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https://www.courtlistener.com/api/rest/v3/opinions/7217825/ | BOGGS, Circuit Judge.
David L. Williams appeals from the judgment and final order of the district court granting York International Corporation’s (“York”) motion for summary judgment and dismissing his claims with prejudice in this diversity case. Williams argues that the district court erred in granting summary judgment because it made credibility determinations and weighed the evidence presented and by doing so, usurped traditional jury functions.
I
The claims brought by Williams against York arise out of an altercation that occurred between him and Robert Stones-treet on July 23,1999. Williams worked in the cooling department at York, which manufactures heating and air conditioning products. Stonestreet was a supervisor in another department, to which Williams was “loaned out.” At York, employees were occasionally “loaned out” to other departments. During these times, employees were supervised by and accepted direction from the supervisor of that department.
On the evening of July 23, Stonestreet approached Williams and asked him why *810he was not sending the units he had finished down the iine. Williams replied that the workers down the line had not finished work on the units he had already sent, and he would therefore not send any more down. Stonestreet instructed Williams to continue sending units down. Four hours later, Stonestreet asked Williams to help another employee in order to correct a back-up. Williams resisted, telling Stones-treet he had been helping that other employee all night and had to complete his own job first. After Stonestreet twice repeated his instruction, and Williams twice refused, Stonestreet erupted into a rage. Williams alleges that Stonestreet was yelling, pointed a finger in his face, and pushed him with his hands and bumped him with his chest.
Stonestreet paged another supervisor and advised him of what had happened. Stonestreet told the other supervisor that Williams had spit on him and had called him a “bitch.” After another employee approached Stonestreet and Williams, Sto-nestreet walked away. The entire incident apparently lasted only a few minutes.
Ten minutes later, Stonestreet and Williams met in the office with two other supervisors and a union steward. They each related their grievances: Stonestreet said Williams had spit on him and called him a bitch; Williams said that Stones-treet had pushed him and bumped him with his chest. Williams then returned to work and finished his shift. After his shift, Williams went to the Elyria Police Department to file an assault complaint against Stonestreet. Two York employees filed witness statements on his behalf. Stonestreet was charged with disorderly conduct, and later pled not guilty. The case was set for trial on January 8, 2000. The case was dismissed after Stonestreet died in December 1999.
On July 24, 1999, Williams was asked to attend a meeting with Stonestreet’s boss, the Vice President of the Union, and the union representative. Williams stated that Stonestreet had pushed him and bumped him with his chest. He returned to his shift after the meeting. A joint union-company investigation was conducted. After employees who were questioned provided sufficient corroboration to establish that York rules of conduct were violated, the union and the company agreed that Williams and Stonestreet were to be suspended for five days. Both were warned that more serious discipline, including discharge, would follow any further incidents.
The union filed a grievance on Williams’s behalf on August 18, 1999, requesting reimbursement for the five days of lost pay and removal of the disciplinary notice from his file because his suspension was unjust. The union withdrew the grievance at the second step of the process.
Williams met with a doctor on November 18, 1999. He was diagnosed with “post-traumatic stress disorder with depression,” and met with the doctor six times through October 2000.
On March 30, 2000, Williams filed a complaint in federal district court, alleging assault, battery, wrongful suspension from employment, defamation of character, intentional infliction of emotional distress, and negligent infliction of emotional distress. Williams alleged diversity jurisdiction. York is a Delaware corporation and Williams is a citizen of Ohio. He alleged that the amount in controversy exceeded $75,000. York answered, alleging that certain of Williams’s state-law claims were preempted under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
The district court granted York’s motion for summary judgment. In its opinion, the district court concluded that Williams’s *811claims for intentional infliction of emotional distress and wrongful suspension from employment were preempted by federal law.1 It held that Williams had not met the elements of the intentional infliction of emotional distress claim. The court went on to state that a “wrongful suspension from employment” claim did not exist in Ohio, and it declined to create such a claim. The district court dismissed Williams’s claims for defamation of character and negligent infliction of emotional distress without addressing the preemption issue because Williams had failed to demonstrate the elements of those claims. And finally, the district court dismissed with prejudice the assault and battery claims because Williams failed to show that York was vicariously hable for Stones-treet’s torts. Williams timely appealed.2 We affirm, though on different grounds in part.
II
This court reviews a district court’s grant or denial of summary judgment de novo, and its findings of fact for clear error. Dudley v. Eden, 260 F.3d 722, 725 (6th Cir.2001); Grand Traverse Band of Ottawa and Chippewa Indians v. Dir., Mich. Dep’t of Natural Res., 141 F.3d 635, 638 (6th Cir.1998) (citing Russo v. City of Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992)). Summary judgment is appropriate when it appears “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56).
Initially, the party moving for summary judgment bears the burden of production under Rule 56. The movant may present evidence that negates an element of the non-movant’s claim, or may demonstrate “an absence of evidence to support the nonmoving party’s case.” Id. at 325. If the burden is met, the non-movant must show there is a genuine issue at trial by “mak[ing] a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “the mere existence of some alleged factual disputes between the parties will not defeat an otherwise properly supported motion” for summary judgment. Id. at 247-48.
Ill
In Ohio, a plaintiff claiming assault must prove that the defendant unlawfully touched or attempted to touch him with the intent of inflicting injury or at least intending to create fear of injury. Tarver v. Calex Corp., 125 Ohio App.3d 468, 708 N.E.2d 1041, 1051 (1998); Smith v. John Deere Co., 83 Ohio App.3d 398, 614 N.E.2d 1148, 1154 (1993). To establish a battery claim, the plaintiff must show that harmful or offensive contact actually resulted. *812Blankenship v. Park Care Ctrs., Inc., 913 F.Supp. 1045, 1052 (S.D.Ohio 1995).
Stonestreet arguably assaulted and battered Williams during their altercation. However, in order for York to be held accountable for Stonestreet’s actions, this assault and battery must have been committed within the scope of Stonestreet’s employment with York. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584, 587 (1991). If the torts (in this case, assault and battery) are intentional, the relevant behavior must be calculated to facilitate or promote business. Ibid. “[A]n intentional and wilful attack committed by ... an employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his ... employer is not responsible therefor.” Id. at 588 (quoting Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564, 568 (1952)).
The alleged assault and battery did take place while Stonestreet was supervising Williams and occurred during working hours. However, supervision “does not include using physical violence to reprimand an employee.” Dorsey v. Morris, 82 Ohio App.3d 176, 611 N.E.2d 509, 511 (1992). It is clear from evidence that York submitted to the district court that York in no way condoned or ratified Stonestreet’s behavior. York’s Employee Handbook proscribes any sort of violence or threats in the workplace. York also suspended Sto-nestreet for five days as a consequence of his behavior, and warned him that any further incidents would be punished with serious discipline or dismissal.
Williams did not meet the burden of production to establish York’s liability for Stonestreet’s assault and battery. The district court properly granted summary judgment to York on these two claims.
IV
The district court held that Williams’s intentional infliction of emotional distress claim was preempted by federal labor law. 29 U.S.C. § 185 (§ 301 of the Labor Management Relations Act). In this circuit, there is a two-step process for determining whether state-law claims are preempted by federal labor law. DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir.1994). First, the court “must examine whether proof of the state law claim requires interpretation of collective bargaining agreement terms,” and then “must ascertain whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state law.” Ibid. If either condition is fulfilled, then preemption is warranted. Ibid.
The district court held that all claims for intentional infliction of emotional distress in unionized workplaces are preempted, citing Beckwith v. Diesel Technology Co., 215 F.3d 1325 (Table), 2000 WL 761808, at *4 (6th Cir. May 30, 2000), DeCoe, 32 F.3d at 219-20, and Knafel v. Pepsi Cola Bottlers, Inc., 850 F.2d 1155, 1162 (6th Cir.1988). The court concluded that in order to determine whether the defendant had acted extremely or outrageously, it must refer to the collective bargaining agreement (to which both Williams and York were bound) to determine what constitutes proper conduct.
The district court’s conclusion that preemption is warranted in all cases involving intentional infliction of emotional distress is too broad. The cases that the district court cites are all distinguishable. For instance, in DeCoe, the court found that a claim for intentional infliction of emotional distress was preempted by § 301 because the court had to refer to the collective bargaining agreement in order to determine whether the defendant’s behavior was outrageous. DeCoe, 32 F.3d at 220. However, the behavior in question was a *813false allegation of sexual harassment. The collective bargaining agreement contained a sexual harassment policy that imposed a duty on the union, workers, and the company to resolve sexual harassment claims. Id. at 217. A defendant has not acted outrageously “where he has done no more than to insist upon his legal rights in a permissible way, even though he was well aware that such insistence [wa]s certain to cause emotional distress.” Id. at 219 (quoting Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 195 (6th Cir.1986)). In De-Coe, the court had to determine whether the defendant was merely insisting on her legal rights, and had to do so by reference to the collective bargaining agreement’s sexual harassment provisions. If the defendant was exercising her legal rights, then her conduct was not extreme or outrageous.
There is no such provision in the collective bargaining agreement cited by the district court or York. Stonestreet’s behavior can be judged by common standards as to what the bounds of decency are, what can be tolerated in a civilized community, or what a reasonable man can endure, without referring to the collective bargaining agreement for guidance. Moreover, this claim is born of Ohio state law. The district court erred in finding that Williams’s intentional infliction of emotional distress claim was preempted by § 301 of the Labor Management Relations Act. Thus, the claim should be analyzed under Ohio state law.
Y
In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff in Ohio must establish: “1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff, 2) that the actor’s conduct was so extreme and outrageous as to go ‘beyond all possible bounds of decency5 and was such that it can be considered as ‘utterly intolerable in a civilized community,’ 3) that the actor’s actions were the proximate cause of plaintiffs psychic injury, and 4) that the mental anguish suffered by plaintiff is serious and of a nature that ‘no reasonable man could be expected to endure it.’ ” Pyle v. Pyle, 11 Ohio App.3d 81, 463 N.E.2d 98, 103 (1983) (internal citations omitted).
Williams did not point to any evidence that tended to establish the elements of intentional infliction of emotional distress. At most he established that he suffered from some sort of psychic injury that might have been caused by the incident at the factory. He presented no evidence to establish Stonestreet’s intent, no evidence to establish the extremity or outrageousness of Stonestreet’s conduct, no evidence that his injury was proximately caused by Stonestreet’s actions, and very little evidence to establish the severity of his injury. He vaguely alleges a pattern of racial abuse at the York plant. However, he failed to assert one piece of solid evidence to back up this allegation. Even when pressed by York’s counsel at his deposition, he could not think of any evidence to bolster his allegation of racial harassment, except “it’s all so many little things that goes on in there,” and “[i]f you was in the plant, you can see it,” and “I don’t have any facts or personal knowledge, but I am looking at it. I am seeing it.” JA 363-65.3
*814In opposition to York’s motion for summary judgment, Williams offered his affidavit, in which he alleges he has been diagnosed with post-traumatic stress disorder with depression as a result of the racial abuse he claims to have suffered at York. However, in order to survive a motion for summary judgment, when the movant has presented evidence negating an element of the non-movant’s claim, or the movant demonstrates a lack of evidence to establish the non-movant’s claim (as York did), the non-movant must produce some evidence to establish the elements of its claim. Celotex, 477 U.S. at 322, 325. Williams’s affidavit expresses his own opinion of the matter, and asserts as hearsay his doctor’s diagnosis of his condition. Hearsay is inadmissible in affidavits submitted in conjunction with, or in opposition to, motions for summary judgment. Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994).
In light of Williams’s failure to point to any substantive evidence that might tend to establish the elements of his claims, summary judgment was appropriate, and the district court properly dismissed his claim for intentional infliction of emotional distress. As Williams cannot sustain a claim against Stonestreet, it follows that any claim against York must also fail.
VI
Regarding Williams’s negligent infliction of emotional distress claim, in Ohio, “[liability for negligent infliction of emotional distress arises where a bystander to an accident suffers serious and foreseeable emotional injuries.” Tohline v. Cent. Trust Co., 48 Ohio App.3d 280, 549 N.E.2d 1223, 1228 (1988). Ohio courts do not recognize a separate tort for negligent infliction of emotional distress in the employment context. Ray v. Libbey Glass, Inc., 133 F.Supp.2d 610, 620 (N.D.Ohio 2001); Hatlestad v. Consol. Rail Corp., 75 Ohio App.3d 184, 598 N.E.2d 1302, 1306-07 (1991). The district court properly granted summary judgment to York and dismissed this claim with prejudice as Williams fails to meet a single element of this tort.
VII
For all the foregoing reasons, the judgment of the district court, granting summary judgment to York on the assault, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress claims is, AFFIRMED.
. The court stated that had the state law claims not been preempted, that it would have dismissed the case for lack of jurisdiction as Williams had not demonstrated to the court that damages were in excess of $75,000. We disagree.
. Williams’s brief contests the granting of summary judgment in favor of York on the claims of assault and battery and intentional or negligent infliction of emotional distress. The appeal on the claims of wrongful suspension of employment and defamation of character are presumed to be waived.
. All of the deposition evidence that was considered by the district court was taken from excerpts of Williams’s deposition attached by York to its various memoranda. York did not attach the deposition in its entirety. Williams did not provide any excerpts to support his argument. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217826/ | PER CURIAM.
This appeal arises from Cynthia Fraser’s conviction for violations of 18 U.S.C. § 371, conspiracy to defraud for the purpose of carrying on a mail or telemarketing scheme, and of 18 U.S.C. § 1342, using a fictitious name or address. Fraser claims that the evidence was insufficient to support her convictions because the United States failed to prove beyond a reasonable doubt that any of the conduct at issue actually occurred within the statute of limitations of five years. For the following reasons, we AFFIRM Fraser’s conviction.
The United States indicted Cynthia Fraser on August 29, 2001, for using a fictitious name in a telemarketing scheme. The indictment alleged that Fraser had engaged in the illegal activity in question in July and August of 1996, continuing that illegal behavior through at least August 30, 1996.
The indictment arose out of Fraser’s relationship vñth a business associate, Craig Hragyil. Hragyil and Fraser were both veterans of the telemarketing industry. Fraser had been in the business since 1980. She met Hragyil when they both worked for a man named Brian Ross, who ran a telemarketing company. When Ross began having legal problems and his business was searched. Fraser incorporated another company in her own name at his request. Fraser soon had personal problems of her own, and in the summer of 1996, she left Ross’s employ and moved to California. While looking for employment, Fraser contacted Hragyil to see if he could offer her work.
In June of 1996, while still working for Ross, Hragyil was setting up a scheme called a “rip and tear” operation. This kind of scheme involves setting up a fake business and using lists of phone numbers to target consumers with offers of prizes and promotions if only the victim will send a fee to the business, in order to collect the prize. The scheme at issue here targeted victims across the country over fifty-five *816years of age. Hragyil asked Fraser to facilitate opening a mailbox at an out-of-state location in order to receive victims’ checks, and he offered her money to do so. He offered her one hundred dollars a week for having someone open the mailbox, and he offered to pay her cellular phone bill and to pay whoever opened the distant mailbox (also one hundred dollars a week).
Fraser agreed to the arrangement, and she completed and filed, in California, a fictitious Business Name Application for “ESB, Ltd.,” calling herself “Patricia Johnson” and using a phony address. Patricia Johnson is the maiden name of an old friend of Fraser’s, Patricia Wells. Fraser contacted Wells in Ohio to open the mailbox. Wells agreed, and she used “Patricia Johnson” to open a mailbox for “ESB, Ltd.” at Mailboxes, Etc., in Mentor, Ohio. Wells used a false address as well, and she listed the type of business as “flags and mailers.” There was evidence that Fraser had directed Wells to open the mailbox for three months, and Wells did so, renting the space for July 2, 1996, through October 2,1996. Fraser and Hra-gyil paid Wells for the costs of opening the box.
Fraser claims she found nothing unusual about the fictitious name or the out-of-state mailbox. “ESB, Ltd.,” however, was not a real company. Fraser further used “Patricia Johnson” to create an account with a check-cashing business in California. She used a false address and Wells’ lapsed Georgia identification card, which Wells had sent to Fraser upon Fraser’s request. Fraser also requested, and Wells sent, a copy of Wells’ Ohio driver’s license and a credit card.
Within a week of opening the mailbox, Hragyil set his scheme into action. The salespeople he had hired began making phone calls to people on the lists, and the checks from victims began arriving. Hra-gyil had arranged the system such that salespeople notified him of how the checks were being sent, the check numbers, who was sending them, when they would arrive at the box, and what the amount was. As part of her role in the scheme, Wells forwarded the mail received in the box to California. Wells checked the box once a week, and she loaded all the mail in an envelope which she sent on to California, typically to Fraser. She called Fraser’s pager to indicate that a package was forthcoming.
The first batch of forwarded mail was sent to Hragyil on July 23,1996, and after-wards, in order to distance himself, Hragy-il asked Fraser to provide Wells with pre-addressed FedEx labels.
Fraser served as the intermediary between Hragyil and Wells, who never had any personal contact. Fraser would receive the checks and other mail from Wells and give them to Hragyil. Each time Wells sent the mail, Fraser would send cash payments to Wells’ home address. The packages Wells received at home from Fraser had varied return addresses, with varied names for Fraser: ‘Wingnut,” “Mrs. Fraser,” etc. Fraser never used her full correct name, nor did she ever use her own home address. Wells sent the mail at least three to four times and was paid at least three times.
On August 30, 1996, Wells sent a package to Fraser, addressed to “Cindy Wing-nut.” Wingnut” was the name that Wells and Fraser had used for each other throughout their friendship and used in some of the exchanged documents during the scheme. Fraser claims that the only thing this package contained was personal correspondence from Wells and pictures of Wells’ granddaughter.
Wells sent two packages without receiving any payment, and she then stopped *817forwarding the mail. It is unclear when this happened, although the last victim check Hragyil received, that postal investigators were able to track, arrived on August 27, 1996. Hragyil cashed this check on August 28,1996.
Around September 16, 1996, pursuant to complaints, an investigation into “ESB, Ltd.” began. After cooperation from Fraser and Wells, Hragyil was indicted on August 27, 2001. Fraser was indicted on August 29, 2001. She moved to dismiss the indictment against her, arguing that the five-year statute of limitations had lapsed. This motion was denied, as were her subsequent motions for judgment of acquittal under Federal Rule of Criminal Procedure 29. The jury found Fraser guilty on both counts of the indictment, and she was sentenced to three months incarceration with three years supervised release. She was ordered to pay restitution of approximately $38,000 jointly and severally with Hragyil.
“[I]n our review of a motion for acquittal, we determine whether the evidence was sufficient to submit the case to the jury at the completion of the evidence for the United States.” United States v. Nabors, 901 F.2d 1351, 1357 (6th Cir.1990). This Court has further said, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “In a criminal case the standard of review for claims of insufficient evidence is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989). Finally, as to the credibility of the testimony offered by the witnesses, “Questions of credibility are primarily for the jury to decide.” United States v. Wynn, 987 F.2d 354, 358 (6th Cir.1993).
“A defendant claiming ‘insufficiency of the evidence bears a very heavy burden.’ ” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)). This appeal pertains to the sufficiency of the evidence in proving that an indictment was timely filed, within the statute of limitations. The statute of limitations period for a violation of Section 371 “is five years, which period runs from the date of the commission of the last overt act in furtherance of the conspiracy.” United States v. Craft, 105 F.3d 1123, 1127 (6th Cir.1997). As for the violation of Section 1342, generally “The statute of limitations begins to run when the crime is complete.” United States v. Lutz, 154 F.3d 581, 586 (6th Cir.1998). For an offense involving the use of a fictitious name or address, the crime is defined in Section 1342 as
Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined under this title or imprisoned not more than five years, or both.
The statute of limitations, then, begins to run when the use of the fictitious name or address is complete.
The United States relies primarily on the August 30, 1996, letter from Wells to Fraser. The United States introduced substantial evidence that the letter was part of the fraudulent scheme and provid*818ed ample evidence of the conspiracy and Fraser’s role in it in the days and weeks before August 30. The jury had the opportunity to observe Fraser’s credibility during her testimony at trial, and the jury must have believed that the August 30 letter was not purely personal correspondence but was related to the conspiracy. “[I]n reviewing the denial of a criminal defendant’s motion for acquittal, we are precluded from independently assessing the credibility of witnesses.” United States v. Bearden, 274 F.3d 1031, 1039 (6th Cir.2001). That letter was also sent to “Cindy Wingnut,” and that name was one of the aliases Fraser used during the fraud. The jury was specifically instructed on what they had to believe about the timing of the “end” of the conspiracy in order to acquit or to convict. If the jury believed that the August 30, 1996, correspondence was a continuing part of the fraud then the conduct charged in the indictment occurred within the statute of limitations.
Fraser argues that she cannot be guilty of the violation, even if the foregoing is true, because it was Wells who used the fictitious name for Fraser. Fraser did not use it for herself in the August 30, 1996, correspondence. This is a faulty argument, however, because Section 1342 says that accepting mail under a fictitious name creates a violation as well. See 18 U.S.C. § 1342 (“or takes or receives from any post office or authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name.... ”).
In United States v. Hayter Oil Co., Inc. of Greeneville, Tenn., 51 F.3d 1265, 1270-1271 (6th Cir.1995) (internal citation omitted), we said, “Proof of an overt act taken in furtherance of the conspiracy within the statute of limitations period would clearly demonstrate the continued existence of the conspiracy. However, once a conspiracy has been established, it is presumed to continue until there is an affirmative showing that it has been abandoned.” At the time Wells sent the August 30 letter to Fraser, she was still in regular contact with Fraser and receiving payment from her. At trial, the United States presented evidence from Wells that in spite of Fraser’s statements to the contrary, the fraud activity continued through the end of August, and on August 30, 1996, Wells was still collecting and forwarding mail to Fraser. As further evidence, mail continued to come to the box into the middle of September, a box opened exclusively for the purpose of fraud. That mailbox was rented for a period ending long after August 29, 1996. Finally, based on information from the investigations, over $6,000 in checks would have been in the mailbox after August 27, 1996, and Hragyil would have known how much and when it was coming. Therefore, there is substantial evidence to show the existence of the continuing conspiracy.
Further, there was no affirmative evidence that the conspiracy had been abandoned, arguably, until Wells returned the keys to Mailboxes, Etc. There is evidence that Wells waited some unknown period of time after her last payment, hoping to be paid for the last two shipments of mail, before she closed the mailbox.
In United States v. Overmyer, 867 F.2d 937, 938 (6th Cir.1989), citing Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), this court said, “The Supreme Court has observed that the granting of a motion of acquittal, ‘... will be confined to cases where the prosecution’s failure is clear.” ’ Based on the evidence before this court and on the deference owed to the jury as judge of the *819credibility of the evidence, we AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217827/ | PER CURIAM.
Plaintiff, Arlene S. Pownall, appeals from the district court’s order granting summary judgment to the City of Perrys-burg and denying her motion for partial summary judgment on claims brought pursuant to the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654. The district court concluded that Pownall had effectively resigned her position with the City of Perrysburg and thus did not suffer an adverse employment action as required for recovery under the FMLA. For the reasons that follow, we AFFIRM.
I.
In March 1995, Pownall began working for the City of Perrysburg, Ohio, as a clerk in the Tax Department. She was a member of the Perrysburg Municipal Employees’ Association (“PMEA”), and in June 1999 her supervisor was Lizabeth Larson-Shidler. Pownall’s lawsuit against the City and her appeal arise out of her request for a leave of absence in June of 1999.
In 1992, Pownall underwent surgery to receive breast implants. The surgery was performed by Satish C. Vyas, M.D., a plastic surgeon in Dearborn, Michigan. On May 6, 1999, Pownall, suspecting that the implants may have ruptured, visited Dr. Vyas who confirmed that the implants needed to be surgically removed and scheduled surgery for Thursday, June 10, 1999. Pownall knew that her supervisor had scheduled a vacation to begin on June 28, 1999, and planned the surgery so that she would be back by that date. Her doctor would not be in the office in July, and she did not believe she could wait until August for her surgery. Pownall did not inform her supervisor of the scheduled surgery until June 3, 1999, almost one month after it had been scheduled.
Pownall was off work on Tuesday, June 1, 1999, to have the necessary pre-surgery testing performed.1 On Thursday afternoon, June 3, 1999, after Dr. Vyas’ office had called and told Pownall that her surgery was being moved up from Thursday, June 10, 1999, to Monday, June 7, 1999, she verbally informed her supervisor about her scheduled surgery. In an effort to determine whether it was elective surgery and subject to postponement, Pownall’s supervisor asked about the nature of the surgery. Pownall responded that she was not comfortable enough to talk about the surgery with her supervisor. She did, however, inform her supervisor that she would finish all her work before Monday, June 7,1999.
The following morning, Friday, June 4, 1999, Pownall’s supervisor gave her a memo informing her that, for sick leaves exceeding three days, the City required certain information. It was requested that Pownall provide the City that day with: (1) a written absence request and (2) a signed doctor’s notice indicating (a) the length of required convalescence and other things that would affect Pownall’s return to work such as follow-up visits and work restrictions and (b) the reason the surgery was scheduled without notice, because it would be better from the department’s perspective if the surgery could be rescheduled for August (acknowledging that Pownall had previously indicated that the surgeon was unavailable in July). That same morning, Pownall provided her supervisor with a written absence request and report form requesting paid sick leave for surgery from June 7, 1999, through June 28, 1999. Pownall also called her *821doctor’s office, read her supervisor’s memo to a secretary, and requested the required information. The secretary told her that the doctor’s office was closing at noon, but assured Pownall that the doctor’s office would fax over documentation. Pownall then took a late lunch (about 2:30 p.m.). Pownall’s supervisor found the doctor’s Certificate of Disability on the fax machine while Pownall was at lunch. It did not address whether Pownall’s surgery could be postponed until August. It merely indicated that surgery was scheduled for June 7, 1999, and that Pownall could return to work on June 28,1999, without any restrictions.
Around 3:30 p.m. on Friday, June 4th, after Pownall returned from lunch, her supervisor asked her to come to her office. The supervisor had observed that the doctor performing the surgery was a plastic surgeon and thus wanted to inquire again whether the scheduled surgery was something elective that could be postponed. She asked Pownall about the reason for the surgery and whether it could be postponed until August. Pownall found it very difficult to discuss her surgery. After trying to explain to her supervisor why she had to have the surgery as scheduled and her supervisor still not understanding why she could not have it postponed, Pownall told her supervisor, “I guess this means you want me to quit.” Despite her supervisor’s assurance that she did not want Pownall to quit, Pownall testified that, having said she was quitting, she felt she had to quit. She left her supervisor’s office, searched for and filled out forms she believed were necessary for employees permanently leaving their employment, put the completed forms on her supervisor’s desk, got her purse and left work early. After Pownall left, her supervisor conferred with City personnel, and it was determined that, based on her actions, Pownall had voluntarily quit before the City had an opportunity to make a decision on her leave and thus she was no longer considered to be a City employee.
On Monday, June 7, 1999, Pownall had the surgery and was discharged.2 She did not contact the City in the week following her surgery to indicate that she wanted to return to work. Rather, her first contact with the City came over a week after her surgery and was prompted by a letter from the City summarizing the events of Friday, June 4th, and asking Pownall to confirm her intent to resign: ‘You did not have your physician respond to the issues of follow-up visits or the emergency/elective nature of the surgery. When I asked you for the information in order to approve your leave you became agitated and finally walked out indicating your desire to terminate employment.” On June 15.1999, Pownall placed a letter addressed to the City Tax Department in an outdoor drop-off box, stating that she believed she was pressured, harassed and humiliated into saying she quit.
On June 16, 1999, Pownall filed a grievance through the PMEA. The grievance was denied, because it was determined that Pownall was not harassed and that she had voluntarily resigned her employment with the City on June 4, 1999. Pow-nall attempted to return to work on June 28.1999, and she was asked to leave.
Pownall filed suit against the City on October 27, 2000, alleging that the City violated her rights under the Family and Medical Leave Act; discriminated against *822her on the basis of a handicap in violation of Ohio Revised Code § 4112.02(A) and on the basis of her age in violation of Ohio Revised Code §§ 4112.02(A) and 4112.01(N); and committed state torts of intentional infliction of emotional distress, defamation, and wrongful discharge in violation of public policy. The City filed a motion for summary judgment and, in response, Pownall filed a cross motion for partial summary judgment on her FMLA claim and voluntarily dismissed her state-law claims of handicap discrimination and intentional infliction of emotional distress.
On August 16, 2001, the district court granted the City’s motion for summary judgment and denied Pownall’s motion. It held that Pownall had voluntarily resigned under Ohio law, had not suffered an adverse employment action, and thus could not recover under the FMLA. The district court also dismissed Pownall’s remaining state law claims without prejudice.
Pownall argues on appeal that the district court misapplied the summary judgment standard, incorrectly concluded that she voluntarily resigned her job, failed to consider her constructive discharge argument, and incorrectly concluded that it need not consider her FMLA claims because she voluntarily resigned.
II.
We review the district court’s grant of summary judgment de novo. Darrah v. City of Oak Park, 255 F.3d 301, 305 (6th Cir.2001). “Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law.” Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1225 (6th Cir.1997) (citing Fed.R.Civ.P. 56(c)). We review the district court’s denial of summary judgment for an abuse of discretion. Id.
Contrary to Pownall’s argument, the district court properly applied the summary judgment standard and dismissed Pow-nall’s FMLA claims. It applied undisputed facts to Ohio law concerning effective resignations and correctly concluded that Pownall had voluntarily resigned her position on June 4, 1999; had not suffered an adverse employment action; and thus could not maintain her FMLA claim. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir.1999).
A. Effective Resignations Under Ohio Law
Under Ohio law, an employee is deemed to have voluntarily resigned when that employee takes the steps necessary to complete an effective resignation. Id. at 448. “An employee must take two steps in order to effectively resign. First, the employee must express an intention to resign. Second, the employee must take some action to demonstrate that he is relinquishing his position.” Id. (internal quotes and citations omitted). Both steps must be completed in order to be recognized as an effective resignation. See id. Accord State Employment Relations Bd. v. Ohio State Univ., 36 Ohio App.3d 1, 520 N.E.2d 597, 600 (1987) (observing that the plaintiff employee had voluntarily resigned under Ohio law because she had expressed “both an intent to relinquish (the letter of resignation) accompanied by an action of relinquishment (packing her desk and leaving)”). This two-step analysis considers the objective manifestations of an employee’s intent rather than evidence of subjective intent.
The district court properly applied the required two-step analysis and determined that Pownall had effectively resigned her position with the City on June 4,1999. First, Pownall told her supervisor *823on that date that she quit and thus expressed her intent to resign. Second, she took actions demonstrating that she was relinquishing her position: after informing her supervisor that she quit. Pownall left her supervisor’s office to find and fill out forms she believed she needed to quit, put the completed forms on her supervisor’s desk, and left work before the work day was over. The fact that Pownall did not attempt to contact the City for over a week after taking these actions buttresses the conclusion that she effectively resigned on June 4, 1999. Contrary to Pownall’s arguments here, the district court relied upon undisputed facts in reaching its conclusion. These undisputed facts are sufficient to show that Pownall expressed an intent to resign accompanied by acts of relinquishment on June 4, 1999. “Collectively, [Pownallj’s actions sufficiently confirmed [her] intention to sever the employment relationship.” Hammon, 165 F.3d at 449.
Although the City subsequently sent Pownall a letter asking her to confirm her resignation, this does not alter the fact that she effectively resigned on June 4, 1999. Similar to the plaintiff in Hammon, when Pownall did attempt to withdraw her resignation on June 15, 1999, by claiming she was pressured, harassed and humiliated into saying she quit, she “had already taken both of the steps necessary to complete an ‘effective resignation.’ ” Id. Similar to the plaintiff in State Employment Relations Board v. Ohio State University, once Pownall’s voluntary resignation took effect, she had no right to revoke it, and the City had no duty to reinstate her. See 520 N.E.2d at 598. The district court correctly concluded that the City properly refused to allow Pownall to return to work despite her filing a grievance on June 16, 1999, and despite her attempt to return to work on June 28,1999.
Pownall’s rebanee on Davis v. Marion County Engineer, 60 Ohio St.3d 53, 573 N.E.2d 51 (1991), is misplaced. In Davis, the Ohio Supreme Court considered “whether, and under what circumstances,” a civil service employee could withdraw a prospective resignation before its effective date. Id. at 53. It observed that, prior to the implementation of Ohio civil service laws, “a pubbe employee who resigned from office effective at a future date could not withdraw such resignation absent the consent of the accepting party.” Id. After the implementation of civil service laws, the Davis court concluded that “the crucial factor in determining the legal effectiveness of a withdrawal of resignation from pubbe employment prior to its effective date is the manner of acceptance conveyed by the employer to the employee.” Id. Accordingly, it held that “a public employee may rescind or withdraw a tender of resignation at any time prior to its effective date, so long as the pubbe employer has not formally accepted such tender of resignation.” Id. at 55.
Davis addresses pubbe employees governed by Ohio’s civil service laws, and Pownall does not fab within this category. Davis is also distinguishable because it considers the withdrawal of a prospective resignation before its effective date. Pow-nah’s resignation was not prospective. Rather, on June 4, 1999, she expressed an intent to immediately quit and took actions that objectively confirmed that intent. The City’s letter of June 8, 1999, did not convert Pownall’s immediate intent to quit into a prospective resignation. Accordingly, despite her subsequent actions and the subsequent actions of the City, Pownall had no right to revoke her previous voluntary resignation.
B. Constructive Discharge
PownaU also argues that the district court erred when it failed to find that a *824genuine issue of material fact exists for trial on her claim that, rather than voluntarily resigning, she was constructively discharged on June 4, 1999. The City raised the issue of a constructive discharge in its motion for summary judgment. It argued that Pownall could not establish that she was constructively discharged on June 4, 1999, because she had admitted that prior to June 1999 she had no problem with her supervisor and could not present any evidence showing harassment or intolerable working conditions. Pownall failed to respond to the City’s arguments and failed to present evidence demonstrating that a genuine issue of material fact exists on her constructive discharge claim. We do not need to address this argument, as it was not considered by the court below. See Estate of Quirk v. Comm’r, 928 F.2d 751, 757-58 (6th Cir.1991).
C. FMLA Claim Cannot Survive Absent An Adverse Employment Decision
Pownall further argues that, despite the district court’s determination that she voluntarily resigned, it improperly dismissed her FMLA claims. This court disagrees. Pownall’s argument is based on the erroneous assumption that the City took an adverse action against her. It did not. Rather, as the district court correctly concluded, Pownall voluntarily resigned on June 4,1999. Her subsequent attempts to rescind that resignation were ineffective under Ohio law. Accordingly, she cannot claim that she suffered an adverse employment decision and cannot maintain a claim that the City violated her rights under the FMLA. See Hammon, 165 F.3d at 447.
III.
For the reasons provided above, we AFFIRM the district court’s grant of summary judgment in favor of the City and its denial of partial summary judgment in favor of Pownall.
. Pownall had submitted a written request for that day off on May 24, 1999.
. Dr. Vyas's operative report indicates that he removed the left, intact saline implant and the right, ruptured saline implant; performed ab-dominoplasty; removed lesions from each cheek; and treated another lesion on the left cheek with a laser; and that Pownall tolerated the treatment well and was in satisfactory condition. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217828/ | OPINION
GILMAN, Circuit Judge.
Carlos Rosales-Urbina pled guilty to the charge of illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). He received a sentencing enhancement pursuant to 8 U.S.C. § 1326(b) because he had been previously convicted of committing an aggravated felony. In this appeal, Rosales-Urbina challenges both his conviction and sentence.
I. BACKGROUND
Rosales-Urbina, a citizen of Honduras, had illegally entered the United States on at least three separate occasions and had been deported on June 1, 1987, September 17, 1987, and January 1, 1996. While in the United States between his second and third deportions, he was convicted of separate offenses for transporting a controlled substance and for committing second-degree theft.
Rosales-Urbina once again returned to the United States without the permission of the United States Attorney General, and was arrested in Knoxville, Tennessee in July of 2001. He was charged in a one-count indictment with violating 8 U.S.C. § 1326(a) because he was “an alien who had previously been deported from the United States ... [and] was found to be knowingly and voluntarily in the United States without having obtained the prior consent of the United States Attorney General....” On October 23, 2001, Rosales-Urbina pled guilty to this charge. In the plea agreement, he acknowledged that since he had been previously convicted of an aggravated felony, he was subject to an enhanced penalty pursuant to 8 U.S.C. § 1326(b)(2).
The district court sentenced Rosales-Urbina to a term of imprisonment of 51 months and a period of supervised release of 2 years, in addition to a fine of $100. This timely appeal followed.
II. ANALYSIS
On appeal, Rosales-Urbina argues that he was deprived of his due process rights guaranteed by the Fifth Amendment because (1) the government did not allege an essential element of 8 U.S.C. § 1326(b)(2) in the indictment, and (2) the district court sentenced him pursuant to 8 U.S.C. § 1326(b)(2) after he pled guilty to violating 8 U.S.C. § 1326(a).
Section 1326(a) provides that “any alien who ... has been ... deported ..., and thereafter ... enters ... the United States, unless ... the Attorney General has expressly consented to such alien’s reapplying for admission!,] ... shall be fined[,] ... imprisoned not more than 2 years, or both.” Subsection (b) of the statute provides that “Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection ... whose removal was subsequent to a conviction for commission of an aggravated felo*826ny, such alien shall be fined[.] ... imprisoned not more than 20 years, or both.”
The parties agree that United States v. Aparco-Centeno, 280 F.3d 1084 (6th Cir.), cert. denied, 536 U.S. 948, 122 S.Ct. 2638, 153 L.Ed.2d 818 (2002), is controlling. Presented with the same arguments raised in this appeal, the Aparco-Centeno court concluded that § 1326(b) is a sentencing-enhancement provision-and not a “separate offense”-that may be applicable following a conviction pursuant to § 1326(a). Id. at 1090 (noting that the Supreme Court held in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that § 1326(b) is “an enhancement for recidivism”). Aparco-Centeno further held that the conviction used to enhance a sentence pursuant to § 1326(b) need not be proven beyond a reasonable doubt, even in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 280 F.3d at 1089 (“Since recidivism also enjoys a traditional role as a sentencing factor, the term ‘aggravated felony1 escapes the burden of proof mandate that exists for an element of a crime.”).
Rosales-Urbina’s argument is simply that Aparco-Centeno was wrongly decided. But one panel of this court cannot overrule the decision of a prior panel. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”). We therefore decline to consider the merits of Rosales-Urbina’s argument.
Because § 1326(b) is a sentencing enhancement not subject to the constraints of Apprendi, its essential elements need not have been alleged in the indictment. We therefore conclude that Rosales-Urbi-na’s due process rights were not violated when he pled guilty to § 1326(a) and was given an enhanced sentence pursuant to § 1326(b).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217829/ | GIBBONS, Circuit Judge.
Defendant-appellant Arthur Quentice Jones was convicted of thirteen counts of distribution of crack cocaine and one count of possession of crack cocaine with intent to distribute. Jones appeals his conviction *828on the grounds that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he distributed crack cocaine and that the district court thus erred in denying his motion for acquittal after the close of the government’s proof. Jones also argues that the district court abused its discretion by failing to grant his motion for a downward departure of his sentence. For the reasons set forth below, we affirm the conviction and the sentence imposed by the district court.
I.
On January 10, 2001, Jones was indicted on fourteen counts of distributing cocaine base and one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The government moved to dismiss one distribution count of the indictment before trial, and the court granted that motion. The government called five witnesses at trial: Marion County detective Jackie Williams, Marion County chief detective Brent Myers, South Pittsburg police officer Wayne Jordan, confidential informant Anthony Hale, and DEA special agent Robert Chester.
The government first called Williams, who testified that on January 28, 2000, he and Myers observed Jones standing with another individual near Moore Park in South Pittsburg, Tennessee. Williams testified that he and Myers parked their car and walked toward Jones. Jones approached them, “asking what’s going on, you know, what are you messing with me for or whatever, and statements to that effect.” Williams stated that as Jones walked toward them, he “darted behind a large tree” for “a second or two” and then “came back out and kept on with this, what’s going on, what are you messing with me for and all of this.” Williams testified that he then “went to behind the tree where he was, where I saw him go” and found a white bottle containing twenty-three rocks of crack cocaine. At this point, Jones was placed under arrest and searched. Williams testified that as Jones was placed under arrest, he stated, “I’m not the only drug dealer in South Pitts-burg, why don’t you all mess with somebody else.” The officers also found $597 in cash on his person.
The government next called Myers, who testified that on January 23, 2000, he and Williams conironted Jones. Myers stated that from a distance of ten to fifteen feet he saw Jones make a motion with his hand behind a tree, but that the tree obscured his vision and prevented him from seeing whether anything was released from Jones’s hand. Myers then observed Williams retrieve a white bottle containing “23 rock-like substances believed to be crack rock” from behind the tree. Myers confirmed that $597 in cash was found on Jones. Myers testified that as Jones was placed under arrest, he said, “I’m not the only drug dealer in South Pittsburg, I don’t know why you all are messing with me.”
The government then called Jordan, who testified that he was responsible for making tape recordings of conversations between Hale and Jones. Jordan stated that the transcripts were a fair and accurate representation of what was heard on the recordings. Jordan testified that he equipped Hale with a body wire and provided Hale with money. Hale then purchased narcotics from Jones and gave the narcotics to Jordan. Jordan testified that he saw Jones “get into the vehicle” with Hale on two occasions.
The government next called Hale, who testified that his entire life he had known Jones. Hale testified that beginning in 1999, he bought crack cocaine for the drug task force. Hale stated that he met with *829Jordan, who placed a wire on Hale, gave him money, and searched him and his vehicle before each buy. Hale explained that he was paid $50 for every buy. Hale also testified that he assisted in the preparation of the transcripts of the recordings, and that while some of the recordings were difficult to decipher, others were clear.
The government then asked Hale about each of the purchases he made from Jones. Before discussing each transaction with Hale, the government first played a recording of the transaction. Hale testified to purchasing crack cocaine from Jones on the following dates: December 19, 1999; December 29, 1999; December 31, 1999; January 17, 2000; January 23, 2000; January 29, 2000; January 31, 2000; February 4, 2000; February 6, 2000; February 10, 2000; February 29, 2000; May 5, 2000; and May 30, 2000.
On the recording of the January 31 transaction, Hale can be heard complaining about the quantity of crack cocaine, to which Jones responds, “That’s the best I can do.” Hale also can be heard telling Jones that he will deliver the cocaine and get Jones his money. Hale also asks Jones for “an eight-ball in solid,” which Hale explained was an eight-ball of crack cocaine, and Jones answers, “I can get you some, a solid fing ounce” at the cost of $1,200.
Chester was the final witness called by the government. He testified that the twenty-three crack rocks contained in the bottle recovered on January 23, 2000, was an amount consistent with “intent to distribute” rather than personal use. Chester also explained that his conclusion was based upon the fact that Jones had “identified himself as a, for one, as a drug dealer, two, the fact that this portion of cocaine and the sum of money that was found on him.”
After the conclusion of the government’s case, Jones moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court denied the motion. Jones called no witnesses. Both sides presented closing arguments, and the court instructed the jury, which returned a guilty verdict as to all remaining counts.
Following the guilty verdict, a presen-tence investigation report was prepared that reflected two prior cocaine distribution convictions from state court. The report concluded that these convictions were “predicate convictions for Career Offender purposes.” As a result, Jones’s sentencing guideline range was determined to be 262-327 months. On July 12, 2000, Jones filed a motion for downward departure. Pursuant to Section 5H1.4 of the Sentencing Guidelines, Jones claimed “extraordinary physical impairment” as a result of heart disease. Jones also argued that he was “not the typical Career Offender” because he “sold small quantities” and was thirty-eight years old before he became involved in criminal activity.
At the sentencing hearing, the district court concluded that, with respect to Jones’s health, “I don’t think that we’re looking at a man that’s in any kind of acute physical distress here and, otherwise, receiving medical treatment.” With respect to the career offender provision, the court noted that Jones has “been dealing drugs constantly except for the time that he’s been in prison since ’89. I mean, it may be small amounts, but it’s been constant.” The court thus denied the motion for downward departure and sentenced Jones to 262 months, the lowest sentence within the guideline range.
II.
A.
This court reviews claims of insufficient evidence using the same standard as the *830district court. United States v. Avery, 128 F.3d 966, 971 (6th Cir.1997). “In deciding whether the evidence is sufficient to withstand a motion for an acquittal, and support a conviction, the court views all evidence in the light most favorable to the prosecution and determines whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999). “A court properly denies a challenge to the sufficiency of the evidence where ‘after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “A defendant claiming ‘insufficiency of the evidence bears a very heavy burden.’ ” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.1986) (quoting United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983)). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” Id. (citing United States v. Stone, 748 F.2d 361 (6th Cir.1984)). men reviewing a challenge to the sufficiency of the evidence, this court must not “weigh the evidence presented, consider the credibility of witnesses, or substitute our judgment for that of the jury.” United States v. Davis, 177 F.3d 552, 558 (6th Cir.1999). “[T]he granting of a motion to acquit ‘will be confined to cases where the prosecution’s failure is clear.’ ” United States v. Keeton, 101 F.3d 48, 52 (6th Cir.1996) (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (footnote omitted)).
Jones asserts that the government presented insufficient evidence to sustain his conviction under 21 U.S.C. § 841(a)(1) and that the district court therefore erred in denying his motion for a judgment of acquittal. Viewing the evidence in the fight most favorable to the prosecution, Jones’s challenge to the sufficiency of the evidence fails. The government introduced ample evidence from which the jury could find beyond a reasonable doubt that Jones possessed cocaine base with the intent to distribute and that Jones distributed cocaine base. In particular, Williams and Myers testified that they saw Jones “dart[] behind a tree” as he approached them, and that a bottle containing twenty-three crack rocks was recovered from that location by Williams moments later. Williams and Myers also testified that at the time of the arrest Jones admitted to being a drug dealer. Confidential informant Hale testified that he purchased crack cocaine from Jones on thirteen separate occasions. Hale’s testimony was corroborated by recordings of several of these transactions, and while Jones correctly notes that some of the recordings were of “extremely poor quality,” others were “pretty clear.” Jones and Hale can be heard discussing the sale and delivery of cocaine on some of the recordings. Additional support for Hale’s testimony was provided by Jordan, who testified that he observed Hale and Jones get into a vehicle together on two of these occasions. Consequently, Jones’s motion for a judgment of acquittal was properly denied.
Throughout his brief, Jones challenges Hale’s credibility, arguing that “Hale had a clear motive to keep the police happy.” The credibility of witnesses, however, cannot be challenged on appeal. “[I]t is well settled that on appeal, there ‘is no place ... for arguments regarding a government Witness’s lack of credibility.’ ” Talley, 164 F.3d at 996 (quoting United States v. Adamo, 742 F.2d 927, 934-35 (6th Cir.1984)). Although Jones suggests that Hale “could easily have acquired [the crack *831cocaine] from a source other than Mr. Jones,” this court has held that “ ‘[i]t is for jurors and not for appellate courts to say that a particular witness spoke the truth or fabricated a cock-and-bull story.’ ” Id. at 996-97 (quoting United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985)). Jones had the opportunity to attack Hale’s credibility on cross-examination and during his closing argument. The jury was able to assess Hale’s credibility at trial. Based on the evidence presented, the jury was not irrational in finding beyond a reasonable doubt that Jones distributed cocaine base.
Jones also claims that the count of the indictment concerning the incident involving Jones, Williams, and Myers in Moore Park was “purely speculative” since “none of the officers saw Mr. Jones in possession of the vial of crack cocaine that was picked off the ground.” As this court has noted, however, “circumstantial evidence alone can sustain a guilty verdict and ... need not remove every reasonable hypothesis except that of guilt.” Stone, 748 F.2d at 362. Here, as previously mentioned, Williams and Myers both testified that immediately prior to recovering the bottle from behind a tree, they saw Jones duck behind the tree and make a motion with his hand. This observation, combined with Jones’s subsequent incriminating statements, adequately supported the jury’s decision to convict the defendant as to this count.
B.
Jones claims that the district court abused its discretion by failing to grant his motion for a downward departure. Specifically, Jones argues that he “sold small quantities of cocaine” and was “not a large scale dealer.” Jones also that claims that his “health problems” mandated a downward departure. Jones further alleges that “the judge did not understand that he could depart from the guidelines under the Career Offender [provision]” and claims that “the court clearly indicated it’s [sic] belief that it had no discretion.” In response, the government claims that the issue is not reviewable on appeal and that, in any event, the district court properly exercised its discretion in declining to grant the departure sought by Jones.
A district court’s discretionary decision not to depart downward from the sentencing guidelines range normally is not ap-pealable. United States v. Prince, 214 F.3d 740, 766 (6th Cir.2000). An appeal may be taken, however, when the district court believed that it lacked any authority to depart downward as a matter of law. Id. “If the court’s refusal to depart stemmed from its legal conclusion that the circumstance argued by the defendant was not a valid reason for departure, the decision is reviewable.” Id. (citing United States v. Ford, 184 F.3d 566, 585 (6th Cir.1999)). ‘When reviewing a ruling which fails to affirmatively state that the judge knew he could depart downward, ‘it should be assumed that the court, in the exercise of its discretion, found downward departure unwarranted.’ ” Prince, 214 F.3d at 766 (quoting United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995)).
Here, the record reflects the district court’s knowledge of its authority to grant the departure sought by Jones. After hearing the argument of Jones’s counsel that “he’s been suffering from cardiovascular disease, hypertension” and that Jones “had problems with his stomach, with his diet, and he’s had a multiple health problems,” the court concluded, “I don’t think this is the kind of case which fits within the language of 5H1.4, certainly, because of the nature of this offense this is not the kind of offense that home detention would be a viable alternative for and the Bureau of Prisons does have facilities that *832can accommodate the defendant’s heart problems.” This statement indicates the district court’s awareness of its discretionary power to depart, thereby precluding review of the sentencing judge’s decision not to grant a downward departure on this basis.
Furthermore, as to Jones’s status as a career offender, the district court again made clear that it was aware of its power to make a downward departure. The sentencing judge emphasized that Jones had “been dealing drugs constantly except for the time that he’s been in prison since ’89” and “it may be small amounts, but it’s been constant.” The record thus reflects that the district court considered and rejected the arguments advanced by Jones at the sentencing hearing. Explaining that Jones had failed to distinguish his situation from cases where the career offender provision is typically applied, the sentencing judge stated, “I can’t say that his criminal history category significantly overrepresents the seriousness of his history any more than I can in most any cases where we have a career offender provision that kicks in.” Consequently, Jones’s assertion that the district court was unaware of its ability to depart downward is without merit.
III.
For the reasons set forth above, we affirm the conviction and the sentence imposed by the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217830/ | RUSSELL, District Judge.
The United States appeals the district court’s decision to exclude from evidence certain firearms found at the home of the Appellee. The United States claims that the district court incorrectly used an objective, rather than a subjective, standard when applying the test found in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We conclude that the district court correctly applied the subjective standard and affirm its decision.
I.
On August 24, 2000, the Inskter, Michigan, police department received a report of a bomb threat telephoned to a pay phone at Carrón Industries. The police were told that a male caller had claimed a bomb would go off at 6:00 PM that day. No bomb was found that evening; the next day the case was assigned to Detective Anthony Delgreco for investigation.
Delgreco spoke with witnesses at Car-rón Industries who told him that the phone rang about 5:25 PM. Delgreco noted the location of the phone in the garage area and its number. He then drafted a subpoena to the telephone company for “Telephone Records Showing All Calls Received At Payphone Number 313-277-9378 Between the Hours of 5:20 PM and 5:30 PM on 8/24/00. And Where Those Originated.”
On August 31, 2000, the telephone company replied to the subpoena by faxing a document to Delgreco. The cover sheet referenced the subpoena, but nothing in the document stated the time period covered by the report. The document itemized two calls received at the pay phone, one of which listed no originating number and lasted no time at all. The only other phone call, and the only one identifiable, came from 517-546-3865, an unpublished number subscribed by Rochelle Cican of Howell, Michigan, about forty miles from Inkster. The connection time for that phone call was 1:50 PM.
Delgreco learned that Rochelle Cican lived at that residence with the Appellee, and that the Appellee worked at Carrón Industries. Delgreco then interviewed the Appellee, who stated that he had left work at about 3:30 PM on August 24 and arrived home at about 5:00 PM. The Appellee said that he spent the rest of the evening at home, alone, and that he had not made any phone calls from the residence that evening.
The next morning, September 1, 2002, Delgreco went presented an affidavit for a state warrant to search the Cicans’ residence for evidence of the bomb threat. The affidavit stated, “According to Ameri-tech records, only one call came into that phone and it was from telephone number 517-548-3865.” Delgreco presented the fax to the state prosecutor, who then ap*834proved and signed the warrant application. A state district judge reviewed the affidavit and issued the warrant.
With officers from Inskter, Livingston County, the Michigan State Police bomb squad, and the Bureau of Alcohol, Tobacco & Firearms, Delgreco executed the warrant on September 1st. In the Cieans’ home he found a suspected pipe bomb, 37 containers of gunpowder, a package of cannon wick (fuses), seven books on explosives, munitions and silencers, seven machine guns, five silencers, and dozens of more conventional firearms.
On February 21, 2001, a grand jury indicted the Appellee on 12 counts of possession of unregistered firearms (the machine guns and silencers) in violation of 26 U.S.C. § 5861(d). The defense challenged the indictment based on the alleged invalidity of the search warrant. It alleged that the search warrant affidavit had been a “kind of misrepresentation that is at best disingenuous and certainly reckless disregard for the actual facts” because it erroneously implied that the call made from the Cieans’ residence to Carrón Industries could have been the one relaying the alleged bomb threat.
The United States conceded that “with the benefit of hindsight, it is undisputed that the call from the Cieans’ residence to the pay phone at Carrón Industries was made about 1:50 PM and could not have been the call during which the bomb threat was made.”1 The United States also agreed that while the affidavit was literally true, it clearly implied the same erroneous assumption Delgreco had made — that the phone call reported by Ameritech had been made about the same time of the reported bomb threat. Finally, the United States conceded that without this erroneous assumption there was no basis for the search.
On July 16, 2001, the district court held an evidentiary hearing with Delgreco as the only witness. He testified that he had drafted the subpoena and deliberately requested information only for the period from 5:20 PM to 5:30 PM, that when he received the faxed response he noticed that only one identifiable call had been made to the payphone, and that he therefore immediately began investigating the source of that call. He testified that he did not notice that the fax referenced a connection time inconsistent with the subpoena.
During oral argument before the district court, the United States cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) — and supporting circuit cases — for the proposition that in order to be “reckless” an officer must have acted with “an intention to mislead.” During the hearing the district court repeatedly stated that it did not doubt Delgreco’s testimony or his veracity.
On July 24, 2001, the district court granted the defendant’s motion and ordered all the evidence suppressed. This order accepted the “subjective” standard and concluded:
[gjiven Detective Delgreco’s ignoring of the readily-apparent reasons to doubt the veracity of his allegation that a call was made from defendant’s telephone to the pay telephone at Carrón Industries near the time of the alleged bomb threat, and the lack of any rational explanation for Detective Delgreco’s inat-tentativeness, the Court infers that Detective Delgreco entertained serious doubts as to the veracity of his allegation and thus acted recklessly.
*835The district court’s order also stated, erroneously, that Delgreco had considered the faxed information for “roughly six days.”
The government filed a timely motion for reconsideration, noting that Delgreco had signed the affidavit only the day after receiving the fax and asking the district court to consider its own oral comments about Delgreco’s veracity. The government suggested that the district court had erroneously utilized an objective standard of “reckless” action rather than a “subjective” one. The district court denied this motion, conceding that it had erred in its “six days” statement but finding that this error was immaterial. The later order did not address the government’s argument that the court either did not apply a subjective standard or applied it erroneously.
II.
We review the lower court’s conclusions of law de novo and its factual determinations for clear error. United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). The parties raise three issues: 1) the appropriate standard of recklessness; 2) the standard the district court applied; and, 8) the validity of that application.2
A. Standards of Recklessness
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court reviewed the Delaware Supreme Court’s ruling prohibiting any attack on the truthfulness of an affidavit supporting a search warrant. The Court concluded that there could not be an “absolute ban on post-search impeachment of veracity.” Id. at 167. Nonetheless, the Court concluded that mere “negligence or innoeent mistake are insufficient.” Id. at 171. It said, rather, that “[tjhere must be allegations of deliberate falsehood or of reckless disregard for the truth.” Id.
The Court, however, declined to provide a definition for “reckless disregard for the truth.” Since that omission, most circuits have adopted a subjective test for recklessness similar to that used in First Amendment libel cases. In First Amendment libel, “reckless conduct is not measured by [a reasonably prudent man standard]. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth [of the statements.]” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); see also Beard v. City of Northglenn, 24 F.3d 110 (10th Cir.1994); United States v. Williams, 737 F.2d 594 (7th Cir.1984).
The Appellee asks us to adopt an objective standard of recklessness based on tort law. We have previously declined to do so, albeit in unpublished decisions. See, e.g., United States v. Palmer, No. 99-57435, 2001 WL 1216999, 27 Fed.Appx. 343 (6th Cir. Oct. 2, 2001); Liptak v. City of Niles, No. 98-4078, 1999 WL 1045100 (6th Cir. Nov. 10, 1999). The only persuasive authority the Appellee cites is the Eighth Circuit’s caution about employing the terms “subjective” and “objective;” however, even that Circuit has stated that “[i]n determining whether statements were made with a ‘reckless disregard for the truth,’ we have applied the standard used in First Amendment cases.” United States v. Johnson, 78 F.3d 1258, 1262 (8th Cir.1996) (citing United States v. Clapp, 46 F.3d 795, 801 (8th Cir.1995)). The Eighth Circuit explained the standard as follows: “whether the affiant in fact entertained serious doubts as to the truth of the affida*836vits or had obvious reasons to doubt the accuracy of the information contained therein.” Id. (citations and quotations omitted).
The Appellee presents many additional arguments for the desirability of an “objective” standard rather than a “subjective one,” and notes that we have never spoken conclusively on the issue. The clear weight of authority presses against his view, however, and given the posture of this case it is an inopportune time to announce a new interpretation of Franks.
B. The District Court’s Application
The district court explained its analytical test:
A policeman displays reckless disregard for the truth when he subjectively “entertains serious doubts as to the truth of his allegations.” United States v. Whitley, 249 F.3d 614, 621 (7th Cir.2001) (citation omitted); Griffin v. City of Detroit, No. 92-2062, 1993 WL 239069, at *4 (6th Cir. June 30, 1993). This Court may infer such recklessness “from circumstances evincing obvious reasons to doubt the veracity of the allegations.” Whitley, 249 F.3d at 621; accord Liptak v. City of Niles, No. 98-4078, 1999 WL 1045100, at *4 (6th Cir. Nov. 10, 1999); United States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir.1995) (Garza, J.).
This language clearly reflects the “subjective” view of recklessness discussed previously.
Nevertheless, the United States maintains that the district court did not apply this test. It argues that the district court only nominally accepted the subjective standard, but in actuality applied an objective test. In support of this contention, the United States points to language from the hearing transcript where the district court states that it does not believe that “the detective committed a deliberate falsehood.” It contends that if the district court believed that Delgreco did not deliberately mislead the magistrate, and still suppressed the evidence, it must have acted on some tort-based “objective” recklessness standard.
The record is not as clear as the United States argues. The district court began noting that it did not believe Delgreco had committed a “deliberate falsehood.” Nevertheless, the court refused — despite prodding from the United States — to describe Delgreco as having acted in good faith. And the district court’s opinion rested clearly on a finding of subjective recklessness: “the Court infers that Detective Del-greco entertained serious doubts as to the veracity of his allegation and thus acted recklessly.”
Ultimately, the United States seeks, incorrectly, to disguise a complaint about the district court’s conclusions of fact as a question of law about the standard it applied. The United States’s real complaint is with the district court’s finding that Delgreco was subjectively reckless.
C. The District Court’s Conclusion
The district court’s finding that Delgre-co was subjectively reckless is reviewed under the “clear error” standard. United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with -the definite and firm conviction that a mistake has been committed. United States v. Ayen, 997 F.2d 1150, 1152 (6th Cir.1993). The evidence is reviewed “in the light most likely to support the district court’s decision.” United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.1994).
*837In almost all cases, subjective recklessness must be proven circumstantially. United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984). As the district court noted, “[a] fact finder may infer reckless disregard from circumstances evincing obvious reasons to doubt the veracity of the allegations.” See also United States v. Markey, 131 F.Supp.2d 316, 324 (D.Conn.2001).
Here, the circumstance that weighed most heavily on the district court was the lack of any rational or reasonable explanation for Delgreco’s error other than his willful ignorance. As the district court’s opinion noted, “[t]he Government states that Detective Delgreco ‘almost inexplicably erred ... ’ and the Court agrees with that observation except for the qualifying word ‘almost.’ ”
The United States’s central objection to the district court’s conclusion is based on that court’s comments during the Franks hearing that it did not believe that Delgre-co had deliberately misled the magistrate. The United States’s argument ignores the distinction between deliberate falsehood and subjective recklessness. While both focus on the intention of the affiant, Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir.1994), the latter only requires that the affiant “in fact entertained serious doubts as to the truth of his allegations,” id. (quotation omitted), not a finding that he deliberately lied.
The United States has not met its burden in showing that the entire evidence demonstrates the erroneousness of the district court’s decision. The district court’s determination of fact, and of credibility, are given wide latitude, and should not be disturbed here. See Barnett v. Department of Veterans Affairs, 153 F.3d 338, 342 (6th Cir.1998) (“[hjaving had the benefit of a bench trial in which both sides presented witness testimony and other evidence, the fact-finding and credibility assessments of the trial court are entitled to substantial deference.”).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. The record does not reveal whether the phone company failed to note the 5:25 PM phone call or if the report of the bomb threat was false.
. The Appellee asks us to adopt a bright line test requiring the police to attach documentary evidence to the affidavits it supports. We decline to do so. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217832/ | BATCHELDER, Circuit Judge.
George Lee Jackson and his son, Jonathan Lee Jackson appeal the denial of their motions to suppress, filed after entry of their conditional pleas of guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Jonathan Lee Jackson appeals his sentence, claiming that the district court erred in sentencing him as a career criminal. Finding no constitutional infirmity in either the stop or the search challenged in the motions to suppress, we will affirm the district court’s denial of those motions. We will affirm as well Jonathan Jackson’s sentence.
The two Jacksons were stopped by Tennessee law enforcement officers after they were clocked by Officer Nicholson — the Palmer City, Tennessee, police chief and a certified canine handler — traveling eighty miles per hour in a seventy mile per hour zone. Nicholson began to follow the defendants, who noticed him and slowed down. Nicholson activated his video camera and his body microphone, and after observing the defendants’ car weave a bit and cross the center line, he pulled their car over. Approaching the passenger side of the car where Jonathan was sitting, Nicholson noticed that the Defendants were acting very nervous, and, leaning toward the open car window, he could smell marijuana. He obtained from the driver, George Jackson, two rental agreements for the car-neither of which named either George or Jonathan as the lessee or authorized driver of the car-as well as George’s driver’s license. At about that time, Deputy Powell of the Marion County Sheriffs Department arrived on the scene, and spoke with Jonathan, who was still sitting in the car. Nicholson called in the rental information and George Jackson’s driver’s license information, and spoke with Powell, explaining that he had stopped the car because it had been speeding and weaving over the center line, and advising that he had smelled burned marijuana in the car. Powell said that he had smelled marijuana in the car also.
Nicholson asked George to consent to a search of the car, but George at first declined, saying that the car was not his and he therefore could not consent. When the officers advised him that he had that authority as the driver of the car, George agreed that they could search the passen*841ger compartment of the car1 and his things in the back seat, but that he did not know about anything else in the car. Finding what appeared to be marijuana residue, stems and seeds on the floor of the front seat, Nicholson brought his trained drug dog, Barry, from the cruiser and instructed the dog to search the car for drugs. Barry alerted at several points on the car, including the center rear of the trunk; inside the trunk, the officers found a brick of about half a kilogram of cocaine.
After their arrest and indictment, both defendants moved to suppress the evidence relating to and resulting from the stop and the search of their automobile. After an evidentiary hearing, the magistrate judge recommended that the motions be denied, and the defendants filed timely objections. The district court adopted the magistrate judge’s report and recommendation in its entirety. Prior to sentencing, Jonathan Jackson objected to the presen-tence report’s designating him as a career offender under U.S. Sentencing Guidelines § 4B1.1, arguing first, that the Government had failed to give him notice under 21 U.S.C. § 851 that it intended to use a prior conviction to enhance his sentence, and second, that the escape conviction that the Government used for that enhancement was not a crime of violence. The district court rejected those arguments and sentenced Jonathan Jackson to 192 months’ incarceration. The court sentenced George Jackson to 57 months’ incarceration. This timely appeal followed.
