Ds’ Mem. 14.)9
“To initiate a prosecution, a defendant must do more than report the crime or give testimony.” Id. at 163 (internal quotation marks and alterations omitted). Rather, “he must play[ ] an active role in the prosecution,” which includes “having the plaintiff arraigned ... filling out complaining and corroborating affidavits, and ... signing felony complaints.” Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y.2006) (internal quotation marks omitted). A police officer can also initiate a prosecution by creating material, false information and forwarding that information to a prosecutor or by withholding material information from a prosecutor. Id.; see Llerando-Phipps v. City of N.Y., 390 F.Supp.2d 372, 383 (S.D.N.Y.2005) (while “there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution [if he] creates [material] false information ... and forwards that information to prosecutors”) (internal quotation marks omitted); Webster v. City of N.Y., 333 F.Supp.2d 184, 198-99 (S.D.N.Y.2004) (police officers could be held liable for malicious prosecution if they provided false information to prosecutors).
As with false arrest claims, “the existence of probable cause is a complete defense to a claim of malicious prosecution in New York,” Savino, 331 F.3d at 72, but unlike false arrest claims, the defendant must have possessed probable cause as to each offense charged, Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991). “In the context of a malicious prosecution claim, probable cause under New York law is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.” Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir.1994) (internal quotation marks omitted). Therefore, “the existence, or lack, of probable cause is measured as of the time the judicial proceeding is commenced (e.g., the time of the arraignment), not the time of the ... arrest.” Morgan v. Nassau Cnty., No. 03-CV-5109, 2009 WL 2882823, at *10 (E.D.N.Y. Sept. 2, 2009) (internal quotation marks omitted). “If probable cause existed at the time of arrest, it continues to exist at the time of prosecution unless undermined ‘by the discovery of some intervening fact.’ ” Johnson v. Constantellis, 221 Fed.Appx. 48, 50 (2d Cir.2007) (summary order) (quoting Kinzer v. Jackson, 316 F.3d 139, 144 (2d Cir.2003)).
3. Qualified Immunity
Defendants argue that even if they did not have probable cause either to arrest or to charge Plaintiff and Plaintiff has established the other elements of his claim, they are nonetheless immune from suit under the doctrine of qualified immunity. Government officials exercising discretionary functions are entitled to qualified immunity shielding them from damages in a Section 1983 suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have *416known,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 78 L.Ed.2d 396 (1982), or insofar as it was objectively reasonable for them to believe that their conduct did not violate such rights, see Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A government official sued in his individual capacity is entitled to qualified immunity
(1) if the conduct attributed to him was not prohibited by federal law; or (2) where that conduct was so prohibited, if the plaintiffs right not to be subjected to such conduct by the defendant was not clearly established at the time it occurred; or (3) if the defendant’s action was objectively legally reasonable ... in light of the legal rules that were clearly established at the time it was taken.
Munafo v. Metro. Transp. Auth., 285 F.3d 201, 210 (2d Cir.2002) (internal quotation marks and alterations omitted); see Creighton, 483 U.S. at 639, 107 S.Ct. 3034 (“[Wjhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action ... assessed in light of the legal rules that were clearly established at the time it was taken.”) (internal quotation marks omitted). Thus, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
As qualified immunity entitles a defendant to complete immunity from suit, rather than simply a defense to liability, the Court, where possible, should rule on the question of qualified immunity at the earliest possible stage of the litigation. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Tierney v. Davidson, 133 F.3d 189, 194-95 (2d Cir.1998). Summary judgment should be granted where “the defendant shows that no reasonable jury, viewing the evidence in the light most favorable to the [pjlaintiff, could conclude that the defendant’s actions were objectively unreasonable in light of clearly established law.” Husain v. Springer, 494 F.3d 108, 131 (2d Cir.2007) (internal quotation marks omitted).
When accused of making a false arrest, an officer is entitled to qualified immunity if there was “arguable probable cause” at the time of arrest. Jenkins v. City of N.Y., 478 F.3d 76, 87 (2d Cir.2007). Arguable probable cause to arrest “exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.2010) (internal quotation marks omitted). Similarly, an officer is entitled to qualified immunity from suit on a claim of malicious prosecution if there was “arguable probable cause” to charge the plaintiff. See Jean v. Montina, 412 Fed.Appx. 352, 354 (2d Cir.2011) (summary order). “Arguable probable cause to charge exists where, accounting for any new information learned subsequent to an arrest, ‘it was not manifestly unreasonable for [the defendant officer] to charge [the plaintiff]’ with the crime in question.” Id. (alterations in original) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir.1996)).
B. Plaintiffs Claims Against the Officers
1. False Arrest Claim Against Both Defendants
As a threshold issue to Plaintiffs false arrest claim, the parties dispute when Plaintiff was placed in handcuffs — i.e. when Plaintiff was arrested for Fourth *417Amendment purposes — and, therefore, when Defendants must have possessed probable cause for his arrest. See Posr, 944 F.2d at 99 (“If to a reasonable observer, [defendants,] upon physical contact with [plaintiff], acted with an unreasonable level of intrusion given the totality of the circumstances in restraining [plaintiffs] freedom of movement to the point where [plaintiff] did not feel free to leave, then an arrest could be found.”). Plaintiff testified that Officer Milano placed him in handcuffs shortly after he exited the Cairiry, but before Officer Milano searched his car and discovered marijuana. Officer Milano testified that Plaintiff was handcuffed only after Officer Milano searched the car and discovered marijuana. Because, for the purposes of this Motion, I must resolve this dispute in Plaintiffs favor, I will credit Plaintiffs assertion that he was arrested shortly after he exited the Camry, before Officer Milano discovered marijuana in the car. Cf. Travis, 355 F.Supp.2d at 747 (“A reasonable person who has been stopped on the street, removed from her car, frisked, handcuffed in the absence of any need to prevent a struggle, placed in the locked back seat of a police car, and driven to a police station could not possibly think that she was free to go.”). Even accepting Plaintiffs version of events, however, Defendants possessed arguable probable cause to arrest him for driving while impaired.
VTL § 1192 provides that “[n]o person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” N.Y. Veh. & Traf. § 1192(1). “The term ‘operate’ as used in the [VTL] is broader than the term ‘drive’ and extends to a situation where a motorist begins to engage the motor for the purpose of putting the vehicle into motion.” People v. Westcott, 84 A.D.3d 1510, 923 N.Y.S.2d 763, 765 (2011) (internal quotation marks omitted); see also People v. Prescott, 95 N.Y.2d 655, 662, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (2001) (an individual “operates a motor vehicle within the meaning of the statute when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle”) (internal quotation marks and alterations omitted). And, obviously, having actually driven the vehicle would constitute operating it whether the evidence of operation is direct or circumstantial. See People v. Cosimano, 40 Misc.3d 132(A), 975 N.Y.S.2d 368, 368 (App.Term 2013) (stating “[t]he operation element of [§ 1192] may be proved circumstantially” and finding probable cause of operation where “there was no rational explanation for defendant’s .presence and condition in the parking lot other than that he was not at the starting point of his journey”). An, individual is “impaired” under VTL § 1192(1) if, by consuming alcohol, he “has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Gingras, 22 Misc.3d 22, 871 N.Y.S.2d 812, 813 (App.Term 2008) (internal quotation marks omitted); see Hoyos v. City of N.Y., 999 F.Supp.2d 375, 387, No. 10-CV-4033, 2013 WL 7811754, at *5 (E.D.N.Y. Dec. 11, 2013) (impairment requires a “far less rigorous” burden of proof than intoxication).
Here, there was arguable probable cause to arrest Plaintiff for violating VTL § 1192(1), based on recent operation of the vehicle while impaired. First, there was probable cause that Plaintiff was impaired, as that term is used in VTL § 1192(1), based on Officer Milano’s observation that Plaintiffs eyes were bloodshot and glassy, that Plaintiffs breath smelled of alcohol and that Plaintiff had difficulty *418following simple directions. See People v. McCarthy, 135 A.D.2d 1113, 523 N.Y.S.2d 291, 291 (1987) (bloodshot eyes, slurred speech and strong odor of alcohol sufficient for probable cause of impairment); People v. Blajeski, 125 A.D.2d 582, 509 N.Y.S.2d 648, 649 (1986) (same); see also People v. Kowalski, 291 A.D.2d 669, 738 N.Y.S.2d 427, 429 (2002) (“[PJrobable cause [for intoxication] need not always be premised upon the performance of field sobriety tests.”). Second, crediting Plaintiff’s assertion that the key was not in the ignition before Officer Milano tapped on the window,10 a reasonable officer could infer that Plaintiff had recently driven the Camry because Plaintiff and four other individuals were sitting in the car in a parking lot and Plaintiff was in the driver’s seat with the keys.11 While an equally reasonable inference from these facts might be that Plaintiff was preparing to drive the vehicle, in which case he would not be liable for any VTL § 1192 offense, cf. Prescott, 95 N.Y.2d at 662, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (no attempt liability under VTL § 1192), this does not render the inference of recent operation unreasonable, see Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir.2013) (“[P]robable cause does not demand that an officer’s good-faith belief that a suspect has committed or is committing a crime be correct or more likely true than false.”) (internal quotation marks omitted); Ricciuti, 124 F.3d at 128 (once an officer “has a reasonable basis for believing there is probable cause” to arrest a suspect, “he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest”); Whitton v. Williams, 90 F.Supp.2d 420, 429 (S.D.N.Y.2000) (“It can be objectively reasonable for an officer to believe that probable cause existed for the arrest, even in the absence of a finding that probable cause in fact existed.”) (internal quotation marks omitted). Moreover, due to the lack of visible alcohol containers in the car, it was unlikely that Plaintiff had become impaired after he finished operating the vehicle. See People v. Spencer, 289 A.D.2d 877, 736 N.Y.S.2d 428, 431 (2001) (“absence of alcoholic containers in or around the car” negated possibility defendant became intoxicated after he finished operating the vehicle); People v. Saplin, 122 A.D.2d 498, 505 N.Y.S.2d 460, 461 (1986) (similar). And a reasonable officer could likewise infer that it was more likely that Plaintiff had gotten drunk and just driven home than it was that Plaintiff had gotten drunk and .then just gotten behind the wheel to go out with his *419friends, given that the occupants had been inside the car long enough for the windows to fog up. Similarly, it would be reasonable to infer that a student dormitory parking lot was a foolish place in which to sit in a car and get drunk, and it was therefore more likely that Plaintiff had gotten drunk elsewhere earlier. Reasonable officers in Defendants’ position thus could have reasonably inferred that there was probable cause that Plaintiff had recently driven while impaired, or at least could disagree on the matter. Defendants therefore possessed arguable probable cause to arrest Plaintiff for operating his vehicle while impaired by alcohol, and Plaintiffs false arrest claim must be dismissed.12
2. Malicious Prosecution Claim Against Officer Sanchez
There is no evidence that Officer Sanchez initiated Plaintiffs prosecution for any of the crimes with which Plaintiff was charged by, e.g., signing a charging instrument, discussing Plaintiffs prosecution with the DA’s Office or involving himself in Plaintiffs prosecution in any other way. (See Sanchez Decl. ¶ 18.) Plaintiffs malicious prosecution claim against Officer Sanchez must, therefore, be dismissed. See Mitchell, 434 F.Supp.2d at 227-28; see also Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted).
3. Malicious Prosecution Claim Against Officer Milano
a. Initiation
Officer Milano, on the other hand, initiated Plaintiffs prosecution by signing the charging instruments. While the DA’s decision to bring charges would otherwise have cut the causal chain between Officer Milano’s actions and Plaintiffs prosecution, Plaintiff argues that Officer Milano submitted false allegations to the DA’s Office. (See P’s Mem. 19-20.) Athough Plaintiff does not specify which of Officer Milano’s statements were false or how they were material, see Fed.R.Civ.P. 56(c)(1)(A), Officer Milano’s Incident Report, which.was presumably forwarded to the DA’s Office, asserts that Plaintiff claimed ownership of the marijuana, (see Milano Decl. Ex. A, at 3), which contradicts Plaintiffs account. *420The Incident Report also states that “the keys of the vehicle were in the ignition,” (id), and Officer Milano checked the “keys in the ignition” box of his Supporting Deposition, (Joseph Decl. Ex. 10), which could be interpreted as assertions that the keys were in the ignition before Officer Milano knocked on the window, and would also contradict Plaintiffs version of events. I need not determine whether these statements were misleading or material to the DA’s decision to prosecute Plaintiff, however, given that, as explained below, other evidence provided probable cause to prosecute Plaintiff for all of the crimes with which he was charged.
b. Probable Cause/Arguable Probable Cause
i. VTL §§ 1192(2) and (3)
Officer Milano charged Plaintiff with violating VTL §§ 1192(2) and (3). VTL § 1192(2) prohibits “operating] a motor vehicle while [an individual] has .08 of one per centum or more by weight of alcohol in the person’s blood.” N.Y. Veh. & Traf. Law § 1192(2). Similarly, VTL § 1192(3) prohibits “operating] a motor vehicle while in an intoxicated condition.” Id. § 1192(3); see People v. Hagmann, 175 A.D.2d 502, 572 N.Y.S.2d 952, 953-54 (1991) (individual is intoxicated under VTL § 1192(3) if he “consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver”) (internal quotation marks omitted).
Officer Milano, as explained above, possessed arguable probable cause that Plaintiff had operated his vehicle while impaired at the time of his arrest. There was, therefore, arguable probable cause as to the operation element at the time Officer Milano charged Plaintiff with violating VTL §§ 1192(2) and (3). See Martinez v. Golding, 499 F.Supp.2d 561, 569 (S.D.N.Y.2007) (“[I]n the absence of some indication that, the authorities became aware of exculpatory evidence between the time of the arrest and the subsequent prosecution that would undermine the probable cause which supported the arrest, no claim for malicious prosecution may lie.”) (internal quotation marks omitted). Moreover, before Officer Milano charged Plaintiff with violating VTL §§ 1192(2) and (3), probable cause of impairment matured into probable cause that Plaintiff was intoxicated, because a breathalyzer test revealed that Plaintiffs BAC was .08 percent and Plaintiff failed three field sobriety tests while at the campus police station. See People v. Menegan, 107 A.D.3d 1166, 967 N.Y.S.2d 461, 464 (2013) (breathalyzer that reveals BAC of .08 percent or greater “is sufficient to establish prima facie violation of [VTL] § 1192(2)”); People v. Chijevich, 36 Misc.3d 136(A), 959 N.Y.S.2d 91, 91 (App.Term 2012) (upholding convictions for violating VTL §§ 1192(2) and (3) where breathalyzer revealed BAC greater than or equal to .08 percent and there was evidence defendant was uncoordinated, slurred his speech, had watery and bloodshot eyes, had odor of alcohol on breath and failed two of three coordination tests). The malicious prosecution claim based on the VTL § 1192 charges must, therefore, be dismissed.
ii. Penal Law § 221.05
In addition to the VTL § 1192 offenses, Officer Milano charged Plaintiff with unlawful possession of marijuana in violation of Penal Law § 221.05. “A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.” N.Y. Penal Law § 221.05. Plaintiff admits that Officer Mila-no recovered a marijuana cigar from some location in the car. Plaintiff disputes Officer Milano’s assertion that he found a mar*421ijuana cigar on the center console, but he bases that position solely on the fact that he never saw it when he was in the vehicle, (see P’s Dep. 17-18), which does not mean that it was not there when Officer Milano seized it. Indeed, while I must for present purposes discredit Officer Milano’s statement that he saw the marijuana cigar on the center console when the front passenger-side window was first lowered, Officer Milano’s assertion that he found the marijuana cigar on the center console during his subsequent search is wholly consistent with Plaintiffs argument that the other passengers left marijuana in the vehicle after Plaintiff exited the Camry. Moreover, it is undisputed that Officer Milano found marijuana in a glassine envelope and a used glass pipe under the driver’s seat. Although “[m]ere proximity [to contraband] is ... insufficient to support a finding of constructive possession,” United States v. Rodriguez, 392 F.3d 539, 548 (2d Cir.2004), the location of the marijuana cigar in the center console and the glassine envelope of marijuana and glass pipe underneath the driver’s seat permit the inference that Plaintiff was in possession of marijuana, and therefore provided probable cause to charge Plaintiff with violating Penal Law § 221.05, see Elk v. Townson, 839 F.Supp. 1047, 1051-52 (S.D.N.Y.1993) (probable cause to arrest driver where marijuana found “in the front seat space ... within his easy reach”); see also Lozada v. City of N.Y., No. 12-CV-0038, 2013 WL 3934998, at *3 (E.D.N.Y. July 29, 2013) (“A defendant constructively possesses tangible property when he ‘exercise[s] dominion or control over the property by a sufficient level of control over the area in which the contraband is found....’”) (quoting People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992)). At the very least, such facts provided arguable probable cause that Plaintiff possessed the marijuana. Accordingly, the malicious prosecution claim based on this charge must be dismissed.13 '
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED and all claims are dismissed. The Clerk of Court is respectfully directed to terminate Defendants’ Motion, (Doc. 19), enter judgment for Defendants, and close the case.
