After examining the briefs and the appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Appellant, Steve A. Wilson (the "Appellant"), proceeding pro se, appeals the district court's dismissal of a 42 U.S.C. § 1983 civil rights complaint he and several other individuals (the "Plaintiffs") filed against defendants.(1) Plaintiffs' complaint alleged several violations of their constitutional rights arising from the enactment of the Oklahoma Truth In Sentencing Act (the "Act"). The Act made alterations to Oklahoma law relating to sentencing and parole. The Oklahoma Department of Corrections and the Oklahoma Pardon and Parole Board were named in the title of the complaint as defendants.
The court first concluded that defendants, as state agencies, were entitled to Eleventh Amendment immunity and that immunity had not been waived. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Knoll v. Webster, 838 F.2d 450, 451 (10th Cir. 1988); see also Wallace v. Oklahoma, 721 F.2d 301, 305-06 (10th Cir. 1983). The court also concluded that defendants were not "persons" within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that states and governmental entities considered arms of the state for Eleventh Amendment purposes are not persons within the meaning of 42 U.S.C. § 1983); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) ( holding that "a cause of action under § 1983 requires a deprivation of a civil right by a 'person' acting under color of state law"). The court noted that Plaintiffs named several individuals employed by defendants in the jurisdictional statement of their complaint. The court, however, concluded that these individuals were not properly before the court as defendants because Plaintiffs did not clearly state in their complaint that they intended these individuals to be defendants. See Fed. R. Civ. P. 10(2) (providing that all parties must be named in the title of the action); cf. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (recognizing that "a party not properly named in the caption of a complaint may still be properly before the court if the allegations in the body of the complaint make it plain the party is intended as a defendant").
The district court next concluded that it would be futile to allow Plaintiffs to amend their complaint to name a proper person as a defendant. The district court noted that Plaintiffs had not sought or been granted certification to maintain their suit as a class action. The court then concluded that Plaintiffs could not be permissively joined pursuant to Rule 20 of the Federal Rules of Civil Procedure because their claims do not arise "out of the same transaction, occurrence, or series of transactions or occurrences." Fed. R. Civ. P. 20(a). The court also noted that the relief sought by Plaintiffs includes the modification of the sentences each received. To the extent Plaintiffs attack the fact or duration of their confinement, their claims are not cognizable under 42 U.S.C. § 1983 but must, instead, be brought in a petition for a writ of habeas corpus. See Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993).
The district court, after considering Plaintiffs' objections to the R & R, granted the motion and dismissed Plaintiffs' complaint against both defendants(2) concluding that it failed to state a claim upon which relief may be granted. In reaching that conclusion, the district court specifically rejected the argument made by Appellant in his objection to the R & R, that the naming of several individuals in the body of the complaint was sufficient to satisfy Rule 20 of the Federal Rules of Civil Procedure. Upon de novo review of Plaintiffs' complaint and appellate brief, the R & R dated January 25, 2000, the district court's Order dated March 29, 2000, and the entire record on appeal, this court affirms the district court's dismissal of Plaintiffs' complaint for substantially those reasons set forth in the R & R and the district court's Order.
1.Nine individuals, including the Appellant, signed the complaint in this action. The notice of appeal, however, was signed only by the Appellant although it appears the Appellant attempted to sign the notice of appeal on behalf of all the Plaintiffs. The "notice of appeal must be signed by the appellant's counsel or, if the appellant is proceeding pro se, by the appellant." 10th Cir. R. 3.1. Because the Appellant may not act on behalf of the other pro se Plaintiffs, the Appellant is the only proper appellant before this court.
2.The claims against the Oklahoma Pardon and Parole Board were dismissed pursuant to 28 U.S.C. § 1915A.


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Herbert Voss v. Danard Warthan Brown, Legend Securities, Inc. et al.
After trial the Panel awarded $375,000 (100 percent compensatory damages) plus punitive damages of $700,000 against the broker-dealer and the broker. In addition, the Panel awarded $25,000 against Frank Fusco individually as his role as Chief Compliance Officer. Claimant was 80 years old and victim of excessive trading. The claims centered on churning and lack of supervision.
Stella Patterson and Jack Patterson v. Ladenburg Thalmann & Co. Inc.
This was a very significant case particularly given the fact that the conduct at issue — short-term trading in Closed-End Funds and Selling Away/Conversion — occurred during the period 2002 and ended when the Pattersons left as clients of Ladenburg in September 2005. The Statement of Claim was filed 11 years later in 2016. A trial was able to establish that the Claimants could not have reasonably known of the improper conduct until years after they left Ladenburg, and that the Statute of Limitations should be tolled. Although Ladenburg argued that the case should be dismissed based upon statute of limitations and that Claimants suffered no damages (through receipt of "interest"), the Panel awarded our clients in excess of $350,000.
Historic award in excess $18,500,000. This award, by many multiples, is the highest award ever in any of the more than 1,800 cases filed against UBS in connection with the sale of UBS proprietary closed-end funds ("CEFs"). Despite UBS' assertion that claimant had net gains of over $5,000,000 over the lifetime of his relationship with UBS, after 50 hearing sessions (the longest trial to date against UBS in PR), the panel awarded 100 percent net out-of-pocket losses (as alleged by claimant during the relevant time period) of $12,716,722; 9 percent New York state compensatory interest of $2,517,911; $163,000 in expert witness fees, $600 in reimbursable portion of the filing fee; and $3,179,180.50 in attorneys' fees. In addition, the panel accessed all hearing session fees of $64,500 against UBS.
Represented Polish resident, citizen and official for the United Nations in an affinity fraud case that targeted prominent Polish citizens as part of an international Ponzi scheme. Adversary claim prosecuted in U.S. Bankruptcy Court resulted in additional payout of $144,615.50 to client (in addition to SIPC settlement of $500,000 and confidential settlement with Penson Worldwide Inc. in U.S. Bankruptcy Court, District of Delaware, Ch. 11 13-10061, as clearing firm).
FINRA Regulatory Enforcement Proceeding (AWC No. 2015046355401) against Oppenheimer & Co. Inc.
FINRA regulatory action regarding Oppenheimer's submarining material evidence in three FINRA arbitration cases filed and prosecuted on behalf of our clients. These arbitration cases resulted in payments to my clients totaling in excess of $3,580,000. As a result of Oppenheimer's concealment of evidence in these arbitration claims, FINRA ordered that Oppenheimer pay an additional $336,081 to my clients.
Case involved purchases and sales of UBS Puerto Rico closed-end funds ("CEFs") to claimant. Claimant, who was a home health care aid with a high school education, won the mega-million lottery jackpot and thereafter entrusted the bulk of her funds of approximately $20,000,000 with UBS Puerto Rico. Case involved recommended purchase of $16,000,000 in Employment Retirement System Bonds (underwritten by UBS) using allegedly unsuitable leverage through reverse repo transactions, and allegedly illicit transactions recommended by UBS to purchase over $10,000,000 of UBS proprietary CEFs through the proceeds of UBS Non-Purpose Bank loans. After two full weeks of trial in San Juan, Puerto Rico, the case settled in February 2016. The settlement was the second highest settlement to date in the more than 1,800 UBS CEF cases filed. The terms of the settlement are confidential (UBS settlement amounts are publicly available in the FINRA Broker-Check Data Base).
Case involved the purchases and sales of UBS Puerto Rico closed-end funds to claimant. Prior to Mr. Dennin being retained as trial counsel, there was no offer to settle. UBS calculated that the claimants' account had a $350,000 profit. Although overall the UBS account was profitable, after 11 hearing days and 21 hearing sessions of cross-examination of the UBS broker and UBS supervisors regarding the alleged unsuitable purchases of CEFs in Claimants' account, in July 2015, UBS settled this case for $650,000 (as publicly reported in FINRA Broker-Check Data Base).