We review the district court’s denial of the motions to suppress for clear error as to factual findings; the court’s legal conclusions we review de novo. United States v. Ivy, 165 F.3d 397, 401-02 (6th Cir.1998). We view the evidence in the light most favorable to the Government, United States v. Wellman, 185 F.3d 651, 655 (6th Cir.1999), recognizing that where there are two permissible views of the evidence, the district court’s choice between them cannot be clearly erroneous. United States v. Rose, 889 F.2d 1490, 1494 (6th Cir.1989).
We do not find clear error in the district court’s factual findings or error in the court’s conclusions of law regarding the stop and the search of the car in which defendants were traveling. The record supports the court’s findings that the car was traveling in excess of the posted speed limit. The Supreme Court has definitively held that the “decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Tennessee law prohibits traveling in excess of the posted speed limit. See Tenn.Code Ann. 21 55-8-152. Hence, the stop was supported by probable cause.
We have held that “[ojnce the purpose of the traffic stop is completed, a motorist cannot be further detained unless something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot.” United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999). The record supports the district court’s findings that after Officer Nicholson stopped the car, both he and Officer Powell smelled marijuana in the vehicle; that Officer Nicholson’s dog, Barry, was a properly trained drug dog; that Officer Nicholson was properly trained as the dog’s handler; and that Barry alerted to the presence of drugs in the car the defendants were driv*842ing. We conclude that during a reasonable stop of the car, the two police officers smelled marijuana coming from the car’s interior, and that this discovery provided probable cause to search the automobile. United States v. Garza, 10 F.3d 1241, 1246 (6th Cir.1993). And it was not until after Officer Nicholson found what he believed to be marijuana residue, seeds and stems in the car, that he invoked the services of his drug dog. The district court did not err in concluding that the search of the defendants’ car was supported by probable cause.
We review de novo both the district court’s determination that Jonathan Jackson was a career offender within the meaning of U.S.S.G. § 4B1.1, United States v. Dolt, 27 F.3d 235, 237 (6th Cir.1994), and its conclusion that a particular offense is a crime of violence for purposes of that determination under U.S.S.G. § 4B1.2. United States v. Arnold, 58 F.3d 1117, 1120 (6th Cir.1995). Again we find no error in either the district court’s reasoning or its conclusions.
21 U.S.C. § 851(a)(1) requires the Government to provide notice to a defendant that it intends to rely on previous convictions to increase a defendant’s sentence. In United States v. Mans, 999 F.2d 966, 969 (6th Cir.1993), we held that “the requirements of § 851(a)(1) apply only to statutory sentence enhancement, not sentence enhancement under § 4B1.1 of the Sentencing Guidelines.” See also, United States v. Meyers, 952 F.2d 914, 918 (6th Cir.1992). Because Jonathan Jackson’s sentence was enhanced, not under § 841, but under the career offender sections of the Sentencing Guidelines, the notice provisions of § 851(a)(1) do not apply.
Finally, Jonathan Jackson complains that one of the prior convictions used to classify him as a career offender was an escape from an unsecured facility, and was therefore not a crime of violence as defined by U.S.S.G. § 4B1.2. Jonathan does not contest the fact that his escape was a felony. Rather, he argues that it was an escape from a halfway house; the relevant Guidelines sections do not mention escape from a nonsecure facility as “a crime of violence” for purposes of the career offender provisions; and this particular escape was not, in fact, violent.
The definition which the district court applied in determining that Jackson is a career offender is found in § 4B1.2(a)(2):
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(2) ... involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a)(2). We have adopted a “categorical” approach to determining which crimes constitute crimes of violence for purposes of § 4B1.2, which requires us to look at the statutory definition of a crime, not the particular factual circumstances of the particular offense before the court. See United States v. Payne, 163 F.3d 371, 374 (6th Cir.1998).
At issue here is Jonathan Jackson’s conviction in 1992 in Kentucky on a single count indictment charging him with a violation of KRS 520.030:
520.030 Escape in the second degree
(1) A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.
(2) Escape in the second degree is a Class D felony.
KRS 532.060 provides that a Class D felony is punishable by a term of imprisonment of not less than one year nor more than five years. KRS 532.060(2)(d). The *843indictment charges that Jackson “committed the offense of Escape in the Second Degree when he escaped from Dismas House, a detention facility, or, being charged with or convicted of a felony, he escaped from custody.” This indictment, although it is in the alternative and is, in that respect, not helpful, nonetheless specifically names the “detention facility” from which the defendant escaped, does not specify that, as Jackson maintains, that facility was a halfway house, and explicitly uses the term “escape” with regard to the charged offense.
In United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999), we specifically adopted the reasoning of the Tenth Circuit, which held that the crime of escape “by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2.” Id. (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994)). In a recent unpublished opinion, we concluded that a defendant’s escape from an “Honor Camp” was a crime of violence; we held that it was the inherently dangerous nature of the escape, and not the location from which the defendant made the escape, that made it a crime of violence under the Guidelines. United States v. Watts, No. 99-6366, 2001 WL 345472, *2-*3, 7 Fed.Appx. 526 (6th Cir. March 29, 2001).
We are bound by this circuit’s directive in Hands, and we therefore find no error in the district court’s conclusion that Jonathan Jackson’s conviction for escape was a crime of violence for purposes of U.S.S.G. § 4B1.1.
For the foregoing reasons, we AFFIRM the judgments of the district court.
. There is some dispute about whether George consented to a search of the entire passenger compartment. We conclude that this factual dispute is immaterial in light of the officers’ detecting the smell of marijuana coming from the car. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217833/ | FORESTER, District Judge.
Quincy Jamóte Price and Juwell Darnell Castleberry were indicted in a fourth superseding indictment with engaging in a conspiracy to distribute cocaine, cocaine base (“crack”), and marijuana in Grand Rapids. Michigan, in violation of 21 U.S.C. § 846. Castleberry pleaded guilty to one count of violating 21 U.S.C. § 846 as set forth in the third superseding indictment and later sought to withdraw his plea. He now challenges the district court’s denial of that motion, as well as the indictment and his sentence. Price was ultimately convicted of the same offense after a jury trial and challenges both his conviction and sentence on appeal. For the reasons stated below, we AFFIRM the district court’s rulings as to both appellants.
I.
On September 29, 1999, a grand jury returned a fourth superseding indictment charging the appellants with engaging in a conspiracy to distribute cocaine, cocaine base, and marijuana from January 1996 until December 19,1998. According to the indictment. Castleberry would obtain the drugs from sources outside of Michigan, specifically Los Angeles, while Price. Price’s brother Shawte Dabar Price, and Timothy Lashawn Threats would occasionally make trips to retrieve the drugs. In short, Castleberry was the organizer of the conspiracy and Price was an active participant.
The conspiracy began to unravel in June of 1997 when Federal Express employees in Los Angeles notified federal agents that they had received a suspicious package weighing 12 pounds and addressed to a Lamont Chivis at 1931 Bradford, N.E., Grand Rapids, Michigan. The videotape from the surveillance camera in the Federal Express office showed Threats and two others paying to mail the package. The package was x-rayed and opened and found to contain three gift-wrapped packages containing a total of 2.9031 kilograms of cocaine.
Agents subsequently made a controlled delivery to the Bradford Street address in Grand Rapids. A neighbor signed for the package and indicated that Threats had asked her to hold it until he could retrieve it. While the delivery was in progress, Threats arrived in his car, saw the police, and tried to flee. He was stopped and consented to a search of the apartment, which uncovered an express mail shipping receipt dated April 30,1997, and addressed to Price at the same Grand Rapids apartment. The receipt indicated that the package had weighed the same as the one that had been intercepted by the agents. In addition, agents found photographs of Price and Castleberry with a local gang known as the ‘Wealthy Street Boys.”
A confidential informant told agents that Castleberry was the source of the cocaine. Further search warrants issued, including one for Price’s residence that revealed records linking Price to Castleberry. In addition, five pounds of marijuana and an assault rifle were found.
After they were indicted, Price and Castleberry fled the jurisdiction and continued to distribute drugs. Castleberry was almost apprehended in an apartment in Las Vegas. Nevada, in June of 1998, but he escaped before he could be arrested. Another man was in the same apartment and identified himself as Marvin Dis-muke; after he was released, agents *846learned that “Dismuke” was, in fact, Price. A box containing five pounds of marijuana was found in the apartment and had both Castleberry’s and Price’s fingerprints on it.
The appellants were ultimately located and arrested in December of 1998. Cast-leberry entered into a plea agreement with respect to Count I of the third superseding indictment, but thereafter sought to withdraw his plea, which request the district court denied. Price proceeded to trial and was convicted of the conspiracy count. Price was ultimately sentenced to 324 months of imprisonment and Castleberry was sentenced to 360 months.
II.
Price first argues on appeal that the district court erred in denying his motion for a judgment of acquittal based upon insufficiency of the evidence presented at trial. This court reviews the denial of such a motion de novo. United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.2002). In so doing,
we must determine “whether, after viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979). The Jackson standard requires us to view both circumstantial and direct evidence in a light most favorable to the prosecution. United States v. Hofstatter, 8 F.3d 316, 324 (6th Cir.1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994). “Circumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt.” Talley, 194 F.3d at 765 (quoting United States v. Keeton, 101 F.3d 48, 52 (6th Cir.1996)).
Id. Price argues that the evidence at trial revealed, at most, that he was an associate of high-level drug dealers, but was only engaged in sales on a much lower level.
In order to sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must prove (1) an agreement to violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy. United States v. Welch, 97 F.3d 142, 148-49 (6th Cir.1996). “[T]he connection of the defendant to the conspiracy need only be slight if there is sufficient evidence to establish the connection beyond a reasonable doubt.” United States v. Ward, 190 F.3d 483, 488 (6th Cir.1999) (citing United States v. Hernandez, 31 F.3d 354, 358 (6th Cir.1994)). However, “mere association with conspirators is not enough to establish participation in a conspiracy.” United States v. Pearce, 912 F.2d 159, 162 (6th Cir.1990) (quoting United States v. Stanley, 765 F.2d 1224, 1243 (5th Cir.1985)).
In the present case, viewing the evidence presented in a fight most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of conspiracy beyond a reasonable doubt. Price had several items seized from the Bradford Street residence in Grand Rapids. Michigan, an address to which the drugs were to be delivered. He had also signed for the earlier package addressed to the same residence that likely contained a cocaine shipment. Five pounds of marijuana, an assault rifle, and drug packaging materials were all seized from his residence. Agents found travel records of airline trips paid for by Castle-berry, in addition to a pattern of telephone calls between Price and several other co-conspirators. Finally, several others — including co-conspirators Threats and David *847Cantrell — testified that Price participated in the conspiracy. Given this, the district court did not err in denying Price’s motion for judgment of acquittal.
Next, Price argues that the manner in which testimony from his brother, Shawte Price, was introduced at trial was reversible error. Shawte had entered into a plea agreement on March 5, 1998, and testified before a grand jury on July 25, 1998. After the appellant Quincy Price was arrested in December of 1998, the government obtained immunity for Shawte to secure his cooperation. When the assistant United States attorney (“AUSA”) met with Shawte in January of 2000, shortly before Price’s trial, Shawte told the AUSA that the marshals would have to “drag him up” to the stand to testify against his brother. The AUSA immediately advised Shawte to speak with his attorney and warned Shawte of the consequences that his refusal to testify would have on his own plea agreement with the government. The government asserts that Shawte expressed a reluctance to testify, but never explicitly indicated that he would assert his Fifth amendment rights on the stand or refuse to testify.
At trial, the government called Shawte to the stand and he initially answered questions regarding his plea agreement. He also acknowledged his testimony before the grand jury and the fact that he knew Castleberry and Threats. When asked if he was involved with Threats in obtaining and selling cocaine, Shawte asserted his rights under the Fifth Amendment, stated that he was appealing his guilty plea based upon ineffective assistance of counsel, and further stated that he was not guilty. He also “took the Fifth” when asked if he and his brother distributed cocaine. After a brief recess and outside of the presence of the jury, the district court told Shawte that he would be granted use immunity and ordered him to testify. Shawte refused and was dismissed as a witness.
Price argues that the district court should have granted his motion for a mistrial based upon Shawte’s assertion of his Fifth Amendment rights. Specifically, he argues that the government called Shawte Price to the stand knowing that he would invoke his rights under the Fifth amendment, in violation of Douglas v. Alabama, 880 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and that the government’s reference to Shawte’s earlier grand jury testimony was also in error, relying on the Tenth Circuit’s decision in United States v. Torrez-Ortega, 184 F.3d 1128 (10th Cir.1999).
We find that there was no error in this case in allowing Shawte to be called to the stand and questioned. While Shawte did indicate in a pre-trial meeting with the government’s counsel that he would have to be “dragged to the stand” to testify, he later indicated in that same meeting that he would, in fact, testify against his brother and that he never intended not to voluntarily take the stand. As a result, there is no evidence that the government “knew” or should have known that Shawte would assert his Fifth amendment rights prior to calling him to testify. Further, Shawte’s entire testimony was very brief and the government’s questioning ceased almost immediately after it was clear Shawte would not testify further. Also, although the government sought to introduce Shawte’s grand jury testimony, such testimony was never, in fact, admitted into evidence or otherwise revealed to the jury. Therefore, this case is distinguishable from Torrez-Ortega, which the defendant relies on, and we find no basis for reversal in the district court’s refusal to declare a mistrial.
Finally, Price contends that at sentencing, the district court erred in attributing 1.5 kilograms of cocaine base to him *848for sentencing purposes simply because he was present in the house when powder cocaine was being cooked into crack cocaine. “We review a district court’s calculation of the amount of drugs under the Sentencing Guidelines for clear error.” United States v. Copeland, 321 F.3d 582 (6th Cir.2003). We find that the district court’s attribution was not in clear error and was supported by sufficient evidence, including relevant conduct. The evidence that Price was involved in the conspiracy was “abundant,” according to the district court, and this Court agrees. There was also abundant evidence that the conspiracy involved cocaine base, which the jury also found. Further, Price was tied directly to a package of powder cocaine that was later “rocked up” into crack cocaine in his presence. The district court also relied on the grand jury testimony of several co-conspirators, including Price’s own brother’s testimony that Price knew how to “rock up” powder into crack. Based upon this evidence, it was reasonably foreseeable to Price that any powder cocaine he was involved with might be “rocked up” into cocaine base. Thus, the district court did not err in attributing this crack cocaine to the conspiracy and, thus, to Price for purposes of sentencing.
III.
For his appeal, Castleberry first argues that the third superseding indictment was invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it failed to allege an element of the offense: the quantity of drugs involved. This argument was recently rejected in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), wherein the United States Supreme Court held that the omission of drug quantity from the indictment was not a “ ‘jurisdictional’ defect” requiring dismissal. Id. at 1784-85. Therefore, the indictment in the present case did not fail simply because it did not allege a specific quantity of drugs.
Castleberry also objects to the fact that the plea agreement did not contain a specific drug type or amount, and that these issues were reserved for the district court’s determination at the sentencing hearing. He argues that his sentence must be vacated under Apprendi because these facts were not submitted to a jury and proven beyond a reasonable doubt but, instead, were determined by the district court using the lesser “preponderance of the evidence” standard. The recent case of United States v. Stines, 313 F.3d 912 (6th Cir.2002), presented similar circumstances.
[The defendants] both argue that the district court’s failure to submit the drug type and quantity determination to the jury violates their constitutional rights in light of Apprendi. The Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (emphasis added). Because the district court limited the defendants’ sentences to twenty years, and the statutory maximum penalty for an unspecified quantity of any form of cocaine is twenty years, see 21 U.S.C. § 841(b)(1)(C), the Apprendi ruling is not triggered and does not impact the sentenced for either [defendant]. See, e.g., United States v. Stafford, 258 F.3d 465, 478-79 (6th Cir.2001) (“[A] violation of the principles set forth in Apprendi rises to the level of ‘plain error’ only where the defendant’s sentence exceeds the maximum possible sentence that could be imposed by statute absent the *849offending ‘sentencing factor’ determined under the too-lenient ‘preponderance’ standard.... [E]ven if a determination of a particular drug quantity is improperly made under the ‘preponderance’ standard, there is no plain error in a sentence that lies within the applicable statutory sentencing range for the same offense involving an indeterminate amount of drugs.”).
Id. at 915-16 (second emphasis supplied). The Stines court also rejected the notion that Apprendi applies to any fact that increases a statutory minimum (as opposed to maximum) sentence. Id. at 916; see also United States v. Leachman, 309 F.3d 377 (6th Cir.2002) (overruling United States v. Strayhorn, 250 F.3d 462 (6th Cir.2001). United States v. Ramirez, 242 F.3d 348 (6th Cir.2001), and United States v. Flowal, 234 F.3d 932 (6th Cir.2000)).
Based upon these cases, we must reject Castleberry’s arguments. At the sentencing hearing in the present case, the district court determined that the conspiracy at issue involved at least 1.5 kilograms of cocaine base and that it was reasonably foreseeable to Castleberry that the powder cocaine he was moving would be “cracked up.” As a result, that amount was attributed to Castleberry for sentencing purposes. Castleberry vehemently denied any personal involvement with “crack,” but admitted that he was personally involved in the sale and distribution of powder cocaine.1 Leaving the “offending” sentene-ing factor of drug quantity out of the equation, and accepting Castleberry’s argument that he had no knowledge of any crack cocaine, the statutory maximum penalty for an unspecified quantity of any form of cocaine is thirty years for a defendant such as Castleberry, who has a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(C). The district court sentenced Castleberry to thirty years, which was not beyond the statutory maximum. As stated by this Court in the similar case of United States v. Copeland, 321 F.3d 582 (6th Cir.2003), “where a defendant is made subject to a higher range of punishment under §§ 841(b)(1)(A) and (B) but is nonetheless sentenced within the confines of § 841(b)(1)(C), his rights under Apprendi are not violated.”2 Therefore, Apprendi is not triggered and Castleberry’s sentence was not improper.3
Castleberry also argues that the district court erred in denying his request to withdraw his plea of guilty. Castleberry entered into a plea agreement with the government on October 12, 1999. The following day, he wrote a letter to the district court seeking to fire his court-appointed counsel and to withdraw his plea. He wrote a similar letter again on October 25, 1999. He then filed a pro se motion to withdraw his plea on December 7, 1999. A second such motion was filed on January 31, 2000.
This Court reviews a district court’s denial of a motion to withdraw a guilty plea *850for abuse of discretion, United States v. Durham, 178 F.3d 796, 798 (6th Cir.1999), and has set forth the following approach:
Federal Rule of Criminal Procedure 32(e) provides that a court may permit a defendant to withdraw a plea prior to sentencing if he shows any “fair and just reason” for the withdrawal. Fed.R.Crim.P. 32(e). In Spencer, 836 F.2d at 239-40, this Court promulgated five factors for a court to consider in determining whether to grant a motion to withdraw: (1) the length of time between the guilty plea and the filing of the motion to withdraw, (2) the defendant’s reason for not presenting the grounds earlier, (3) whether the defendant has asserted or maintained his innocence, (4) the circumstances surrounding the plea, the nature and background of the defendant, and whether the defendant has admitted guilt, and (5) any potential prejudice to the government, although a showing of prejudice is not necessary. In United States v. Pluto, 144 F.3d 968, 973 (6th Cir.1998), this Court added the defendant’s prior experience with the criminal justice system as a sixth factor.
Id. As recognized by the district court. “[t]he factors listed are a general, nonexclusive list and no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir.1996).
Castleberry takes issue with the reasoning of the district court, which relied in part upon the fact that fifty-six days had elapsed between the time Castleberry entered his plea and the filing of his motion to withdraw. The district court noted that “the record demonstrates that defendant entered into his plea following a long period of indecision and waffling characteristic of weighing the costs and benefits of proceeding to trial, rather than of rashly entering a plea of guilty in a confused state of mind.” According to Castleberry, this view is contradicted by the letters that he sent to the district judge, as well as by his oral attempt to withdraw his plea during a November 8, 1999, hearing before a magistrate judge.
The crux of Castleberry’s argument is that he has consistently denied involvement with crack cocaine and that he entered into the plea agreement hoping to avoid the draconian sentences associated with trafficking in that drug. As he puts it, “Upon the realization that the District Court could and likely would find that he was in fact involved with cocaine base the Appellant immediately moved to withdraw his plea.” In addition to this argument, Castleberry contends that the district court failed to comply fully with Rule 11 of the Federal Rules of Criminal Procedure, which directs the district court to make certain that the plea is knowing and voluntary.
We do not find an abuse of discretion in the present case. Castleberry admitted to trafficking in powder cocaine and marijuana. The change of plea hearing makes clear that Castleberry knew at that time that he might be held responsible for trafficking in crack cocaine. Castleberry was familiar with the criminal justice system, and did not enter a plea until nearly six months after his initial appearance, giving him time to weigh his decision and consult with counsel. Castleberry was a savvy defendant who was fully informed about the nature of his bargain. As a result, we affirm the district court’s denial of Castleberry’s motions to withdraw his guilty plea.
Next, Castleberry argues that the district court erred in imposing a $6,000 fine. The district court found that he did not have the resources to pay a fine at the time of sentencing, but noted that he would have the opportunity to work while *851incarcerated, and calculated the fine at $100 per year for the first three years and $20 per month thereafter. The sentencing guidelines provide that a defendant must establish that he is unable to pay “and is not likely to become able to pay” a fine. U.S.S.G. § 5E1.2(a). Further, “[t]he amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive.” Id. § 5E1.2(d).
We find that the district court did not err in imposing a fine on Castleberry. The statute provided for a maximum fine of $8,000,000. The district court based the fine on Castleberry’s future ability to pay and structured the payment schedule in order to permit him to meet his obligations over time.
Castleberry next argues that because his prior conviction, which was used to enhance his sentence, was not set forth in the indictment and submitted to a jury or established beyond a reasonable doubt, his sentence was improper. Although Castle-berry relies in part on Apprendi, that case clearly states that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2848, 147 L.Ed.2d 435 (emphasis added). Thus, even if a prior conviction increases the penalty for a crime beyond the prescribed statutory maximum, it need not be submitted to a jury and proved beyond a reasonable doubt under Apprendi because the Supreme Court specifically excepted prior convictions from the general rule. As a result, there was no error in this case.
Castleberry also argues that the Court erred in determining that he was responsible for a course of conduct that involved the distribution of at least 1.5 kilograms of crack cocaine. As with Price, we find that there was abundant evidence connecting Castleberry to this amount and type of drug and, therefore, the district court’s findings were not clearly erroneous.
Finally, we can quickly dispose of Cast-leberry’s argument that 21 U.S.C. § 841 is unconstitutional in light of Apprendi. This Court has previously rejected that argument. Stines, 313 F.3d at 919; United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir.2001).
IV.
Based on the above, we AFFIRM the appellants’ judgments and sentences in all respects.
.We reject Castleberry’s argument pursuant to United States v. Dale, 178 F.3d 429 (6th Cir.1999), that he should only be sentenced for involvement with marijuana. This argument makes no sense in light of his admissions to the trial cotut below that he was personally involved with the distribution of powder cocaine. Further, evidence of both his personal involvement with cocaine and the conspiracy’s involvement with cocaine was abundant.
. In Copeland, this Court also noted that "because the district court remained within the confines of § 841(b)(1)(C), [the defendant’s] due process and jury trial rights under Ap-prendi were not offended.” This result applies equally to Castleberry.
. We likewise reject Castleberry’s argument that his plea violated Apprendi because it did not contain a drug amount. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217834/ | PER CURIAM.
In this appeal, defendant Timothy Robertson argues that the district court erred when it ordered that his federal sentence for being a felon in possession of a firearm be served consecutively to his Tennessee sentences for aggravated assault, possession with intent to sell a half gram or more of cocaine, and being a felon in possession of a firearm. According to defendant, the district court erred by imposing a consecutive sentence as the consecutive sentence was not a reasonable penalty and as there was no presumption in favor of a consecutive sentence. For the following reasons, the district court’s decision is AFFIRMED.
I.
On June 26.1997. defendant was arrested for trespassing at a public housing project (the “1997 arrest”). At the time of arrest, he possessed a .45-caliber pistol and 13 rocks of crack cocaine. Defendant subsequently conceded that he had used the gun on June 15 to shoot a man named Clifford Davis. Based on this conduct, he was charged in state court with aggravated assault, possession of a weapon, possession with intent to sell half a gram or more of cocaine, and aggravated criminal trespassing.
On October 16, 1998, defendant was stopped for running a stop sign and subsequently arrested for driving on a revoked license (the “1998 arrest”). In a search incident to his arrest, police found a firearm, ammunition, cocaine, and another drug, alprazolam. Based on this search and defendant’s conduct, defendant was charged in state court with possession with intent to sell a half gram or more of cocaine, possession with intent to sell al-prazolam, being a felon in possession of a firearm, and driving on a revoked license.
The first federal indictment against defendant was returned in January 1999. It charged defendant with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The charges related to defendant’s possession of a firearm at his 1997 and his 1998 arrests. On March 4, 1999, defendant pleaded guilty in state court to the aggravated assault charge and was sentenced to five years of imprisonment. In exchange for his guilty plea, the state dismissed the *853firearm, drug, and trespass charges associated with his 1997 arrest. On November 17, 1999, a superseding federal indictment was returned charging defendant with the same two counts of being a felon in possession of a firearm at his 1997 and his 1998 arrest and with two additional counts associated with his 1998 arrest.
Following a guilty plea, defendant was sentenced on April 6, 2000 in state court on the drug and firearms charges associated with his 1998 arrest. He received a twelve-year sentence on the drug charge and a three-year sentence on the firearm charge. The state court directed that these sentences be served concurrently but consecutive to the five-year sentence for aggravated assault.
In September 2000, defendant pleaded guilty to count one of the federal indictment being a felon in possession of a firearm at his 1997 arrest. The remaining counts associated with defendant’s conduct at the time of his 1998 arrest were dismissed because he had pled guilty to state charges corresponding to those counts. As he does here, defendant argued at sentencing that at least a portion of his federal sentence should be served concurrently with his state sentences. After hearing from defendant and counsel, the district court imposed a consecutive sentence of 77 months. The district court gave the following reasons:
I’m not persuaded that the sentence served should be concurrent. I think the policy statement and the way it’s applied most frequently results in consecutive sentencing. There’s not really a presumption, but I think that is frequently the practical effect.
The bottom line here is that the conduct from count one has not previously been sanctioned by a state court and as a result of that the sentence should be consecutive and not concurrent.
And I have looked at the factors set forth in application note three, which refers to 18, U.S.C., section 3584.... I think this case calls for consecutive sentencing.
II.
This court reviews a decision to impose consecutive sentences for an abuse of discretion. United States v. Covert, 117 F.3d 940, 945 (6th Cir.1997). “The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3558(a).” 18 U.S .C. § 3584. Section 3553(a) provides as follows:
(a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed — •
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
18 U.S.C. § 3553(a)(l)-(2).
In addition to these statutory considerations, defendant’s counsel acknowledged to the district court that the following pro*854vision of the Sentencing Guidelines applies to this case:
(Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3(c) (2000). The relevant commentary to this guideline section further provides:
3. Concurrent or consecutive sentence — subsection (c) cases. In circumstances not covered under subsection (a) or (b), subsection (c) applies. Under this subsection, the court may impose a sentence concurrently, partially concurrently, or consecutively. To achieve a reasonable punishment and avoid unwarranted disparity, the court should consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a))
5. Complex situations. Occasionally, the court may be faced with a complex case in which a defendant may be subject to multiple undischarged terms of imprisonment that seemingly call for the application of different rules. In such a case, the court may exercise its discretion in accordance with subsection (c) to fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3, comment.
While the record does not contain an express analysis of the factors in § 3553(a), the district court was “not required to make specific findings related to each factor considered.” United States v. Campbell, 309 F.3d 928, 931 (6th Cir.2002). Instead, the record in this case indicates that the district court considered the appropriate factors and that in defendant’s case, the district court found that a consecutive sentence was appropriate. Additionally, application of the factors supports this conclusion. As the district court noted, defendant had not been punished by the state court for the conduct in this case. Thus, the purpose of imposing a consecutive sentence was “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). Defendant also has an extensive criminal history, and as such, the consecutive sentence furthers the statutory considerations to provide adequate deterrence to criminal conduct and to “protect the public.” 18 U.S .C. § 3553(a)(2)(B)-(C); see also United States v. Raleigh, 278 F.3d 563, 569 (6th Cir.2002) (affirming consecutive sentences premised upon criminal history). Therefore, the district court acted within its discretion to achieve a reasonable punishment by imposing a consecutive sentence.
Defendant argues that his sentence was not reasonable as the district court did not limit his sentence to an incremental penalty for the felon in possession of a firearm offense. To support this argument, he points to language in 28 U.S.C. § 994(1) directing the Sentencing Commission to “insure that the guidelines ... reflect — (1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of’ multiple offenses. 28 U.S.C. § 994(1) (emphasis added). Contrary to defendant’s argument, this language does not limit the penalty for multiple offenses to an incremental penalty. Instead, as the Supreme Court has indicated. “ § 994(1) simply ensures that, at a minimum, the Guidelines provide additional penalties when defendants are convicted of multiple offenses.” United States v. Watts, 519 U.S. 148, 117 *855S.Ct. 633, 136 L.Ed.2d 554. 154 (1997). Consequently, defendant’s argument that the district court was required to impose only an incremental penalty in this case is not persuasive.
Defendant also claims that the district court erred in finding that, generally, application of U.S.S.G. § 5G1.3(c) results in the imposition of a consecutive sentence. Defendant correctly points out that, unlike the version of the guideline section in effect prior to 1989, the current version is neutral and does not contain a presumption in favor of consecutive sentences. Regardless, nothing in the record indicates that the district court thought that it was required to impose a consecutive sentence. Instead, the record supports the conclusion that the district court was familiar with the charges against defendant and his criminal history and that after considering the factors, the district court decided to impose a consecutive sentence. Thus, as the imposition of a consecutive sentence was not based on an erroneous interpretation of the law. there was no error.
III.
For the foregoing reasons, we AFFIRM the district court’s decision to impose defendant’s federal sentence consecutive to his state sentences. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217835/ | PER CURIAM.
Defendant-appellant Albert Wayne Francheck was convicted after a non-jury trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). He also pled guilty to two counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On appeal, Francheck contends that as a matter of law the evidence presented by the government was insufficient to establish that Francheck’s possession of the firearm had a substantial effect on interstate commerce as required under 18 U.S.C. § 922(g). Francheck further claims that the district court erred in failing to reduce his sentence for acceptance of responsibility. For the reasons set forth below, we affirm Francheck’s conviction and sentence.
I.
On July 10, 1998, officers of the Eighteenth Judicial Drug Task Force executed a search warrant at Albert and Tabitha Francheck’s residence in Gallatin, Tennessee. The search warrant was executed after Francheck sold three grams of cocaine to an undercover officer in the garage of his residence. During the search, officers found a ROHM derringer firearm, cocaine residue and marked money, which had been used to purchase cocaine from Francheck. The serial number was no longer distinguishable on the firearm.
On March 15, 2000, a federal grand jury returned a two-count indictment naming Francheck as a defendant. Count One charged Francheck with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count Two charged Francheck with possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). On March 20, 2000, Francheck was released on bond.
On June 2, 2000, officers from the Eighteenth Judicial Drug Task Force arranged for a controlled drug transaction with Francheck. During that transaction, Francheck gave a police informant $5,000 in exchange for eight ounces of cocaine. The officers arrested Francheck and subsequently searched his residence. The search uncovered an additional forty grams of cocaine.
A superseding indictment was issued on July 13, 2000. In addition to the two original counts, the superseding indictment charged Francheck with two counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
On June 19, 2000, while on pretrial release. Francheck absconded. The United States Marshal Service apprehended Fran-check on March 12, 2001, at a motel room *857in Nashville, Tennessee. After frustrating Francheek’s attempts to block the door to his motel room, the marshals entered and discovered eight ounces of cocaine and $3,800 in cash.
In September 2001, Francheck moved to dismiss Counts One and Two of the superseding indictment arguing, among other things, that the government had no evidence that Francheck’s possession of the firearm affected or was connected to interstate commerce. Francheck claimed that “[t]he fact that the gun may have at some time in the past, prior to Mr. Fran-check’s possession, traveled across state lines is legally insufficient to prove a current interstate commerce connection.” The district court denied the motion.
On November 16, 2001, the district court held a bench trial on Counts One and Two. At trial, Francheck and the government stipulated to several facts, including Fran-check’s status as a convicted felon based on a previous conviction for possession of cocaine with intent for resale on November 17, 1995. Francheck further stipulated to admitting that he owned the firearm found at his residence and that the “firearm was not manufactured in the State of Tennessee and therefor [sic] at some point traveled in interstate commerce.” The government, however, stipulated that its “proof would not establish that the defendant Albert Wayne Francheck actually carried or transported the firearm in interstate or foreign commerce.” Francheck was convicted on both Counts One and Two. Francheck then pled guilty to Counts Three and Four.
At sentencing Francheck moved for a sentence reduction for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines. The district court denied Francheck’s request for a reduction for acceptance of responsibility and sentenced him to seventy-eight months imprisonment and three years supervised release. This timely appeal followed.
II.
Francheck first argues that as a matter of law the evidence is insufficient to sustain his convictions under Counts One and Two because the government failed to establish that the firearm possessed by Francheck was “in or affecting interstate commerce” as required by 18 U.S.C. § 922(g). A district court’s legal conclusions are reviewed de novo. United States v. Roberts, 223 F.3d 377, 380 (6th Cir.2000). When reviewing a motion to dismiss, where the defendant is arguing that as a matter of law the undisputed facts do not constitute the offense charged in an indictment, the court is reviewing a question of law, not fact. See, e.g., United States v. Bowman, 173 F.3d 595 (6th Cir.1999). According to Francheck, under 18 U.S.C. § 922(g), evidence that at some undetermined time in the past the firearm at issue was manufactured outside of Tennessee and then transported into Tennessee is insufficient to sustain a conviction. Instead, the government must present evidence that Francheck personally possessed the firearm in a manner affecting commerce.
In United States v. Napier, 233 F.3d 394, 401 (6th Cir.2000), this court held that proof that a firearm possessed by a defendant previously traveled in interstate commerce “is sufficient to establish the interstate commerce connection” under 18 U.S.C. § 922(g). Francheck argues that the Supreme Court’s opinion in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), suggests a holding contrary to that set forth by this court in Napier. This court, however, directly rejected that argument in Napier, stating: “Nothing in Jones suggests that *858the Supreme Court is backing off its opinion that § 1202(a), the predecessor of § 922(g)(1), required only ‘the minimal nexus that the firearm have been, at some time, in interstate commerce.’” Napier, 233 F.3d at 401 (quoting Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)). Therefore, we find that the interstate nexus requirement under 18 U.S.C. § 922(g) is satisfied in this case because the parties stipulated that the firearm at issue traveled in interstate commerce at some point prior to Francheck’s possession of the firearm.
Francheck next argues that the district court erred in denying him a reduction in his sentence under § 3E1.1 of the Sentencing Guidelines based on his acceptance of responsibility. “Because it is generally a question of fact, the trial court’s determination of whether a defendant has accepted responsibility normally enjoys the protection of the ‘clearly erroneous’ standard, and will not be overturned unless it is without foundation.” United States v. Roberts, 243 F.3d 235, 240-41 (6th Cir.2001) (quotations omitted). According to § 3E1.1 of the Sentencing Guidelines, the court may decrease a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” Application Note three to § 3E1.1 states as follows:
Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable ... will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.
Application Note four provides that conduct resulting in an enhancement for obstruction of justice under § 3C1.1 generally indicates that the defendant has not accepted responsibility. The note states, however, that there may be “extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”
Francheck received an enhancement for obstruction of justice under § 3C1.1 as a result of his decision to abscond from pretrial supervision and remain a fugitive for over eight months. In addition, while a fugitive, Francheck continued to commit drug offenses. Because Francheck received an enhancement for obstruction of justice, he bears the burden of establishing that his situation is an extraordinary case where both adjustments may apply. See Roberts, 243 F.3d at 241. The district court found that the timeliness of his acceptance of responsibility did not weigh in his favor because he did not accept responsibility until after he was arrested, absconded, and was arrested for a second time. While the district court recognized that Francheck had undergone substantial post-rehabilitative efforts and truthfully admitted his criminal conduct to the court, the court concluded that such conduct did not outweigh the absconding conduct, including his continued drug use while a fugitive. According to the court, Fran-check’s case was “not an extraordinary case where both adjustments can apply.”
Francheck argues that the district court erred in finding that his case did not involve extraordinary circumstances supporting a reduction because Francheck (1) admitted his conduct comprising the offenses in question; (2) entered a plea of guilty; (3) expressed remorse for his offenses; (4) offered to assist the government in other investigations; and (5) com*859pleted a post-offense drug rehabilitation program since his incarceration. The district court recognized the factors that Francheck cites, but found that these factors were outweighed by Francheck’s absconding conduct and drug use while a fugitive. Because Francheck received an enhancement under § 3C1.1 for absconding from federal custody, remained a fugitive for over eight months until arrested by federal marshals, and continued his involvement with drugs while a fugitive, we conclude that the district court’s decision to deny the reduction for acceptance of responsibility was not clearly erroneous.
III.
For the reasons set forth above, we affirm the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217836/ | ORDER
Dortha Elkins, proceeding with the benefit of counsel, appeals the sentence of imprisonment imposed upon her plea of guilty to conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 & 841(b)(1)(C). The parties have expressly waived oral argument and upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). The facts underlying Elkins’s conviction are not in dispute.
In light of two prior state court convictions for controlled substance offenses, the *860probation officer preparing the presen-tence report recommended that Elkins’s adjusted offense level be enhanced under USSG § 4B1.1 to reflect Elkins’s status as a career offender. Elkins objected to the enhancement, arguing that one of the predicate prior convictions should not be relied upon for the enhancement because it did not involve the sale of a controlled substance; rather it involved the sale of a counterfeit controlled substance. The district court overruled the objection and sentenced Elkins to 151 months of imprisonment.
In her timely appeal, Elkins reasserts the argument set forth in the district court. Elkins does not challenge the fact of her prior conviction for the sale of counterfeit methamphetamine, nor does she challenge the fact that under Tennessee law it was criminal conduct to sell a substance that she represented to be methamphetamine.
This court reviews de novo a district court’s application and interpretation of the sentencing guidelines; however, the district court’s factual determinations will not be disturbed unless they are clearly erroneous. United States v. O’Dell, 247 F.3d 655, 674 (6th Cir.2001); United States v. Murphy, 241 F.3d 447, 458 (6th Cir.), cert. denied, 532 U.S. 1044, 121 S.Ct. 2013, 149 L.Ed.2d 1014 (2001).
Section 4B1.1 of the United States Sentencing Guidelines provides that a defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. The term “controlled substance offense” is defined by the Guidelines as an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. USSG § 431.2(b).
An examination of the fact of conviction and the statutory definition of the predicate offense, see United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)), clearly reveals that Elkins committed a qualifying predicate controlled substance offense under § 4B1.1. The guidelines specifically define “controlled substance offense” to include a conviction for the sale of a counterfeit substance. Elkins cites to no legal authority to the contrary. Her argument on appeal is meritless.
Accordingly, we hereby affirm the district court’s judgment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217837/ | ORDER
Carla S. Engle, proceeding pro se, appeals a district court order dismissing her civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking declaratory and injunctive relief, Engle filed a complaint against the Tennessee Department of Corrections (“TDOC”) and the following officials employed by the TDOC: Commissioner Donal Campbell, Assistant Commissioner Jim Rose, Warden Wayne Douglas, Warden H. Earline Guida, Deputy Warden Charles Simmons, Deputy Warden Charles Banks, and Officer Geralyn Hutchinson. Engle alleged that she was employed as a correctional officer at the Tennessee Prison for Women from March 1998 to January 1999. During her employment, Engle befriended inmate Karen Howell. Following the resignation of her employment with the TDOC, Engle began assisting TDOC inmates, including Howell, with legal research and other legal matters. In an effort to assist Howell, Engle enlisted the aid of inmate Crystal Sturgill, one of Howell’s co-defendants. Engle subsequently became a certified paralegal.
Relying upon the First, Fifth, Sixth, and Fourteenth Amendments, Engle alleged that the defendants improperly restricted her visitation, written correspondence, and telephone communication with Howell, Sturgill, and other inmates, thereby denying her meaningful access to the courts, equal protection, due process, and the right to pursue her profession. Engle also alleged that the defendants retaliated against her because she exercised her constitutional right to criticize TDOC policies and security measures. In addition, Engle challenged the constitutionality of TDOC Policy Number 507.01 § VI(B)(6)(h), which prohibits former TDOC employees from visiting TDOC inmates unless certain conditions, not applicable to Engle, are present.
The defendants filed a motion to dismiss, to which Engle responded. The district court granted the defendants’ motion and dismissed the case. The district court subsequently denied Engle’s motion for reconsideration. Engle has filed a timely appeal.
We review de novo the district court’s dismissal of a suit pursuant to Fed. R.Civ.P. 12(b)(6). Decker v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 205 F.3d 906, 909 (6th Cir.2000); Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). When considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss, “[t]he district court must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the *863plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief.” Tatum, 58 F.3d at 1109; accord Decker, 205 F.3d at 909.
Upon review, we conclude that the district court properly dismissed Engle’s complaint as it failed to state a claim upon which relief may be granted. First, Engle lacks standing to challenge the restrictions imposed by the TDOC upon visitation, written correspondence, and telephone communication because she did not allege any personal injury resulting from such restrictions, see Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and she may not assert claims on behalf of Howell, Sturgill, or any other prisoner. See id. at 474; Newsom v. Norris, 888 F.2d 371, 381 (6th Cir.1989). Moreover, Engle may not assert a derivative claim for lack of access to the courts since she did not allege that Howell lacked reasonable alternatives to her assistance. See Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir.1993).
Second, Engle cannot state a § 1983 due process claim predicated upon the TDOC’s failure to follow its policies regarding non-contact visitation, telephone privileges, attorney access to inmates, and inmate mail because such TDOC policies do not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Third, Engle failed to allege the elements necessary to support a retaliation claim against the defendants as she failed to allege that the defendants’ actions were sufficiently adverse so as to have a deterrent effect on future protected conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999).
Fourth, the TDOC visitation policy at issue is not unconstitutional. The visitation policy does not run afoul of the Equal Protection Clause because it is rationally related to a legitimate penological objective, see Walker v. Bain, 257 F.3d 660, 667-68 (6th Cir.2001), does not deprive Engle of a property interest protected by the Due Process Clause because she has no legitimate claim of entitlement to visitation with TDOC inmates, see Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and does not violate her Fourteenth Amendment right to pursue her profession as a paralegal because she is not entirely foreclosed from pursuing her career. See Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999); Parate v. Isibor, 868 F.2d 821, 831 (6th Cir.1989).
Accordingly, the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217838/ | OPINION
McKEAGUE, District Judge.
A grand jury indicted Eulric Ware for knowingly and intentionally attempting to possess cocaine in violation of 21 U.S.C. § 812. On Ware’s motion and after a suppression hearing, the district court issued an order suppressing (1) defendant’s post-custodial inculpatory statements to police, and (2) evidence seized from defendant’s apartment pursuant to a state search warrant. The government appeals, challenging the district court’s order granting defendant’s motion to suppress. For the reasons set forth below, we REVERSE the judgment of the district court.
I. BACKGROUND
A. Factual Background
Early in the morning on February 8, 2000, Detective Sherman Dotson of the Louisville Police Department narcotics unit noticed a suspicious package at the Federal Express facility in Louisville, Kentucky. The heavily taped package had been shipped from Daytona Beach. Florida, to “David Jones” at 1426 South First Street in Louisville. Detective Dotson set the package aside after a trained narcotics dog alerted on it, indicating the presence of a controlled substance.
At 9:30 a.m., Detective Dotson, with the assistance of Detective Brian Nunn, obtained two search warrants. The first authorized them to open the package itself. The second authorized them to insert an electronic tracking device and to enter any structure to seize the package if the device indicated that the package had been opened.
The detectives then executed the warrant on the package and found a pair of basketball shoes, each containing approximately one fourth of a kilogram of cocaine. After removing all but one gram of the cocaine, the detectives inserted the tracking device and resealed the package in preparation for a controlled delivery.
At that time, Detective Eddie Napier drafted an affidavit and application for a warrant authorizing a search of the delivery address. A state court judge signed the warrant (“the Napier warrant”) around 10:00 a.m. While the face of this warrant authorized in boilerplate terms an “immediate search” of the premises, the supporting affidavit stated that “[o]n 02-08-2000 a controlled delivery of this parcel will be attempted.” All of the officers involved considered this to be an anticipatory warrant.
Armed with the Napier warrant and the package, the police made the controlled delivery around 2:30 p.m. Defendant Eul-ric Ware signed for the package as “David Jones” and took it inside his apartment. Several minutes later, Ware left the apartment carrying an opaque shopping bag, and the electronic monitor indicated to the police surveillance team that the package was moving.
Ware then drove to the University of Louisville campus and parked in a semicircular driveway. At this time officers arrested Ware, read him his Miranda rights, and retrieved the shopping bag, which contained the package with the cocaine. The police then took Ware back to his apartment and searched it in reliance *866on the Napier warrant. Drug paraphernalia and a weapon were recovered.
Next, while being transported to police headquarters for booking, Ware inquired about “helping himself out.” Upon arriving at the station, the police took Ware to an interview room equipped with audio and video recording equipment. Detectives Pitcock and Nunn then entered the room and again advised Ware of his Miranda rights. After Ware indicated that he was a “little hazy” about the meaning of his rights, Detective Nunn read them again, stating that they “are very, very important to you.” Ware then asked: “So, right now I can have an attorney while I talk to /all?,” to which Nunn replied, “Sure can, that’s your legal right.” Soon after, Ware stated: “I’d just rather have an attorney, man.”
After Ware requested counsel, the detectives located a telephone book and helped defendant recall the name of an attorney he had heard of. To this end, the police asked Ware questions concerning that attorney’s race and practice area. When Ware ultimately identified attorney Stephen Miller. Detective Nunn left the room to place a call to Miller’s office. Detective Pitcock, who apparently knew Ware prior to this arrest, remained in the room and chatted with him about his mother and about how he knew Miller.
Detective Nunn returned to the room several minutes later and the following exchange occurred:
Nunn: Unfortunately, [Miller’s] not in the office today. They said his secretary’s not in the office and I left a message on his answering machine. If he gets in anytime soon. I gave him my pager number and asked him to call us. So, that’s the best I can do here. Any other suggestions or guesses?
Ware: I’ll just talk that’s all, you know, just forget it.
Nunn: Here’s the deal, I don’t want you to just forget it cause we couldn’t get a hold of one attorney. I mean, let’s, if you’re comfortable talking, I’m fine with that, but I need to make sure that you’re fine with that.
Ware: I can always stop, right?
Nunn: Oh yeah, yeah. Like I read your rights, if you decide hey I don’t want to talk no more, that’s fine. And like I said, I’ll just kind of lay it out again, what we know and then if you want to try and help yourself.
Ware agreed to talk and subsequently gave inculpatory statements.
B. Procedural Background
On May 2, 2000, a grand jury returned an indictment charging defendant with knowingly and intentionally attempting to possess cocaine on or about February 8, 2000. After defendant moved to suppress several items of evidence, the magistrate judge held a suppression hearing and issued a report and recommendation that Ware’s motion be denied in its entirety.
Conducting a de novo review, the district court departed from the magistrate judge’s recommendation in two respects. First, the district court concluded that the Napier warrant was technically deficient as an anticipatory warrant, was not supported by probable cause as a standard warrant, and that the good faith exception to the warrant requirement did not apply. In suppressing the evidence, the court found: “In sum, the sheer absence of corroborating information in the affidavit supporting the Napier warrant coupled with the breadth of the warrant itself renders reliance on the warrant objectively unreasonable and, therefore, fruits of the search will be excluded.”
*867Second, the district court concluded that the detectives did not sufficiently break off their interrogation of defendant after he requested counsel. As a result, the court suppressed the incriminating statements defendant gave the officers. The court concluded that “the officers, perhaps innocently enough, continued their conversation with Ware. Under these circumstances, one can reach no conclusion other than Defendant’s incriminating statements occurred in the same custodial interrogation as his initial request for counsel.” The government then brought this timely appeal.
II. ANALYSIS
When reviewing a district court’s decision on a motion to suppress, this Court reviews its findings of fact for clear error and its conclusions of law de novo. See United States v. Miggins, 302 F.3d 384, 393 (6th Cir.2002).
A. Confession
The government first contends that the district court erred in suppressing defendant’s confession. The district court’s ruling was premised on the notion that the officers’ interrogation of Ware did not cease when he requested counsel, that his statements were given in the same custodial interrogation as defendant’s initial request for counsel, and that defendant did not sufficiently initiate discussion of the crime or waive his right to counsel.
Under the Edwards rule, once an accused has invoked the right to counsel, the police must cease interrogation until counsel has been made available, unless “the accused himself initiates further communication, exchanges, or conversations” with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378.
In this case, it does not appear that interrogation of Ware ever began. The Supreme Court has defined interrogation as “express questioning ... [or] any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Islana v. Innes, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Here, the only questions police asked of Ware upon entering the interview room pertained to Ware’s understanding of his Miranda rights. Such questions do not constitute interrogation. See United States v. Avery, 717 F.2d 1020, 1024 (6th Cir.1983)(no interrogation where police asked routine booking questions unrelated “even tangentially, to criminal activity” and there was “no evidence that the defendant was particularly susceptible to these questions, or that police somehow used the questions to elicit an incriminating response from the defendant.”).
The district court concluded that all questions the police asked Ware after he invoked his right to counsel comprised further unlawful interrogation. These questions, however, were principally aimed at finding Ware an attorney. Another question related to the current whereabouts of Ware’s mother. Taken in context, these questions were not even tangentially related to criminal activity, nor did they hint at eliciting incriminating information or prey on any particular susceptibility of the defendant.
Next, the district court concluded that defendant agreed to talk only in response to Detective Nunn’s question: “Any other suggestions or guesses?” While if taken out of context this could be construed as interrogation, it is more reasonable to conclude that Nunn’s question, posed immediately after informing defen*868dant that attorney Miller could not be reached, was aimed at acquiring counsel for defendant rather than at eliciting incriminating information.
As Edwards counsels, a defendant who has invoked his right to counsel may himself lawfully initiate discussion of the crime. See Edwards, 451 U.S. at 484-85. Here, Ware stated, “I’ll just talk, that’s all, you know, just forget it.” Defendant was not prompted to talk by police interrogation, but rather “evinced a willingness and a desire for a generalized discussion about the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Therefore, defendant sufficiently initiated discussion of the crime after invoking his right to counsel.
Although Ware initiated the conversation, it is still necessary to determine whether he validly waived his rights to counsel and to remain silent. See Edwards, 451 U.S. at 486 n. 9. Such a waiver must, in the totality of the circumstances, be knowing and intelligent. See id. Here, defendant was advised of his Miranda rights three times before attempting to contact an attorney and ultimately deciding to talk. In agreeing to talk, defendant specifically confirmed that he could stop talking at any time, indicating that he understood his rights. Furthermore, there is no evidence of police coercion, threats, or promises. From the totality of the circumstances, defendant knew what his rights were and waived them.
In sum, given that defendant sufficiently initiated discussion of the crime and validly waived his rights to remain silent and to counsel, his subsequent confession was voluntary and should not have been suppressed.
B. Warrant
The government farther contends that the district court erred in suppressing evidence seized pursuant to the Napier warrant. The district court ruled that the warrant was technically deficient as an anticipatory warrant, was not supported by probable cause as a standard warrant, and did not fit within the good faith exception to the exclusionary rule.
On review, this Court need not reach the validity of the warrant, as it can turn immediately to consider the application of the Leon good faith exception. See United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)(“[R]eviewing courts could ... reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers’ good faith.”).
In Leon, the Supreme Court held that the exclusionary rule should not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant that is later found to be invalid. Id. at 913. This “good faith” exception is not without limit, however, as the Leon Court identified four specific situations when it would not apply. Id. at 922-23. None of these specific situations are at issue here, however, as the district court’s ruling was premised simply on whether the officer’s reliance on the Napier warrant was objectively reasonable.
The Leon inquiry is limited to “the objectively ascertainable question of whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23. In making this determination, all the circumstances may be considered. See id.
In this case, the evidence presented at the suppression hearing revealed that the Louisville police intercepted a Federal Express package containing approximately *869one pound of cocaine. This package was addressed to a “David Jones” at the address of the apartment occupied by Ware. In addition, the package had been seized and opened pursuant to a search warrant, and all but one gram of cocaine had been removed. Finally, the police planned to make a controlled delivery of the package to Ware’s apartment later that afternoon.
Armed with this information, Detective Napier applied for and received a search warrant that inadvertently authorized an immediate search of the apartment. The language indicating “immediate” was boilerplate on the form of the warrant application. In the supporting affidavit, however, Napier specifically noted that a controlled delivery would be attempted that afternoon to the apartment. Indeed, the police executed this warrant in accordance with their belief that it was anticipatory, waiting until after the controlled delivery to search Ware’s apartment.
Since “warrants and their supporting documents are to be read not hypertechni-cally, but in a commonsense fashion,” United States v. Miggins, 302 F.3d 384, 395 (6th Cir.2002)(quotation marks and alteration omitted)(finding an anticipatory search warrant valid where the accompanying affidavit specified the triggering event), an objectively reasonable officer would likely have concluded that the warrant legally authorized a search of the apartment only upon the controlled delivery of the package. Furthermore, by waiting until after the controlled delivery to search Ware’s apartment, “it is painfully apparent that ... the officerfs] acted as [ ] reasonable officers would and should act in similar circumstances.” Leon, 468 U.S. at 919-20, citing Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)(White, J., dissenting). This being the case, the exclusionary rule should not operate to bar the fruits of the search of Ware’s apartment.
Furthermore, suppressing the evidence obtained in this search would not serve the purposes of the exclusionary rule. See Leon, 468 U.S. at 918 (“[Suppression of evidence obtained pursuant to a search warrant should be ordered only ... in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”). This is not a case in which the exclusionary rule is needed to deter police or magistrate misconduct.
III. CONCLUSION
For all the reasons set forth above, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217839/ | *870ORDER
This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof,
It is ORDERED that the judgment of the district court be, and it hereby is, affirmed upon the opinion of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217842/ | ORDER
Eugene Anthony Gesuale, a pro se federal prisoner, appeals a district court order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The government has filed a brief. This case has been referred to a panel of the court pursuant to Rule 34(j')(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In 1986, Gesuale pleaded guilty to multiple federal drug offenses including participating in a continuing criminal enterprise (“CCE”). His convictions and sentences were affirmed on appeal, and all of Ges-uale’s post-conviction relief efforts have failed. In his federal habeas corpus petition, Gesuale claims that the Supreme Court’s case of Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), applies to his CCE conviction. The district court denied the petition, concluding that a Richardson claim does not create an exception under the savings clause of 28 U.S.C. § 2255. This appeal followed. Gesuale has filed a motion for oral argument and for the appointment of counsel.
We review de novo a district court’s order denying a petition for a writ of habe-as corpus filed under 28 U.S.C. § 2241. Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999).
Upon review, we conclude that the district court properly denied Gesuale’s habe-as petition. The general rule is that a petitioner cannot attack the imposition of his federal sentence under § 2241; the petitioner must normally proceed under § 2255. 28 U.S.C. § 2255, fifth ¶; Charles, 180 F.3d at 755-56. An exception to the general rule exists where the petitioner can show that the remedy afforded under § 2255 is inadequate or ineffective to test the legality of the petitioner’s detention. 28 U.S.C. § 2255, fifth ¶; Charles 180 F.3d at 756. In Charles, the court noted that other circuits have recognized an actual innocence exception, based on the Supreme Court case of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), as the only currently-recognized instance where the § 2255 remedy is inadequate or ineffective. Charles, 180 F.3d at 757. Gesuale has cited no authority which would permit his Richardson claim to proceed under § 2241. We note that the Fifth Circuit has held that a Richardson claim is not the type of defect that can support a § 2241 claim under the savings clause of § 2255. Jeffers v. Chandler, 253 F.3d 827, 831 (5th Cir.), cert. denied, 534 U.S. 1001, 122 S.Ct. 476, 151 L.Ed.2d 390 (2001).
Even assuming that a Richardson issue can state a claim of actual innocence, Ges-uale has not made such a showing. A petitioner must show factual innocence, not mere legal insufficiency, to raise such a claim. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828; Charles, 180 F.3d at 757. Gesuale’s claim of actual innocence only addresses the alleged legal insufficiency of his convictions. He does not demonstrate his factual innocence of the charges. At most, Gesuale “is innocent ... only in the technical sense.” In re Davenport, 147 F.3d 605, 609 (7th Cir.1998). Therefore, his argument is insufficient to meet the requirements for showing “actual innocence.” Bousley, 523 U.S. at 623; Charles, 180 F.3d at 757.
*877Accordingly, the motion for oral argument and for the appointment of counsel is denied, and the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217843/ | ORDER
Byron A. Looper, a Tennessee prisoner proceeding pro se, appeals a district court order dismissing his complaint filed under 42 U.S.C. §§ 1983, 1985 and 1986 and the Racketeer Influenced and Corrupt Organization Act (RICO) (18 U.S.C. § 1961, et seq.). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Looper filed his complaint against Billy Gibson, the District Attorney General for *878Cumberland County; the Tennessee Good Ole Boys, described by Looper as a criminal conspiracy; and approximately 94 other defendants; seeking declaratory, in-junctive and monetary relief.
In August, 2000, a jury in Cumberland County found Looper guilty of first degree murder. For this crime, he is currently serving a sentence of life imprisonment without the possibility of parole. The defendants were, in various ways, involved in the investigation of the crime, Looper’s pre-trial confinement, the prosecution of the charge against him, and Looper’s appeal. Looper believes that his arrest, prosecution and conviction were politically motivated and orchestrated by a criminal conspiracy and that the defendants played a part in the conspiracy. Buried deep within the amended complaint, Looper also alleges that he has been denied his right of access to the courts.
The matter was referred to a magistrate judge who issued a report recommending that the complaint be dismissed, pursuant to 28 U.S.C. § 1915A, for failure to state a claim. The district court adopted the report and recommendation over Looper’s objections. This appeal followed.
We review de novo a district court’s decision to dismiss under 28 U.S.C. § 1915A. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). In determining whether a complaint fails to state a claim, this court construes the complaint in the light most favorable to the plaintiff, accepts his factual allegations as true, and determines whether he can prove any set of facts in support of his claims that would entitle him to relief. Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir.1998).
Upon review, we conclude that the district court properly dismissed Looper’s complaint for the reasons stated by the magistrate judge, as adopted by the district court. Essentially, Looper’s claims are not yet cognizable under 42 U.S.C. §§ 1983, 1985 and 1986. A state prisoner does not state a cognizable claim under § 1983 if a ruling on his claim would necessarily imply the invalidity of his conviction and confinement, until the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Looper has offered nothing to suggest that his conviction has been reversed in state or federal court prior to bringing this action.
Looper’s claims that he was denied access to a law library while in pre-trial confinement, a typewriter and copier are meritless. States have affirmative obligations to ensure prisoners and pretrial detainees meaningful access to the courts, including providing paper and pen, notarial services, stamps, and either adequate law libraries or adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 824-28, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985). It is not enough, however, for the plaintiff to simply allege that an adequate law library or some alternate form of legal assistance was not made available to him. He must also show that the defendants’ conduct in some way prejudiced the filing or prosecution of a legal matter. Walker, 771 F.2d at 932.
During his pre-trial confinement, Looper was represented by counsel. Thus his right of access to the courts was protected. Further, following his conviction, the refusal of the Tennessee Department of Correction to provide Looper with a typewriter and a copier has not, as evidenced by the instant case, and eight others filed in the Middle District of Tennessee alone, prejudiced Looper’s ability to press forth *879his legal claims. Thus, since Looper has not alleged even a single instance where the failure to provide a typewriter and a copier prejudiced his right of access to the courts, he has failed to state a claim.
Finally, Looper fails to state a claim for relief under the RICO statute. Looper makes no showing of damage to his business or property. 18 U.S.C. § 1964(c); Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 582 (1992); Fleischhauer v. Feltner, 879 F.2d 1290, 1299-1300 (6th Cir.1989).
Accordingly, the district court’s order is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217979/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217980/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224403/ | ORDER ADOPTING MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
SIM LAKE, District Judge.
Having reviewed the Magistrate Judge’s Memorandum and Recommendation dated April 21, 2014, and the objections and responses filed thereto, the court is of the opinion that said Memorandum and Recommendation should be adopted by this court.
It is, therefore, ORDERED that the Memorandum and Recommendation is hereby ADOPTED by this court.
The Clerk shall send copies of this Order to the respective parties.
MEMORANDUM, RECOMMENDATION, AND ORDER
NANCY K. JOHNSON, United States Magistrate Judge.
Pending before the court1 are Defendant’s Motion to Dismiss and No-Evidence Motion for Summary Judgment (Doc. 29), Plaintiffs Motion to Exclude Defendant’s Expert (Doc. 30), and Plaintiffs Motion for *597Summary Judgment (Doc. 31). The court has considered the motions, the responses, all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS Plaintiffs motion to exclude and RECOMMENDS that Plaintiffs motion for summary judgment be GRANTED and Defendant’s motion be DENIED.
I. Case Background
Bank of America, N.A., (“BANA”) filed this action against Fulcrum Enterprises, LLC, (“Fulcrum”) pursuant to the Texas Uniform Fraudulent Transfer Act (“TUF-TA” or “Act”).2
A. Factual Background
On August 7, 2009, BANA commenced a separate suit (“Underlying Proceeding”) against Nancy Groves (“Groves”), among others, alleging participation in a scheme to defraud mortgage lenders.3 Groves was served with the Underlying Proceeding on February 22, 2010, and filed her answer on April 7, 2010.4
On May 13, 2010, BANA filed a motion seeking a preliminary injunction against Groves to prohibit her from selling, assigning, transferring, or encumbering any interest she had in any real property.5 On July 6, 2010, a memorandum and recommendation was issued recommending that BANA’s motion be granted.6 The district court adopted the memorandum and recommendation on September 8, 2010.7
Between May 28, 2010, and July 20, 2010, Groves transferred eight properties (“Properties”) to Fulcrum, a real estate company operated by Allan Groves.8 *598Groves and Allan Groves were married from 1959 until 1990 and have maintained a friendly relationship since their divorce.9 Allan Groves had previously assisted Groves in her business affairs, including facilitating the purchase of properties from her by companies he owned.10 Groves dealt only with Allen Groves in transferring the Properties to Fulcrum.11
Pursuant to an oral agreement, Groves received nothing from Fulcrum in exchange for transferring the Properties, collectively valued at approximately $533,000 by the Harris County Appraisal District, to Fulcrum.12 For a five year period after the transfer, Groves would retain the right to receive rental income and concurrent responsibility to pay all bills and taxes related to the properties.13
On March 26, 2013, BANA and Groves entered into a Settlement Agreement whereby Groves agreed to pay BANA $345,000 to resolve the claims against her in the Underlying Litigation.14 Pursuant to the agreement, Groves and BANA executed an Agreed Judgment granting BANA judgment against Groves in the amount of $500,000 plus post-judgment interest to be presented to the court for immediate entry in the event BANA did not receive the settlement funds by September 1, 2013.15 The Settlement Agreement stipulated that the Agreed Judgment could not be appealed or otherwise challenged in any way.16 The Agreed Judgment was entered on October 8, 2013, after Groves failed to make any payments to BANA.17 Groves then filed a motion to vacate the Agreed Judgment on November 5, 2013, on the basis that BANA lacked standing to file suit.18 The motion was denied on November 20, 2013.19 Groves filed a notice of appeal on December 18, 2013.20
B. Procedural Background
BANA filed this suit on February 1, 2012, and an Amended Complaint on February 8, 2012, alleging that Groves’s transferring the Properties to Fulcrum violated the TUFTA, specifically Tex. Bus. & Com. Code §§ (“Sections”) 24.005(a)(1) and *59924.006(a).21 BANA sought to void Groves’s transfer of the Properties to Fulcrum or, in the alternative, to recover judgment against Fulcrum for the value of the property transferred to the extent necessary to satisfy BANA’s claim against Groves.22 BANA also sought actual damages caused by the transfers, punitive damages, injunctive relief, and attorneys’ fees and costs.23 Fulcrum filed a motion to dismiss and no-evidence motion for summary judgment on November 21, 2013.24 BANA filed a response on December 12, 2013, and Fulcrum filed a reply on December 28, 2013.25 BANA moved to exclude Fulcrum’s expert and for summary judgment on November 21, 2013.26 Fulcrum filed responses on December 12, 2013, and BANA filed replies on December 27, 2013.27
II. Fulcrum’s Motion
Fulcrum moves to dismiss on the basis that BANA is not a creditor of Groves and therefore lacked standing to file suit pursuant to Sections 24.005(a)(1) and 24.006(a). Alternatively, Fulcrum contends that BANA’s claims against it are not ripe. Lastly, Fulcrum argues that it is entitled to summary judgment on the basis that BANA has introduced no evidence that it is a creditor of Groves.