SO ORDERED.
. "P’s 56.1” refers to Plaintiff’s Statement of Material Facts Pursuant to Local Civil Rule 56.1. (Doc.27.)
. "Banks Decl.” refers to Declaration of Assistant Attorney General Steven L. Banks in Support of Defendants' Motion for Summary Judgment. (Doc. 24.)
. Plaintiff does not explain why he and his friends all went to the car to retrieve the iPod, or why they did not thereafter simply go to the adjacent dormitory to get out of the rain, in which they had walked from the student center. (See P's Dep. 12-14.) This issue does not, however, affect my resolution of the instant Motion.
. "Milano Decl.” refers to Declaration of Philip Milano in Support of Defendants' Motion for Summary Judgment. (Doc. 23.)
. "Joseph Decl.” refers to Declaration of Counsel in Opposition to Defendants’ Summary Judgment Motion. (Doc. 28.)
. "P’s Mem.” refers to Plaintiffs Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment. (Doc. 26.)
. “Sanchez Decl.” refers to Declaration of Luis Sanchez in Support of Defendants’ Motion for Summary Judgment. (Doc. 22.)
. " "Ds’ Mem.” refers to Memorandum of Law in Support of Defendants' Motion for Summary Judgment.” (Doc. 20.) Defendants also dispute whether Officer Sanchez had sufficient personal involvement to be held liable for the allegedly false arrest. As explained below, Plaintiffs false arrest claim will be dismissed because there was arguable probable cause for his arrest. Had there been no arguable probable cause, however, Officer *414Sanchez’s participation as a back-up officer may have been sufficient to hold him liable. See Travis v. Vill. of Dobbs Ferry, 355 F.Supp.2d 740, 752-53 (S.D.N.Y.2005) (false arrest claim can be asserted against an officer "for his role as a ‘back-up officer,’ or for failing to stop another officer's violation of a person’s Fourth Amendment rights” if he was in a position to do so).
. I will, however, discuss only the first and third elements, because the malice inquiry is moot given my holdings regarding initiation and probable cause. See infra n. 13.
. The fact that Plaintiff started the car’s engine, or at least the battery, by turning the key in the ignition in response to Officer Milano tapping on the window — which I accept for purposes of this Motion — does not constitute "operation” in this case, because Plaintiff clearly did not start it "for the purpose of putting the vehicle in motion.” Westcott, 923 N.Y.S.2d at 765. Had Officer Milano not testified that he saw the keys in the ignition before he tapped on the window, the presence of the keys in the ignition once the window was opened might have supported arguable probable cause, because the officer might reasonably not have realized they were placed there just to open the window. But given that Officer Milano claims to have been able to see the ignition despite the foggy windows, and because I must credit Plaintiff when the versions conflict, Officer Milano is not entitled to that inference.
. Any mistake of law on Defendants’ part as to the requirements for "operation” under VTL § 1192 is irrelevant to the objective assessment of probable cause or arguable probable cause. The Court finds arguable probable cause not because "operation” is not required (it plainly is) and not because the key was in the ignition (there is a fact dispute as to that), but because a reasonable objective officer could find probable cause to believe Plaintiff had recently driven the vehicle, even if other officers might disagree.
. Given the presence of marijuana in the Camry and Officer Milano’s drug detection training, I am doubtful that I would have to accept Plaintiff’s assertion that the car did not smell of marijuana and therefore Defendants could not have smelled marijuana coming from the car. See Rotbergs v. Guerrera, No. 10-CV-1423, 2012 WL 1204729, at *5 (D.Conn. Apr. 11, 2012) (on defendant’s summary judgment motion, crediting defendant’s claim that he smelled marijuana despite contrary assertion by plaintiff due, in part, to presence of marijuana in vehicle); United States v. Colon, No. 10-CR-498, 2011 WL 569874, at *12 (S.D.N.Y. Feb. 8, 2011) (testimony that no marijuana had been smoked in car “is not necessarily inconsistent” with officer’s assertion that he smelled marijuana emanating from car given presence of "a small quantity” of unburned marijuana in car). If I were to accept Officer Milano’s assertion that he smelled marijuana, he might have had arguable probable cause to arrest the occupants of the car for unlawful possession of marijuana. See People v. Robinson, 103 A.D.3d 421, 959 N.Y.S.2d 188, 188 (2013) (smell of marijuana emanating from vehicle provides probable cause to arrest only individual in vehicle); People v. Smith, 66 A.D.3d 514, 887 N.Y.S.2d 562, 562 (2009) (smell of marijuana provides probable cause to search all occupants of vehicle). Nevertheless, because Defendants possessed arguable probable cause to arrest Plaintiff for driving while impaired, and this alone requires dismissal of his false arrest claims, see Jaegly, 439 F.3d at 153, I need not address whether there was probable cause to arrest Plaintiff for unlawful possession of marijuana before Officer Milano searched the car.
. In light of this disposition, I need not decide whether Officer Milano's allegedly false or misleading statements to the DA’s Office suffice to show malice. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224389/ | ORDER
FRANK MAAS, United States Magistrate Judge.
In these companion actions, plaintiff Nicole Niceforo (“Niceforo”) alleges that UBS Global Asset Management Americas, Inc. (“UBS”) compensated her improperly under the Fair Labor Standards Act (“FLSA”) and fired her for exercising her rights under the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”). Currently before the Court is Niceforo’s motion to preclude UBS from using for any purpose a notebook found in her desk after her termination. (12 Civ. 4830, ECF No. 26).
Niceforo maintains that the notebook belonged to her and that the manner in which UBS obtained it constitutes conversion and larceny. She further alleges that the notebook contains privileged attorney-client communications. UBS counters that the notebook cannot be considered Nicefo-ro’s personal property because it was located within her UBS work space, and that even if it was, UBS obtained it properly. UBS further contends, inter alia, that Ni-ceforo waived any claim of privilege due to her delay in seeking the notebook’s return. As explained below, UBS did not obtain the notebook improperly. Additionally, Niceforo has failed to establish and also has waived any claim of privilege with respect to its contents. Niceforo’s motion to preclude therefore is denied.
I. Background
Niceforo began her employment with UBS in 2007. (Pl.’s Ex. B (“Niceforo Dep.”) at 31).1 While employed with UBS, Niceforo worked at a cubicle in an open work space. (Declaration of Thomas A. Linthorst, dated March 7, 2014 (“Linthorst Deck”) (filed under seal), Ex. 27). On or about July 13, 2011, Niceforo went on a medical leave from which she returned on October 3, 2011. (Pl.’s Ex. C (“Kishimoto Dep.”) at 118-19). UBS put Niceforo “on probation” on October 6, 2011, and gave her a “final warning” six days later. (Pl.’s Exs. A (“Foglia Dep.”) at 265, E). Then, on October 20, 2011, Niceforo’s manager, Marilyn Foglia (“Foglia”) and a representative from the Human Resources Department, Mika Kishimoto (“Kishimoto”), summoned Niceforo to a conference room at UBS and terminated her employment. Niceforo was not permitted to return to her desk. (Kishimoto Dep. at 238-39). Instead, Foglia and Kishimoto asked Nice-foro what personal belongings she would need in order to leave. Niceforo asked for her bag and shoes, and possibly her coat, which Foglia retrieved. (Foglia Dep. at 303). Niceforo also requested food items from the office refrigerator which were provided. (Linthorst Decl. Ex. 9 at 240). She then was escorted from the building. (See Foglia Dep. at 302).
Earlier in 2009, Niceforo began keeping a “log” in response to complaints about her work. (Linthorst Deck Ex. 3 at 99-101). She generally wrote down her arrival and departure time and made notes regarding projects. (Id.). The notebook that is the subject of her motion constitutes the last of the logs. (Id. at 229).
When Niceforo arrived home after her termination, she noticed that the notebook *432was not among her belongings. (Id. at 238). Over the following days, UBS staff collected other personal items from Nicefo-ro’s desk and sent them to her. (See Foglia Dep. at 304; Kishimoto Dep. at 242). The notebook was not in those shipments either. (Linthorst Decl. Ex. 3 at 241).
In late October or early November, UBS assigned Alex Severis (“Severis”), an intern, to work at Niceforo’s former work station. {See Foglia Dep. at 305-06). In or around November 2011, Severis found the notebook in a desk drawer. (Linthorst Decl. Ex. 12). After Foglia returned to the office, Severis gave the notebook to her. (Id.). Foglia then turned the notebook over to Kishimoto. (PL’s Ex. I (“Second Kishimoto Dep.”) at 2; see Foglia Dep. at 307). Kishimoto knew that litigation involving Niceforo was pending, so she provided the notebook to UBS’s in-house counsel, Jenny Stuart. (Second Kishimoto Dep. at 8). The original notebook remained in the possession of UBS’s counsel until January 2013. (Pl.’s Ex. J at 5).
On July 12, 2012, UBS made its first document production in the FLSA litigation, in which it included a copy of the notebook. (Linthorst Deck ¶ 16). Nicefo-ro, however, first reviewed those documents after UBS made its first document production in the ADA/FMLA case on December 21, 2012. (PL’s Mem. at 5).
Niceforo’s counsel wrote two letters to UBS soon after her dismissal which made no mention of the notebook. In the first such letter, sent in October, counsel informed UBS that, absent a response from UBS, they would “proceed formally with [Niceforo’s] claims at the agency level so as to satisfy the prerequisite for federal court.” (Linthorst Decl. Ex. 7). Although counsel cautioned UBS to “retain all documents relevant to this action in anticipation of such suit,” there was no request for the return of the notebook. {Id. at 3). A second letter in December 2011 also failed to request the notebook’s return. (Id. Ex. 10). Indeed, it was not until January 8, 2013, that counsel asked for the first time that the notebook be returned. (Id. Ex. 15). By letter dated January 17, 2013, UBS stated that it was returning the notebook under separate cover although it claimed that it had “no obligation to do so.” (Linthorst Deck Ex. 16). UBS nevertheless retained a copy of the notebook. (Def.’s Mem. at 8).
II. Discussion
A. Legality of UBS’s Acquisition of the Notebook
A court has the “inherent authority to sanction a party who attempts to use in litigation material improperly obtained outside the discovery process.” Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 324 (S.D.N.Y.1997). Before exercising this authority, however, the Court must find that the material was obtained improperly. Courts will not preclude the use of evidence procured outside of normal channels without any indication of wrongdoing. See id. at 324-25; Schlaifer Nance & Co. v. Estate of Warhol, 742 F.Supp. 165, 166 (S.D.N.Y.1990) (“Neither the Federal Rules of Civil Procedure nor courts’ inherent powers support an order prohibiting use of information innocently obtained from third parties without use of judicial process.”) (emphasis added). Niceforo claims that she is entitled to preclusion because the manner in which UBS obtained her notebook constitutes both conversion and larceny. Neither contention withstands scrutiny.
1. Conversion
Under New York law, “[conversion is the ‘unauthorized assumption and exercise of the right of ownership over *433goods belonging to another to the exclusion of the owner’s rights.’ ” Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995) (quoting Empl’rs’ Fire Ins. Co. v. Cotten, 245 N.Y. 102, 105, 156 N.E. 629 (1927)). A plaintiff must plead two key elements to establish a conversion claim: “[a] [the] plaintiffs posses-sory right or interest in the property and [b] [the] defendant’s dominion over the property, or interference with it, in derogation of plaintiffs rights.” Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006) (internal citations omitted). Fault need not be shown. Cruz v. TD Bank, N.A., 855 F.Supp.2d 157, 174 (S.D.N.Y.2012) (citing LoPresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir.1997)). If the converter acquires the property lawfully at the outset, “ ‘a conversion does not occur until the defendant refuses to return the property after demand.’ ” Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (quoting Johnson v. Gumer, 94 A.D.2d 955, 464 N.Y.S.2d 318, 319 (4th Dep’t 1983)).
It is undisputed that Niceforo voluntarily brought the notebook into the workplace and did not make any demand for its return until January 8, 2013, more than one year after her termination and six months after UBS had produced a copy of it to her as a part of its first document disclosure. Once Niceforo requested the original notebook, UBS promptly complied. UBS therefore acquired the property lawfully at the outset because Nicefo-ro herself brought it to UBS’s offices and left it there.2 When Niceforo finally demanded the return of the notebook through counsel, UBS did not refuse her request. It follows that no conversion occurred.
2. Larceny
Under New York law, larceny “includes a wrongful taking, obtaining or withholding of another’s property,” with the intent to deprive the owner of that property. N.Y. Penal L. § 155.05. A person can commit the crime of larceny by exercising control over property that “he knows to have been lost or mislaid ... without taking reasonable measures to return such property to the owner.” Id. An owner is “deprived” of property when, inter alia, someone “dispose[s] of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” N.Y. Penal L. § 155.00(3)(b). The “intent to deprive” element of the crime thus cannot be satisfied simply by establishing “an intent temporarily to use property without the owner’s permission, or even an intent to appropriate outright the' benefits of the property’s short-term use.” People v. Jennings, 69 N.Y.2d 103, 119, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).
Niceforo cannot show that UBS knew prior to January 8, 2013, that she had “lost or mislaid” the notebook, since she never had made any demand for its return despite having sought the return of other personal items. There also has been no showing that UBS had any intent to deprive her of her property. Indeed, UBS’s inclusion of a copy of the notebook in its first document production and return of the notebook itself to Niceforo immediately after she requested it evince precisely the opposite intent.
*434UBS also took “reasonable measures” under the circumstances. By the time UBS discovered the notebook, Nicefo-ro’s counsel had indicated that she was preparing to file suit and had cautioned UBS to “retain all documents relevant to this action in anticipation of such suit.” (Linthorst Decl. Ex. 7 at 3). By turning the notebook over to its counsel, UBS merely was following Niceforo’s directive. Rather than seeking to hide the notebook, UBS then produced a copy as part of its very first document production. And when Niceforo eventually demanded the return of the original, UBS promptly complied. Even if Niceforo believes that UBS should have handled the matter differently, it is clear that UBS’s actions were reasonable. UBS therefore did not commit larceny.