Case involves two proposed initial public offerings of $20,000,000 each and alleged distribution of unregistered securities. Approved by AIG (insurer providing directors and officers liability coverage) to represent the former Chief Financial Officer in the SEC investigation and SEC did not pursue claims against the client.
John S. Patterson and Stella C. Patterson v. Ladenburg Thalmann & Co. Inc.
After submissions of legal memoranda and oral argument, court denies Ladenburg's motion to stay and compel arbitration and agrees with plaintiffs that Ladenburg's incomplete and ambiguous contract did not require arbitration. Ladenburg's appeal pending Docket No. A-002448-14T2.
After submissions of legal memoranda and oral argument, court denies Ladenburg's motion to dismiss claims dating back to June 2004 based upon the statute of limitations. Court agreed with plaintiffs' argument that under the New Jersey discovery rule, fraudulent concealment and equitable estoppel, Ladenburg's motion must fail.
Represented Polish resident, citizen and official for the United Nations in a significant affinity fraud case that targeted influential Polish citizens in an alleged international Ponzi scheme. Filed various bankruptcy adversary proceedings in the United States Bankruptcy Courts in the Eastern and Southern Districts of New York, FINRA arbitration against clearing firm, claim in United States Bankruptcy Court in the District of Delaware and SIPC claim under conversion. SIPC settled for $500,000, the maximum amount of coverage permissible by statute.
Weiss v. David A. Noyes & Co.
Case involved the sale of a Variable Life Policy and alleged unsuitable investments in closed-end funds.
Noyes settled for $270,000 (as publically reported in FINRA Broker-Check Data Base).
John S. Patterson and Stella C. Patterson v. Oppenheimer & Co. Inc.
Case involved selling away and conversion of approximately $1,000,000 by Oppenheimer's former Executive Director of Investments, Mark C. Hotton. Prior to the commencement of arbitration the hearings, Hotton filed for protection under the bankruptcy laws and as a result the case proceeded solely against Oppenheimer on lack of supervision claims. Case was significant in that none of the approximate $1,000,000 converted was deposited in any Oppenheimer account, and thus Oppenheimer's defense was that it reasonably supervised Hotton and had no reason to suspect that he did anything wrong. Oppenheimer settled for $825,000 (as publicly reported in FINRA Broker-Check Data Base).
Dennis Spina v. Ladenburg Thalmann & Co. Inc.
Client became gravely ill. Court granted filed expedited de bene esse motion for deposition to conduct videotaped deposition at client's home to preserve testimony and victim statement. The videotaped victim statement, taken literally at client's deathbed, provided relief to the client and was one of several compelling client statements made at the criminal sentencing of Mark C. Hotton in United States District Court in Eastern District of New York in June 2015.
Dennis Spina v. Oppenheimer & Co. Inc.
Case involved selling away and conversion by Oppenheimer's former Executive Director of Investments, Mark C. Hotton. Prior to the commencement of arbitration the hearings, Hotton filed for protection under the bankruptcy laws and as a result the case proceeded solely against Oppenheimer on lack of supervision claims. Oppenheimer's defense was that it reasonably supervised Hotton and had no reason to suspect that he did anything wrong. Oppenheimer settled for $210,000 (as publicly reported in FINRA Broker-Check Data Base).
Louis Pitch and Donna Pitch v . Oppenheimer & Oppenheimer & Co. Inc.
Amount Awarded: In $2,553,271, including $100,000 in punitive damages due to the "egregious conduct of Oppenheimer" plus interest. Case involved selling away and conversion of approximately $4,950,000 by Oppenheimer's former Executive Director of Investments, Mark C. Hotton. The day before arbitration hearings commenced, Hotton filed for protection under the bankruptcy laws and as a result the case proceeded solely against Oppenheimer on lack of supervision claims. Case was significant in that none of the $4,950,000 converted was deposited in any Oppenheimer account and thus Oppenheimer's defense was that it reasonably supervised Hotton and had no reason to suspect that he did anything wrong.
Case involved alleged forgeries, unauthorized wire transfers and thefts by Mark C. Hotton as Supervising Branch Manager of American Capital Partners, LLC.
American Capital settled for $75,000 (as publicly reported in FINRA Broker-Check Data Base).
Denefrio v. Investors Capital Corporation et al.
Case involved the alleged unsuitable recommendation and sale of variable annuities. In the middle of the hearing, after cross-examining the broker, the case settled.
Investors Capital settled for $225,000 (as publicly reported in FINRA Broker-Check Data Base).
Federal litigation in the U.S. District for the District of New Mexico: Nationwide broker-dealer sought to vacate an arbitration award obtained on behalf of our clients after trial. Federal court denied the motion in full and awarded our clients damages of $151,715; 8 percent interest on damages from April 20, 2011 thru complete payment of the Judgment; attorneys' fees in the amount of $144,141.75 and costs of $27,564.82.
D. Vollstedt and S. Vollstedt TTEE, Steven and Deborah Vollstedt v. Charles Schwab & Co. Inc.
Arbitration involved misrepresentations of risks and omission of material facts concerning the asset backed and derivative securities maintained in the largest Ultra Short-Term Bond Fund in the United States. After trial, the panel awarded our clients $437,031.57 plus interest, which was over 12 times the out-of-pocket loss of $36,143 as computed by Schwab.
Louis Pitch and Donna Pitch v . Mark C. Hotton et. al.
Ex-Party TRO filed obtaining Freeze Order and Expedited Discovery. Through this contested litigation, Mr. Dennin was able to subpoena numerous banks to follow the money and uncovered a multimillion-dollar Ponzi scheme by Mark C. Hotton, as a broker for Ladenburg Thalmann and subsequently Executive Director of Investments at Oppenheimer & Co. Inc. The evidence gathered in this federal proceeding was shared with FINRA Enforcement attorneys and supervisors in Rockville, Maryland, and federal prosecutors in New York and formed the basis for Hotton ultimately being barred from the securities industry and pleading guilty to federal charges brought by the United States Attorney's Office in the Eastern District of New York.
Amount Awarded: $621,562, including $240,000 in punitive damages against Merrill Lynch and Phua Young (Merrill Lynch securities analyst) and $125,000 in interest plus expert witness fees. Case involved conflicts of interest between Merrill Lynch securities analysts and investment banking relating to losses suffered in clients' accounts in Tyco common stock. Although the accounts were overall profitable, after hearing arbitrators awarded 99 percent of damages sought relating to decline in Tyco common stock.
David and Jonathan Libman v. David Garfinkel, First Montauk Securities Corp. et.al.
Amount Awarded: $284,000 plus interest.
Case involved allegations of unauthorized trading, churning and fraud.
Naomi Sayegh v. J. Peter Ricketts, Ameritrade Inc., Ameritrade Holding, Corp., and Accutrade Inc.
NASD Arbitration: Case involved issues relating to conflict of laws, jurisdiction, application of Canadian registration requirements and applicability of Quebec law to Accutrade, a U.S. based broker-dealer and suitability and supervision issues regarding a self-directed online trading account. Amount requested in statement of claim was $156,000.
Amount Awarded: $393,541.76 in compensatory damages and $800,000 in punitive damages. Federal interpleader action brought by life insurance company regarding the proceeds of an annuity and cross claims prosecuted on behalf of client against co-defendants alleging conversion, forgery, RICO, breach of fiduciary duty, breach of agency, negligence and punitive damages in connection with the purchase and sale of various annuities.
Carmine and Mary Ricca v. Adam Sanders, Salvatore Tacher, Kessington Wells Inc. et.al.
NASD Arbitration: amount requested $75,000.
Case involved allegations of market manipulation, unsuitable recommendations, material misstatements and omissions and fraud.
Robert and Fran Lax v. Kensington Wells Inc., Joel Grant et. al.
Amount Awarded: $113,565 plus specific finding of fraud.
Case involved allegations of market manipulation, unsuitable recommendations, material misstatements, and omissions and fraud.
Louis and Dorothy Dequine et. al. v. Daniel Porush, Eric Blumen and Stratton Oakmont Inc.