“A fraudulent transfer is a transfer by a debtor with the intent to hinder, delay, or defraud his creditors by placing the debtor’s property beyond the creditor’s reach.” Nobles v. Marcus, 533 S.W.2d 923, 925 (Tex.1976). The TUFTA established a cause of action whereby creditors may set aside fraudulent transfers by debtors. Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25 (Tex.App.-Tyler 2000, pet. denied). Under the TUFTA, fraudulent transfers are divided into two types: actual fraudulent transfers, covered in Section 24.005(a)(1), and constructive fraudulent transfers, covered in Sections 24.005(a)(2) and 24.006. In re Pace, 456 B.R. 253, 266 (Bankr.W.D.Tex.2011).
Pursuant to Section 24.005(a)(1), “[a] transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or within a reasonable time after the transfer was made ..., if the debtor made the transfer ... with actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex. Bus. & CoimCode § 24.005(a)(1).
Section 24.006(a) provides that a fraudulent transfer also occurs when a creditor’s claim arises “before the transfer was made, if the debtor made the transfer ... without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer.” Tex. Bus. & Com. Code § 24.006(a).
Following a fraudulent transfer, a creditor may set aside tha transfers or recover judgment for the value of the asset transferred to the extent necessary to satisfy *600the creditor’s claim. Tex. Bus. & Com. Code §§ 24.008(a)(1), 24.009(b). A creditor is entitled to judgment against the first transferee of the asset so long as the transferee did not “[take] in good faith and for a reasonably equivalent value.” Tex. Bus. & Com.Code § 24.009(a)-(b).
A. Standing
Fulcrum moves to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) on the basis that BANA is not a creditor of Groves and therefore lacked standing to sue under the statute.
Standing is a threshold consideration which defines the limits of a federal court’s power to hear and adjudicate cases. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir.2003). The doctrine has two components, one involving constitutional limitations on federal court jurisdiction and the other involving prudential limitations on its exercise. McClure, 335 F.3d at 408 (citing Raines v. Byrd, 521 U.S. 811, 820, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)); see also Warth, 422 U.S. at 517-18, 95 S.Ct. 2197.
In order to have constitutional standing to bring suit, the plaintiff must have sustained an injury in fact “fairly traceable to the defendant’s actions” and “likely to be redressed by a favorable decision” in court. Ensley v. Cody Res., Inc., 171 F.3d 315, 319 (5th Cir.1999); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The prudential limitations include the general requirement that a plaintiff seek relief based on his own legal rights and interests and not those of third parties. Warth, 422 U.S. at 499, 95 S.Ct. 2197; Ensley, 171 F.3d at 319. This component requires that the court review the law on which a claim is based to determine whether it grants parties such as the plaintiff a right to relief. Warth, 422 U.S. at 500, 95 S.Ct. 2197.
The Fifth Circuit has instructed that, while a dismissal for lack of constitutional standing should be granted under Rule 12(b)(1), dismissal for lack of prudential standing is properly granted under Rule 12(b)(6), which provides for dismissal for failure to state a claim upon which relief can be granted. See Blanchard 1986, Ltd. v. Park Plantation, LLC, 553 F.3d 405, 409 (5th Cir.2008); Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n. 2 (5th Cir.2011). Because Fulcrum disputes BANA’s right to relief under Sections 24.005 and 24.006, its motion to dismiss on this basis is properly brought under Rule 12(b)(6), not Rule 12(b)(1), and the court considers it as such.
Pursuant to Rule 12(b)(6), dismissal of an action is appropriate whenever the pleading, on its face, fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should construe the allegations in the complaint favorably to the pleader and accept as true all well-pleaded facts. Harold H. Huggins Realty, Inc., 634 F.3d at 803 n. 44.
A complaint need not contain “detailed factual allegations” but must include sufficient facts to indicate the plausibility of the claims asserted, raising the “right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plausibility means that the factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A plaintiff must *601provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In other words, the factual allegations must allow for an inference of “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Fulcrum contends that, although BANA has obtained a judgment against Groves in the Underlying Proceeding, it cannot qualify as a creditor because the court in the Underlying Proceeding lacked subject matter jurisdiction over the case.
The statute defines “Creditor” as “a person ... who has a claim.” Tex. Bus. & Com.Code § 24.002. “Claim,” in turn, is defined as “a right to payment or property, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Id. Thus, “[ujnder Texas law, one may bring an action under the [TUF-TA] as a creditor of the transferor merely by virtue of a legal action, pending and unliquidated at the time of transfer, against the transferor.” Colonial Leasing Co. of New England, Inc. v. Logistics Control Group Int'l, 762 F.2d 454, 458 (5th Cir.1985) (citing Hollins v. Rapid Transit Lines, Inc., 440 S.W.2d 57, 60 (Tex.1969)).
In its Amended Complaint, BANA alleged that it had commenced the Underlying Proceeding against Groves. Thus, BANA sufficiently alleged that it was a creditor of Groves to survive a motion to dismiss for failure to state a claim. Accordingly, Fulcrum’s motion to dismiss must be denied.
B. Ripeness
Fulcrum contends that, should BANA be found to' have stated a claim under the TUFTA, its claim must nonetheless be dismissed on ripeness grounds because Groves’s appeal of the court’s denial of her motion to dismiss the Agreed Judgment remains pending.
“A court should dismiss a case for lack of ‘ripeness’ when the case is abstract or hypothetical.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir.1987). “The key considerations are ‘the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Id.
Fulcrum argues that the judgment against Groves in the Underlying Proceeding is not final because it remains subject to appeal and therefore BANA’s present case is not ripe. However, despite Fúlcrum’s assertions, Groves has not appealed the Agreed Judgment entered in the Underlying Proceeding. Indeed, the Agreed Judgment provides that it “cannot be appealed or challenged in any way and shall be immediately entitled to all writs, executions and orders for the enforcement and collection of [the] judgment.”28 The pending appeal of the court’s denial of Groves’s motion to dismiss the Agreed Judgment does not render this case unripe for adjudication.29 Accordingly, Fulcrum’s *602motion to dismiss for lack of ripeness must be denied.
C. Summary Judgment
Fulcrum also moves for a “no-evidence” summary judgment on BANA’s claim. A no-evidence motion for summary judgment, however, is a pleading that may be filed in state court, but not federal court. See Castaneda v. Flores, No. 5:05-CV-129, 2007 WL 1671742, at *2 (S.D.Tex. June 8, 2007) (unpublished). Under federal law, the party moving for summary judgment must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992).
In its motion, Fulcrum avers, without citation to the record, that BANA has introduced no evidence that it is a creditor of Groves. “While federal law clearly contemplates summary judgment in circumstances where there is truly no evidence of an essential element ... [,] the party moving for summary judgment must make some showing that evidence on an essential point is wholly lacking.” In re Hydro-Action, Inc., 341 B.R. 186, 193 (Bankr.E.D.Tex.2006). Fulcrum has failed to make this showing. Moreover, having introduced evidence of the Agreed Judgment, BANA plainly is able to withstand summary judgment on the issue of its status as a creditor. See Colonial Leasing, 762 F.2d 454, 458 (5th Cir.1985) (“[T]o withstand summary judgment on this issue a claimant need only show that it has asserted against the transferor a cause of action that accrued prior to the transfer. To be entitled to relief under the Act, however, the claimant must introduce evidence that judgment was rendered in its favor.”). Accordingly, Fulcrum cannot prevail in its motion for summary judgment.
III. BANA’s Motion for Summary Judgment
BANA moves for summary judgment on its claim that Groves’s. transfer of the Properties to Fulcrum was in violation of Sections 24.005(a)(1) and 24.006(a).
A. Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Brown v. City of Houston, Tex., 337 F.3d 539, 540-41 (5th Cir.2003). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir.2001). To be genuine, the dispute regarding a material fact must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. Anderson, 477 U.S. at 250, 106 S.Ct. 2505; TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002).
The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). If the moving party can show an absence of rec*603ord evidence in support of one or more elements of the case for which the non-moving party bears the burden, the mov-ant will be entitled to summary judgment. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In response to a showing of lack of evidence, the party opposing summary judgment must go beyond the pleadings and proffer evidence that establishes each of the challenged elements of the case, demonstrating that genuine issues of material fact do exist that must be resolved at trial. Id. at 324, 106 S.Ct. 2548.
When considering the evidence, “[djoubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party.” Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir.2001); see also Boston Old Colony Ins. Co. v. Tiner Assocs. Inc., 288 F.3d 222, 227 (5th Cir.2002). The court should not “weigh evidence, assess credibility, or determine the most reasonable inference to be drawn from the evidence.” Honore v. Douglas, 833 F.2d 565, 567 (5th Cir.1987).
However, the nonmoving party ■ must show more than “some metaphysical doubt as to the material facts.” Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th Cir.1995). Conclusory allegations, unsubstantiated assertions, improbable inferences, unsupported speculation, or only a scintilla of evidence will not carry this burden. Brown, 337 F.3d at 541; Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). The court must grant summary judgment if, after an adequate period of discovery, the nonmovant fails “to make a showing sufficient to establish the existence of an element essential to that party’s cáse, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
B. Section 24.005(a)(1) Claim
As stated above, Section 24.005(a)(1) provides that “[a] transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or within a reasonable time after the transfer was made ..., if the debtor made the transfer ... with actual intent to hinder, delay, or defraud any creditor of the debtor.” Tex. Bus. & Com.Code § 24.005(a)(1). Fulcrum does not contest that it received the properties from Groves or that BANA’s claim arose before the transfer was made. Thus, to prevail in its motion for summary judgment, BANA must establish as a matter of law that it was a creditor of Groves and that the transfer was made with the requisite “intent to hinder, delay, or defraud.”
1. BANA’s Status as a Creditor
As discussed above, the statute defines “Creditor” as “a person ... who has a claim” and “Claim” as “a right to payment or property, whether or not the right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.” Tex. Bus. & Com.Code § 24.002. A claimant asserting an action under the TUFTA as a creditor by virtue of a legal action must introduce evidence that judgment was rendered in its favor to be entitled to relief under the Act. Colonial Leasing, 762 F.2d at 458.
Here, Fulcrum concedes that an Agreed Judgment ordering Groves to pay BANA $500,000 plus post-judgment interest was entered in the Underlying Proceeding. The Agreed Judgment further provided that it “cannot be appealed or challenged in any way and shall be immediately entitled to all writs, executions and orders for the enforcement and collection of this *604Judgment.”30 Fulcrum maintains that the judgment is invalid because BANA lacked standing to sue in the Underlying Proceeding, but does not offer an explanation for how it may challenge the validity of the judgment consented to by Groves. Therefore, the court finds that Fulcrum’s assertion regarding BANA’s standing in the Underlying Proceeding is insufficient to raise an issue of fact as to BANA’s status as a creditor.31
2. Groves’s Intent
Section 24.005(b) lists eleven non-exclusive badges of fraud that may be used to prove the fraudulent intent of the transfer- or. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000). BANA contends that several of these badges were present, includ-' ing: (1) the transfers were made to an insider; (2) Groves retained control of the properties after the transfers; (3) Groves had been sued when the transfers occurred; (4) the transfers were of all or substantially all of Groves’s assets; and (5) the value of the consideration received by Groves was not reasonably equivalent to the value of the properties.
“Intent to defraud can be decided as a matter of law where numerous badges of fraud are present and the only evidence in support of the defendant’s theory is a series of conclusional, self-serving statements.” In re Phillips & Hornsby Litig., 204 Fed.Appx. 398, 401 (5th Cir.2006) (alterations and internal quotation marks omitted) (quoting BMG Music v. Martinez, 74 F.3d 87, 90-91 (5th Cir.1996)). Fulcrum does not dispute that Groves retained control of the properties after the transfer or that Groves had been sued when the transfers occurred.
i. Transfer to an Insider
TUFTA defines an insider to include a relative or general partner of the debtor, a partnership in which the debtor is a general partner, a general partner in such a partnership, and a corporation of which the debtor is a director, officer, or person in control. Tex. Bus. & Com.Code Ann. § 24.002(7). This list is not exclusive, but is intended to be for purposes of illustration. See In re Holloway, 955 F.2d 1008, 1010 (5th Cir.1992). Generally, an insider is “an entity whose close relationship with the debtor subjects any transactions made between the debtor and the insider to heavy scrutiny.” See Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 609 (TexApp.-Houston [1st Dist.] 2002, no pet.). The principal factors in determining insider status are (1) the closeness of the relationship between the transferee and debtor, and (2) whether the transactions were at arm’s length. Id.; see also In re Holloway, 955 F.2d at 1010.
The undisputed facts demonstrate the closeness of the relationship between Groves and Fulcrum. Fulcrum was operated by Allen Groves, and Groves dealt only with Allan Groves in effecting the transfers.32 Groves and Allen Groves were *605married to each other for over thirty years, they maintained a friendly relationship after their divorce, and Allen Groves frequently assisted Groves in her business affairs.33 See Holloway, 955 F.2d at 1012 (finding close relationship to exist based in part on parties having been married for twenty years and having maintained frequent contacts after their divorce); In re Wren Alexander Investments, LLC, No. 08-52914-RBK, 2011 WL 748131, at *10 (W.D.Tex.2011) (focusing on relationship between principals of two companies in finding close relationship between the companies).
Moreover, the transactions at issue were plainly not at arm’s length. Groves and Allan Groves operated only under oral agreements, and the Properties were transferred without Groves receiving anything in return.34 Thus, the summary judgment record shows that, as a matter of undisputed fact, the transfer of the Properties was to an insider.
ii. Transfer of A11 or Substantially All Assets
In support of its contention that the properties Groves transferred to Fulcrum represented all or substantially all of her assets, BANA points to testimony by Groves that she transferred “[her] properties that [she] had left, other than [her] homestead” to Fulcrum in 2010.35 The TUFTA defines “asset” as “property of a debtor,” not including property which is exempt under nonbankruptcy law, such as a homestead. Tex. Bus. & Com.Code § 24.002(2); Tex. Prop.Code § 41.001(a).
Although Fulcrum argues that this badge of fraud has not been established, it does not dispute that, at the time the Properties were transferred, they represented all or substantially all of Groves’s assets. Rather, Fulcrum points to Groves’s vague statement in her recent declaration that, as of December 12, 2013, she owned eight properties located in Georgia and North Carolina.36 Given the absence of any evidence directly controverting Groves’s prior testimony that she transferred every property she owned other than her homestead to Fulcrum in 2010, the court finds that Groves’s declaration does not raise a fact issue to the contrary.
iii. Reasonably Equivalent Value
Under the TUFTA, “reasonably equivalent value” is defined as including, “without limitation, a transfer or obligation that is within the range of values for which the transferor would have sold the assets in an arm’s length transaction.” Tex. Bus. & Com.Code Ann. § 24.004(d). While the issue is “largely a question of fact, this does not preclude a court from deciding that issue on summary judgment where no genuine issue of material fact exists.” Villaje Del Rio, Ltd. v. Colina Del Rio, LP, No. SA-07-CA-947-XR, 2009 WL 2498238, at *4 (W.D.Tex. Aug. 12, 2009) (citations and internal quotation marks omitted).
Groves testified that she did not receive anything in exchange for transferring the. Properties, collectively valued at approximately $533,000 by the Harris *606County Appraisal District, to Fulcrum.37 In its response to BANA’s motion for summary judgment, Fulcrum asserts that Groves received the right to receive rents from the properties for five years as part of the transaction. Groves’s testimony makes clear, however, that she had this right before the properties were transferred. In her words, “it would just keep going the way that it was, except that I would no longer own the properties.”38 The uncontroverted summary judgment evidence thus indicates that Groves did not receive reasonably equivalent value in exchange for the transfers made to Fulcrum.
BANA has established the existence of five badges of fraud, making out a strong case that Groves had an intent to defraud BANA. The record contains no evidence to overcome this overwhelming inference of fraud. The court finds that a reasonable jury could only find that the transfers by Groves were made with the intent to “hinder, delay, or defraud” BANA. See BMG Music, 74 F.3d at 91 (affirming grant of summary judgment on Section 24.005(a)(1) claim where numerous badges of fraud were established and defendants offered only “a conclusory, self-serving statement” in support‘ of their theory that transfers were not made with intent to defraud). Accordingly, the court recommends that BANA’s motion for summary judgment be granted.
Because the court finds that the transfers may be set aside pursuant to Section 24.005(a)(1), the court need not consider BANA’s claim under Section 24.006(a).
IV. Conclusion
Based on the foregoing, the court GRANTS BANA’s motion to exclude and RECOMMENDS that BANA’s motion for summary judgment be GRANTED and Fulcrum’s motion be DENIED.
Should the court’s recommendations be adopted, BANA must submit a proposed judgment. The Clerk shall send copies of this Memorandum, Recommendation, and Order to the respective parties who have fourteen days from the receipt thereof to file written objections thereto pursuant to Rule 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
The original of any written objections shall be filed-with the United States District Clerk electronically. Copies of such objections shall be mailed to opposing parties and to the chambers of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.
SIGNED in Houston, Texas, this 21st day of April, 2014.
. This case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. Doc. 4.
. Tex. Bus. & Com.Code §§ 24.001-24.013.
. See Doc. 31-2, Ex. 1-A to BANA’s Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 1.
. See id. Nos. 67, 99.
. See id. No. 107; Doc. 31-7, Ex. 1-E to BANA's Mot. for Summ. J., Mot. for Prelim. Inj.
. See Doc. 31-2, Ex. 1-A to BANA's Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 120; Doc. 31-8, Ex. 1-F to BANA's Mot. for Summ. J., Mem. & Recommendation Dated July 6, 2010.
. See Doc. 31-2, Ex. 1-A to BANA’s Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 134; Doc. 31-9, Ex. 1-G to BANA’s Mot. for Summ. J., Order Dated September 8, 2010.
. See Doc. 31-16, Exs. 2-9 to BANA’s Mot. for Summ. J., Deeds. The properties transferred, all located in Houston, Texas, and transferred by special warranty deed, include: (1) 12811 Wressell Circle (executed on May 28, 2010, and recorded on June 1, 2010); (2) 11812 Southlake Dr. (executed on May 27, 2010, and recorded on June 1, 2010); (3) 7047 Bissonnet Street, Unit 110 (executed on May 28, 2010, and recorded on June 1, 2010); (4) 8525 Hearth Drive, Unit 3 (executed on May 28, 2010, and recorded on June 1, 2010); (5) 5911 Arncliffe (executed on May 28, 2010, and recorded on June 1, 2010); (6) 781 Country Place Drive, Unit 1081, (executed on June 11, 2010, and recorded on June 18, 2010); (7) 10912 Gulf Freeway, Unit 77 (executed on July 16, 2010, and recorded on July 20, 2010); (8) 10912 Gulf Freeway, Unit 15 (executed on July 16, 2010, and recorded on July 10, 2010). See Doc. 31-16, Exs. 2-9 to Pl.’s Mot. for Summ. J., Deeds; Doc. 6, Pl.’s Am. Compl. p. 7.
Fulcrum does not dispute BANA’s contention that Fulcrum was organized and operated by Allan Groves. On November 1, 2013, BANA took the deposition of Lance Kerness ("Kerness”), the representative designated to testify by Fulcrum. See Doc. 31-17, Ex. 10 to BANA's Mot. for Summ. J., Dep. of Kerness. Kerness has been the manager of Fulcrum since its inception in August 2008. Id. pp. 4-6. Kerness was hired by Allan Groves, who then paid Kerness monthly to serve as manager. Id. p. 7. Kerness testified that he was aware of no other person having any affiliation with Fulcrum other than himself and Allan Groves. Id. p. 13. As manager, Kerness had no authority independent of that given to him by Allan Groves. Id. p. 11. *598Kerness testified that he did nothing to prepare for the deposition and was not aware of the allegations being made against Fulcrum by BANA. Id. pp. 19-20, 23.
. See Doc. 31-18, Ex. 12 to BANA's Mot. for Summ. J., Dep. of Groves pp. 17-18; Ex. 31-18, Ex. 13 to BANA's Mot. for Summ. J., Trial Testimony of Groves pp. 186-87.
. See Doc. 31-18, Ex. 13 to BANA's Mot. for Summ. J., Trial Testimony of Groves pp. 200-01, 204, 214-15, 217-18.
. See Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves p. 72.
. See Doc. 31-19, Ex. 15 to BANA’s Mot. for Summ. J., Harris Cnty. Appraisal Dist. Docs; Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 72-75.
. See Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 74-75.
. See Doc. 35-2, Ex. 1-0 to BANA’s Resp. to Fulcrum’s Mot. to Dismiss, Settlement Agreement.
. See id. pp. 3-4.
. See Doc. 35-2, Ex. 1-P to BANA’s Resp. to Fulcrum's Mot. to Dismiss, Agreed Judgment.
. See Doc. 31-2, Ex. 1-A to BANA’s Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 327; Doc. 31-1, Ex. 1 to BANA’s Mot. for Summ. J., Deck of Michael McKleroy p. 3.
. See Doc. 31-2, Ex. 1-A to BANA's Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 331.
. See id. No. 334.
. See BAC Home Loans Serv. v. Tex. Realty Holdings, No. H-09-2539 (S.D.Tex) Dkt. No. 336.
. Doc. 1, BANA’s Orig. Compl.; Doc. 6, BANA's 1st Am. Compl.
. Id. p. 10.
. Id.
. Doc. 29, Fulcrum’s Mot. to Dismiss.
. Doc. 33, BANA's Resp. to Fulcrum’s Mot. to Dismiss; Doc. 48, Fulcrum’s Reply in Supp. of Mot. to Dismiss.
. Doc. 30, BANA’s Mot. to Exclude; Doc. 31, BANA's Mot. for Summ. J.
. Doc. 39, Fulcrum’s Resp. to BANA’s Mot. for Summ. J.; Doc. 40, Fulcrum's Resp. to BANA's Mot. to Exclude; Doc. 45, BANA's Reply in Supp. of Mot. for Summ. J.; Doc. 46, BANA’s Reply in Supp. of Mot. to Exclude.
. See Doc. 35-2, Ex. 1-P to BANA’s Resp. to Fulcrum’s Mot. to Dismiss, Agreed Judgment.
. See Doc. 31-2, Ex. 1-A to BANA’s Mot. for Summ. J., Underlying Proceeding Dkt. Sheet No. 331; BAC Home Loans Serv. v. Tex. Realty Holdings, No. H-09-2539, Dkt. No. 336.
. See Doc. 35-2, Ex. 1-P to BANA’s Resp. to Fulcrum’s Mot. to Dismiss, Agreed Judgment.
. BANA moves to exclude an expert designated by Fulcrum to opine on whether BANA had standing to sue in the Underlying Proceeding. See Doc. 30, BÁNA’s Mot. to Exclude. Because Fulcrum has failed to raise a fact issue as to BANA’s status as a creditor, such testimony would be irrelevant. See Fed. R.Evid. 702 ("A witness who is qualified as an expert ... may testify ... if ... the expert’s ... specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”). Accordingly, the court finds that Fulcrum's expert must be excluded.
.See Doc. 31-17, Ex. 10 to BANA’s Mot. for Summ. J., Dep. of Kerness pp. 4-7, 11, 13; Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves p. 72.
. See Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 17-18; Ex. 31-18, Ex. 13 to BANA’s Mot. for Summ. J., Trial Testimony of Groves pp. 186-87, 200-01, 204, 214-15, 217-18.
. See Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 72-75.
. See Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 72.
. See Doc. 39-3, Ex. 3 to Fulcrum's Resp. to BANA's Mot. for Summ. J.
. See Doc. 31-19, Ex. 15 to BANA’s Mot. for Summ. J., Harris Cnty. Appraisal Dist. Docs; Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves pp. 72-75.
. Doc. 31-18, Ex. 12 to BANA’s Mot. for Summ. J., Dep. of Groves p. 74. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224404/ | OPINION AND ORDER
JANET T. NEFF, District Judge.
Plaintiff filed this case against Defendant, alleging that Defendant sent her a debt collection letter that violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Defendant moves to dismiss Plaintiffs complaint under Fed. R.CrvP. 12(b)(6) for failure to state a claim (Dkt. 19). Plaintiff filed a response in opposition to Defendant’s motion (Dkt. 21), and Defendant filed a reply (Dkt. 22). Both parties have also since provided this Court with additional authorities to consider (Dkts. 30, 34-36). Having conducted a Pre-Motion Conference in this matter and having fully considered the parties’ written briefs and accompanying exhibits, the Court finds that the relevant facts and arguments are adequately presented in these materials and that oral argument would not aid the decisional process. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, the Court determines that Defendant’s Motion to Dismiss is properly granted.
I. BACKGROUND
Plaintiff filed this suit against Defendant on September 21, 2012, alleging that Defendant’s October 12, 2011 debt collection letter to her constituted an “unfair and false act[] and practice[]” in violation of various provisions of the FDCPA, 15 U.S.C. §§ 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f, because Defendant failed to disclose that her debt was “time-barred” (Dkt. 1, Compl. ¶ 20). Plaintiff alleges that “[t]he nondisclosure is exacerbated by the offer of a ‘settlement’ ” in the letter, which “implies a colorable obligation to pay” (id. ¶ 21). The settlement language is as follows:
The current creditor is willing to reduce your balance by offering you a settlement. We are not obligated to renew this offer. Upon receipt and clearance of $1,668.96, your account will be satisfied and closed and a settlement letter will be issued. This offer does not affect your rights set forth below. LVNV Funding LLC has purchased the above referenced account from the above referenced Previous Creditor. LVNV Funding LLC has placed your account with this agency for collection.
(Dkt. 1-1, Compl. Ex. A).1 Plaintiff indicates in her Complaint that she seeks to bring her FDCPA claim on behalf of herself and a class of similarly situated persons (id. ¶¶ 24-30).
This Court held a Pre-Motion Conference in December 2012 on Plaintiffs request to move for class certification in this matter and Defendant’s request to file a motion to dismiss (Dkts. 7-8). The parties agreed to first brief Defendant’s proposed dispositive motion before turning to the class certification question, and the Court issued a briefing schedule only as to Defendant’s proposed dispositive motion *609(Dkt. 12).2 The parties filed their motion papers in March 2013 (Dkts. 19-22) and have also since filed additional authorities for this Court’s consideration (Dkts. 30, 34-36).
II. ANALYSIS
A. Motion Standard
Defendant filed its Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A complaint must present “enough facts to state a claim to relief that is plausible on its face.” Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir.2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In deciding a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the court must treat all well-pleaded allegations in the complaint as true and draw all reasonable inferences from those allegations in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.2008). However, “a court is not required to accept as true unwarranted legal conclusions and/or factual allegations.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 327 (6th Cir.2006) (quoting Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir.2006)).
B. Discussion
Congress enacted the,FDCPA in order to eliminate “the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” 15 U.S.C. § 1692(a). The statute is very broad, and was intended to remedy “what it considered to be a widespread problem.” Harvey, 453 F.3d at 329 (quoting Frey v. Gangwish, 970 F.2d 1516, 1521 (6th Cir.1992)). The FDCPA’s private-enforcement provision, § 1692k, authorizes “any aggrieved person” to recover damages from “any debt collector who fails to comply with any provision” of the FDCPA. Marx v. Gen. Revenue Corp., — U.S. -, 133 S.Ct. 1166, 1171, 185 L.Ed.2d 242 (2013) (quoting 15 U.S.C. § 1692k(a)); see also Wright v. Fin. Serv. of Norwalk, Inc., 22 F.3d 647, 649 (6th Cir.1994).
Here, Plaintiff alleges that Defendant’s failure to disclose in the debt collection letter “that the debt was time-barred” constitutes a violation of the FDCPA (Dkt. 21 at 17-19). “When interpreting the FDCPA, we begin with the language of the statute itself.” Harvey, 453 F.3d at 329 (quoting Schroyer v. Frankel, 197 F.3d 1170, 1174 (6th Cir.1999)). The FDCPA provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Without limiting the general applicability of that prohibition, the statute provides a list of sixteen specific violations, including the three subsections highlighted by Plaintiff in her Complaint (Compl. ¶¶ 20, 22), which prohibit:
(2) The false representation of—
*610(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
* * *
(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.
* * *
(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
(15 U.S.C. § 1692e.)
The FDCPA also provides that “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. This statute likewise provides a list of specific violations, although Plaintiff does not specify any of the eight prohibited unfair practices in her Complaint, presumably relying instead on the general prohibition against unfair practices (Compl. ¶¶ 20, 23).
When assessing whether particular conduct violates the FDCPA, courts use the “least-sophisticated-consumer” standard, an objective standard. Harvey, 453 F.3d at 329, 331. This standard ensures “that the FDCPA protects all consumers, the gullible as well as the shrewd.” Kistner v. Law Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 438 (6th Cir.2008) (quotation marks and citations omitted). The standard “also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and presuming a basic level of understanding and willingness to read with care.” Id. at 438-39 (quotation marks and citations omitted). In the Sixth Circuit, “[i]t is well-settled that courts may properly make the objective determination whether language effectively conveys a notice of rights to the least sophisticated debtor.” Fed. Home Loan Mortgage Corp. v. Lamar, 503 F.3d 504, 508 n. 2 (6th Cir.2007) (quoting Savage v. Hatcher, 109 Fed.Appx. 759, 762 (6th Cir.2004)).
In response to Plaintiffs allegation that Defendant violated the FDCPA in failing to disclose the “time-barred” nature of the debt, Defendant points out that the FDCPA does not specifically require a debt collector to disclose the applicable limitations period (Dkt. 20 at 12-13). Defendant’s point is well taken. A debt collector must send a consumer a written notice that contains the following contents:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
*61115 U.S.C. § 1692g(a) (Notice of debt; contents). The statute does not require a debt collector to make or include a legal opinion on the expiration of the limitations period for filing suit, or even to identify the applicable limitations period at all.
Indeed, the debt is “time-barred” only to the extent that judicial enforcement to collect on the debt is purportedly precluded. A debt is not extinguished merely because the limitations period expires. “[T]he moral obligation to pay a just debt remains,” even where the power to enforce payment is stayed by operation of law. De Vries v. Alger, 329 Mich. 68, 44 N.W.2d 872, 876 (1950). In Michigan, the statute of limitations is a procedural defense that does not alter the creditor’s substantive rights. See Lothian v. Detroit, 414 Mich. 160, 324 N.W.2d 9, 13 (1982) (citing Forest v. Parmalee, 402 Mich. 348, 262 N.W.2d 653, 657 (1978)). Therefore, a creditor may attempt to collect a debt outside of court, even though a statute of limitations defense would defeat any claim that the creditor might try to bring in court.
Plaintiff proffers several policy-based reasons for a debt collector to nonetheless disclose “that the debt was time-barred” (Dkt. 21 at 7-15), but the authorities upon which it relies for these arguments, Federal Trade Commission documents in an unrelated case and two reports for reforming the debt collection system, do not call on courts to read the FDCPA one way or another, but only highlight a variety of concerns with potential reforms. See generally Rice v. Midland Credit Mgmt., Inc., 933 F.Supp.2d 1040, 1048 (N.D.Ill.2013) (ultimately concluding that these authorities are “too general and equivocal to convince the Court that it should conclude that Plaintiff has stated a claim in this case”).
Hence, the Court is likewise unpersuaded by Plaintiffs urging for this Court to follow the reasoning of the magistrate judge in McRill v. Nationwide Credit, Inc., No. 12-2175, 2012 WL 6727974, at *6 (C.D.Ill. Dec. 6, 2012), Report and Recommendation, adopted 12-CV-2175, 2012 WL 6727722 (C.D.Ill. Dec. 28, 2012), who concluded that the FTC’s position in these documents “makes sense” (Dkt. 21 at 20-22). McRill is not binding on this Court. Moreover, as Defendant accurately points out, the magistrate judge in McRill acknowledged that his opinion was a departure, that “most courts to consider FDCPA claims similar to Plaintiffs have concluded that, because, one, state law permits a debt collector to request payment even after the statute of limitations has run, and, two, the FDCPA does not explicitly require a debt collector to disclose that a debt is time-barred, a debt collector does not violate the FDCPA unless it actually sues on a time-barred debt.” McRill, 2012 WL 6727974, at *4 (citing cases). The Court agrees with Defendant that the passage of the limitations period does not affect the validity of the debt, and Defendant’s failure to mention the limitations period in the October 12, 2011 letter attempting to collect on the debt does not constitute a “false representation,” 15 U.S.C. § 1692e(10), or unfair practice, 15 U.S.C. § 1692f, nor does the omission in the letter falsely represent the “legal status of the debt,” 15 U.S.C. § 1692e(2)(A).
The plausibility of Plaintiffs claim under the FDCPA hinges, if at all, on her additional allegation that the debt collection letter “implies that a legally enforceable obligation existed” (Dkt. 21 at 20). See, e.g., Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32-33 (3d Cir.2011) (holding that “the FDCPA permits a debt collector to seek voluntary repayment of the time-barred debt so long as the debt collector *612does not initiate or threaten legal action in connection with its debt collection efforts”); Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 771 (8th Cir.2001) (holding that “in the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid”). Plaintiff alleges that “[t]he nondisclosure is exacerbated by the offer of a ‘settlement’ ” in the letter, which “implies a colorable obligation to pay” (Dkt. 1, Compl. ¶ 21). Plaintiff argues that inclusion of the settlement language is a “false and unfair tactic” (Dkt. 21 at 20).
The Court disagrees. The debt collection letter sent to Plaintiff indicates that “upon receipt and clearance of $1,668.96, your account will be satisfied and closed and a settlement letter will be issued.” Even the least sophisticated consumer would not infer a threat of litigation from this language but would understand that the letter proposed settlement of the debt, not settlement of a future or ongoing lawsuit.3 The October 12, 2011 settlement language does not constitute an impermissible “threat to take any action that cannot legally be taken,” 15 U.S.C. § 1692e(5), nor does its inclusion constitute a false representation, 15 U.S.C. § 1692e(10), or an unfair practice, 15 U.S.C. § 1692f, under the FDCPA. “To hold that a debt collector cannot offer payment options as part of an effort to resolve an outstanding debt, possibly without litigation, would force honest debt collectors seeking a peaceful resolution of the debt to file suit in order to advance efforts to resolve the debt — something that is clearly at odds with the language and purpose of the FDCPA.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 399 (6th Cir.1998); see also Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 775 (7th Cir.2007) (“There is nothing improper about making a settlement offer.”); Stricklin v. First Nat. Collection Bureau, Inc., 3:10-CV-01027-JPG, 2012 WL 1076679, at *11 (S.D.Ill. Mar. 30, 2012) (“On its face, the term ‘settlement offer’ does not violate the FDCPA.”). Indeed, “[a]llowing debt collectors to send such a letter is not only consistent with the Act but also may result in resolution of the debt without resorting to litigation, saving all parties involved the needless cost and delay of litigation as is exemplified by this very case.” Lewis, 135 F.3d at 399.
In sum, even if all the facts in her Complaint were accepted as true, Plaintiffs Complaint fails to state a plausible claim under the FDCPA.
III. CONCLUSION
For the foregoing reasons, the Court grants Defendant’s Motion to Dismiss. As the Court’s decision resolves all pending claims, a Judgment will be entered consistent with this Opinion and Order. See Fed.R.Civ.P. 58. Accordingly:
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Dkt. 19) is GRANTED.
. The letter was attached as Exhibit A to Plaintiff's Complaint and is therefore deemed to be a part of the pleadings for purposes of deciding the motion to dismiss. See Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001).
. See Fed.R.Civ.P. 23(c)(1) (requiring only that courts decide motions for class certification “at an early practicable time"); 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1785.3 (3d ed. 2013) ("The time at which the court finds it appropriate to make its class-action determination may vary with the circumstances of the particular case.”).
. Indeed, even in the Report and Recommendation upon which Plaintiff relies for her policy-based arguments, the magistrate judge rejected the plaintiffs similar contention that the defendant's offer of settlement in that case "exacerbated” the defendant's nondisclosure, determining that there is "nothing inherently misleading or deceptive” about the letter’s offer of settlement. McRill, 2012 WL 6727974, at *6, n. 9. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217845/ | ORDER
Lashon Patterson appeals his sentence of imprisonment entered upon his guilty plea to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
For sentencing purposes, Patterson’s base offense level started at 36 in fight of the amount of cocaine involved. The district court allowed for a three-point acceptance of responsibility reduction and granted the government’s USSG § 5K1.1 motion for an additional four-point departure. In addition to that four-level departure, the district court departed one more level “out of fairness.” Patterson’s resulting calculation resulted in a guideline range of 87-108 months of imprisonment (criminal history category II, total offense level 28). The district court sentenced Patterson to eighty-seven months of imprisonment and five years of supervised release. This court allowed trial counsel to withdraw and appointed new counsel to represent Patterson.
On appeal, Patterson’s counsel moves to withdraw and files a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Patterson has not responded to his counsel’s motion to withdraw, despite being informed of his opportunity to do so. Concluding that no grounds for appeal can be sustained, counsel submits the following issue for review: whether the district *881court made a calculation mistake in determining Patterson’s base offense level. Upon review, we conclude that this issue is without merit.
Patterson contends that the district court agreed with his argument that he should be entitled to a four-point reduction from a base offense level of 36 to a base offense level of 32, but that the district court simply made a calculation mistake in determining the revised base offense level. The record belies Patterson’s contention. The record is devoid of any indication that the district court agreed with a four-point reduction in Patterson’s base offense level. At best, the district court expressed some concern about the fairness of Patterson’s sentence before hearing the government’s argument and expressly overruling Patterson’s objection. The district court did not make a calculation error in determining Patterson’s offense level.
Finally, we have reviewed the record and conclude that no other nonfrivolous issue exists. Accordingly, we grant counsel’s motion to withdraw and affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217846/ | ORDER
Opal Mitchell, a pro se Kentucky resident, appeals a district court order denying her motion for relief from judgment filed pursuant to Fed.R.Civ.P. 60(b). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking monetary relief, Mitchell sued Hartford Life and Accident Insurance Company in the Clay County (Kentucky) Circuit Court. The action involved a policy for short term disability benefits issued and administered by Hartford. As the benefit plan was defined by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (ERISA), the *882action was removed to the federal district court. The district court subsequently granted judgment to Hartford on September 28, 2001. Mitchell then filed her Rule 60(b) motion on January 24, 2002. The district court denied the motion for relief. It is from this order that Mitchell appeals.
In her timely appeal, Mitchell argues that she has been wrongly denied benefits and that her medical records establish that she is disabled.
An order denying Rule 60(b) relief is reviewed for an abuse of discretion. See Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir.1993). An abuse of discretion exists when the reviewing court has a definite and firm conviction that the trial court made a clear error in judgment. See Am-emational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir.1991). An appeal of a denial of a Rule 60(b) motion does not bring up the underlying judgment for review. Id.
In her Rule 60(b) motion, Mitchell’s attorney asserted that the insurance policy was not an ERISA plan and, therefore, the district court lacked jurisdiction over the case. On appeal, Mitchell’s pro se brief abandons the arguments presented by her attorney and asserts that she is disabled and entitled to benefits under the policy. The question of whether Mitchell is disabled or not under the policy is not reviewable on appeal as she seeks to have the district court’s original judgment reviewed. This is an appeal from the denial of Mitchell’s Rule 60(b) motion. Therefore, the court cannot review the merits of the district court’s judgment. Id. Rather, the court reviews the question of whether the district court abused its discretion in denying her Rule 60(b) relief. As Mitchell has abandoned the arguments presented in her Rule 60(b) motion, we cannot say the district court’s denial of Rule 60(b) relief was an abuse of discretion. Lewis, 987 F.2d at 396.
Accordingly, we affirm the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217847/ | ORDER
Theodore Reynolds, a Michigan state prisoner, requests the appointment of counsel and appeals a district court order dismissing his petition for a writ of habeas *883corpus, filed pursuant to 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In 1988, Reynolds entered a guilty plea to second degree murder, and was sentenced to life imprisonment with the possibility of parole. His conviction was affirmed on direct appeal, and his post-conviction proceedings, filed in 1993 and 2000, were unsuccessful. In this petition for federal habeas corpus relief, filed in 2002, Reynolds apparently sought to raise claims that his plea had been involuntary, that he had received ineffective assistance of counsel, and that he was actually innocent, as well as a challenge to his sentence. The district court dismissed the petition as barred by the one-year statute of limitations, 28 U.S.C. § 2244(d). On appeal, Reynolds appears to address the merits of his claims rather than the statute of limitations question.
Upon review, we conclude that the dismissal of this petition as barred by the statute of limitations must be affirmed for the reasons stated by the district court. Because the conviction in this case became final prior to the enactment of the Antiter-rorism and Effective Death Penalty Act. Reynolds had until April 24, 1997, to file for federal habeas corpus relief. See Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.), cert. denied, — U.S.-, 123 S.Ct. 699, 154 L.Ed.2d 638 (2002). This petition, filed in 2002, was nearly five years late. Reynolds is not entitled to equitable tolling, as he showed neither that he lacked notice of the filing requirement, that he was diligent in pursuing his claims, or that the respondent would not be prejudiced by the delay. Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir.), cert. denied, 534 U.S. 1057, 122 S.Ct. 649, 151 L.Ed.2d 566 (2001).
The district court also noted that, even if the statute of limitations could be avoided by a claim of actual innocence, the claim of actual innocence in this case is without merit. Reynolds claimed actual innocence by pointing to preliminary exam testimony showing that the decedent was approaching him from behind with a knife, and that Reynolds turned and shot at him when he was six to eight feet away. The decedent fell, and Reynolds then stood over him and fired two more shots, the first at his head. There was evidence that the decedent had a scrape on his left temple consistent with striking his head there in his fall. The fatal shot was also to the left temple. Reynolds argues that he could not have fired the fatal shot when the decedent was on the ground if he had hit his left temple on the ground in his fall. Therefore, he argues that the fatal shot was the first, arguably self-defensive shot. On the contrary, it is entirely possible that a different wound caused the decedent to fall and strike his head, and that he then rolled over in an attempt to get up before Reynolds fired the fatal shot to his left temple. The evidence Reynolds relies on does not establish that it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
Because the petition was clearly barred by the statute of limitations and there is no basis for applying equitable tolling, the district court’s order of dismissal is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217848/ | Plaintiff, Steven Picht, appeals from the district court’s judgment entered on November 14, 2001, granting summary judgment to Defendant, Togo D. West, Secretary of Veterans Affairs, thereby dismissing Plaintiff’s claim brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging reverse gender discrimination.
Plaintiff, who is male, began his employment with the Department of Veteran’s Affairs (“the Department”), of which Defendant is Secretary, on October 2, 1978. After a series of employment issues leading to various disciplinary measures being taken, Plaintiff was eventually terminated on June 4, 1999. Plaintiff was forty-six years old at the time. Plaintiff filed an administrative complaint with the Department’s Office of Employment Discrimination, on July 9, 1999, alleging gender and age discrimination and reprisal. The Department issued its Final Agency Decision on July 18, 2000. concluding that Plaintiff “failed to establish by a preponderance of the evidence that he was the subject of ongoing discrimination and harassment, based on his sex, age, and reprisal by the Veterans Canteen Service staff, regarding the claims set forth in his EEO complaint.” Thereafter. Plaintiff filed the instant claim in district court.
Plaintiffs complaint set forth two causes of action. In Count I, Plaintiff alleged that Defendant unlawfully discriminated against him because of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626 et seq. (“ADEA”). In Count II of the complaint. Plaintiff alleged that Defendant unlawfully discriminated against him because of his gender, in violation of Title VII. At the completion of discovery, Defendant moved for summary judgment on both counts. Plaintiff filed a brief in opposition to Defendant’s motion for summary judgment, wherein Plaintiff consented to the dismissal of his claim under the ADEA; however, Plaintiff maintained that because genuine issues of material fact remained for trial regarding his Title VII claim, Defendant’s motion for summary judgment should be denied as to that claim.
On November 14, 2001, the district court entered its Memorandum of Opinion and Order granting Defendant’s motion for summary judgment, finding that no genuine issue of material fact remained for trial *885with respect to Plaintiff’s claim for reverse gender discrimination under Title VII, and that Defendant was entitled to judgment as a matter of law. The district court entered its corresponding judgment on that same day, and it is from the district court’s judgment that Plaintiff now timely appeals.
Having carefully reviewed the district court’s Memorandum of Opinion and Order, and having carefully reviewed the parties’ briefs, relevant legal authority, and arguments made at oral argument, we conclude that the district court did not err in granting Defendant summary judgment. In light of the district court’s thorough opinion, a full written opinion from this Court would be duplicative and would serve no useful jurisprudential purpose.
We therefore AFFIRM the district court’s judgment dismissing Plaintiffs case for the reasons set forth in the district court’s November 14, 2001, Memorandum of Opinion and Order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217849/ | ORDER
Fred Richardson, an African-American physician, brought suit against Rush Presbyterian St. Luke’s Medical Center, several entities affiliated with Rush, and five Rush employees, claiming violations of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and various state laws. Rush filed two counterclaims for breach of contract, and the defendants then moved for summary judgment as to all claims, which the district court granted. Dr. Richardson now appeals, and we affirm.
Dr. Richardson graduated from Rush Medical College in 1987, and after he had completed a three-year residency in family medicine, Rush employed him through an arrangement known as a medical service plan. Under his plan Dr. Richardson agreed to open a family practice, “Dr. Richardson’s Neighborhood Family Practice,” and to remit the patient fees to Rush. In exchange Rush agreed to pay Dr. Richardson’s salary and overhead (which included rent, malpractice insurance, supplies, and an employee’s wages). Dr. Richardson was still running the neighborhood practice five years later when Rush’s board of trustees also appointed him to the newly created position of assistant dean for minority affairs at the medical college. As assistant dean Dr. Richardson worked with Rush administrators to recruit and retain minority medical students, and Rush paid Dr. Richardson additional salary for those services.
Even though the neighborhood practice was incurring annual losses of about $100,000, in 1997 Dr. Richardson announced that he wanted to discontinue his medical service plan and “transition into private practice.” After his annual employment contract expired on June SO (the end of Rush’s fiscal year), Dr. Richardson and Rush began negotiating the sale of the neighborhood practice. During these negotiations Rush continued to perform its obligations under Dr. Richardson’s expired contract, and Dr. Richardson likewise continued to work as an assistant dean and to remit the patient fees generated by the practice.
Then in November 1997 Dr. Richardson stopped remitting the fees. According to Dr. Richardson, he stopped paying because defendant Erich Brueschke, then the dean of the medical college, told him that he could retain the fees “in preparation for the purchase and sale of my [pjractice.” Unaware of the withholding, Rush continued negotiating and even offered a deal, which Dr. Richardson rejected, to give him the practice’s assets free of any liabilities and to continue paying him $55,000 annually for his work as assistant dean for minority affairs. Rush’s attitude changed, however, when in February 1998 it discovered that Dr. Richardson was withholding the fees. Rush ordered Dr. Richardson to hand over the money, and Dr. Richardson in turn demanded that Rush double the salary that it proposed to pay him as an assistant dean. Then at a meeting held to discuss the sale of the neighborhood practice, a Rush attorney allegedly threatened to sue Dr. Richardson, who responded by turning over $7,503-the fees that he had not already spent.
That same day, Dr. Richardson wrote a letter to Dr. Brueschke accusing Rush of a “conspiracy.” In the letter Dr. Richardson threatened to sue for discrimination unless Rush gave him complete ownership of the neighborhood practice, permitted him to retain the withheld funds, forgave a $98,657 loan made so that he could dis*888charge his medical-school debts, contributed to the capital of the practice, promoted him to a position titled “Dean of Minority Affairs,” agreed to a “lifetime” contract with annual compensation of $225,000, and met these demands by the end of the day. According to Dr. Bruesehke, he thought that the letter was not only “completely unreasonable” but also “hostile and confrontational.”
Despite Dr. Richardson’s threat to sue immediately, he and Rush spent the next three months attempting to secure an outside mediation. During this period Rush continued to pay Dr. Richardson’s salary and the neighborhood practice’s expenses, and Dr. Richardson continued to withhold the fees that he generated. But when Rush finally initiated an action in state court for an accounting, Dr. Richardson promptly signed an agreement to purchase the practice. The written agreement, which superseded all earlier oral arrangements, provided that Rush would assume the practice’s existing liabilities and that Dr. Richardson would receive all of the practice’s assets except a security deposit and “all monies actually received by the [practice prior to June 30, 1998.” Because Dr. Richardson was no longer participating in a medical service plan, Rush on July 1 reduced his salary to $55,000 — the amount continuously paid to Dr. Richardson as an assistant dean.
Meanwhile, Dr. Richardson was complaining about the behavior of several Rush employees. In February 1998 Dr. Richardson told Dr. Bruesehke that an assistant professor of anatomy had recited a racially offensive rhyme in front of a minority student, and in May Dr. Richardson launched a “protest” of “inequalities” at Rush by briefly refusing to perform his administrative and teaching obligations at the medical college. That month Dr. Richardson also charged that defendant Edgar Staren, then the associate dean of the medical college, had behaved insensitively toward minority medical students. Dr. Bruesehke investigated the accusations and sought to interview Dr. Richardson about his grievances against Dr. Staren. But Dr. Richardson refused to attend the meeting because Dr. Bruesehke would not simultaneously address his requests for increased salary as an assistant dean. Because Dr. Richardson would not elaborate on the charges against Dr. Staren, Dr. Bruesehke concluded that they were unfounded.
In July Dr. Richardson handed over records reflecting that during the previous fiscal year he had withheld $55,826 in patient fees and spent the money in part on lawyers’ fees, lunches, charitable contributions, credit-card bills, payments to his wife, and bonuses for his employee. With the approval of Rush’s president, Dr. Bruesehke then fired Dr. Richardson from his position as assistant dean for minority affairs, concluding that Dr. Richardson’s expenditures reflected a “completely inappropriate” use of Rush funds, that his behavior had become increasingly hostile and confrontational, and that he had leveled baseless charges against Dr. Staren.
After receiving a right-to-sue letter, Dr. Richardson filed a ten-count complaint, alleging that the defendants discriminated against him on account of his race, retaliated against him for opposing discrimination at Rush, breached three contracts, and committed various state-law torts. In addition to the events connected with his purchase of the neighborhood practice and subsequent termination, Dr. Richardson described in his complaint how the defendants allegedly had removed his name from informational resources associated with Rush, temporarily cancelled his health insurance, interfered with his pa*889tient relationships, and shortened two medical students’ rotations with him.
Rush counterclaimed for the monies withheld by Dr. Richardson and the balance on the $93,657 loan given to discharge his medical-school debts, and upon the defendants’ motion, the district court granted summary judgment for Rush on all claims. In a footnote to its opinion, the court said that Dr. Richardson had submitted only his own affidavit in opposition to the motion and that he had failed to file a statement of undisputed facts as required by Northern District of Illinois Local Rule 56.1. As a sanction for noncompliance with the local rule, the court assumed that the facts in the defendants’ statement of undisputed facts were true. After learning that Dr. Richardson actually had prepared a statement of undisputed facts and submitted several volumes of documents in opposition to the motion, the court withdrew the footnote but left the rest of its opinion unchanged. The court then entered a final judgment fixing damages on Rush’s counterclaims, and Dr. Richardson filed a timely notice of appeal and at the same time unsuccessfully moved for reconsideration.
On appeal Dr. Richardson’s principal argument concerns the district court’s handling of the summary judgment motion. According to Dr. Richardson, the court upon learning that he had complied with the local rules should have rewritten its opinion. By simply removing the footnote, Dr. Richardson argues, the court in the remainder of its opinion continued to incorrectly construe the facts in favor of the defendants.
Dr. Richardson’s argument is unavailing given the scope of our review. We review grants of summary judgment de novo, meaning without deference to the views of the district judge “and hence almost as if the motion had been made to us directly.” Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir.1993); see also Scaife v. Racine County, 238 F.3d 906, 907 (7th Cir.2001). So even if we assume that the judge committed an analytical error, the error would not matter. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 386 (7th Cir.2000). We ask simply whether on the current record — which includes all the arguments and evidence submitted by Dr. Richardson to the district court — we would have granted summary judgment. Since Dr. Richardson makes no argument about his state-law tort claims in his opening brief, we therefore will consider whether summary judgment was proper on his claims of discrimination, retaliation, and breach of contract, as well as Rush’s two counterclaims.
Dr. Richardson argued both theories of disparate impact and disparate treatment in the district court. To establish a disparate impact claim, Dr. Richardson needed to identify a policy or practice through which Rush needlessly (though not necessarily intentionally) discriminated against African-American employees. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989); Bennett v. Roberts, 295 F.3d 687, 698 (7th Cir.2002). Yet on appeal Dr. Richardson does not identify any allegedly discriminatory policies or practices. He instead observes simply that between 1991 and 1996 the size of the faculty at Rush increased while the number of African-American faculty members fell by nearly half. Standing alone, this numerical evidence proves nothing. Dr. Richardson needed to connect his numbers to a Rush policy or practice that was allegedly responsible for the declining percentage of African Americans on the faculty.
As for his disparate treatment and retaliation claims, Dr. Richardson did not supply direct evidence of intentional dis*890crimination or retaliation. He instead proceeded under the approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case under McDonnell Douglas for either discrimination or retaliation, Dr. Richardson needed to show among other things that he was meeting Rush’s legitimate employment expectations when he was fired. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545-46 (7th Cir.2002) (racial discrimination); Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 465 (7th Cir.2002) (retaliation).
According to Rush, Dr. Richardson performed unsatisfactorily because he misused fees collected through the neighborhood practice (and because he behaved hostilely and made groundless accusations against another doctor). Dr. Richardson responds that he actually was authorized by Dr. Brueschke to begin withholding fees in anticipation of the neighborhood practice’s sale. Even so, whether Dr. Brueschke authorized withholding does not establish satisfactory performance, for Rush did not fire Dr. Richardson because he simply retained the money. Indeed, Rush continued to employ him for over six months after discovering his withholding. Rush instead fired Dr. Richardson after discovering that he had spent the withheld money “inappropriately” — a conclusion that Dr. Richardson cannot rebut because he confesses to using the funds in part to pay expenses unrelated to his practice.
Dr. Richardson’s contentions about his state-law breach of contract claims are equally unpersuasive and do not require extended discussion. Dr. Richardson argues, for example, that triable issues exist whether defendant Health Associates, an entity affiliated with Rush, breached its agreement to advertise his services and refer patients to him. But in support of his argument Dr. Richardson cites only the affidavit of his employee and patient, Angela Lampkin, who attested that she was “informed by other patients” that Health Associates was not fulfilling its obligations. Lampkin’s averment is inadmissible hearsay and is not based upon her personal knowledge, so it cannot be used to defeat a motion for summary judgment. Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 713 (7th Cir.2002). Dr. Richardson also says that summary judgment was improper on his claim that Rush breached an agreement to pay him $110,000 annually for his work as an assistant dean. In his deposition Dr. Richardson effectively conceded, however, that Rush never accepted his proposal to increase his salary to that level. Dr. Richardson finally argues that factual questions exist whether under Rush’s bylaws Dr. Brueschke needed approval from the board of trustees to fire him from his position as an assistant dean. But nothing in the bylaws requires board approval to fire an assistant dean. As Rush’s CEO explained in his written declaration, approval is required only to hire assistant deans.
That leaves Rush’s counterclaims for the fees withheld by Dr. Richardson and the unpaid balance on the $93,657 loan. The counterclaims fell within the district court’s supplemental jurisdiction, Rothman v. Emory Univ., 123 F.3d 446, 454 (7th Cir.1997); see also Oak Park Trust & Sav. Bank v. Therkildsen, 209 F.3d 648, 651 (7th Cir.2000), and we agree that summary judgment was proper as to each. With respect to Rush’s counterclaim for the withheld fees, Dr. Richardson recognizes that in the contract terminating his medical service plan the fees were excluded from the assets transferred to him. Nonetheless, Dr. Richardson argues that the contractual provision excluding the *891fees is unenforceable because Rush’s attorneys “secretly added” the provision before presenting the contract to him. But Dr. Richardson signed the agreement, and he offers no evidence that he was unable to read and understand the contract at that time. Under Illinois law having an opportunity to read and sign a contract defeats Dr. Richardson’s charge of fraud. Nilsson v. NBD Bank of Ill., 313 Ill.App.3d 751, 247 Ill.Dec. 1, 731 N.E.2d 774, 783 (1999); N. Trust Co. v. VIII S. Mich. Assocs., 276 Ill.App.3d 355, 212 Ill.Dec. 750, 657 N.E.2d 1095, 1103 (1995).
As for Rush’s counterclaim for the unpaid balance on the $93,657 loan, Dr. Richardson contends that he had no obligation to pay because of a contemporaneous agreement that he made with Dr. Brueschke. The agreement provides in part, “Should you terminate your employment with Rush the repayment of the unpaid balance of this promissory note will be negotiated between yourself and the Dean of Rush Medical College in a manner which is satisfactory to the Dean.” The parties assume that the provision is enforceable. And although the agreement does not define the circumstances that would trigger Rush’s obligation to renegotiate, Dr. Richardson, by the argument he has made, concedes implicitly that the obligation would arise only if he ended his relationship with Rush, and not if Rush terminated him. Dr. Richardson says that he terminated the relationship when he purchased his practice and Rush stopped paying him a salary under his medical service plan. But ending the medical service plan only altered Dr. Richardson’s employment with Rush, for after that event he continued to be employed as the assistant dean for minority affairs. Dr. Richardson’s employment “terminated” when he was fired as an assistant dean.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217850/ | ORDER
Uluches Jefferson, an Illinois prisoner, sued numerous employees of the Illinois Department of Corrections asserting that they used excessive force (or permitted excessive force to be used) against him on several occasions. A jury found in favor of the defendants, and Jefferson appeals.
Jefferson’s pro se brief raises a number of arguments, but it violates Federal Rule of Civil Procedure 28(a). To list a few shortcomings, the brief does not contain a table of contents, a table of authorities, a statement of the case, a statement of facts with citations to the record, or a statement of the applicable standard of review for each issue. See Fed.R.Civ.P. 28(a)(2), (3), (6), (7), and (9)(B). And with the exception of one argument, discussed below, Jefferson’s brief does not provide any citations to relevant authority to support his contention that the district court made numerous errors during the trial. Although we construe pro se briefs liberally, see Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001), we will not research arguments for the appellant or sift through the record to find support for his assertions of error. Id.; Muhich v. C.I.R., 238 F.3d 860, 864 n. 10 (7th Cir.2001). Because Jefferson's brief failed to comply with Fed.R.Civ.P. 28, he waived any -undeveloped arguments and we do not consider them. Muhich, 238 F.3d at 864 n. 10.
We are able to discern one possible argument suggested by Jefferson’s brief, namely, that the district court erroneously denied him leave to file a second amendment to his complaint. He filed his original complaint in January 1998, asserting that the defendants, in addition to using excessive force against him on several occasions, had spread a rumor among the inmates that he was a “stool pigeon” (e.g., he provided prison authorities with incriminating information about other prisoners). In June 1998 the district court allowed Jefferson to amend his complaint (the amendment is not in the record, but subsequent filings suggest that he sought to correct certain shortcomings that he perceived in the way he pleaded his excessive force claims). In March 1999 Jefferson sought leave to amend his complaint a second time by adding allegations regarding the defendants’ informing other in*893mates he was a “stool pigeon.” The district court denied his request because he did not explain why he could not have added the allegations sooner and because the new allegations failed to state a claim upon which relief could be granted.
Jefferson appears to argue that the court erred in determining that his amendment was untimely and that it failed to state a claim. Although Fed.R.Civ.P. 15(a) directs courts to freely permit leave to amend “when justice so requires,” the rule does not require that leave be granted in every case. Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir.2002). For example, a court can deny the plaintiff leave to amend if the proposed amendment fails to state a new claim or is merely repetitive of the original complaint. See 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 739 (7th Cir.2002) (amendment states no new claim); Crim v. Bd. of Ed. of Cairo School Dist. No. 1, 147 F.3d 535, 547-48 (7th Cir.1998) (proposed amendments did not differ from original complaint). As the district court correctly noted, Jefferson’s proposed amendment was largely repetitious of the allegations in the original complaint, and Jefferson did not show why it was necessary for him to restate the same facts contained in his original complaint. Moreover, any new allegations Jefferson sought to add were superfluous because the defendants had never challenged the adequacy of his claim relating to their labeling him a “stool pigeon”, and the new allegations would not have cured any pleading defect. Justice therefore did not require that he be allowed to amend his complaint a second time, and the district court did not abuse its discretion by denying his motion to amend.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217851/ | ORDER
Anthony Maclin was convicted after a jury trial of conspiracy to distribute crack, 21 U.S.C. §§ 846, 841(a)(1), and two counts of distributing crack, id. § 841(a)(1). The district court sentenced him to two life terms plus another 262 months, all to run concurrently. Maclin filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she is unable to find a nonfrivolous issue for appeal. Pursuant to Circuit Rule 51(b), Maclin was invited to respond to counsel’s motion to withdraw, but he failed to do so. Because counsel’s brief is facially adequate, we limit our review of the record to those potential issues identified in it. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). We agree with counsel that the potential issues she discusses would be frivolous and therefore grant the motion to withdraw and dismiss Maclin’s appeal.
Maclin’s convictions stem from two crack sales to a confidential informant in February and April 2001. On both occasions Maclin’s co-defendant, Adam Williams, negotiated the sale with the informant, and then Maclin made the deliveries. In February 2001, in a conversation monitored by DEA agents, the informant spoke with Williams about buying two ounces of crack. Accompanied by undercover officer Leslie Smith, the informant went to a residence in Hammond, Indiana, to complete the transaction. Maclin answered the door and left with Officer Smith and the informant in their car, where he handed the informant 28 grams of crack. As before, the informant and Officer Smith picked up Maclin at the same Hammond residence, although this time Maclin gave the informant 56.2 grams of crack.
In her Anders brief, counsel first considers whether Maclin could argue that the district court abused its discretion in admitting evidence of his arrest and statement in connection with an unrelated drug sale. Maclin was arrested in Calumet City in March 2001 during an undercover buy of 220 grams of crack cocaine. The government sought to admit evidence of this transaction to prove his intent to commit the charged crimes. Counsel correctly points out that it would be frivolous to argue that the statement Maclin made in connection with the Calument City arrest was inadmissible hearsay. Federal Rule of Evidence 801(d)(2)(A) says that a party’s own statements are not hearsay. Fed. R.Evid. 801 801(d)(2)(A); see also United States v. Woods, 301 F.3d 556, 561 (7th Cir.2002). Counsel also correctly points out that it would be frivolous to argue that evidence of Maclin’s other drug sales was inadmissible under Rule 404(b). Rule 404(b) prohibits using “other crimes” evidence to show the defendant’s propensity for criminal behavior. Fed.R.Evid. 404(b). *895But evidence of other crimes is permitted if: (1) it is offered to show a matter in issue other than the defendant’s propensity to commit crime; (2) the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) there is sufficient evidence to support a jury finding that the defendant committed the other act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See United States v. Anifowoshe, 307 F.3d 643, 646 (7th Cir.2002). Counsel correctly notes that it would be frivolous to argue that the district court abused its discretion is applying the four-part test in this case. In order to prove Maclin’s intent to distribute the drugs in his possession on this occasion, the government presented evidence that Maclin previously distributed drugs in his possession. And we have held other drug sales to be probative of intent to distribute on a particular occasion. See, e.g., United States v. Knox, 301 F.3d 616, 619-20 (7th Cir.200). Because the Calumet City transaction occurred in between the two transactions at issue in this case, counsel notes that it would be frivolous to argue that it was not close enough in time to be relevant. Regarding the prejudicial effect of the evidence, counsel correctly notes that it would be frivolous to argue that it was unduly prejudicial because the court gave the jury a limiting instruction to counter any unfair prejudice. See, e.g., United States v. Coleman, 179 F.3d 1056, 1062 (7th Cir.1999). Finally, counsel notes that it would be frivolous to argue that there was insufficient evidence to support a jury finding that the Calumet City transaction occurred because the government presented to testimony of Officer Marlon Parks, who purchased cocaine from Maclin while she was working undercover.