3. Violation of Privacy
Although Niceforo bases her claim that UBS obtained the notebook improperly solely on her conversion and larceny theories, as UBS itself recognizes, there also is a question as to whether its actions violated Niceforo’s privacy interests. (See Def.’s Mem. at 11). UBS asserts that Niceforo had no privacy interest in the notebook on the date of her termination because it was located within her workspace at UBS. In support of this proposition, UBS cites its “Privacy in the Workplace” policy, which warns UBS employees that:
[A]ll materials whether maintained electronically, on paper or in any other hard-copy form that are located in any area within or on the Organization’s premises, including all offices, works-paces, towers and lockers, are regarded as property of the Organization. This includes files that are marked “personal” or “private.”
To the extent that you are conducting personal business on the Organization’s premises or during the workday, you should bear these considerations in mind.
(Linthorst Decl. Ex. 24). Niceforo argues that UBS “cannot hide behind” this policy because such “policy statements should not lightly be converted into binding employment agreements.” (Pl.’s Mem. at 5-6 (citing Martin v. S. Container Corp., 92 A.D.3d 647, 648-49, 938 N.Y.S.2d 335 (2d Dep’t 2012))).
Assuming that the notebook was Nicefo-ro’s personal property, it is clear that Ni-ceforo could not have had a reasonable expectation that the notebook would remain private. Fourth Amendment jurisprudence is instructive in this regard. In the search and seizure context, the Supreme Court has held that employees may have a reasonable expectation of privacy in their work spaces in some circumstances. See O’Connor v. Ortega, 480 U.S. 709, 718-19, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (doctor had reasonable expectation of privacy in desk and file cabinets that he did not share with other employees and used for seventeen years to store personal items). Some work spaces, however, “may be so open to fellow employees or the public that no expectation of privacy is reasonable.” O’Connor, 480 U.S. at 718, 107 S.Ct. 1492. Thus, a file cabinet inside a private office with a door, from which visitors may be excluded, is treated differently than a cubicle in a shared work space, which colleagues and visitors can see and enter into at a moment’s notice. See United States v. Reilly, No. 01 Crim. 1114(RPP), 2002 WL 1163572, at *4 (S.D.N.Y. June 3, 2002) (“The fact that employees may have kept some personal items in their cubicles does not give the defendant a legitimate expectation of privacy in the cubicle.”). Here, Niceforo did not work in a private office, but at a desk *435in an open, shared workspace. (See Lin-thorst Decl. Ex. 27). Indeed, even she describes it as a “cubicle.” (PL’s Reply at 4). Nieeforo therefore could not have had a reasonable expectation of privacy based simply on the configuration of her work space.
Additionally, both public and private “employees’ expectations of privacy in their offices, desks, and file cabinets ... may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” O’Connor, 480 U.S. at 717, 107 S.Ct. 1492. Nieeforo apparently was aware of UBS’s privacy policy. (See Lin-thorst Decl. ¶ 27; Ex. 24). Although she asserts that the policy “should not lightly be converted into [a] binding employment agreement ],” (Pl.’s Mem. at 5-6), UBS does not urge such a transformation. Rather, UBS proffers its policy simply as evidence that Nieeforo could not have had a reasonable expectation that she would retain a privacy interest in a notebook that she brought to UBS’s office and then abandoned there for fifteen months. Nieeforo was on notice that UBS had a policy that even items marked as “personal” in UBS’s offices would be “regarded as property of UBS. For that reason, Nieeforo cannot now argue that she had a reasonable expectation that a work journal left in a desk drawer at UBS would remain private.
In support of her argument that the use. of the notebook should be precluded, Nieeforo relies heavily on Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y.2008), a trade secrets case. There, the plaintiffs accessed three personal email accounts belonging to an allegedly disloyal former employee using the plaintiffs’ on-site work computers. Id. at 552. The employee had not stored any of the contested emails on his work computer prior to his departure, but the plaintiffs utilized the automatically-saved passwords for one such account to access it, and then used passwords found through that means to access the two other accounts. Id. at 552, 559-60. On these facts, the court concluded that the plaintiffs’ actions violated the Secured Communications Act. The court further found that the employee had a reasonable expectation of privacy in his password-protected email accounts, which could only be accessed with his authorization, and that his carelessness in leaving his email account passwords saved in the work computer did not equate to authorization. As the court observed:
If [the employee] had left a key to his house on the front desk at [work], one could not reasonably argue that he was giving consent to whoever found the key, to use it to enter his house and rummage through his belongings. And, to take the analogy a step further, had the person rummaging through the belongings in [the employee’s] house found the key to [his] country house, could that be taken as authorization to search his country house[?] We think not.
Id. at 561. To the extent Pure Power is applicable to the facts of this case, the notebook is analogous to the house key, not the email accounts. Nieeforo left the notebook in a non-private place, where it was available for others to view. It therefore was not unreasonable for UBS to examine it. Furthermore, even if the Court were to assume that Nieeforo had an expectation of privacy in the notebook during her employment at UBS, she forfeited her privacy claim by abandoning the notebook at UBS’ office for fifteen months before making her first demand for its return. See United States v. Torres, 949 F.2d 606, 608 (2d Cir.1991) (“It is well settled that an otherwise legitimate privacy interest may be lost by disclaiming or abandoning property, especially when ac*436tions or statements disavow any expectation of privacy.”).
In sum, Niceforo has not shown wrongdoing on the part of UBS in obtaining the notebook. She also abandoned any privacy claim by failing to act with reasonable dispatch. Accordingly, there is no reason to preclude the use of the notebook.
B. Privilege
1. Attorney-Client Communications
Niceforo also contends that several pages of the notebook reflect privileged attorney-client communications. (Pl.’s Mem. at 8).
The attorney-client privilege applies to “communications [a] between a client and his or her attorney [b] that are intended to be, and in fact were, kept confidential [c] for the purpose of obtaining or providing legal advice.” United States v. Mejia, 655 F.3d 126, 132 (2d Cir.2011). The purpose of the privilege is to “encourage clients to make full disclosure to their attorneys” in order to ensure the quality of subsequent legal advice. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). By shielding attorney-client communications against disclosure, however, the privilege often forecloses parties from obtaining relevant evidence that they otherwise could obtain through discovery. For that reason, the privilege is “narrowly” construed and applied “ ‘only where necessary to achieve its purpose.’ ” In re County of Erie, 473 F.3d 413, 418 (2d Cir.2007) (quoting Fisher, 425 U.S. at 403, 96 S.Ct. 1569). Furthermore, “[t]he burden of establishing the existence of an attorney-client privilege, in all of its elements, rests with the party asserting it.” United States v. Int’l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997).
The only support for Niceforo’s privilege claim is a statement in her memorandum of law that several pages of the notebook “contain! ] attorney-client communications between the plaintiff and her attorney.” (Pl.’s Mem. at 8). Tellingly, Niceforo has not submitted any admissible evidence to support that assertion. For example, there is no affidavit establishing that the notations on the disputed pages actually relate to a conversation between Niceforo and her counsel. Indeed, the only support for Niceforo’s claim is her attorney’s unsworn representation that she “consulted with and hired an attorney when she received the final written warning” on October 12, 2011. (Id.). The notebook entries at issue are dated October 12 and October 14, 2011. (PL’s Ex. K at 26-30). The simple fact that they may have been made around the time that Niceforo claims to have retained counsel, however, does not establish that the notations are, in fact, attorney-client communications.
Furthermore, even if the notations did reflect some conversations between Niceforo and her attorney, there is no basis on which the Court could conclude that they were made “for the purpose of obtaining or providing legal advice.” Mejia, 655 F.3d at 132.
Finally, there is no evidence that Niceforo made a reasonable attempt to keep these statements confidential. As previously discussed, Niceforo was on notice of UBS’s privacy policy. Her decision to record her communications with counsel in a notebook kept in her desk drawer, combined with her failure to seek the notebook’s return for more than a year, destroys any claim that she intended to keep the communications confidential.
Accordingly, Niceforo has failed to establish that any privilege exists as to the contents of the notebook.
*4372. Waiver of Attorney-Client Privilege
Even were the Court to find that some of the contents of the notebook were privileged, Niceforo’s motion still would have to be denied because she has waived any claim of privilege by delaying her attempts to seek the return of the notebook.
A party seeking the protections of the attorney-client privilege must affirmatively act to protect her communications. Hollis v. O’Driscoll, 13 Civ.1955(AJN), 2013 WL 2896860, at *2 (S.D.N.Y. June 11, 2013) (citing In re von Bulow, 828 F.2d 94, 101 (2d Cir.1987) (“[I]t is the client’s responsibility to insure continued confidentiality of his communications.”); In re Horowitz, 482 F.2d 72, 82 (2d Cir.1973) (“It is not ■asking too much to insist that if a client wishes to preserve the privilege ..., he must take some affirmative action to preserve confidentiality.”); Pure Power, 587 F.Supp.2d at 563 (“[A] party who seeks to uphold the privilege must take affirmative measures to maintain the confidentiality of attorney-client communications.”)). Here, Niceforo failed to take any affirmative action to seek the return of her notebook for more than fifteen months after she left it at UBS. She had several opportunities to request its return, including on the day of her termination and in the two letters that her counsel sent to UBS. (See Linthorst Decl. Exs. 7, 10). Niceforo admitted in her deposition that she did not see the notebook among her personal belongings when she returned home from UBS on the day of her termination, and that it was not in the set of belongings that UBS later shipped to her. (See Niceforo Dep. at 238-41). Nevertheless, she did not make any demand for the notebook at that time. Niceforo claims that she failed to make a demand because the “journal wasn’t the highest priority on my list at the time.” (Linthorst Decl. Ex. 3 at 244). Even after UBS furnished a copy of the notebook to her counsel, however, Niceforo waited almost six months to .make any claim regarding the notebook. Even then, when Niceforo finally demanded the notebook’s return, she still did not assert a claim of attorney-client privilege with respect to its contents. It was not until July 23, 2013, when Niceforo’s counsel wrote to the court' that Niceforo mentioned the privilege for the first time. (Linthorst Deck Ex. 21).
When a party “voluntarily undertakes actions that will predictably lead to the disclosure” of privileged communications, “waiver will follow.” Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 479 (S.D.N.Y.1993) (citing In re von Bulow, 828 F.2d at 100-01). Having other more pressing priorities does not excuse such actions. Niceforo voluntarily placed the notebook in UBS’s offices, and then failed to make a demand for its return for fifteen months. Even when she made that demand, she did not assert a claim of privilege for another six months. Through this nearly two-year delay, Niceforo waived any privilege she might otherwise have claimed regarding the contents of the notebook. See, e.g., Fed.R.Evid. 502(b) (inadvertent disclosure does not constitute waiver where privilege-holder “promptly took reasonable steps to rectify the error” (emphasis added)); Clarke v. J.P. Morgan Chase & Co., 08 Civ. 2400(CM)(DF), 2009 WL 970940, at *6 (S.D.N.Y. Apr. 10, 2009) (delay of two months in asserting claim of privilege constitutes a “sufficiently long period of time to warrant a finding of waiver”).
III. Conclusion
For the foregoing reasons, Niceforo’s motion to preclude (12 Civ.’4830, ECF No. 26) is denied. Additionally, because the majority, if not all, of the Linthorst Declaration does not appear to contain any privileged matter, defense counsel is directed *438to file an unredacted copy of it after conferring with opposing counsel.
SO ORDERED.
. "Pl.’s Ex.” refers to the exhibits submitted in connection with the Plaintiff's memorandum of law. (12 Civ. 4830, ECF No. 27).
. At an earlier time, Niceforo suggested that Foglia had removed the notebook from Nice-foro’s handbag when she retrieved the items that Niceforo said she needed to take with her on the day of her termination. (See 12 Civ. 33, ECF Nos. 40 at 3, 42 at 8-9). She appears to have abandoned that claim. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217664/ | MEMORANDUM **
Chris Staudt appeals pro se his guilty plea conviction and 41-month sentence for *378bank fraud, in violation of 18 U.S.C. § 1844. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review for plain error because Staudt did not object to the sufficiency of the indictment or the order of restitution in the district court. United States v. Velasco-Medina, 305 F.3d 839, 846-47 (9th Cir.2002) (indictment); United States v. Boyd, 222 F.3d 47, 49 (9th Cir.2000) (restitution order). We affirm.
Staudt contends that his indictment was defective because it failed to allege the element of “aiding and abetting.” The indictment referenced 18 U.S.C. § 2, however, which satisfies the requirement of placing the defendant on notice of charges against him. See Velasco-Medina, 305 F.3d at 847; United States v. Armstrong, 909 F.2d 1238, 1241 (9th Cir.1990) (“Aiding and abetting is implied in every federal indictment for a substantive offense.”).
Staudt’s contention that he did not knowingly and voluntarily plead guilty is unpersuasive. Prior to accepting Staudt’s plea, the district court engaged in a lengthy colloquy with Staudt to ensure he understood the charges against him and the terms of the plea agreement. Therefore, his plea was knowing and voluntary. See United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir.1996); United States v. Michlin, 34 F.3d 896, 898-99 (9th Cir.1994).
Contrary to Staudt’s contentions, the district court properly ordered restitution in the amount set forth in the plea agreement. See 18 U.S.C. § 3663A(a)(3) (authorizing court to order restitution to the extent agreed to by the parties in a plea agreement); United States v. Grice, 319 F.3d 1174 (9th Cir.2003) (Mandatory Victim’s Restitution Act requires restitution regardless of the defendant’s financial resources or ability to pay); United States v. Boyd, 222 F.3d 47, 50 (9th Cir.2000) (holding that for restitution, losses caused by the entire conspiracy, not just losses caused by those acts committed by the defendant, can be attributed to the defendant).
Staudt’s claims of ineffective assistance of counsel are not suited for resolution on direct appeal. See United States v. Reyes-Platero, 224 F.3d 1112, 1116 (9th Cir.2000)
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217665/ | MEMORANDUM **
California state prisoner John Carroll appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging prison officials violated his Fifth, Sixth, and Fourteenth Amendment rights by classifying him as a sex offender without a hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim, Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.1996), and we vacate and remand.
Carroll alleged that defendants classified him as a sex offender, and the district court dismissed on the ground that being classified as a sex offender does not implicate a liberty interest. Assuming without deciding that this classification does implicate a protected liberty interest, see Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir.1997), we remand for the district court to examine whether Carroll received all of the process he was due, see id. at 831, whether the applicable statute of limitations bars this action, see Silva v. Crain, 169 F.3d 608, 610 (9th Cir.1999), or whether the action is subject to dismissal on some other ground.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217666/ | MEMORANDUM **
Dary Riedlinger appeals pro se from the district court’s judgment dismissing his action seeking to enjoin his ongoing state criminal proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.) (en banc), cert. dismissed, 533 U.S. 966, 122 S.Ct. 4, 150 L.Ed.2d 787 (2001), and we affirm.
The district court properly dismissed Riedlinger’s action because, subject to ex-*380eeptions not applicable here, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), prohibits federal courts from enjoining pending state criminal prosecutions. See Younger, 401 U.S. at 43; Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir.2001) (stating that a federal action must be dismissed pursuant to Younger if the state proceeding (1) is ongoing, (2) implicates important state interests, and (3) provides the plaintiff an adequate opportunity to litigate its federal claims).