Amount Awarded: $242,000 compensatory, $500,000 in punitive damages, attorneys' fees and costs total award in excess of $742,000.
Case involved allegations of market manipulation, unauthorized trading, material misstatements, and omissions and fraud.
Amount Awarded: $69,730 significant because the firm first interregional went out of business and claimant Sam Gottlieb passed away before the hearing.
Carol Hovanec, Dr. Marshal Pitts, et.al. v. Allan Viscardi, World Invest Corporation et. al.
Case involved allegations of unsuitable recommendations through an investment adviser associated with clients' accounting firm.
George Pentz, Arlemont Ranch et.al. v. Jordan Belfort, Daniel Porush, Stratton Oakmont Inc. et. al.
NASD Arbitration: Amount Requested: $713,000.
Amount Awarded: $713,000 plus interest and costs.
Peter and Jeanne Celiberti v. Daniel Porush, James Kelly and Stratton Oakmont Inc.
NASD Arbitration: Amount Requested: $223,000.
Amount Awarded: $215,000 plus costs.
Stonewall Farms, Ltd., and Robert Barsk v. Jordan Belfort, Daniel Porush and Stratton Oakmont Inc. et.al.
NASD Arbitration: Amount Requested: $170,000.
Amount Awarded: $122,000 in compensatory damages, $25,000 in attorney's fees plus costs. Total award in excess of $147,000.
Case involved allegations of corporate management undervaluing the securities held by public in connection with a merger.
Richard Shandelman v. Jordan Belfort, Daniel Porush, Ken Greene and Stratton Oakmont Inc. et.al.
Amount Awarded: $93,000 plus interest.
Case involved allegations of breach of fiduciary duty by board of directors and corporate mismanagement.
To find out more about the results that the New York law firm of Timothy J. Dennin, P.C., provides its clients, contact us by calling 866-437-9475.

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Appeal from the Municipal Court for the District of Columbia, Civil Division.
Alfred M. Schwartz, of Washington, D.C. (Samuel A. Friedman, of Washington, D.C., on the brief), for appellants.
H. Max Ammerman, of Washington, D.C., for appellees.
Appeal from an order granting plaintiffs leave to dismiss their action without prejudice and refusing to assess counsel fees as a condition of such dismissal.
In the trial court the six year old plaintiff had sued through her father, and the father had sued individually, claiming a total of $3,000 for damages resulting from the infant having been struck by a taxicab of defendants. The complaint recited that the infant had received a severe concussion of the brain, multiple abrasions, contusions and cuts and that her hearing was impaired. At the pre-trial it was stipulated that the defense was to be furnished with medical reports if available prior to trial, and that defense was to have the privilege of examination after being furnished with such reports. It was also stipulated that if plaintiffs did not have such reports available, defendants were to be advised thereof prior to the trial.
Some six weeks later when the case was called for jury trial (on a Tuesday) defendants announced ready for trial. But counsel for plaintiffs informed the court that he had just received information on the preceding Saturday that the child had sustained a fractured skull in the accident and that he wished to submit to a voluntary dismissal without prejudice, in order to sue for a larger amount in the United States District Court. Defendants' counsel objected to such dismissal without prejudice and insisted that if the dismissal was authorized, the court should require as a condition thereof that plaintiffs pay all accrued costs, including mileage allowances for a witness he had brought from Garden City, New York, and including also a counsel fee of $150. After the matter had been thoroughly argued the trial judge authorized the dismissal without prejudice on condition that plaintiff pay court costs as taxed by the clerk, including witness fees and a mileage allowance of $24.66. The judge refused to assess counsel fees against plaintiffs as a condition of such dismissal. It is such refusal which defendants here assign as error.
For many years, under the practice in the Municipal Court, as in the United States District Court, it was the absolute right of every plaintiff to submit to a voluntary nonsuit (in this jurisdiction, the equivalent of a dismissal without prejudice) at any stage of the case before decision was made or announced. The plaintiff thereupon became liable only for taxable costs and retained the right to sue again in the same or a different court. This right of nonsuit was very freely exercised; undoubtedly it was often abused to the prejudice of defendants and to the detriment of the orderly administration of justice.
That practice was altered and the right of nonsuit withdrawn by Rule 37 of the new rules of the Municipal Court, effective October 2, 1944, adopted pursuant to Code, Section 11-756. By that section, Congress authorized the Municipal Court to formulate rules of practice to conform to the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The rule just mentioned is in its applicable terms identical with Rule 41 of the Federal Rules and provides that after the service of the answer "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper."
The first question is whether under that rule it was mandatory upon the trial judge to assess counsel fees as a condition of the dismissal without prejudice. This we answer in the negative, for we do not think the rule is reasonably open to such an interpretation. If attorney's fees were automatically taxable in every case a plaintiff wished to dismiss, hardships would almost certainly result and reasonable access to the courts be interfered with. Thus abuses might result, similar to those the rule set out to remedy. We therefore hold that defendants could not insist upon counsel fees as a matter of right and that the claim for such fees was addressed to the sound discretion of the judge.
The next question is whether such discretion was abused in this case. This, too, we answer in the negative. According to the statement of plaintiffs' counsel the child had been treated by a Naval physician who had since left the service and whom he could not locate until a few days before the trial. He further stated that he did not learn that a skull fracture might be involved until a very few days before the trial and that he promptly disclosed such information to defense counsel and told him that if such were the fact he would ask for a dismissal. The statement made by defense counsel differed from the above in some respects. But it seems to have been agreed that it was not until the afternoon before the trial that the defense attorney was definitely notified that plaintiffs would ask for a dismissal. Under these circumstances the trial judge was justified in concluding that there had been no neglect by plaintiffs' attorney or that the neglect, if any, was excusable. He was also justified in limiting defendants' allowance to court costs, witness fees and mileage expenses and refusing to impose an assessment of counsel fees. The defense was undoubtedly inconvenienced by the dismissal and by the prospect of having to face and prepare for a new suit in the District Court; but we cannot say that this entitled them to counsel fees. Undoubtedly there are cases in which defendants may be greatly injured and prejudiced by attempts of plaintiffs to obtain last minute dismissals without prejudice, and where special circumstances would seem to require the assessment of counsel fees to prevent injustice. But this is not such a case. Here, all things considered, such an assessment would have amounted to a rather harsh imposition of terms upon the plaintiffs.
See McCann v. Bentley Stores Corp., D.C.W.D.Mo., 34 F. Supp. 234; Welter v. E. I. Du Pont De Nemours Co., Case 3, D.C.Minn., 1 F.R.D. 551; Mott v. Connecticut General Life Ins. Co., D.C.Iowa, 2 F.R.D. 523; Hannah v. Lowden, D.C.Okla., 3 F.R.D. 52.
See Lawson v. Moore, D.C.W.D.Va., 29 F. Supp. 175; Huskey v. United States, D.C.E.D.Tenn., 29 F. Supp. 283; Roth v. Great Atlantic Pacific Tea Co., D.C.Ohio, 2 F.R.D. 182.

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A wide spectrum of thoughtful Bible students could benefit from The CEB Study Bible. This text provides the reader with ample study notes, cross-references, maps, introductory essays to each biblical book, and a concordance. For those not familiar with the Common English Bible translation, the CEB was produced in 2011 utilizing the effort of over 120 translators from twenty-two faith traditions. One of the primary goals of this translation was achieving a balance between accurate renditions of the ancient original texts and clear expression to the target audience. The result is a readable version utilizing contemporary English. The translators also sought to “use gender-inclusive or neutral syntax for translating pronouns that refer to humans, unless context requires otherwise” (xxi). This translation was crafted in the church community for the church community.
When one surveys the team of contributors to this study Bible, it is apparent these scholars are from diverse faith communities representing a wide range of Christian theological tendencies. With this understanding, no one branch of Christianity or denominational belief dominates the text. Of the sixty-three contributing authors, nineteen are female (30%). Since the purpose of the CEB is to provide an everyday English translation, it is no surprise to see that the overwhelming majority of scholars who worked on The CEB Study Bible are from the United States.