Counsel next considers whether Maclin could argue that the government presented insufficient evidence of an agreement between him and Williams to support the conspiracy conviction. In analyzing a challenge to the sufficiency of the evidence, we would examine the evidence in the light most favorable to the prosecution, asking whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Bolden, 279 F.3d 498, 501 (7th Cir.2002). To demonstrate that there was an agreement between Maclin and Williams, the government presented evidence that Ma-clin carried out the sales of crack that Williams had set up with the confidential informant. We agree with counsel that it would be frivolous to argue that no rational trier of fact could have found that the two men agreed to distribute the crack.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217852/ | ORDER
These consolidated appeals were brought by two men who were caught unloading 3248 pounds of marijuana in a Chicago warehouse. One of the appellants, Rodrigo Torres, pleaded guilty to drug conspiracy and distribution charges, though apparently the district court later dismissed the distribution count and entered a judgment of conviction only on the conspiracy count. Torres filed a notice of appeal because he is unhappy with his sentence of 120 months’ incarceration. His appointed counsel, however, now seeks to withdraw because he believes there are no nonfrivolous arguments for appeal.
The other appellant is Horacio Badillo, who was convicted after a jury trial of the same charges. Badillo is displeased that he was sentenced to a total of 235 months’ incarceration because, in his view, the drug quantity was overstated and he was merely a bit player in the conspiracy.
I. Rodrigo Torres
A. Background
On January 13, 2000, police arrested Torres and several others in a warehouse as they were unloading 3248 pounds of marijuana. Torres had been paid $300 to unload the drugs, with the promise of more cash on the back end. A federal grand jury returned a two-count indictment charging him with conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and with possessing approximately 3248 pounds of marijuana with intent to distribute, id. § 841(a)(1). Torres decided to enter blind guilty pleas to both counts, but the district court’s handling of these pleas was confusing. At times it looks as if Torres was pleading guilty to only one offense, not two. Curiously, these irregularities were not addressed by counsel in his Anders brief.
In her presentence investigation report, the probation officer recommended that Torres’s sentences be based on 1473 kilograms of marijuana. She also assigned him six criminal history points, placing him in criminal history category III and yielding a potential sentencing range of 87 to 108 months. But the probation officer also noted that he was subject to a ten-year mandatory minimum under § 841 (b)(1)(A)(vii) because the quantity of marijuana exceeded 1000 kilograms. And because Torres had more than one crimi*899nal history point, he was not eligible for the safety valve under 18 U.S.C. § 3558(f)(1) and U.S.S.G. § 5C1.2, which would have allowed the court to depart from the mandatory minimum. There was some discussion by the district court and by the government at the plea colloquy that Torres might be eligible for the safety valve, and thus a possible sentencing range of 57 to 71 months. But because he was statutorily ineligible, that discussion became irrelevant.
Torres moved for a downward departure on the ground that criminal history category III significantly overrepresented his criminal history. Given the safety valve possibility, the district court was initially inclined to grant the request in order to make him eligible for it. At the court’s request, however, the parties researched the issue, and both sides agreed that the court did not have the authority to depart downward by erasing criminal history points. The court then sentenced Torres to 120 months’ incarceration and five years’ supervised release, and imposed a $3,500 fine and $200 in special assessments. Although the PSR was prepared for both counts, the court said nothing about multiple terms of prison and supervised release (or them being concurrent), but did impose $100 special assessments on each count.
There is more confusion. Even though Torres pleaded guilty to both counts, the judgment states that count two was dismissed on the motion of the United States. But the record does not indicate any motion to dismiss count two by the government. Consequently, Torres was convicted only of conspiracy. And although counsel repeatedly states that Torres received concurrent sentences, there is no evidence of that in the record, except that the district court erroneously imposed two special assessments. But despite these irregularities, we agree with counsel that Torres’s appeal should be dismissed because he would be unable to establish plain error.
B. Analysis
Torres’s appointed counsel 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 identify a nonfrivolous issue for appeal. Torres responded to counsel’s motion, see Circuit Rule 51(b), and we confine our review of the record to the potential issues identified in counsel’s brief and in Torres’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam).
Counsel first examines whether Torres could challenge the voluntariness of his guilty plea on the basis that the district court failed to comply with Fed.R.Crim.P. 11. Torres did not ask the court to allow him to withdraw his plea; therefore, only plain error could justify relief. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Despite this, counsel has rightly evaluated the potential issue because Torres now wants to withdraw his plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel concludes that a challenge to Torres’s guilty plea would be frivolous, and we agree, though only because this court’s review would be for plain error. The district court informed Torres of his right to maintain a plea of not guilty, and explained the various rights that he was giving up by pleading guilty. See Fed.R.Crim.P. 11(c)(3) and (4). The government presented to the court a specific factual basis that adequately supported each essential element of the drug offense, see Fed. R.Crim.P. 11(f), and Torres agreed that the government would be able to prove the scenario presented. The court also questioned Torres to ensure that he was not *900pressured or coerced to plead guilty, see Fed.R.Crim.P. 11(d), and informed him that his sworn testimony at the plea colloquy could be used against him in a future perjury prosecution, see Fed.R.Crim.P. 11(c)(5).
Counsel selected only one infirmity in the plea colloquy-the district court’s failure to disclose that the jury would have to find the quantity of marijuana beyond a reasonable doubt. Counsel correctly notes that the court was required to do so because the amount of marijuana attributed to him (1473 kilograms) impacted his statutory maximum. United States v. Wallace, 276 F.3d 360, 369 (7th Cir.), cert. denied, 536 U.S. 924, 122 S.Ct. 2592, 153 L.Ed.2d 781 (2002). We agree with counsel that any challenge on this ground would be frivolous because Torres would not be able to establish plain error. To prevail, Torres would have to establish that the court’s omission affected the fairness, integrity, or public reputation of the criminal proceeding, which he cannot do. When Torres pleaded guilty, he admitted under oath to helping unload the specific amount of marijuana (3248 pounds/1473 kilograms) attributed to him, thus negating any potential constitutional concern regarding the burden of proof.
But the plea colloquy was flawed in other ways. Counsel essentially rubber-stamps the propriety of various aspects of the colloquy-whether Torres understood the nature of the charges, if the district court adequately informed him of the possible penalties he faced, and whether it properly explained how the sentencing guidelines applied to his case. See Fed. R.Crim.P. 11(c)(1). Throughout the plea colloquy, the government and the court gave conflicting information about whether Torres was pleading guilty to one count or two, and whether he was eligible for the safety valve departure. And the court suggested that his sentence would be within a range from 57 to 71 months-though it was careful to couch this range as a probability but not a given. Despite these errors, we do not believe Torres would be able to establish plain error as articulated by this court in United States v. Driver, 242 F.3d 767 (7th Cir.2001), cert. denied, 535 U.S. 926, 122 S.Ct. 1294, 152 L.Ed.2d 207 (2002). Torres did not move to withdraw his plea, and even though he has now indicated his desire to do so, at no point has he asserted that he has “any plausible defense that he could advance at trial.” Id. at 771. Torres admitted that he committed the crime, and he has never asserted otherwise; consequently, he cannot show that failure to provide relief would cause a miscarriage of justice to justify plain error relief. Id. And he could not have been harmed by the “one count or two” confusion regarding his pleas and conviction. The court entered judgment only on the count to which he plainly intended to plead guilty and dismissed the other count.
Counsel also did not discuss another Rule 11 omission-the district court did not admonish Torres concerning the effects of supervised release. Fed. R.Crim.P. 11(c)(1). But any such challenge would be frivolous because the error was harmless. Torres could have received a life sentence and he was informed of that fact; therefore, the prison term he received plus his term of supervised release did not exceed the maximum imprisonment allowable by statute. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002).
Counsel next examines whether Torres could challenge his sentence because the amount of marijuana was not charged in count one of the indictment. Under this court’s precedent, drug quantity must be specified in the indictment if it *901affects the statutory maximum. See Wallace, 276 F.3d at 369. Here, the district court’s finding that Torres was responsible for 1473 kilograms had an impact on the statutory maximum-the default statutory maximum sentence for a marijuana conspiracy violation without regard to quantity is five years, 21 U.S.C. § 841(b)(1)(D). Counsel, however, correctly notes that Torres would not be able to make a non-frivolous argument that this error was plain. Again, there is no dispute that Torres was involved with 1473 kilograms. See Wallace, 276 F.3d at 369.
Finally, counsel and Torres examine whether the district court correctly concluded that it could not alter his criminal history score to render him eligible for the safety valve departure. But any such argument would be frivolous. Torres’s trial counsel waived appellate review of the issue by agreeing with the government’s position that the court lacked the authority to do so. See United States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir.2000). Counsel therefore evaluates whether Torres can assert that his trial counsel was ineffective for conceding the point. But as counsel correctly points out, that claim also would be frivolous-district courts cannot change the calculations that form the basis of a sentencing range; instead, they only may depart from the guideline range that results from those calculations. See, e.g., United States v. Penn, 282 F.3d 879, 881-82 (6th Cir.2002). Therefore, the court did not have the authority to change his criminal history points to make Torres eligible for the safety valve.
II. Horacio Badillo
Badillo likewise was arrested for unloading marijuana at the Chicago warehouse. But unlike Torres, who was accountable only for the marijuana that was unloaded at the site, Badillo was sentenced to 235 months’ incarceration for being involved with a much greater amount. On appeal he argues that the district court erred by denying his request for a minimal or minor role adjustment under U.S.S.G. § 3B1.2, and by attributing to him too much marijuana in calculating his sentences. We do not agree.
A. Background
A jury convicted Badillo of one count of conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and with possessing approximately 3248 pounds of marijuana with intent to distribute, id. § 841(a)(1). Although Badillo was convicted of dealing 3248 pounds, the government asked the court to consider a much greater amount as relevant conduct. The probation officer agreed, concluding that he should be accountable for 16,248 pounds (7370 kilograms)-the stash unloaded at the warehouse, plus another 13,000 pounds from 13 previous loads. This amount placed his base offense level at 34, see U.S.S.G. § 2Dl.l(c)(3) (greater than 6600 pounds but under 22,000 pounds), and his total offense level at 36. Badillo objected to this portion of the PSR, contending that he was entitled to a “two or four point” reduction in his offense level for being a “very minor participant” under U.S.S.G. § 3B1.2. He also contended that his base offense level should have been 32 because he was involved in only six loads totaling approximately 6000 pounds.
At sentencing the district court denied Badillo’s request for a minimal or minor role adjustment, and then calculated his base offense level at 34 due to his involvement in the Chicago warehouse transaction and in six prior transactions averaging 1000 pounds each. Consequently, his total offense level was 36, which coupled with criminal history category III, yielded a *902possible sentencing range of 235 to 293 months. The court then sentenced Badillo to concurrent terms of 235 months’ incarceration.
B. Analysis
Badillo first challenges the district court’s denial of his request for a minimal or minor role reduction. Under § 3B1.2, Badillo could have received a four-level downward adjustment if he played a minimal role in the conspiracy, i.e., if he was plainly among the least culpable of those involved. U.S.S.G. § 3B1.2 comment.(n.l). He would have been entitled to a two-level reduction if his conduct was substantially less than that of the other participants, but not minimal. See United States v. Crowley, 285 F.3d 553, 559 (7th Cir.), cert. denied, — U.S.-, 123 S.Ct. 158, 154 L.Ed.2d 155 (2002). The two-level adjustment is appropriate for those defendants who play parts in committing the offense that make them “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)). Ba-dillo had the burden of proving his entitlement to a downward adjustment under § 3B1.2, see United States v. Felix-Felix, 275 F.3d 627, 636 (7th Cir.2001), and we review the district court’s denial of his request for clear error, see United States v. Atocho, 305 F.3d 627, 641 (7th Cir.2002).
Badillo argues that the district court’s finding that he was not a minimal or minor participant was clearly erroneous for two reasons. First, he asserts that the court failed to sufficiently articulate its basis for denying his request. See United States v. Agee, 83 F.3d 882, 889 (7th Cir.1996) (sentencing court must fully explain its reasons for denying minor role reduction request). But contrary to his assertion, the court did provide a sufficient explanation for denying his request:
MR. SIKES [defense counsel]: We have the objection, Judge, as to the defendant’s role in the offense. The Probation Officer takes the position, and apparently the Government does also and the prosecutor does also, that the defendant was not a minor role in the offense because he participated in several other loads.
In none of those loads was he a major participant, your Honor. I would submit that he was nothing more than a loader or an unloader operating at somebody else’s direction. He apparently did not receive — there is no evidence that he received any substantial sum of monies from these activities. Certainly not to the extent that [co-defendant] Mr. Po-teet did.
I would submit that even aggravating all of them together does not raise his position as a minor participant in the offense. I would suggest to your Honor that the defendant is, therefore, entitled to at least somewhere between a two- and a four-point reduction for a minor participant in the offense.
MS. MURPHY [the prosecutor]: Your Honor, the test under the Guidelines for minor participation is whether this defendant is less culpable than most of the other defendants in the case. Clearly he is less culpable than [co-defendants] Raul Perez and Clarence Poteet. That is a given.
But if you think of all of the other defendants in this case, your Honor, most of whom were simply unloaders, who were brought to G & G Warehouse to unload the marijuana, it can’t be said that he is less culpable than most of the other individuals.
If you think of [co-defendants] Sergio Pelayo, Ataron Quintero Bravo, Lugardo Gutierrez, and individuals like that, who simply showed up at the site for a couple *903of hundred dollars planning to unload— this is somebody who has a longstanding relationship with his co-defendant, Raul Perez, in a loader-unloader capacity and traveled all the way from Texas to Illinois in order to facilitate the distribution of the loads. This can’t be said to be somebody who is less culpable than the majority of the defendants, who were recruited here in the Chicago area for a onetime unloading job.
THE COURT: I agree with Ms. Murphy’s reading of the Guidelines. It would not actually be my choice, were I to be writing these Guidelines, but I have heard this argument before. One of the difficulties is, a person who reads the Guideline itself would take a look at the defendant here and say he was a minor participant, as we ordinarily use the English word “minor.”
But the fact is that the Guideline tells you that they are not using it in the ordinary sense, they are using it in a sense of comparitively [sic] fault, with respect to the other participants. Obviously, his Guideline calculation was not raised because he was a major participant, or even a significant participant. I think, as the Guidelines read, he is not entitled to a minor participate [sic] adjustment.
(App. at 7-9.) The court thus considered Badillo’s request and fully explained its reason for rejecting it.
Badillo next argues that the district court clearly erred by denying his request for a minimal or minor role reduction. But the only argument he makes is that the court could have found that his role as an occasional unloader in a top-heavy conspiracy made him substantially less culpable than the average participant. Perhaps the court could have made such a finding, but he makes no showing that the court clearly erred by finding otherwise. Badillo admitted to unloading marijuana several times, unlike four of his nine co-defendants who were involved in one transaction. If anything, Badillo was more culpable than Torres, Daniel Pelayo, Aaron Quintero Bravo, and Lugardo Gutierrez. Consequently, Badillo failed to meet his burden of establishing that he played a minimal or minor role in the conspiracy.
Badillo’s second challenge is also unpersuasive. He contends that the district court assigned too much marijuana as relevant conduct under the sentencing guidelines, and that as a result his prison sentences were too severe. In determining a drug offender’s base offense level, sentencing courts consider quantities of drugs that are not specified in the count of conviction but were part of the same course of conduct or common scheme or plan as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2); United States v. Huerta, 239 F.3d 865, 875 (7th Cir.2001). We review the district court’s drug-quantity calculation for clear error. Huerta, 239 F.3d at 875. In calculating the quantity of drugs attributable to a defendant, sentencing courts may consider a wide range of information so long as it bears “sufficient indicia of reliability to support its probable accuracy.” United States v. Taylor, 72 F.3d 533, 543 (7th Cir.1995). Drug-quantity determinations under the guidelines may be based on estimates; mathematical precision is not required. United States v. Brumfield, 301 F.3d 724, 734 (7th Cir.), cert. denied,-U.S.-, 123 S.Ct. 681, 154 L.Ed.2d 579 (2002).
At sentencing the district court held Ba-dillo responsible not only for the 3248 pounds seized at the warehouse, but also for marijuana he unloaded in six prior transactions. The probation officer had recommended holding him accountable for 16,248 pounds (3248 pounds plus another 13,000 pounds from 13 previous transac*904tions). Badillo objected to this calculation on the ground that there was no evidence linking him to seven of the 13 transactions. Instead, he acknowledged involvement in six loads of marijuana that totaled around 6000 pounds. The only testimony at trial regarding Badillo’s previous activity came from impeachment evidence from Badillo’s proffer-two agents testified that Badillo had admitted to unloading marijuana six times. (App. at 45-49.) Co-defendant Clarence Poteet testified that he had been involved in 14 transactions totaling 13,000 to 14,000 pounds, but he did not shed light on Badillo’s specific involvement in each of those loads. At the sentencing hearing, the parties disagreed whether the six loads to which Badillo had admitted included the Chicago transaction, or whether all six were prior transactions. Although the court agreed that the government had failed to establish by a preponderance of the evidence that Badillo was involved in 13 prior transactions, it nevertheless concluded that he had been involved in six prior loads via admissions in Badillo’s proffer, placing the total of marijuana at well over 7000 pounds.
Badillo claims that the court clearly erred in its drug quantity calculation, but we do not agree. He admitted at sentencing that he had dealt in six loads that averaged 1000 pounds each, a total of 6000 pounds, (App. at 9-10); now on appeal he has acknowledged involvement in seven loads, conceding that there were six prior loads. (Appellant’s Br. at 4-6, 15-18.) Consequently, Badillo’s argument can prevail only if the court clearly erred by estimating that this seventh load weighed at least 600 pounds. But we do not believe the court clearly erred in light of the large size of the Chicago warehouse stash and the 1000-pounds-per-load estimate provided by Poteet. Thus, even though there is some question about the precise size of Badillo’s prior loads, the court had good reason to attribute to him more than 6600 pounds.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Torres’s appeal. With regard to Badillo, we AFFIRM the sentences imposed by the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217853/ | ORDER
Dahana Sutherland sued Norfolk Southern Railway Company and Norfolk Southern Corporation (collectively “Norfolk”), alleging that they violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. by refusing to promote her because she is female. The district court granted the defendants’ motion for summary judgment, and we affirm.
Norfolk hired Sutherland in 1993 as a switchman in its Calumet Yard. Since then she has worked in various capacities in its Chicago Terminal. In 1995 Sutherland sought a promotion to the position of “yardmaster,” and in 1996 she took a battery of well-known professionally developed aptitude tests to qualify for the promotion. Specifically, she took the SRA Verbal Test, the SRA Non-Verbal Test, and the Wesman Personnel Classification Test (“PCT”). Generally only the two SRA scores are used to evaluate yardmaster applicants; the PCT score is used to evaluate applicants for management positions. Sutherland passed the two SRA tests, and in September 1996 she became an Extra General Yardmaster.
In 1999 Sutherland inquired of the Chicago Terminal Superintendent, Burl Scott, about a possible promotion to the position of “trainmaster,” a non-union management position. Scott told her to put her interest in writing, wished her luck, and told her that he would put in a good word for her. Sutherland gave Scott her resume and a letter expressing her interest in becoming a trainmaster. At that time Sutherland asked Scott if she would need to be tested for the promotion and he told her no. Scott then sent Sutherland’s resume and letter to the Senior Superintendent of the Chicago Terminal along with his own memo recommending Sutherland for the promotion.
*906Norfolk requires union employees like Sutherland moving to non-union positions like trainmaster to score at least 24 on the PCT; a score below 24 disqualifies a candidate from consideration. Sutherland insists there are separate yardmaster and trainmaster tests. But she cites no evidence refuting Norfolk’s sworn statements that the PCT used to determine eligibility for trainmaster positions is the same PCT Sutherland took as part of her testing to become a yardmaster. At that time, Sutherland scored 17 on the PCT, well below the cut-off score of 24. Under Norfolk’s policy, candidates are not retested unless they have received additional relevant education. Sutherland had not received such education, thus she was not retested and not promoted. Between January 2000 and October 2000 seven male Norfolk employees moved from union positions to train-master positions in Chicago-all scored above 26 on the PCT.
In June 2000 Sutherland filed a discrimination charge against Norfolk with the Illinois Department of Human Rights and the EEOC; after receiving the obligatory right-to-sue letter, she timely filed her complaint in the district court. The district court concluded first that Sutherland had failed to establish a pilma facie case of disparate treatment based on Norfolk’s refusal to promote her because she had not demonstrated that she was qualified for the promotion or that similarly situated men were promoted. The court then assumed “for the sake of argument” that Sutherland had established a prima facie case, but determined that she had also failed to demonstrate that Norfolk’s reason for denying her promotion-her low PCT score-was pretextual. Sutherland timely appealed and now argues that summary judgment for Norfolk was improper. She also argues that the district court erroneously denied her motion to strike Norfolk’s supplemental affidavit.
We review a motion for summary judgment de novo. Patt v. Family Health Sys., Inc., 280 F.3d 749, 752 (7th Cir.2002). We construe all facts in the light most favorable to Sutherland and draw all reasonable and justifiable inferences in her favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but to withstand summary judgment, Sutherland must provide evidence demonstrating a genuine issue of material fact for trial. Fed.R.Civ.P. 56(c); Patt, 280 F.3d at 752. In her attempt to prove that Norfolk discriminated against her, Sutherland relies on the indirect method of proving discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff may establish a prima facie case for failure to promote by demonstrating that (1) she is a member of a protected class, (2) she applied and is qualified for an open position, (3) she was rejected for the position despite her qualifications, and (4) the employer awarded the position to someone outside the protected class who was not better qualified than she. See id. at 802; Grayson v. City of Chicago, 317 F.3d 745, 748 (7th Cir.2003). If the plaintiff establishes a prima facie case, a re-buttable presumption of discrimination is created and the defendant must produce evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The plaintiff must then demonstrate by a preponderance of the evidence that the defendant’s reason is pretextual. Id. at 802-03.
To provide a basis for reversing the district court, Sutherland must show on appeal that she established a prima facie case. But she has not demonstrated *907either that she was qualified for the position or that similarly situated males were promoted in her place. She did not score high enough on the PCT to be qualified, and she has provided no evidence of a male yardmaster with a score below 24 who was promoted. In short, she has not established a prima facie case.1 See Jones v. Union Pac. R.R. Co., 302 F.3d 735, 741 (7th Cir.2002) (failure to establish any portion of prima facie case warrants summary judgment for the defendant).
That leaves Sutherland’s contention that she was “severely prejudiced ... in presenting her case” because the district court denied her motion to strike a supplemental affidavit Norfolk submitted with its summary judgment reply brief. We review a district court’s decision to deny a motion to strike a summary judgment affidavit for abuse of discretion. See O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 986 (7th Cir.2001). But Sutherland does not argue that the district court abused its discretion. Nor does she explain, or can we see, how the supplemental affidavit prejudiced her. Thus, we see no basis to disturb the district court’s decision.
AFFIRMED.
. Even, if we reached Sutherland’s pretext argument, we would agree with the district court because Sutherland has failed to produce any evidence of a male with a score below 24 on the PCT who was either promoted or allowed to retest. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217855/ | ORDER
Manuel Gonzalez-Rangel (referred to hereafter as “Rangel”) plead guilty to one count of conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and three counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial court sentenced Ran-gel to concurrent terms of 235 months in prison on each of the counts, five years of supervised release to follow the term of imprisonment, as well as a $400 mandatory assessment. Rangel appeals from the sentencing court’s determination that: (1) over 80 kilograms of cocaine was attributable to him as relevant conduct, (2) he possessed a dangerous weapon in connection with his drug charge and was thus subject to a dangerous weapons enhancement, and (3) he was not entitled to a sentencing adjustment for acceptance of responsibility. We affirm.
I. Background
From early 1998 through December 1999 (his arrest), Rangel supplied illegal drugs (cocaine and marijuana) to a local drug ring in Milwaukee, WI. The drug *911trafficking outfit for which Defendant served as a “source,” was run by Julio Lopez, and was comprised of a number of Julio’s extended family members, namely, Julian, Arturo, Hector, Ernesto, Eddie, Roberto and Jose (his brothers), as well as his sister, Aurora Lopez, and his nephew, Arthur Lopez, Jr. (“Junior”) (together, the “Lopez family” or “Lopez conspirators”). The Lopez family obtained marijuana and cocaine products from Rangel, as well as other sources located in Illinois and Texas, and then repackaged and sold the drugs in the area of Milwaukee known as “8th and Madison.” Rangel, for his part, often transferred cocaine and marijuana drugs to Lopez family members out of his tavern, “Los 2 Compadres,” or, alternatively, straight out of his car.
On October 9, 1999, at around 3:00 a.m., officers of the Milwaukee Police Department were dispatched to Defendant’s tavern, in response to a report that a man with a gun was beating up a woman inside of a green Camaro. Upon arriving at the scene, officers found Rangel in the driver’s seat and a woman in the passenger’s seat of Defendant Rangel’s automobile (Came-ro). Officers recovered a nine-millimeter handgun from the floor of the driver’s side, a loaded nine-millimeter magazine from the floor under the front passenger’s seat, and nine corner-cut bags of cocaine, from between the driver’s seat and the center console. In his statement to police that evening, Rangel admitted that he owned the car, as well as the firearm found on the floor of his car, but claimed that he did not know how the drugs came into his possession.
An indictment was issued and search warrants executed in connection with the Lopez drug ring and, on December 15, 1999, Rangel was arrested on the following charges: (1) conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (one count), and (2) distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (three counts). Inside Defendant’s home, on the day of arrest, agents uncovered the storage box for the nine-millimeter gun owned by Defendant and found in his possession the prior October (matching serial numbers). Agents also arrested coconspirators Arturo, Aurora, Hector, Eddie, Roberto and Luis Lopez, as well as Luis Acevedo and Esteban Alvarado, and uncovered a large cache of firearms, ammunition, and firearm-related paraphernalia from their residences.
Rangel subsequently plead guilty to the conspiracy to distribute cocaine and marijuana charge, as well as the three distribution of cocaine charges.1 At his sentencing hearing, Defendant Rangel maintained that only 15-50 kilograms of cocaine was attributable to him, while the Government contended that he was actually responsible for over 80 kilograms of cocaine.
To support its proffer regarding Defendant’s relevant conduct, the Government relied on statements from cooperating co-conspirators set forth in the pre-sentence report. As reflected in that report, Ernesto Lopez informed investigators that, over the course of the Lopez’s drug operations, Defendant supplied him (Ernesto) with around 1,000 pounds of marijuana and 40-50 kilograms of cocaine. According to Ernesto, the defendant also supplied illegal drugs to other Lopez family members, including Junior, Jose and Julian. Ernesto, having personally observed Rangel deliver cocaine and marijuana to Junior every three days for an entire year (1999),2 esti*912mated that the total amount Rangel had sold to Junior over the course of the conspiracy was over 40-50 kilograms of cocaine.3
Ernesto’s identification of Rangel as a major supplier to the Lopez family was corroborated by the statements of nearly a dozen other co-conspirators, including Hector Lopez, Estevan Alvarado, Mark Bowie, and Mario Reyes, just to name a few.4 Hector Lopez, for example, informed investigating agents that, based on his own observations, Rangel “regularly” supplied Junior and Ernesto with one-half to one-kilogram quantities of cocaine. Pre-sentence Report ¶ 68. Esteban Alvarado (another co-conspirator who was not a member of the Lopez family) stated that he had personal knowledge that “various” Lopez family members obtained “pounds of marijuana” and “up to kilogram quantities of cocaine” from Rangel.5 Id. ¶ 88.
Mark Bowie, who was arrested in August of 2000 on unrelated charges, also participated in the Lopez’s drug-trafficking activities. Bowie informed investigators that, after Julian and Arturo got into a dispute with one of their other suppliers in 1997, they began obtaining drugs from Rangel, in multiple-pound (marijuana) and one-half kilogram (cocaine) quantities. Bowie recounted that he also, on occasion, personally observed both Ernesto and Jose consummate illegal drug transactions with Rangel.
Lastly, Mario Reyes, a friend of Junior Lopez who was familiar with the Lopez’s drug-trafficking scheme, pegged Rangel as a “source of supply” for the Lopez family, and noted that, in 1999, he (Reyes) had accompanied Eddie, Junior, and other Lopez family members, to the Defendant’s tavern to purchase illegal drugs from Defendant.
The pre-sentence report also recorded a number instances of controlled purchases of cocaine and marijuana involving Rangel, executed both by undercover agents and confidential informants. Such “controlled buys” took place on April 22, 1999 (three to four ounces of cocaine), April 27, 1999 (two pounds of marijuana), May 25, 1999 (two ounces of cocaine), July 1, 1999 (nine ounces of cocaine), November 11, 1999 (four ounces of cocaine), and December 1, 1999 (three ounces of cocaine). In each instance, Rangel either delivered the drugs to the purchaser himself, or delivered the drugs to an intermediary (one of the Lopez brothers) who then sold the drugs to the informant or undercover agent. Each of the controlled buys took place inside Ran-gel’s tavern, or outside the tavern in the parking lot. During one such drug deal, the confidential informant recorded his conversation with Defendant on tape, and captured Defendant boasting that he “supplied” cocaine for “Junior and other Lopez family members.” Pre-sentence Report ¶ 182.
*913Based on the evidence of the Defendant’s drug distribution activities set forth in the pre-sentence report, the sentencing court assessed over 80 kilograms of cocaine to Rangel as relevant conduct. In light of his October 9, 1999 possession of the nine-millimeter handgun, the sentencing court also concluded that Rangel was eligible for an enhancement for possession of a dangerous weapon in connection with his drug offense. And, finding that Rangel made a frivolous objection to the gun enhancement, the district court refused a downward departure for acceptance of responsibility.
II. Analysis
1. Drug amount
The sentencing court credited the plethora of statements given by co-conspirators impheating Rangel as a major source of drugs for the Lopez family, and, finding such statements rehable, concluded that Rangel was responsible for over 2,000 pounds of marijuana, and over 80 kilograms of cocaine. Sent. Tr. at 52. We review the district court’s determination for clear error, United States v. Spiller, 261 F.3d 688, 691 (7th Cir.2001), and will affirm the court’s decision unless, after considering ah of the evidence, we are left with a “definite and firm conviction that a mistake has been committed.” United States v. Huerta, 239 F.3d 865, 875 (7th Cir.2001).
Rangel argues that the district court erred insofar as it based its calculations of the drug quantity “solely on the statements of co-defendants contained in the [pre-sentence report].” Rangel’s Br. at 9. Specifically, Defendant complains that the “primary source” of information regarding the drug quantities (Ernesto Lopez) was a “cooperating co-defendant,” and criticizes the district court for “fail[ing] to make any findings as to why information from Ernesto Lopez or anyone else was rehable.” Id. at 14.
Defendant primarily rehes on United States v. Palmer, 248 F.3d 569 (7th Cir.2001) to support his argument for reversal of the sentencing court’s drug quantity assessment. In Palmer, after the defendant plead guilty to a small amount of crack (4.7 grams), the sentencing court attributed more than 150 grams of crack to the defendant as relevant conduct. The court’s assessment of the drug amount was based in part on the testimony of a United States marshal, who testified that a third party, Griffin, who was not available to testify in court, had attributed 241 grams to the defendant. In an opinion reversing the sentencing court, we voiced “serious concerns” as to the sentencing court’s reb-anee on the marshal’s testimony, given that the particular drug transaction to which he testified was over two years old, and also because the sentencing court made no specific finding of credibility as to the individual (Griffin) who actually had first-hand knowledge of the incident (crack sale).
The circumstances warranting reversal in Palmer are simply not present here. Unlike in Palmer, the sentencing court in this case did make an express finding of credibility as to the co-conspirators’ testimony regarding Rangel’s relevant conduct. Ultimately, the court concluded that the co-conspirators’ statements (including that of Ernesto) regarding Defendant’s drug-dealing activities were “believable because [they were] consistent.” Id. at 59.
Moreover, although the statements of Rangel’s co-conspirators were presented to the court in the pre-sentence report, rather than by way of in-court testimony, evidence regarding a defendant’s relevant conduct need not be presented as hve testimony to be rehed upon by the sentencing court. See United States v. Simmons, 218 *914F.3d 692, 695 (7th Cir.2000) (“there is no requirement that a sentencing court consider only the testimony of nonhearsay witnesses”). As we have previously held, a sentencing judge may “consider a wide range of information” in determining the attributable drug amount, so long as the information has “ ‘sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir.1999) (quoting United States v. Taylor, 72 F.3d 533, 543 (7th Cir.1995)). Here, the co-conspirators’ statements contained in the pre-sentence report were sufficiently reliable because they were both numerous and thoroughly “consistent.” Sent. Tr. at 59. Nearly a dozen co-conspirators supported Ernesto’s claim that the Defendant was a “major” supplier of cocaine and marijuana to the Lopez family.6
As the sentencing judge rightly noted, the Government’s burden at sentencing “is only to ... establish the drug quantities by a preponderance of the evidence.” Sent. Tr. at 54. See United States v. Joiner, 183 F.3d 635, 640 (7th Cir.1999). In this case, instead of presenting evidence to refute the testimony in the pre-sentence report, Defendant fell back on bare criticism, baselessly attacking the credibility of his co-conspirators and their assertions regarding his drug activities-this was insufficient to tip the scales of the evidence in his favor. See, e.g., United States v. Simmons, 218 F.3d 692, 695 (7th Cir.2000) (noting that it is “not enough” to deny the accuracy of a pre-sentence report, one must present actual evidence to counter the evidence set forth therein).7
In light of the sheer number of witnesses-eleven co-conspirators in all-that testified Rangel as his or her or their regular source of cocaine and marijuana for the Lopez family, as well as various other evidence in the pre-sentence report (controlled purchases of cocaine, the Defendant’s admission that he was a “supplier” to Junior and other Lopez family members), there was ample evidence corroborating Ernesto Lopez’s assessment that, over the course of the conspiracy, Rangel was responsible for over 80 kilograms of cocaine. Because Ernesto’s statement regarding Defendant’s drug-trafficking quantities bore the requisite in-dicia of reliability, and because Defendant presented no evidence to refute Ernesto’s corroborated testimony, the district court did not err in accepting his assessment as to the amount of drugs attributable to Defendant.
2. Possession of a dangerous weapon
Defendant also appeals from the sentencing court’s determination that he was *915eligible for a sentencing enhancement because he possessed a dangerous weapon in connection with a drug offense. U.S.S.G. § 2Dl.l(b)(l). We review the court’s decision to impose a § 2D1.1 enhancement for clear error. United States v. Watson, 189 F.3d 496, 501 (7th Cir.1999).
The Sentencing Guidelines require a court to increase a defendant’s offense level by two levels if the defendant possessed a dangerous weapon in connection with a drug offense. See U.S.S.G. § 2D1.1(b)(1). A weapon found in “close proximity” to illegal drugs is presumptively considered to have been used in connection with the drug trafficking offense. United States v. Grimm, 170 F.3d 760, 767 (7th Cir.1999). Thus, the initial burden is on the Government to demonstrate that the defendant “possessed a weapon in a place where drugs were present.” Grimm, 170 F.3d at 767. Thereafter, the burden shifts to the defendant to show that it was “clearly improbable” that the weapon was connected with the offense. Id.
The Defendant admits that the Government’s initial burden was met, and with good reason. After all, when the police took Defendant into custody on October 9, 1999, he was clearly in possession of a nine-millimeter handgun (floor of his car), as well as nine corner-cut bags of cocaine (between the driver’s seat and center console of his car). Plea Tr. at 38. Nevertheless, he argues that he should not have been subject to a dangerous weapons enhancement because he presented a “plausible” explanation for his possession of the gun-namely, that he used the gun purely to protect his tavern,8 rather than for drug-trafficking purposes. See Rangel’s Br. at 16. He also claims that he had no knowledge that the cocaine was in his car on the night of October 9.
Unfortunately for Rangel, his dubious (though perhaps “plausible”) explanation for possessing a handgun did not make it “clearly improbable” that he had used the gun in connection with illegal drug sales. As an initial matter, the location from which the police recovered the gun — Ran-gel’s car — was itself the site of a number of his prior drug deals.9 This may explain why, on the night that the police discovered Rangel to be in possession of the handgun, he was also in possession of several bags of cocaine-packaged in “corner cuts,” a popular method of distribution. See Sent. Tr. at 29 (noting that “the way the drugs were packaged [wa]s consistent with resale ... ”). Additionally, we note that the type of gun Defendant possessed — a handgun — and the fact that it was concealed by Defendant (on the floor of the car) also serve to bolster the Government’s claim that the gun was used by Defendant in connection with illegal activity (drug trafficking), rather than for the lawful purpose of protecting the tavern. See, e.g., United States v. Cantero, 995 F.2d 1407, 1411 (7th Cir.1993) (“We have previously noted that a handgun is a ‘tool of the [drug] trade,’ because it is easy to conceal yet deadly.”).
Moreover, even if we accept Rangel’s argument that he used the gun to protect his tavern, the fact that his tavern often *916doubled as a drug-distribution location10 makes it highly unlikely that he at no point used the gun to guard his drugs or to otherwise further his drug trade. Thus, we agree with the sentencing court’s conclusion that, under the totality of the evidence, it was not “clearly improbable” that Defendant used the handgun in connection with the charged drug offenses. Sent. Tr. 34-35 (“the facts ... overwhelmingly ... support ... that the weapon ... found in [Defendant’s] automobile was used in connection with a drug transaction.”). The § 2D1.1 dangerous weapon enhancement was properly imposed by the court.
S. Acceptance of responsibility
Under the Sentencing Guidelines, a court may reduce a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense....” U.S.S.G. § 3E1.1. The court below refused to reduce Defendant’s sentencing level on the basis that Defendant “raised a frivolous objection to the evidence showing that he had a gun in connection with a drug transaction....” Sent. Tr. at 54-55. We review for clear error. United States v. Grimm, 170 F.3d 760, 766 (7th Cir.1999).
Rangel argues that he was entitled to a § 3E1.1 reduction because he entered a timely plea of guilty as to the charges brought against him by the Government. While entering a guilty plea may help a defendant establish his entitlement to an acceptance of responsibility credit, it does not automatically entitle him to such credit. United States v. McIntosh, 198 F.3d 995, 999 (7th Cir.2000). Indeed, in cases where the “defendant ... falsely denies, or frivolously contests, relevant conduct that the court determines to be true ... ”, the sentencing court may refuse application of the sentencing reduction. Id. n. 3. Thus, “[although a defendant is free to challenge the Government’s proffer of relevant evidence, doing so ‘exposes his denials to the scrutiny of the court,’ ” Booker, 248 F.3d at 691 (quoting United States v. Brown, 47 F.3d 198, 204 (7th Cir.1995)).
Here, in spite of the mount of evidence linking his gun to his drug trade, Rangel steadfastly maintained to the sentencing court that he had never used his handgun in connection with drug-trafficking activity. But arguing as much was frivolous (not to mention foolish), given that, on October 9, 1999, he was found to be in possession of both the handgun and nine corner-cut bags of cocaine. Moreover, as discussed above, even if the Defendant had not been in possession of drugs on that particular occasion, his own admission that he used the gun to protect his tavern-a site of many of his cocaine deliveries-ultimately linked his gun to his drug trade in any case.
We agree with the district court that Defendant’s refusal to own up to his reason for carrying a handgun was frivolous, and that it amounted to a waste of the district court’s time and evidenced an unwillingness on the part of Defendant to truly accept responsibility for his crimes. The district court’s refusal to apply the *917§ 3E1.1 downward adjustment was not in error.
Affirmed.
. Rangel, when entering his guilty plea, did not have the benefit of a plea agreement.
. As far as the amounts changing hands during these transactions, Ernesto estimated that *912the largest delivery he observed was two kilograms of cocaine and 100 pounds of marijuana.
. Thus, based on Ernesto's statements, the total amount attributable to Defendant was in excess of 80-100 kilograms.
. In addition to these cooperating witnesses, Clinton Lampshire, Luis Acevedo, Alex Medina, Milo Ocasio, Frank Lopez, and two confidential informants ("C14” and "C14”) identified Rangel as a drug supplier for the Lopez family. Luis Acevedo specified in an interview that Rangel was a supplier of “a lot of cocaine and marijuana” for the Lopez family. Presentence Report ¶ 42.
.For instance, in 1999, Alvarado himself drove Junior to Rangel’s tavern on an occasion when Junior purchased 15 pounds of marijuana from Rangel. Presentence Report ¶ 88.
. It is worth noting that an additional point of distinction between this case and Palmer is that the information provided by the cooperating witnesses in this case was in regard to Defendant’s ongoing conduct — that is, drug activities that took place over a period of years and continued up until the point of Defendant's arrest. Thus, the information was not (as was the case in Palmer) concerning a single drug transaction that occurred two years prior to the statement itself. In light of the familiarity of the co-conspirators with Defendant and his drug business, formed after their repeated interactions and drug transactions with Defendant, the statements of Defendant’s co-conspirators in this case are more significantly more reliable than the analogous statement at issue in Palmer.
. Defendant did attempt to counter the pre-sentence report’s evidence of the extent of his drug activities by presenting the testimony of his former employer, who opined that he was an "outstanding” worker, Sent. Tr. at 14-16, and testimony of his brother, who testified to Defendant’s poor financial condition, Sent. Tr. at 18-20. But neither of these statements directly contradicted the evidence of the amount of drugs for which Defendant was accountable provided by Defendant’s co-conspirators, leaving the information in the pre-sentence report uncontradicted at sentencing.
. The Defendant’s sole evidentiary support for this proffer was the testimony of his brother, Antonio, that Defendant said he wanted to buy the gun because he was "afraid that something might happen in the bar Sent. Tr. at 21.
. For example, on April 27, 1999, when agents purchased marijuana from Jose Lopez, Jose obtained the marijuana from Rangel while sitting inside Defendant’s Camaro. Pre-sentence Report ¶ 167.
. On May 25, 1999, while inside his tavern, Defendant supplied Junior with two ounces of cocaine; Junior then sold the cocaine to a confidential informant, Cl2, as part of a controlled transaction. Pre-sentence Report 1Í172. On November 11, 1999, Defendant sold four ounces of cocaine directly to the same confidential informant. On that occasion, in a tape-recorded conversation, Rangel instructed the informant to meet him at the tavern and, when the informant drove up to the tavern, Rangel emerged from the tavern to deliver the cocaine. Id. ¶ 182. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217856/ | ORDER
In response to the events of September 11, 2001, President Bush declared a “war on terrorism.” Larry George, Paul Nigl, and Richard Brevitz, all Wisconsin inmates, filed this suit in district court, with the purported intention of lending a hand in that war. Invoking 28 U.S.C. § 1605, 18 U.S.C. § 2333, and a host of other provisions that they interpreted as creating civil liability for acts of terrorism, the inmates named over 50 defendants — including Iran, Iraq, Syria, the Sudan, Libya, Al Qaida, the Taliban, several known or suspected terrorists currently in U.S. custody, and a number of banks and relief *918organizations suspected of funneling funds to terrorist organizations — and requested millions of dollars in compensatory and punitive damages. Before any of the defendants filed an answer, the district court sua sponte dismissed the case for want of subject matter jurisdiction based on lack of standing, and denied the subsequent motion for reconsideration. George and Nigl appeal, and we affirm.1
On appeal, George and Nigl argue that the district court should not have dismissed their case until after the defendants had responded to the complaint and then only after allowing them to amend the complaint to establish subject matter jurisdiction. A court must address potential jurisdictional problems sua sponte at whatever point they arise in the proceedings. Hay v. Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir.2002). But we generally discourage district courts from sua sponte dismissing a complaint for lack of subject matter jurisdiction without first providing the plaintiff notice and a hearing or an opportunity to amend. Frey v. EPA 270 F.3d 1129, 1132 (7th Cir.2001). Such a dismissal is improper unless the jurisdictional defect is incurable. Id.
Failure to establish standing is a jurisdictional defect, Lewis v. Casey, 518 U.S. 343, 349 n. 1, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir.2000), and, in this case, the defect is incurable. Not only have George and Nigl failed to establish standing, but they would be unable to allege facts sufficient to do so if given the opportunity to amend their complaint. Standing is a threshold requirement imposed by Article III of the Constitution, which limits federal subject matter jurisdiction to claims that present an actual case or controversy in whose outcome a plaintiff has a “personal stake.” Perry, 222 F.3d at 313. A plaintiff has a “personal stake,” and thus can establish standing, only if he has suffered an injury in fact. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 844, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Crabill v. Trans Union, L.L.C., 259 F.3d 662, 665 (7th Cir.2001); Freedom From Religion Found., Inc. v. Bugher, 249 F.3d 606, 609 (7th Cir.2001). An injury in fact is actual or imminent, not speculative, and concrete and particularized, not abstract. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 527-28 (7th Cir.2001).
George and Nigl argue that the defendants have inflicted an injury in fact by conspiring, threatening, and attempting to murder them because of their status as United States citizens. But George and Nigl have never been victims of terrorist acts, and they are no more likely than the average American citizen to be victims of future attacks. The injury they allege is purely speculative. As the district court noted, the inmates’ “injury” amounts to nothing more than a generalized fear of terrorism that is shared by many if not most Americans. An interest that a plaintiff holds in common with society at large is too abstract to constitute an injury in fact and is thus insufficient to confer standing. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); lo*919kin v. Bear Stearns & Co., 248 F.3d 628, 632 (7th Cir.2001).
AFFIRMED.
. Although Brevitz's name is listed on the notice of appeal, he never signed it. When he filed the notice of appeal, George wrote a letter stating that, because of time limitations, Brevitz would send a letter to the court indicating his desire to join in the appeal. But this court has received no such letter or any other documentation from Brevitz, and thus he lacks standing to appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217857/ | Order
DSM Engineering disciplined Kim Vincent 53 times under the firm’s no-fault, points-based, absenteeism rules. DSM also reserved the right to take action in response to chronic absenteeism that does not require automatic dismissal for excess points. DSM suspended Vincent for chronic absenteeism, observing that he regularly missed as many days as the points-based policy allowed (short of discharge) and that his many unexcused absences usually came immediately before or after a weekend. The suspension began a process that DSM believed would lead to discharge. Vincent’s union filed a grievance, which was resolved by his reinstatement under a last-chance agreement. Soon he returned to his old ways, however, and was discharged for chronic absenteeism characterized by taking long weekends. The local union filed another grievance and, after this was rejected by management, asked the international union to take the case to arbitration. When the international said no, the discharge became final.
*920Vincent then filed this hybrid suit against DSM and the union, contending that the points system is the only valid criteria for discharge on account of absenteeism and that at all events his decision to miss work is justified by family considerations. This contention, under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, may be addressed only if the court first holds that the union violated its duty of fair representation by failing to take the case to arbitration. Otherwise the grievance-resolution machinery under the collective bargaining agreement is exclusive. See Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The district court granted summary judgment to both defendants; Vincent appeals.
The record does not establish the existence of a material dispute requiring trial; no reasonable jury could determine that the union violated its duty of fair representation. Vincent’s union went to bat for him, obtained his reinstatement after the suspension, and filed a grievance about the firing. The international overruled the local’s request to arbitrate. Only under a rule that the union must arbitrate every grievance could this be called a breach of the union’s duty, and there is no such rule. Compare Steelworkers v. Rawson, 495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990), with Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Nothing in the record suggests that the international’s decision was based on antipathy to Vincent or any group to which Vincent belongs, as opposed to a belief that the grievance was weak. A few years ago an arbitrator rejected the union’s contention, which Vincent repeats, that excessive points are the only valid basis of discharge for missing work at DSM. Unions are not obliged to demand sequential arbitration of positions already adjudicated; change comes through collective bargaining that leads to new contractual language.
Vincent contends that the union violated its duty by telling him that the grievance would be arbitrated and then belatedly informing him otherwise. This appears to be principally a different way to observe that the local recommended arbitration (and told Vincent so), only to be overruled at a higher level. At all events, any shortcomings in notification (or any other misstatements by the local’s officials) played no causal role in the union’s decision not to arbitrate. Had the local union’s officials said different things, or said them sooner, there was still nothing that Vincent could have done; whether to arbitrate rested in the international’s discretion.
In the end, Vincent wants a jury to substitute its decision for that of the grievance machinery under the collective bargaining agreement. Federal law does not entitle employees to take matters out of employers’ and unions’ hands in that fashion.
AFFIRMED | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217858/ | ORDER
In July 2001 Kerry Nelson filed this action pro se to collect damages for injuries he suffered after he allegedly fell over a metal merchandise rack in a Wal-Mart store. In March 2002 the district court granted summary judgment in favor of the defendants, Wal-Mart, Inc. and Claims Management, Inc. The court reasoned that Nelson could not recover under Wisconsin law, see Peters v. Menard, 224 Wis.2d 174, 589 N.W.2d 395, 407 (1999), because he had admitted to being more than 51% at fault for the accident. Nelson now appeals, and we affirm.
As a preliminary matter, to ensure that we have jurisdiction over this case we ordered supplemental briefing from the parties. Apparently attempting to establish diversity jurisdiction, 28 U.S.C. 1332(a)(1), Nelson responded that he has been a resident of Wisconsin since birth. It is citizenship, not residency, that matters for purposes of establishing diversity *922jurisdiction. Meyerson v. Harrah’s E. Chi Casino, 299 F.3d 616, 617 (7th Cir.2002). Because Nelson said that he has resided in Wisconsin for his entire life, however, we infer that he was present there and intended to remain there when he filed his complaint. Those facts make Wisconsin his domicile and also his state of citizenship. See Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir.1996). Further, there are two defendants in this case, Wal-Mart, Inc. and Claims Management, Inc. Both companies responded that they are incorporated in Delaware and have their principal places of business in Arkansas. Because there is complete diversity of citizenship and the amount in controversy exceeds $76,000, our jurisdiction is secure under 28 U.S.C. § 1332(a)(1).
Nelson’s suit against Wal-Mart and Claims Management stems from injuries he suffered after he fell while shopping in a Wal-Mart store. Nelson alleges that while he was walking down an aisle in a Wal-Mart store in Onalaska, Wisconsin, a metal rack fell in front of him and he tripped and fell on top of it. Nelson alleges that he suffered injuries as a result of this fall, including physical injuries and mental impairments that interfered with his work as a university professor. Nelson claims that he sought compensation from Wal-Mart, but the company referred him to Claims Management. Nelson further alleges that his unsuccessful attempts to collect from Claims Management caused him further emotional suffering. He ultimately became frustrated with the claims process and filed this action.
During discovery the defendants sent Nelson a request for admissions with 39 separately numbered requests. All but three asked Nelson to admit to his involvement (usually as a defendant) in other state-court lawsuits. Three requested Nelson to admit to facts that would inevitably doom his claim against the defendants, including one that stated: “Admit that Kerry R. Nelson was more than 51% at fault for the accident at issue.” After Nelson failed to respond, Wal-Mart and Claims Management filed a motion for summary judgment. Nelson did not file a response to the summary judgment motion. The district court then granted Wal-Mart’s motion, concluding that Nelson had admitted to being 51% at fault for the accident by failing to respond to the request for admissions, see Fed.R.Civ.P. 36(a), and that his greater comparative fault barred him from collecting any damages under Wisconsin law, see Peters, 589 N.W.2d at 407.
On appeal Nelson has filed a brief that arguably does not satisfy the requirements of Federal Rule of Appellate Procedure 28(a)(9). He has not presented a clear argument that takes issue with the district court’s judgment. He has also failed to provide citations to the record or to relevant authority to support his assertions of error. We have dismissed pro se litigants’ appeals for similar deficiencies. See, e.g., Anderson v. Hardman, 241 F.3d 544, 545-46 (7th Cir.2001). Nevertheless, we have considered the arguments that we can discern from Nelson’s brief and have found no reversible error.
Nelson first argues that he never admitted to being primarily at fault for his accident. But because he failed to respond to the defendants’ requests to admit, the district court deemed that he had admitted the matters listed in the requests, including that he was more than 51% responsible for his accident. Federal Rule of Civil Procedure 36(a) states that if a party fails to respond to a request for an admission within 30 days, the matter is deemed to be admitted. Fed.R.Civ.P. 36(a); Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 605 (7th Cir. 2002); United States v. Kasuboski, 834 *923F.2d 1345, 1350 (7th Cir.1987). It further provides that any matter deemed admitted is conclusively established, “unless the court on motion permits withdrawal or amendment of the admission.” Fed. R.Civ.P. 36(b). Withdrawal or amendment may be appropriate if “the presentation of the merits of the action will be subserved thereby,” and if it will not prejudice the party who obtained the admission. Id. Had Nelson filed a motion to withdraw or amend his admission, he might have persuaded the district court to grant him relief. But Nelson did not file a motion to withdraw or amend his admissions, so Rule 36(b) required the district court, and now requires us to consider the matter conclusively established. Kasuboski, 834 F.2d at 1350. Nelson offers no reason on appeal why we should grant him relief from the district court’s application of Rule 36.
Nelson also argues that summary judgment was inappropriate in light of the extensive evidence he had gathered to support his claim. But he never defended against the summary judgment in the district court, and he has not explained on appeal why he failed to respond to the motion. The record contains a document that explains the procedures for responding to a motion for summary judgment. We do not reach the question of whether this document complies with Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982), because Nelson has not argued that it was inadequate. So, Nelson should have presented his evidence to the district court first, and by failing to do so, he has waived the argument on appeal. Sanders v. Vill. of Dixmoor, 178 F.3d 869, 870 (7th Cir.1999).
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217859/ | ORDER
Three years ago, a bevy of police officers, acting on an informant’s tip, raided a Milwaukee home and discovered large quantities of drugs and drug paraphernalia. Curtis Brewer, who had been convicted of distributing cocaine base in 1993, was apprehended as he tried to flee the home. Police later discovered a firearm in Brewer’s car, which was parked in front of the residence. A grand jury returned a superseding indictment charging Brewer with possession of 50 grams or more of crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(l)(A)(iii), and of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). At his bench trial, Brewer stipulated to all of the facts necessary to establish that he possessed the firearm in violation of § 922(g)(1), but he contested the drug charge. The district court eventually found him guilty of the gun charge but not guilty of possession with intent to distribute under § 841(a)(1). In reaching its decision, the court noted that the evidence clearly established that Brewer possessed cocaine base (police discovered 8.556 grams of the drug in his mouth) but nevertheless acquitted him under § 841(a)(1) because the court could not find, beyond a reasonable doubt, that Brewer intended to distribute the crack.
After the district court announced its verdicts, the government asked the court to convict Brewer of simple possession of cocaine base under 21 U.S.C. § 844(a) because, in the government’s view, it was a lesser-included offense of possession of a controlled substance with intent to distribute under § 841(a)(1). The government made this request pursuant to Federal Rule of Criminal Procedure 31(c), which authorizes conviction on any “offense necessarily included in the offense charged.” The court accepted the government’s request and found Brewer guilty of possessing more than 5 grams of cocaine base under § 844(a). He was sentenced to two concurrent terms of 110 months. Brewer appeals.
In United States v. Hill, 196 F.3d 806 (7th Cir.1999), we recognized that simple possession of a controlled substance is a lesser-included offense of possession with intent to distribute because “simple possession is possession with intent to distribute minus intent to distribute.” Hill, 196 F.3d at 808. Brewer, however, was convicted of possession of cocaine base, and Hill, citing United States v. Michael, 10 F.3d 838 (D.C.Cir.1993), acknowledged that § 844(a) creates a separate crime of possession of cocaine base that is not a lesser-included offense of possession with intent to distribute a controlled substance under § 841(a)(1). See Hill, 196 F.3d at 808; see also United States v. Steward, 252 F.3d 908, 909 (7th Cir.2001). Because Brewer was convicted on a possession charge that had an additional element— that the drug be “cocaine base” — the district court erred in finding him guilty as it did under the third sentence of § 844(a). The only appropriate lesser-included offense of the drug charge alleged in Brewer’s indictment is simple possession under the first sentence of § 844(a), and so, under 28 U.S.C. § 2106, we vacate his drug conviction and remand the case to the district court with directions to enter a judgment on the true lesser-included offense.
*925In remanding this case, we note that the record is unclear regarding how Brewer’s erroneous drug conviction affected his 110-month sentence on the firearm charge. If Brewer were convicted of the true lesser-included offense, any grouping of offenses would not be allowed under U.S.S.G. § 3D1.2. Any calculation of the combined offense level would also have been tainted by either (1) the court’s inability to group, or (2) Brewer’s improperly inflated base offense under the erroneous drug conviction. This problem is exacerbated by the fact that it is not clear whether the court imposed any increases for specific offense characteristics. Therefore, at this time, based on this record, we voice no opinion regarding the continued validity of the sentence Brewer received on the firearm charge. That will be a matter for the district court to consider upon remand.
REVERSED and REMANDED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217860/ | ORDER
Millend Gupta sued his former employer, the University of Wisconsin System, *926and several of its employees (collectively “defendants”), alleging that they refused to extend his tenure clock and denied him tenure based on his national origin and race in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2000e-17. The matter proceeded to a jury trial and defendants prevailed. Gupta’s principal challenge on appeal is to a pretrial ruling of the district court to exclude certain deposition testimony on relevancy grounds. We affirm.
Facts
Gupta is an Indian male who teaches interior design, architecture, and environmental design at the college and graduate levels. He has a master’s degree in architecture and a Ph.D. in environmental design. In 1990 he began teaching at the University of Tennessee in a tenure-track position. In 1996, however, Gupta left Tennessee with his wife so that she could pursue academic opportunities elsewhere, and he was never considered for tenure. Gupta moved with his wife to Milwaukee, Wisconsin, where in 1997 the University of Wisconsin hired him in a tenure-track position to teach in the Department of Environment, Textiles, and Design at the School of Human Ecology. From 1997 through 2000 Gupta worked as an assistant professor and taught classes at both the Madison and Milwaukee campuses. (In Milwaukee, Gupta taught classes at the School of Architecture and Urban Planning.)
When he was hired, Gupta was informed by the Dean of the School of Human Ecology that university policy required him to be reviewed for tenure after three years— which in Gupta’s case meant the conclusion of the 1999-2000 academic year. (Professors with no previous teaching experience typically were not reviewed for tenure for six years, but Gupta was not eligible for this longer tenure clock because of his six years’ experience at the University of Tennessee.) At the time, the Dean also informed Gupta that the Faculty Senate was attempting to modify the applicable policies and that Gupta’s tenure clock could be extended once that modification occurred. When the policy was modified in 1999, Gupta sought to extend his tenure clock until the end of the 2002-2003 academic year. The new procedures required Gupta to request an extension from his department first, and, if the vote was favorable, the department would petition the School of Human Ecology’s executive committee for the extension.
Both Gupta’s department committee and the school’s executive committee voted not to extend his tenure clock. The department committee noted that the extension was unnecessary because (1) its review of Gupta’s tenure application would fully credit his prior service at Tennessee, and (2) Gupta had no research projects that he needed to complete before his tenure review. The school executive committee provided no reasons for its decision.
After denying Gupta’s request to extend his tenure clock, the school executive committee reviewed his application and in March 2000 decided not to award him tenure. Although Gupta repeatedly sought to obtain the committee’s reasons, the committee never gave him an explanation.
Gupta timely filed a charge of discrimination with the EEOC and received a right-to-sue letter in September 2001. He filed this suit in December 2001, alleging that the defendants discriminated against him based on his race and national origin when they refused to extend his tenure clock and denied him tenure.
During discovery Gupta deposed Alton J. DeLong, a former colleague and supervisor on the faculty at Tennessee, who testified about Gupta’s academic accom*927plishments and abilities. DeLong stated that Gupta had numerous academic strengths, including analyzing statistical evidence, developing interview techniques, and evaluating research data. DeLong also stated that he had observed Gupta’s “ability to design research, his problem-solving skills, his ability to comprehend the nature of a research problem, his methodology skills, and his ability to evaluate research data” and noted that “[w]ith regard to all of those [skills] he was very competent and very capable.” Finally, DeLong remarked that at Tennessee, Gupta “was making satisfactory progress toward tenure, and there was no question that his work was acceptable.” After examining Gupta’s recent curriculum vitae, DeLong praised the numerous grants Gupta had received, the many conferences at which he had presented, and the many journal papers he had submitted. Because DeLong lived in Tennessee and could not appear at the trial, the parties worked together to prepare a narrative deposition summary of DeLong’s testimony.
Before trial, however, the defendants filed a motion in limine seeking to exclude DeLong’s testimony on relevancy grounds. The defendants argued that because De-Long knew “absolutely nothing” about the University of Wisconsin and had no contact with Gupta while he was working at the university, his opinion was not relevant to the tenure decision. Moreover, the defendants noted, DeLong’s testimony did not provide any new information bearing on the tenure decision because the executive committee’s consideration of Gupta’s candidacy for tenure included Gupta’s accomplishments at Tennessee.
The district court agreed with the defendants that the testimony was irrelevant and granted their motion. Judge Shabaz noted that “the [tenure] decision is based upon what the decisionmaker had at the decisionmaker’s time of making the decision” and ruled that DeLong’s testimony was irrelevant since the executive committee did not have it at the time they denied Gupta’s tenure application. Judge Shabaz explained that this case wasn’t any different than countless others where a witness is later found and points out “all the things that [the decisionmaker] should have considered” about “why [Gupta] was so great.”
At trial Gupta testified that throughout his three years at Wisconsin, numerous members of the department opined that his tenure clock would likely be extended (to provide him with more time to finish research projects and gain teaching experience) and these colleagues confirmed that he was making sufficient progress towards tenure. Given these comments and the strength of his qualifications, Gupta argued that the decision to deny his tenure clock extension (and to deny him tenure) could only have been due to discrimination. But evidence was also presented at trial by several professors involved with Gupta’s tenure decision who testified that they voted against extending Gupta’s tenure clock because he lacked the qualifications necessary in teaching, research, and scholarship. These professors also testified that their consideration of Gupta’s qualifications for tenure did include a review of Gupta’s record at Tennessee.
Hearing that his performance at Tennessee had been taken into account in the tenure review, Gupta apparently sensed that DeLong’s favorable testimony could have bolstered his case. Gupta sought reconsideration of Judge Shabaz’s earlier decision to exclude DeLong’s testimony. Gupta argued that since the tenure committee considered his record at Tennessee, DeLong’s statements were in fact relevant to the committee’s consideration of his *928qualifications. Judge Shabaz denied Gupta’s request and reiterated that DeLong’s testimony would only “say or imply that [Wisconsin’s tenure] decision was wrong” and that it was irrelevant because DeLong “was not part of the [tenure] selection” committee.
Discussion
On appeal Gupta argues that the district court erred in granting defendants’ motion in limine to exclude the DeLong testimony on relevancy grounds. Gupta maintains that the testimony was relevant because it undermines the defendants’ determination that he was not a qualified tenure candidate and shows that the defendants’ reason was actually pretext. Specifically, Gupta contends that the defendants had so “befoul[ed] the view of the plaintiff in the minds of everyone else in the workplace” that “it was impossible for [Gupta] to produce a witness from his department or the School of Human Ecology who was personally involved as a decision maker and disagreed with the decision of the majority.” Thus, he argues, the exclusion of the DeLong testimony prevented him from rebutting the defendants’ argument that he was not qualified and deprived the jury of evidence necessary to analyze whether the defendants could have honestly concluded that Gupta was not qualified for tenure. Although Gupta claims that he is not asking this court to second-guess the decision of the tenure committee, he nevertheless argues that DeLong’s testimony is “relevant to show that [Gupta] is in fact a qualified academician and scholar and has in fact demonstrated the excellence required to be a bona fide candidate for tenure at a place such as Wisconsin or Tennessee.”
We review a district court’s application of evidentiary rules to the facts for abuse of discretion. United States v. Centrac-chio, 265 F.3d 518, 524 (7th Cir.2001). We will not grant a new trial unless the result reached was “inconsistent with substantial justice,” Fed.R.Civ.P. 61, and this standard is satisfied only when a “significant chance exists” that the evidentiary error “affected the outcome of the trial.” Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1082 (7th Cir.1998). Because this case reaches this court after Gupta’s claims were rejected by a jury, this court reviews the facts in the light most favorable to the verdict. Schobert v. Ill. Dept. of Transp., 304 F.3d 725, 728 (7th Cir.2002).
To prove discrimination, Gupta must show more than that he was a qualified tenure candidate or even that the defendants’ reason for denying him tenure was “mistaken, ill-considered, or foolish.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.2002) (internal citations omitted). He must show that the defendants’ reason was a lie. Id. For DeLong’s testimony to be relevant, therefore, it must advance the inquiry into whether the defendants’ lied when they said that they denied Gupta’s tenure clock extension (and correspondingly, tenure) because he was not a qualified tenure candidate. See F.R.E. 401, 402; E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 533 (7th Cir.2001) (en banc) (Flaum, C.J., concurring) (Relevant evidence “need not conclusively decide the ultimate issue in a case, nor make the proposition appear more probable, but it must in some degree advance the inquiry.” (internal citations omitted)). DeLong’s testimony, however, discusses only Gupta’s qualifications and does not provide any information about the motivations of the department and executive committees. Judge Shabaz thus did not abuse his discretion in excluding it as irrelevant. See Council 31, Am. Fed’n of State, County, and Mun. Employees, AFL-CIO v. Doherty, 169 F.3d 1068, 1075 (7th Cir.1999) (upholding district court’s *929exclusion of testimony that did not rebut employer’s stated reasons for taking allegedly discriminatory action).