Riedlinger’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217713/ | PER CURIAM.
Gaylene R. Partain seeks review of the final decision of the Merit Systems Protection Board (“Board”) affirming the denial by the Office of Personnel Management (“OPM”) of her request to adjust the amount of her former spouse survivor annuity benefit. Partain v. Office of Pers. Mgmt., No. DA0831010713-I-1, 93 M.S.P.R. 305, 2002 WL 31424768 (M.S.P.B. Oct. 23, 2002). We affirm.
I
On February 17, 1994, Gaylene R. Par-tain and Billy J.E. Partain were divorced by an Oklahoma state court decree which specified the share of Billy Partain’s monthly retirement annuity and survivor annuity that Ms. Partain would receive. Billy Partain retired from his position in the United States Postal Service on December 31, 1999, and OPM determined on April 20, 2000, that Ms. Partain’s share of her former husband’s retirement annuity would be $334.05 per month and that she would receive a $184 monthly survivor annuity benefit.
*474On March 12, 2001, and again on June 27, 2001, Ms. Partain obtained Orders Nunc Pro Tunc from the divorce court, which amended the formula for determining her share of her former husband’s retirement annuity and her monthly survivor annuity benefit. Ms. Partain submitted those Orders to OPM, which, pursuant to 5 C.F.R. § 838.225(a), adjusted Ms. Par-tain’s share of her former husband’s monthly retirement annuity. However, OPM denied adjustment of her monthly survivor annuity benefit, and Ms. Partain appealed this denial to the Board.
II
The Administrative Judge assigned to the appeal issued a decision on December 26, 2001, affirming OPM’s reconsideration denial of Ms. Partain’s request to adjust the monthly survivor annuity benefit. The Administrative Judge relied on statute, regulation, and case law to affirm OPM’s decision. Under 5 U.S.C. § 8341(h)(1), a former spouse of a retired annuitant is entitled to a survivor annuity to the extent provided for in a court-approved property settlement agreement, such as the one that accompanied the Partain divorce. 5 U.S.C. § 8341(h)(1) (2000). Section 8341(h)(4), however, provides that a modification of any such court-approved property settlement agreement dealing with a survivor annuity shall not be effective if the modification is made after the employee dies or retires. Id. § 8341(h)(4). By regulation, OPM has provided that a court order issued after an annuitant’s retirement and modifying the first order dividing the marital property is not acceptable for processing. See 5 C.F.R. § 838.806(a) (2002). We have held that both the statute and regulation mean what they say, namely that court orders entered after an employee retires or dies cannot modify the first order entered that specifies the former spouse survivor annuity. See Hokanson v. Office of Pers. Mgmt, 122 F.3d 1043, 1047 (Fed.Cir.1997). The Administrative Judge therefore concluded that, because both Orders Nunc Pro Tunc were issued after Ms. Partain’s former husband retired, they were not effective to change the 1994 order that first determined her share of the survivor annuity.
In addition, the Administrative Judge addressed and decided Ms. Partain’s argument that she had been prejudiced by the failure of OPM to comply with the requirements of 5 C.F.R. § 838.722(a). Section 838.722(a) provides that when OPM receives a court order awarding a former spouse survivor annuity of a retired annuitant, it will, among other things, specify the amount of the survivor annuity the former spouse would receive if the retiree would die immediately. 5 C.F.R. § 838.722(a) (2002). In 1995, OPM notified Ms. Partain of the formula that would be used to calculate her benefits but did not calculate the amount she would receive for a former spouse survivor annuity. Because Billy Partain was not retired in 1995, when OPM informed Ms. Partain of the formula to be used, section 838.722(a) did not require it to specify the amount of the survivor annuity that Ms. Partain would receive were Mr. Partain to have died immediately thereafter. Thus, the Administrative Judge rejected Ms. Partain’s argument that OPM violated its regulation.
When the full board denied Ms. Par-tain’s petition for review, the decision of the Administrative Judge became the final decision of the Board. Ms. Partain timely sought review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Ill
We may only disturb the final decision of the Board if we determine that it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 7703(c) (2000).
*475Ms. Partain does not challenge the law applied by OPM and the Board that refuses to accept the effect of a state court order relating to a former spouse survivor annuity that is entered after the retirement of the annuitant. She does argue again that she was prejudiced by the failure of OPM to comply with the notice requirements of 5 C.F.R. § 838.722(a). For the reasons stated by the Board, we agree that the regulation does not apply to this case because Billy Partain was not retired at the time OPM communicated with Ms. Partain regarding the formula to be used in calculating her former spouse survivor annuity benefits.
There are no facts in dispute in this case. The only question is whether OPM erred in refusing to alter the former spouse survivor annuity payment to which Ms. Partain is entitled under the terms of the divorce decree. We perceive no error in law in the final decision of the Board, which we therefore affirm. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217669/ | MEMORANDUM **
Sergio Raya-Baez, a native and citizen of Mexico, appeals the district court’s judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we review de novo. Angulo-Dominguez v. Ashcroft, 290 F.3d 1147, 1149 (9th Cir.2002). We affirm.
Raya-Baez challenges the decision of the Immigration and Naturalization Service (“INS”) to reinstate his prior order of deportation under 8 U.S.C. § 1231(a)(5). However, Raya-Baez entered into a plea agreement with the government in his illegal reentry case under 8 U.S.C. § 1326(a), which expressly agreed to the reinstatement of the prior deportation order, and waived his right to contest the reinstatement. Accordingly, the district court correctly found that Raya-Baez’s petition is barred by the express terms of his plea agreement. See, e.g., United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996) (holding that a waiver of the right to appeal will be upheld if it is knowing and voluntary).
We reject Raya-Baez’s contention that counsel in his section 1326 proceeding was ineffective because Raya-Baez cannot show prejudice. See id. at 844 (noting that a defendant must show that he was prejudiced by counsel’s actions); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002) (stating that the elimination of 212(c) relief was not impermissibly retroactive where defendant was convicted after a jury trial).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217670/ | *383MEMORANDUM **
John D. Bumphus appeals pro se the district court’s judgment dismissing his civil rights action, which alleged racial discrimination in housing. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Gilligan v. Jamco, 108 F.3d 246, 248 (9th Cir.1997), and we affirm.
The district court properly dismissed Bumphus’s Fair Housing Act (“FHA”) claim because Bumphus failed to allege a discriminatory housing practice. See 42 U.S.C. §§ 3604, 3605, 3606 & 3617; cf. Gilligan, 108 F.3d at 250 (requiring complaint to allege statutory elements of an FHA claim to state adequate claim for relief).
The district court properly dismissed Bumphus’s claim, which alleged a conspiracy that resulted in his illegal eviction, because the claim effectively seeks review of a final, state court decision. See Fontana Empire Center, LLC v. City of Fontana, 307 F.3d 987, 992 (9th Cir.2002) (federal district courts lack jurisdiction to review final, state court judgments).
Bumphus’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217671/ | MEMORANDUM ***
Joseph D. Pinella appeals pro se the district court’s judgment dismissing as time-barred his action alleging his former criminal defense attorney took possession of his property and refused to return it. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals on statute of limitations grounds, Johnson v. California, 207 F.3d 650, 653 (9th Cir.2000) (per curiam), and we affirm.
The retainer agreement between Pinella and defendant Bronson did not cover the entrustment of the property for safekeeping, and so the applicable statute of limita*384tions period is three years.1 See Long v. Buckley, 129 Ariz. 141, 629 P.2d 557, 562 (Ariz.Ct.App.1981); Ariz.Rev.Stat. § 12-543. The statute of limitations period began to run in 1994, when Pinella filed a complaint against Bronson with the District Ethics Committee for the State of New Jersey. Pinella did not file his complaint in district court until September 2, 1999. Accordingly, the district court properly dismissed Pinella’s action as time-barred.
We decline to consider Pinella’s contention regarding equitable tolling because he failed to present this argument to the district court. See Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir.1995).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. The district court also properly held that Pinella’s tort claims were time-barred. See Ariz.Rev.Stat. § 12-543 (three years for fraud claims) and Taylor v. State Farm Mut. Ins. Co., 185 Ariz. 174, 913 P.2d 1092, 1095 (Ariz.Ct.App.1996) (two years for implied covenant of good faith and fair dealing). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217672/ | MEMORANDUM **
Jesus Rosales-Ceja appeals the denial of his 28 U.S.C. § 2255 motion to vacate his 292-month sentence for possession of methamphetamine with intent to distribute and conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rosales-Ceja argues that his sentence is unlawful under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm because “the new rule of criminal procedure announced in Ap-prendi does not apply retroactively on initial collateral review[.]” United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir.2002). Accordingly, Rosales-Ceja’s request for oral argument is denied.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217673/ | MEMORANDUM **
Nicholas Kadjevich appeals the Bankruptcy Appellate Panel’s (“BAP”) dismissal of his appeal from an order of the bankruptcy court denying Kadjevieh’s opposition to the Trustee’s application for compensation and reimbursement. We have jurisdiction pursuant to 42 U.S.C. § 158(d), and we affirm.
We review decisions of the BAP de novo and independently review the bankruptcy court’s rulings. Mitchell v. Franchise Tax Bd., State of Cal. (In re Mitchell), 209 F.3d 1111, 1115 (9th Cir.2000). A prior panel has already held that Kadjevich’s claim against the bankruptcy estate is not enti-tied to administrative expense priority, see In re Kadjevich, 220 F.3d 1016 (9th Cir.2000), and we will not reconsider that issue here. See Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir.1996) (stating that under the law of the case doctrine, decisions of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case).
We deny Appellees’ request to declare Kadjevich as a vexatious litigant, and their request for monetary sanctions.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217674/ | MEMORANDUM **
Gary A. Hall appeals pro se the district court’s summary judgment in favor of Raytheon on his Title VII and Americans With Disabilities Act (“ADA”) claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Henderson v. City of Simi Valley, 805 F.3d 1052, 1055 (9th Cir.2002), and we affirm.
The district court properly granted summary judgment on Hall’s retaliation claim under Title VTI because Hall failed to raise a genuine issue of material fact as to whether there was a causal link between his termination and an interview he gave to the EEOC on behalf of another employee five years earlier, see Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064-65 (9th Cir.2002), or that his termination was otherwise pretextual, see Bradley v. Harcourt Brace & Co., 104 F.3d 267, 270 (9th Cir.1996).
The district court properly granted summary judgment on Hall’s ADA claim because Hall failed to raise a genuine issue of material fact as to whether he was terminated due to a disability rather than for falsely reporting TOW missile calibrations. See 42 U.S.C. § 12112(a); Mustafa v. Clark Co. Sch. Dist., 157 F.3d 1169, 1175-76 (9th Cir.1998).
The district court properly denied Hall’s Fed.R.CivP. 56(f) motion to extend the time for discovery. See Margolis v. Ryan, 140 F.3d 850, 858 (9th Cir.1998).
We decline to consider issues raised for the first time on appeal. See Barcamerica Int'l. USA Trust v. Tyfield Importerers, Inc., 289 F.3d 589, 595 n. 6 (9th Cir.2002).
We deny all pending motions.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217675/ | MEMORANDUM **
Nevada state prisoner Alfred Ramaz Fultcher appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we affirm.
Fultcher’s federal petition was filed more than a year after his state court conviction became final, and thus it is time-barred unless some form of tolling applies. See 28 U.S.C. § 2244(d)(1). Fultcher contends that he is actually innocent and that actual innocence is an exception to the one-year statute of limitations. We have not decided whether actual innocence is an exception in such circumstances. See Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir.2002) (declining to decide the issue). We need not reach the issue in this case. Even if the exception applied, Fultcher has not established that he is actually innocent, because he has proffered no new evidence indicating that the knife he used was, in fact, not inherently dangerous. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (stating that to establish actual innocence, a prisoner must show that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him”) (internal quotation marks omitted).
Thus, the district court properly dismissed Fultcher’s petition.1
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We deny Fultcher’s motion to broaden the certificate of appealability, as well as all other pending motions. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217676/ | MEMORANDUM **
In these consolidated appeals, Felix Gutierrez-Lopez appeals the 26-month sen*388tence imposed following his guilty plea conviction for unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326, and the 11-month sentence imposed for violating the terms of his release. We affirm in part, and dismiss in part based on lack of jurisdiction.
Gutierrez-Lopez argues that he should not have been sentenced pursuant to 8 U.S.C. § 1326(b)(2) (enhancing the penalty for aliens whose “removal was subsequent to a conviction for commission of an aggravated felony”) because his removal was accomplished through the reinstatement of a prior removal order. We recently rejected this argument in United States v. Luna-Madellaga, 315 F.3d 1224, 1225-26 (9th Cir.2003) (“That the 1999 removal order was accomplished by reinstatement of his 1995 removal order is of no consequence. Therefore, he is subject to the enhanced penalty prescribed by § 1326(b)(2)[.]”).
Gutierrez-Lopez next challenges the district court’s decision not to grant him a downward departure from the Sentencing Guidelines for “savings to the government.” The district court recognized that it had the power to depart but declined to do so. In these circumstances, we do not have jurisdiction to review this claim. United States v. Wetchie, 207 F.3d 632, 636 (9th Cir.2000) (“[A] discretionary refusal to depart downward is not reviewable in this court.”).
Finally, Gutierrez-Lopez argues that his sentence for violating the terms of his supervised release should not run consecutive to his sentence for unlawfully entering the country. We disagree. The district court had ample grounds for imposing consecutive rather than concurrent sentences. United States v. Steffen, 251 F.3d 1273, 1277-78 (9th Cir.2001); 18 U.S.C. § 3553.
AFFIRMED in part and DISMISSED in part.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217677/ | MEMORANDUM**
Angelica Maria Urias-Salazar appeals the 46-month sentence imposed following her guilty-plea conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a), and conspiracy to import cocaine in violation of 21 U.S.C. § 963 and 952(a). We dismiss for lack of jurisdiction.
Urias-Salazar contends the district court applied an incorrect legal standard *389when it denied her request for a downward departure under U.S.S.G. § 5K2.13, based on her reduced mental capacity. The record does not support Urias-Sala-zar’s contention. The sentencing transcript indicates that the district court expressly referred to the applicable sentencing guideline after considering extensive testimony and argument regarding Urias-Salazar’s mental and emotional state, and concluded that there was not sufficient evidence to support a mental capacity departure. In such cases, we lack jurisdiction to review the district court’s discretionary refusal to grant a defendant’s request for departure. See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217678/ | MEMORANDUM**
Vincent Peter Camacho appeals from the revocation and extension of supervised release following positive drug tests. We have jurisdiction under 28 U.S.C. § 1291. We review for plain error Camacho’s ex post facto challenge to the application of the supervised release statute because he sufficiently raised it for the first time on appeal, United States v. Romero-Avila, 210 F.3d 1017, 1021-22 (9th Cir.2000), and we affirm.
Camacho contends that the district court applied the wrong subsection and wrong version of 18 U.S.C. § 3583. Because the statute in effect at the time of Camacho’s offense authorized the sentence imposed, see Johnson v. United States, 529 U.S. 694, 712, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), there was no ex post facto violation.