Individuals familiar with study Bibles will be pleased to see some of the additional features The CEB Study Bible offers. Each book of the Bible begins with an introductory two-page essay together with a related full color picture followed by a basic outline of the book. The format includes a single column page layout for the biblical text coupled with scriptural cross-references along the outer margins. The bottom half of each page has a two column layout with copious study notes highlighting individual verses and sections. These notes read like a condensed form of leading biblical commentaries (Interpretation, Expositor’s, etc.) that provide historical background and context rather than trying to persuade the reader to take certain theological positions. Each book also includes numerous brief topical essays which provide rich insights into the relevant history and themes addressed.
One positive feature of The CEB Study Bible is its use of color: the text is black, the headings are maroon, the chapter numbers are goldenrod, the numerical cross-references are blue, and the essays have a light green background. These colors blend well to present a clean and aesthetically pleasing format while helping the reader quickly identify sections without being overwhelmed. The final section contains additional articles, a concordance, and twenty-one full-color maps. The concordance, while not exhaustive, contains eighty-two pages of entries, much more than would be expected of a study Bible. The high quality maps were created by the National Geographic Society. The supplemental articles in the back of the Bible approach various contemporary theological concerns and would benefit from a brief introduction. The articles discuss the authority of scripture, the Bible’s unity, how we got the Bible, the Bible and its chronology, and guidelines for reading the Bible. Each of the articles (five to six pages in length) guides the reader through common questions such as: Why is the OT relevant? Did the NT authors think they were writing scriptures? What is the proper use of the Bible? How should we approach scripture? The articles also touch on how the Bible has been used as a repressive tool in slavery, racism, and the abuse of women. Overall, they do an excellent job providing a quick overview of each topic and are helpful in theologically framing and understanding scripture as a whole.
Christians who hold an egalitarian viewpoint will be encouraged when studying some of the materials related to gender equality in The CEB Study Bible. Immediately following the second and third chapters of Genesis, the study Bible provides an essay on “Gender in Genesis.” This essay highlights how both male and female are created in God’s image. It also addresses the term “helper” and how this word is not to be understood as a pejorative, for God is also called a helper in the Bible. It concludes by discussing how, even without institutional authority, the women in Genesis often prove powerful and influential in God’s unfolding story. Paul’s teaching in 1 Cor 14 is also accompanied by an article highlighting the historical setting and cultural context of the day. It points readers to 1 Cor 11:5 which speaks about women prophesying and praying in worship services. The CEB also corrects an editorial injustice often found in Eph 5. Some Bible translations have separated v. 21 from v. 22 by inserting a paragraph break or a new heading such as “Wives and Husbands.” When translators do this they encourage the use of proof texting and dissuade readers from viewing the entire context of Paul’s instructions. The main idea in v. 21 is a command for everyone to submit to each other; v. 22 gives a specific application within Christian households. The CEB has neither paragraph break nor subheading between v. 21 and v. 22: “21 and submit to each other out of respect for Christ. For example, wives should submit to their husbands as if to the Lord.” Another significant text to explore is 1 Tim 2. This section also has a corresponding essay which frames the passage within a domestic context rather than a church context. The CEB uses “wife” rather than “woman” in vv. 11, 12, 14, and 15 (with “woman” as a footnoted alternative). As a result, v. 12 reads, “I don’t allow a wife to teach or to control her husband.” In summary, the CEB translators and Study Bible contributors did an admirable job with some often misunderstood passages.
Overall, the CEB translation offers a readable text. The contemporary language makes for a smooth cadence in corporate worship. Outdated and difficult to understand terms have been substituted with more modern everyday language. Rather than utilize a term such as “devoted things” from Josh 7, for example, the CEB simply refers to them as “items reserved for God.” Examples like this demonstrate how this translation can be faithful, accurate, and suited for contemporary readers. However, there are a few instances when the contemporary language may possibly skew understanding (e.g., “supervisor” instead of “overseer” or “bishop” in Phil 1:1). One sticking point for formal writers and some academics will be the CEB’s use of contractions within the text. In seeking to allow the Bible to speak in a modern language the translators have chosen to use contractions. Nevertheless, this element should not detract serious students of the Word from using the CEB. This translation is appropriate for personal devotion, group Bible studies, and corporate worship. The CEB Study Bible can help engage readers in the world of the biblical writers while remaining faithful to God’s intentions for God’s Word. Clergy and laity alike will benefit from the wide-ranging notes which can aid in developing sermons and lessons for small-group Bible studies. Among a crowded field of study Bibles, The CEB Study Bible readily distinguishes itself. I would highly recommend this Bible to Christians seeking to be molded by God into the people that God has called us to be.


The United States Supreme Court, an exalted forum far above the Tax Court whence I customarily draw my blogposts, has affirmed Fourth Circuit, holding that overstating basis to minimize gain, even to the extent of gain greater than 25 percent of the amount of gross income stated in the return, does not invoke the six year statute of limitations. The standard three-year obtains, notwithstanding the understatement.
In short, don’t lower the bridge, raise the river.
The case is United States v. Home Concrete & Supply, LLC, No. 11-139, decided 4/25/12.
Harking back to The Colony, Inc. v. United States, 357 U.S. 28 (1958), Justice Breyer refuses to buy IRS’ argument that Reg. §301.6501(e)–1, which was promulgated in final form in December 2010, overturns Colony pursuant to Chevron and Mayo Clinic (see my blogpost “Carpenter, Colony, Chevron and Mayo”, posted 4/26/11).
Of course, this is a 5 to 4, with Justice Kennedy leading the dissenters. So there may be further developments.
Even though IRS agreed that Catherine Marie Nunez was an innocent spouse, Judge Haines didn’t, and thereby hangs the tale of Catherine Marie Nunez, f.k.a. Catherine Marie Uriarte, Petitioner, and Robert F. Uriarte, Intervenor, 2012 T.C. Mem. 121, filed 4/25/12.
Catherine Marie and spouse Fighting Bob ran a copying service. Fighting Bob did the client contact, sales and service. Catherine Marie “took care of the administrative side of the business. She entered data into Quickbooks, organized and filed receipts and invoices, answered phones, wrote up service calls, and paid bills.” 2012 T.C. Mem. 121, at pp. 2-3. Catherine Marie was a signatory on the business bank account, wrote and signed checks (including to herself and her daughter from a previous relationship), and was listed as co-owner on permits, certificates and State returns.
Though they filed income tax returns for the years at issue, they never did get around to paying the taxes. Ultimately they both filed bankruptcy, but they never completed their payment plan and their proceeding got tossed. Sounds like another busted Chapter 13, one of the many that litter the bankruptcy trail.
But the fallout of the bankruptcy was the fallout of the marriage, and Catherine Marie and Fighting Bob divorced. Bob filed bankruptcy again, but Catherine Marie didn’t. When IRS got around to pursuing the pair, Catherine Marie claimed she was innocent, and the only reason her name was all over the copying business was their State’s community property laws.
IRS first said no, but Catherine Marie appealed and won. However, Fighting Bob never got the Appeals decision. So Fighting Bob gets to argue that Catherine Marie should remain aboard. Appeals agreed in part, applied the community property rationale, and gave Catherine a 50% bye. Catherine petitions, arguing inequitable to hold her in as she believed Fighting Bob would pay, and IRS concedes she should get 100% relief.
Fighting Bob says “no way, Harry A.”, meaning Judge Harry A. Haines, who sides with Fighting Bob and socks it to Catherine Marie 100%.
IRS has discretion in inequitables like this, and argues abuse of discretion is the test for review. No, says Judge Haines, it’s de novo because Fighting Bob never got his turn at bat, and Catherine Marie flunks under Rev. Proc. 2003-61, the old rule (see my blogpost “Innocence is Bliss”, 1/6/12). In any case, it probably it wouldn’t matter even with the new rule announced in Notice 2012-8, as abuse wasn’t raised seriously.