Conclusion
Judge Shabaz did not abuse his discretion when he granted the defendants’ motion in limine. Accordingly, we affirm the district court’s judgment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217862/ | ORDER
Sergio Gutierrez pleaded guilty to conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); as part of his plea agreement, the government dismissed several related charges. The district court imposed a 262-month sentence of imprisonment, to be followed by five years of supervised release, along with a fine of $200 and the normal special assessment of $100. Thinking better of things, Gutierrez filed a notice of appeal (which was late, but which was later saved by the district court’s decision to grant his motion for an extension of time). Initially, he raised two issues for this court’s consideration: first, that his trial counsel had provided ineffective assistance by failing to remind the district court of a pending request for a downward departure in sentencing; and second, that his sentence was imposed in violation of Apprendi v. New *937Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In his reply brief, however, Gutierrez notified this court that he wished to withdraw the ineffective assistance argument, so that he could preserve it for a possible future collateral attack. As we have often noted, see United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003); United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002); United States v. Farr, 297 F.3d 651, 657 (7th Cir.2002), this is by far the wiser course, because information outside the trial record is almost always necessary to evaluate such a claim. We therefore grant Gutierrez’s request, and proceed to the Apprendi argument.
The essence of Gutierrez’s Apprendi argument rests on the fact that the indictment taken as a whole mentioned only 53 kilograms of cocaine, but the prosecution proved by a preponderance of the evidence at the sentencing hearing that more than 150 kilograms should be attributed to him. He also argued that his offense level should not have been increased by two under section 2Dl.l(b)(l) of the United States Sentencing Guidelines, which authorizes such an increase when the defendant possessed a dangerous weapon during the commission of the offense (a fact that appeared nowhere in the indictment). Both his drug quantity argument and his weapons enhancement argument, however, can affect only the determination of the appropriate guideline range applicable to his offense. The indictment properly charged, and he admitted in his guilty plea, that he possessed with intent to distribute more than five kilograms of cocaine, which was enough to subject him to a statutory maximum sentence of life in prison. See 21 U.S.C. § 841(b)(1)(A)(ii)(II). This court has made clear on a number of occasions that Apprendi applies only to the statutory maximum, not to the guideline range. See United States v. Collins, 272 F.3d 984, 987 (7th Cir.2001), cert. denied, 535 U.S. 1067, 122 S.Ct. 1938, 152 L.Ed.2d 842 (2002); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000).
Gutierrez’s counsel in this court commendably has acknowledged this line of cases, and he assured the court that he has raised the Apprendi argument for the purpose of preserving his client’s rights in the future, should the Supreme Court conclude that the logic of Apprendi indeed should be extended to guideline determinations. That is his right. To the extent he may also be asking us to revisit this issue, however, we respectfully decline. Under the established law of this circuit, neither the calculation of the drug quantity on which Gutierrez’s sentence was based nor the imposition of the firearms enhancement was subject to the rules set forth in Apprendi.
We therefore Affirm Gutierrez’s sentence. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217863/ | ORDER
Starting in July 1997, Emanuel Wright was employed by Efficient Lighting Systems, Inc., an electrical contracting company. Wright, the company’s only African-American employee, advanced during his tenure from “helper” to “apprentice” and then from “apprentice” to “leadman.” But his ascent through the Efficient ranks was clipped short when Sean Smith, Efficient’s owner and president, abruptly fired Wright in February 2000. Suspecting that discriminatory and retaliatory motives lay behind his termination, Wright filed this suit pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Efficient countered with a motion for summary judgment. The district court granted that motion, reasoning that Wright had collected insufficient evidence to prove his suspi*939cions. Reviewing the facts in the light most favorable to Wright, the non-moving party, see Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir.1999), we arrive at a different conclusion, and thus vacate the district court’s judgment and remand the case for further proceedings.
As relevant to this case, our narrative picks up in June or July 1999, when Smith moved Wright from a jobsite where he was the leadman after a new worker complained that “he could not work with Wright.” When Wright questioned one of Efficient’s managers, Lee Scrogham, about why he had been shifted to another jobsite, Scrogham told Wright that he had seen Wright walking around the jobsite with his “soul brother walk.” Wright informed Smith of this conversation, and asked whether the move had been racially motivated. Smith told him it wasn’t, and said “not to worry about it” because Smith would talk to Scrogham and had several other jobs Wright could work. Wright continued working as a leadman at these other jobs, although most of the time he was the only Efficient employee at the jobsite.
On January 21, 2000, Wright met with Smith to discuss “his future with the company.” Wright felt that other, newer employees were getting choice inside jobs while he regularly had to work outside in cold weather. He also noted that he was often assigned to work under other lead-men, but that other leadmen were not assigned to work under him.
Despite this meeting, on Wednesday, February 2, 2000, Wright was assigned to work under leadman Jay Holycross at the Prism Communications jobsite, where Efficient was installing smoke detectors. Two helpers, Damon Turk and Christine Norris, were also assigned to the job, most of which had already been completed. On Thursday Smith provided Wright a revised blueprint that required Wright to reprogram approximately 25 smoke alarms. At that time, Wright informed Smith that he needed “special boxes” to correctly install the remaining fire alarm strobe lights. Smith told Wright he would call the manufacturer regarding the boxes.
The next day, leadman Holycross issued job assignments and left the jobsite. Wright spent the morning installing ceiling smoke detectors and waiting to hear back from Smith. At about 10:30 a.m., Wright contacted Smith to check the status of the boxes; Smith said he had forgotten to call the alarm company but that Wright should “stand by” and Smith would get back to him. Wright, Turk, and Norris then took lunch.
When they returned to the job, Wright still had not heard from Smith. Unable to proceed with installing the fire alarm system without the boxes, Wright suggested that Turk and Norris dean up materials in a back room; he could not order them to do so because he was not the leadman on the job. Norris declined to accept this assignment and went home. Turk stayed on the job but simply played a cell-phone computer game.
Wright, on the other hand, continued working. He reviewed the new blueprints, confirmed that necessary installation equipment was at the jobsite, familiarized himself with the fire alarm installation procedures, and identified several areas where already-installed components did not comply with the revised blueprints. He also fielded questions from workers at another job where he was leadman.
Still not having heard from Smith, Wright finally called him again around the 3:30 p.m. quitting time. He told Smith of the improperly installed components he had identified, and informed Smith that he was unfamiliar with some of the installa*940tion equipment and would need to be trained. Wright also said that he needed to speak with Smith regarding Turk and Norris’s refusal to clean the back room. Smith and Wright scheduled a Monday morning meeting to address these issues.
Later that same day, however, Smith received a call from Mike Meharg, the project manager for the general contractor at the Prism site. Meharg, according to Smith, was “very upset and indicated that the crew that I had on site had not performed any work all afternoon.” Meharg told Smith his crew had “sat around and read the newspaper all afternoon,” and that Meharg wanted a new crew on site Monday so that the fire alarm system would be installed on time. Although Smith knew that contractors commonly made such demands, Meharg’s company was a very good Efficient customer and Meharg was “mad.”
Endeavoring to find out what had happened that afternoon at Prism, Smith called Turk at home. Turk told him that he and Wright had not done any work that afternoon and that Wright had given Norris permission to go home. Smith then called Wright to get his side of the story. Wright denied Meharg’s allegations, but told Smith that he could not speak at that time because he was preparing dinner for his family. Smith agreed to discuss the allegations at their previously scheduled Monday meeting.
Wright and Smith met on Tuesday rather than Monday. By that time, however, Smith had already decided on a course of action. Without allowing Wright to make his case, Smith produced a copy of Efficient’s Information Handbook for Employees and cited a rule prohibiting “deliberate interference with or delaying or restricting of production or the production of others.” Violators of this rule could either be suspended or fired; Smith opted for the latter.
Several months later, Wright responded with this suit, alleging, as relevant here, discriminatory and retaliatory discharge. In granting Efficient’s summary judgment motion, the district court exhibited a dim view of these allegations. The court first noted that Wright had not produced direct evidence of discriminatory discharge. Then the court examined whether Wright had satisfied the four elements of McDonnell Douglas Corp. v. Green’s burden-shifting approach to establishing a prima facie case of discrimination, see 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (plaintiff can establish prima facie case by demonstrating that he or she 1) is a member of a protected class, 2) who was meeting his or her employer’s legitimate expectations, 3) but who suffered an adverse employment action, 4) not inflicted on a similarly situated employee outside the protected class). Assuming the first three elements, the district court decided that Wright had not identified a similarly situated employee of a different race who was treated more favorably. Thus, Wright could not establish a prima facie case of employment discrimination. Furthermore, the district court held that even if Wright could establish a prima facie case, and thus shift to Efficient the burden of enunciating a race-neutral reason for firing him, he could not prove that Efficient’s stated reason-Smith’s belief that Wright had performed no work that Friday afternoon-was a pre-textual he masking discriminatory motives.
The district court also found wanting Wright’s claim that he had been discharged in retaliation for his complaints at the January 21, 2000, meeting with Smith. For summary judgment purposes the court assumed that Wright had demanded race-neutral treatment at that meeting-demands protected by antidiscrimination *941laws and thus unlike simple griping about job assignments. It then reasoned that the mere temporal proximity of the meeting and Wright’s firing did not constitute direct evidence of retaliation. The district court also held that Wright could not prove retaliation through the indirect method, which adapts the McDonnell Douglas framework to the retaliation context. Although the district court assumed that Wright had established a prima facie case of retaliation under this method, the court reiterated its view that he could not disprove Smith’s stated reason for firing him, i.e., that Smith believed Wright had not performed any work at the Prism jobsite on the preceding Friday afternoon. Thus, the court held, Wright could not establish retaliation indirectly.
On appeal, Wright challenges all these conclusions. He first contends that he satisfied the fourth prong of McDonnell Douglas in two ways: 1) he offered evidence that — contrary to Smith’s stated reason for firing him — he did indeed perform work that Friday afternoon at Prism; and 2) he identified a similarly situated white employee who was treated more favorably. Then he argues that he established a retaliation claim because Smith must have known that he worked that Friday, and therefore Smith’s stated reason for firing him was pretext. We address these arguments out of turn because the first and third are really almost identical attacks on the district court’s pretext ruling; they thus logically follow the second, which attempts to establish Wright’s prima facie case. See Jones v. Union Pac. R.R., 302 F.3d 735, 741-42 (7th Cir.2002) (prima facie case is condition precedent to pretext analysis, but order may be adapted to fit particulars of case). For simplicity’s sake and because they are analyzed under the same rubric, we also consider Wright’s § 1981 and Title VII claims simultaneously. See Alexander v. Wis. Dep’t of Health and Human Servs., 263 F.3d 673, 681-82 (7th Cir.2001).
Contending that he has identified a similarly situated white employee who was treated more favorably than he, Wright points to Allen Reddick, who like Wright worked as a leadman and reported directly to Smith. Reddick, the parties agree, falsified a worker’s compensation claim but was not fired. Wright argues that he and Reddick are similarly situated because falsifying a worker’s compensation claim is listed in Efficient’s handbook in the same offense category as the offense for which Wright was terminated, indicating that both offenses have similar culpability levels.
Despite the apparent similarities between their situations, the district court concluded that Wright and Reddick are not similarly situated because Reddick ultimately admitted his misconduct and agreed to repay the falsified claim. Wright, on the other hand, denied that he had failed to work when Smith called him at home. In reaching its conclusion that Reddick’s acceptance of responsibility distinguished his situation from Wright’s, the district court relied on Spath v. Hayes Wheels Int’l-Ind., Inc., 211 F.3d 392 (7th Cir.2000). In Spath, an employee was hurt while horse-playing in his employer’s factory. He filed a report of the incident claiming to have been hurt while working. Another employee who witnessed the incident agreed. However, the second employee ultimately recanted his false report, and truthfully explained what had happened. The company did not fire him. The company did fire the first employee, who twice previously had falsified company documents and who confessed his misconduct only at the eleventh hour, when it became clear that he would be terminated. In the first employee’s discriminatory dis*942charge suit, we held that the second employee’s recantation and infraction-free record distinguished him from his coworker such that no discriminatory intent could be inferred from their disparate treatment. See id. at 397.
There are several reasons why Spath is inapposite to this case. First, in Spath there was no question that the plaintiff had in fact engaged in misconduct. Here, whether Wright performed work at Prism remains a central contested issue. Second, in Spath both employees were given equal opportunities to explain their version of events. See id. at 396-97. Here, Wright was never given a chance to discuss with Smith the allegations against him, as Smith fired him as soon as their Tuesday meeting commenced. This harsh response contrasts with Smith’s lenient treatment of Reddick, who confessed only after another employee informed on him but who was still allowed to work a deal to retain his job. Finally, unlike the two employees in Spath, Reddick and Wright apparently had identically clean disciplinary records.
Efficient also contends that Reddick’s and Wright’s offenses are vastly dissimilar because Wright’s offense — slowing down production at a jobsite — adversely affected Efficient’s professional relationship with a long-time customer, whereas Reddick’s false worker’s compensation claim had no such direct negative repercussions on Efficient’s professional reputation. As Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir.1999), makes clear, however, these arguments are not appropriate for summary judgment. In Stalter, defendant Wal-Mart claimed in a motion for summary judgment that a black employee’s stealing was dissimilar from a white employee’s lying, even though both offenses were classified as “gross misconduct.” We rejected this claim, concluding that where two employees commit “gross misconduct” but only one is fired, the defendant must explain this discrepancy to the jury (absent a non-pretextual rationale). Id. Here, both Reddick and Wright-two leadmen with clean records-were charged with offenses in the same offense category, yet only Wright was fired. Wright has therefore established a prima facie case.
Additionally, our de novo review of the summary judgment evidence also leads us to conclude that both Turk and Norris— the two white employees who indisputably failed to work at Prism but who were not fired — were similarly situated to Wright. Efficient contends that Wright’s situation differs from these employees because Wright was a supervisor, and they only helpers under his direction. But Wright counters that he was not working in a leadman capacity at Prism, and consequently had no supervisory role or authority at this jobsite. Because Wright is the non-moving party, we must assume that his version is true, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and regardless it seems fairly clear from the record that Holycross was the sole supervisor at Prism. Wright, like Turk and Norris, received his assignments from Holycross and, again like Turk and Norris, had to give Holycross his time-card in order to get paid for his work. Thus, Turk and Norris are similarly situated to Wright.
Wright’s identification of similarly situated white employees who were treated more favorably than he established his prima facie case and shifted to Efficient the burden of enunciating a nondiscriminatory reason for his termination. The company has carried this burden: Smith claims to have fired Wright because he believed that Wright had not performed work at Prism that Friday afternoon. Wright’s task, then, is to cite evidence *943from which a jury could infer that Smith’s reason was not only false but also a cover for racial discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Jones, 302 F.3d at 742-43 (Where a defendant-employer has come forward with a nondiscriminatory reason for an employment action, a plaintiff “must produce significantly probative admissible evidence from which the trier of fact could infer that the employer’s reason was false and that the actual reason was discriminatory.”) (citations and quotations omitted).
In attempting to cast doubt on the honesty of Smith’s stated termination rationale, Wright focuses on the telephone call he made to Smith just before Friday’s quitting time. Essentially, Wright contends that Smith could not have honestly believed that he had not worked after he provided a detañed description of his afternoon activities. Thus, argues Wright, Smith’s motivation in firing him was not what Smith claims. It does appear strange, perhaps unreasonable, that Smith, after telling Wright to “stand-by” whüe he checked on the parts needed to proceed with the job, would have thought Wright hadn’t done any work after Wright provided him a fairly detaüed accounting of required additional trouble-shooting, equipment, and training. As we have noted, “a determination of whether a belief is honest is often conflated with analysis of reasonableness. After all, the more objectively reasonable a belief is, the more likely it wül seem that the belief was honestly held.” Flores v. Preferred Tech. Group, 182 F.3d 512, 516 (7th Cir.1999).
On the other hand, rationality is not the sine qua non of honesty. Smith, who in deposition claimed not to remember the detaüs of his afternoon conversation with Wright, had received an angry phone call from a valued customer informing him that his crew had “read the newspaper” all afternoon, and then upon investigation received confirmation of the allegation from an on-site employee, Turk. It was Smith’s prerogative to believe the customer and Turk over Wright, and the federal courts usually wiñ not second-guess such judgments absent proof of discrimination, no matter how arguably erroneous they might appear. See Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir.1997) (“[A] reason honestly described but poorly founded is not a pretext as that term is used in the law of discrimination.” (quotations and citations omitted)).
Given our reluctance to act as a “super-personnel” department, we would probably affirm the district court’s judgment if apparent irrationality were the only thing causing us to question the motives of Smith’s termination decision. But there is something more-Smith’s faüure to fire both Norris and Turk, white employees who also allegedly faded to work that afternoon at Prism. See Gordon v. United Airlines, Inc., 246 F.3d 878, 892 (7th Cir.2001) (“A showing that sinularly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer’s proffered legitimate, nondiscriminatory reason for the adverse job action was a pretext for racial discrimination.”). Such disparate treatment of simüarly situated white employees reinforces the suspicion that Smith’s termination decision was not simply and therefore innocently irrational, but rather the product of racial discrimination. Certainly from these facts a reasonable jury could so infer, especially if during cross-examination Smith’s claims not to remember his afternoon conversation with Wright were called into question. Summary judgment for Efficient on Wright’s discriminatory discharge claim was therefore inappropriate.
*944Our holding that Wright presented enough evidence to survive summary judgment on the question of pretext also revives his claim that he was fired in retaliation for his complaints at the January 21 meeting. The district court assumed that Wright had stated a viable retaliation claim under the indirect method of proving retaliation adapted from the McDonnell Douglas framework. See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir.2002). But the court went on to rule that Wright could not disprove Smith’s reason for firing him; his retaliation claim thus failed. Wright can, however, prove Smith’s reason was pretext, and so the retaliation claim must be reinstated.
Accordingly, we VACATE the district court’s judgment and REMAND the case for further proceedings. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217864/ | ORDER
Henry Garcia Liranzo pleaded guilty to one count of being present in the United *945States without permission after having been deported following an aggravated felony, 8 U.S.C. § 1326(a), (b). The district court sentenced him to 77 months’ imprisonment. Mr. Liranzo filed a notice of appeal, but his appointed counsel now seeks 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 issue for appeal. Pursuant to Circuit Rule 51(b), Mr. Liran-zo was invited to respond to counsel’s motion to withdraw, but he did not. Because counsel’s brief is facially adequate, we limit our review of the record to those potential issues identified in it. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). We agree with counsel that an appeal raising the potential issues would be frivolous and therefore grant the motion to withdraw and dismiss Mr. Liranzo’s appeal.
In May 2000 Mr. Liranzo was convicted of cocaine trafficking under New York law. N.Y. Penal Law § 220.39 (Consol.2003). He was subsequently deported, and he never applied for readmission to the United States. He returned to the United States without permission, and in March 2000 was arrested in Milwaukee, Wisconsin. Because his deportation had followed the conviction for cocaine trafficking, an aggravated felony under 8 U.S.C. § 1101(a)(43)(b), Mr. Liranzo was subject to the increased penalties of 8 U.S.C. § 1326(b). He pleaded guilty pursuant to a written plea agreement and was assisted at the plea hearing by a translator.
Counsel first considers whether it would be frivolous to challenge Mr. Liranzo’s competence to enter a guilty plea. A defendant is competent to plead guilty if he has a “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” and “ ‘a rational as well as factual understanding of the proceedings against him.’” United States v. Collins, 949 F.2d 921, 927 (7th Cir.1991) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Although the judge never stated on the record that Mr. Liranzo was competent to plead guilty, the court did ask him the appropriate questions to establish his competency. The court asked him, for example, whether he had a history of mental illness, whether he understood and had sufficiently consulted with his attorney about his guilty plea, and whether he was satisfied with his attorney’s representation. The judge was not required to hold a formal competency hearing because neither party suggested he was incompetent and nothing Mr. Liranzo said during the plea colloquy gave the court reasonable cause to question his competence. See Collins, 949 F.2d at 924 (court is not required to hold competency hearing unless there is reasonable cause to believe defendant is incompetent). We thus agree with counsel that it would be frivolous to contest Mr. Liranzo’s competence to plead guilty.
Counsel next considers whether it would be frivolous to challenge Mr. Liranzo’s plea on the ground that it was not taken in compliance with Federal Rule of Criminal Procedure 11. But Mr. Liranzo has not indicated that he wants to withdraw his guilty plea, and we have held that counsel generally should not raise a Rule 11 argument on appeal, or even explore the question in an Anders submission, unless the defendant wants his plea set aside. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002); see also United States v. Maeder, 326 F.3d 892 (7th Cir.2003). In any event, we agree with counsel that it would be frivolous to challenge the court’s compliance with Rule 11 because the transcript reveals that the court substantially complied with the rule.
*946Counsel next considers whether it would be frivolous to argue that the court erred in calculating Mr. Liranzo’s criminal history points, a challenge that we would review deferentially. United States v. Buford, 582 U.S. 59, 60, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001). Mr. Liranzo was arrested in October 2001 for a drug offense and then arrested in February 2002 for bail jumping and two more drug offenses. He was convicted of all four crimes and the district court assessed him one criminal history point for the October 2001 crime and another point for the February 2002 crimes. Because all four charges were consolidated for trial, Mr. Liranzo argued at his federal sentencing that the court should find them “related” and treat them all as a single offense in calculating his criminal history. Mr. Liranzo raised a similar challenge at sentencing to the court’s treatment of several crimes he committed in New York. He was arrested in May 1998 for possession of cocaine. When he failed to appear in court for that ease, he was arrested and charged with bail jumping. In between those two arrests, Mr. Liranzo was also arrested for the sale of a controlled substance. He pleaded guilty to all three offenses. Mr. Liranzo initially argued at sentencing that all three convictions were related, but then changed tactics and argued that only the possession and bail jumping convictions were related. The court assigned three points to the possession conviction and two points to the bail jumping conviction. Mr. Liranzo argued that these New York convictions were related because they were part of a common scheme “not to be brought to justice.”
Section 4A1.2(a)(2) of the United States Sentencing Guidelines directs the sentencing court to count prior sentences in “unrelated” cases separately. If two crimes are separated by an intervening arrest, the inquiry ends there: the crimes by definition are “unrelated” and are counted separately. U.S.S.G. § 4A1.2, cmt. (n.3); United States v. Bradley, 218 F.3d 670, 673 (7th Cir.2000). Because all of the criminal history points Mr. Liranzo contested at sentencing were for crimes separated by intervening arrests, we agree with counsel that it would be frivolous to argue that the crimes were related. See United States v. Linnear, 40 F.3d 215, 224 n. 8 (7th Cir.1994) (even consolidated charges are unrelated if they are separated by an intervening arrest); United States v. Wilson, 41 F.3d 1403, 1404-05 (10th Cir.1994) (intervening arrest requires bail jumping charge to be counted separately from crime for which defendant was released on bail).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217865/ | ORDER
Christopher Robinson pleaded guilty to conspiracy to distribute cocaine, 21 U.S.C. § 846, 841(a)(1), and was sentenced to 188 months’ imprisonment as a career offender. Robinson filed a notice of appeal, but his attorney has moved to withdraw, asserting that there are no nonfrivolous issues for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We notified Robinson of his right to respond to counsel's brief, but he has not done so. See Cir. R. 51(b). Thus, because counsel’s Anders brief is facially adequate, our review is limited to the potential issues that counsel discusses. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). We agree that an appeal based on those potential issues would be frivolous, so we grant counsel’s motion to withdraw and dismiss the appeal.
Counsel first notes that Robinson does not want to withdraw his guilty plea and thus correctly concludes that it would not be appropriate to challenge on appeal the knowing and voluntary nature of his plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel next discusses potential challenges to Robinson’s sentence. Counsel considers whether Robinson could argue that the district court erroneously calculated his criminal history points on the premise that three of his offenses were related. We agree with counsel, however, that such an argument would be frivolous because the offenses were separated by intervening arrests and thus were not related. See U.S.S.G § 4A1.2, comment, (n.3). In any event, Robinson’s status as a career offender mandated a criminal history category of VI. See U.S.S.G. § 4B1.1(b); United States v. Gilliam, 255 F.3d 428, 435 (7th Cir.2001). Counsel also questions whether the court erred in considering convictions that were more than ten years old when Robinson committed the current offense, but counsel is correct that the presentence report did not include such convictions and that the court did not consider any convictions more than ten years old. Thus, it would be frivolous to challenge Robinson’s sentence on that ground. Additionally, counsel considers whether Robinson could challenge the district court’s refusal to depart downward based on the overrepresen-tation of his criminal history and his extraordinary acceptance of responsibility. The district court-recognized its discretion to depart based on an overrepresentation of criminal history, see U.S.S.G. § 4A1.3, *948but refused to do so because it felt that category VI accurately reflected Robinson’s history. Thus, counsel is correct that it would be frivolous to raise this issue on appeal because we would lack jurisdiction to review the court’s discretionary decision. See United States v. Griffin, 150 F.3d 778, 787-88 (7th Cir.1998). As for the court’s refusal to depart based on extraordinary acceptance of responsibility, the court erroneously thought that it did not have the discretion to depart on that basis. See United States v. Grasser, 312 F.3d 336, 340 (7th Cir.2002); United States v. Bean, 18 F.3d 1367, 1369 (7th Cir.1994). Nevertheless, counsel is correct that it would be frivolous to raise the issue on appeal because the court made clear that, even if it had the authority, it would not depart from the guidelines because there was nothing extraordinary about Robinson’s acceptance of responsibility.
Accordingly, 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/7217867/ | ORDER
In September 2001 a jury found Phillip Charleston guilty of two counts of carrying a firearm during a violent crime, 18 U.S.C. § 924(c)(1), one count of obstructing commerce by robbery, 18 U.S.C. § 1951, one count of carjacking, 18 U.S.C. § 2119, and one count of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). The events underlying these convictions were Charleston’s participation in an armed robbery of a Kentucky Fried Chicken in July 2000, and his participation in a carjacking of a United Parcel Service delivery truck and robbery of its driver in November 2000. Charleston was sentenced to a total of 492 months’ imprisonment, concurrent terms of three years of supervised release for each count, $13,413.72 in restitution, and $500 in special assessments.
Charleston’s counsel filed a notice of appeal, but because he could not discern a nonfrivolous issue he now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Charleston was notified of his counsel’s motion, see Cir. R. 51(b), and has filed a response. We confine our review to the potential issues discussed in counsel’s facially adequate An-ders brief and Charleston’s response. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). Because we conclude that the potential issues identified by counsel and Charleston are frivolous, we grant counsel’s motion to withdraw and dismiss the appeal.
Counsel discusses one potential issue: whether the district court erred in denying Charleston’s motion to suppress evidence as being untimely. Shortly after the carjacking, an officer spotted the UPS truck in front of a residence at 862 Tennessee Street in Gary, Indiana. As the officer approached, he observed various packages scattered on the lawn of that residence and the one next door; he also noted that the door to 862 Tennessee Street was open. According to his testimony at trial, the officer believed the perpetrators of the carjacking to be inside, and so he entered the residence without a warrant. No one was inside, but the officer did recover more packages, a rifle, two red bandanas, and a traffic ticket issued to Charleston. On April 25, 2001, during Charleston’s arraignment, the district court ordered that any pretrial motions, including motions to suppress evidence, be submitted within ten days. Charleston did not file a pretrial motion regarding the search. During his trial in November, however, Charleston’s counsel made an oral motion to exclude evidence seized at 862 Tennessee Street, contending that the warrantless search violated Charleston’s Fourth Amendment rights. Counsel explained that Charleston’s mother owned the residence and that Charleston lived there on weekends (he lived with his sister during the week). The district court concluded that Charleston had waived this issue by not presenting it in a pretrial motion, and that he had not presented good cause justifying relief from waiver.
Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure requires that motions to suppress evidence be made before trial. United States v. Mancillas, 183 F.3d 682, 703-04 (7th Cir.1999); United States v. Evans, 131 F.3d 1192, 1193 (7th Cir.1997). The district court may set a deadline by which parties must make such motions, Fed.R.Crim.P. 12(c), and parties waive any Rule 12(b)(3) defenses or objections they failed to raise by that deadline, Fed.R.Crim.P. 12(e) (formerly Rule 12(f)). The court, however, may grant relief from waiver if a party who missed the deadline *953shows good cause. Id. In an attempt to show good cause, Charleston’s counsel explained that he first learned during the trial that Charleston lived at the residence and explained that Charleston’s mother had been hospitalized for two months at the time of the search. We agree with the district court that this reason cannot establish good cause. First, counsel could have learned at any time from Charleston himself or his sister (who was prepared to testify) that Charleston lived at the Tennessee Street residence. Second, Charleston’s mother’s hospitalization ended months prior to the arraignment, and she was available in the months between the arraignment and the trial. Thus, we agree with counsel that an appeal based on this issue would be frivolous.
Charleston offers an additional potential issue for appeal: whether the district court erred in admitting written confessions he gave to police in the days following the carjacking, in which he describes his involvement in that crime and others. Prior to trial, Charleston moved to exclude his statements on the ground that he did not give them voluntarily; the district court held an evidentiary hearing and concluded that they were given voluntarily. Charleston contends in his Rule 51(b) response that he had attempted suicide the night before he confessed and was under the influence of mind-altering drugs at the time. But the confessions came after he signed a written waiver verifying he was not under the influence of drugs or alcohol. In addition, one of the interviewing officers testified that (1) Charleston stated he was not under the influence of drugs and explained he was “feeling fine” except for being “a little tired,” and (2) based on the officer’s experience, Charleston did not appear to be under the influence of drugs. Charleston did not testify and offered no evidence to contradict the officer’s testimony. The district court relied on this testimony in concluding that Charleston made the statements voluntarily. On appeal we would defer to the district court’s decision to credit the offer’s testimony unless it were “exceedingly improbable.” United States v. Huerta, 239 F.3d 865, 872 (7th Cir.2001). Because Charleston made no showing at the district court (and offers no reasons in his response) to suggest the officer’s testimony was improbable, an appeal on this issue would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. Charleston’s request that we appoint new counsel is DENIED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217868/ | ORDER
In 1998, Ms. Henry sustained serious injuries in an automobile accident when a Ford Explorer traveling in the opposite direction hit the dividing wall on the turnpike. After the accident, the owner of the Ford Explorer discovered that the tread of one of its tires had separated. He replaced the faulty tire and disposed of it. In August 2000, the Ford Explorer owner received a recall notice for the faulty tire.
Ms. Henry subsequently brought a products liability action against Bridge-stone/Firestone (“Firestone”). This case was removed to federal court and then transferred to the United States District Court for the Southern District of Indiana where cases of this sort had been consolidated under an order of the Judicial Panel on Multidistrict Litigation. The district court granted Firestone’s motion for summary judgment. It ruled that Ms. Henry had failed to establish by circumstantial evidence that her injury was caused by the alleged defect. For the reasons set forth in this order, we affirm the judgment of the district court.
1.
On July 26,1998, Ms. Henry was driving on the inside eastbound lane of the Turner Turnpike near Stroud, Oklahoma. At the same time, Daryl Mitchell was driving in his recently-purchased pre-owned Ford Explorer. The Explorer was towing another vehicle on a flatbed trailer on the inside westbound lane of the turnpike. Mitchell testified that he “felt a sudden jerk towards the rear of my vehicle” and then noticed that his trailer had lowered on the left side. R.20, Ex.l at 7-8. The Explorer jack-knifed “and hit into the center dividing wall on the turnpike. It bent my bumper, busted my taillight out and did some fender damage on the vehicle.” Id. at 8. Mitchell came to a stop and pulled over to the side of the road. He first examined the other damage, but finally examined the tire: “And the tire wasn’t blown out. It wasn’t like a blowout. It was just like the tread had separated on the top of the tire.” Id. at 9. In another deposition, Mitchell stated that, when he felt the initial jerk, his first impression was that it was in fact a blow-out. R.20, Ex.6 at 18.
At this time, Ms. Henry was driving on the opposite side of the turnpike at a speed of 70 to 75 miles per hour. She saw Mitchell’s Explorer hit the dividing wall. *956The impact caused the car being transported on the flatbed trailer to become temporarily airborne, and, from Ms. Henry’s vantage point, the vehicle appeared to be coming over the dividing wall into her lane immediately in front of her car. To avoid a head-on collision, she attempted to change lanes and lost control of her vehicle. As a result of the accident, she received serious injuries, was life-flighted to a hospital and remained unconscious for two days.
Mitchell, unaware that he had caused an accident on the opposite side of the road, changed his tire and later disposed of the faulty one. In August 2000, Mitchell received a recall notice for his Firestone ATX tires. All three of his other tires were of the exact make recalled. The recall notice states:
The tires in question may sustain tread belt separation, in which the outer steel belt and or tread of the tire separate from and may eventually become totally detached from the rest of the tire.
Tire tread belt separation can lead to a loss of control and a vehicle crash can occur, particularly if the driver engages in significant braking or steering before the vehicle is fully under control.
R.20, Ex.8 at 1. Ms. Henry eventually learned of Mitchell’s identity and brought suit against him in June 2000. At Mitchell’s deposition on November 17, 2000, Ms. Henry learned of the alleged defect in the tire. She amended her complaint and brought an action against Firestone. Mitchell settled with Ms. Henry and was dismissed from the suit.
Mitchell’s Explorer was pre-owned and had been purchased from a dealership two weeks before the accident. At the time of purchase, it had been operated for approximately 60,000 miles. Mr. Mitchell was completely unaware of the history or prior use of the tire. Ms. Henry’s counsel explained at oral argument that, in preparing the case, she had asked the car dealership if it knew the age of each of the tires when it sold the Explorer to Mr. Mitchell and that the car dealership had no information concerning the history or age of the tire. However, she also admitted at oral argument that she had failed to ask the dealership for the name of the person from whom it had purchased the car. Consequently, Ms. Henry never ascertained from the original owner the history, upkeep, use and age of the tire.
Firestone moved for summary judgment based in large part on the fact that Ms. Henry had failed to produce the tire. The district court granted Firestone’s motion. It held that, although production of the tire was not necessary to her case, Ms. Henry also had failed to establish by circumstantial evidence that the defect caused the injury. The district court held that the supporting affidavits submitted by Ms. Henry were insufficient to survive summary judgment. As to Mitchell’s affidavit, in which he explained that he had seen the tire separation at the scene of the accident, the court stated that this observation did “not support the conclusion that the alleged defect was a reasonably certain explanation for the result.” R.29 at 6. The court also noted that Ms. Henry had no personal knowledge on this issue and that the affidavit of Ms. Henry’s expert witness, Tom Curtis,1 merely expressed an opinion that plaintiff was not at fault. The affidavit did not offer an opinion “as to what actually caused Plaintiffs injuries.” Id. The court noted in a footnote that Ms. Henry also did not dispute the other common causes for the tire failure or tread separation. Consequently, the court concluded that Ms. Henry had *957“failed to provide sufficient evidence from which a reasonable jury could conclude that the alleged tire defect caused Plaintiffs injuries.” Id. at 7.
2.
We review a grant of summary judgment de novo. Summary judgment is “appropriate when, after construing the facts in the light most favorable to the nonmov-ing party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Harley-Davidson Motor Co. v. PowerSports, Inc., 319 F.3d 973, 980 (7th Cir.2003).
Firestone submits that Ms. Henry’s failure to produce the tire requires dismissal. The applicable state law, however, does not support that contention. The Supreme Court of Oklahoma has held that, under the law of that state, a plaintiffs failure to produce the allegedly defective product, when that failure is “in no way due to bad faith or responsibility on [the plaintiffs] part” does not require dismissal. Moor v. Babbitt Prods., Inc., 575 P.2d 969, 970 (Okla.1978). Indeed, in Moor, the Supreme Court of Oklahoma determined that the trial court had abused its discretion in dismissing a products liability case because the product had not been produced. Accordingly, we must examine the record to determine whether Ms. Henry produced sufficient evidence to survive summary judgment.
Under Oklahoma law,
[t]o maintain a cause of action under manufacturers’ products liability, the plaintiff must prove [1] the product was the cause of the injury, [2] that the product was defective when it left the control of the manufacturer, and [3] that the defect made the product unreasonably dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it.
Johnson v. Ford Motor Co., 45 P.3d 86, 91 n. 12 (Okla.2002). In short, the plaintiff must prove “that the defect directly caused his injuries.” Treadway v. Uniroyal Tire Co., 766 P.2d 938, 941 (Okla.1988) (emphasis added).
The plaintiff may prove causation by circumstantial evidence; however, the “'circumstantial evidence is not sufficient to establish a conclusion where the circumstances are merely consistent with such conclusion, or where the circumstances give equal support to inconsistent conclusions, or are equally consistent with contradictory hypotheses.” ’ Downs v. Longfellow Corp., 351 P.2d 999, 1005 (Okla.1960) (quoting 32 C.J.S. Evidence § 1039, p. 1101). The Supreme Court of Oklahoma explained that “where [the plaintiff] relies upon circumstantial evidence to prove causation, the circumstances proved must tend to support plaintiffs theory with reasonable certainty and probability, as opposed to other causal hypotheses,” although the plaintiff need not “prov[e] that his injury was not, or could not have been caused by factors other than” the alleged defect. Id. In other words, proof of causation “must be based upon probabilities, not possibilities.” Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187, 191 (Okla.1992) (internal quotation marks and citations omitted). The Tenth Circuit has stated that Oklahoma law requires the plaintiff to “show that there is a significant probability that the defendant’s products caused their injuries.” Blair v. Eagle-Picher Indus., Inc., 962 F.2d 1492, 1496 (10th Cir.1992).
The district court held that Ms. Henry’s evidence, which was primarily based upon affidavit, was insufficient to survive summary judgment. Under Federal Rule of Civil Procedure 56(e), “[supporting and opposing affidavits shall be made on per*958sonal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”
Certainly, Ms. Henry’s statement of causation in her affidavit2 was outside her personal knowledge and thus properly not considered. Also, Tom Curtis’ affidavit was not helpful in proving causation because he only testified that “the plaintiff did not contribute to causing her vehicle to go out of control and roll over, nor did she contribute to the cause of the injuries that she received.” R.20, Ex.7 at 2. Curtis did not state that a defect in the tire caused the accident; he just stated that Ms. Henry’s actions did not cause the accident.
Similarly, Ms. Henry’s tire expert, Morris Dingman, only stated that (1) he thought it more likely than not that the missing tire was of the same make as the other three; (2) that tires of that make had a design fault as acknowledged by a report prepared by Firestone and the recall of the tires; (3) that the defect could cause tread belt separation, which causes loss of stability; and (4) that tire failure on the Ford Explorer caused the accident. See R.21, Ex.5, 1-3. Significantly, Ding-man left out the crucial point. He did not assert that the Explorer’s tire failure (which neither party disputes happened) was probably caused by the defect in the ATX tires rather than other common causes of tread separation. He did not testify at all concerning the incidence of tire failure caused by either the defect or other common causes or state why it would be more probable, especially here where the history, age, and use of the tire are unknown, for a defect to have caused the tire failure rather than other common causes.
In like manner, the selections from Mitchell’s deposition that describe his observation of the separated tread do not indicate to a probability the cause for that separation. As testified to by Firestone’s experts, and not contradicted by Ms. Henry, there are multiple causes for why a tire tread would separate not related to the defect existing in some Firestone ATX tires. Many of these common causes for tread separation are related to the history, care and use of the tire. See R.17, Ex.l. Mr. Mitchell, as a two-week owner of the used car, lacked any knowledge of the history and prior use or care of the tire. Moreover, Ms. Henry has failed to bring forth any other evidence concerning the use, age, or history of the tire; counsel for Ms. Henry admitted at oral argument that she had not spoken with the prior owner of the Explorer to determine the tire’s history.
Thus Ms. Henry has failed to show, as she was required, that it was a probability that a defect caused the tire failure and thus caused her injuries. Rather, her evidence indicates that an alleged defect was one of many possibilities that would cause tread separation. Therefore summary judgment was appropriate.
3.
Although Ms. Henry’s inability to produce the tire is not fatal to her claim, her failure to show that the failure of the tire was probably, as opposed to possibly, caused by a manufacturing defect compels our conclusion that the district court was *959correct to grant summary judgment to Firestone.
AFFIRMED
. Tom Curtis testified as an accident reconstruction expert witness.
. Ms. Henry stated that the "defect in the Firestone ATX tire was the cause of my injuries.” R.20, Ex.2 at 2. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217869/ | ORDER
This is an easy case treading deep constitutional waters. John Jackubowski argues that his conviction for possessing a firearm after a felony conviction, 18 U.S.C. *960§ 922(g)(1), contravenes the Second Amendment and exceeds the power accorded Congress by Article I’s Commerce Clause. Although his brief cites to voluminous legal scholarship-he is not entirely isolated in his beliefs-his position is unsupported by any case law, even in the lone circuit to have adopted an “individual rights” interpretation of the Second Amendment. We therefore affirm.
In September 2000, an Oak Forest, Illinois, police officer observed Jackubowski driving his truck erratically and pulled him over. Jackubowski failed two field sobriety tests and could not produce a valid driver’s license or proof of insurance. The officer arrested him and searched the truck, finding two loaded semi-automatic handguns and an ammunition box containing over 50 bullets of various calibers.
The officer’s discovery led the state of Illinois to prosecute Jackubowski for unlawful weapons possession by a felon. 720 ILCS 5/24-1.1. The predicate felony was a 1995 federal conviction for unlawful weapons sales and making threats against the president; Jackubowski had spent almost 3 years in federal prison for those crimes, and was still on supervised release. To the state weapons charge Jackubowski pleaded guilty and was sentenced to 3 years in the Illinois Department of Corrections (“IDOC”).
Upon his release from the IDOC in December 2001, federal authorities took Jac-kubowski into custody, charging him with possession of a firearm by a felon, § 922(g)(1), based on the same two guns for which Illinois had prosecuted him. Jackubowski filed two motions to dismiss the indictment, raising Second Amendment and Commerce Clause arguments. These the district court denied. Jackubowski then entered a guilty plea and received a sentence of 32 months’ imprisonment and 3 years’ supervised release. He was also taken before Judge Coar for a hearing on whether he had violated the conditions of his supervised release from his 1995 conviction by possessing the handguns. The judge found that he had, and sentenced him to 18 months’ imprisonment to be served consecutively to the 32 months’ he’d just received. This appeal concerns only the new conviction.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const, amend. II. On appeal, Jackubowski argues that his conviction under § 922(g)(1) runs afoul of this amendment because, according to him, the constitutional language reserves to the states the power to regulate firearms. Additionally, he contends that the Commerce Clause, U.S. Const, art. I, § 8, cl. 3, did not provide Congress the power to enact § 922(g)(1).1
Neither of these arguments has merit. The first is foreclosed by the Supreme Court’s decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), which, however unclear it left the precise scope of the liberties shielded by the Second Amendment, see, e.g., Printz v. United States, 521 U.S. 898, 938-39 n. 1, 117 S.Ct. 2365, 138 L.Ed.2d 914 *961(1997) (Thomas, J., concurring) (noting that Miller did not attempt to define substantive right protected by Second Amendment), unambiguously held that the federal government can play some role in the regulation of firearms, see Miller, 807 U.S. at 178. See also Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (holding that 18 U.S.C.App. § 1202(a)(1), one of the predecessors to the current version of § 922(g)(1), did not “trench upon any constitutionally protected liberties”). Jackubowski’s argument that the Second Amendment reserves firearms regulation to the states (really something of a Tenth Amendment argument in disguise) is also doomed by the case law of this court, which has repeatedly held that federal regulation of firearms is constitutional. See, e.g., United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.2001) (neither Second nor Tenth Amendment infringed by federal firearm regulation); Gillespie v. City of Indianapolis, 185 F.3d 693, 706-07, 711 (7th Cir.1999) (same); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974) (Second Amendment not infringed by former § 1202). Even the Fifth Circuit, which, in holding that the Second Amendment guarantees an individual rather than collective right to bear arms has parted ways with this and every other circuit to have addressed the issue, does not believe that the amendment prevents the federal government from regulating firearms possession. See United States v. Emerson, 270 F.3d 203, 261 (5th Cir.2002) (upholding against constitutional attack § 922(g)(8), which precludes individuals under certain restraining orders from possessing firearms, and specifically noting that § 922(g)(1) is constitutional), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002). Compare Gillespie, 185 F.3d at 710-11 (collecting cases holding that Second Amendment protects collective, rather than individual, right to bear arms); Silveira v. Lockyer, 312 F.3d 1052, 1063 n. 11 (9th Cir.2002) (same).
Jackubowski’s contention that § 922(g)(1) exceeds Congress’s power under the Commerce Clause is equally flawed. Like other defendants before him, he contends that United States v. Lopez, 514 U.S. 549, 551, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which struck down the Gun Free Schools Act of 1990, 18 U.S.C. § 922(q), as an infringement upon states’ authority, should be read broadly to invalidate § 922(g)(1) as well. We have rejected Jackubowski’s argument again and again, noting that § 922(g) contains what the statute in Lopez did not-a specific requirement that the government prove that the firearm at issue had affected interstate commerce. See, e.g., Hemmings, 258 F.3d at 594; Gillespie, 185 F.3d at 704-05; United States v. Wesela, 223 F.3d 656, 659-660 (7th Cir.2000); Bell, 70 F.3d at 497-98. See also United States v. Wells, 98 F.3d 808, 811 (4th Cir.1996); United States v. Harkrider, 88 F.3d 1408, 1409 (5th Cir.1996); United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1996).
Our case law dealing with Jackubowski’s contentions is substantial and well-settled. The Supreme Court might some day tell us that we are wrong on these points. Until then we will adhere to our prior decisions.
AFFIRMED.
. Although Jackubowski’s written plea agreement did not expressly reserve his right to appeal, his guilty plea did not result in waiver of his appellate arguments for two reasons. First, Jackubowski’s counsel orally conditioned the guilty plea on a reservation of Jackubowski’s right to appeal the issues he now presents. The government agreed, and we respect oral reservations of the right to appeal. See United States v. Yasak, 884 F.2d 996, 999 (7th Cir.1989). Second, in United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995), we ruled that an attack on the constitutionality of § 922(g)(1) is jurisdictional, and thus cannot be waived. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224405/ | OPINION AND ORDER
S. ARTHUR SPIEGEL, Senior District Judge.
Before the Court are the following motions: Plaintiffs motion for an order to pay disputed death benefit proceeds (less its attorneys’ fees and costs) into the Court and to dismiss it with prejudice from this action (doc. 18), Defendant Marvin Shenkin’s memorandum in opposition (doc. 22), Plaintiffs reply (doc. 24) and Defendant Marvin Shenkin’s sur-reply (doc. 28)1; Defendant Marvin Shenkin’s Motion for Summary Judgment (doc. 17), Plaintiffs response (doc. 19), Defendant Marvin Dixon’s memorandum in opposition (doc. 20) and Defendant Marvin Shenkin’s pleading titled “Supplemental Memorandum” which the Court interprets to be his reply2 (doc. 26); and Defendant Marvin Dixon’s Motion for Summary Judgment (doc. 21), Plaintiffs response (doc. 25), Defendant Marvin Shenkin’s memorandum in opposition (doc. 23) and Defendant Marvin Dixon’s reply (doc. 27). For the reasons that follow, Plaintiffs motion and Defendant Shenkin’s motion are DENIED and Defendant Dixon’s motion is GRANTED.
I. Background
On July 18, 2001, Plaintiff Great American Insurance Company issued a term life insurance policy (PC2000849) to the Insured, Anna F. Holiday, (doc. 21-1 Exh. A pp. 3-25). She named her sister, Mary Dixon and her brother, Defendant Marvin Dixon as her primary beneficiaries, with a different sister, Paula Nelson, as her contingent beneficiary (id. p. 17). On September 27, 2006, the Insured submitted a “Policy Change Request” to effect a “Change of Beneficiary,” naming her brother, Defendant Dixon, as her primary beneficiary and her flaneé, Defendant Marvin B. Shen-kin, as her contingent beneficiary (id. at pp. 22-23, 26-27). Great American acknowledged this policy change in a letter to Holiday dated October 10, 2006 (id. p. 28). That letter stated in part:
We are pleased to inform you that the change you requested to your life insurance policy has been processed. We have updated our records to reflect your beneficiary change.
Primary Beneficiary: MARVIN DIXON
Contingent Beneficiary: MARVIN B SHENKIN
(Id.)
At the end of April 2012, the “Holiday Family Trust” was established, with Hob-day named as the Trustee and Defendant Shenkin as the Successor Trustee (id. at pp. 36-105). At that time, Holiday transferred “100% of [her] personal property owned” to the Trust (id. at p. 51). Some three months later, specifically on August 4, 2012, Holiday died of a heart attack. Defendant Shenkin notified Great American by telephone of Holiday’s death on *615August 9 (id. at p. 123). Thereafter it sent a letter to Defendant Shenkin on August 14, acknowledging the death of its Insured and enclosing a “Claimant’s Statement” form, asking that it be completed by Defendant Dixon as the beneficiary of the policy (id. at p. 117). On August 20, Defendant Dixon submitted a “Claimant’s Statement” form to Great American^ which was file-stamped “RECEIVED” on August 26, in which he asked for a lump-sum payment to him as beneficiary (id. at p. 114). On August 27, the Law Offices of Senn Koppel sent to Great American, via facsimile transmittal, a letter from “Marvin Shenkin, Trustee of the Holiday Family Trust” (id. at p. 113). By its language, that letter purported to be a “petition for declaratory relief, to determine the rights and responsibilities of the parties included but not limited to the Trustee and all beneficiaries to the [Tjrust and the life insurance policy recently incorporated into the [T]rust[ ]” (id. at p. 109). Continuing, Defendant Shenkin identified a “dispute among the beneficiaries” as follows:
Initially the policy named Marvin Dixon as the sole beneficiary of the life insurance policy, however on April 18, 2012 Anna Holiday created the [Tjrust intending all of her real and personal property was to be included in the [Tjrust. She also orally told each of the beneficiaries and other third parties who created the [Tjrust with her, that the proceeds of the life insurance policy were to be distributed:
50% Marvin Shenkin, Trustee; and
50% Mary Dixon, Beneficiary, Anna’s disabled sister.
(Id. at p. 109.) Defendant Shenkin requested that Great American inform him of its position.
In a letter to Defendant Shenkin dated August 30, Great American stated, based on the Insured’s 2006 written request, that it considered Defendant Dixon — the beneficiary of record — entitled to the policy’s death benefit. It invited Defendant Shen-kin to submit a copy of “any other change form, initiated by Ms. Holiday after [2006], any confirmation letter from our office, or any other documentation which specifically requested a change of beneficiary for this policy from her” for its review and consideration. It listed the documents necessary to contest the designation of record, and notified him that Defendant Dixon also might make a claim. Finally, Great American advised, “[ijn the .case of conflicting claims for policy proceeds, we may be required to file an interpleader action and the court will decide who is entitled to receive [the] proceeds.” (Id. at p. 108.) In a follow-up letter dated September 6, Great American instructed Defendant Shenkin that it would make payment to Defendant Dixon unless he filed a claim by September 16 (id. at p. 106). Attorney Senn Koppel replied, designating his letter “as a formal contest to the designation of record and as a claim for death benefit proceeds on behalf of the Trust.” He also designated his letter “as a formal demand to pay the proceeds of the policy to the [Tjrust directly and not to Marvin Dixon” requesting, in the alternative, to file an action in interpleader in San Bernardino [California] Superior Court, and that “Mr. Shenkin will be glad to accept service for said Interpleader on behalf of the [Tjrust.” (Id. at p. 128.)
Plaintiff Great American’s “Complaint for Interpleader” was filed with the Clerk of this Court on October 25, 2012 (doc. 1). Both Defendant Dixon (doc. 6) and Defendant Shenkin (docs. 11, 14) answered. We held a preliminary pretrial conference in this matter on March 7, 2013. Counsel for Plaintiff and Defendant Dixon appeared in person and by telephone, respectively, with no appearance by Defendant Shenkin. *616Our Order memorializing that conference contained the following observation and instruction:
The Court notes that Defendant Marvin Shenkin is proceeding pro se and that he did not appear -for the preliminary pretrial conference either in person or by phone. The Court further notes that Mr. Shenkin has presented himself in his filings in this matter both as an individual and in his capacity as Trustee on behalf of the Holiday Family Trust. The Court cautions Mr. Shenkin that he may not proceed in a pro se capacity as a trustee because to proceed pro se means to represent oneself, not, as in the case of a trustee, the interests of the trust. Thus, Mr. Shenkin is advised to either secure counsel or to proceed only as an individual representing his own interests. If he chooses the latter, Mr. Shenkin is further advised that he is expected to fully participate in all conferences before the Court.
(Doc. 15 at p. 1.) On March 14, a letter from Defendant Shenkin to the Court dated March 11 was docketed by the Clerk (doc. 16). In it, Defendant Shenkin apologized for his failure to appear, stating that he believed that counsel for Plaintiff was going to contact him to be part of the conference (id.). He made no comment with regard to our instruction that he could proceed in a pro se capacity on behalf of himself only, not as Trustee of the Holiday Family Trust (id.). The first in the series of motions identified above was filed on May 8, 2013.
II. Summary Judgment Standard
Although a grant of summary judgment is not a substitute for trial, it is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The process of evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well-settled. First, “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact[J” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993). This burden may be satisfied, however, by the movant “pointing out to the court that the [non-moving party], having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.” Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A, 12 F.3d 1382, 1389 (6th Cir.1993).
Faced with such a motion, the opposing party must submit evidence in support of any material element of the claim or defense at issue in the motion on which it would bear the burden of proof at trial. Celotex, 477 U.S. at 331-32, 106 S.Ct. 2548. As “the requirement [of the Rule] is that there be no genuine issue of material fact,” the Supreme Court has made clear that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Ancillary factual disputes, those “that are irrelevant or unnecessary[,] will not be counted.” Id. Furthermore, “[t]he 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 [trier of fact] could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. Instead, the opposing party must present *617“significant probative evidence” demonstrating that “there is [more than] some metaphysical doubt as to the material facts” to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339-40 (6th Cir.1993) (applying Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
At this summary judgment stage, it is not our role “to weigh the evidence and determine the truth of the matter but [rather] to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In so doing, “[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 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962))). Adherence to this standard, however, does not permit us to assess the credibility of witnesses. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
III. Discussion
Defendant Dixon has filed a motion for summary judgment asking this Court to declare him the named beneficiary of the term life insurance policy at issue and to order Plaintiff to pay him the policy’s death benefit. The Court finds Dixon’s motion well-taken.
In the “Ownership and Beneficiary” Section of the policy, .the following terms and conditions are set forth:
Owner
The owner of this policy is the Insured person on page 3, unless stated otherwise in the application or later changed. As owner, You can exercise all rights under your policy while the Insured is alive. You can change the ownership if You send us a Written Request to do so. If a new owner is named, any earlier designations will be void.
Beneficiary
The beneficiary is the person or persons named by You to receive the Proceeds when the Insured dies. If two or more beneficiaries are alive when the Insured dies, We will pay them in equal shares unless You have chosen otherwise. If no beneficiary is alive when the Insured dies, You will be the beneficiary if living, otherwise the Proceeds will be paid to your estate.
Change
To change the owner or beneficiary, send a Written Request while the Insured is alive. The change will not take effect until it is recorded at our Life Administration Office. Once recorded, it will take effect as of the date You signed it. The change will not apply to any payment made by us before We recorded your request. If You have named an irrevocable beneficiary, You will need that beneficiary’s consent in order to make a change of beneficiary. Assignment
You may assign this policy. We will not be bound by any assignment unless it is in writing, signed by You, and is recorded at our Life Administration Office. We are not responsible for the validity of any assignment. Any amount to be paid to an assignee will be paid in a single sum. Any claim made by an assignee will be subject to proof of the assignee’s interest and the extent of the assignment.
(Doc. 21-1 Exh. A at p. 10 (emphasis added).) Holiday was both the owner of the policy and the Insured. She obviously *618comprehended her status as listed herself as both on the “Policy Change Request” she completed on September 27, 2006. That request had the effect of removing Mary Dixon and Paula Nelson as primary and contingent beneficiaries, respectively, leaving Marvin Dixon as primary (and now sole) beneficiary and adding Marvin Shen-kin as contingent beneficiary, and it was approved and acknowledged by Plaintiff on October 10, 2006. (See id. at pp. 22-23, 26-27.) Plainly, Holiday understood both the meaning of, and the necessity of following, the terms and conditions within “Ownership and Beneficiary” Section as she dutifully complied with them in 2006. At no time did she ever ask Plaintiff to transfer the ownership of the policy, and she did not request any other change of beneficiary postr-2006.
The Supreme Court of Ohio has made clear that, when an insurance company files an interpleader action, the test for deciding between competing beneficiaries is whether the policy owner’s intent to change beneficiaries was clearly communicated to the insurance company. LeBlanc v. Wells Fargo Advisors, L.L.C., 134 Ohio St.3d 250, 2012-Ohio-5458, 981 N.E.2d 839, at ¶ 41 (citing Rindlaub v. Travelers Ins. Co., 175 Ohio St. 303, 305, 194 N.E.2d 577, 579 (1963)). If it was, the new beneficiary is entitled to the proceeds, but, if it was not, the original beneficiary is to be paid. Here, any alleged intent by Holiday to remove Defendant Dixon as the sole primary beneficiary of the policy, or to add Defendant Shenkin in his capacity of Trustee as a co-beneficiary, or any other permutation involving Holiday’s sister, Mary Dixon or the Holiday Family Trust, very clearly was not communicated to Great American.
Defendant Shenkin maintains that the “Schedule of Assets Transferred to Trust” approved by Holiday on April 23, 2012 verifies her wish to transfer “100% of [her] personal property owned[,]” which ipso facto would include the policy. The Court finds this inference far from obvious, inasmuch as we observed earlier that Holiday previously followed the terms and conditions within “Ownership and Beneficiary” Section of the policy when she wished to change its primary beneficiary in 2006, so why in 2012 would she not follow suit if she wished to transfer ownership to the Trust? Further, even if the Trust were the owner of the policy, Defendant Dixon remained its named beneficiary, a designation subject to change by the owner — whether Holiday or the Holiday Family Trust — only while the Insured is alive. Upon Holiday’s death, no change of beneficiary is allowed. The same logic attends with respect to the assertion that Holiday was permitted to “assign” her interest as owner of the policy to the Trust. Indeed she was, but, again, as specified by the terms and conditions within “Ownership and Beneficiary” Section of the policy, any assignment had to be “recorded” in the same fashion as changes in beneficiaries or ownership, which necessarily entails notice to Great American of Holiday’s intent. Moreover, as Defendant Dixon correctly contends, policy assignments typically are made as collateral to secure a debt, and they do not “divest the [Ijnsured of [her] general property in the policy, but creates only a lien in favor of the assignee to the extent of the debt owed.” Katz v. Ohio Nat’l Bank, 127 Ohio St. 531 (syl. ¶ 1), 191 N.E. 782 (1934). An assignment, furthermore, does not amount to a change of beneficiary. Id. (syl. ¶ 3).
Defendant Dixon properly calls the Court’s attention to Defendant Shenkin’s vacillation between arguing on behalf of himself and arguing on behalf of the Trust as Trustee. A prime example of this behavior is contained within the pleading we *619have designated as Defendant Shenkin’s sur-reply to his motion for summary judgment (doc. 28). On the one hand, he takes the position that Holiday meant to designate him, along with Defendant Dixon, as a co-beneficiary, rather than a contingent beneficiary, thus entitling him to 50% of the policy’s death benefit3 (doc. 28 at p. 1). On the other hand, he urges the Court to find that Holiday permissibly assigned the policy to the Trust purportedly giving it discretion to distribute the policy’s death benefit according to the terms of the Trust. Defendant Dixon reminds the Court of the language contained within our March 13, 2013 Order, and, by way of enforcement thereof, asks us to strike all the various (and random) pleadings filed by Defendant Shenkin, including his motion for summary judgment. The Court agrees that Defendant Shenkin very clearly failed to heed our instruction that he could proceed pro se as an individual, but that, in his role as Trustee of the Holiday Family Trust, he must retain counsel. He has improperly blurred the distinction between himself individually as the Insured’s fiancé as opposed to himself as Trustee of the Holiday Family Trust. For him to “represent” the Trust before this Court implicates issues of conflict of interest, breach of fiduciary duty and the unauthorized practice of law. In the interests of justice, however, we think it appropriate to have addressed some of the arguments raised by Defendant Shenkin, as their utter lack of merit facilitates our determination with regard to Plaintiffs motion, to which we now turn.
Plaintiff Great American has moved for an order from the Court allowing it to deposit the disputed death benefit proceeds with the Clerk pursuant to Fed. R.Civ.P. 67 and for dismissal with prejudice from this cause of action. We have carefully reviewed all of the pertinent documentary evidence in this matter, all of which was available to — -and considered by — Great American prior to fifing its complaint for interpleader. Given the clarity of Ohio law as applied to the undisputed facts of this case, we question the need for interpleader in this particular instance. Defendant Dixon is patently entitled to the death benefit at issue, as Plaintiff itself recognized in its pre-litigation correspondence with Defendant Shenkin. The Court is mindful of the benefits of interpleader, and the Sixth Circuit’s encouragement to allow insurance companies to deduct their attorneys’ fees and expenses from the proceeds when equitable. See Holmes v. Artists Rights Enforcement Corp., 148 Fed.Appx. 252, 259 (6th Cir.2005). The facts of this case, however, do not support “multiple” bona fide claims to the death benefit. See Lindsey v. Primerica Life Ins. Co., No. 1:00CV000789, 2002 WL 1585908, at *2 (M.D.N.C. May 17, 2002). Furthermore, while Great American advised Defendants Dixon and Shen-kin that, “[i]n the case of conflicting claims for policy proceeds, we may be required to file an interpleader action and the court *620will decide who is entitled to receive [the] proceeds[ ]” (see doc. 21-1 Exh. A at pp. 108, 110), no mention was made that it concomitantly would ask the Court to deposit the proceeds of the death benefit minus its attorneys’ fees and costs as was the situation in Holmes, 148 Fed.Appx. at 259. Accordingly, Plaintiffs motion is DENIED.
IY. Conclusion
The only material question of fact in this matter is whether Holiday communicated her intent to Great American — prior to her death — to change the beneficiaries she named on September 27, 2006. There is no admissible evidence that she did— whether it was to add her fiancé Defendant Shenkin (in addition to her brother Defendant Dixon) as a primary beneficiary, or (to remove Defendant Dixon altogether, and) rename her sister, Mary Dixon, along with Defendant Shenkin, as the primary beneficiaries. Accordingly, Defendant Marvin Dixon is entitled to a declaratory judgment that he is the named primary beneficiary of the policy and thus solely entitled to payment of its death benefit. The Court so finds, GRANTS Defendant Dixon’s motion for summary judgment (doc. 21) and ORDERS Plaintiff Great American Life Insurance Company to pay the Death Benefit Proceeds ($101,-000.00) — without deduction for any of its attorneys’ fees and costs associated with the filing and prosecution of this inter-pleader cause of action — plus any interest, to Defendant Dixon forthwith. Upon such payment, Plaintiff Great American Life Insurance Company will be relieved of all liability under the policy to Defendant Dixon as well as to Defendant Marvin Shen-kin, individually or in his capacity as Trustee of the Holiday Family Trust. The motion of Plaintiff Great American Life Insurance Company for an order to pay disputed death benefit proceeds (less its attorneys’ fees and costs) into the Court and to dismiss it with prejudice from this action (doc. 18) is thus DENIED. Finally, the motion for summary judgment filed by Defendant Marvin Shenkin (doc. 17) is DENIED and this case is now CLOSED on the docket.
SO ORDERED.
. S.D. Ohio Civ. R. 7.2(a)(2) does not permit the filing of a sur-reply memorandum without leave of court for good cause shown. Neither Plaintiff nor Defendant Dixon, however, filed a motion to strike it from the docket.
. This pleading was not filed within the fourteen (14) — day time period specified by S.D. Civ. R. 7.2(a)(2). Again, neither Plaintiff nor Defendant Dixon filed a motion to strike it from the docket.