The district court did not plainly err by declining to treat Camacho’s violations as drug possessions. See United States v. Baclaan, 948 F.2d 628, 630 (9th Cir.1991). It was therefore not obligated to impose a longer term of incarceration as sought by Camacho on appeal.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224391/ | OPINION & ORDER
DENISE COTE, District Judge:
FindTheBest.com, Inc. (“FTB”) filed this action on September 16, 2013, against *454Lumen View Technology LLC, (“Lumen”), Dalton Sentry, LLC, DecisionSorter, LLC, Hillcrest Group, Inc., Eileen C. Shapiro (“Shapiro”), and Steven J. Mintz (“Mintz”) (collectively “the Defendants”), asserting violations of the Racketeer Influenced and Corrupt Organizations -Act, 18 U.S.C. § 1961 et seq. (“RICO”), and various state laws. FTB asserts that the Defendants made baseless claims of patent infringement to extort licensing fees from FTB and others.
FTB filed a first amended complaint (“FAC”) on November 22, 2013. The Defendants have moved to dismiss that complaint. For the following reasons, the Defendants’ motions to dismiss the RICO claims are granted. The Court declines to exercise supplemental jurisdiction over the state law claims.
BACKGROUND
The FAC pleads six claims or “counts.” The core of each of these claims is that Lumen filed frivolous lawsuits in bad faith to extort money from FTB and others. The first two counts are brought pursuant to the RICO statute, 18 U.S.C. §§ 1961, 1962(c) & (d), and assert a substantive violation of the statute and a RICO conspiracy. The predicate acts for these two counts arise from the central assertion that the Defendants filed frivolous patent infringement lawsuits against various businesses and demanded nuisance settlements. The predicate acts are conclusorily identified as acts of mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343, respectively; a scheme to extort, in violation of both the Hobbs Act, 18 U.S.C. § 1951(a), and California State Penal Law § 518 et seq.; and a violation of the Travel Act, 18 U.S.C. § 1952. The two RICO counts incorporate the allegations made throughout the FAC; they do not separately enumerate specific predicate acts.
The remaining four counts assert state law claims, including extortion by commencing frivolous patent infringement actions without probable cause and without a good faith investigation; abuse of process through the filing of litigation based on a vague patent in order to extort money; and two violations of California Business & Professions Code § 17200. The two violations of the California statute assert first, participation in a civil conspiracy by means of threats, abuse of process and extortion, and second, the conduct of fraudulent business practices, which required FTB to devote significant time and resources to defend itself against frivolous and false claims.
The FAC alleges that the Defendants filed more than twenty patent infringement lawsuits in the eighteen months following the formation of Lumen on February 23, 2012. Lumen is a Delaware company formed by Shapiro and Mintz. Like DecisionSorter and the Hillcrest Group, Lumen appears to be a shell company created for litigation purposes. It has no business operations; it is a nonpracticing entity. Instead of conducting research, it acquires patents in order to file patent infringement lawsuits.
Lumen became the exclusive licensee of patent 8,069,073 (“'073 Patent”) on March 1, 2012, which was approximately a week after Lumen was formed. The '073 Patent was issued on November 29, 2011, for a “System and Method For Facilitating Bilateral And Multilateral Decision-Making.” Lumen filed its first patent infringement lawsuit asserting infringement of the '073 Patent on March 9, 2012. The FAC asserts that the Defendants were aware that the parties named as defendants in the lawsuits filed by Lumen were not infringing the '073 Patent.
The FAC describes a pattern that the Defendants employed in bringing their *455lawsuits. The Defendants use form complaints that make nearly identical accusations and conduct no investigation into the services offered by those they sue. The Defendants serve a letter with the complaint that informs those named in their lawsuits that they may avoid the cost of litigation by paying a licensing fee to Lumen. The letter threatens that Lumen will increase its settlement demands if the litigation progresses. If those they have sued seek to defend themselves, Lumen threatens to contact their customers and to escalate its settlement fee demands. The Defendants use their shell companies to avoid complying with discovery requests.
According to the FAC, the Defendants do not actually want to litigate their patent infringement claims and do not want an injunction to stop any allegedly infringing conduct. If someone is unable to pay a licensing fee, Lumen will voluntarily dismiss its lawsuit.
On May 30, 2013, Lumen sent a letter to FTB, enclosing the complaint that Lumen had filed against FTB in this district. It invited FTB to contact Lumen to discuss “license” terms if it wanted to avoid the need to file a responsive pleading. The letter threatened full-scale litigation, motion practice, and protracted discovery if FTB chose to defend itself in the litigation. Lumen explained that its settlement demands would increase over the course of any litigation. It demanded that FTB preserve not just accessible, but also inaccessible, electronically stored information, including information unrelated to the lawsuit. It recommended confiscating electronic devices of employees with significant knowledge of FTB’s products.
When FTB’s CEO contacted Lumen’s attorney, the attorney was unable to explain the basis for any claim of infringement. The CEO called Shapiro, a co-inventor of the '073 Patent. Thereafter, Lumen’s attorney accused FTB’s CEO of calling Shapiro a “patent troll,” and stated that use of the term “patent troll” constituted a hate crime in the Ninth Circuit. Lumen’s attorney explained that the offer of a licensing fee was only good until the close of business that day. The FAC describes as well Lumen’s alleged abuse of the discovery process in the lawsuit Lumen filed against FTB in this district.
Lumen’s patent infringement lawsuit against FTB was dismissed by Opinion and Order of this Court of November 22, 2013. Lumen View Tech. LLC v. Findthebest.com, Inc., 984 F.Supp.2d 189, 13 CIV. 3599(DLC), 2013 WL 6164341 (S.D.N.Y. Nov. 22, 2013). This Court held that the '073 Patent claimed an abstract idea, which was patent ineligible subject matter under the codified Patent Act, 35 U.S.C. § 101. Id. at 205, 2013 WL 6164341 at *16.
The Defendants moved to dismiss the original complaint in this action by motions of October 29 and 31, 2013. FTB was given an opportunity to either amend complaint or oppose the motions to dismiss. On November 22, FTB filed the FAC. On December 16, 2013, Lumen moved to dismiss the FAC. Shapiro, Mintz, DecisionSorter, and Hillcrest filed a separate joint motion to dismiss on December 23. And Dalton Sentry filed a motion to dismiss, also on December 23, which adopted in full the arguments in the latter motion. On January 20, 2014, FTB filed a consolidated opposition. The motions to dismiss were fully submitted on January 28.
DISCUSSION
The Defendants have moved to dismiss the FAC in its entirety. They have argued that their right to bring patent infringement litigation is protected by the Noerr-Pennington doctrine unless their *456lawsuits are a sham, and that the FAC does not plausibly allege that those lawsuits are a sham. See Globetrotter Software, Inc. v. Elan Computer Grp., Inc., 362 F.3d 1367, 1377 (Fed.Cir.2004). They contend, as well, that the FAC does not adequately plead a RICO claim. Finally, they argue that the Court should not exercise supplemental jurisdiction over the state law claims. Because the FAC does not plead a RICO violation, and the Court declines to exercise supplemental jurisdiction over state law claims, it is unnecessary to reach the argument made under the Noerr-Pennington doctrine.
When deciding a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P., the court must “accept all allegations in the complaint as true and draw all inferences in the non-moving party’s favor.” LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). A complaint must do more, however, than offer “naked assertions devoid of further factual enhancement.” Id. (citation omitted).
Where fraud is alleged as a component of a RICO predicate act, Rule 9(b), Fed. Civ. P., imposes a heightened pleading standard. “In the RICO context, Rule 9(b) calls for the complaint to specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements.” Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir.1999) (citation omitted). “In addition, the plaintiffs must allege facts that give rise to a strong inference of fraudulent intent.” Id. (citation omitted).
I. RICO
RICO provides a private cause of action for “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c). The RICO provisions upon which FTB predicates its complaint are 18 U.S.C. § 1962(c), and 18 U.S.C. § 1962(d).
To state a viable RICO claim pursuant to 18 U.S.C. § 1962(c), a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). An “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “Racketeering” is defined to include a variety of activities. The definition enumerates a number of federal statutory offenses, including three alleged here: extortion under the Hobbs Act, 18 U.S.C. § 1951, mail fraud under 18 U.S.C. § 1341, and wire fraud under 18 U.S.C.' § 1343. See 18 U.S.C. § 1961(1). It also defines as racketeering activity, as relevant here, “any act or threat involving [inter alia ] ... extortion ... which is chargeable under State law and punishable by imprisonment for more than one year.” Id. A “pattern” of racketeering activity is defined as “at least two acts of racketeering activity.” 18 U.S.C. § 1961(5). To state a claim under 18 U.S.C. § 1962(d), a plaintiff must allege a conspiracy to commit a substantive RICO violation pursuant to 18 U.S.C. § 1962(a), (b), or (c). See 18 U.S.C. § 1962(d).
The Defendants argue that the FAC fails to plead a RICO violation because, inter alia, it fails to allege fraud with *457particularity, fails to allege a pattern of racketeering activity with the requisite continuity, fails to allege any cognizable RICO injury, it fails to allege reliance on any fraudulent statement, and the filing of meritless litigation is not a RICO predicate act. The following discussion of each category of RICO predicates addresses three of these issues.
A. Hobbs Act Extortion
The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951. FTB alleges that the Defendants filed frivolous lawsuits with the wrongful intent and effect of causing fear of economic loss. Because the instigation of meritless litigation cannot constitute extortion under the Hobbs Act, any predicate acts premised on the Hobbs Act are stricken.
The courts of appeals which have addressed the question have all agreed that the instigation of meritless litigation does not establish the predicate RICO act of extortion. See Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir.2003) (“[w]e join a multitude of other courts in holding that meritless litigation is not extortion under § 1951”); United States v. Pendergraft, 297 F.3d 1198, 1205-08 (11th Cir.2002); Vemco, Inc. v. Camardella, 23 F.3d 129, 134 (6th Cir.1994); First Pac. Bancorp, Inc. v. Bro, 847 F.2d 542, 547 (9th Cir.1988); I.S. Joseph Co., Inc. v. J. Lauritzen A/S, 751 F.2d 265, 267-68 (8th Cir.1984). While the Second Circuit has not yet addressed the question, district courts in this circuit have held that the filing of meritless litigation, or even malicious prosecution, is not a predicate RICO act. See G-I Holdings, Inc. v. Baron & Budd, 179 F.Supp.2d 233, 259 (S.D.N.Y.2001); Nakahara v. Bal, 97 CIV. 2027(DLC), 1998 WL 35123, at *8 (S.D.N.Y. Jan. 30, 1998); von Bulow by Auersperg v. von Bulow, 657 F.Supp. 1134, 1143 (S.D.N.Y.1987).
There áre sound policy reasons against recognizing the instigation of meritless litigation as a RICO predicate act. Recognizing such litigation as a predicate RICO act would give complainants unprecedented access to federal courts and the treble damage remedy authorized under RICO. Such a significant extension of RICO’s reach is best made, if at all, by Congress. Moreover, allowing these suits to proceed as RICO suits risks chilling parties’ resort to the judicial system to resolve their disputes. See Deck, 349 F.3d at 1258.
The authority cited by FTB for the proposition that the instigation of meritless litigation can constitute the predicate RICO act of extortion under the Hobbs Act is inapposite. FTB’s sole Second Circuit authority for this proposition is United States v. Abelis, 146 F.3d 73 (2d Cir.1998), which states that the wrongful use of fear under RICO does not require “implicit or explicit threats, but instead leaves open the cause of the fear.” Id. at 83. In Abelis, Russian criminal groups had attempted to extort the payment of millions of dollars. Id. at 76. The case is silent on the question of whether the instigation of meritless litigation can constitute the predicate act of extortion. It does not call into question the well-established caselaw to the contrary.
FTB also relies on Chevron Corp. v. Donziger, 871 F.Supp.2d 229 (S.D.N.Y.2012), where the court held that a complaint alleging a wide ranging multi-facet-ed extortionate scheme that included malicious litigation pled extortion under the Hobbs Act. But the facts of the extortionate scheme in that case went far beyond the filing of meritless litigation. Id. at *458249. The Chevron case involved intimidation of judges, fabrication of evidence, and bringing false criminal charges. Id. None of those elements are present here. Moreover, the Chevron court expressly distinguished the facts of its case from cases in which only malicious or meritless litigation was at issue, stating that while “frivolous litigation and defamatory statements are not alone sufficient to constitute extortion ... Chevron’s amended complaint goes far beyond that.” Id.
FTB’s Hobbs Act claim is not saved by its contention that Lumen’s attorney threatened FTB’s CEO with criminal charges for calling Shapiro a “patent troll.” Even if this allegation were sufficient to constitute a plausible claim of extortion under the Hobbs Act, FTB does not explain how a threat to pursue criminal charges for using the term “patent troll” constitutes an integral part of the Defendants’ alleged pattern of racketeering activity, which is centered on filing meritless litigation. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (“to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.”). FTB has not alleged that Lumen has made a practice of baiting defendants into using the term patent troll and then threatening them with criminal prosecution absent a settlement.
B. Mail Fraud & Wire Fraud
FTB also grounds its RICO claims on the predicate acts of mail fraud and wire fraud. Mail fraud occurs when a person “having devised or intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose of executing such scheme or artifice or attempting so to do.” 18 U.S.C. § 1341. Wire fraud occurs when a person “having devised or intending to devise any scheme or artifice to defraud,” “transmit[s] by means of wire, radio, or television communication ... any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.” 18 U.S.C. § 1343.
To constitute a RICO predicate act, a pleading of wire fraud or mail fraud must plausibly allege reliance on the misrepresentations at issue. Because a plaintiff must show that he is “injured in his business or property by reason of” a pattern of mail or wire fraud, reliance is an essential part of demonstrating causation between a defendant’s misrepresentations and the plaintiffs injury. 18 U.S.C. § 1964(c) (emphasis added).
To show injury by reason of a RICO violation, a plaintiff must demonstrate that the violation caused his injury in two senses. First, he must show that the RICO violation was the proximate cause of his injury, meaning there was a direct relationship between the plaintiffs injury and the defendant’s injurious conduct. Second, he must show that the RICO violation was the but-for (or transactional) cause of his injury, meaning that but for the RICO violation, he would not have been injured.
UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 132 (2d Cir.2010) (citation omitted). “[I]njury must be caused by a pattern of racketeering activity violating section 1962 or by individual RICO predicate acts.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.1990) (citation omitted). In the context of the predicate acts of mail and wire fraud, “proof of misrepresentation-even widespread and uniform misrepresentation-only satisfies half of the equation ... because plaintiffs must also demonstrate reliance on a defendant’s ... misrepresentation to establish causation under RICO.” *459In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 119 (2d Cir.2013) (citation omitted). “In most cases, the plaintiff will not be able to establish even but-for causation if no one relied on the misrepresentation .... In addition, the complete absence of reliance may prevent the plaintiff from establishing proximate cause.” Phoenix Bond & Indem. Co., 553 U.S. at 658-59, 128 S.Ct. 2131.
FTB’s complaint does not plausibly allege reliance on any of the Defendants’ misrepresentations. FTB has not pled that it took any actions in reliance on any of the Defendants’ purportedly false statements. To the contrary, FTB disputed from the outset that it was infringing the '073 Patent, and successfully litigated a motion to invalidate it. Moreover, FTB had no reason to rely on any of the Defendants’ representations in evaluating whether they were infringing the patent.
FTB states in one conclusory paragraph in the FAC that “[t]he Defendants’ false and misleading statements were relied on by FTB and have caused FTB substantial damages.” But this bare allegation is insufficient under either Rule 8 or Rule 9(b), Fed. Civ. P., to survive a motion to dismiss. A court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Whether FTB relied on any of the Defendants’ misrepresentations is information known to FTB, and there is no reason to accept FTB’s naked assertion.