Catherine Marie claims she’s in this mess solely because of community property law. Otherwise, it would all be Fighting Bob’s problem. But Judge Haines dismisses that argument: “Petitioner and respondent argue that Alpha was intervenor’s business and that any item of Alpha’s income or expense attributable to her is solely due to the operation of California’s community property law. We disagree. The record is filled with evidence that petitioner coowned Alpha [the copycat business] during the years at issue and was heavily involved in its operations. Petitioner took care of the administrative side of the business. She entered data into Quickbooks, organized and filed receipts and invoices, answered phones, wrote up service calls, paid the company’s bills, and coordinated and provided the accountant with all the tax preparation information. Petitioner also drafted budgets, attempting to have her say in how the business was run.
“Additionally, State filings and business records show that petitioner was an owner of Alpha during the years at issue. Petitioner was listed as an owner of Alpha on its business license and on California payroll tax deposit coupons. Petitioner was also listed on Alpha’s fictitious business name statement, which states that the business is conducted by husband and wife. Further, the marital settlement agreement divided community property between petitioner and intervenor. As part of the division petitioner assigned to intervenor as his sole and separate property all of her rights, title, and interest in Alpha.” 2012 T.C. Mem. 121, at pp. 10-11.
Catherine Marie was in deep enough to forfeit her innocence, IRS discretion to the contrary notwithstanding. Her interest was not imputed solely by community property law nor was her ownership nominal. As for abuse, though Catherine Marie brought in some evidence that Fighting Bob did abuse her, she worked with their accountant to prepare the tax returns for the years at issue, so she was hardly terrorized into acquiescing.
Note that Fighting Bob was pro se. Not bad work for a copycat, this marshalling the arguments and selling them to Judge Haines. Many a lawyer could do worse.
The only cases other than run-of-the mill indocumentados today, April 23, were (1) a Section 1031 like-kind exchange (Patrick A. Reesink and Jill Mitchel Reesink, 2012 T.C. Mem. 118, filed 4/23/12) where the taxpayer’s witnesses were able to establish investment intent in the replacement property based on timing between purchase of replacement property and sale of principal residence, coupled with attempted rental activity of the replacement property before taxpayer took occupancy; strictly fact-driven; and (2) litigation delay never being a ground for abatement of interest under Section 6404 (Michael Coleman, 2012 T.C. Mem. 116, filed 4/23/12), even when the tax matters partner in this phony shelter was under criminal investigation and ultimately went to jail. As I’ve said before, partners beware; the tax matters partner holds your tax life in his hands.
Nothing really novel here, so I move to the announcement that Daniel A. “Yuda” Guy has been elevated from Tax Court General Counsel to Special Trial Judge. A graduate of McDaniel College and the University of Baltimore Law School, STJ Guy has been on the Tax Court team for more than twenty years. We look forward to many interesting opinions from STJ Guy.
Judge Kroupa blazes a trail through the tangle of Section 181 election to expense filmmaking costs in Lee Storey and William Storey, 2012 T.C. Mem. 115, filed 4/19/12. The decision is so fact-driven, with facts unlikely to be encountered by the average preparer-in-the-trenches that I won’t be going into much detail here. My interest stems from the buzz the case has gotten in the independent film production world as it wended its way to Tax Court.
A lot of the indie producers filed briefs amici, a thing rarely allowed in Tax Court. More usually, the amici are told to craft a joint brief with the taxpayer to raise whatever arguments they may have. See my blogpost “A Joy Forever”, posted 4/4/11.
Briefly, Lee worked her way up from a Detroit assembly line to a specialization in Indian water rights law, while directing community theater and sculpting bronze on the way. Her husband William was a member of the 1960s group Up With People, a counter to the counter-culture. When Lee found out about Will’s musical past, she decided to make a movie, and called it “Smile ‘Til It Hurts”. She did all the right things–took courses, consulted with experts, hired bookkeeping help to keep careful records, got tax counsel and campaigned her documentary at all the right festivals.
IRS called it a hobby or a labor of love to celebrate her husband’s youth (although he got a big 4 minutes out of the 79 in the final cut), and disallows Lee’s deductions.
Judge Kroupa blows off the hobby and labor of love arguments with a lengthy recounting of the facts and applying the Section 183 laundry list to show Lee’s serious moneymaking intention.
Now for the Section 181 election. The statute grew out of the runaway film producers who had to capitalize production expenses if they shot in the USA, but got favorable tax treatment and even subsidies if they shot overseas. To bring them back, Congress allowed them to expense production costs in the 2004 American Jobs Creation Act.
The point is substantial compliance. Lee’s paperwork meets the test of conforming to the statutory requirements, albeit without every last detail required by the regulations. “Close enough” can apply to a Section 181 election as well as to horseshoes and hand grenades.
So Lee can smile, and feel good about it.
Takeaway- Sometimes close enough is good enough.
The inventive James E. Rogers tries a longshot Rule 161 reargument and a Rule 162 vacatur to avoid the fallout from his cratered distressed asset/debt (DAD) non-partnership deals (see Superior Trading, LLC, Jetstream Business Limited, Tax Matters Partner, et al., 137 T.C. 6, filed 9/1/11 (Superior Trading I), and my blogposts “More Shell Games”, posted 9/2/11, and “Mr Rogers’ Neighborhood – The Adventure Continues”, posted 11/12/11”). The latest chapter in the story is Superior Trading LLC, Jetstream Business LLC Tax Matters Partner, 2012 T.C. Mem. 110, filed 4/17/12.
Judge Wherry disdainfully brushes off Mr. Rogers: “The motions before us to reconsider and vacate are a curious admixture of a regurgitation of unfounded assertions and half-baked theories soundly rejected in Superior Trading I, a disingenuous criticism of our holdings in that Opinion, and fanciful claims of newly discovered evidence that allegedly undermines our findings of fact supporting those holdings. Consequently, these motions merit no more than a summary denial.” 2012 T.C. Mem. 110, at p.8.
But TEFRA rears its ugly head. So Judge Wherry has to deal with the unfounded, the half-baked, the disingenuous criticisms, and the fanciful claims. Though the blown-up “partnership” is initially the promoter’s problem, the fallout affects the individual returns of the investor-partners.
“Yet we recognize that the dispute at the center of the consolidated cases could morph and present itself in other manifestations. Therefore, to provide additional guidance on our interpretation of the applicable law, we have set forth in some detail our reasons for denying the motions. In so doing, we have no illusions of persuading all moving petitioners. Instead, we write now for the benefit of the “silent waters that run deep”–the dozens of deep-pocketed investors who acquired ownership interests in the various holding companies, which in turn sought to exploit the inflated basis of the Arapua receivables. After all the linen is washed, these investors constitute the fonts whither the promised tax savings from chimeral losses would have drained and whence the required tax payments for determined deficiencies and accuracy-related penalties will flow.
“Under section 6231(a)(2)(B), ‘The term “partner” means * * * any * * * person whose income tax liability under subtitle A is determined in whole or in part by taking into account directly or indirectly partnership items of the partnership.’ As we described in Superior Trading I, the investors in the holding companies were never members in the same limited liability company as Arapua. Regardless, to the extent their income tax liability is affected by the basis of the Arapua receivables, a partnership item in these partnership-level proceedings, these investors are partners for purposes of these proceedings.
“Consequently, pursuant to section 6226(c)(1), each such investor ‘shall be treated as a party to such action’. And though it is already too late for these deemed parties to participate in these proceedings, it might not be too early for them to begin preparing for what is surely coming down the pike–computational adjustments by means of either direct assessment or partner-level deficiency proceedings. See generally Thompson v. Commissioner, 137 T.C. 220 (2011).” 2012 T. C. Mem. 110, at pp. 8-9.