. This contention strains credulity. When the policy was issued in 2001, Holiday listed two primary beneficiaries, or “co-beneficiaries” as Defendant Shenkin would describe them, specifically her sister Mary Dixon and her brother Marvin Dixon, with her sister Paula Nelson listed as contingent beneficiary. In 2006, Holiday removed her sister Mary, but left her brother Marvin as the primary beneficiary, and removed her sister Paula, but added her fiancé Marvin as the contingent beneficiary. Why Holiday would appreciate the distinction between a co-beneficiary versus a contingent beneficiary in 2001, but overlook it in 2006, is a mystery. The letter confirming receipt of her request itself draws attention to the distinction, as the primary beneficiary is labeled and listed on the top line and the contingent beneficiary is labeled and listed on the line below. Regardless, Holiday’s thought process need not be discerned, as her intent is extraneous to the legal issue before the Court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217871/ | PER CURIAM.
In these consolidated appeals, Jeffrey D. Armstrong and William Lawrence — d/b/a Native American Press/Ojibwe News — appeal the district court’s1 adverse grant of summary judgment in their 42 U.S.C. § 1983 action. Having carefully reviewed the record, see Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 904-05 (8th Cir.1999) (standard of review), cert. denied, 528 U.S. 1157, 120 S.Ct. 1165, 145 L.Ed.2d 1076 (2000), we agree with the district court’s thorough analysis; and we decline to address the new arguments and allegations appellants raise, see Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.2002). Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217872/ | MEMORANDUM **
Gerald Rider appeals the 168-month sentence imposed following his guilty plea conviction for abusive sexual contact with a child under the age of twelve, in violation of 18 U.S.C. §§ 2241(c) and 1153. We have jurisdiction under 28 U.S.C. § 1291. We review for clear error a district court’s factual findings in determining whether to adjust downward. United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.2002). We affirm.
The district court did not clearly err by denying Rider a downward adjustment for acceptance of responsibility because Rider attempted to minimize his involvement in the offense by falsely denying the frequency and extent of his abusive sexual conduct towards a five-year old girl. See United States v. Scrivener, 189 F.3d 944, 948-49 (9th Cir.1999); see also United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991) (affirming district court’s denial of downward adjustment for acceptance of responsibility where defendant offered a “minimalist description” of his involvement in the offense), overruled on other grounds by United States v. Ruiz, 257 F.3d 1030 (9th Cir.2001).
We reject Rider’s contention that he sufficiently admitted relevant conduct by not contesting the presentence report. At his change of plea hearing, Rider expressly stated his disagreement with the conduct outlined in the presentence report, thereby attempting to minimize his conduct. See Scrivener, 189 F.3d at 948-49.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the *976courts 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/7217873/ | MEMORANDUM **
Michael Frank Jarvill appeals the 60-month sentence imposed following his guilty plea conviction for conspiracy, 18 U.S.C. § 371, mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We reject Jarvill’s contention that his sentence should be vacated because of inadequate notice for the reason that it does not constitute reversible error.
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/7217874/ | MEMORANDUM **
Gys Jansen Van Beek and Zwaantje Jansen Van Beek appeal from the district court’s denial of their motion to vacate a civil judgment of quiet title pursuant to Fed.R.Civ.P. 60(b)(4). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, see Maraziti v. Thorpe, 52 F.3d 252, 253-54 (9th Cir.1995), and may affirm on any basis finding adequate support in the record, see Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986). We affirm.
*977Because the district court entered a judgment and decree of quiet title in this case in 1998, which this court affirmed in 1995, the Van Beeks failed to move to reopen this case within a reasonable time. See Fed.R.Civ.P. 60(b); McKinney v. Boyle, 447 F.2d 1091, 1093 (9th Cir.1971) (holding that a delay of more than four years was unreasonable).
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/7217875/ | MEMORANDUM **
George Jay Nelson and Joan Elizabeth Nelson appeal pro se the district court’s summary judgment in favor of defendants, and order denying reconsideration, in their 42 U.S.C. § 1983 action, which alleged due process violations and fraud on the court. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the summary judgment, Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), and we review for abuse of discretion the denial of a motion for reconsideration, School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.1993). We affirm.
The district court properly granted summary judgment to defendants based on the statute of limitations. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir.2002) (noting that the statute of limitations for section 1983 claims under Washington law is three years).
We decline to consider the Nelsons’ contention that their state court action tolled the limitations period because it is raised for the first time on appeal. See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir.1998).
The district court properly denied the motion for reconsideration because there was no evidence of fraud upon the court. See Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir.1995).
The Nelsons’ remaining contentions are unpersuasive.
We order the Nelsons’ motion to supplement the record received on April 15, 2003, to be filed, and we deny the motion.
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/7217880/ | MEMORANDUM **
California state prisoner David Luis Bustamante appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habe-as petition, which challenges his robbery conviction. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Alvarado v. Hickman, 316 F.3d 841, 845 (2002), amended, (9th Cir.2003), we affirm.
Bustamante contends that the trial court erred when it admitted evidence of a statement he made to an officer because he had not received warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The California Court of Appeal rejected this claim, reasoning that the circumstances of the detention indicated that Bustamante was not in custody for purposes of Miranda. The California court’s conclusion is neither contrary to nor an unreasonable application of federal law as clearly established by the Supreme Court. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (stating that Miranda does not apply to stops made pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Alvarado, 316 F.3d at 846 (stating that factors relevant to whether a person is in custody for purposes of Miranda include the duration of the stop, what force is used to accomplish the stop, and whether the stop occurs in a public or private place).
Thus, the district court properly denied Bustamante’s petition. See 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 365-66, 154 L.Ed.2d 263 (2002) (per curiam) (explaining § 2254(d)’s “contrary to” and “unreasonable application” requirements).
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/7217877/ | MEMORANDUM **
Oregon state prisoner Edward Bailey appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir.2000), and we affirm.
The district court properly dismissed Bailey’s claim that prison officials negligently placed him in a class with an inmate who later attacked him because negligence is not sufficient to state an Eighth Amendment violation. See Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
The district court also properly determined that Bailey failed to state a due process claim because being placed in “IMU” was not an atypical and significant hardship in relation to ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
The district court did not abuse its discretion by dismissing the action without leave to amend because further amendment would have been futile. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc).
Bailey’s remaining contention is unpersuasive.
Appellee’s motion to appear and file an answering brief is granted. Appellee’s answering brief shall be filed.
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/7217878/ | MEMORANDUM **
Gary Evans appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the district court’s decision to invoke the doctrine of judicial estoppel, Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 781 (9th Cir.2001), and we affirm.
Evans claimed violations of his federal and state civil rights stemming from allegations of child abuse made against him in criminal and marriage dissolution proceedings. The district court did not abuse its discretion in concluding that Evans’ position in this action is incompatible with his concession in his marriage dissolution proceeding that the state court was compelled under the circumstances to make a finding of fact that he abused his children. See id. at 782. The record does not support Evans’ contention that he made this concession because of fraud or mistake. Cf. Ryan v. Loui (In re Corey), 892 F.2d 829, 836 (9th Cir.1989) (judicial estoppel did not apply where party changed her position after realizing that she had been “duped”). We also disagree with Evans’ contention that his abuse of process claims should be excepted from the judicial estoppel analysis.
Because the district court properly dismissed the action under the doctrine of judicial estoppel, we need not reach Evans’ contention regarding collateral estoppel.
The record does evidence bias by the district court judge. See id. at 838-89.
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/7217879/ | MEMORANDUM **
Cyrus N. Plush, a Washington state prisoner, appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for clear error the district court’s factual findings and review de novo applications of law. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003). We affirm.
Plush’s contention that the district court clearly erred by finding that he did not exhaust his administrative remedies is unpersuasive because there is no evidence in the record contradicting defendants’ evidence showing Plush failed to exhaust. See Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 369 (9th Cir.1988) (per curiam).
Plush contends he could not exhaust because the strip-search policy was eliminated. Plush’s contention is unpersuasive because elimination of the policy did not negate his past injury and prisoners are required to exhaust available administra-five remedies before filing suit regardless of the adequacy of available remedies. See Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).
Plush’s contention that prison officials prevented him from exhausting by forcing him to rewrite his grievance ten to twenty times and by transferring him to another facility is unsupported by the 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/7217959/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224408/ | Memorandum Opinion and Order
Gary Scott Feinerman, United States District Judge
The personal representative of Derek Boogaard’s estate, who for ease of reference will be called “Boogaard” unless context requires otherwise, brought this suit in the Circuit Court of Cook County, Illinois, against the National Hockey League and its Board of Governors and Commissioner (collectively, “NHL”). Doc. 1-1. The complaint characterizes Boogaard’s claims as arising under Illinois law. The NHL removed the case to this court under 28 U.S.C. § 1441, asserting that federal question jurisdiction lies under 28 U.S.C. § 1331 because Boogaard’s purported state law claims are completely preempted by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, and thus in fact are federal claims.* Doc. 1. Boogaard has moved to remand the case to state court, arguing that his claims are not completely preempted by the LMRA and thus are true Illinois law claims. Doc. 23. Because at least some of Boogaard’s claims are completely preempted, the motion is denied.
Background
The following facts, taken primarily from the complaint, are assumed true at this stage of the proceeding. From 2005 through 2011, Boogaard played in the NHL for the Minnesota Wild and the New York Rangers; his role was that of “an Enforcer/Fighter,” meaning “a player that engages in fist-fights with players from the opposing team, on the ice, during a game.” Doc. 1-1 at ¶ 2. The National Hockey League Players Association (“NHLPA”) represents NHL players and negotiated the 2005 Collective Bargaining Agreement (“2005 CBA”) with the NHL, which was in effect during Boogaard’s entire career. Id. at ¶ 28; Doc. 1 at ¶ 3.
In his 277 regular season games, Boo-gaard scored three goals, participated in at least 66 fights, and sustained numerous painful physical injuries, for which NHL team physicians, dentists, trainers, and staff provided him “copious amounts of prescription pain medications, sleeping pills, and painkiller injections.” Doc. 1-1 at ¶¶ 2-6, 16. Boogaard eventually became addicted to some of those drugs and was enrolled in the NHL’s Substance Abuse and Behavioral Health (“SABH”) Program. Id. at ¶¶ 1, 9-12. The terms of the SABH Program are set forth in a *653document that takes the form of an agreement signed by the NHL’s commissioner and the NHLPA’s executive director. Doc. 1-3. The agreement’s first paragraph states that the SABH Program “is a comprehensive effort to address substance abuse among NHL players and their families, to treat those with a substance abuse problem in a confidential, fair and effective way, and to deter such abuse in the future,” and adds that the Program “has the full support of the League and the Players’ Association and will be incorporated into the Collective Bargaining Agreement.” Id. at 3. Through the SABH Program, Boogaard entered The Canyon, a rehabilitation facility, in September 2009 for inpatient treatment of his opioid and sleeping pill addiction. Doc. 1-1 at ¶ 13.
After his release from The Canyon, Boo-gaard signed with the New York Rangers and suffered a relapse. Id. at ¶¶ 15-19. In early April 2011, the SABH Program directed Boogaard to enter Authentic Rehabilitation Center (“ARC”) in California for treatment of his opioid addiction. Id. at ¶ 20. Despite knowing that Boogaard was not complying with his treatment regimen, the NHL allowed Boogaard to be temporarily released from ARC without a chaperone on two occasions. Id. at ¶¶ 21-23. On the first night of his second release, Boogaard ingested a Percocet and was found dead the next day, on May 13, 2011. Id. at ¶¶ 24-25. The cause of death was determined to be an accidental drug overdose. Id. at ¶¶ 141-143.
After his death, Boogaard’s parents and estate unsuccessfully sued the NHLPA in California for breach its duty of fair representation. Boogaard v. Nat’l Hockey League Players Ass’n, 2013 WL 1164301 (C.D.Cal. Mar. 20, 2013). Boogaard’s personal representative then filed this suit against the NHL. Counts I and II of the complaint allege the NHL failed to prevent the over-prescription of addictive medications to Boogaard. Doc. 1-1 at ¶¶ 43-101. Counts III and IV allege that the NHL breached its voluntarily undertaken duty to curb and monitor Boogaard’s drug addiction during the time he was enrolled in the SABH Program, including by failing to provide Boogaard with a chaperone for his second temporary release from ARC and by failing to warn him of the risks associated with leaving the facility. Id. at ¶¶ 102-200. Counts V and VI allege the NHL was negligent in monitoring Boo-gaard for brain trauma during his career. Id. at ¶¶ 201-226. And Counts VII and VIII allege the NHL was negligent in permitting team doctors to inject Boo-gaard with Toradol, an intramuscular analgesic. Id. at ¶¶ 227-267.
Discussion
As noted above, the NHL premises federal subject matter jurisdiction on the ground that Boogaard’s claims, which Boo-gaard characterizes as arising under Illinois law, are completely preempted by § 301 of the LMRA. The complete preemption doctrine “converts an ordinary state common-law complaint into one stating a federal claim.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “Once an area of state law has been completely preempted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law” for purposes of 28 U.S.C. §§ 1331 and 1441(a). Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800 (7th Cir.2013) (internal quotation marks omitted); see also Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, 707 F.3d 883, 894 (7th Cir.2013).
Settled precedent holds that § 301 the LMRA completely preempts state law claims “founded directly on rights created by collective-bargaining *654agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (internal quotation marks omitted); see also Nelson v. Stewart, 422 F.3d 463, 467-69 (7th Cir.2005); In re Bentz Metal Products Co., Inc., 253 F.3d 283, 285-86 (7th Cir.2001) (en banc). Complete preemption under § 301 “covers not only obvious disputes over labor contracts, but also any claim masquerading as a state-law claim that nevertheless is deemed ‘really’ to be a claim under a labor contract.” Crosby, 725 F.3d at 797. “[T]o determine whether a purported state-law claim ‘really’ arises under Section 301, a federal court must look beyond the face of the plaintiffs allegations and the labels used to describe her claims and ... evaluate the substance of plaintiffs claims.” Id. at 800 (internal quotation marks omitted). “[A] state-law claim is ‘completely preempted’ only when it is inextricably intertwined with consideration of the terms of the labor contract.” Ibid. (internal quotation marks omitted).
The substance of Counts III and IV of the complaint, which allege that the NHL breached its voluntarily undertaken duty to properly care for and address Boo-gaard’s drug addiction during his enrollment in the SABH Program, makes clear that those claims are completely preempted by § 301 of the LMRA. Counts III and IV allege, in relevant part, the following facts:
• Boogaard “was enrolled in the NHL’s SABH Program.” Doc. 1-1 at ¶ 103.
• The SABH Program “was granted exclusive, unsupervised control of player abuse issues by the NHL.” Id. at ¶¶ 104-105.
• The SABH Program “is supposed to operate according to a defined regimen,” under which players are initially placed in “Stage One” and then are demoted to “Stage Two,” “Stage Three,” and “Stage Four,” with progressively more serious penalties at each stage, if they fail to comply with the Program’s requirements. Id. at ¶ 111.
• On October 9, 2009, shortly before his release from The Canyon, the SABH Program instructed Boogaard as part of his “Aftercare Program” that “he was to refrain from all opioid and Ambien drug use” and warned that he could be permanently suspended from the NHL if he failed to comply, though Boogaard “would come to learn that this was an idle threat.” Id. at ¶ 113.
• Despite the instructions imposed by his Aftercare Program, Boogaard received Ambien and other drugs from NHL team physicians, dentists, trainers, and staff. Id. at ¶ 120.
• Although from January 2011 through March 2011 Boogaard violated the Aftercare Program and his urine tested positive for prohibited substances on several occasions, Boo-gaard was not placed in Stage Two or Stage Three of the SABH Program’s progressive disciplinary regimen. Id. at ¶¶ 121-127.
• After Boogaard was admitted to ARC in early April 2011, the NHL knew or should have known that he was not complying with his treatment regimen. Id. at ¶¶ 130-133.
• The SABH Program paid for Boo-gaard’s first temporary release from ARC, but did not provide him with a chaperone, and during his release he purchased $4,000 of opioids on the street in New York. Id. at ¶¶ 134-136.
*655• Boogaard returned to ARC on May 4, 2011, and on May 12, 2011, Boo-gaard left on his second temporary release from the facility to attend his sister’s graduation; the NHL did not provide Boogaard with a chaperone, did not provide him with an Aftercare Program or follow-up care instructions, and did not warn him of the risks of leaving the facility. Id. at ¶¶ 137-140.
• On May 12 and 13, 2011, Boogaard ingested Percocet and numerous Ox-ycondone pills, and he was found dead on May 13, 2011; the cause of death was determined to be an accidental drug overdose. Id. at ¶¶ 141-143.
With respect to Boogaard’s claim that the foregoing acts and omissions breached the NHL’s duties to him, Counts III and IV allege that when Boogaard “was admitted into the SABH Program in 2009, the NHL voluntarily undertook a duty to monitor, treat, and curb [his] drug addiction.” Id. at ¶ 146. Those counts further allege that the NHL breached its duties by:
a. Failing to monitor and supervise its SABH Program;
b. Failing to place [Boogaard] in the SABH Program defined four stages of intervention;
c. Failing to intervene when necessary to treat [Boogaard] for substance abuse;
d. Failing to appropriately treat [Boo-gaard] for substance abuse;
e. Failing to ensure rapid, accurate diagnosis and intervention for [Boo-gaard’s] relapse of prescription pain pill abuse;
f. Failing to adequately monitor [Boo-gaard] for prescription paid pill abuse following his discharge from “The Canyon” rehabilitation facility;
g. Failing to warn [Boogaard] of the increased risk of fatal overdose following his release from the ARC; and
h. Failing to monitor [Boogaard] upon release from the ARC.
Id. at ¶ 147; see also Doc. 23 at 9 (in his motion for remand, Boogaard notes that his complaint “alleges [the NHL’s] breaches based on the voluntary undertaking the NHL assumed and its SABH Program”); id. at 12 (arguing that “[t]he NHL failed to fulfill its self-imposed commitment to ... prevent[ ] ... addictions to controlled substances”).
By alleging that the NHL voluntarily undertook duties to Boogaard upon his enrollment in the SABH Program, and by further alleging that the NHL breached those voluntarily undertaken duties by failing to comply with the Program’s requirements and by otherwise failing to properly treat Boogaard within the confines of the Program, Counts III and IV walk themselves into complete preemption. The voluntary undertaking theory of tort liability provides that “one who undertakes, gratuitously or for consideration, to render services to another is subject to liability for bodily harm caused to the other by one’s failure to exercise due care in the performance of the undertaking.” Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1153 (7th Cir.2010) (quoting Wakulich v. Mraz, 203 Ill.2d 223, 271 Ill.Dec. 649, 785 N.E.2d 843, 854 (2003)); see also Homer v. Pabst Brewing Co., 806 F.2d 119, 121 n. 2 (7th Cir.1986) (same). “[A] voluntary undertaking is just that — voluntary—and as such, the scope of the duty that is assumed is limited to the extent of the undertaking.” LM ex rel. KM v. United States, 344 F.3d 695, 701 (7th Cir.2003); see also Figueroa v. Evangelical Covenant Church, 879 F.2d 1427, 1435 (7th Cir.1989) (holding that “any duty [voluntarily] assumed *656[must] be limited strictly to the scope of the undertaking”). Where, as here, the extent of a defendant’s voluntary undertaking is set forth in a collective bargaining agreement, the voluntary undertaking claim by necessity “is inextricably intertwined with consideration of the terms of the labor contract,” Crosby, 725 F.3d at 800 (internal quotation marks omitted), and thus is completely preempted by § 301 of the LMRA. See Banks v. Alexander, 294 Fed.Appx. 221, 224-25 (6th Cir.2008) (holding that a claim against a union official for failing to properly compensate the plaintiffs for making suggestions was completely preempted because the CBA is where the union official allegedly assumed the duty to provide such compensation and because determining whether the official breached that duty required interpreting the CBA); England v. Thermo Prods., Inc., 956 F.Supp. 1446, 1455-56 (N.D.Ind.1996) (holding that the employee’s claim that the employer breached its voluntarily undertaken duty to disclose results of a chest x-ray was completely preempted because the CBA was alleged to have imposed the duty to take x-rays).
The point is illustrated, and the conclusion is compelled, by International Brotherhood of Electrical Workers, AFL-CIO v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987). After being injured on the job, the plaintiff, Hechler, brought a tort suit against her union, alleging that by virtue of its collective bargaining agreement with her employer, the union had assumed the “duty of care to provide her with a safe workplace and to monitor her work assignments to ensure that they were commensurate with her skills and experience.” Id. at 859, 107 S.Ct. 2161; see also Id. at 860, 107 S.Ct. 2161. In determining whether Hechler’s purported state law tort claim was completely preempted by § 301, and thus whether the suit had been properly removed to federal court, the Supreme Court noted that He-chler’s “allegations of negligence assume significance if — and only if — the Union, in fact, had assumed the duty of care that the complaint alleges the Union breached.” Id. at 861, 107 S.Ct. 2161. The Court proceeded to explain:
In order to determine the Union’s tort liability, ... a court would have to ascertain, first, whether the collective-bargaining agreement in fact placed an implied duty of care on the Union to ensure that Hechler was provided a safe workplace, and, second, the nature and scope of that duty, that is, whether, and to what extent, the Union’s duty extended to the particular responsibilities alleged by respondent in her complaint. Thus, ... it is clear that questions of contract interpretation ... underlie any finding of tort liability.
Id. at 862, 107 S.Ct. 2161 (internal quotation marks omitted) (third ellipses in original). The Court accordingly concluded that the tort claims were completely preempted: “The need for federal uniformity in the interpretation of contract terms therefore mandates that ... [He-chler] is precluded from evading the preemptive force of § 301 by casting her claim as a state-law tort action.” Ibid.
The Seventh Circuit reached the same result in Sluder v. United Mine Workers of America, International Union, 892 F.2d 549 (7th Cir.1989). As in Hechler, the plaintiff in Sluder was injured on the job and sued his union, alleging that the union breached its duty, which it had voluntarily undertaken in its collective bargaining agreement with Sluder’s employer, to appropriately inspect the mine where Sluder worked. Id. at 551-52. In determining whether Sluder’s purported state law tort claims were completely preempted by § 301, the Seventh Circuit noted that “before liability could be established, it would *657be necessary to establish that the union breached a specific duty it had assumed toward the employees,” and that “[i]n order to define the scope of the duty assumed by the union; it would be necessary to establish the precise responsibility assumed by the union.” Id. at 554. The Seventh Circuit proceeded to observe that “it would not be possible to define, with the precision demanded by Illinois [voluntary undertaking] law, the scope of the union’s duty without reference to the collective bargaining agreement that governs the relationship between the company and the union.” Ibid. That inquiry into the scope of the union’s duty, the Seventh Circuit found, would not be mechanical or factual; instead, “the question of duty in this case is one of law and is open to varying interpretations under the collective bargaining agreement.” Id. at 554-55. The Seventh Circuit concluded that because Sluder’s purported state law tort claims “can be resolved only by defining the precise nature of the duty assumed by [the union], and that duty can be defined only by reference to the collective bargaining agreement,” the claims were completely preempted. Id. at 555-56.
Hechler and Sluder govern this case. The nature and scope of the NHL’s voluntarily assumed duties to Boogaard — for example, whether the NHL was obligated to provide Boogaard with a chaperone or to otherwise monitor him during his temporary releases from ARC, whether the NHL was obligated to closely monitor Boogaard for compliance with his SABH regime and to strictly enforce the Stage Two and Three progressive disciplinary regimen, and whether the NHL was obligated to warn Boogaard of the increased risk of fatal overdose following his release from ARC — are governed by the SABH Program agreement. Delineating the scope of the NHL’s voluntarily assumed duties would not be a mechanical exercise, as the agreement does not explicitly answer the question whether the NHL had voluntarily undertaken the duties that are alleged by Boogaard to have been breached. See In re Bentz, 253 F.3d at 285 (“the overriding principle is that for preemption to apply, interpretation of the CBA and not simply a reference to it is required”); cf. Hernandez v. Conriv Realty Assocs., 116 F.3d 35, 39-40 (2d Cir.1997) (rejecting complete preemption where the court would have to consult the CBA only to ascertain the plaintiffs rate of pay). It necessarily follows that resolution of Boo-gaard’s SABH-related claims in Counts III and IV are “substantially dependent on analysis of a collective-bargaining agreement,” Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (internal quotation marks omitted), and thus are completely preempted by § 301. See Atwater v. Nat’l Football League Players Ass’n, 626 F.3d 1170, 1182 (11th Cir.2010) (holding that players’ claims against the NFL regarding league-approved financial advisors were completely preempted because “any duty the NFL owed Plaintiffs [required the court] to consult the CBA to determine the scope of the legal relationship between Plaintiffs and the NFL and their expectations based upon that relationship”); Williams v. Nat’l Football League, 582 F.3d 863, 881 (8th Cir.2009) (holding completely preempted a common law duty to warn claim because it required “examining the parties’ legal relationship and expectations as established by the CBA”); Duerson v. Nat’l Football League, 2012 WL 1658353, at *4 (N.D.Ill. May 11, 2012) (holding that complete preemption applied where resolving the plaintiffs claims required examining whether the decedent’s “coneussive brain trauma was ‘significantly aggravatedf ]’ within the meaning of the CBA”); Stringer v. Nat’l Football League, 474 F.Supp.2d 894, 909-11 (S.D.Ohio 2007) (finding complete pre*658emption because the wrongful death claim “must be considered in light of pre-exist-ing contractual duties imposed by the CBA”).
A central premise of the foregoing analysis is that the SABH Program is part of the 2005 CBA. Boogaard strenuously objects to that premise, arguing that the SABH Program is not part of the 2005 CBA. Doc. 1-1 at ¶ 104; Doc. 23 at 9-10; Doc. 31 at 8-9. Boogaard is wrong.
As noted above, the terms of the SABH Program are set forth in an agreement whose first paragraph states that the Program “has the full support of the League and the Players’ Association and will be incorporated into the Collective Bargaining Agreement.” Doc. 1-3 at 3. The agreement in fact is an agreement, as evidenced by its signature page, where the NHL’s commissioner and the NHLPA’s executive director affix their signatures on behalf of their respective organizations and under the words “AGREED TO AND ACCEPTED.” Id. at 9. The SABH Program agreement is dated September 1996. Id. at 2. The 2005 CBA’s preamble states: “This Collective Bargaining Agreement, together with all Exhibits hereto[,] ... supersedes and replaces all prior collective bargaining agreements between the parties.” Doc. 1-2 at 20.
Boogaard argues that because the SABH Program agreement predates the 2005 CBA by nine years, and because it is not attached as an exhibit to the 2005 CBA, the agreement is not part of the 2005 CBA. Boogaard’s argument cannot be reconciled with the 2005 CBA’s plain terms. Article 33 of the 2005 CBA states:
This Agreement, together with the exhibits and side letters hereto, if any, cmd any existing letter agreements between the parties that are not inconsistent with this Agreement, constitutes the entire understanding between the parties, and all written communications, proposals and counterproposals (including any drafts of this Agreement) between the •NHL and the NHLPA, or on behalf of them, are merged into and superseded by this Agreement and shall be of no force or effect.
Id. at 151 (emphasis added). So, while it is true that the SABH Program agreement is not an “exhibit” or “side letter[ ]” to the 2005 CBA, see id. at 263-473, the agreement is among the “existing letter agreements between the parties that are not inconsistent with” the CBA. The SABH Program agreement certainly is an agreement, and it is not inconsistent with any other provision of the 2005 CBA. To the contrary, the 2005 CBA expressly acknowledges the continuing existence and validity of the SABH Program. Specifically, Article 47 addresses performance enhancing substances and creates a Performance Enhancing Substance Program. Article 47.3 states that the Performance Enhancing Substance Program “shall be limited to addressing the testing for and use of prohibited performance enhancing substances,” and clarifies that “[a]ll other forms of ‘substance abuse’ and behavioral and domestic issues requiring employee assistance will continue to be handled through the NHL/NHLPA Program for Substance Abuse and Behavioral Health (the ‘SABH Program’).” Id. at 152. Article 47.3’s explicit reference to the SABH Program demonstrates that the 2005 CBA contemplated that the Program was consistent with the CBA, and thus among the existing agreements incorporated by Article 33. To the extent any doubt remains, the SABH Program agreement itself states that it “will be [future tense] incorporated into the Collective Bargaining Agreement.” Doc. 1-3 at 3.
Because Counts III and IV are completely preempted, those claims are federal *659claims under 28 U.S.C. § 1331 and thus were properly removed under 28 U.S.C. § 1441(a). Given this conclusion, there is no need to determine whether the complaint’s other claims are completely preempted. Even if the complaint’s other claims are not completely preempted — that is, even if they truly are state law claims— the court has supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367(a). See Cavallaro v. UMass Mem’l Healthcare, Inc., 678 F.3d 1, 5 (1st Cir.2012) (“Thus, on a minimum reading of the complete preemption cases, one or more of plaintiffs’ claims are removable; any such claim makes the case removable, 28 U.S.C. § 1441(c); and even the claims not independently removable come within the sup-, plemental jurisdiction of the district court, 28 U.S.C. § 1367(a).”) (citation omitted); Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 332-33 (2d Cir.2011) (same); Duerson, 2012 WL 1658353, at *2 (same).
Conclusion
For the foregoing reasons, Boogaard’s motion to remand is denied.
The NHL does not and likely could not argue that diversity jurisdiction lies under 28 U.S.C. § 1332. The personal representative of an estate is a citizen of the State of which the decedent was a citizen at the time of death. See Hunter v. Amin, 583 F.3d 486, 491-92 (7th Cir.2009). Boogaard likely was a Minnesota citizen when he died. Doc. 1-1 at ¶ 42 (alleging that Boogaard's personal representative "was appointed by the State of Minnesota, Fourth Judicial Circuit Court”). The NHL "is an unincorporated association and, therefore, is a citizen of every state in which one 'of its members is a citizen.” Parker v. Centre Group L.P., 70 F.3d 1262, 1995 WL 709724, at *1 (4th Cir. Dec. 4, 1995) (citable pursuant to 4th Cir. R. 32.1); see Doc. 1-1 at ¶ 37 (alleging that the NHL is "an unincorporated association of member teams”). One of the NHL’s member teams, the Minnesota Wild, is located in Minnesota, Doc. 1-1 at ¶ 38, and thus likely is a Minnesota citizen, making the NHL a Minnesota citizen as well. With Minnesota citizens on both sides of the case, there is no diversity jurisdiction. See MB Financial, N.A. v. Stevens, 678 F.3d 497, 500 (7th Cir.2012) ("A suit with citizens of Illinois on both sides cannot be removed under the diversity jurisdiction.”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224409/ | MEMORANDUM OPINION AND ORDER
Chief Judge Ruben Castillo, United States District Court
Illinois prisoner Robert Mueller (“Petitioner”) is serving a. 32-year sentence for eight counts of criminal sexual assault. On April 17, 2013, he filed this petition for a "writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). Presently before the Court is Respondent’s motion to dismiss the Petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1). For the reasons set forth below, the Court grants Respondent’s motion to dismiss and denies Petitioner’s request for a certificate of ap-pealability.
BACKGROUND
Following a jury trial in the Circuit Court of DuPage County, Illinois, in December 2006, Petitioner was found guilty of eight counts of criminal sexual assault. (R. 34, Ex. 2-Q, Verdict at 163.) On March 1, 2007, the trial judge sentenced Petitioner to 32 years in prison — employ*662ing the mandatory minimum of four years per count and the mandatory consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8^f(a) (2007). (R. 34, Ex. 2-B, Sentencing Order at 6-13.) Petitioner is currently in the custody of Respondent Lemke, the warden of Stateville Correctional Center, in Joliet, Illinois.
Following his conviction, Petitioner appealed to the Illinois Appellate Court for the Second District, raising the following issues: (1) whether he was proven guilty beyond a reasonable doubt; (2) whether the trial court’s denial of his request for a bill of particulars denied him a fair trial; (3) whether the trial court’s denial of his request to review all of SV’s (one of the victims) psychiatric records was an abuse of discretion; (4) whether the trial court’s refusal to instruct the jury on the offense of fornication was an error; and (5) whether his 32-year sentence was unconstitutional. (R. 34, Ex. 2-C, Ill.App.Ct. Rule 23 Order at 14.) Petitioner was represented by his trial lawyer for this direct appeal. (R. 4, Pet’r’s Mem. at 8.) The appellate court affirmed Petitioner’s conviction and sentence in an unpublished Rule 23 order on March 17, 2009. (R. 34, Ex. 2-C, Ill. App.Ct. Rule 23 Order at 14.) Petitioner filed a pro se petition for leave to appeal to the Illinois Supreme Court, which was denied on May 28, 2009. (R. 34, Ex. 2-D, Ill. Sup.Ct. Order at 68.) On August 25, 2009, Petitioner sent a pro se petition for a writ of certiorari to the United States Supreme Court, which was received on September 1, 2009. (R. 34, Ex. F, U.S. Sup.Ct. Clerk Letter at 76.) The Clerk of the Supreme Court sent Petitioner a letter on September 1, 2009, explaining why his petition was incomplete and granting him an additional 60 days to file a corrected petition. (Id.) Petitioner did not file a corrected petition for certiorari. (R. 1, Pet. Writ Habeas at 2.)
Petitioner acquired new counsel to represent him and filed a petition for post-conviction relief on April 30, 2010, raising the following issues: (1) whether the state’s failure to timely indict specific allegations of sexual penetration deprived him of his constitutional rights to due process, speedy trial, equal protection, the effective assistance of counsel, and to be promptly and fully advised of the charges against him; (2) whether the state’s failure to disclose, prior to trial, the substance of detailed allegations made by the two victims, SV and KW, deprived him of his rights to a fair trial, due process, and equal protection, and whether it resulted in a “trial by ambush”; (3) whether the consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8-4(a) violated the state separation of powers clause and the Eighth Amendment’s prohibition against cruel and unusual punishment; and (4) whether trial and appellate counsel were ineffective for failing to raise these issues prior to trial or on direct appeal. (R. 14-2, Ex. 16, Trial Ct. Order Denying Post-Conviction Pet. at 1-6.) The trial court found that his petition was “frivolous” and “patently without merit,” and thus dismissed it on June 29, 2010. (Id. at 7.) The Illinois Appellate Court affirmed the dismissal of the petition on March 30, 2012. (R. 10-1, Ex. 17, Ill.App.Ct. Rule 23 Order at 2.) Petitioner filed a petition for leave to appeal to the Illinois Supreme Court on May 4, 2012. (R. 4, Pet’r’s Mem. at 10.) The Illinois Supreme Court mailed a letter on September 26, 2012, denying Petitioner’s petition for leave to appeal, the mandate of which issued to the Appellate Court on October 31, 2012. (R. 10-3, Ex. 19, Letter Denying PLA.)
After acquiring new counsel, Petitioner filed with this Court a petition for writ of habeas corpus on April 17, 2013. (R. 1, Pet. Writ Habeas.) Petitioner argues that his post-conviction counsel was ineffective *663because: (1) post-conviction counsel failed to claim that Petitioner received ineffective assistance of counsel at trial due to trial counsel’s failure to move for a change in venue; and (2) post-conviction counsel failed to present information from outside the record to support the claim that Petitioner’s 32-year sentence is unconstitutional under the Eighth Amendment. (R. 4, Pet’r’s Mem. at 12-19.) Petitioner contends that his post-conviction counsel’s ineffectiveness was prejudicial and thus gives him cause for the procedural default of his constitutional claims. (Id. at 12.) In addition to reiterating the arguments he contends his post-conviction counsel failed to make, Petitioner also argues that his due process and confrontation clause rights were violated when the trial court permitted the state to reopen its case and recall one of the victims, KW, to testify for a second time. (Id. at 19-35.) On July 19, 2013, Respondent filed a motion to dismiss the Petition, arguing that Petitioner’s claims are untimely under 28 U.S.C. § 2244(d)(1). (R. 25, Resp’t’s Mot. Dismiss.) Petitioner responded to Respondent’s motion to dismiss on September 3, 2013, arguing that his claims should be considered, despite their untimeliness, under the principles of statutory and equitable tolling. (R. 31, Pet’r’s Resp.) Respondent replied to Petitioner’s response on September 17, 2013. (R. 32,' Resp’t’s Reply.) Respondent’s motion to dismiss the Petition is currently before the Court.
LEGAL STANDARD
Section 2244(d)(1) of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(£ )(A)-(D). Once a respondent “raises an AEDPA statute of limitations defense, the petitioner must come forward with some evidence to support his claim that ... 365 countable days have not elapsed.” Ray v. Clements, 700 F.3d 993, 1008 (7th Cir.2012). “After the petitioner makes this evidentiary showing, the burden shifts to the government to prove that the limitations period has run.” Id.
ANALYSIS
Respondent argues that the Petition is untimely under section 2244(d)(1)(A). (R. 25, Resp’t’s Mot. Dismiss at 5.) Under section 2244(d)(1)(A), the one-year statute of limitations begins to run the date judgment becomes final at “the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The' United States Supreme Court has held that “[f]or petitioners who pursue direct review all the way to [the Supreme Court], *664the judgment becomes final at the ‘conclusion of direct review1 — when this Court affirms a conviction on the merits or denies a petition for certiorari.” Gonzalez v. Thaler, — U.S. -, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). “For all other petitioners, the judgment becomes final at the ‘expiration of the time for seeking such review’ — when the time for pursuing direct review in [the Supreme Court], or in state court, expires.” Id. at 653-54.
Petitioner’s direct appeal in state court concluded on May 28, 2009, when the Illinois Supreme Court denied his petition for leave to appeal. (R. 34, Ex. 2-D, Ill. Sup.Ct. Order at 68.) Petitioner then had 90 days to file a petition for a writ of certiorari with the Supreme Court — until August 26, '2009. Sup.Ct. R. 13.1 (“Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.”). Petitioner mailed in an incomplete petition for a writ of certiorari on August 25, 2009, and the Clerk of the Supreme Court sent him a letter on September 1, 2009, granting him an additional 60 days to submit a corrected petition.' See Sup.Ct. R. 14.5 (“If the Clerk determines that a petition submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. A correct petition submitted in accordance with Rule 29.2 no more than 60 days after the date of the Clerk’s letter will be deemed timely.”). Petitioner thus had until November 2, 2009, to file a corrected petition.1 Petitioner did not file a corrected petition for a writ of certiorari; thus, under section 2244(d)(1), the one-year statute of limitations began to run on November 2, 2009, the day Petitioner’s time for seeking review in the Supreme Court expired.
Under section 2244(d)(2), the one-year statute of limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Petitioner filed a petition for post-conviction relief in the Circuit Court of DuPage County on April 30, 2010. Thus, the limitations period ran for 179 days (from November 2, 2009 to April 30, 2010) until it was tolled. The statutory tolling concluded on September 26, 2012, when the Illinois Supreme Court denied Petitioner’s post-conviction petition for leave to appeal. (R. 10-3, Ex. 19, Letter Denying PLA.) The limitations period then ran for the remaining 186 days and expired on Monday, April 1, 2013.2 Petitioner did not file the instant Petition until April 17, 2013; therefore, the Petition is untimely under section 2244(d)(1)(A).
Petitioner acknowledges that the Petition is untimely under section 2244(d)(1)(A). (R. 31, Pet’r’s Resp. at 3.) Nevertheless, he asks the Court to excuse the Petition’s untimeliness under the principles of statutory and equitable tolling. (Id. ¿at 3-5.) The Court now addresses whether statutory or equitable tolling excuses Petitioner’s delay.
*665I. Whether Petitioner is entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(B)
Petitioner argues that he is entitled to statutory tolling of the limitations period under section 2244(d)(1)(B) and that the Petition should therefore not be dismissed as untimely. (R. 4, Pet’r’s Mem. at 38-40.) Petitioner contends that a state-created impediment violated his constitutional rights and triggered section 2244(d)(1)(B). (Id.)
Section 2244(d)(1)(B) allows a petitioner “to file a habeas corpus petition within one year from ‘the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.’ ” Lloyd v. Van Natta, 296 F.3d 630, 632-33 (7th Cir.2002) (quoting 28 U.S.C. § 2244(d)(1)(B)). Although the Supreme Court and the Seventh Circuit have yet to define “impediment” for purposes of this subsection, the Seventh Circuit has emphasized that “the plain language of the statute makes clear that whatever constitutes an impediment must prevent a prisoner from filing his petition.” Id. at 633; see also Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir.2007) (quoting Lloyd, 296 F.3d at 633). The Supreme Court has emphasized that the subsection allows “tolling for state-created impediments that prevent a prisoner from filing his application, but only if the impediment violates the Constitution or federal law.” Holland v. Florida, 560 U.S. 631, 665, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A habeas petitioner has the burden of establishing that the statutory tolling provision applies. See Ray, 700 F.3d at 1008.
Petitioner asserts that his Petition was untimely because his habeas counsel relied on misinformation provided by the Clerk of the Illinois Supreme Court to calculate the limitations period. (R. 4, Pet’r’s Mem. at 38.) Petitioner contends that on December 28, 2012, his postconviction counsel informed his habeas counsel that his post-conviction petition for leave to appeal had been denied by the Illinois Supreme Court on October 31, 2012. (Id. at 39.) Seeking to verify this date, Petitioner’s habeas counsel called the Clerk of the Illinois Supreme Court on January 25, 2013, and the Clerk informed counsel that Petitioner’s post-conviction petition for leave to appeal had been denied on October 31, 2012. (Id.) Relying on this information, habeas counsel calculated Petitioner’s federal habeas filing deadline as May 2, 2013. (Id. at 41.) Habeas counsel did not realize her error until April 15, 2013, when she reviewed a copy of the Illinois Supreme Court letter denying the petition for leave to appeal — the letter was dated September 26, 2012, and it stated that the mandate of the Illinois Supreme Court would issue to the Appellate Court on October 31, 2012. (Id. at 39; R. 10-3, Ex. 19, Letter Denying PLA.) Because a judgment of an Illinois court of review is final on the day on which it is entered and not on the date that the mandate issues, see Wilson v. Battles, 302 F.3d 745, 747 (7th Cir.2002) (citing PSL Realty Co. v. Granite Inv. Co., 86 Ill.2d 291, 56 Ill.Dec. 368, 427 N.E.2d 563, 570 (1981)), Petitioner’s filing deadline was April 1, 2013, 186 days from September 26, 2012. Petitioner argues that the incorrect information provided by the Clerk of the Illinois Supreme Court was a state-created impediment that prevented the timely filing of his Petition. (R. 4, Pet’r’s Mem. at 39-40.)
A state-created impediment must violate' the Constitution or federal law in order to toll the limitations period under section 2244(d)(1)(B). Holland, 560 U.S. at 665, 130 S.Ct. 2549. The Seventh Cir*666cuit has held that a “mere isolated incident of negligence” by a clerk’s office “does not rise to the level of a constitution violation actionable under section 1983.” Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir.1992). A court in this District tolled a habeas petitioner’s limitations period under section 2244(d)(1)(B) where a prison law clerk’s miscalculation of the petitioner’s filing deadline, coupled with the prison’s continued denial of the petitioner’s access to the prison law library for over a year, prevented him from timely filing his habeas petition. United States ex rel. Vidaurri v. Hardy, No. 08 C 3665, 2012 WL 1068735, at *13 (N.D.Ill. Mar. 29, 2012). Here, Petitioner’s only alleged “impediment” was the misinformation provided by the Clerk of the Illinois Supreme Court. Although the Clerk acted negligently in providing Petitioner’s habeas counsel the wrong date, without any evidence of violations of the Constitution or federal law, the Court cannot find that Petitioner has demonstrated a state-created impediment that tolls his limitations period under section 2244(d)(1)(B).
Seeking to avoid this result, Petitioner argues that “circuit courts have recognized a state-created impediment where misinformation or no information is provided by the clerk of the relevant court.” (R. 4, Pet’r’s Mem. at 38) (citing Williams v. Thaler, 400 Fed.Appx. 886 (5th Cir.2010)). The court in Williams, however, did not address the issue of whether a clerk misinforming Williams could amount to a violation of constitutional or federal law for the purposes of section 2244(d)(1)(B); instead, the Fifth Circuit concluded that Williams was entitled to equitable tolling. Williams, 400 Fed.Appx. at 889. Petitioner’s reliance on Williams to support his argument that he is entitled to statutory tolling is therefore misplaced.
Even if the Clerk’s negligence constituted a state-created impediment for the purposes of section 2244(d)(1)(B), Petitioner has not established that the Clerk’s actions prevented him from filing his petition. See Lloyd, 296 F.3d at 633. The Seventh Circuit has established a high bar that petitioners need to overcome to prove a state-created impediment prevented them from timely filing their habeas petitions. See, e.g., Powell v. Davis, 415 F.3d 722, 728 (7th Cir.2005) (public defender’s request for an indefinite stay that led to the belated review of petitioner’s state post-conviction petition did not qualify as a state-created impediment and did not prevent petitioner from filing a timely habeas petition); Lloyd, 296 F.3d at 633 (state’s failure to provide petitioner with a trial transcript “did not prevent him from filing his habeas corpus petition”); United States ex rel. Hughes v. Pierce, No. 09 C 6247, 2011 WL 1485269, at *6 (N.D.Ill. Apr. 19, 2011) (no state-created impediment existed where petitioner failed to prove that correctional employees prevented him from accessing the law library); United States ex rel. Andujar v. Pierce, No. 10 C 4168, 2010 WL 4628765, at *3 (N.D.Ill. Nov. 8, 2010) (petitioner did not show how the trial court’s failure to notify him of the denial of his post-conviction petition prevented him from filing a timely federal habeas petition). But see Coker v. Jones, No. 07 C 5988, 2008 WL 4372395, at *2-3 (N.D.Ill. Sept. 24, 2008) (finding a state-created impediment and tolling a ha-beas limitations period where the petitioner was transferred to a new prison but his personal legal papers, including a draft of his habeas petition, were not sent to him until six months later). Here, habeas counsel relied on incorrect information regarding the denial date of Petitioner’s post-conviction petition counsel received from the Clerk to calculate the habeas petition filing deadline. While it is unfor-*667túnate that the Clerk provided misinformation, that misinformation did not prevent habeas counsel from timely filing the Petition. Habeas counsel could easily, have done independent research to discover the Illinois Supreme Court’s letter with the correct date instead of relying solely on the information provided by the Clerk. Instead, habeas counsel regrettably waited until April 2013, three months after the phone conversation with the Clerk, to locate the original Illinois Supreme Court letter. (R. 33-5, Ex. 5, Kizer Aff. at 2.)
Accordingly, the Court finds that Petitioner has not proven that a state-created impediment that violated the Constitution or federal law prevented him from timely filing his Petition. Petitioner is therefore not entitled to statutory tolling under section 2244(d)(1)(B).
II. Whether Petitioner is entitled to equitable tolling
Petitioner additionally argues that he is entitled to equitable tolling of the limitations period and thus the Court should not dismiss the Petition as untimely. (R. 4, Pet’r’s Mem. at 35-41.) A ha-beas petitioner otherwise barred by the statute of limitations may obtain equitable tolling of the limitations period “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649, 130 S.Ct. 2549 (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). “Equitable tolling is granted sparingly only when extraordinary circumstances far beyond the litigant’s control prevented timely filing.” Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir.2010) (quoting Wilson v. Battles, 302 F.3d 745, 749 (7th Cir.2002)); see also Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir.2013) (“Equitable tolling is an extraordinary remedy and so is rarely granted.” (internal citations and quotation marks omitted)). “Petitioners bear the burden of proving that they qualify for equitable tolling.” Taylor v. Michael, 724 F.3d 806, 810 (7th Cir.2013) (citing Ray, 700 F.3d at 1007).
Respondent argues that Petitioner has failed to establish an extraordinary circumstance that prevented him from timely filing his Petition. (R. 25, Resp’t’s Mot. Dismiss at 10.) Petitioner contends that his habeas counsel’s “efforts to determine the correct [filing] date, and the misinformation given by [post-conviction counsel and the Illinois Supreme Court Clerk], amounts to extraordinary circumstances under the principles of equitable tolling.” (R. 31, Pet’r’s Resp. at 4.) The Supreme Court has held that a lawyer’s “egregious behavior” can create an extraordinary circumstance that warrants equitable tolling, but “a garden variety claim of excusable neglect” such as a “miscalculation” about the time available for filing does not amount to an extraordinary circumstance. Holland, 560 U.S. at 651-52, 130 S.Ct. 2549 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007)). The Seventh Circuit has repeatedly held that mistakes, ignorance of the law, and miscalculation of the statute of limitations are “garden variety” incidents of neglect that do not warrant equitable tolling. E.g., Obriecht, 727 F.3d at 749 (“As our precedents make clear, an attorney’s misunderstanding or miscalculation of the AEDPA deadline alone does not constitute an extraordinary circumstance.”); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir.2010) (A legal mistake is “not ‘extraordinary’; it is all too common.”); Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir.2001) (“Generally, a lawyer’s mistake is not *668an extraordinary circumstance justifying the application of equitable tolling.”); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999) (habeas counsel’s mistake in calculating filing deadline because of inadequate research did not warrant equitable tolling). Here, habeas counsel made a mistake in calculating the filing deadline; this miscalculation does not constitute an extraordinary circumstance.
In an effort to avoid this conclusion, Petitioner argues that “counsel’s reliance on the date provided was reasonable, and was not simply a ‘miscalculation.’ ” (R. 31, Pet’r’s Resp. at 4.) The fact that habeas counsel relied on misinformation provided by post-conviction counsel and the Clerk does not turn her miscalculation into an extraordinary circumstance. See Proctor v. Wright, No. 06 C 2794, 2007 WL 433099, at *10 (N.D.Ill. Jan. 31, 2007) (finding that petitioner’s reliance on erroneous advice provided by another inmate did not warrant equitable tolling); Nunez v. Robert, No. 04-CV-121-DRH, 2006 WL 181683, at *5 (S.D.Ill. Jan. 24, 2006) (finding that petitioner’s reliance on the incorrect advice provided by a civilian paralegal and an inmate law clerk did not amount to an extraordinary circumstance); Baudizzon v. Maddening, 35 Fed.Appx. 584, 585 (9th Cir.2002) (counsel’s reliance on misinformation provided by the state court clerk regarding the date on which the state supreme court denied review “constituted negligence that does not rise to the level of ‘extraordinary circumstances’ warranting equitable tolling”). Habeas counsel was negligent in relying on the date provided by post-conviction counsel and the Clerk, but this negligent behavior is not “egregious” and, consequently, does not warrant equitable tolling; See Holland, 560 U.S. at 651-52, 130 S.Ct. 2549.
Finally, Petitioner .draws the Court’s attention to the fact that habeas counsel filed the Petition immediately upon discovering the correct date and asserts that this demonstrates “counsel’s good-faith reliance on the information given and an intent to cooperate with the strictures of AEDPA.” (R. 31, Pet’r’s Resp. at 4.) While the Court is sympathetic to the fact that habe-as counsel relied on the misinformation in good faith and intended to comply with the statute of limitations, these factors have no bearing on the Court’s equitable tolling analysis, which only examines whether extraordinary circumstances prevented Petitioner from timely filing his Petition.
Accordingly, the Court finds that Petitioner has not established that an extraordinary circumstance prevented him from timely filing his Petition. Thus, Petitioner is not entitled to equitable tolling of the statute of limitations.
III. Whether the Court should issue a certificate of appealability
Rule 11(a) of the Rules Governing Section 2254 Cases provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” To obtain a certificate of appealability, a habe-as petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir.2011). Where a district court dismisses a habeas petition on procedural grounds without reaching the merits of the underlying constitutional claims, a certificate of appealability should issue only if the petitioner shows that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Here, no reasonable jurist could find that the Petition is not time-barred or that Petitioner qualifies for statutory or equitable *669tolling. See id. (‘"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.”). Accordingly, the Court will not issue a certificate of appealability.
CONCLUSION
For the foregoing reasons, Respondent’s motion to dismiss the Petition (R. 25) is GRANTED. Although the Court is sympathetic to Petitioner’s plight and finds that the Petition’s untimeliness was easily avoidable, Petitioner has failed to provide a reason to toll the applicable limitations period. The Court dismisses the Petition with prejudice because it is time-barred and declines to issue a certificate of ap-pealability.
. The 60-day period ended on Saturday, October 31, 2009, so Petitioner had until the following Monday to submit his corrected petition. See Sup.Ct. R. 30.1.
. The 186th day was Sunday, March 31, 2013. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224410/ | MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Life Time Fitness, Inc.’s (Life *671Time) partial motion for summary judgment on Count I. For the reasons stated below, the motion for summary judgment is denied.
BACKGROUND
Antowine Locke (Antowine), now deceased, was allegedly a member of a health and fitness club (Club) owned and operated by Life Time. Plaintiff Tracy A. Locke (Locke) was the wife of Antowine. On February 3, 2013, Antowine allegedly suddenly collapsed at the Club while playing basketball due to sudden cardiac arrest. Employees at the Club allegedly failed to retrieve an Automatic External Defibrillator (AED), which was available at the Club, to help Antowine. Over six minutes allegedly elapsed before Emergency Medical Services (EMS) personnel arrived at the scene and treated Antowine. EMS personnel were unable to save Antowine. Locke contends that Antowine died due to the negligence of employees at the Club which included: allegedly failing to use the AED on Antowine, allegedly incorrectly informing the 911 operator that Antowine was suffering from an asthma attack, allegedly failing to adopt an emergency response plan, allegedly failing to train employees at the Club to properly identify and respond to health emergencies, allegedly failing to have such trained employees present during business hours, and allegedly failing to provide proper crowd control following the collapse of Antowine. Locke brought the instant action and includes in her complaint a wrongful death claim (Count I), a claim alleging willful and wanton misconduct (Count II), and a claim brought pursuant to the Family Expense Act, 750 ILCS 65 et seq. (Count III). Life Time removed the instant action to federal court, and now moves for partial summary judgment on the wrongful death claim in Count I.
LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009). A “genuine issue” of material fact in the context of a motion for summary judgment is not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists when “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); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir.2000).
DISCUSSION
Life Time argues that Locke is barred from pursuing the wrongful death claim in the instant action under the terms of an exculpatory clause (Exculpatory Clause) in a member agreement (Member Agreement) signed by Antowine when he joined the Club. It is undisputed that the Member Agreement signed by Antowine provided in part the following:
ASSUMPTION OF RISK AND WAIVER OF LIABILITY
*672I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness center, the use of equipment and services at a Life Time Fitness center, and participation in Life Time Fitness’ programs. This risk includes, but is not limited to:
1) Injuries arising from the use of any Life Time Fitness’ centers or equipment, including any accidental or ‘slip and fall’ injuries;
2) Injuñes arising from participation in supervised or unsupervised activities and programs within a Life Time Fitness center or outside a Life Time Fitness center, to the extent sponsored or endorsed by Life Time Fitness;
3) Injuries or medical disorders resulting from exercise at a Life Time Fitness center, including, but not limited to, heart attacks, strokes, heart stress, sprains, broken bones and torn muscles or ligaments; and
4) Injuries resulting from the actions taken or decisions made regarding medical or survival procedures.
I understand and voluntarily accept this risk. I agree to specifically assume all risk of injury, whether physical or mental, as well as all risk of loss, theft or damage of personal property for me, any person that is a part of this membership and any guest under this membership while such persons are using or present at any Life Time Fitness center, using any lockers, equipment, or services at any Life Time Fitness center or participating in Life Time Fitness’ programs, whether such programs take place inside or outside of a Life Time Fitness center. I waive any and all claims or actions that may arise against Life Time Fitness, Inc., its affiliates, subsidiaries, successors or assigns (collectively, ‘Life Time Fitness’) as well as each party’s owners, directors, employees or volunteers as a result of any such injury, loss, theft, or damage to any such person, including and without limitation, personal bodily or mental injury, economic loss or any damage to me, my spouse, my children, or guests resulting from the negligence of Life Time Fitness or anyone else using a Life Time Fitness center. If there is any claim by anyone based on any injury, loss, theft or damage that involves me, any person that is a part of my membership, or any guest under this membership, I agree to defend Life Time Fitness against such claims and pay Life Time Fitness for all expenses relating to the claim, and indemnify Life Time Fitness for all obligations resulting from such claims.
I agree to and accept the terms and conditions above and I have received a complete copy of my Member Usage Agreement.
(R SF Par. 3)(emphasis added). Locke contends that she is not barred by the Exculpatory Clause from pursuing her wrongful death claim in this case. Locke argues that the alleged negligent conduct in this case was outside the scope of the anticipated conduct addressed in the Exculpatory Clause. Locke also argues that public policy weighs against enforcing the Exculpatory Clause. Under Illinois law, “exculpatory clauses exempting liability for negligence are generally disfavored” and are construed “strictly against the parties they benefit.” Cox v. U.S. Fitness, LLC, 377 Ill.Dec. 930, 2 N.E.3d 1211, 1215, 2013 WL 6699464, at *2 (Ill.App.Ct.2013); Hamer v. City Segway Tours of Chicago, LLC, 402 Ill.App.3d 42, 341 Ill.Dec. 368, 930 N.E.2d 578, 581 (2010). Thus, based on the facts in this case, the court finds that the terms of the Exculpatory Clause *673should be construed against Life Time and in favor of Locke.
I. Scope of Exculpatory Clause
Locke argues that although the Exculpatory Clause covers injuries resulting from a heart attack, the Exculpatory clause is silent on the issue of improper training of Life Time employees relating to responding to health emergencies. In order for an exculpatory clause to be valid, the clause “must spell out the intention of the parties with great particularity and will not be construed to defeat a claim which is not explicitly covered by their terms.” Hamer, 341 Ill.Dec. 368, 930 N.E.2d at 581 (internal quotations omitted)(quoting Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill.2d 378, 98 Ill.Dec. 1, 493 N.E.2d 1022 (1986)); see also Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 147 Ill.Dec. 187, 559 N.E.2d 187, 190 (1990))(stating that “an exculpatory clause, to be valid and enforceable, should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care” and that “[i]n this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution”). An injury not specifically contemplated in an exculpatory clause can also still be covered if it “fall[s] within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.” Hamer, 341 Ill.Dec. 368, 930 N.E.2d at 581 (internal quotations omitted)(quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 311 Ill.Dec. 521, 869 N.E.2d 195 (2007)).
Locke argues that if Life Time wanted to cover inadequate training in the Exculpatory Clause, Life Time should have included such terms in the Exculpatory Clause. Life Time points out that in the Exculpatory Clause, Antowine assumed the risk of “[finjuries arising from participation in supervised or unsupervised activities and programs within a Life Time Fitness center,” “[i]njuries ... resulting from exercise at a Life Time Fitness center, including, but not limited to, heart attacks” and “[i]injuries resulting from the actions taken or decisions made regarding medical or survival procedures.” (R SF Par. 3). Based on such language, it should reasonably have been understood by the parties that Antowine could not bring suit against Life Time based on the mere fact that he died of a heart attack at the Club when exercising, or based on the fact that Life Time staff made poor decisions when treating Antowine prior to the arrival of the EMS personnel. However, in the instant action, Locke asserts more than that Antowine died of a heart attack and that Life Time employees made several poor decisions that resulted in the death of An-towine. Locke contends that the poor decisions stemmed from a failure by Life Time during a prior period to properly train employees how to respond to such emergency situations. The alleged failure to train employees to be ready for emergency situations is separate and apart from a failure by employees to act wisely in the heat of the moment. Employees who were properly trained, for example, could still have made poor decisions during the emergency that could constitute negligence. Such decision-making is covered by the phrase “actions taken or decisions made regarding medical or survival procedures.” (CompLPar. 3). The allegation that Locke is relying on in this case is essentially that Life Time employees did nothing or at least nothing helpful for An-*674towine because they did not know what to do.
As indicated above, under Illinois law, exculpatory clauses are strictly construed against the benefactor of such clauses, which in this case is Life Time. Hamer, 341 Ill.Dec. 368, 930 N.E.2d at 581. Life Time was required to specifically identify improper training as an assumed risk in the Exculpatory Clause, and did not do so. Life Time seeks an inference in its favor that such risks relating to improper training were covered, but under Illinois law, the inferences must be made in favor of Locke, not Life Time. There are no specific terms in the Exculpatory Clause that would cover the type of training deficiencies alleged by Locke in the complaint. Nor are the alleged training deficiencies the types of risks that would fall within the scope of possible dangers ordinarily accompanying playing basketball at the Club. Life Time has not shown that the parties contemplated that Antow-ine would assume the risk for injuries resulting from the inadequate training of Life Time employees as to how to deal with health emergencies. For example, Antowine reasonably could have believed that employees at a fitness center, where individuals exercise and thus increase the likelihood of a heart attack, would be trained to recognize heart attack symptoms, and know the proper procedures to follow until EMS personnel arrives, and would not, as Locke claims, call 911 and report an asthma attack.
Life Time also argues that Antow-ine agreed in the Exculpatory Clause to assume the “inherent risk of injury,” and that improper training by Life Time employees was an inherent risk. Life Time also points out that in the Exculpatory Clause, Antowine waived any claims for injuries “resulting from the negligence of Life Time Fitness.... ” (R SF Par. 3). However, as indicated above, in order for Life Time to obtain coverage in the Exculpatory Clause for certain conduct that would not ordinarily be foreseeable, Life Time must specifically identify such conduct in the Exculpatory Clause. Life Time could have added inadequate training to the Exculpatory Clause but chose not to do so and it cannot rewrite the agreement at this juncture. Nor could Life Time cover all possible risks by generally referring to inherent risks or a blanket statement that Life Time cannot be held liable for negligence. See Cox, 377 Ill.Dec. 930, 2 N.E.3d at 1215, 2013 WL 6699464, at *2 (stating that “[g]eneral language is not sufficient to indicate an intention to absolve a party from liability for negligence”)(internal quotations omitted)(quoting Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill.App.3d 14, 274 Ill.Dec. 906, 792 N.E.2d 1 (2003)).
Life Time cites Cox in support of its position. (Reply 4). In Cox, the plaintiff fell and injured her wrist during a personal training session at the defendant fitness center. 377 Ill.Dec. 930, 2 N.E.3d at 1214, 2013 WL 6699464, at *1. Life Time argues that Cox is on point because the plaintiff in that case based her claim upon an alleged training deficiency. However, in Cox, the training at issue related to the training given by fitness center employees to customers on how to use the fitness equipment. Id. Cox did not involve training of employees by the fitness center or training relating to responding to health emergencies such as in the instant action. The exculpatory clause in Cox also technically covered the alleged injury unlike in the instant action. In Cox, the exculpatory clause at issue covered risks relating to “fitness advisory services,” and the court concluded that phrase technically encompassed when a customer was being instructed by a personal trainer and when *675the customer is “injured during a personal training session due to inadequate or faulty instruction.” Id. In the instant action, however, the language in the Exculpatory Clause relating, for example, to the “[ijnjuries resulting from the actions taken or decisions made regarding medical or survival procedures” does not specifically encompass the training of Life Time employees to respond to health emergencies. Thus, unlike in Cox, the exculpatory clause at issue does not on its face encompass the conduct or injury alleged in the complaint. Life Time has therefore not shown that the Exculpatory Clause precludes the negligence claim in this action.
The court notes that Locke argues that Life Time’s motion for summary judgment should be denied because there are genuinely disputed facts as to the intent of the parties when entering into the Membership Agreement. However, Antowine is deceased and can no longer shed any light as to his intent. Nor have the parties pointed to other extrinsic evidence in the record relating to intent that would create any genuinely disputed facts as to intent. The plain language of the Exculpatory Clause fails to explicitly cover the training issue, and Life Time has not pointed to any evidence relating to intent that would create a factual issue. Therefore, there is no need for that issue to proceed to the jury. Therefore, the wrongful death claim brought by Locke is not barred to the extent that it is premised on an alleged failure to properly train Life Time employees in regard to responding to health emergencies.
The court also notes that the only basis put forth by Locke in her response to the instant motion for avoiding coverage under the Exculpatory Clause is that she is basing her negligence claim on the alleged inadequate training of Life Time employees. (Ans.l, 4-10). In the complaint, however Locke alludes to other alleged negligent conduct by Life Time employees such as failing to use the AED and failing to use proper crowd control procedures. (CompLPar. 12). As this case proceeds, Locke will be precluded from changing her position and raising additional bases for her negligence claim in this action beyond the alleged improper training of Life Time employees.