Because FTB has not plausibly pled reliance on the Defendants’ alleged misrepresentations and its injury, it has not shown that its injuries were caused proximately by the RICO predicate acts of mail and wire fraud. Therefore, its RICO claims predicated on wire fraud and mail fraud fail.
FTB’s relies on Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir.1994), to argue that its injuries were proximately caused by the Defendants’ alleged mail and wire fraud. That argument is unavailing. The plaintiff in Horowitz provided maintenance and repair services for ■New York City school buildings. When it refused to pay kickbacks that had been solicited by the defendants in connection with building maintenance and repair contracts, payment due under ongoing contracts was withheld and the plaintiff was not awarded other contract work. These retaliatory acts were “foreseen and anticipated” results from the plaintiffs refusal to succumb to the attempted extortion. Id. at 1346. The court reasoned that these injuries were proximately caused by the conspiracy to extort, given that the retaliatory acts were in furtherance of that conspiracy. Id. Here, however, FTB has not adequately pled the predicate acts of mail and wire fraud. FTB’s injuries cannot have been proximately caused by predicate RICO violations that did not occur.
FTB’s contention that Phoenix Bond & Indem. Co., stands for the proposition that it does not have to show reliance on the alleged misrepresentations to sustain a mail or wire fraud claim is incorrect. 553 U.S. at 658-59, 128 S.Ct. 2131. In Phoenix Bond, the Supreme Court held that a third party’s reliance on a defendant’s fraudulent representation can suffice to establish the requisite causation between that representation and a first party’s injury. See id. at 648, 128 S.Ct. 2131. The Court cautioned that “none, of this is to say that a RICO plaintiff who alleges injury ‘by reason of a pattern of mail fraud can prevail without showing that someone relied on the Defendant’s misrepresentations.” Id. at 658, 128 S.Ct. 2131. Here, FTB has not shown that any party’s reliance on Lumen’s alleged misrepresentations caused it injury.
*460The Defendants also contend that litigation activities cannot support claims of mail fraud and wire fraud as predicate acts under RICO. FTB does not respond to this assertion. But courts have consistently refused to recognize as wire or mail fraud even litigation activities that rise to the level of malicious prosecution simply because the mail or wires were used. See, e.g., Curtis & Associates, P.C. v. Law Offices of David M. Bushman, Esq., 758 F.Supp.2d 153, 172 (E.D.N.Y.2010); Bal, 1998 WL 35123, at *8; von Bulow, 657 F.Supp. at 1143. This provides an additional reason to dismiss the RICO claims in the FAC.
C. Travel Act
FTB also alleges that the Defendants’ conduct violates the Travel Act, 18 U.S.C. § 1952. The Travel Act makes it a crime to travel between states with the intent to commit specified crimes listed in the statute, or to use the mail to commit those crimes. See 18 U.S.C. § 1952(a). The crimes which FTB alleges the Defendants committed in violation of the Travel Act mirror the extortion, mail fraud, and wire fraud claims addressed above. Because FTB has failed to state a claim for a violation of those predicate acts, FTB’s Travel Act claim fails as well.
D. Extortion Under California Law
Finally, FTB pleads extortion in violation of California State Penal Law §§ 518 et seq. as a predicate RICO act. That statute defines extortion as “the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” CaLPenal Code § 518. Threats sufficient to induce “fear,” include, inter alia, threats “[t]o do an unlawful injury to the person or property of the individual threatened or of a third person.” Id. The Defendants concede that a threat of litigation can constitute an “unlawful injury to ... property” under California law if it is objectively baseless. See In re Nichols, 82 Cal.App. 73, 76, 255 P. 244 (1927); see also Sosa v. DIRECTV, Inc., 437 F.3d 923, 940 (9th Cir.2006) (“extortion predicated on threat to sue requires allegation that threatened suit was objectively baseless” (citation omitted)).
It is unnecessary to determine whether the FAC has adequately pleaded that the Defendants’ patent infringement lawsuit against FTB was “objectively baseless,” or otherwise constituted extortion under California law, because FTB has not plausibly pled that California law applies to any of the other allegedly extortionate lawsuits cited in FTB’s FAC. A RICO action requires a “pattern” of racketeering activity. 18 U.S.C.1962(c); see Sedima, 473 U.S. 479, 497, 105 S.Ct. 3275 (1985) (“two acts are necessary,” though not necessarily sufficient, to “form a pattern” under RICO). As described above, none of FTB’s federal law claims state a claim for a predicate RICO act. As a result, FTB’s RICO claim fails even if it states a single claim for extortion under California law.
There is an additional hurdle that prevents FTB from relying on the California extortion statute to plead a RICO claim. The very policy reasons that have led courts to dismiss RICO claims premised on an abuse of process, whether the predicate acts are pleaded as violations of the Hobbs Act or of the federal mail and wire fraud statutes, have as much force when those predicate acts invoke state extortion statutes. As observed by the Tenth Circuit, “litigation can induce fear in a defendant; and it would be fair, ... to characterize as wrongful the filing of a groundless lawsuit.” Deck, 349 F.3d at 1258 (citation omitted). Nonetheless, *461“recognizing abusive litigation as a form of extortion would subject almost any unsuccessful lawsuit to a colorable extortion ... claim.” Id. (addressing Hobbs Act predicate for RICO claim). Consequently, for this reason as well, the RICO claim fails.
II. Conspiracy to Violate the RICO Statute
FTB’s FAC also contains a count of conspiracy to violate RICO, in violation of 18 U.S.C. § 1962(d). FTB’s conspiracy claim is predicated on the wire fraud, mail fraud, and extortion theories described above. Because FTB has not adequately pled a RICO claim under those theories, FTB’s conspiracy claim fails as well.
III. Supplemental Jurisdiction
FTB also pleads four state law tort claims. A federal district court’s supplemental jurisdiction over state law claims is governed by 28 U.S.C. § 1367. Under that provision, a district court “may decline to exercise supplemental jurisdiction' over a claim” if, inter alia, “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “In deciding whether to exercise jurisdiction over supplemental state law claims, district courts should balance the values of judicial economy, convenience, fairness, and comity — the ‘Cohill factors.’” Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir.2006) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). “It is well settled that where ... the federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims.” Klein & Co. Futures, 464 F.3d at 262.
It is well to recall that in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendant jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.2013).
The federal claims having been dismissed, this Court declines to exercise supplemental jurisdiction over FTB’s state law claims. This litigation is at an early stage; discovery has not yet commenced, and principles of judicial economy do not counsel in favor of the exercise of jurisdiction. FTB is a California company and there is no reason why convenience favors resolution of its state law claims in New York federal court. And issues of fairness and comity do not weigh in either direction.
' IV. Leave to Amend
In a footnote, FTB seeks leave to amend to include additional facts supporting its claims in the event that the Court finds the FAC deficient in some manner. Rule 15(a)(2), Fed.R.Civ.P., provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave” and instructs that “[t]he court should freely give leave when justice so requires.” “[I]t is within the sound discretion of the district court to grant or deny leave to amend.” Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.2009) (citation omitted). A motion for leave to amend may be denied for “good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.2009) (citation omitted). In particular, “[wjhere it appears that granting leave to *462amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend.” Lucente v. Int’l Bus. Mack Corp., 310 F.3d 243, 258 (2d Cir.2002) (citation omitted).
FTB’s request to amend is denied. FTB has already amended its complaint once in response to the prior motions to dismiss. It does not explain how a further amendment would be productive. It does not identify what additional facts it would like to add or supply a proposed amended pleading. Moreover, the core theory of the complaint is deficient from a legal perspective and FTB has made no effort to explain how any amendment could cure that defect.
CONCLUSION
The Defendants’ December 16 and December 23 motions to dismiss are granted. The Clerk of Court shall close the case.
SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224392/ | MEMORANDUM DECISION AND ORDER
FRANK MAAS, United States Magistrate Judge.
This personal injury action was removed to this Court from Supreme Court, Bronx County, on May 15, 2012. The defendants did not file a jury demand until 588 days later. In the absence of any rationale for their delay other than mere inadvertence, I found that the defendants had waived their right to a jury trial. The case then was tried before me on January 8, 9, and 13, 2014. I have considered the evidence at that trial, as well as the parties’ post-trial submissions. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, I now make the following findings of fact and conclusions of law with respect to the issues of liability and damages.
I. Liability
A. Findings of Fact
On the evening of March 6, 2010, plaintiff Alvin Peralta (“Peralta”) was driving his 1992 Honda Accord on Eldridge Street on the lower east side of Manhattan. His friend Melvin Sanchez was in the front passenger seat of the car.
As Peralta approached the intersection of Eldridge and Rivington Street, a 2006 Volkswagen Jetta driven by defendant *464Luis Quintero (“Quintero”) also was approaching the intersection from Rivington Street. The owner of the Jetta, Daniel Gonsalves (“Gonsalves”) was in the front passenger seat.
The parties agree that there was a stop sign on Rivington Street, but not Eldridge Street, where the streets intersected. The parties further agree that both are one-way streets. Whether Quintero stopped at the stop sign and what happened next are the critical issues. Peralta contends that Quintero failed to yield to his passing vehicle and struck the passenger side of the Accord, causing the vehicle to move to the left. Peralta further contends that the impact was sufficient to cause both passenger-side doors of his Accord to deform, although they still could be opened and closed with difficulty after the collision.
Quintero, to the contrary, testified that he came to a full stop and was inching into the intersection to make a right turn when Peralta’s car suddenly swerved around him. He described the Accord’s speed as faster than normal, but conceded that he did not know if Peralta was traveling more than thirty miles per hour. Curiously, Quintero maintains that there was no accident. Instead, Quintero alleges that he and Gonsalves got out of their car after Peralta’s car stopped simply because he felt something might have happened. Quintero also testified that the police were called to the scene even though there was no damage to either vehicle.
Simply put, Quintero’s version of events makes no sense. First, if Quintero had been successfully making a right turn and Peralta swerved around him, there would have been no reason for Quintero to stop or for him and his passenger to exit their car. Second, although Quintero claimed that there was no impact, a police officer responding to the scene prepared a Police Accident Report in which he noted that “Veh. 2 [the Jetta] stated he-was going straight while veh. 1 [the Accord] speeded and caused veh. 2 to hit veh. 1.” (Pl.’s Ex. 1 at 1). Presumably, if there was no physical evidence that a motor vehicle accident had occurred, or if Quintero or Gonsalves had so stated, the officer preparing the report would have made note of what might prove to be a fraudulent insurance claim. Third, although Quintero testified that he was making a right turn just before the non-accident, the police report indicates that “vehicle] 2” — presumably either Quintero or Gonsalves — stated that their vehicle was “going straight” when the accident occurred. (Id). Consistent with that description, the police diagram of the incident reflects a “t-bone” collision in which Quintero struck the middle of the passenger side of Peralta’s car. (Id). Finally, Sanchez requested medical attention and was taken from the scene by ambulance. If the police thought the accident or Sanchez’s medical complaints were feigned, the accident report likely would have contained a notation to that effect. Instead, the report identifies Sanchez as a person “injured” in the accident. (Id. at 2).
B. Conclusions of Law
As Magistrate Judge Poliak has explained, “[u]nder New York law, the plaintiff must establish three elements in order to prevail on a negligence claim: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty; and (3) that the breach was the proximate cause of plaintiffs’ injuries.” Hodder v. United States, 328 F.Supp.2d 335, 341 (E.D.N.Y.2004). Further, “it is the duty of both drivers to operate their automobiles with reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic and other conditions.” Id. (citations omit*465ted). When a driver nears an intersection controlled by a stop sign, he must come to a stop, and “after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.” N.Y.S. Vehicle and Traffic Law § 1142(a).1
Here, because Quintero failed to yield the right of way to Peralta, and because there is no indication that Peralta was speeding, Quintero plainly was negligent. Indeed, his failure to obey the Vehicle and Traffic Law constitutes negligence per se. Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 (2d Dep’t 2010).
II. Damages
A. Findings of Fact
Unlike Sanchez, Peralta did not request medical attention at the scene. A few days later, however, he sought medical attention for worsening lower back, neck, and shoulder pain. He first went to Davidson Medical, P.C., where he was provided conservative treatment including chiropractic services, electrostimulation, and massage. After four months or so, he visited Dr. Philip Rafiy, an orthopedic surgeon whose name he found on the internet. Dr. Rafiy also began with conservative treatment, including steroidal injections. Dr. Rafiy further referred Peralta to the University Heights Medical Center for other conservative treatment measures. Eventually, after reviewing various radiological images, Dr. Rafiy concluded that Peralta’s considerable pain was caused by foraminal stenosis at the L4-L5 level. Dr. Rafiy agreed with the defense experts that Peralta had no disc herniations or protrusions resulting from the accident, but believed that surgery was nevertheless indicated after other treatment modalities failed to alleviate Peralta’s pain.
On July 22, 2011, Dr. Rafiy performed a laminotomy and foraminotomy, removing bone at the L4-L5 level and widening the vertebral foramina. Dr. Rafiy stabilized the left side of Peralta’s spine using a pin and rod and also performed bone grafts on both sides of Peralta’s spine to stabilize Peralta’s back. Although the surgery helped alleviate Peralta’s pain, he became addicted to the Oxycontin tablets that Dr. Rafiy prescribed to help manage residual pain.
In an effort to show that the surgery was unnecessary, the defendants proffered two experts. Dr. David Fisher, a radiologist, testified that various imaging studies showed normally-aligned vertebral bodies and no protrusions that would justify the surgery. Dr. Edward Crane, an orthopedic surgeon at Lenox Hill Hospital, examined Peralta in October 2012, at which time Peralta allegedly complained of a “little pain” in his lower back and thigh. Dr. Crane indicated that the results of his physical examination were essentially normal (except to the extent that Peralta feigned pain on a straight leg raising test), that the surgery performed could not be causally connected to the alleged injury on March 6, 2010, and that Peralta had no sequelae from the surgery other than his scar. He conceded, however, that the Oxycontin that Peralta had been taking could affect the results of his physical examination — for example, by masking pain.
*466Although Peralta had a prior motor vehicle accident in 2008, there is no indication that any of his complaints regarding back pain are attributable to this accident or anything else that preceded the events of March 6, 2010. Nor is there any indication that Peralta was a user of Oxycontin prior to the collision in 2010. In these circumstances, it simply defies credulity to suggest that Peralta would have opted for a procedure as invasive as back surgery unless he truly was in pain as a result of being broadsided by Quintero’s vehicle.
After the surgery, Peralta’s pain level on a 10-point scale went from a “7” or “8” to a “6,” and he concedes that he now experiences less pain than he did before surgery. He also occasionally engages in sports such as handball, despite his continued pain.
To earn money, Peralta drove for a car service for several months after his surgery, during which time he switched to a larger, more expensive vehicle because the seating was more comfortable. Peralta also made deliveries and performed other chores for a pizzeria owned by his aunt.
As noted above, the Oxycontin that Per-alta takes to manage his pain has caused him to have a substance abuse problem. Dr. Rafiy described Peralta’s condition as a- chemical dependency secondary to his injury, which will require extensive inpatient or outpatient treatment to cure. Dr. Rafiy estimates that this treatment would cost $60-75,000 at a residential facility or $30,000 if provided on an outpatient basis.