Judge Wherry is here referring to the famous Thompson case, which features Judge Holmes’ famous dissent. See my blogpost “The Great Dissenter”, 12/28/11.
So for 39 pages, Judge Wherry slogs through Mr. Rogers’ smokescreen, with footnotes long enough to pass for decisions themselves. And having yet again deconstructed Mr Rogers’ cardboard neighborhood (the details of which I leave to law review writers and the terminally insomniac), Judge Wherry turns to the great defect in TEFRA.
“We are mindful of the fact that the ultimate burden of what we say and do here will be borne by those not before us–the individual investors in the various holding companies. That, however, is a necessary consequence of the essential design of TEFRA. TEFRA, quite perversely, hands the keys to the (sand) castle to those with everything to gain and nothing to lose. Nonetheless, our duty is to apply the law as written by Congress and reasonably interpreted by the Secretary. But even as we fulfill that obligation, we caution all unsuspecting taxpayers who have already been, or may in the future be, tempted to invest in such ‘too-good-to-be-true’ sheltering transactions, or to tie up this Court in TEFRA’s procedural knots. The wheels of TEFRA may grind slowly, but grind they will, and the grist they mill could have been the investors’ half a loaf.” 2012 T.C. Mem. 110, at p. 48-49.
Remember Beverly Bernice Bang, 2011 T.C. Sum. Op. 1, filed 1/4/11, and my blogpost “Bang – A Warning to Tax Matters Partners (and their advisors)”, posted 1/5/11.
The investors might give some serious thought to going after the tax matters partner.
Robin S. Trupp was an Olympic equestrian prospect in his youth, but turned to practising law for a living. He never gave up his equestrian ambitions, developing a specialized practice in horse law. His son Austin carried on the dream, competing in equestrian events, at which Dad showed up to cheer on young Austin and incidentally promote his equestrian law practice, as the family cognomen blared from the loudspeakers.
Robin ran up $72K in equestrian-related expenses one year, didn’t file a return, and got a SFR and a SNOD. Robin sought redetermination, and Judge Goeke obliges, in Robin S. Trupp, 2012 T.C. Mem. 108, filed 4/12/12.
Robin loses his cellphone and travel deductions for the usual want-of-substantiation, but gets $2K for storing his files (his cheapskate firm won’t pay for that), and $78 for tax preparation services. Robin, don’t spend it all in one place. Now we come to the horses.
Robin claims that traditional advertising in the horsy set print media gets nothing, so he starts hanging around the horse shows when young Austin is saddled up, expecting the fans to hear the name “Trupp” and come at the gallop. He claims he got 35 clients that way, but produces no retainers and doesn’t show more than $2K in horse-related income for that year. The rest of his hefty paycheck came from non-horse clients or from clients he picked up years before.
Now a taxpayer can combine horses (or any other hobby-type activity) with another real-live business activity, provided the combination is reasonable and not artificial. And getting business by showing up at equestrian events, without media advertising, can be reported as a combined business activity. See Topping v. Com’r., 2007 T.C. Mem. 92.
Tracey L. Topping designed barns. Print advertising did nothing for her, so Tracey entered equestrian events, hired tables at events at which she hobnobbed with potential customers, kept records and made money. And she beat IRS past the Tax Court finish line.
Judge Goeke: “Multiple undertakings of a taxpayer may be treated as one activity if the undertakings are sufficiently interconnected. Sec. 1.183-1(d)(1), Income Tax Regs. The most important factors in making this determination are the degree of organizational and economic interrelationship of the undertakings, the business purpose served by carrying on the undertakings separately or together, and the similarity of the undertakings. Id. The Commissioner generally accepts the taxpayer’s characterization of two or more undertakings as one activity unless the characterization is artificial or unreasonable. Id.
And note the magic word “land” in item 2 on the Regulation laundry list; Robin argued his combined horse and legal experience was a capital asset that might increase in value, like land, but Judge Goeke wasn’t buying. The matrimonial judges around here seem to think a professional practice is a substantial capital asset. For my part, I can only say that mine kept me and mine eating for 45 years–none too shabby, as they say.
But Robin’s horsey takings were a tiny fraction both of his overall income and of the expenses he wanted to deduct in furtherance of his horsing business. He produced no records, didn’t compete himself, and didn’t rent tables at events (Robin said that cost too much), so he didn’t show a sufficient profit motive and thus he can’t combine his law practice with anything equine.
Beside wood-shedding the client, get the papers. And be a little outside-the-box when looking for evidence; remember that “And then what happened?” shouldn’t be relegated to bedtime stories.
Those words might have started a hit single for Otis Redding and Steve Cropper in 1968, but they don’t help Nelson Toshito Uyemura and Wendi Michiko Uyemura, 2012 T.C. Mem. 102, or Patrick T.W. Lum and Libby S. Lum, 2012 T.C. Mem. 103, or even Scott R. Wilson and Christine R. Yano, 2012 T.C. Mem. 101, all three filed 4/10/12, with Judge Cohen aboard for all three, as the facts are virtually identical.
All the taxpayers wanted solar hot water. None of them wanted to pay for the installation of the solar panels and concomitant electrical doodads. So they all went to Mercury Solar, yet another vendor of something-for-nothing. The deal was simple: buy one and get two free. Bring in another customer (known as a “ratepayer”), or let Mercury hook you up with one. Buy both installations on time. The ratepayer pays utility bills to a Mercury-provided entity, which entity pays State and local excise taxes, pays the debt service on both installations to Mercury, and remits any profit to the bringer-in.
The bringers-in claim they’re in the TOB of selling electrical power, take a Section 179 write-off for the installation and a Section 48 business activity energy credit. Mercury warns the bringers-in that they must (a) have some income tax liability and (b) “meaningfully participate” in the electric utility business.
Of course they don’t. Instead, in Otis’ immortal words, they’re just “sittin’ in the mornin’ sun, and they’ll be sittin’ there when evenin’ comes”, watching the deduction and credit roll in.
Except that, while they roll in, the bringers-in “watch ’em roll away again”, as Section 469 passive loss rules wipe out deduction and credit.
Judge Cohen: “In general, a passive activity is a trade or business in which the taxpayer does not materially participate. Sec. 469(c)(1). A taxpayer materially participates in an activity when he or she is involved on a regular, continuous, and substantial basis. Sec. 469(h)(1). Participation generally means all work done in connection with an activity by an individual who owns an interest in the activity. Sec. 1.469-5(f), Income Tax Regs.” 2012 T.C. Mem. 102, at pp. 5-6.
So much for Nelson and Wendi. Also Patrick T. W. (Libby admits she did nothing). Patrick at least sold five other units for Mercury, but never looked at them.
Scott claims he did do something: “Petitioner visited his ratepayer’s residence at least monthly to inspect the solar equipment and consult with the ratepayer about the solar service. During these inspections, petitioner checked the solar roof panels and the inverter, which are components of the photovoltaic system. Petitioner tried to find other ratepayers, but was not successful. He did not refer any sales leads to Mercury Solar.” 2012 T. C. Mem. 101, at p. 5.
Judge Cohen does not let the sun shine in on Scott. “Petitioners have not proven or presented adequate evidence to shift the burden of proof that any of the material participation tests they rely upon are satisfied. Petitioner argues that, as the sole owner of the micro-utility activity, he performed all ‘tasks, functions and services of and for the business, including management’ with the exception of sending invoices to and collecting payments from his ratepayer. However, because individuals with … (Mercury’s recommended biller) collected payments, maintained records regarding the income, and made petitioner’s loan and State excise tax payments and individuals with Mercury Solar installed the equipment at his ratepayer’s home, petitioner’s participation did not constitute substantially all of the participation of any individual in the micro-utility activity.
So the sun goes down on the bringers-in.
It doesn’t matter if you’re below the settlement officer’s number, because if you’re below IRS’ final number when you submit your OIC at your CDP, you’re out. This is the lesson Judge Thornton has for B.M. Vanmali and Bhari Vanmali, 2012 T.C. Mem. 100, filed 4/9/12.