II. Public Policy
Locke argues that to enforce the Exculpatory Clause would be contrary to public policy in Illinois. If the exculpatory clause “clearly applies],” a court should “generally enforce [the clause] unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.” Hamer, 341 Ill.Dec. 368, 930 N.E.2d at 581 (internal quotations omitted)(quoting Jackson v. First National Bank of Lake Forest, 415 Ill. 453, 114 N.E.2d 721 (1953)). Locke argues that she is 44 years old and is now raising a teenage son without Antowine. Locke also argues that the Exculpatory Clause was merely displayed to Antowine on a computer screen and that he signed on an electronic keyboard. Locke argues that it would be unfair to hold the widow of An-towine to the terms of the Exculpatory Clause. Such facts are insufficient to show that enforcement of the Exculpatory Clause is contrary to public policy. Regardless of the personal circumstances of members at Life Time, Life Time has a valid interest in limiting its exposure to liability for injuries. Such exculpatory clauses have been found valid under Illinois law, as long as they are properly drafted. See Hellweg v. Special Events Management, 353 Ill.Dec. 826, 956 N.E.2d 954, 956 (2011)(stating that “[p]arties in Illinois may generally contract away liabili*676ty for their own negligence”). Such clauses enable businesses to engage in commerce without incurring excessive financial risks that might otherwise make doing business prohibitively expensive. Illinois public policy also supports the honoring of contractual agreements. The evidence in this case indicates that Antowine was a consenting adult of sound mind and that he voluntarily signed the Membership Agreement in order to be permitted in exchange to join the Club. Public policy does not support interfering in such a contractual agreement between consenting parties. See Hussein v. L.A. Fitness Intern., L.L.C., 369 Ill.Dec. 833, 987 N.E.2d 460, 465 (2013)(stating that “Illinois will not ‘interfere with the rights of two parties to contract with one another if they freely and knowingly enter into the agreement’ ”)(quoting Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 147 Ill.Dec. 187, 559 N.E.2d 187, 190 (1990)). Locke may be the widow of An-towine, but she is suing both individually and as the Special Administrator of An-towine’s estate and thus there is nothing unfair about enforcing the Exculpatory Clause in this case, which was signed by Antowine. Illinois state courts “have held that [exculpatory] clauses are enforceable and not against public policy.” Cox, 377 Ill.Dec. 930, 2 N.E.3d at 1220, 2013 WL 6699464, at *7. Locke has not pointed to any other facts that show that the Exculpatory Clause harms the public welfare or is contrary to Illinois public policy. Thus, the Exculpatory Clause is not contrary to public policy and is enforceable and covers the alleged negligent conduct referenced in the complaint except to the extent that Locke seeks to recover for alleged inadequate training of Life Time employees. Based on the above, Life Time’s partial motion for summary judgment on Count I is denied.
CONCLUSION
Based on the foregoing analysis, Life Time’s partial motion for summary judgment on Count I is denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217881/ | MEMORANDUM **
Bonifacio Ramirez-Adan, a native and citizen of Mexico, appeals the district *983court’s denial of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2241, challenging the denial of suspension of deportation. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo a district court’s denial of a petition for writ of habeas corpus, Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002), and we affirm on other grounds.
The district court improperly determined that it lacked jurisdiction to consider Ramirez-Adan’s habeas petition contending that the BIA’s extreme hardship finding was not made in accordance with the law. See Gutierrez-Chavez v. INS, 298 F.3d 824, 828 (9th Cir.2002).
REVERSED and REMANDED for further proceedings.
This disposition is not appropriate for publication and may not be cited to or by the *983courts 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/7217882/ | MEMORANDUM **
Harolyn Anita Kesington appeals pro se the district court’s summary judgment in favor of Teamsters Local Union No. 63 and Roadway Express, in Kesington’s action alleging employment discrimination on the basis of race in violation of Title VII of the Civil Rights Act (42 U.S.C. § 2000e). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994), and we affirm.
The district court properly granted summary judgment to Roadway Express because Kesington failed to establish a genuine issue of material fact as to whether other employees who were similarly situated and not within her protected class were treated more favorably than she was, when she was not hired as a full-time regular Notify Clerk on July 11, 2000. See Aragon v. Republic Silver State Disposal, 292 F.3d 654, 658 (9th Cir.2002). Kesington similarly failed to establish a genuine issue of material fact as to whether Roadway Express’ articulated legitimate, nondiscriminatory reason for promoting another employee before Kesington was pretext for discrimination. See Wallis, 26 F.3d at 889-90.
The district court properly granted summary judgment to the Teamsters Local *984Union No. 63 because Kesington failed to raise a genuine issue of material fact as to whether the Union discriminated against her in the assignment of her seniority date. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Moreover, Kesington presented no evidence that the Union failed to file or process her grievances concerning her allegations of race discrimination.
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/7217884/ | MEMORANDUM***
Ron Kvilhaug appeals the district court’s order granting summary judgment in favor of Exxon Mobil on his Montana Human Rights Act (“MHRA”) claim. The facts are known to the parties and will not be repeated herein except as necessary.
We review de novo the district court’s decision to grant summary judgment. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). In order to survive summary judgment on his “regarded as” disabled claim under the MHRA, the burden is on Kvilhaug to make out a prima facie case that his employer regarded him as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” See 29 C.F.R. § 1630.2(i)(3)(i); Butterfield v. Sidney Pub. Schs. & The Human Rights Comm’n of the State of Montana, 306 Mont. 179, 182-83, 32 P.3d 1243 (2001).
Viewing the evidence in the fight most favorable to Kvilhaug, we must conclude he has failed to meet that burden here. Kvilhaug remains employed with Exxon since his removal from positions designated as safety-sensitive, see EEOC v. Exxon Corp., 124 F.Supp.2d 987, 1007 (N.D.Tex.2000) (“Retention of an employee in other positions has been found to suggest that an employer does not perceive an employee as substantially limited in working.”) (emphasis in original), and he concedes that he is not precluded from holding 86.5% of all jobs within the refinery. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (“If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs.”); Tardie v. Rehab. Hosp. of Rhode Island, 168 F.3d 538, 542 (1st Cir.1999) (“an impairment that disqualifies a person from a narrow range of jobs is not considered a substantially limiting one.”).
More importantly, Kvilhaug has presented no evidence that his employer regards him as significantly restricted in his ability to work in the “geographical area” to which he has “reasonable access.” See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 795 (9th Cir.2001) (“[A] plaintiff must present specific evidence about relevant labor markets to defeat summary judgment on a claim of substantial limitation of working.”) (emphasis added); Carroll v. Xerox Corp., 294 F.3d 231, 240 (1st Cir.2002) (affirming summary judgment in favor of employer on a “regarded as” claim because plaintiff presented no evidence such as “expert vocational testimony, or publicly available labor market statistics”); Zarzycki v. United Techs. Corp., 30 F.Supp.2d 283, 291 (D.Conn.1998) (granting summary judgment to employer because plaintiff “did not take into consideration the specific job market in the geographic area to which plaintiff had reasonable access, such as the area from which plaintiff could reasonably commute .... ”). In short, Kvilhaug has “wholly failed to show that [his] employment opportunities within [his] geographic area *986[are] generally foreclosed.” Exxon, 124 F.Supp.2d at 1010-11.
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/7217886/ | MEMORANDUM **
Jose Colin-Correa appeals his guilty-plea conviction and 33-month sentence for harboring illegal aliens and engaging in a related monetary transaction, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and 18 U.S.C. § 1957. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Colin-Correa’s counsel has filed a brief stating that he finds no meritorious issues for review, and requesting to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the briefs and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no arguable issues for review on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED and, in light of the appeal waiver, 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/7217887/ | MEMORANDUM **
Marcus Bridges appeals his guilty-plea conviction and 84-month sentence for use of a communication facility to facilitate a drug trafficking offense in violation of 21 U.S.C. § 843(b), and failure to report a felony in violation of 18 U.S.C. § 4. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Bridges’ counsel has filed a brief stating that he finds no meritorious issues for review, along with a motion to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the briefs and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no arguable issues for review on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED and, in light of the appeal waiver, 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/7217888/ | MEMORANDUM **
Gustavo Evaristo Cuevas-Gavino appeals his guilty-plea conviction and 57-month sentence for being found in the United States after having been previously deported, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cuevas-Gavino’s counsel has filed a brief stating that he finds no meritorious issues for review, along with a motion to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the briefs and our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no arguable issues for review on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment 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 Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217889/ | MEMORANDUM **
Leslie Matthews appeals her 51-month sentence imposed following her guilty-plea conviction for mail fraud, in violation of 18 U.S.C. §§ 1341 and 2. Matthews’ counsel filed a motion to withdraw as counsel of record and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Matthews has not filed a pro se supplemental brief, and the government did not file an answering brief.
Based upon our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 *990(1988), we conclude that Matthews was sentenced within the terms of her plea agreement and has knowingly and voluntarily waived her right to appeal. See United States v. Nguyen, 235 F.3d 1179, 1182-83 (9th Cir.2000); United States v. Martinez, 143 F.3d 1266, 1270-72 (9th Cir.1998). We therefore lack jurisdiction over this appeal. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999).
Accordingly, counsel’s motion to withdraw as counsel of record is GRANTED, and this 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/7217890/ | MEMORANDUM **
Oscar M. Tamez appeals the 97-month sentence imposed following his guilty plea conviction for conspiracy to distribute methamphetamine and/or marijuana and drug possession/distribution in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. We dismiss for lack of jurisdiction.
Tamez contends the district court erred by departing downward only five levels based on substantial assistance pursuant to U.S.S.G. § 5K1.1 and by departing downward only two levels based on family ties and responsibilities pursuant to U.S.S.G. § 5H1.6 and 5K2.0. We lack the jurisdiction to review the extent of a district court’s downward departure. See United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.1990).
DISMISSED.
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/7217892/ | MEMORANDUM **
The Immigration and Naturalization Service appeals the district court’s grant of habeas relief to Appellee Phong Thanh Nguyen.
The district court held that § 212(h) of the Immigration and Nationality Act (“INA”), as amended by § 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), violates the equal protection clause by denying consideration of discretionary relief from deportation to legal aliens convicted of “aggravated felonies,” but permitting consideration of relief from deportation to illegal aliens convicted of the same offenses.
Our recent decision in Taniguchi v. Schultz, 303 F.3d 950 (9th Cir.2002) controls. We held that there is a rational basis for denying a § 212(h) waiver to aggravated felon legal aliens but not to other aliens. Id. at 957-58. The order of the district court is REVERSED.
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/7217893/ | MEMORANDUM ***
Appellant Norma Jean Dalton appeals the district court’s judgment in favor of Linda Townsend and its award of attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Appellant claims that under Arizona law, Businessmen’s Assurance (“BMA”) waived compliance with its change of beneficiary procedures by filing this interpleader action, and that the court therefore must look to the intent of the insured to determine the beneficiary of Bobby Townsend’s life insurance policy. However, the Arizona Supreme Court has held that an insurer does not waive compliance with its change of beneficiary procedures by filing an interpleader action if the insurer demands compliance with those procedures during the insured’s lifetime. McLennan v. McLennan, 29 Ariz. 191, 240 P. 339, 340-41 (Ariz.1925). BMA twice informed Bobby Townsend that it would require compliance with its procedures before changing his beneficiary. It therefore did not waive compliance with those procedures when it later interpled the proceeds of his policy in an attempt to protect itself from double payment.1
Even if we were to find that BMA had waived compliance with its change of beneficiary procedures and that we should therefore look to Bobby Townsend’s intent, we would affirm the decision of the district court. The question of a decedent’s intent regarding the beneficiary of an insurance policy is a question of fact. See Equitable Life Assurance Society of the United States v. McKay, 861 F.2d 221, 223-24 (9th Cir.1988). We review the district court’s findings of fact following a bench trial for clear error. Dubner v. City and County of San Francisco, 266 F.3d 959, 964 (9th Cir.2001). The district court in this case found that Bobby Townsend intended that his wife Linda would remain the sole beneficiary of the policy. The evidence supports this finding. Bobby was aware from his correspondence with BMA that the change of beneficiary form would not become effective until he obtained Linda’s signature, yet he never asked her to sign the form. He reconciled with Linda after he attempted to change the beneficiary, and he told Linda that she could use the insurance proceeds to pay off the house that they had purchased after they reconciled and after Bobby learned that he had a terminal illness. Moreover, Bobby reimbursed Dalton for the payments she had made on the policy. In light of this evidence, we cannot say that the district court *994clearly erred in finding that Bobby intended his wife Linda to be the sole beneficiary of the policy.
We also reject Dalton’s challenge to the district court’s award of attorney’s fees. We review an award of attorney’s fees made pursuant to state law for abuse of discretion. Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 888 (9th Cir.2000). In this case, the district court awarded Linda Townsend $14,000 in attorney’s fees. Dalton claims that the award will cause her undue hardship, given her limited monthly income of $1022. However, Dalton bears the burden to produce prima facie evidence of financial hardship, Woerth v. City of Flagstaff, 167 Ariz. 412, 808 P.2d 297, 805 (Ariz.App.1990), and she has not done so. Moreover, as the district court noted, Dalton has no dependents, she has paid off her house and she received $50,000 in proceeds from an unrelated insurance policy issued to Bobby Townsend. The district court therefore did not abuse its discretion in awarding $14,000 in fees to Linda Townsend.
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 Circuit Rule 36-3.
. The cases on which Dalton relies do not compel a different result, as the insurers in those cases did not demand full compliance with their change of beneficiary procedures during the insureds’ lifetime. See Burkett v. Mott, 152 Ariz. 476, 733 P.2d 673 (Ariz.App.1986); Doss v. Kalas, 94 Ariz. 247, 383 P.2d 169 (Ariz.1963); Sears v. Austin, 292 F.2d 690 (9th Cir.1961). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217894/ | MEMORANDUM **
Shane Joseph Corona appeals his 120-month sentence for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Corona contends that the district court erred in not fully explaining its reasons for not applying the safety valve provision, U.S.S.G. § 5C1.2(a)(l). Even assuming the district court did not satisfy this standard, the mistake is subject to harmless error review. United States v. Mendoza, 121 F.3d 510, 513 (9th Cir.1997). Because Corona has a criminal history score of II, as established in the Presentence Report (“PSR”), he is ineligible for the safety *995valve provision. U.S.S.G. § 501.2(a)(1). Therefore, the error, if any, was harmless.
Corona also contends that the district court erred in relying on the DUI conviction to calculate his criminal history score because the Probation Office allegedly never received the underlying police records before determining Corona’s criminal history based on computer and court records. We held in United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir.1998), that the government may rely on the PSR to establish defendant’s criminal history by a preponderance of the evidence. Because Corona failed to set forth any evidence contradicting the DUI conviction as documented in the PSR, the district court did not abuse its discretion in relying on the PSR to deny Corona the benefits of the safety valve provision. Id.
Corona’s due process collateral attack on the DUI proceedings also fails. To prevail, Corona must present affirmative evidence sufficient to overcome the presumption that he validly waived the right to counsel. Clawson v. United States, 52 F.3d 806, 807 (9th Cir.1995); United States v. Dominguez, 316 F.3d 1054, 1056 (9th Cir.2003). The court records indicate, however, that rather than being deprived the assistance of counsel at the DUI proceedings, Corona in fact entered his DUI guilty plea under representation of counsel. He thus cannot establish a violation of due process sufficient to challenge the DUI conviction.
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. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217895/ | MEMORANDUM **
Dolores Ayala-Valverde (“Ayala”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal from the Immigration Judge’s order finding her removable for alien smuggling. We have jurisdiction pursuant to 8 U.S.C. § 1252, and deny the petition.
Ayala argues that her removal order violates due process. But the record establishes that Ayala received notice of the government’s proposed action, and was afforded a full and fair hearing. The pertinent statute renders removable any alien *996who knowingly encourages, induces, assists, abets, or aids any other alien in unlawfully entering the United States. See 8 U.S.C. § 1227(a)(1)(E)(i). Having reviewed the record, we are satisfied that the government carried its burden of proving by clear and convincing evidence that Ayala was removable. See 8 U.S.C. § 1229a(c)(3)(A).
To the extent, if any, that one construes Ayala’s due process argument as impheat-ing substantive, due process rights, her argument fails because she has not identified a fundamental liberty interest allegedly affected by her removal proceedings. See Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (for discussion of relevant principles with citation to authorities).
In the alternative, Ayala contends that she is eligible for cancellation of removal. Ayala never raised this claim before the BIA. Consequently, she has not exhausted her administrative remedies, and we lack jurisdiction to review her argument. See 8 U.S.C. § 1252(d)(1). But even if the court were inclined to entertain Ayala’s argument, she is not eligible for cancellation of removal having previously been granted a waiver of deportation. See 8 U.S.C. § 1229b(c)(6). Her claim would therefore fail for lack of prejudice, a necessary predicate for any due process claim. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.2000).
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/7217897/ | MEMORANDUM ***
Petitioner Reyna Saldana (“Saldana”) seeks review of a decision of the Board of Immigration Appeals (“BIA”), dismissing her appeal of the Immigration Judge’s (“IJ”) denial of her motion to rescind an in absentia deportation order and to reopen deportation proceedings to apply for suspension of deportation.
Saldana contends that she failed to be present at her deportation hearing because her attorney advised her that “her case was over and she need not appear for the hearing.” Saldana’s claim of exceptional circumstances is therefore based on ineffective assistance of counsel. She did not comply, however, with the threshold requirements of Matter of Lozada, 191 I. & N. Dec. 687, 639, 1988 WL 235454 (BIA 1988), when submitting this claim to the IJ. Saldana did substantially comply with those requirements when her case was before the BIA, but the BIA nevertheless dismissed her appeal.
That decision was not an abuse of discretion. Saldana’s motion to reopen alleges only that her attorney told her not to worry about continuing with her asylum application. Her allegations, even if accepted as true, do not provide sufficient cause for her failure to appear at the later deportation hearing. Further, Saldana admits to receiving written notice of the consequences of a failure to appear, but claims that she “failed to properly read and understand the language” of the Order to Show Cause, even though she has also admitted to fluency in English. She later contended that placement of the hearing date on the fifth page of the Order infringed her due process rights, but does not press this claim in the present petition. Finally, even though Saldana terminated her attorney’s representation before receiving the Order to Show Cause, she claims a continuing reliance on his earlier statements concerning her asylum application when she failed to appear for the deportation hearing. Under such circumstances, the BLA’s determination that Sal-dana did not demonstrate exceptional circumstances was within its discretion.
However, because Saldana never received oral notice that her failure to *1000appear for the deportation hearing would render her ineligible for suspension of deportation, she may still be eligible for that form of discretionary relief. See 8 U.S.C. § 1252b(e)(1), (e)(5); Matter of M-S- 22 I. & N. Dec. 349 (BIA 1998). Therefore, as the INS properly concedes, remand is appropriate to allow the BIA to consider Saldana’s motion to reopen to apply for suspension of deportation.
PETITION GRANTED IN PART AND DENIED 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/7217899/ | MEMORANDUM**
Kitrich A. Powell, an inmate at Nevada’s Ely State Prison, appeals the dismissal of all claims but a claim for retaliation in his 42 U.S.C. § 1983 action. E.K. McDaniel, Dwight Neven, Gilbert Cunningham, Gerald Thompson, Scotty Neads, and Becki Lopez (collectively “prison officers”), cross-appeal from a judgment entered following a jury trial on Powell’s retaliation claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the judgment in Powell’s favor on his retaliation claim. We also affirm without prejudice the district court’s dismissal of Powell’s claim that his out-going mail to counsel was diverted, and we affirm the dismissal of his remaining § 1983 claims with prejudice.
I
On April 8, 1999, the magistrate judge issued a “screening” order pursuant to 28 U.S.C. § 1915(e)(2)(B) dismissing Counts II, II-A, II-B, III-A and III-B of Powell's complaint. After Powell moved for clarification, the magistrate judge issued a report and recommendation on July 13,1999, which recommended that the district judge construe his screening order as a report and recommendation, providing Powell an opportunity to file specific written objections. The July 13, 1999 report and recommendation also recommended that the district judge grant the prison officers’ motion for judgment on the pleadings with respect to paragraphs one through four of Count III; this the district court did by minute order dated August 3, 1999. However, the district court never acted on the recommendation that it construe the screening order as another report and recommendation, nor did it ever enter an order dismissing any counts of the complaint, which it was required to do since the magistrate judge lacks power to enter a dispositive order. See 28 U.S.C. § 636. This would ordinarily mean that there is not a final judgment for us to review since there are still claims pending before the district court, and thus, that we would lack appellate jurisdiction. See Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir.1981) (holding that summary judgment order that does not dispose of all claims between *3parties does not confer appellate jurisdiction because it is not a final decision under 28 U.S.C. § 1291).
In this case, however, it is clear from the district court’s memorandum decision and order denying the prison officers’ summary judgment motion on the retaliation claim that it believed only the retaliation claim remained to be decided while all of Powell’s other claims had been dismissed. The district court noted that the magistrate judge screened Powell’s initial complaint and that “[a]ll but one cause of action were dismissed.” The district court further explained that claims from Counts I and III of Powell’s complaint “were combined and allowed to go forward as a single count of retaliation.... All other claims in the complaint were dismissed.” Because the district court believed it had previously dismissed all claims but Powell’s retaliation claim and it intended the jury verdict on the retaliation claim to dispose of all claims between the parties, we “construe the district court’s judgment as an attempt to dispose of all claims in the action, and we find that no practical benefits would accrue from a dismissal for lack of appellate jurisdiction.” The Squaxin Island Tribe v. Washington, 781 F.2d 715, 719 (9th Cir.1986).
In reaching the merits of this issue, the district court did not err by dismissing all claims but Powell’s retaliation claim. The facts set out are insufficient to state a claim upon which relief can be granted. However, we cannot say that there is no possibility that a claim could be made out on Powell’s conclusory assertion that his out-going mail to counsel was diverted. We affirm the district court’s dismissal as to this assertion without prejudice, and affirm its dismissal of all other claims with prejudice.
II
We decline to entertain Powell’s argument that the district court should have granted summary judgment in his favor sua sponte when it denied the prison officers’ motion for summary judgment. This is the equivalent of appealing the denial of a motion for summary judgment, which is not a final, appealable order. See Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir.2002). In any event, although a court has power sua sponte to grant summary judgment to a non-moving party, Kassbaum v. Steppenwolf Prods., Inc., 236 F.3d 487, 494 (9th Cir.2000), it has no obligation to do so.
III
Neither argument raised by the prison officers on their cross-appeal from judgment requires reversal. The district court was within its discretion to exclude Powell’s prior conviction based on its determination that its prejudicial effect outweighed its probative value, even for purposes of impeachment, under Federal Rule of Evidence 403. The court also acted well within its discretion in denying the prison officers’ motion to amend the pretrial scheduling order to allow time to file a motion to dismiss and for partial summary judgment. It is not manifestly unjust to refuse the prison officers an opportunity to argue exhaustion because exhaustion is not jurisdictional, see Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003), and it is no excuse that the Attorney General’s office was too busy to present the issue in a timely fashion. See Fed.R.Civ.P. 16(e).
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/7217900/ | MEMORANDUM***
Corey Keith Woodard was tried and convicted on two counts of felony drug distribution, one count of felony drug possession with the intent to distribute, and one count of unlawfully possessing a firearm; his criminal conviction and sentence were affirmed on direct appeal. Woodard appeals from the district court’s denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He argues the following: 1) that he was denied effective assistance of counsel based on defense counsel’s failure to offer to stipulate to the existence of Woodard’s prior convictions, details of which were offered in evidence by the government at trial without objection, and 2) that the issue of drug quantity was not determined by the jury as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).1 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
*5We review the denial of a § 2255 motion or petition de novo. United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir. 2002), cert. denied, — U.S. -, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002). Findings of fact relevant to a denial of habeas corpus are reviewed for clear error. Anderson v. Calderon, 232 F.3d 1053, 1084 (9th Cir.2000). A claim of ineffective assistance of counsel is a mixed question of law and fact reviewed de novo. Id.
In his opening statement at trial, the prosecutor stated Woodard had twice before been convicted of distributing crack cocaine; prior to calling its first witness, the government introduced, without objection, certified copies of those prior convictions. In Old Chief v. United States, 519 U.S. 172, 174, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), the court held that it was an abuse of discretion for a district judge to reject an offer to stipulate when the “name or nature of the prior offense raises the risk of a verdict tainted by improper considerations.” Had defense counsel offered to stipulate to Woodard’s prior felony convictions, the district judge would presumably have accepted the offer. Counsel’s failure to make such an offer allowed the government to present, in its proof on the charge of felon in possession of a firearm, the name and details of Woodard’s two prior offenses for cocaine distribution, closely related if not identical to three of the five counts charged in the indictment.
Assuming without deciding that Woodard’s counsel was ineffective in failing to offer to stipulate to the prior felony convictions, to prevail, Woodard must show not only that his attorney rendered deficient performance, but that the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686. Woodard must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
The Old Chief court noted that the risk of unfair prejudice associated with offering evidence of prior convictions similar in nature to the current charge will vary case to case. 519 U.S. at 185. “That risk ... will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning.” Id. Here, the fear that the jury was so distracted by the prior convictions that it failed to focus on the current charges is unfounded. The jury, demonstrating it was not so seduced by the details surrounding Woodard’s prior convictions, acquitted on count I, the only charge unsupported by audio or video tape.
The charges on which Woodard was convicted were supported by evidence including an eyewitness government informant, corroborated by the testimony of a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, and video and audio tapes of material conversations between the informant and Woodard. Assuming the failure to stipulate amounted to error under Strickland, based on the record before us, we cannot say that had there been a stipulation to Woodard’s prior felony drug convictions, “the factfinder would have had a reasonable doubt respecting guilt.” *6Strickland, 466 U.S. at 695. Accordingly, Woodard was not denied effective assistance of counsel.
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.
. In United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002), cert. denied,U.S.-, 123 S.Ct. 48, 154 L.Ed.2d 243 *5(2002), we held that "Apprendi does not apply retroactively to cases on initial collateral review,” and thus, we need not address further Woodard's Apprendi-based challenge as it is foreclosed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217901/ | MEMORANDUM **
Appellants, defendants Aurora National Life Assurance Company and New California Life Holdings, Inc. (“Aurora”), file this interlocutory appeal from the district court’s order granting in part and denying in part a motion to dismiss filed by all defendants. Aurora appeals the district court’s denial of its motion to dismiss plaintiffs state tort claim of interference with business expectancy. Plaintiff, Sierra National Insurance Holdings, Inc. (“Sierra”), cross-appeals dismissal of its RICO claims and its state tort claim of negligent interference with business expectancy.
The parties seek appellate review on the basis of 28 U.S.C. § 1291, which is warranted on an interlocutory basis only under the collateral order rule, which provides “that certain orders may be appealed, notwithstanding the absence of final judgment, but only when they are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from the final judgment in the underlying action.” Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 202, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (internal quotation omitted).
Aurora appeals from the denial of its motion to dismiss, in which it asserted immunity from suit under Cal. Civ.Code § 47(b) and Cal. Ins. Code § 12919. A denial of a motion to dismiss would normally not be a final reviewable order, but a ruling denying a claim of immunity from suit, as opposed to a mere defense to liability, is immediately appealable under the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (privilege not to stand trial is effectively lost if a case erroneously goes to trial).1
We agree with Aurora that Cal. Civ. Code § 47(b) provides not merely a defense to liability, but an immunity from suit. See Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, 369-70 (Cal.1990); Howard v. Drapkin, 222 Cal.App.3d 843, 864, 271 Cal.Rptr. 893 (1990). California has provided by statute a right not to stand trial or to face the burdens of litigation, a right which is effectively lost if a case erroneously goes to trial. This important interest warrants immediate appellate review.2
*8We therefore consider whether the communications made by Aurora in relation to the rehabilitation proceedings fall within the Section 47(b) privilege. The privilege applies to any communication “(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg, 266 Cal.Rptr. 638, 786 P.2d at 369.
The district court properly found that Aurora’s communications did not fall within this privilege. The function of the rehabilitation proceeding was exceptionally narrow—to reorganize the failed insurance company—and not to resolve legal disputes between potential bidders. The communications were thus not “made in judicial or quasi-judicial proceedings” of the type described in Cal. Civ. Code § 47(b). Moreover, the statements did not “have some connection or logical relation” to the rehabilitation proceeding, and thus are not protected communications under Section 47(b). See Sacramento Brewing Co. v. Desmond, Miller & Desmond, 75 Cal.App.4th 1082, 1089, 89 Cal.Rptr.2d 760 (1999) (explaining that “logical-relation” test for the litigation privilege includes requirement that communication be in furtherance of the objects of the litigation).
We AFFIRM the district court’s denial of Aurora’s motion to dismiss on the grounds of immunity under Cal. Civ.Code § 47(b). All other issues presented in this appeal are DISMISSED for lack of jurisdiction.
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.
. Aurora would also have us reach the question of Sierra’s standing in this interlocutory appeal, arguing that we have pendent appellant jurisdiction over the question. Unlike the immunity issue, however, standing is potentially quite fact-dependant in this case and can be adequately addressed after a final decision is entered. Although the Supreme Court happened to address the question of standing on interlocutory appeal in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), nothing in that opinion indicates that an appellate court must do so. Indeed, the Court has previously made it quite clear that the exercise of pendant appellate jurisdiction is discretionary and should be reserved for rare cases in which the rulings are “inextricably intertwined.” Swint v. Chambers County Commission, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). This is not such a case. We therefore heed the Court’s caution that "loosely allowing pendent appellate jurisdiction would encourage parties to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets,” id. at 49-50, and decline to address the question of Sierra’s standing at this time.
. In contrast, there is no case law or legislative history to suggest that Cal. Ins. Code § 12919 is an immunity from suit versus a *8mere defense, and we thus lack jurisdiction to address the merits of the district court’s ruling that Section 12919 does not immunize Aurora from liability. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217903/ | MEMORANDUM**
Carlos Tomas Garcia, a California state prisoner, brought this action alleging that prison officials violated his constitutional rights by exposing him to second-hand smoke, refusing to provide proper medical care for his smoke-related illnesses, and retaliating for his grievance filings. The district court granted summary judgment, ruling there was no constitutional violations and that Garcia failed to exhaust his available administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
DISCUSSION
1. Eighth Amendment Claim
We have held that “it is cruel and unusual punishment to house a prisoner in an environment that exposes him to environmental tobacco smoke (‘ETS’) at such levels and under such circumstances that it poses an unreasonable risk of harm to his health.” See McKinney v. Anderson, 959 F.2d 853, 853 (9th Cir.1992), aff'd Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The district court assumed that Garcia’s claims of exposure were true, but nonetheless ruled there was no evidence that defendants (other than Andreasen) were “deliberately indifferent to [Garcia’s] plight.” We agree. The uncontroverted evidence indicates that the prison physicians (Gross and Mitchell) treated Garcia by providing medication for his symptoms and by issuing him a medical directive for housing with nonsmokers. There is no evidence that other defendants (Ramirez-Palmer, Maddock, Khoury, Olivas, or Broderick) had any knowledge of either Garcia’s condition or that he was being exposed to second-hand smoke. Finally, defendant Robbins may have known of Garcia’s complaint, but that was before Garcia was diagnosed with any smoking-related ailments and before the prison doctor recommended that Garcia be housed with nonsmokers. As the district court noted, Robbins had no “objective medical basis to alter plaintiffs housing arrangements.”
2. Due Process Violation
A prisoner’s constitutional right to “meaningful access to the courts extends to established prison grievance procedures.” See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995). To establish a due process violation, the prisoner must demonstrate “that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline.” See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994). We agree with the district court that there is no evidence of retaliation. Garcia’s grievances were rejected because he failed to follow prison regulations requiring him to first attempt *13to resolve his complaint informally with a supervisory official. Moreover, the prison’s attempts to restrict excessive non-emergency grievances support legitimate penological goals.
3. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires that an inmate exhaust all available administrative remedies even when the inmate seeks only monetary relief and the inmate grievance procedure offers no such relief. See Booth v. Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). There is no dispute that if Garcia ever exhausted his administrative remedies, it occurred long after he filed this action. The district court correctly applied Booth in granting defendant Andreasen’s motion for summary judgment. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (“[A] rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law”.).
4. Case Management Rulings
Garcia objects to every ruling made by the district court, including the denial of motions for sanctions, appointment of counsel, appointment of expert witnesses, entry of default, reconsideration, judicial notice, and extensions of time. We limit our review, however, to the issues actually discussed in his brief—the court’s refusal to appoint counsel and expert witnesses.
District courts lack the authority to require counsel to represent indigent prisoners in civil rights cases. See Mallard v. U.S. District Court, 490 U.S. 296, 298, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). In exceptional circumstances, the court may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1). Here, the district court properly concluded that there were no exceptional circumstances that warranted appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986).
District courts have the authority to appoint expert witnesses. See Students of Cal. Sch. for the Blind v. Honig, 736 F.2d 538, 549 (9th Cir.1984) (citing Federal Rule of Evidence 706), vacated on other grounds, 471 U.S. 148, 105 S.Ct. 1820, 85 L.Ed.2d 114 (1985). There was no need to do so here. Garcia sought experts to establish the amount of exposure and the harm it may have caused him. These were not controverted subjects, however, for purposes of defendants’ motions for summary judgment. Rather, the district court assumed both the exposure and the harm but concluded correctly that there was no evidence of deliberate indifference.
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/7217905/ | MEMORANDUM ***
Nancy Dzina appeals from the district court’s dismissal of her counterclaim against North American Company for Life Insurance for breach of contract and breach of the implied covenant of good faith and fair dealing. Nancy alleged that North American breached its contractual and implied duties when it failed to cancel or modify the life insurance policy issued on her life as she requested. She also argued that the policy was void because no insurable interest existed at the time the policy issued. The District Court concluded that North American had breached no contractual or implied duties and that a viable insurable interest existed at the time that the policy issued. We affirm.
I.
Because the parties are familiar with the facts of this case, we set out the factual *17background only to the extent necessary to discuss the disposition of the case.
In August 1999, Nancy decided to replace her then-existing life insurance policy with one issued by North American. The application for the replacement of the policy received by North American designated her ex-husband, Daniel Dzina, as the named beneficiary. Nancy alleges that in May of 2000, Daniel informed her that the North American policy had lapsed for nonpayment of premiums and he asked her to sign a blank “reinstatement” form. As part of the reinstatement, she also signed a blank change in beneficiary and/or ownership form. She asserts that Daniel and an Ohio insurance agent, Gilbert Singer-man, fraudulently altered these forms after she signed them, naming Northpoint Properties, Daniel’s company, as the policy owner and primary beneficiary. Nancy does not claim that North American had any knowledge of or participation in the alleged fraud.
Approximately one year later, in March of 2001, Nancy discovered that Northpoint owned and was beneficiary of the policy. She states that she immediately contacted North American and informed it of the alleged fraud. She requested that North American either cancel the policy or change the beneficiary designation to her children because she feared for her safety as long as Daniel retained a beneficial interest in the policy. North American declined to do so, stating that only North-point, as the policy owner, had the authority to make such a change. North American then filed an action for declaratory relief, seeking a resolution of Nancy’s rights and obligations under the policy. She counterclaimed against North American arguing that the insurer’s failure to modify or cancel the policy, after she notified it of the fraud and possible danger to her life, constituted a breach of contractual and implied duties owed to her as the insured. She also named Daniel and Gilbert Singerman as co-defendants and brought against them a claim for fraudulent misrepresentation.
On February 11, 2002, the parties agreed that North American’s declaratory action and the fraudulent misrepresentation claim against Daniel and Singerman should be resolved in divorce proceedings pending in the Court of Common Pleas in Cuyahoga County, Ohio, and entered into a stipulation to that effect. The issues remaining before this court are (1) whether the North American insurance policy is void because no insurable interest existed at the time the policy issued and (2) whether North American acted in bad faith, in violation of contractual and implied duties, when it failed to modify or cancel the policy as requested by Nancy.
II.
We review the district court’s dismissal of Nancy’s counterclaim de novo. See Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000). In doing so we presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999).
III.
A. Insurable Interest
An insurance policy is valid only if the insured has an insurable interest at the time the policy issues. See Cal. Ins. Code § 280; Paul Revere Life Ins. Co. v. Fima, 105 F.3d 490, 491 (9th Cir.1997) (applying California law). Nancy argues that the District Court erred when it concluded that Daniel retained an insurable interest in the North American policy. We need not reach the merits of Nancy’s insurable *18interest challenge because it is clear that she has no standing raise it. See In re Marriage of Bratton, 28 Cal.App.4th 791, 793, 34 Cal.Rptr.2d 86 (1994). Under California law the insurance carrier, here North American, is the only party with standing to challenge the lack of insurable interest. Id,.; see also Jenkins v. Hill, 35 Cal.App.2d 521, 524, 96 P.2d 168 (1939) (“The insurer is the only party who can raise the question of insurable interest ...”). North American raises no such question.
B. Breach of Contractual and Implied Duties of Good Faith
Nancy also claims that North American violated a contractual obligation and implied duty to deal with her fairly. See Cates Constr., Inc. v. Talbot Partners, 21 Cal.4th 28, 86 Cal.Rptr.2d 855, 980 P.2d 407 (1999) (An implied covenant of good faith and fair dealing exists in every contract). She claims that North American violated that duty when it refused to modify and cancel the policy once she explained to it that her life was put in danger as long as Daniel, and his company, retained ownership of and a beneficial interest in the policy. She contends that North American owed her a duty, as the insured, to void the policy in the face of such a threat to her life.
We agree with the District Court that North American has not acted in bad faith. The stipulation between the parties that the validity of the transfer is to be resolved in the divorce proceedings is conclusive evidence of North American’s commitment to resolve in good faith any dispute as to the validity of the transaction which purportedly made Northpoint owner and beneficiary of the policy. See, e.g., Franceschi v. Am. Motorists Ins. Co., 852 F.2d 1217, 1220 (9th Cir.1988) (explaining that an insurer does not act with bad faith if a genuine issue of fact exists as to the parties rights and obligations under a policy). This is not a case where the insurance carrier arbitrarily and in bad faith refused to address the insured’s expressed concerns.
Accordingly, Nancy’s claim that the carrier violated its contractual and implied obligation to act in good faith must be denied.
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/7217906/ | MEMORANDUM *
Peter Bullock appeals from the district court’s dismissal of most of his claims arising under 42 U.S.C. §§ 1983 and 1985 as barred by the statute of limitations. The district court granted summary judgment against Bullock regarding the remaining claim. He alleges that a string of acts by the Town of Woodside (“Town”) collectively deprived him of his rights to petition the Government, to obtain due process, and to receive equal protection under the Fourteenth Amendment. We affirm.
I
Bullock contends that the district court erred in dismissing his pre-1997 claims because the statute of limitations was equitably tolled while he pursued administrative remedies. Bullock did not raise this issue in his opposition to the Town’s motion to dismiss the second amended complaint. “[A] federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
In Bullock v. Town of Woodside, No. 99-15444, 2000 U.S.App. LEXIS 12814, at *9, 2000 WL 734513 (9th Cir. June 7, 2000) (“Bullock /”), we affirmed the dismissal of *20all of Bullock’s claims in a prior complaint except for those requesting money damages under §§ 1983 and 1985 and relating to conduct occurring during or after 1997. After Bullock I, Bullock was aware that if he could not successfully assert a continuing violation, all of his claims relating to pre-limitations conduct would be dismissed as time barred. Bullock did not argue equitable tolling in opposition to the motion to dismiss. We, therefore, decline to consider the issue of equitable tolling. Partenweederei MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962) (per curiam) (noting that this policy prevents piecemeal litigation, aids the appellate court by giving it the benefit of the district court’s ruling, and prevents a litigant from withholding issues to advance a litigation strategy).
II
Bullock also maintains that the district court erred in dismissing his pre-1997 claims because the Town engaged in interrelated and continuous conduct which, under the continuing violation doctrine, should limit application of the statute of limitations. To avoid dismissal, Bullock was required to “state facts sufficient ... [to] support[] a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation, and that one or more of the acts falls within the limitation period.” DeGrassi v. City of Glendora, 207 F.3d 636, 645 (9th Cir.2000) (internal quotation marks omitted).
Bullock argues that the 1997 variance denial relates to the Town’s approval of his original site-development plan in 1985. His second amended complaint does not allege how the variance would have affected the designation of buildings on the site-development plan nor how the Town’s conduct necessitated the variance application. Further, a variance does not seek to correct prior development decisions on particular properties, but instead is a prospective request that a specific zoning restriction not apply to a development due to special circumstances unique to a specific parcel. See Cal. Gov’t Code § 65906 (West 2003) (describing the role of a variance).
Bullock further alleges that the Town repeatedly demanded that he re-designate his guest house to conform with Town Ordinance 1988-363, delaying the issuance of various permits during the limitations period. The only permit application Bullock made during the limitations period is a 1998 application for a pool shed. Bullock did not allege how the building designations on the site development plan relate to his permit application for a pool shed.
Bullock maintains that at the 1997 variance hearing, the Town harassed him about his use of his barn as residential rental property and that the accusation served as an improper basis for denying his variance application. However, we noted in Bullock I that he agreed to dismiss all federal claims relating to the barn enforcement action pursuant to a July 26, 1999, stipulation. Bullock I, 2000 U.SApp. LEXIS 12814, at *6.
Bullock also asserts that the Town precluded him from applying for an exception to or exemption from Ordinance 1988-363 and intentionally misinterpreted an easement to reduce the size of any new buildings on the six-acre parcel. These allegations are vague and unsupported by specific facts.
While Bullock’s complaint shows a longstanding state of animosity with Town officials, his “allegation of a continuing violation of his rights is wholly conclusory and unsupported by specific facts.... [H]is complaint appears simply to describe a *21sporadic series of independent land-use decisions—code changes, zoning changes, permit denials, and the like.... ” Bullock I, 2000 U.S.App. LEXIS 12814, at *8. The district court properly dismissed Bullock’s pre-limitation period claims because Bullock failed to allege a continuing violation.
Ill
Finally, Bullock argues that the district court erred in granting summary judgment as to his final claim based on the 1997 variance denial. The district court ruled that by failing to seek state court review of the variance denial by way of administrative mandamus, and because the variance proceedings met the requirements of fairness set out in United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966), Bullock was precluded from challenging the variance denial in federal court. We agree. Federal courts generally accord the decision of a state administrative tribunal the same preclusive effect that the judgment would receive in state court. Univ. of Tenn. v. Elliott, 478 U.S. 788, 797-99, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). In California, an administrative decision denying a petition for a zoning variance can be reviewed only on petition for a writ of administrative mandate. Cal. Civ.Proc.Code § 1094.5 (West 2003); Viso v. State, 92 Cal.App.3d 15, 21, 154 Cal.Rptr. 580 (Ct.App.1979).
Bullock maintains that he did not receive a fair opportunity for an adjudication on the merits. The district court noted that the Town council asked Bullock how much time he required. His response was “five or six minutes.” The Town council offered him more. Bullock revised his estimate to “ten minutes.” The Town did not count its questions against the allotted ten minutes. Bullock has failed to demonstrate that he was prevented from speaking at the administrative proceeding, that the time-keeping was manipulated, or that he did not receive a fair opportunity to argue for his variance application.
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/7217907/ | MEMORANDUM*
Carrie Serrano appeals the district court’s grant of summary judgment to Multnomah County, Oregon, on her federal and state civil rights claims against it arising out of her discharge. See 42 U.S.C. § 1983; Or.Rev.Stat. § 659A.030. We affirm.
(1) Serrano, who was an at-will employee, first asserts that the district court erred when it rejected her claim that her First Amendment and Fourteenth Amendment rights were violated when she was terminated for establishing a personal relationship with an individual, who had been a juvenile detainee and who was still considered to be a county client, without first disclosing her intentions to the county. We disagree. Although she did ultimately marry the client, the dismissal for her overall unreported activities did not improperly or significantly interfere with her right to marry,1 or with her right to intimate associations,2 or with her right of privacy.3
(2) Serrano also asserts that summary judgment should not have been granted on her claim of sex discrimination under Oregon law. See Or.Rev.Stat. § 659A.030. Again, we disagree. Oregon law required her to set out a prima facie case of the type outlined in Title VII cases.4 See Henderson v. Jantzen, Inc., 79 Or.App. 654, 657, 719 P.2d 1322, 1324 (1986). She did not. Specifically, she failed to present evidence that any similarly situated man— an at-will employee like herself—was treated differently. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 *23(9th Cir.2002); Gunther v. County of Washington, 623 F.2d 1303, 1321 (9th Cir. 1979), aff'd 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); see also Peele v. Country Mutual Ins. Co., 288 F.3d 319, 330 (7th Cir.2002); Holbrook v. Reno, 196 F.3d 255, 261 (D.C.Cir.1999); cf. Jauregui v. City of Glendale, 852 F.2d 1128, 1134-35 (9th Cir.1988). Indeed, the evidence was to the contrary.
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.
. See Zablocki v. Redhail, 434 U.S. 374, 386-88, 98 S.Ct. 673, 681-82, 54 L.Ed.2d 618 (1978); Califano v. Jobst, 434 U.S. 47, 53-54, 98 S.Ct. 95, 99-100, 54 L.Ed.2d 228 (1977); P.O.P.S. v. Gardner, 998 F.2d 764, 768-69 (9th Cir.1993); see also McCabe v. Sharrett, 12 F.3d 1558, 1570, 1573 (11th Cir.1994).
. See Lyng v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am., 485 U.S. 360, 364-66, 108 S.Ct. 1184, 1189—90, 99 L.Ed.2d 380 (1988); Roberts v. United States Jaycees, 468 U.S. 609, 622-23, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984); cf. Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir.1983) (negative effect on job performance or employer reputation can justify interference).
. See Carey v. Population Servs., Int’l, 431 U.S. 678, 684-86, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977); Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736, 742 (9th Cir.1986).
. See Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.2002). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217908/ | AMENDED MEMORANDUM **
Michael Lavery appeals the district court’s orders granting summary judgment to the City of Laguna Beach and other individuals who work for the City and the City’s Police Department. We affirm in part and reverse and remand in part.
We affirm the district court’s summary judgment in favor of the City on Lavery’s First Amendment challenges. The laws at issue are content neutral. Content neutrality is judged by whether the law “distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed.... ” Foti v. City of Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998) (quoting Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). Here, the ordinances do not discriminate on the basis of the views expressed. See One World One Family Now v. City of Honolulu, 76 F.3d 1009, 1012 n. 5 (9th Cir.1996).
As content neutral laws, the ordinances pass constitutional muster because they are narrowly tailored both facially and as applied. The City has a substantial interest in preventing commerce in Heisler Park, maintaining its aesthetic beauty, and structuring the orderly movement of pedestrians through the park. Without the prohibition on art shows and exhibitions, Heisler Park, because of its status as a popular destination, could become bogged down-both by crowds and aesthetically-by *24artists selling their work in the park. See id. at 1013-14.
Nor do the ordinances grant unbridled discretion to government officials enforcing the law. Unlike the permit schemes in Gaudiya Vaishnava Society v. City of San Francisco, 952 F.2d 1059 (9th Cir.1991) and City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)-which provided officials the power to grant permits but did not articulate why, how, or when-the ordinances in this case do not give the city manager the “power to discriminate [which] raises the spectre of selective enforcement on the basis of the content of speech.” N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir.1984). Finally, we also agree with the district court that there are ample alternatives available for expression.
We also affirm the district court’s judgment that the ordinances are neither facially vague nor overbroad. We do find, however, that the ordinances are unconstitutionally vague as applied to Lavery. A person of ordinary intelligence would not know whether placing one piece of art against a tree constitutes an art show or exhibition.
We affirm the district court’s judgment on Lavery’s retaliation claim because Lavery fails to present enough evidence to create a genuine issue of material fact that retaliatory intent was a motivating factor that caused his receipt of a citation.
Because we find that the ordinances are vague as applied to Lavery, we reverse the district court’s grant of summary judgment to the City on the issue of municipal liability. But we affirm the district court’s judgment on qualified immunity because Lavery cannot show that the police officers or other City officials acted unreasonably. We also affirm the district court’s judgment on Lavery’s equal protection claims for the reasons stated by the district court.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED AND REMANDED 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/7217909/ | MEMORANDUM *
Plaintiffs-appellants, students at the University of Montana who have paid out-of-state tuition but who claim that they would have qualified for in-state status, appeal the district court’s dismissal of their action for lack of standing. We hold that the students have alleged sufficient facts to maintain their standing, and thus their suit, at this stage. We therefore reverse.
1. Standing under Article III of the Constitution is an element of subject matter jurisdiction; consequently, a defense based on lack of Article III standing may be raised in a 12(b)(1) motion. See 15 Moore’s Federal Practice § 101.30[1] (3d ed. 1999). Generally, on a 12(b)(1) motion, unlike a 12(b)(6) motion, a court need not defer to a plaintiffs factual allegations regarding jurisdiction. But the Supreme Court has held that where a 12(b) motion to dismiss is based on lack of standing, the reviewing court must defer to the plaintiffs factual allegations, and must “presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). (internal quotation marks omitted). See also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (noting the difference between the standards to maintain standing under a 12(b) motion and a summary judgment motion). In short, a 12(b)(1) motion to dismiss for lack of standing can only succeed if the plaintiff has failed to make “general factual allegations of injury resulting from the defendant’s conduct.” Lujan v. Defenders of Wildlife, 504 U.S. at 561.
2. More specifically, this court has held that where the jurisdictional facts are intertwined with a plaintiffs substantive claim, “the district court should employ the standard applicable to a motion for summary judgment and grant the [12(b)(1) ] *26motion to dismiss for lack of jurisdiction only if the material jurisdictional facts are not in dispute.” Rosales v. United States, 824 F.2d 799, 803 (9th Cir.1987). Where the intertwined factual issues are disputed, the court should leave the resolution of those jurisdictional issues to the trier of fact. Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 922 (9th Cir. 2002); Thornhill Pub. Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 735 (9th Cir. 1979); 2 Moore’s Federal Practice § 12.30[3] (3d ed.1999).
Moreover, “where pertinent facts bearing on the question of jurisdiction are in dispute, discovery should be allowed.” America West Airlines v. GPA Group, Ltd., 877 F.2d 793, 801 (9th Cir.1989). The students, faced with a 12(b)(1) motion, should have been allowed reasonable discovery to determine the facts that went to the issue of their standing under Article III. See Farr v. United States, 990 F.2d 451, 454 (9th Cir.1993).
3. The district court was correct that, to succeed on the merits of their suit against the defendants in their individual capacities, the students would have to show that the individual defendants deprived them of their rights. The district court was also correct that the doctrine of respondeat superior does not apply in § 1983 suits. But a supervisor is “liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). See also Clement v. Gomez, 298 F.3d 898, 905 (9th Cir.2002) (holding that prison supervisors may be hable if they had actual or constructive notice that training of guards was necessary to prevent constitutional violations).
To prevail in their § 1983 suit, the students would not need to establish the individual defendants’ personal involvement in the constitutional deprivation—they can also prevail if they show a sufficient causal connection between the defendants’ conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir.1991) (en banc). At the pleading stage, it was enough to make a general factual ahegation of a causal connection between the defendants’ conduct and the constitutional violation.
4. Those students who failed to make a formal application for residency status are not thereby necessarily deprived of standing. It is true that, for those students who never applied, the individual defendants did not reject their applications and did not violate their rights in that manner. But the defendants may be liable if, for example, they instituted an unconstitutional policy, or if they knew that their subordinates were acting unconstitutionally and failed to prevent their acts, and that policy or those acts led reasonable students to conclude that an application for residency status would be denied.
This case is different from Madsen v. Boise State University, 976 F.2d 1219 (9th Cir.1992) (per curiam). This case, unlike Madsen, is not “too nebulous for judicial resolution.” Id at 1221. The plaintiff in Madsen sought relief based on a single incident where he was denied a parking permit; here, by contrast, the students have alleged a widespread practice of refusing to consider students for residency status and discouraging students from making application for such status. They have, in other words, alleged that there have been “similar, futile efforts by others.” Id. at 1222. Here, moreover, the students’ claim is not so much that the University’s officially propounded policy was unconstitutional, but rather that the defendants and their subordinates made statements and engaged in practices that *27were inconsistent with the officially propounded policy.
5. The students, in their complaint, made general factual allegations, which, if true, could constitute factual and legal injury. Prior to reasonable discovery, the students could not be expected to allege (much less demonstrate) who, among the defendants, took which actions. The students’ pleadings were sufficient to survive a motion to dismiss based on standing. We therefore reverse.
REVERSED 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/7217910/ | MEMORANDUM***
George Anthony appeals the district court’s dismissal of his claim for a refund on his 1992 taxes. This case arises out of a prior tax court judgment, to which both Anthony and the Internal Revenue Service (“IRS”) stipulated, and in which a portion of Anthony’s income was erroneously double-counted. The IRS adjusted Anthony’s returns in later years to correct the error.
Anthony contends that the IRS action did not compensate him adequately for the error, and filed a refund suit. The district court dismissed the action on the basis that the prior tax court judgment deprived the district court of jurisdiction under 26 U.S.C. § 6512(a). Thus, the salient question on appeal is whether Anthony satisfies the mitigation provisions of the statute, which would provide the district court with subject matter jurisdiction. See 26 U.S.C. §§ 1311-1314.
In order to qualify for mitigation, a taxpayer must establish (1) there has been a final determination under § 1313; (2) the IRS has maintained an inconsistent position in another taxable year; and (3) the taxpayer meets one of the enumerated criteria in § 1312. Beaudry Motor Co. v. United States, 98 F.3d 1167, 1168 (9th Cir.1996). As a general matter, the mitigation provisions “provide relief only in limited situations.” Schwartz v. United States, 67 F.3d 838, 839 (9th Cir.1995). We have “narrowly construed the requirements. of the mitigation provisions.” Kolom v. United States, 791 F.2d 762, 765 (9th Cir.1986). Further, the party asserting mitigation “has the burden of showing its applicability.” Schwartz, 67 F.3d at 840.
The second mitigation requirement is dispositive of this case. The district court correctly concluded that the IRS did not, in fact, take a position in the 1992 determination that was inconsistent with the erroneous inclusion of income in another tax year. Thus, Anthony does not satisfy the second mitigation requirement, and his claim for mitigation fails.
Anthony argues that the IRS did, in fact, take inconsistent positions. He contends that the implicit IRS position at the time of determination that the income was properly included was inconsistent with the agency’s later decision to adjust his income (suggesting that it had not been properly' included). However, IRS regulations require inconsistency between the year at issue in the determination and a separate, closed taxable year in which an error was committed. According to the regulations, § 1311(b) requires that “a position maintained with respect to the taxable year of the determination ... be inconsistent with the erroneous inclusion ... with respect to the taxable year of the error.” 26 C.F.R. § 1.1311(b)-l(a). Anthony, by contrast, alleges error within the same year at issue in the determination.
Anthony also claims that the IRS took an “inconsistent position” on his 1994 return, when the agency adjusted his in*29come to reflect the previous error. However, the requirement refers to the IRS position at the time of the determination. The statute requires that “there is adopted in the determination a position maintained by the Secretary” and that “the position maintained by the Secretary ... is inconsistent with the erroneous inclusion.” 26 U.S.C. § 1811(b)(1) (emphasis added). The relevant position, therefore, is the one taken by the IRS “in the determination,” which in Anthony’s case refers to the agency position on the 1992 tax year at the time of the tax court decision. Furthermore, because the IRS position in the determination must be inconsistent with the “erroneous inclusion,” Anthony cannot claim that the IRS position is inconsistent with the later decision to adjust his taxes.
Because the IRS did not take an inconsistent position within the meaning of the second mitigation requirement, Anthony’s claim for mitigation fails. We need not reach any other issue urged by the parties.
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/7217911/ | MEMORANDUM *
Plaintiff-Appellant Tamara Evans appeals the district court’s dismissal of her equal protection claims, raised under 42 U.S.C. § 1983, pursuant to the defendants’ Rule 50(a) motion at the close of her case. She also appeals the district court’s refusal to instruct the jury on her claim of coworker retaliation. Defendant-Appellee City of Sparks cross-appeals the district court’s award of interim attorney’s fees pursuant to 42 U.S.C. § 1988. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
This case is a disturbing one. The outcome reached in the district court and in this court should not be taken as an endorsement of the procedures of the City of Sparks or its police department.
Evans’s § 1983 claim against City Human Resources Director Sue Utterback fails because Evans introduced no substantial evidence at trial that could persuade a reasonable juror that Utterback was motivated by gender bias. In the course of her investigation into Evans’s complaint, Utterback failed to interview even a single alleged harasser. She simply concluded, in a two-page report, that no sexual harassment had occurred because, even though the officers made crude and sexually derogatory comments about Evans, Evans was not in the room at the time.
The question is not whether, as the trial judge correctly observed, “there’s abundant evidence that a jury could conclude that [Ms. Utterback’s investigation] was woefully inadequate.” The question, rather, is whether there is evidence that the conduct was motivated by sexual bias on the part of the City’s Human Resources Director. Utterback was not a part of the Sparks Police Department, nor was her salary paid by the Department. However deficient Utterback’s investigation of Evans’s claims was, there is no evidence in the record that Utterback was biased against women or against sexual harassment claimants, or that she felt a need to dismiss sexual harassment claims in order to remain in the Police Department’s good graces. Moreover, there is no evidence that, insofar as Utterback’s investigation of Evans’s claim was deficient, it was so because of gender bias—a fact that distinguishes this case from Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir.1995).
*31Evans’s § 1983 claim against the City of Sparks fails for similar reasons. Utterback herself was not delegated policymaking authority. Although City Manager Terry Reynolds did have policymaking authority, he is not a member of the Sparks Police Department, and Evans did not introduce any evidence to suggest that Reynolds ever approved Utterback’s report, let alone because of his gender bias. Even if failure to take action under some circumstances could amount to ratification, dismissal of Evans’s § 1983 claim against the City was nonetheless appropriate because there was no legally sufficient evidentiary basis for a jury to conclude that Reynolds failed to take action on the basis of gender bias.
As to Evans’s claim that the district court erred in failing to instruct the jury on her theory of coworker retaliation, we review the district court’s formulation of civil jury instructions—so long as they do not involve an error of law—for an abuse of discretion. Costa v. Desert Palace, Inc., 299 F.3d 838, 858 (9th Cir.2002) (en banc). Moreover, even where such error is found, harmless error review applies. See Swinton v. Potomac Corp., 270 F.3d 794, 805 (9th Cir.2001), cert. denied, 535 U.S. 1018, 122 S.Ct. 1609, 152 L.Ed.2d 623 (2002). Here, even if the district court did err in failing to instruct the jury on coworker retaliation, we find that any such error, in light of the evidence before the jury and the verdict on every issue on which it was instructed, was harmless.
Finally, as to the City’s cross-appeal, we review awards of attorney’s fees for an abuse of discretion. See Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1200 (9th Cir.2002). Here, we cannot conclude that the district court abused its discretion in determining that, at the preliminary injunction stage, Evans was a “prevailing party” within the meaning of 42 U.S.C. § 1988.
Accordingly, we affirm the dismissal of Evans’s § 1983 gender-bias claims against Utterback and the City. Insofar as the district court erred in failing to adopt Evans’s requested instruction on coworker retaliation, the error was harmless.
On the cross-appeal, we affirm the interim award of attorney’s fees to Evans. Evans shall recover her attorney’s fees for defending her fee award on appeal. The case is referred to the Appellate Commissioner, who is authorized to determine and award the appropriate amount upon receipt of a timely application.
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/7217914/ | MEMORANDUM *
This action arises under the Petroleum Marketing Practices Act (“PMPA”), 15 U.S.C. §§ 2801-2841, as well as several California statutes.
1. Plaintiffs argue that they were entitled to a jury trial on their PMPA claim. On de novo review, Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1426 (9th Cir.1996), aff'd, 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999), we disagree.
Plaintiffs reason that, because the issues contained both factual and legal components, a jury was required to decide the factual elements. This argument is unavailing; district courts ably resolve factual issues every day. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998) (noting that a district court’s decision to grant a permanent injunction involves “factual, legal, and discretionary components”).
Rather, the character of the relief sought is the most important factor in determining whether rights created by a federal statute are analogous to suits at common law and, thus, give rise to the right to a jury trial. Spinelli v. Gaughan, 12 F.3d 853, 855-56 (9th Cir.1993). Generally, parties seeking purely equitable relief do not have a right to a jury trial. United States v. Louisiana, 339 U.S. 699, 706, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); McLaughlin v. Owens Plastering Co., 841 F.2d 299, 299-300 (9th Cir.1988); see also 15 U.S.C. § 2805(b)(1) (providing that “the court shall grant such equitable relief as the court determines is necessary to remedy the effects of any failure to comply with the requirements of section 2802 or 2803 of this title”).
Initially, Plaintiffs sought damages for the harm they alleged would occur if they were required to sign the new franchise agreements. The district court’s preliminary injunction preserved the status quo, however, and eliminated the pleaded basis for damages.1 After that claim was stricken, Plaintiffs sought only to enjoin Defendant from requiring them to consent to the new franchise agreements. Because Plaintiffs’ claim was only equitable by the time of trial, the district court did not err in denying their request for a jury.2
2. The district court did not clearly err in finding that Defendant’s decision to implement the new franchise agreements was made in good faith and not for the purpose of converting franchisee stations into company-operated stations. See Svela v. Union Oil Co., 807 F.2d 1494, 1501 (9th Cir. 1987) (stating standard of review).
“The PMPA plainly contemplates that franchisors will have substantial flexibility *38in changing the terms of a franchise upon renewal.” Valentine v. Mobil Oil Corp., 789 F.2d 1388, 1391 (9th Cir.1986). “So long as the franchisor does not have a discriminatory motive or use the altered terms as a pretext to avoid renewal, the franchisor has met the burden required by the PMPA for determining good faith.” Svela, 807 F.2d at 1501 (citation and internal quotation marks omitted).
The district court’s findings here were well-developed, reasoned, supported by the extensive record, and patiently explained. The district court did not err in concluding that Defendant met its burden here. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002) (“[I]f the district court’s findings are plausible in light of the record viewed in its entirety, the appellate court cannot reverse even if it is convinced it would have found differently.”), petition for cert. filed, 71 U.S.L.W. 3612 (U.S. Mar. 12, 2003) (No. 02-1348).
3. The district court did not err in ruling that Plaintiffs were not entitled to exemplary damages or attorney fees under 15 U.S.C. § 2805(d)(1)(B) or (C). The fact that the district court held that certain provisions of the new franchise agreements were impermissible under 15 U.S.C. § 2805(f) does not alter the analysis, because § 2805(d)(1)(C) provides fees only for violations of § 2802 and § 2803. Plaintiffs made no claim under § 2803, and they lost their § 2802 claim. Therefore, they did not prevail on a claim as to which attorney fees might be recovered.
Similarly, § 2805(d)(1)(B) provides for exemplary damages only for “willful disregard” of § 2802 or § 2803. Because Plaintiffs failed to prove any violation of § 2802 or § 2803 at all, a fortiori they failed to prove “willful disregard” for those sections’ requirements.
4. The district court did not abuse its discretion in denying Plaintiffs a new trial. See Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1003 (9th Cir.) (stating standard of review), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001).
At least two pieces of “new” evidence concerned post-trial conduct. The district court did not abuse its discretion in ruling that such evidence cannot support a motion for a new trial. See Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2808, at 86-87 (1995) (“Newly discovered evidence must be of facts existing at the time of trial.”).
Nor did the court abuse its discretion in denying a new trial on the basis of the remaining three pieces of evidence. The rent summary, the mention of the “TSF” channel of trade, and the claim that Defendant discourages parties from taking advantage of rent-challenge procedures, even taken together, do not constitute “evidence ... of such magnitude that production of it earlier would have changed the outcome of the case.” Defenders of Wildlife v. Bernal, 204 F.3d 920, 928-29 (9th Cir.2000).
5. Finally, the district court did not abuse its discretion in imposing time limits on each side for the production of witnesses. “A district court is generally free to impose reasonable time limits on a trial.” Amarel v. Connell, 102 F.3d 1494, 1513 (9th Cir.1997). Trial courts have “broad authority” to impose such limitations to “ ‘prevent undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir.2001) (quoting Amarel, 102 F.3d at 1513), cert. denied, 536 U.S. 941, 122 S.Ct. 2623, 153 L.Ed.2d 806 (2002). Without an explanation of prejudice, such as a statement of material, nonrepetitive testimony that could not be offered because of the limitations, it was *39not an abuse of the district court’s broad discretion in this area to limit the time for testimony. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (finding no abuse of discretion in the absence of a demonstration of prejudice from a district court’s time limits).
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.
. At oral argument Plaintiffs relied on additional theories for damages, but those were not pleaded and, therefore, cannot demonstrate error on the part of the district court. Moreover, in their opening brief, Plaintiffs argued only that they were entitled to have a jury decide the factual elements of their equitable claims.
. Plaintiffs do not argue that they had a right to have a jury decide whether exemplary damages were warranted. See 15 U.S.C. § 2805(d)(2) (providing that the court is to make that determination). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217915/ | *40MEMORANDUM ***
Whitewater Engineering Corporation (“Whitewater”) appeals from the district court’s entry of summary judgment in a suit brought by boards of trustees of various union pension funds (collectively referred to as “Trustees”). We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.