Peralta does not make any claim for lost wages. The damages he does seek consist of various anticipated ongoing expenses for health care and a gym membership, plus money to compensate him for his pain and suffering. According to Dr. Rafiy, Peralta has a permanent loss of flexion and extension in his lower back as well as diminished reflexes. Dr. Rafiy opined that this amounts to a permanent partial limitation of Peralta’s use of his spine. Dr. Rafiy further testified that Peralta’s condition will require two visits to an orthopedic expert each year, at a cost of $700 per year; an MRI every two to three years, at a cost of $1300 per scan; pain injections three to four times per year, at a cost of $950 per visit; and a gym membership for ten years. Since Peralta was twenty-three years old at the time of trial, (see Pl.’s Ex. 1), he has a life expectancy of approximately fifty-two years. (See Bureau of Labor Statistics, Expectation of Life at Birth, 1970-2008, and Projections, available at http://www.census.gov/compendia/ statab/cats/births_deaths_marriages_ divorces/life_expectancy.html).
B. Conclusions of Law
Under New York’s no-fault insurance law, a plaintiff injured in an automobile accident may not recover damages for non-economic losses unless he has sustained a “serious injury.” N.Y. Ins. Law § 5104. Although a “serious injury” may be established in several different ways, in this case Peralta contends that he has suffered a permanent loss of range of motion in his spine. Under New York’s no-fault law, such a permanent consequential limitation of the use of a body or member constitutes a serious injury. Id. § 5102(d).
Quintero seeks to refute Peralta’s showing that he sustained a serious injury in several ways. First, he contends that Dr. Rafiy’s testimony was insufficient to meet Peralta’s burden because there were no range of motion studies immediately after the accident. Within a matter of days, however, Peralta went to Davidson Medical complaining of, inter alia, middle and lower back pain and stiffness. (He also had left shoulder pain.). Although a range of motion study that same month apparently dóes not reflect extensive limitations *467in Peralta’s range of motion, Peralta nonetheless consistently complained of lower back pain and spasms. Indeed, Dr. Jacob Esses of Davidson Medical diagnosed Per-alta with a spinal and extremity impairment on May 8, 2010, shortly after the accident. Dr. Anthony Mandracchia, a chiropractor, similarly diagnosed him with lumbosacral plexopathy, albeit without motor deficit, the following month. That same month, a neurologist at Davidson Medical also evidently reported that Peral-ta had an antalgic gait and difficulty getting on and off the examining table. Finally, according to Dr. Rafiy, an MRI of Peralta’s lumbar spine taken in April 2010 reflected foraminal damage at the L4-L5 level that he considered the likely cause of Peralta’s pain. Since treating this problem required that instrumentation be installed in Peralta’s back, it is apparent that Peralta suffered a “serious injury” entitling him to recover non-economic damages. See N.Y. Ins. Law §§ 5102(d), 5104. To the extent that the two medical experts called by Quintero disputed Dr. Rafiy’s testimony that Peralta had sustained a serious injury, I do not credit their testimony.
Quintero also argues, based on the testimony of defense experts, that Peral-ta’s continuing back problems are not causally related to the March 2010 accident because the surgical procedures performed by Dr. Rafiy were not medically necessary, but instead were performed for Dr. Rafiy’s financial gain. Quintero further attacks Dr. Rafiy’s credibility on numerous grounds.
There is no reason to believe that Dr. Rafiy performed surgery on Peralta’s spine simply for financial gain. Moreover, it defies credulity to argue that Peralta would have opted for an invasive surgical procedure, accompanied by the placement of instrumentation in his spine, simply to bolster his damages case. Indeed, the only logical conclusion from Peralta’s willingness to undergo surgery after other treatment modalities failed is that he was, indeed, in considerable pain.
Moreover, even if Quintero were able to establish that Dr. Rafiy’s decision to perform surgery constituted medical malpractice, that would not be a basis for Quintero to escape financial responsibility for the surgery’s sequelae. Indeed, it is settled law in New York that a tortfeasor is responsible for the subsequent negligence of a physician because “their wrongs coalesced and resulted in damage which would not have been sustained but for the original injury.” Milks v. McIver, 264 N.Y. 267, 269, 190 N.E. 487 (1934); see Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589, 594 (2d Dep’t 1964) (defendant whose wrongful act caused injury aggravated by physician’s negligence may be liable to plaintiff for full damages, subject to the defendant’s right to seek indemnity).
Turning first to Peralta’s economic damages, I credit Dr. Rafiy’s testimony that Peralta likely will need continuing orthopedic care for the rest of his life by virtue of the accident and subsequent surgery. Accordingly, I award Peralta $60,000 for future medical expenses. There is no indication, however, that Per-alta made any attempt to attend a gym after his surgery or has the inclination or need to pursue what amounts to a frill; I therefore decline to award any money for a gym membership. Similarly, while I do not doubt that Peralta has suffered pain and continues to suffer pain, my own observations of him during the trial cause me to believe that at least some of the physical discomfort he sought to exhibit both on and off the stand during the trial was feigned. I therefore decline to award Per-alta the $1,000,000 for pain and suffering *468that he seeks and instead award him $100,000 for past pain and suffering and $250,000 for future pain and suffering. Finally, although Peralta testified that he is addicted to Oxycontin and Dr. Rafiy — who has continued to prescribe the drug — evidently agrees, there is no indication that Dr. Rafiy has particular expertise in the field of substance abuse, much less knowledge regarding the current cost and necessary duration of treatment programs. For this reason, 1 decline to award any damages for the treatment of Peralta’s alleged addiction.
III. Conclusion
The Clerk of the Court shall enter judgment in favor of Peralta in the amount of $410,000 and close this case.
SO ORDERED.
. The term "highway” includes city streets. See N.Y.S. Vehicle and Traffic Law § 118 (defining the term as the "entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224393/ | OPINION AND ORDER
JED S. RAKOFF, District Judge.
Pending before the Court is the resen-tencing of defendants Edward Gardner and Kenroy Gladden following a vacatur and remand of their sentences by the Second Circuit in light of Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). See Mandate, December 3, 2012, ECF No. 57. The initial question presented on remand is whether, in calculating the defendants’ range under the U.S. Sentencing Guidelines (the “Guidelines”), the Court should apply the Guidelines’ provision by which, for sentencing purposes, the weight of the cocaine involved in any offense involving “crack” cocaine is multiplied by a factor of 18. Finding that this multiplier is unsupported by fact, law, or policy, the Court declines to apply it to the sentences in this case.
Although the defendants here each face substantial mandatory minimum sentences, the Court, on this remand, must, “as a starting point and initial benchmark,” calculate anew the applicable Guidelines range for the offenses of conviction. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). On April 30, 2013, at an initial hearing following remand, the Court made a finding that the defendants’ offenses of conviction involved at least 3.6 kilograms of cocaine base (commonly known as “crack cocaine”), but raised questions about whether the amount should be subject to a multiplier. See Tr., 4/30/2013, at 11. While, with respect to all offenses involving illegal drugs, the quantity of the drugs is, by far, the single most important component in calculating the applicable Guidelines range, in the cáse of crack cocaine, but not powder cocaine, the actual quantity is multiplied by a factor of 18. See U.S.S.G. § 2Dl.l(c). Since crack and powder cocaine are simply two forms of the same chemical substance having “the same physiological and psychotropic effects,” Kimbrough v. United States, 552 U.S. 85, 94, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), this discrepancy is suspect on its face.
Accordingly, the Court, at the April 30 hearing, solicited supplemental briefing from the parties on the issue of what empirical basis, if any, justifies the Guidelines’ disparate treatment of crack and powder cocaine. Having reviewed these supplemental submissions, and having had the benefit of further oral argument, the Court finds that there is insufficient support, empirical or otherwise, for this substantial disparity.
The parties agree that the 18:1 ratio of crack to powder cocaine makes a huge difference in the defendants’ Guidelines range. If the ratio is here applied, the base offense level for the defendants’ crimes is 36. See U.S.S.G. § 2D1.1(c)(2). Given the defendants’ uncontested criminal history category of II, and assuming no other adjustments, the defendants’ Guidelines range would be 210 to 262 months’ imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table). By contrast, were the 3.6 kilograms of crack cocaine treated simply as powder cocaine, the total offense level would be 30, and the corresponding Guidelines range .would be 108 to 135 months’ imprisonment, or roughly half of *470the imprisonment recommended under the 18:1 ratio.1
A brief review of the relevant background makes clear how little, if any, this disparity has to do with any objective difference between crack and powder cocaine and how much it has to do with the dead hand of history. From 1986 until 2007, the Guidelines’ ratio between crack and powder cocaine was 100:1. The origin of this extraordinary disparity had nothing directly to do with scientific or empirical inquiry, but rather derived from the Sentencing Commission’s reliance on the Anti-Drug Abuse Act of 1986 (“1986 Act”), Pub. L. No. 99-470, 100 Stat. 3207 (1986), which imposed certain mandatory minimum sentences that could be read to reflect, in effect, a 100:1 ratio between crack and powder cocaine. See, e.g., 21 U.S.C. 841(b)(1)(A) (2008) (imposing a ten-year mandatory minimum sentence for distributing either 50 grams of crack cocaine or 5 kilograms of powder cocaine). Although the 1986 Act dealt only with mandatory minimum sentences, the Sentencing Commission “responded to the legislation by ... extrapolating upward and downward to set ... ranges for all drug quantities.” United States Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy 3 (May 2007) (“2007 Report”). See also United States Sentencing Comm’n, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 53-54 (Oct.2011). In so doing, the Commission, in the words of the Supreme Court, departed from its “characteristic institutional role” of developing sentencing recommendations based upon “empirical data and national experience.” Kimbrough, 552 U.S. at 109, 128 S.Ct. 558.
As a consequence, the Supreme Court subsequently held in the Kimbrough case, supra, that it would be no abuse of discretion for a district court to conclude, “even in a mine-run case,” that the 100:1 disparity might yield a sentence that contravenes the overall policies of federal sentencing mandated by Congress in 18 U.S.C. § 3553(a). Id. at 109, 128 S.Ct. 558. The Court further clarified in Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), that a district court’s variance from this disparity could be “categorical” in nature, rather than tied to the specifics of the individual case, and that the district court retained “authority to vary from the crack cocaine Guidelines based on policy disagreement with them.” Id. at 264, 129 S.Ct. 840. As the Court further stated: “[a] sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant’s sentence necessarily permits adoption of a replacement ratio.” Id. at 265, 129 S.Ct. 840.
In the instant case, the Government concedes that these holdings are equally applicable to the 18:1 ratio. See Mem. Regarding the Application of the Guidelines to Offenses Involving Crack Cocaine (“Gov. Mem.”), Dkt. No. 60, at 3. But, to continue the history, the Sentencing Commission, even before Kimbrough and Spears were handed down, recognized its earlier mistake and recommended in 1995 that Congress remove the disparity altogether, es*471tablishing instead a 1:1 ratio between crack and powder cocaine. This, the Sentencing Commission concluded, should be done even assuming, arguendo, that crack cocaine, in comparison to powder cocaine, might produce a more rapid “high,” might be conducive to more addictive behavior, and might even be associated with more violence, because, in the Commission’s view, such effects, if any, materially varied in individual cases and hence could be better dealt with by the application of specific enhancements to individual defendants rather than by imposing an across-the-board disparity between crack and powder weights. See United States Sentencing Comm’n, Special Report to Congress: Cocaine and Federal Sentencing Policy vi-xv (Feb.1995) (“1995 Report”). Congress, however, in its wisdom, promptly vetoed the Commission’s recommendation. See Pub. L. 104-38, § 1, 109 Stat. 334.
Thereafter, the Commission made further attempts to rectify its original error, without success. Further still, the Department of Justice, in 2009, itself advocated the adoption of a one-to-one ratio, again without success. See Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity: Hearing Before the Subcomm. on Crime and Drugs of the S. Comm, on the Judiciary, 111th Cong. 100 (2009) (statement of Lanny A. Breuer, Assistant Att’y Gen., Criminal Div., U.S. Dep’t of Justice).
Finally, however, in 2010, in what can only be regarded as a political compromise having no empirical rationale, Congress reduced the crack-to-powder cocaine disparity from 100-to-l to 18-to-l, where it currently stands. See Fair Sentencing Act (“FSA”), 124 Stat. 2372. Two years later, in the Dorsey case, supra, the Supreme Court held that this revision had retroactive effect for those defendants who had been convicted before, but sentenced after, the FSA was enacted — thus occasioning the instant resentencings.
Against this background, the Court turns to whether the new 18:1 ratio has any rational basis, let alone a substantial and convincing one. The supposed justifications for the original 100:1 disparity, as summarized in Kimbrough, were that “(1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular.” Kimbrough, 552 U.S. at 95-96, 128 S.Ct. 558. But the last three of these five suppositions were subsequently discredited to the point that the Government does not pursue them here but instead relies principally on the first two claims, that crack cocaine is more addictive than powder cocaine and that it is more associated with violence.2
As to the former, this argument was effectively refuted in the Commission’s own 2007 Report to Congress, which concluded that pharmacologically “both forms cause identical effects.” 2007 Report, at 62. While the Report noted the possibili*472ty, based largely on anecdotal evidence, that “the risk of addiction and personal deterioration may be greater for crack cocaine than for powder cocaine” since the two are administered differently, id. at 62, the Commission had already determined as early as 2002 that “[pjrecisely quantifying this difference is impossible and, as a result, determining an appropriate degree of punishment differential to account for any difference in addiction potential is difficult,” United States Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy 94 (May 2002) (“2002 Report”).
At present, the claim that crack cocaine is more addictive than powder cocaine because of the way it is administered remains in the realm of conjecture, unsupported by any serious scientific study, and insufficient to support anything like an 18:1 disparity. Moreover, as the Commission also noted in its 2002 Report, “federal penalties for other major drugs of abuse that can be administered in multiple ways do not provide differentiation based on the method of administration,” 2002 Report, at 94 n. 181 — so why make the distinction in the case of cocaine?
As for the claim that crack cocaine is “associated” with violence, the Government has offered no scientific evidence, and the Court is not aware of any such evidence, that crack cocaine causes its users to engage in more violent activity than if they had used powder cocaine. Instead, the Government argues that crack cocaine distribution is more likely to be “associated” with violence than powder cocaine distribution because, according to some studies, it is sold in relatively more violent “open-air bazaars” (an apparent euphemism for street sales in poor communities). See Gov. Mem. at 4, 14-15; see also, e.g., Richard B. Felson & Luke Bonkiewicz, Guns and Trafficking in Crack-Cocaine and Other Drug Markets, 59 Crime & Delinquency 319 (2013); Roland G. Fryer, Jr. et al., Measuring the Impact of Crack Cocaine (Nat’l Bureau of Econ. Research, Working Paper No. 11318, 2005).
The argument is entirely unconvincing. To begin with, even though, as described below, violence is somewhat more “associated” (in the sense of statistical correlation) with crack cocaine distribution than powder cocaine distribution, in the great majority of both kinds of cases, there is no violence.
Furthermore, the studies relied on by the Government cannot and do not isolate the purported impact of open-air dealing on rates of violence. See, e.g., Felson & Bonkiewicz, supra, at 325-29; Fryer et al., supra, at 20-26. This is fundamental, because multiple other equally or more plausible theories exist for the (modestly) increased violence associated with crack-cocaine use and distribution. For example, it is well established that crack cocaine is preferred over powder cocaine in poor, predominantly African-American communities,3 communities that have long tended to suffer from higher levels of violent crime.4 More generally, one would *473need a much more careful statistical analysis than any presented by the Government to determine whether the violence more associated with crack cocaine than with powder cocaine is a function of a multitude of socioeconomic differences, or is instead the result of some difference related to the two substances themselves or to their methods of distribution. Indeed, the only conclusion one can state with certainty is that the severe effects of the 18:1 ratio are primarily visited upon African-Americans: a disparity that would require far more conclusive evidence of a difference between crack and powder cocaine before it could be justified in tterms of the purposes of 18 U.S.C. § 3553(a).