B.M. and Bhari were hit for $600K underpayment deficiency, asked for an OIC with their Form 12153, claiming collectibility, and offered less than fifty cents on the dollar.
The SO said they’d undervalued their takes from their seven Sub S corps, and claimed they had better than $1.3 million. The discrepancy came from the difference between what the tax returns showed as income from the Sub S corps and what B.M. and Bhari claimed they actually got.
The SO told B.M. and Bhari to up the ante, but they did nothing for 60 days, so the SO rejected the OIC, and sent a Notice of Determination. B.M. and Bhari petition.
The issue is abuse of discretion.
Judge Thornton: “…without conceding any error by the settlement officer, respondent [IRS] asserts that even if one were to assume, solely for purposes of his motion, the accuracy of ‘many’ of the items reflected in petitioners’ offer amount, their computation nevertheless contains ‘clear errors’. Respondent asserts that correcting these errors would indicate that, consistent with petitioners’ own assumptions, their offer should have been no less than $349,740, rather than the $295,805 they actually offered. Petitioners do not dispute this conclusion; to the contrary, they state that they will ‘assume Respondent’s changes are correct’. They observe, however, that “the difference between $349,740 and Petitioners’ offer of $295,805 is a lot less than the difference between $1,296,531 [their RCP as determined by the settlement officer] and $295,805.’ They assert that had the settlement officer determined their RCP to be $349,740, they would have been “ready, willing, and able to make a counter-offer in that amount.” Citing Lites v. Commissioner, T.C. Memo. 2005-206, they argue because the settlement officer’s alleged error was so central to his determination, he abused his discretion in rejecting their offer.
But one sentence from the omitted footnote says a lot. “The record indicates that although the settlement officer raised this issue with petitioners and gave them an opportunity to respond, they never did so.” 2012 T.C. Mem. 100, at p.11, footnote 9.
Takeaway: Don’t wait until you get to Tax Court to raise the ante.
To all, litigants, judges, readers, best holiday wishes.
Off to visit new granddaughter in Houston, so I may be a day or two late with postings here.


DOUGLAS ADAVALOS, Warden, FNU Ward, Mrs., FNU MADRID, Sergeant, FNU LNU, Two Unknown Sergeants, Defendants.
This matter is before the Court, sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff Vincent Garduno's Complaint For Violation Of Civil Rights, filed on December 13, 2017 [Doc. 1]. Plaintiff is incarcerated, appears pro se, and is proceeding in forma pauperis. For the reasons explained below, some of Plaintiff's claims will be dismissed without prejudice for failure to state a claim on which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) and Plaintiff will be afforded thirty (30) days in which to file an amended complaint.
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A at any time if the action is frivolous, malicious, or fails to state a claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to frame a complaint that contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id.
Plaintiff is proceeding pro se and “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. At the same time, however, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.
§ 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution ....” (quoting 42 U.S.C. § 1983).
Dodds, 614 F.3d at 1199. To establish supervisor liability, a plaintiff must demonstrate: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Id. (footnote omitted).
Plaintiff's complaint does not allege that Defendants Ward and Madrid directly were involved in the alleged constitutional violations or that they created, promulgated, implemented, or in some other way possessed responsibility for the continued operation of a policy that caused the alleged constitutional violations. The Court therefore concludes that Plaintiff's complaint fails to state a claim on which relief may be granted against Defendants Ward and Madrid under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Plaintiff's complaint also names two unknown sergeants as defendants. “Courts have generally recognized the ability of a plaintiff to use unnamed defendants so long as the plaintiff provides an adequate description of some kind which is sufficient to identify the person involved so process eventually can be served.” Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996). Plaintiff's complaint fails to contain an adequate description of the two unknown defendants for service of process and, therefore, Plaintiff's claims against the unknown defendants will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Lastly, Plaintiff's complaint seeks an injunction requiring Defendants to resign from their employment at the Hidalgo County Detention Facility. [Doc. 1 at 5] This type of relief is improper because the status of Defendants' employment is beyond the authority of the Court. See Lemmons v. Waters, No. 11-CV-0500-CVE-PJC, 2012 WL 113686, at *4 (N.D. Okla. Jan. 13, 2012) (“Plaintiff's request for Defendant Shaw's termination from her employment is beyond the authority of this Court and therefore is not a proper request for relief in this action. Accordingly, that claim for relief shall be denied.”) (unpublished). Therefore, Plaintiff's claim for injunctive relief will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
The deficiencies in Plaintiff's complaint may be rectified through more precise pleading and, therefore, the Court will afford Plaintiff an opportunity to file an amended complaint. Plaintiff's amended complaint must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis in original). This is because “to state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it, how the defendant's actions harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Thus, a “plaintiff's facile, passive-voice showing that his rights ‘were violated' will not suffice. Likewise insufficient is a plaintiff's more active-voice yet undifferentiated contention that ‘defendants' infringed his rights.” Thomas, 718 F.3d 1225-26. “Rather, it is incumbent upon a plaintiff to identify specific actions taken by particular defendants in order to make out a viable § 1983 . . . claim.” Id. at 1226 (internal quotation marks and citations omitted; emphasis in original).
Plaintiff is advised that, if he submits an amended complaint, then the amended complaint will supersede his original complaint. See Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990) (noting that an amended pleading “supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified”) (internal quotation marks and citation omitted). Therefore, Plaintiff's amended complaint must include all of his claims against all of the Defendants. Failure to file a timely amended complaint may result in this case proceeding forward only on Plaintiff's remaining claims against Defendant Adavalos.


text:
[287 U.S. 283, 286] Mr. William Lemke, of Fargo, N.D., for respondent.
The complaint of appellee, plaintiff below, shows the following facts: August 13, 1928, defendant, in consideration of $1,360 to be paid by plaintiff according to his three promissory notes given therefor, sold and delivered to the latter a harvester-combine to be used for the cutting and threshing in a single operation of grain raised by him. Plaintiff undertook by means of the machine so to cut and thresh his crop, but upon a fair trial and test he found that it was defective and could not be used or made fit to operate for the purpose. September 5 he rescinded the sale in the manner prescribed by the statute. His notes remained wholly unpaid. He prayed judgment that defendant return them to him for cancellation. The answer, asserting that the statute is repugnant to the due process and equal protection clauses, does not deny the complaint, but avers that plaintiff gave defendant a written order by which he waived all warranties, express, [287 U.S. 283, 288] implied or statutory, and unconditionally promised to pay the price represented by the notes. Plaintiff demurred. The trial court sustained the demurrer, and, defendant having elected to stand on its answer, gave plaintiff judgment in accordance with the prayer of the complaint. The Supreme Court affirmed. 241 N.W. 722.