I
The sole question in the case is whether Whitewater was obligated to make trust fund contributions on behalf of a supervisory employee who also performed work covered by the applicable collective bargaining agreement. We have long adhered to the rule that when an employee splits his working time between a position covered by a collective bargaining agreement and a non-covered position, the employer must contribute for all hours the employee works or is paid. See Operating Eng’rs Pension Trusts v. B & E Backhoe, Inc., 911 F.2d 1347, 1351 (9th Cir.1990) (applying split-time rule requiring pension contributions for employees performing both covered and non-covered work); Operating Eng’rs Pension Trust v. A-C Co., 859 F.2d 1336, 1341 (9th Cir.1988) (same); Kemmis v. McGolderick, 706 F.2d 993 (9th Cir.1983) (applying split-time rule in favor of salaried employee who split work time between covered and non-covered work).
If an employee has performed work covered by the collective bargaining agreement, the court conducts a two-step inquiry. See B & E Backhoe, 911 F.2d 1347, 1351 (9th Cir.1990). First, the court begins with the presumption that the employee worked forty hours per week. If the employer is able to rebut that presumption, then it need only contribute for the actual hours the employee worked. Id. at 1352. If the presumption is not overcome, then the court applies the conclusive presumption that the employee spent forty hours on covered work, even though the employee may in fact have spent part of his or her time on non-covered work. Id.
Whitewater does not dispute this, but argues that the controlling authority is predicated on a different collective bargaining agreement than is at issue here; therefore, it contends that the split time rule should not apply. However, a careful examination of the relevant case law and the applicable collective bargaining agreement does not support Whitewater’s position. We have applied the split-time rule in a variety of contexts and stated that “[t]he overriding federal policy is best effectuated if collective bargaining agreements are interpreted and enforced in a uniform manner.” Kemmis, 706 F.2d at 997 (internal quotation marks omitted).
The collective bargaining agreement at issue here does not appreciably differ from those we have previously considered. The agreement applies to all work performed by cement masons and defines a cement mason as a person who does cement mason work. The ' collective bargaining agreement here requires the employer to make contributions for all work performed under the agreement. There is no dispute that the employee at issue performed work covered by the agreement. Therefore, contributions were required even though he also performed managerial functions. It is clearly established that the split-time rule applies to managerial employees who perform bargaining unit work. See A-C Co., 859 F.2d at 1338 (requiring pension fund contributions for CEO, corporate VP, and Superintendent who performed bargaining *41unit work); Waggoner v. Wm. Radkovich Co., 620 F.2d 206, 207 (9th Cir.1980) (requiring trust fund contributions for Superintendent who performed some bargaining unit work, even though CBA expressly exempted Superintendents from fund contributions); Waggoner v. C. & D. Pipeline Co., 601 F.2d 456, 457 (9th Cir.1979) (requiring contributions for President and Managing Officer who also performed bargaining unit work).
II
Whitewater also argues that the cement masonery worked performed by the employee violated the collective bargaining agreement because he could not be considered part of the bargaining unit. However, whether or not his performance of the work was a violation of the collective bargaining agreement is irrelevant to Whitewater’s pension obligations. See Waggoner v. N.W. Excavating, Inc., 642 F.2d 333 (9th Cir.1981), judgment vacated by 455 U.S. 931, 102 S.Ct. 1417, 71 L.Ed.2d 640 (1982), and reaffirmed by 685 F.2d 1224 (9th Cir.1982) (holding that employer who breached collective bargaining agreement by hiring independent contractor to perform work reserved for employees was obligated to provide trust fund contributions in amount equal to what was lost by virtue of its employment of independent contractors).
III
Whitewater contends that in this case the definition of “employee” set out in Labor Management Relations Act (“LMRA”), 29 U.S.C. § 152(3), should be imported into the collective bargaining agreement under the theory that a “Cement Mason” is defined for purposes of the agreement as a member of the bargaining unit. In the relevant section, the LMRA excludes from the definition of the term “employee,” “any individual employed as a supervisor.” However, it is well established that the terms are not coextensive. Because the term “employee” under § 152(3) defines who is a member of the bargaining unit, it is narrower than the term “employee” as used for the purposes of determining benefit obligations under 29 U.S.C. § 186(c). See, e.g., Allied Chem. & Alkali Workers of Am., Local Union 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971) (retirees are not “employees” under § 2 of LMRA and thus not members of the bargaining unit, but are “employees” under § 302 and thus eligible to participate in trust benefits); Maas & Feduska, Inc. v. NRLB, 632 F.2d 714, 718 (9th Cir.1979) (Employees who were “supervisors and sole executives of the Company, cannot be deemed employees within the collective bargaining obligations of the applicable law, even though their performance of some bargaining unit work made them eligible for participation in the trust funds.”). Therefore, Whitewater’s reliance on § 152(3) fails because the Agreement does not limit the definition of “Cement Mason” to members of the bargaining unit.
TV
Finally, Whitewater argues that trust contributions on behalf of the employee are impermissible because the terms of the trust prohibit payments on behalf of supervisors without an express written agreement between the Employer and the Trustees. However, contributions were not sought for the employee at issue on the basis of the work he performed as a supervisor. A careful examination of the trust provisions indicates that the employee at issue qualified as an eligible employee under the terms of the trust agreement.
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/7217916/ | MEMORANDUM **
Michael Somerville appeals the district court’s grant of summary judgment in favor of Defendant-Appellee Association of Western Pulp and Paper Workers, Local No. 817.1 We affirm. Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.
I
The district court correctly concluded that Somerville’s state law claims were preempted by Section 301 of the Labor Management Relations Act. Section 301 preemption is “complete preemption,” that is, a form of preemption “so powerful as to displace entirely any state cause of action” touching on the Labor Management Relation Act’s ambit. Firestone v. Southern Cal. Gas Co., 219 F.3d 1063, 1065 (9th Cir.2000) (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). In Chmiel v. Beverly Wilshire Hotel Co., 873 *43F.2d 1283 (9th Cir.1989), we noted that “section 301 preempts any individual labor contract inconsistent with a collective bargaining agreement.” Id. at 1285 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010 (9th Cir. 2000).
Somerville contends he had a separate, independent contract with the employer that formed the basis of his state law claims. However, this agreement concerns a job position and issues specifically governed by the collective bargaining agreement. Such putatively independent contracts can be effective “only as part of the collective bargaining agreement.” Aguilera, 223 F.3d at 1015-16. Thus, where an inconsistency exists between the collective bargaining agreement and an independent contract, the collective bargaining agreement necessarily “controls and the contract claim is preempted.” Id. (citing Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1474 (9th Cir.1984)); see also Chmiel, 873 F.2d at 1285-86. Somerville’s independent contract is inconsistent with the collective bargaining agreement, and his state contract claims are, thus, preempted. Id.
Somerville’s tort-based state claims are preempted under § 301 as well. In Chmiel, we held that § 301 preempted tort-based state claims arising “out of the same conduct [that] formed the basis of the contract claim.” 873 F.2d at 1286 (assessing an intentional infliction of emotional distress claim). Tort-based claims that so “arise” are, like related contract-based claims, “inextricably intertwined” with the interpretation of the collective bargaining agreement. Identical preemption concerns and comparable § 301 treatment are therefore warranted. See id.; Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1002 (9th Cir.1987) (citations omitted). All three tort-based claims Somerville articulates “arise out of the same conduct forming] the basis of [his] contract claim,” resembling, as a matter of law, tort-based claims we have held to be preempted by this court in similar contexts. See Young, 830 F.2d at 1002 (addressing an intentional infliction of emotional distress claim). Thus, the district court correctly held Somerville’s state law claims preempted under § 301 as a matter of law.
Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir.2001), the primary case upon which Somerville relies, is inapposite because Sprewell had filed state law claims that did not arise out of, or conflict with, the collective bargaining agreement. Id. at 991.
II
Breach of the duty of fair representation claims are governed by a six-month federal statute of limitations. See, e.g., Stone v. Writer’s Guild of Am. West, Inc., 101 F.3d 1312, 1314 (9th Cir.1996) (citations omitted); Moore v. Local 569, Int’l Bhd. of Elec. Workers, 989 F.2d 1534, 1541-42 (9th Cir.1993); Kalombo v. Hughes Mkt., Inc., 886 F.2d 258, 259 (9th Cir.1989); Conley v. Int’l Bhd. of Elec. Workers, Local 639, 810 F.2d 913, 915 (9th Cir.1987). Because the essence of Somerville’s complaint is that the union failed to act fairly on his behalf, the six month statute of limitations applies to his claim. See Conley, 810 F.2d at 915.
The applicable six-month statute of limitations begins to run “when the employee knows or should know of the alleged breach of duty of fair representation by a union.” Kozy v. Wings West Airlines, Inc., 89 F.3d 635, 640 (9th Cir.1996), (citing Galindo v. Stoody Co., 793 F.2d 1502, 1509 (9th Cir.1986)) (internal quotation marks omitted).
*44In the “more complex” context in which a duty of fair representation claim is “not based on a union’s processing of a grievance,” a plaintiffs cause of action accrues when he or she “knew or should have known of [the] alleged breach” of the duty. Galindo, 793 F.2d at 1509. Somerville’s claim falls within this “more complex” context, so the six-month statutory period began to run when he “knew or should have known” of the Association’s alleged breach. Id. A careful review of the record demonstrates that there is no triable question regarding the fact that Somerville should have known of the alleged breach well more than six months before he filed his state action on January 5, 2001. In addition to other facts which should have put Somerville on notice, he was specifically notified on February 18, 2000, that he was to be considered a new hire and not an employee returning from a leave. Somerville’s proffered actual injury test and his tolling argument based on unspecified informal resolution efforts are both untenable under settled case law. Galindo, 793 F.2d at 1509-11. Somerville relies on the extension of some benefits by the employer; however, this was an action by a third party without implication as to the union’s position.
In short, the district court properly granted summary judgment on all claims.
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.
. Though Longview Fibre Co. remains a co-defendant in the caption and in the related materials, on November 5, 2001, Somerville and Longview entered a stipulated dismissal with prejudice of Somerville’s claims against Longview. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217917/ | MEMORANDUM**
Michael Lynch appeals the district court’s judgment entered in his suit for copyright infringement suit against Trend-west Resorts, Inc. (“Trendwest”) following a jury trial. We affirm. Because the parties are familiar with the factual and procedural history of this appeal, we need not recount it here.
I
The district court properly determined that (1) Lynch’s suit was one seeking indirect, rather than direct, profits as damages for infringement, and (2) that summary judgment was appropriate on the indirect profits claim. As we noted in Mackie v. Rieser, 296 F.3d 909, 911 (9th Cir.2002), 17 U.S.C. § 504(b) erects a two-prong “profits” structure, treating “direct” and “indirect” profits distinctly. “Direct” profits, we explained, are “those that are generated by selling an infringing product,” id,.; “indirect” profits, in counterpoint, are defined as “revenue that has a more attenuated nexus to the infringement.” Id.; see, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487 (9th Cir.2000); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1550 (9th Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990). The district court correctly determined that Lynch’s claim is for “indirect” profits because he was not seeking a portion of the profits that Trend-west derived from direct sales of the videotape containing the infringing material. Rather, the profits at issue were generated from the sale of time share condominiums. Thus, the district court correctly construed this as an indirect profits case. See May v. Watt, 822 F.2d 896, 901 (9th Cir.1987) (“The damages theoretically available [ ][ ] under the category ‘infringer’s profits,’ are best understood in this context as being a claim for ‘indirect profits.’ Here the defendant’s did not actually sell May’s plans to some third party ....”) (emphasis in original).
As a plaintiff seeking “indirect” profits under § 504(b), Lynch was required to “proffer some evidence to create a triable issue regarding whether the infringement at least partially caused the profits that the infringer generated as a result of the infringement.” Mackie, 296 F.3d at 911. “[S]ufficient non-speculative evidence [of a connection] between the infringement and the profits generated indirectly,” we have noted, is necessary to sustain an “indirect” profits claim. Id. at 914, 916. Lynch proffered insufficient specific, noneonjectural evidence upon which a finder of fact could construct an “indirect” profits damage analysis. Indeed, Trendwest supplied the direct evidence tendered in the case, which consisted of affidavits stating that, based on comparative data, there were no additional sales gained or lost through the use of the promotional video. Lynch urges us to infer the requisite proof from the facts; however, Mackie requires more. Id. Given the state of the record, the district court’s summary judgment decision in favor of Trendwest on Lynch’s profits claim was proper. In light of the absence *46of direct proof, we need not opine as to what quantum of proof would be necessary to avoid summary judgment.
II
Lynch also appeals the jury’s finding of non-infringement as to Trendwest’s uses of certain videos. However, he did not preserve this issue for appellate review because he did not move for judgment as a matter of law at the close of the evidence and renew the motion after the verdict. Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 923 (9th Cir.2001) (emphasis in original), citing, Desrosiers v. Flight Int’l of Florida, Inc., 156 F.3d 952, 956-57 (9th Cir.1998). Thus, we review for plain error. See, e.g., United States v. Morfin, 151 F.3d 1149, 1151 (9th Cir.1998). To reverse for plain error, we must find “an ‘error’ that is ‘plain’ and that ‘affects substantial rights.’ ” See United States v. Pena, 314 F.3d 1152, 1155 (9th Cir.2003). If the threshold requirements are satisfied, we must also conclude that the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. No plain error infected the relevant portions of the jury’s verdict; rather, it was a reasonable evaluation of the evidence proffered, and it in no way detrimentally affected Lynch’s “substantial rights.” Id.
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/7217918/ | MEMORANDUM**
Jewell Smith, a Nevada state prisoner, appeals pro se the district court’s summary judgment in favor of prison officials in Smith’s 42 U.S.C. § 1983 action alleging unhealthy and unsanitary prison conditions in violation of his Eighth Amendment Rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003). We vacate and remand.
Before a plaintiff can pursue a civil action with respect to prison conditions, he or she must exhaust the administrative remedies that are available. 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738-40, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). This provision does not require exhaustion of all remedies; it requires the exhaustion of “such administrative remedies as are available.” Id.
Here, it is undisputed that for 30 days Smith could not file a grievance because no grievance forms were available to inmates in Unit Seven. It is also undisputed that upon transfer to Unit Eight, Smith filed a grievance regarding prison conditions but prison officials never responded to his grievance. Under these circumstances, there was no available administrative remedy for Smith to exhaust. See 42 U.S.C. § 1997e(a); Wyatt, 315 F.3d at 1120 (defendant has burden to prove the plaintiff-prisoner failed to exhaust available administrative remedies); cf. Booth, 532 U.S. at 738-40 (2001) (requiring exhaustion regardless of whether the relief sought is available through the administrative grievance process). Accordingly, the district court erred by dismissing for failure to exhaust administrative remedies.
We reject Smith’s contention that the Supreme Court’s ruling in Booth should not be applied retroactively to his case. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (stating “a rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law”).
For these reasons, we VACATE the district court’s dismissal and REMAND for consideration of the merits of Smith’s claims.
Each party shall bear its own costs.
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 may be provided by 9th Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224412/ | OPINION AND ORDER
PHILIP P. SIMON, Chief Judge.
Plaintiff Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters accuses Indiana Harbor Belt Railroad Company of racial discrimination and harassment in the work place.' The Union seeks both monetary and injunctive relief. Indiana Harbor Belt moves to dismiss all claims claiming that the Union does not have standing to pursue these claims on behalf of its members. For the reasons below, I now GRANT IN PART and DENY IN PART Indiana Harbor Belt’s .Motion to Dismiss Plaintiffs First Amended Complaint [DE 35], I GRANT the motion with respect to the Union’s request for economic and punitive damages, but DENY the motion with respect to its request for in-junctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
As usual, I’ll start with the grim facts as alleged in the complaint, which I accept as true at this point in the case. The plaintiff union is a railway labor organization who works on behalf of its members in the areas of “grievances, labor disputes, rates of pay, hours of employment or conditions of work, and [ ] negotiating collective bargaining agreements.” [DE 34 at ¶ 2.] Indiana Harbor Belt is a railroad company based in Hammond, Indiana, that employees the Union’s members. [Id. at ¶ 2, 6.]
The Union claims that Indiana Harbor Belt has subjected its African-American employees to “a hostile work environment of such intensity as to result in their constructive discharge.” [Id. at ¶ 13.] According to the complaint, Indiana Harbor *689Belt has engaged in the following practices: preventing its African American employees from training for higher-rated (and higher-paying) positions, instead giving those opportunities to its non-African-American employees [id. at ¶ 14]; applying a disparate disciplinary policy against African-American employees [id. at ¶ 20]; treating African-American employees more harshly than white employees, resulting in the “systematic elimination of African-American new hires” and causing the makeup of Indiana Harbor Belt’s workforce to be disproportionate to the racial composition of the relevant labor market [id. at ¶ 21]; failing to recall African-American employees after workforce reductions [id. at ¶ 25]; and allowing white employees to arrive late to work while not allowing African-American employees to do the same [id. at ¶26]. And although Indiana Harbor Belt has an anti-discrimination policy in place, the Union alleges that Indiana Harbor Belt has failed to advise its employees of this policy and to correct discriminatory actions. [Id. at ¶ 15.]
The Union further alleges that Indiana Harbor Belt’s agents and supervisors have engaged in the following disturbing behavior including systematically referring to African-American employees as “N._” [id. at ¶ 17]; displaying a Swastika tattoo [id. at ¶ 18]; referring to mixed-race children of African-American employees as “half-breeds” [id. at ¶ 19]; referring to white employees who associate with African Americans as “N_lovers” [id. at ¶ 28]; asking white employees who drink “particular-flavored soft drinks” why they drink “N_juice” [id.\, and displaying a noose in a company vehicle [id at ¶ 29].
The Union initially filed its Section 1981 and Title VII lawsuit against Indiana Harbor Belt in January 2013, seeking class action certification [DE 1]. Indiana Harbor Belt filed a Motion to Dismiss and/or Strike Plaintiffs Class Alegations [DE 15], and in response, the Union sought to consolidate the matter with other two other cases pending in this district [DE 21; DE 22], Both of those cases were brought by individual employees against Indiana Harbor Belt and they make similar allegations to those made in the present case. The motion to consolidate was ruled on by Judge Van Bokkelen who denied the request [DE 25]. I then denied the pending motion to dismiss the class allegations in this case as moot and permitted Indiana Harbor Belt to re-file its motion [DE 29],
Indiana Harbor Belt did so [DE 30], and in lieu of responding to the motion, the Union requested leave to file an amended complaint removing the Rule 23 class allegations [DE 32], I granted this request, granted the Defendant’s Motion to Dismiss and/or Strike Plaintiffs Class Alegations, and ordered the Clerk to enter the proposed First Amended Complaint attached to the Union’s request. [DE 33] Indiana Harbor Belt has now moved to dismiss the first amended complaint on the grounds that the Union lacks standing to pursue its amended claims. [DE 35]
DISCUSSION
To survive a motion to dismiss under Rule 12(b)(6), “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); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). At this stage I must accept all allegations as true and draw all reasonable inferences in the complainant’s favor, but I don’t need to accept threadbare legal conclusions supported by mere conclusory statements. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. *690So under Iqbal, I must first identify allegations in the complaint that are not entitled to the assumption of truth by, for example, disregarding legal conclusions. Id. Then I must look at the remaining allegations to determine whether they plausibly suggest an entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief requires me to draw on my judicial experience and common sense. Id. at 679, 129 S.Ct. 1937.
Indiana Harbor Belt asks me to dismiss complaint for one main reason: the Union can’t pursue this action on behalf of its members because it lacks associational standing. In essence, Indiana Harbor Belt argues that the suit will require participation from each of the Union’s members, negating the Union’s ability to bring the suit on behalf of its members. Indiana Harbor Belt is half right. The Union can’t pursue the claims for damages on behalf of it employees, but it can seek an injunction. Indiana Harbor Belt’s motion will therefore be denied in part and granted in part.
Associational Standing
The concept of standing refers to whether a party may properly pursue its ease in court; namely, whether the court has jurisdiction over the matter. Article III, Section 2 of the Constitution limits my jurisdiction to “Cases” or “Controversies” where “the plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Intern., Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). In other words, the plaintiff must present me with a problem likely caused by the defendant that I have the authority to fix.
In general, I have authority over only those problems suffered by the actual party bringing the suit. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). One exception, however, is that an association or organization may bring suit on behalf of its members, even where the organization itself has suffered no injury. Id. at 511, 95 S.Ct. 2197. This is “associational standing” and it exists only where an association can show that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The first two of Hunt’s requirements are based directly on Article Ill’s requirements, while the third is prudential, meaning that I have discretion as to how it is applied. Milwaukee Police Assn. v. Bd. of Fire & Police Commissioners, 708 F.3d 921, 928 (7th Cir.2013) citing United Food & Commer. Workers Union, Local 751 v. Brown Grp., Inc., 517 U.S. 544, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). Even so, my discretion is guided by three broad principles: “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Lexmark Intern., Inc., 134 S.Ct. at 1386 (internal citations and quotation marks omitted).
Indiana Harbor Belt does not challenge the first two prongs of the test for associational standing [see D.E. 36 at 5], so all that remains for me to determine is whether the third Hunt prong — that “neither the claim asserted nor the relief requested *691requires the participation of individual members in the lawsuit” — is satisfied.
Rule 23 Class Certification
At the outset, I need to dispose of a strawman argument Indiana Harbor Belt puts forward before I delve into the substance of the motion. Indiana Harbor Belt makes a lot of the fact that the Union’s amended complaint is virtually identical to its original complaint asserting class-based claims, going so far as to accuse the Union of a “procedural sleight of hand” [D.E. 36 at 1] by dropping its class claims and instead pursuing its suit in an organizational representative capacity. But the law on this point is clear — an association need not proceed under Federal Rule of Civil Procedure 23 to have standing to sue on behalf of its members. Int’l Union, United Auto. v. Brock, 477 U.S. 274, 289, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986); Retired Chicago Police Assn. v. City of Chicago, 1 F.3d 584, 600 (7th Cir.1993). Indeed, class certification under Rule 23 and associational standing are evaluated on two different rubrics and “although Rule 23 may provide a useful analogy in some cases in which an organization represents its members, it is not controlling.” Local 194, Retail, Wholesale, and Department Store Union v. Standard Brands, Inc., 540 F.2d 864, 867 (7th Cir.1976). In other words, just because an organization cannot meet the requirements of Rule 23 class certification, it does not mean that the organization will automatically also not qualify for associational standing. Such a rule would wholly negate an organization’s recognized ability to sue on behalf of just one of its members because in those instances, an organization would be unable to meet the requirements of Rule 23 such as numerosity, common-question, and typicality. Id. That the Union has removed its class claims is therefore of no consequence to the issue at hand.
The Union’s Claim for Damages
The Union has already essentially conceded that its claim for damages requires too much participation by individual members to satisfy Hunt’s third prong [see e.g. DE 39 at nn. 2]. With good reason: claims for damages are generally “not common to the entire membership, nor shared by all in equal degree” and therefore require individualized proof where the organization itself has" suffered no monetary harm. Warth, 422 U.S. at 515-16, 95 S.Ct. 2197; accord Local 194, 540 F.2d at 865 (union has no standing to seek “individualized forms of monetary relief’ on behalf of its members). I will therefore DISMISS the Union’s claim for economic and punitive damages.
The Union’s Claim for Injunctive Relief
The narrow issue I must resolve, then, is whether the Union has associational standing to request that I issue an injunction against Indiana Harbor Belt on behalf of the Union’s members to remedy alleged race discrimination under Title VII of the 1964 Civil Rights Act and Section 1981 of the Civil Rights Act of 1866. I conclude that it does.
Associations generally have standing.to pursue injunctive relief on behalf of their members. Warth, 422 U.S. at 515, 95 S.Ct. 2197 (“If ... the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.”). More specifically, unions generally have standing to represent members in discrimination claims asking for injunc-tive relief:
[T]he doctrine of associational standing recognizes that the primary reason peo-*692pie join an organization is often to create an effective vehicle for vindicating interests that they share with others. The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all.
Brock, 477 U.S. at 290, 106 S.Ct. 2523 (internal quotation marks omitted); accord Local 194, 540 F.2d at 866 (finding union has standing to pursue injunctive relief for Title VII claims on behalf of its members and that “[t]he effectiveness of these suits can be increased by allowing unions to place their financial resources and expertise behind the suit.”). And contrary to Indiana Harbor Belt’s assertion [D.E. 36 at 8], standing does not fail merely because of á conflict between union member interests. Local 194, 540 F.2d at 866 (“Often a union finds itself in the position of representing a membership whose interests conflict, not only in Title VII cases but in its collective bargaining role. This does not disqualify it from acting at all.” (internal citation and quotation marks omitted)).
Under Hunt, associational standing does fail where “the claim asserted [or] the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343, 97 S.Ct. 2434. What constitutes such individual participation has been the subject of some debate and confusion. And as the Seventh Circuit has observed: “While the Hunt test is well-established in our jurisprudence and enjoys the specific reaffirmation of the Supreme Court in Brock, the application of the various prongs has, to this date, produced a caselaw that does not lend itself to easy distillation.” Retired Chicago Police Assn., 7 F.3d at 600.
While this area of the law is a bit murky, what is clear is that some participation by individual members in a lawsuit is permissible so long as not all of the members need to participate. Id. at 601-02. How could the rule be otherwise? How would an association ever be able to make a Title VII case, for example, without some aggrieved member of the association talking about it? This sensible approach follows the Warth Court’s holding that “so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.” Warth, 422 U.S. at 511, 95 S.Ct. 2197 (emphasis added). As the Retired Chicago Police Association court observed:
We can discern no indication in Warth, Hunt, or Brock that the Supreme Court intended to limit representational standing to cases in which it would not be necessary to take any evidence from individual members of an association. Such a stringent limitation on representational standing cannot be squared with the Court’s assessment in Brock of the efficiencies for both the litigant and the judicial system from the use of representational standing.
Id. at 601-02. This makes sense because if the rule required zero individual participation, then associational standing would not exist because an association could bring a suit only when it was harmed, eviscerating the purpose of the doctrine.
Indiana Harbor Belt claims, however, that the injunction the Union seeks “cannot be accomplished without significant individualized proof and testimony” [DE 40 at 4] because I will have to “inquire about each member’s race, what department they worked in, who was their supervisor, *693and to what actions (noose) or comments (‘N_‘mixed-breed’, ‘half-breed’) they were subjected.” [DE 36 at 8]. I disagree. Although it is unclear exactly what the Union is requesting I do by way of an injunction, the Union’s allegations paint a picture of a system-wide pattern or practice of alleged discrimination. And discrimination claims of this type do not require proof from each individual and are instead evaluated at the liability phase on objective criteria establishing a company-wide pattern-or-practice of discrimination. See e.g. Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“At the initial, ‘liability’ stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policy.”); Puffer v. Allstate Insurance Co., 675 F.3d 709, 716 (7th Cir.2012) (“Pattern-or-practice claims require a showing that an employer regularly and purposefully discriminates against a protected group. Plaintiffs must prove that discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” (internal citations and quotation marks omitted)); Allen v. Int’l Truck & Engine Corp., No. 1:02-CV-902-RLY-TAB, 2006 WL 694345 at *1 (S.D.Ind.2006) (“In a pattern-and-practice case, a plaintiff must show that, given the totality of the circumstances, an objectively reasonable person would find the existence of: (1) a hostile environment of racial harassment within the company (a hostile environment pattern or practice); and (2) a company policy of tolerating a workforce permeated with severe or pervasive racial harassment.”).
The Union points me to a case that really drives home why it is unnecessary for each the Union member to participate in this litigation. In Employees Committed for Justice v. Eastman Kodak Co., the plaintiffs accused the defendants of racial discrimination in various employment practices and of maintaining a hostile work environment involving instances remarkably similar to those alleged by the Union, such as the use of racial slurs including the n-word and depictions of African-Americans hanging from nooses. 407 F.Supp.2d 423, 430 (W.D.N.Y.2005). The defendants argued that the organization could not maintain associational standing on behalf of its members because proving discrimination under Title VII generally, and a hostile work environment specifically, required individual, subjective proof. Id. at 428-29. In rejecting this argument, the court stated that “the liability phase of the hostile work environment or retaliation claim will not hinge on subjective and ‘individualized proof,’ but rather the existence of a pervasive system-wide pattern or practice or discrimination that is equally harmful and applicable to all members of the protected class.” Id. at 433-34.
The court further observed:
[I]t is not necessary for each class member to introduce evidence that he or she found it “subjectively unwelcome” to be called “nigger” or “black boy” or be taunted by racist graffiti and depictions of African-Americans hanging from nooses posted in work lockers, elevators and bathrooms in order to demonstrate the existence of a pervasive, systemic and widespread hostile work environment.
Id. at 430. Although not controlling in this matter, I find the reasoning of the court to be both persuasive and helpful, particularly given that there isn’t a lot of Seventh Circuit precedent addressing what level of individual participation may be required in a Title VII or Section 1981 claim brought by an association. That it would be unnecessary to hear from each and every individual affected that various racial slurs, *694depictions, and other such discriminatory treatment was unwelcome just makes common sense.
CONCLUSION
In light of the foregoing, I will GRANT the Motion to Dismiss Plaintiffs First Amended Complaint [DE 35] with respect to the Union’s request for economic and punitive damages, but DENY the motion with respect to the Union’s request for injunctive relief. The Union need not file an amended complaint reflecting this ruling.
SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217922/ | MEMORANDUM *
Mario Ochoa-Garcia appeals his conviction for being a deported alien found in the United States. See 8 U.S.C. § 1326. We affirm.
While Ochoa raises three separate issues, each of them revolves around his claim that he never entered the United States because he was under official restraint from the moment he stepped over the border to the time of his physical capture. See United States v. Gonzalez-Torres, 309 F.3d 594, 597-99 (9th Cir.2002); United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000). We disagree. The record makes it plain that Ochoa was not under constant surveillance from the moment he came onto United States soil.1 That means that he did manage to enter. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1218-19 (9th Cir.2001); United States v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th Cir.2001); United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir.2001); Martin-Plascencia, 532 F.2d at 1317-18.
Therefore, the indictment was not defective. See United States v. Lualemaga, 280 F.3d 1260, 1263 (9th Cir.2002). Moreover, the evidence was sufficient to support the verdict. See Pacheco-Medina, 212 F.3d at 1163. Finally, the dearth of evidence of official restraint relieved the district court of any obligation to instruct the jury on that doctrine. See Castellanos-Garcia, 270 F.3d at 777.
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.
. Among other things, he was not seen as he entered and he did not even trigger a seismic sensor until he was 100 yards into this country. See United States v. Martin-Plascencia, 532 F.2d 1316, 1317 (9th Cir.1976). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217923/ | MEMORANDUM**
Jose Valencia appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We review the denial of a petition for a writ of habeas corpus de novo. Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000). Valencia argues that the California Court of Appeal incorrectly rejected his claim under Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although AEDPA ordinarily requires deference to state court decisions,1 we review Valencia’s constitutional claim de novo, because the California Court of Appeal applied the more stringent standard of People v. Wheeler, 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), rather than the “reasonable inference” test of Batson, 476 U.S. at 96. See Wade, 202 F.3d at 1197.
To establish a prima facie case of purposeful discrimination based on a prosecutor’s peremptory strikes, Valencia must show (1) that he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory challenges to remove members of that racial group from the venire; and (3) that the facts and relevant circumstances raise an inference that the prosecutor excluded venire members on account of their race. Batson, 476 U.S. at 96. The existence of a prima facie case is determined on the basis of the combination of circumstances taken as a whole. United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989).
Valencia has not established an inference that the prosecutor excluded venire members on account of their race. Valencia highlights five peremptory strikes against Hispanics, but fails to provide any statistical information about the number of Hispanics on the venire, the percentage of Hispanic venirepersons struck, or the per*56centage of peremptories used against Hispamos. S ee Williams v. Woodford, 306 F.3d 665, 682 (9th Cir.2002) (holding a prima facie case not established when the record did not show how many African-Americans were on the venire); cf Fernandez v. Roe, 286 F.3d 1073, 1078-80 (9th Cir.2002) (stating that a prima facie case existed when the record showed that four out of seven (57%) prospective Hispanic jurors were stricken); Turner v. Marshall, 63 F.3d 807, 813-14 (9th Cir.1995) (concluding that petitioner had established a prima facie case when the record showed that 56% of peremptories were used against African-Americans and yet African-Americans comprised approximately 30% of the persons who appeared before the court on voir dire), overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.1999) (en banc).
Although we may consider other non-statistical evidence in determining whether a prima facie case has been established, see Johnson v. Campbell, 92 F.3d 951, 953-54 (9th Cir.1996), Valencia’s non-statistical evidence is also insufficient to establish a prima facie Batson violation. Obvious neutral reasons for a number of the peremptory challenges appear on the face of the record. One challenged juror was an attorney and two others indicated that a person who stays in an abusive relationship may deserve what happens in that relationship. Another challenged juror was a clerk in a law firm.
The district court noted that another challenged juror had no prior jury experience. Other unchallenged jurors had no prior jury experience either. In its totality, however, this marginal evidence does not suffice to meet even the low threshold required for a prima facie violation.
Valencia failed to establish a prima facie case of a Batson violation in state court. 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 Circuit Rule 36-3.
. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA”), Pub.L. No. 104-132, applies because the petition for writ of habeas corpus was filed on October 20, 2000, after AEDPA’s April 24, 1996 effective date. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217924/ | MEMORANDUM**
Petitioner Diaz-Sosa, a native and citizen of Mexico, was ordered removed after being convicted of an aggravated felony under 21 U.S.C. §§ 841(a), 952, and 960. The Bureau of Immigration Appeals denied his request for cancellation of removal. He appeals claiming that he is a citizen or national of the United States.
We have jurisdiction to determine if a genuine issue of material fact exists as to whether Diaz-Sosa is a national or citizen, and therefore, not an alien subject to removal under the immigration laws. Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir.2001); Scales v. INS, 232 F.3d 1159, 1161 (9th Cir.2000); 8 U.S.C. § 1252(b)(5)(A). Diaz-Sosa contends that his continued presence in the United States and his application for citizenship qualifies him for national status. We have acknowledged that lengthy residence alone does not qualify an individual as a national. Hughes, 255 F.3d at 756; United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir.1997). To obtain national status after birth, a person must, at a minimum, apply for citizenship to demonstrate permanent allegiance to the United States. Hughes, 255 F.3d at 757. Athough Diaz-Sosa applied for naturalization in 1985, he withdrew his application the following year.
We recently held that where an alien withdraws an application for naturalization, the alien is not a national as a matter of law. United States v. United States District Court for the Central District of California, 316 F.3d 1071 (9th Cir.2003). The “at a minimum” requirement in Hughes in no way suggests that the mere filing of a citizen application is enough to obtain nationality. Hughes, 255 F.3d at 757 (finding that, since petitioner did not apply for citizenship, “we need not delineate what additional facts (if any) he would have to show”). Therefore, no genuine issue of fact exists to warrant an evidentiary hearing on Diaz-Sosa’s nationality. Baeta v. Sonchik, 273 F.3d 1261, 1265 (9th Cir.2001). Since he is not a national or citizen of the United States, he is an alien pursuant to 8 U.S.C. § 1101(a)(3).
Diaz-Sosa’s claim that the Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431, violates equal protection because it does not apply retroactively must fail, as conceded by petitioner’s counsel at oral argument. We have held that the CCA does not apply retroactively to individuals who turned eighteen before the implementation of the CCA. Hughes, 255 F.3d at 759-60 (finding that an individual who was adopted by citizen parents is not entitled *58to automatic citizenship since he was over the age of eighteen at the time of the Act’s implementation). Even if the statute applied retroactively, Diaz-Sosa would not qualify for citizenship since his mother became a naturalized citizen in 1997, well after his eighteenth birthday. Moreover, Diaz-Sosa does not allege in his pleadings, nor is it apparent in the record, that he was ever adopted by his stepfather. Diaz-Sosa has not suffered a particularized injury that is likely to be redressed by a favorable decision of the Court. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Therefore, Diaz-Sosa does not have standing to attack the constitutionality of the CCA.
Diaz-Sosa’s alien status renders him removable since he was convicted of an aggravated felony1 after entry. 8 U.S.C. § 1227(a)(2)(A)(iii). Diaz-Sosa was convicted of importing and possessing marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), § 952, and § 960. Diaz-Sosa does not dispute that his underlying conviction is an aggravated felony; therefore, he does not qualify for cancellation of removal. 8 U.S.C. § 1227(a)(2)(A)(iii). With the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Congress divested federal courts of jurisdiction to review petitions “filed by aliens who are deportable because they committed an ‘aggravated felony.’ ” Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir.1999). Accordingly, we lack jurisdiction over Diaz-Sosa’s petition.
Diaz-Sosa’s due process rights have not been violated due to the fact that he is statutorily foreclosed from applying for relief under repealed § 212(c) of the INA, codified at 8 U.S.C. § 1182(c) (1994) (repealed 1996). Discretionary relief under § 212(c) was never an option for Diaz-Sosa since his plea was entered after the enactment of IIRIRA. Castro-Espinosa v. Ashcroft, 257 F.3d 1130, 1131 (9th Cir. 2001). The denial of discretionary relief by the BIA did not deprive Diaz-Sosa of his due process rights under the Fifth Amendment. Briseno, 192 F.3d at 1323.
Accordingly, the petition for review 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.
. An “aggravated felony” includes illicit trafficking in controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code). INA § 101(a)(43). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217925/ | MEMORANDUM**
Darnell Bryant’s claims for nominal, compensatory, and punitive damages premised on deliberate indifference to his safety, and not on any alleged mental or emotional injuries, are not barred by 42 U.S.C. § 1997e(e). See Oliver v. Keller, 289 F.3d 623, 629-30 (9th Cir.2002). However, his claims for mental and emotional injury are barred due to a lack of physical injury. See id. at 629. Accordingly, the district court was correct in allowing Bryant’s constitutional claim to proceed, but erred in affording similar treatment to his emotional and mental injury claims. See id.
The facts presented, taken in the light most favorable to Bryant, reflect a violation of Bryant’s constitutional right as an inmate to protection from violence. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.1989). The law governing inmate safety was clearly established at the time Bryant’s constitutional claims arose. See Farmer, 511 U.S. at 834. It would be clear to a reasonable state official in the position of the Defendants in this case that their conduct in knowingly reassigning Bryant to the general population segment of a facility where he was previously brutalized was unlawful. See id., see also Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050-51 (9th Cir.2002).
Accordingly, the district court properly denied the Defendants’ motion for summary judgment based upon qualified immunity as to Bryant’s constitutional claim. See Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.2002).
*60AFFIRMED in part; REVERSED in part and REMANDED. Appellant is awarded appeal costs.
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/7217926/ | MEMORANDUM **
The district court dismissed Trustees’ claims against Richardson for two reasons: It doubted that pendent party jurisdiction was constitutional and, to the extent that it was constitutional, declined to exercise supplemental jurisdiction. We review de novo the issue whether the district court had supplemental jurisdiction. See Hoeck v. City of Portland, 57 F.3d 781, 784 (9th Cir.1995). We review for abuse of discretion the district court’s decision to decline supplemental jurisdiction. See Bryant v. Adventist Health Sys.fW., 289 F.3d 1162, 1165 (9th Cir.2002).
1. Pendent party jurisdiction is constitutional so long as the pendent state law claim is part of the same “case or controversy” as the federal claim. See Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir.2002); 28 U.S.C. § 1367(a) (providing “the district courts shall have supplemental jurisdiction over all other claims that are so related to [federal claims] that they form part of the same case or controversy under Article III”). Nonfederal claims are part of the same “case” as federal claims when they “ ‘derive from a common nucleus of operative fact’ and are such that a plaintiff ‘would ordinarily be expected to try them in one judicial proceeding.’ ” Finley v. United States, 490 U.S. 545, 549, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).
The state law claims here are part of the same constitutional case as the ERISA claims. The debt that Trustees seeks to recover from Richardson is the same ERISA-related debt Trustees also sought to recover from Desert Valley. Richardson planned to argue as part of its equitable estoppel defense that Desert Valley did not in fact owe any ERISA contributions. Thus, the issue of Desert Valley’s ERISA obligations would have been part of the trial on Richardson’s state law obligation to answer for Desert Valley’s debts. Pendent party jurisdiction was therefore constitutional.
2. The district court also, in the alternative, invoked its discretion under § 1367(c)(3) and declined to exercise jurisdiction. To decline jurisdiction under § 1367(c)(3), the district court must first identify the dismissal that triggers the exercise of discretion, and then explain how declining jurisdiction serves the objectives of economy, convenience and fairness to the parties, and comity. See Executive Software N. Am., Inc. v. United States Disk Court, 24 F.3d 1545, 1557 (9th Cir.1994).
The district court did not dismiss the federal claim in this case, but, instead, granted a default judgment in favor of the plaintiff. Our cases upholding the exercise of discretion under § 1367(c)(3) have all involved dismissals for failure to state a claim or a grant of summary judgment to the defendant on the federal claim. See, *62e.g., Bryant, 289 F.3d 1162 at (summary judgment for defendants on federal claim); Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001) (Rule 12(b)(6) dismissal of federal claims). In each case, we held it appropriate for the district court to decline jurisdiction over the pendent state claims because there was no viable federal claim. Here there is a viable federal claim, even though there has been a liability determination upon it. As the federal claim here was not dismissed, the exercise of discretion was not authorized by § 1367(c)(3).
Further, even if the district court had had the authority to exercise discretion and decline jurisdiction, it did not further the objectives of fairness and efficiency to do so. The district court permitted the Trustees to amend their complaint to add the state law claim and then managed the ease through another year of discovery, bringing the case into its third year. The court then granted partial summary judgment on the state claim, only to dismiss the case seven days before trial. Dismissing the case after such a long delay and after the parties were essentially done with trial preparation was neither fair to the parties nor an efficient use of judicial resources. The dismissal was therefore an abuse of discretion.
3. Trustees attacks the clerk’s award of costs to Richardson on several grounds. In light of our decision to reverse the district court’s dismissal, there is no longer a final judgment to support that award. It is therefore vacated.
4. Richardson cross-appeals the district court’s award of partial summary judgment as to damages in the state law claim. Where a district court erroneously dismisses a case on jurisdictional grounds, our precedents indicate that we should decline to exercise jurisdiction over prior substantive orders that would not themselves support a final judgment. See Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 693-94 & n. 2 (9th Cir.1992). We therefore do not reach the propriety of the partial summary judgment. Richardson may, of course, raise the issue in any later appeal of a final judgment on the merits in this case.
CONCLUSION
The judgment of the district court is REVERSED and REMANDED. Award of costs VACATED.
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/7217927/ | MEMORANDUM *
Appellant Leonard S. Brown (“Brown”) contends that State Farm Mutual Automobile Insurance Company and State Farm Insurance Company (collectively “State Farm”) breached both the insurance contract and the implied covenant of good faith and fair dealing by delaying the payment of underinsured motorist insurance benefits.
Because Brown recovered all the benefits due to him under his policy, State Farm did not breach its contract with Brown for insurance coverage. See Quinterno v. Mercury Cas. Co., 11 Cal.4th 1049, 1056, 48 Cal.Rptr.2d 1, 906 P.2d 1057 (1995).
State Farm did not breach the covenant of good faith and fair dealing. Unresolved liability issues concerning State Farm’s other insured driver made it reasonable for State Farm to proceed to trial for a determination of its exposure. Questions of coverage negate a bad faith claim as a matter of law. See Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 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/7217928/ | MEMORANDUM *
Amy Fulkerson appeals the grant of summary judgment in favor of her former employer, AmeriTitle, Inc., on her employment-related claims and the denial of her motion to bifurcate. We review the grant of summary judgment de novo, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002), and the trial court’s decision not to bifur*65cate a trial for abuse of discretion, Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir.1996). We affirm in part, reverse in part and remand.1
Fulkerson contends her claims for pregnancy discrimination under both Title VII and Oregon law were improperly decided at summary judgment. We conclude Fulkerson has established the minimal showing necessary for a prima facie case and that there is a material dispute of fact regarding whether the proffered nondiscriminatory reason was pretextual.2
To state a prima facie case of discrimination, Fulkerson must show that: (1) she is a member of a protected class; (2) she was satisfactorily performing her job; (3) she was discharged; and (4) similarly situated persons not in her protected class were treated more favorably or that her position was filled by a person who was not pregnant. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir.1988); cf. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). AmeriTitle concedes Fulkerson has established the first and third elements of the prima facie case.
Fulkerson has met the minimal level of proof required to establish her prima facie case. First, she sufficiently demonstrated satisfactory performance, the second element, based on the favorable evaluations she received up to the time she revealed her pregnancy. Villiarimo, 281 F.3d at 1062. The plaintiffs burden is only to establish she was performing “well enough to rule out the possibility that [s]he was fired for inadequate performance.” Pejic, 840 F.2d at 672. AmeriTitle argues Fulkerson’s unsatisfactory performance is nonetheless established by her admission that she lied about being ill (the Las Vegas incident)—the lynchpin of AmeriTitle’s claim that it fired her for proper cause. The showing of satisfactory performance necessary to establish a prima facie case is minimal and usually does not consider the nondiscriminatory reason proffered by the defendant. See, e.g., Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659-60 (9th Cir.2002) (we do not “conflate the minimal inference needed to establish a prima facie case with the specific, substantial showing [plaintiff! must make at the third stage of the McDonnell Douglas inquiry”). Even if this were not so, it would be improper to consider the he because, as we discuss below, there is a material dispute of fact as to whether AmeriTitle knew of the he prior to discharging Fulkerson. Cf. McKennon v. Nashville Banner Pub’g Co., 513 U.S. 352, 358-60, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (after-acquired evidence not admissible to determine liability even where admitted by the plaintiff).
Fulkerson has also satisfied the fourth element of her prima facie case by presenting facts, which taken in the hght most favorable to Fulkerson create a reasonable inference that a similarly situated male employee, Andy Melsness, was treated more favorably when AmeriTitle doubted his medical excuse for not reporting to *66work.3 Villiarimo, 281 F.3d at 1062. Although Andy Melsness initially had a legitimate medical excuse for his absence, AmeriTitle came to believe Melsness was lying about the time needed for recovery. AmeriTitle nonetheless offered Melsness repeated opportunities to return to work. To the extent necessary to demonstrate a prima facie case, we see little difference between the two lies. Moreover, the inference of differential treatment is aided by direct evidence of discriminatory intent in the form of remarks by AmeriTitle’s president implying displeasure with Fulkerson’s becoming pregnant. See United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir.2002) (en banc) cert. granted, — U.S.—, 123 S.Ct. 816, 154 L.Ed.2d 766 (2003); Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988). In sum, we hold that Fulkerson has made the minimal showing necessary for a prima facie case.
We also conclude there is a material dispute of fact concerning whether AmeriTitle’s proffered nondiscriminatory reason is pretextual. AmeriTitle claims to have fired Fulkerson because of the Las Vegas he.4 However, the source who allegedly informed AmeriTitle about the he testified that she did not discuss the matter with anyone until after Fulkerson’s discharge. Moreover, AmeriTitle did not express this reason at the time of the discharge, particularly in the memos her two supervisors wrote in documenting the discharge. This evidence creates a dispute as to whether AmeriTitle knew about the lie prior to discharging Fulkerson and thus whether the lie could have formed the basis for AmeriTitle’s decision. Additionally, the apparent differential treatment of Andy Melsness raises a second and independent issue of pretext. We thus hold that Fulkerson’s claims for discriminatory discharge survive summary judgment. Lyons v. England, 307 F.3d 1092, 1112-13 (9th Cir.2002) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
We affirm the grant of summary judgment on each of Fulkerson’s other claims:
(1) Fulkerson claims she was subjected to a hostile environment. We disagree. The instances complained of are stray remarks that, although they may inform the prima facie case analysis, do not suffice to demonstrate the necessary severe and pervasive hostility. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
(2) Fulkerson contends summary judgment is inappropriate on her claim for intentional infliction of emotional distress. We disagree. No conduct rose to the level of “an extraordinary transgression of the bounds of socially tolerable conduct.” McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849 (Or.1995).
*67Finally, Fulkerson contends the district court erroneously denied her motion to bifurcate the trial. The district court denied the motion as moot due to the grant of summary judgment. We need not decide the merits of the motion, which the district court has yet to determine.
The parties shall bear their own costs on appeal.
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.
. We reject AmeriTitle's contention that we must accept its statement of facts as true because Fulkerson failed timely to deny or otherwise controvert those facts as required by local rules. Whatever interpretation of the local rules is appropriate, the district court did not accepted AmeriTitle's facts as true and we shall not do so now. Thus, we review the record as a whole in the light most favorable to Fulkerson.
. The burden shifting approach applied to Title VII cases is also applicable to claims under Oregon state law when tried in federal court. Snead v. Metro Prop. & Cas. Ins. Co. 237 F.3d 1080, 1091-93 (9th Cir.2001).
. AmeriTitle’s argument regarding the authentication of this evidence is without merit. Orr v. Bank of Am., 285 F.3d 764, 777 & n. 20 (9th Cir.2002); Maljack Prods., Inc. v. Good-Times Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996) (documents authenticated by attachment to declaration of defendant's attorney stating they were produced by plaintiff in discovery).
. AmeriTitle also claims to have relied on an alleged statement by Fulkerson referring to her supervisor as a "bitch.” The record on summary judgment is not sufficient to sustain this alleged incident as a non-pretextual basis for the discharge. Moreover, the transcript of the summary judgment hearing indicates that AmeriTitle apparently disavowed other performance problems as the basis for the discharge, representing to the district court that Fulkerson "was not terminated for the bad performance issues.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217929/ | MEMORANDUM **
California state prisoner Dennis N. Er-vine appeals pro se the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s factual findings regarding exhaustion of administrative remedies for clear error and its application of substantive law de novo. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003). We vacate and remand.
*68Before bringing an action in district court, a prisoner is required to exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). Ervine contends that the formal levels of the grievance process were not available to him because prison officials failed to return the form he submitted at the informal level, which he was required to re-submit at each of the next three levels pf the process. This contention has merit.
California Department of Corrections (“CDC”) regulations provide a four step administrative process for prisoner grievances: (1) informal complaint, (2) first formal appeal with an appeals coordinator, (3) second level review by the institution head, regional parole administrator, or their designee, and (4) third level review with a designated representative of the director under supervision of the chief, inmate appeals. Cal.Code. Reg. tit. 15, § 3084.5. An informal complaint is a prerequisite to further administrative review. Id., § 3084.2(b). To make an informal complaint, a prisoner must submit a CDC form 602 describing the problem and action requested. Id., § 3084.2(a). A prison employee reviews the informal complaint and provides the prison’s response on the same form, reporting what action was taken in the space provided and signing and dating the form. Id., § 3084.5(a)(2). To proceed to the first formal level appeal (which is the second step in the grievance process), the prisoner must submit the same 602 form, explaining his dissatisfaction with the prison’s initial response in the space provided. See CDC form 602 (rev 12-87). A first formal level appeal that does not include evidence of an informal complaint or that does not include necessary supporting documents is subject to rejection. Cal. Code. Reg. tit. 15, § 3084.3(c)(4) and (5).
In this case, Ervine submitted numerous informal complaints on 602 forms and received no response. Ervine contends that, because the prison did not return his 602 forms, he could not proceed to the first formal appeal level and defendants have not established otherwise. The district court’s finding that defendants proved that Ervine could have proceeded to the second step of the grievance process in spite of the prison’s failure to provide a response to his informal complaints is not supported by the record. See Wyatt, 315 F.3d at 1120 (defendant has burden to prove the plaintiff-prisoner failed to exhaust available administrative remedies).
Because defendants have not proven that Ervine failed to exhaust available administrative remedies, we vacate the judgment of dismissal and remand for consideration of the merits of Ervine’s claims.
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/7217930/ | MEMORANDUM *
Jason Avalon Hemmings appeals a final judgment of conviction following his conditional guilty plea to armed bank robbery and brandishing a gun during a crime of violence in violation of 18 U.S.C. § 2113(a)(d) and 18 U.S.C. § 924(c). Specifically, Hemmings challenges the district court’s denial of his motion to suppress his confession. The district court determined that, at the time of his confession, Hemmings was not “in custody” for the purposes of Miranda. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
A defendant is only “in custody” for the purposes of Miranda where, under the totality of the circumstances, a reasonable person would conclude after brief questioning that he or she was not free to leave. See United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir.2001). Although Hemmings was subpoenaed and appeared at the FBI offices solely for the purpose of providing fingerprints and photographs, Agent Nordstrom informed Hemmings that he had complied with the subpoena after the fingerprints and photographs were taken and that he was free to leave both before and during the interrogation. See id. (holding that defendant was not in *70custody when the defendant voluntarily appeared at two interviews and the interviewing agents informed her that she was free to leave at any time); United States v. Manglona, 414 F.2d 642, 644 (9th Cir. 1969) (holding that defendant was not in custody where the defendant voluntarily consented to being interviewed and was told that he was not under arrest and was free to terminate the interview at any time). Indeed, Agent Nordstrom informed Hemmings that he was not under arrest and offered to take him home.
The fact that Hemmings was interviewed in an interrogation room with the door partially closed and was confronted with evidence of his guilt did not transform his voluntary interview with the FBI agents into a custodial interrogation - the FBI agents informed Hemmings that he was free to terminate the interview several times and they did not restrain Hemmings or prevent him from exiting the building. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (stating that the fact that the interrogation took place in the stationhouse was not enough on its own to create a custodial environment); Hayden, 260 F.3d at 1066 (holding that although defendant was confronted with incriminating bank statements, there was no evidence that the interview was not voluntary or that the defendant could not find her way out of the FBI building). In sum, a reasonable person in Hemmings’ position would have felt free to leave, and, therefore, we agree with the district court that Hemmings was not in custody at the time he was questioned by the FBI agents.
II.
Hemmings next argues that even if he was not in custody, the district court still should have granted his suppression motion because the agents coerced his confession. We disagree.
Neither the act of confronting a defendant with evidence of his guilt nor the deceptive misrepresentation of evidence constitutes coercive conduct by law enforcement officials. See United States v. Orso, 266 F.3d 1030, 1039 (9th Cir.2001). Although the officers did not inform Hemmings of his Miranda rights, we use a totality of the circumstances test to determine whether Hemmings’ statements were voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Hemmings does not point to any facts in the record which would indicate that the agents coerced him into admitting his involvement in the robbery. Therefore, we conclude that the district court properly determined that Hemmings’ confession was not involuntary.
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/7217931/ | *72MEMORANDUM *
Pyramid Travel, Inc. (“Pyramid”) argues that the district court erred by reading the arbitration clause in the parties’ agreement expansively, resulting in a determination that the libel claims be arbitrated. The clause at issue is at least as expansive as phrases such as “arising out of or relating to” or “all disputes arising in connection with this Agreement,” which are liberally interpreted. See Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 720 (9th Cir.1999). The district court correctly found that the libel action “touch[ed] matter” contained in the agreement and was, therefore, subject to the agreement to arbitrate. See id. at 721.
The district court also correctly held that individual plaintiffs Mokshinder Singh (“Singh”) and Rajinder Mahal (“Mahal”) were subject to the arbitration agreement because of the nature of their claim, which stated that Singh and Mahal were the persona or public face of Pyramid.
SriLankan Airlines Limited (“Sri-Lankan Airlines”) did not waive the right to arbitrate. See Van Ness Townhouses v. Mar Indus. Corp., 862 F.2d 754; 758 (9th Cir.1989); Lake Communications, Inc. v. ICC Corp., 738 F.2d 1473, 1477 (9th Cir.1984). SriLankan Airlines listed as its tenth affirmative defense that Pyramid’s claims were subject to arbitration. This put Pyramid on notice that SriLankan Airlines would attempt to have the claims referred to arbitration. Pyramid has also failed to show prejudice. See Lake Communications, 738 F.2d at 1477; ATSA of California, Inc. v. Conti Ins. Co., 702 F.2d 172, 175 (9th Cir.1983). Only 76 days elapsed from the inception of this suit to the filing of the motion to compel arbitration and only 42 days elapsed from the time SriLankan Airlines filed the counterclaim to the time it filed the motion to compel. This delay is not sufficiently prejudicial to support Pyramid’s waiver argument.
The forum-selection clause in the agreement to arbitrate should be honored. The Supreme Court has determined that an agreement to arbitrate before a specified tribunal, such as in this ease, is equivalent to a forum-selection clause. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). We have declared that because arbitration forum-selection clauses in international agreements “offer stability and predictability regardless of the vagaries of local law,” Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469, 478 (9th Cir.1991), they should be given great deference. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). The civil war in Sri Lanka was on-going when plaintiffs signed the agreement. Furthermore, they have availed themselves of the Sri Lankan courts since the 9-11 terrorist attacks.
“Libel is a false and unprivileged publication .. •. which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Cal. Cxv.Code § 45. Truth of the statement, however, is an absolute defense. Smith v. Maldonado, 72 Cal.App.4th 637, 85 Cal.Rptr.2d 397, 404. Although we have doubts regarding the Defendants/Appellees motives, it is not disputed that: (1) Pyramid, effective April 1, 2000, was no longer the General Service Agent (“GSA”) for SriLankan Airlines; (2) Pyramid retained possession of ticket stock that pursuant to the GSA agreement *73should have been returned to SriLankan Airlines; (3) if Pyramid issued any tickets on this ticket stock the tickets would be invalid; and (4) the ticket stock numbers listed were the same as those in the possession of Pyramid. The district court correctly granted summary judgment to Sri Lankan Travel, Inc. because the published statement was true. See id.
Pyramid argues that the district court erred by relying on Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir.1998), to grant summary judgment on the negligent publication claim. In Newcombe, the plaintiff claimed negligent “creation.” Id. at 695. We found, however, that negligent creation could not form the basis of a cognizable claim because the creation of the article alone caused no damage to the plaintiff. Id. Instead, we characterized plaintiffs claim as a negligent publication claim. Id. A negligent publication claim, such as asserted by Pyramid, is, however, “substantively equivalent to a libel claim based on the same publication.” Id. at 694. Therefore, Pyramid makes only one cognizable claim. The negligent publication claim is subsumed by the libel analysis.
The district court has authority to impose sanctions pursuant to both 28 U.S.C. § 1927 and its inherent power. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The district court did not abuse its discretion by refusing to impose sanctions. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1526 (9th Cir.1990).
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/7217932/ | MEMORANDUM**
Plaintiff-Appellant David C. Pesnell (“Pesnell”) brought claims against the government under the Federal Tort Claims Act (“FTCA”) for misrepresentation, unjust enrichment, constructive trust, conversion, and negligence. Pesnell also brought claims for wrongful search and seizure and violation of due process under the Fourth, Fifth and Fourteenth Amendments. Pesnell’s final claim was brought under the Freedom of Information Act (“FOIA”) for the return of documents. The district court properly dismissed all of Pesnell’s claims.
The FTCA specifically exempts claims for misrepresentation from its waiver of sovereign immunity. See F.D.I.C. v. Craft, 157 F.3d 697, 707 (9th Cir.1998). Pesnell’s misrepresentation claim was therefore properly dismissed.
The FTCA does not contain a waiver of sovereign immunity for equitable claims. See Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir.1992). Pesnell’s claims for unjust enrichment and for the imposition of a constructive trust were therefore appropriately dismissed for lack of jurisdiction. While the Administrative Procedures Act (“APA”) does provide a waiver of the government’s sovereign immunity for some equitable claims, see Presbyterian Church v. United States, 870 F.2d 518, 525 (9th Cir.1989), the APA does not provide an independent source of jurisdiction for these claims. See Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1015 (9th Cir.2000). Pesnell has not established an independent basis of federal jurisdiction for his equitable claims.
Pesnell’s conversion and negligence claims are barred by Pesnell’s failure to exhaust his administrative remedies. The FTCA provides for presentation of a tort claim to the appropriate federal agency within two years of the claim’s accrual, see 28 U.S.C. § 2401(b); and filing of an action within six months after notice of denial of the claim, or the passing of six months without a final disposition of the claim, id.; see also 28 U.S.C. § 2675(a). The administrative exhaustion requirements of 28 U.S.C. § 2675(a) are jurisdictional in nature and are interpreted strictly. See Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.1995). Pesnell filed his complaint in district court only two months after filing claims with the Department of the Interior and the Department of Defense. The district court therefore lacked jurisdiction to consider Pesnell’s prematurely filed claims. See McNeil v. United States, 508 U.S. 106, 110-11, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
The FTCA does not include a waiver of sovereign immunity for constitutional *75tort claims. See Cato v. United States, 70 F.3d 1103, 1111 (9th Cir.1995). While Pesnell could be permitted to amend his complaint to bring his constitutional claims against individual government agents pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), any such claims would be barred by the two-year statute of limitations applicable to Bivens actions in Arizona. See Jackson v. Chandler, 204 Ariz. 135, 61 P.3d 17, 19 (2003) (en banc).
Finally, the record reflects that the documents taken from Pesnell in 1988 were inadvertently destroyed and thus cannot be returned, and the documents taken in 1995 have been returned to Pesnell in their entirety. These circumstances render Pesnell’s FOIA claim moot. See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir.1986).
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/7217933/ | MEMORANDUM *
This is a petition for review of a BIA decision upholding the Immigration Judge’s denial of a motion to reopen removal proceedings. The removal order was issued in absentia. Petitioner, Olga Salazar-Martinez does not dispute that she received adequate notice and was not in *76government custody. She was therefore entitled to reopening only if she showed exceptional circumstances. Immigration and Nationality Act (the “INA”) § 240(b)(5)(C)®, 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 3.28(4)©. The statute defines the term as follows: “The term ‘exceptional circumstances’ refers to exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.” INA § 240(e)(1), 8 U.S.C. § 1229a(e)(l).
The petitioner, her husband, and two minor children are all citizens of Mexico. The couple also has three, younger, citizen children. The family, according to the uncontroverted evidence in the record, moved from California to Hawaii because Jessica, a citizen child, suffered from severe asthma and her health fared much better in Hawaii. However, because of the expense of living in Hawaii, the family returned to California to see if the illness would recur. It did.
It is not disputed that the petitioner was unable to leave the citizen child alone in California, and lacked funds to fly the entire family back to Hawaii for the removal hearing. She and a non-citizen son, Edwin, therefore remained in California with the other children. Her husband, however, attended the hearing.
The IJ was correct in holding that lack of funds to return to Hawaii for a previously scheduled hearing would not in and of itself constitute exceptional circumstances. The IJ’s characterization of the trip as a poorly planned “vacation,” however, fails to take into account the totality of the circumstances as required under our law. Celis-Castellano v. Ashcroft, 298 F.3d 888, 891 (9th Cir.2002). Those circumstances included the unforseen seriousness of the citizen child’s illness in California that made it impossible for a united family to appear at the deportation hearing.
The petition for review is GRANTED. The BIA’s dismissal of petitioner’s appeal from the IJ’s denial of a motion to reopen is REVERSED and the matter is REMANDED for reopening.
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/7217935/ | MEMORANDUM**
Fausto Louis Muncal-Clemente (“Mun-cal”) applied unsuccessfully for a waiver of deportability and for suspension of deportation. He timely petitioned for review of those decisions. We deny the petition.
*81We review for abuse of discretion the BIA’s denial of a waiver of deportability. Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir.1985). There was no abuse of discretion as long as the BIA’s decision was rational. See id. at 541.
The BIA considered factors both in favor of and opposing waiver. It acknowledged that Muncal had resided in the United States for 18 years, that he had relatives, including his mother, living in the United States, that he was an active member of the community, and that he had a responsible job. It noted, however, that neither Muncal nor his family members in the United States would suffer abnormal hardship if he were deported.1 It also noted that, because Muncal’s wife and three children live in the Philippines, his primary family unit would not be disrupted. The BIA concluded that the positive factors were outweighed by the frauds Muncal had perpetrated in attempting to obtain naturalization, which included lying about the number of children he had, submitting forged birth certificates, and not rectifying his initial fraud. This conclusion was rational.
We lack jurisdiction to consider the application for suspension of deportation because Muncal did not raise the issue before the BIA. See Vargas v. United States Dept. of Immig. & Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987).
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.
. Contrary to the dissent’s claim, it appears to us that the BIA did consider the impact on Muncal’s mother. It simply did not weigh that impact to be as heavy as the dissent does. We cannot say that the BIA’s evaluation was irrational. The record does not disclose any "particular hardships” or dependency. Mun-cal’s mother owns her own home. Each month, she receives a pension of $900, Social Security benefits of another $900, and her second husband receives Social Security benefits of $700, for a total of $2,500, tax free. The additional financial support provided by Muncal was limited. As for hardship, the second husband is available to drive the mother to her medical appointments. She also has two other adult children in California to assist her. On this record, we cannot agree that the BIA abused its discretion in concluding that " [although undoubtedly his family members here in the United States would experience hardship if he returned to the Philippines, it does not appear that it would exceed the hardship momally experienced when adult family members live distant from each other.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217960/ | ORDER
Universal Surveillance Systems, Inc. moves without opposition to voluntarily dismiss 03-1231.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The unopposed motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 07-25-2022 |