Finally, this entire discussion about violence fades into near-irrelevance when one remembers that in the overwhelming majority of offenses involving both crack and powder cocaine, there is no indication of any violence. See 2007 Report, at 37 (noting that, in 2005, violence was observed in 6.2% of powder cocaine cases and in 10.4% of crack cocaine offenses). And, as the Sentencing Commission noted in its 2007 Report, supra, if a defendant is convicted of an offense that involves violence, the Guidelines elsewhere provide for upward enhancements to his Guidelines score. See, e.g., U.S.S.G. §§ 2Dl.l(b)(l), (b)(2). But this has nothing to do with any difference between crack and powder cocaine.
In the end, the Government has failed to adduce any material evidence, legal argument, or policy justification for the 18:1 disparity. While the Court understands that the 18:1 ratio was a political compromise between the Government’s proposed 1:1 ratio and those in Congress who wished to maintain the 100:1 ratio, the Supreme Court has expressly stated that the district courts remain free to test that compromise against Congress’s own overriding statement of sentencing purposes in 18 U.S.C. § 3553(a). See Kimbrough, 552 U.S. at 109, 128 S.Ct. 558; Spears, 555 U.S. at 264-65, 129 S.Ct. 840. Having done so, the Court finds no rational support for the 18:1 ratio, and consequently will apply a 1:1 ratio and will treat the quantity of crack cocaine attributed to the instant defendants’ offenses of conviction as if it were the equivalent quantity of powder cocaine under the Guidelines.5 Based on this conclusion, the parties are hereby directed to convene a conference call with the Court by no later than May 27, 2014 to schedule further proceedings in this case.
SO ORDERED.
. The Court here discusses only the recommended Guidelines range for the defendants’ drug counts. An additional, mandatory consecutive 60 months is added to each defendant’s sentence because of their conviction of violating 18 U.S.C. § 924(c). See generally Mem. Order & Judgment of Dec. 28, 2011, EOF No. 53, 837 F.Supp.2d 346, at 348-49 (S.D.N.Y.2011).
. The Government also contends that since crack is a "downstream” or “retail” drug, a smaller quantity of crack cocaine will approximate a much larger quantity of "wholesale” “powder cocaine.” Gov. Mem. at 21. But, if anything, the fact that powder cocaine can be “cut” into a larger quantity of crack cocaine would seem to support the conclusion that distribution of "wholesale” powder cocaine should be punished more harshly than “retail” crack cocaine. In any event, the Government’s vague conjecture on this point is insufficient to justify the 18:1 disparity.
. According to U.S. Sentencing Commission data, in Fiscal Year 2012, approximately 83 percent of federal crack cocaine offenders who were sentenced were black, while 7 percent were white and 10 percent were Hispanic. U.S. Sentencing Comm’n, 2012 Source-book of Federal Sentencing Statistics, tbl. 34. By contrast, only 28 percent of powder cocaine offenders who were sentenced were black, while 16 percent were white and 56 percent were Hispanic. Id. In addition, evidence suggests that participants in crack markets are more likely to be of lower socioeconomic status. See Felson & Bonkiewicz, supra, at 331.
. See, e.g., Alan Berube, Brookings Inst., Concentrated Poverty in America An Overview, in The Enduring Challenge of Concentrated Pover*473ty in America 13-14 (Cmty. Offices of the Fed. Reserve Sys. et al. eds., 2008), available at http://www.frbsf.org/community-development/ files/cp_fullreport.pdf.
. Several other courts have reached similar conclusions. See, e.g., United States v. Williams, 788 F.Supp.2d 847 (N.D.Ia.2011); United States v. Whigham, 754 F.Supp.2d 239 (D.Mass.2010). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217679/ | MEMORANDUM**
Jose Luis Tapia-Fierro appeals the 104-month sentence imposed after a jury convicted him of attempted illegal re-entry following deportation in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether a district court misapprehended the law, and review for clear error its factual determinations with respect to the aeceptance-of-responsibility reduction. United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.2002). We vacate and remand for resentencing.
Tapia-Fierro contends that the district court erred in denying his request for a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The district court did not make any specific findings regarding Tapia-Fierro’s remorse or contrition, his actual acceptance of responsibility, or the applicable guide-fine factors. See U.S.S.G. § 3E1.1 (Application Note 1). Because it is unclear if the district court denied an acceptance-of-re-sponsibifity reduction based on Tapia-Fi-erro’s exercise of his constitutional right to a trial by jury, we vacate Tapia-Fierro’s sentence and remand so the district court can consider the appropriate factors related to the acceptance of responsibility reduction. See Cortes, 299 F.3d at 1038-39.
VACATED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217680/ | MEMORANDUM**
Leonardo Torres-Ortiz appeals his conviction and resulting 188-month sentence for possession and conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
We decline to address Torres-Ortiz’s claim of ineffective assistance of counsel, because it cannot be advanced without development of facts outside record. See United States v. Hanoum, 38 F.3d 1128, 1131-32 (9th Cir.1994).
Torres-Ortiz claims he was entitled to a downward departure based on the conditions of his pre-conviction housing. We find no merit in this argument.
Torres-Ortiz next contends the district court erred by denying a two-point reduction for acceptance of responsibility. We find no clear error in the district court’s determination that Torres-Ortiz had not met his burden of manifesting a genuine acceptance of responsibility for his actions. See United States v. Cortes, 299 F.3d 1030, 1037-38 (9th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 1333, 154 L.Ed.2d 1084 (2003).
Torres-Ortiz also claims the district court should have calculated his sentence based on the actual amount of methamphetamine, as opposed to the weight of the entire mixture. We are unpersuaded, because U.S.S.G. § 2Dl.l(c) n.B explicitly authorizes the district court’s calculation in this regard.
Finally, Torres-Ortiz contends the district court failed to make the factual findings required by Federal Rule of Criminal Procedure 32. Because the district court’s determination did not require consideration of any disputed facts, we find no error. See Fed. R.Crim. P. 32(i)(3)(B).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217682/ | MEMORANDUM**
Troy Sampson appeals his guilty plea conviction and resulting 150-month sentence for arson, in violation of 18 U.S.C. § 844(a). We review de novo. United States v. Gonzalez, 262 F.3d 867, 869 (9th Cir.2001) (per curiam) (interpretation and application of the Sentencing Guidelines); United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir.1998) (waiver of appellate rights). We affirm in part and dismiss in part.
Sampson appeals the district court’s application of U.S.S.G. § 2K1.4(a)(l), provid*393ing for a base offense level of 24, rather than U.S.S.G. § 2K1.4(a)(2), providing for a base offense level of 20. Upon review of the record, we find no error. See United States v. Karlic, 997 F.2d 564, 569 (9th Cir.1993) (upholding a higher base level offense under § 2K1.4(b)(1), an earlier version of § 2K1.4(a)(1), in part because one of the banks that defendant bombed was adjacent to an apartment complex, which created a substantial risk of death or injury to the occupants).
Because none of Sampson’s remaining contentions involve matters he reserved the right to appeal, we dismiss the remainder of Sampson’s appeal for lack of jurisdiction. See United States v. Nguyen, 235 F.3d 1179, 1182-83 (9th Cir.2000) (recognizing that courts will enforce waiver of appeal rights if waiver is knowingly and voluntarily made).
Sampson’s claims of ineffective assistance of counsel are not suited for resolution on direct appeal. See United States v. Reyes-Platero, 224 F.3d 1112, 1116 (9th Cir.2000).
AFFIRMED in part; DISMISSED in part.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217683/ | MEMORANDUM**
Gilberto Arteaga-Bonilla appeals the sentence imposed following his guilty plea to unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326. Arteaga-Bonilla contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred by enhancing his sentence under 8 U.S.C. § 1326(b)(2) based on prior aggravated felonies that were neither charged in the indictment nor admitted by Arteaga-Bonilla. Preserving the issue for post-conviction review, Arteaga-Bonilla acknowledges that his contention is foreclos*394ed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217715/ | ORDER
The parties having so agreed, it is
*476ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217716/ | ORDER
Alpha 1 USA, Inc. has failed to respond to the court’s January 13, 2003 order.
Upon consideration thereof,
IT IS ORDERED THAT:
Alpha l’s appeal is dismissed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217717/ | DECISION
PER CURIAM.
Paul R. Blagaich petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Department of Transportation (“agency”) removing him from his position as an Air Traffic Control Specialist with the Federal Aviation Administration (“FAA”) for failure to maintain a security clearance. Blagaich v. Dep’t of Transp., 90 M.S.P.R. 619 (2001) (“Blagaich”). We affirm.
DISCUSSION
I.
Prior to his removal, Mr. Blagaich was assigned to the FAA’s Chicago Air Route Traffic Control Center located in Aurora, Illinois. As an Air Traffic Control Specialist, he was required to have a security clearance.
In 1994, Mr. Blagaich was arrested and charged with several offenses. Following his arrest, the agency suspended his security clearance and assigned him to administrative duties for which a security clearance was not required. Eventually, after he was convicted on various charges, the agency removed him from his position on May 23, 1998, based upon the conduct underlying the convictions. Mr. Blagaich grieved his removal, and the matter proceeded to arbitration. In a decision dated September 21, 1998, the arbitrator found the charge in the removal action sustained but mitigated the removal to a “condition-alt ] indefinite suspension.” Under the arbitrator’s decision, the suspension was to cease upon the fulfillment of all the conditions set forth in the decision, but in no event later than six months from the date of the decision. One of the conditions set forth in the decision was that Mr. Blagaich obtain “an effective ‘security clearance’ status.”
In March of 1999, after additional direction from the arbitrator, Mr. Blagaich was returned to an Air Traffic Control Specialist position, but he was left in administrative leave status. Effective November 10,1999, he was removed again for his prior criminal conduct, but the action was cancelled by the agency on December 21,1999.
Meanwhile, on July 2, 1999, the FAA’s Office of Civil Aviation Security Operations revoked Mr. Blagaich’s security clearance, which had been suspended. It took this action based upon Mr. Blagaich’s criminal conduct and certain other considerations. Subsequently, after the agency’s Personnel Security Review Board upheld the revocation, the agency removed Mr. Blagaich from his position, effective February 8, 2000, for failure to maintain his security clearance.
Mr. Blagaich appealed his removal to the Board. In an initial decision dated December 21, 2000, the administrative judge (“AJ”) sustained the removal based upon the Board’s limited jurisdiction to review an adverse action that is based upon the denial or revocation of a security clearance. See Dep’t of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Thereafter, on December 20, 2001, the Board denied Mr. Blagaich’s petition for review. However, the Board reopened *478the appeal on its own and affirmed the AJ’s initial decision with modification. Blagaich, 90 M.S.P.R. at 620. The Board rejected Mr. Blagaich’s contention that, under the doctrine of res judicata, the agency was barred by the arbitrator’s mitigation of the 1998 removal and thus could not remove Mr. Blagaich in 2000 for failure to maintain his security clearance. The Board stated:
[The 1998] removal action was taken as a result of the misconduct that led to the appellant’s convictions.... Similarly, his short-lived second removal appears to have been based on the same cause of action. The removal now before us was the first and only removal action that had been based on his loss of the security clearance that is necessary for him to remain in his official position, which un-disputedly requires the incumbent to possess a security clearance. The appellant’s contention that this situation calls for the application of res judicata against the agency, ie., enforcement of the arbitrator’s decision mitigating the removal, fails. As he points out, application of that doctrine requires, among other things, that the cause of action in the two situations at issue be the same.... Here, the cause of action of the third removal differs from that of the first (and the cancelled second).
Id. at 623-24.
The Board also rejected two additional contentions that Mr. Blagaich made. First, it determined that Mr. Blagaich was not denied due process because the agency failed to provide him with a full, unredact-ed copy of a document entitled “Case Summary of Response,” which he alleged was considered ex parte by the agency. The Board pointed out that the document was created during the process leading to the revocation of the security clearance, not during the removal action, and that Mr. Blagaich was in possession of the unre-dacted document before he filed his appeal in May of 2000. Id. at 626. Second, the Board held that the deciding official had not failed to conduct a proper “Douglas factors” analysis when he testified that he believed he had no authority to impose any penalty other than removal. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 305-06 (1981). The Board observed that a removal based upon failure to maintain a required security clearance differs from the typical adverse action, in that “the usual considerations that are relevant in determining if an adverse action penalty should be mitigated are not applicable in determining whether proper cause for the removal penalty exists in such a case.” Id. at 626.
Mr. Blagaich now appeals the Board’s final decision to us. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998). On appeal, Mr. Blagaich raises several arguments. Having considered them, we do not believe that he has established error in the Board’s decision.
As he did before the Board, Mr. Blagaich argues that the February 2000 removal action was barred by the doctrine of res judicata based upon the 1998 arbitration decision. As noted above, the Board considered this argument and determined that it was without merit. We *479reach the same conclusion. Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1362 (Fed.Cir.2000) (citations omitted). We agree with the Board that the prior arbitration proceeding, which involved Mr. Blagaich’s removal based upon his criminal conduct, was not “the same cause of action” as the February 2000 removal action, which was based upon Mr. Blagaich’s failure to maintain the security clearance required for his position.
In addition, Mr. Blagaich argues, as he did before the Board, that the agency’s removal action should be reversed because he was denied due process in connection with the revocation of his security clearance when the agency allegedly considered the document entitled “Case Summary of Response” ex parte. This contention is without merit. The Supreme Court has noted that no one has a right to a security clearance:
The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when “clearly consistent with the interests of the national security.”
Egan, 484 U.S. at 528 (citations omitted). The Supreme Court has further noted that the Board does not have authority to review a security-clearance determination, but that an employee who is removed for “cause” under 5 US.C. § 7513, when his required clearance is denied, is entitled to the procedural protections enunciated in that statute. Id. at 530. Relying on Egan, we have stated that when an agency action is challenged under the provisions of chapter 75 of title 5, “the Board may determine whether a security clearance was denied, whether the security clearance was a requirement of the appellant’s position, and whether the procedures set forth in section 7513 were followed, but the Board may not examine the underlying merits of the security clearance determination.” Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed.Cir.2000) (citations omitted).
Although Mr. Blagaich seems to agree with the above-mentioned principles of Egan and Hesse, he nevertheless argues that his case dictates a different result. Specifically, Mr. Blagaich relies on Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) and argues that the agency’s removal action should be reversed because the agency violated its regulations concerning ex parte submission and consideration of evidence when it considered the “Case Summary of Response” ex parte in connection with the revocation of his security clearance. In our view, Vitarelli does not help Mr. Blagaich because Vitarelli relates to a removal action and the procedural protections that an employee is entitled to in such an action. Nothing in Vitarelli suggests that the Board is empowered to review the procedures used in revoking an employee’s security clearance. In short, Mr. Blagaich’s due process argument is without merit.
Mr. Blagaich’s final argument is that the position from which he was removed did not require a security clearance. We are not persuaded by this argument. It is true that after the arbitrator mitigated the first removal action, the agency assigned Mr. Blagaich to administrative duties. The fact remains, however, that Mr. Blag-aich was removed from a position that required a security clearance.
For the foregoing reasons, the final decision of the Board is affirmed.
No costs. | 01-04-2023 | 07-25-2022 |