The question is whether the challenged enactment of 1919 may prohibit such waivers as contrary to public policy and void, and so limit the right of seller and purchaser to contract. While that right is a part of the liberty protected by the due process clause, it is subject to such restraints as the state in the exertion of its police power reasonably may put upon it. But freedom of contract is the general rule and restraint the exception. The exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances. Adkins v. Children's Hospital, 261 U.S. 525, 545 , 546 S., 43 S.Ct. 394, 24 A.L.R. 1238, and cases cited. In determining the validity of a legislative declaration that a contract is contrary to public policy, regard is to be had to the general rule that competent persons shall have the utmost liberty of contracting, and that it is only where enforcement conflicts with dominant public interests that one who has had the benefit of performance by the other party to a contract will be permitted to avoid his own promise. Cf. Steele v. Drummond, 275 U.S. 199, 205 , 48 S.Ct. 53; Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 , 51 S.Ct. 476. [287 U.S. 283, 289] The object sought to be attained by the statute under consideration is to protect farmers in an agricultural state against losses from investments in important machines that are not fit for the purposes for which they are purchased and to guard against crop losses likely to result from reliance upon such machines. It applies only to sales made to purchasers requiring for their own use the relatively complicated and costly implements referred to in section 1. These are used on farms producing grain, and the raising of such crops is North Dakota's principal industry. Enormous quantities of farm machinery are required in that state, and expenditures therefor constitute a large part of the total investment in farm land and equipment. Most, if not all, of the tractors, engines, harvesters, and threshers referred to are made outside North Dakota by a few manufacturers who, through their agents or dealers, sell them directly to farmers. Forms of sales contracts generally used are prepared by sellers, and, as pointed out in the opinion of the state Supreme Court, the tendency has been to restrict the rights of purchasers and to lessen the liability of sellers. Such machines can properly be tested only during seasons in which they are used, and, especially in the case of harvester and thresher combines, these periods are short. The machine sold to plaintiff is a gas and oil-burning harvester and thresher combine. Machines designed for such purposes are necessarily complex, and even under favorable conditions their effective use requires skill, experience, and resourcefulness on the part of operators. In determining whether they are reasonably suitable and fit for the purposes intended, there is involved a consideration of the kind and condition of the crops to be harvested, the periods during which they remain recoverable after becoming sufficiently ripe and dry to be contemporaneously cut and threshed, the amount and kind of weeds and other foreign vegetation growing with the grain, the topography of the fields, and the rainfall, [287 U.S. 283, 290] dew, and humidity. Such combines have not been long known or much used in the grain-raising Northwest, and undoubtedly there are ample grounds for a legislative finding that the farmers of North Dakota as a class are not sufficiently familiar with them to be able, without actual test, to form an intelligent opinion as to their fitness to cut and thresh in a single operation or whether they safely may be regarded as dependable for use on their farms. If they were relied on generally in that state and should fail in the fields, the resulting losses would be of such magnitude and public concern as to warrant the adoption of measures calculated to guard against them.
The regulation imposed seems well calculated to effect the purposes sought to be attained. The evils aimed at do not necessarily result from misrepresentation or any fraud on the part of sellers, and at least one of the purposes of the legislation is to lessen losses resulting from purchasers' lack of capacity, without opportunity for inspection and trial, to decide whether the machines are suitable. The statute prevents waiver of the warranty of fitness implied by the state law. Such warranties tend to restrain manufacturers from selling unfit or defective machines and also from selling any-even those of appropriate design and construction for operation in some regions-for use in places or under conditions not permitting effective service. And the right of inspection, test, and rescission that the statute assures to purchasers enables them, free from peril of serious mistakes, deliberately to consider whether such machines are reasonably suitable or fit for the purposes for which they want to use them. There is nothing in this case to suggest that, under the guise of permissible regulation, the state unreasonably deprives sellers of such machines of their right freely to contract or that in its practical operation the statute arbitrarily burdens their business. Burns Baking Co. v. Bryan, 264 U.S. 504 , 44 S.Ct. 412, 32 A.L.R. 661; Weaver v. Palmer Bros. Co., 270 [287 U.S. 283, 291] U.S. 402, 46 S.Ct. 320. The state, in order to ameliorate the evils found incident to waivers of implied warranties of fitness, merely declares that such agreements in respect of the sale of the designated machines are contrary to public policy, and holds the parties to the just and reasonable rule prescribed by section 15(1) of the Sales Act. Upon the question of due process more need not be said.
We find no substantial support for the contention that the statute complained of violates the due process or equal protection clause of the Fourteenth Amendment. Frisbie v. United States, 157 U.S. 160, 165 , 15 S.Ct. 586; Orient Insurance Company v. Daggs, 172 U.S. 557 , 563, et seq., 19 S.Ct. 281; Patterson v. Bark Eudora, 190 U.S. 169, 173 , 23 S.Ct. 821; Whitfield v. AEtna Life Ins. Co., 205 U.S. 489, 495 , 27 S.Ct. 578; Chicago, B. & Quincy R. Co. v. McGuire, 219 U.S. 549 , 564, et seq., 31 S.Ct. 259; National Union Fire Ins. Co. v. Wanberg, 260 U.S. 71 , 43 S.Ct. 32.

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CORIZON HEALTHCARE, et al., Defendants.
Plaintiff Lisa McKinley Tullis (“Tullis”) brings this action pursuant to 42 U.S.C. § 1983, claiming that while she was an inmate of the Tutwiler Correctional Facility (“Tutwiler”) in Wetumpka, Alabama, medical providers were deliberately indifferent to her serious medical needs. Tullis filed an amended complaint that supersedes the claims in her original complaint, as ordered by the court. Doc. Nos. 9, 15, 16, 17, 18. Tullis named three defendants in her amended complaint: Nurse Carter, Nurse Jackson, and an unnamed Pharmacist. Doc. No. 16, at 2. Tullis did not clarify if she was suing defendants in their individual or official capacities. She sought compensation for “pain suffering, mental anguish, emotional stress.” Id. at 4.
The court allowed the case to go forward against Defendants Corizon, Inc., Carter, and Jackson. Doc. No. 18. In accordance with orders of the court, Defendants Corizon (“Corizon”), LLC, Vicky Carter (“Carter”), and Lynda Jackson (“Jackson”) filed an answer, special reports, supplemental special report, and supporting evidentiary material in response to Tullis's allegations. Doc. Nos. 27, 30, 32.
The court informed Tullis that the defendants' special reports would, at some time, be treated as a dispositive motion; the court explained the proper manner in which to respond to a motion for summary judgment; and the court directed Tullis to respond to the defendants' reports. Doc. No. 33. Tullis responded. Doc. No. 34.
This case is now pending before the court on the defendants' motion for summary judgment. Upon consideration of the motion, the plaintiff's response to it, and the evidentiary materials filed in support and in opposition to the motion, the court concludes that the defendants' motion for summary judgment is due to be granted.
The defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Tullis to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [by citing to materials in the record including affidavits, relevant documents or other materials], the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it . . . .”); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (court considers facts pled in a plaintiff's sworn complaint when considering his opposition to summary judgment”). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. The evidence must be admissible at trial, and if the nonmoving party's evidence “is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249- 50 (1986); Fed.R.Civ.P. 56(e). “A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice . . . .” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Only disputes involving material facts are relevant, and what is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. In this case, Tullis fails to demonstrate a requisite genuine dispute of material so as to preclude summary judgment on her claims against the defendants. See Matsushita, 475 U.S. at 587.
Tullis is an inmate of the Alabama Department of Corrections (“ADOC”) at Tutwiler and was incarcerated at Tutwiler during the time alleged in the complaint. Defendant Jackson is a registered nurse licensed in the State of Alabama and employed by Corizon as the Director of Nursing at Tutweiler. Doc. No. 32-1 at 2. Defendant Corizon holds a contract with the ADOC to provide health care to inmates in its facilities. Id. at 2-3. Defendant Carter is a licensed practical nurse in the State of Alabama and employed by Corizon as an LPN at Tutwiler. Doc. No. 32-2, at 1.
David Gams is a medical doctor licensed in the state of Alabama and employed by Corizon at Tutwiler. Doc. No. 30-1, at 2. He is not a defendant in this case, but he submitted an affidavit in support of the defendant's motion for summary judgment. On June 13, 2015, as part of the annual vaccination plan, defendant Carter administered a tuberculosis (“TB”) skin test to Tullis. Id. at 3. Dr. Gams explains that the TB skin test determines whether a person has been exposed to TB. Id. The test consists of putting a small amount of TB protein (antigens) under the top layer of skin on the inner forearm. Id. If the person has been exposed to TB, the skin reacts by developing a firm red bump at the site within two days. Id. The TB antigens used in the test are called “purified protein derivative (PPD).” Id. at 4. The TB test cannot tell how long someone has been infected with TB or if the infection is inactive or transmittable. Id. Some people may react to the TB skin test even if they are not infected with TB. Id. Dr. Gams states, “[i]n general, there is no risk associated with repeated tuberculin skin test placements.” Id.