Tom Sedar, Casper, WY, for Defendant-Appellant.
Matthew H. Mead, United States Attorney, and Lisa E. Leschuck, Assistant United States Attorney, District of Wyoming, Cheyenne, WY, for Plaintiff-Appellee.
Before KELLY, McKAY, and MURPHY, Circuit Judges.
Defendant Stephen Ralph Proffit appeals the sentence imposed by the United States District Court for the District of Wyoming following his guilty plea to a single count of mail fraud in violation of 18 U.S.C. § 1341. Defendant maintains that the district court erred in enhancing his offense level for more than minimal planning, enhancing his offense level based on victim vulnerability, refusing to grant an adjustment for acceptance of responsibility, and increasing his sentence range through an upward departure in Defendant's criminal history from Category IV to Category V.
Allen Cook, owner of a large ranch with an estimated value in excess of twenty-five million dollars near Laramie, Wyoming, was diagnosed with non-Hodgkin's malignant lymphoma in August 1998. He did not know if the cancer was aggressive or non-aggressive. However, if the cancer proved aggressive, Mr. Cook was likely to pass away within a matter of months. In an attempt to prepare his estate, Mr. Cook decided to sell his ranch. In November 1998, he advertised his intent in a publication entitled the "Robb Report."
Posing as a wealthy rancher, Defendant responded to Mr. Cook's advertisement in December 1998 and expressed his interest in purchasing the ranch. In reality, Defendant had just completed a three-year period of supervised release following a two-year prison sentence for fraud.
During one of a series of phone calls in which Mr. Cook and the Defendant discussed the proposed purchase of the ranch, Mr. Cook revealed that he was selling the ranch because of his medical diagnosis. Defendant represented to Mr. Cook that he too had suffered severe physical ailments and offered his contacts with a doctor in New York who could possibly assist Mr. Cook with his medical problems. During the conversations, Defendant also displayed vast knowledge of the ranching industry.
After a series of phone calls, Defendant visited Mr. Cook under the auspices of purchasing the ranch. During his visit, Defendant made several false representations regarding his trading abilities in cattle futures. Defendant requested that Mr. Cook give him $500,000 to invest in cattle futures. Mr. Cook refused Defendant's initial request, but eventually sent Defendant $50,000 to be invested in cattle futures on his behalf. Defendant concedes that he never invested the funds as promised, using the money instead for personal expenses. At all times Mr. Cook retained ownership of the ranch.
On December 20, 2000, Defendant entered into a plea agreement. On January 10, 2001, the district court held a hearing concerning Defendant's motion for a continuance to his change of plea hearing. Defendant claimed that he was undergoing surgery and produced "evidence" of the pending surgery at the January 10, 2001, hearing. The district judge eventually determined that Defendant had fabricated the medical documentation he supplied in support of his motion for a continuance.
The district court conducted the first phase of sentencing on May 14, 2001. At that time, the district court notified both parties of its intent to consider several enhancements to Defendant's offense level as well as a possible upward departure. During the second phase of sentencing on July 18, 2001, the court determined that Defendant's offense level merited enhancement for the following reasons: the crime involved a vulnerable victim, Defendant had obstructed justice, and Defendant's crime involved more than minimal planning.
The district court also determined that Defendant was not entitled to a decrease in his offense level for acceptance of responsibility and decided that an upward departure from criminal history Category IV to Category V was appropriate because Category V more accurately reflected the seriousness of Defendant's criminal history. This resulted in a Guidelines range of 46-57 months' imprisonment. The district court sentenced Defendant to fifty-two months' imprisonment. Defendant now challenges the district court's enhancement of his offense level for more than minimal planning, enhancement of his offense level for a crime involving a vulnerable victim, refusal to grant a downward adjustment for acceptance of responsibility, and upward departure from criminal history Category IV to Category V.
The Guidelines in force at the time of Defendant's sentencing provide for a two-point enhancement for crimes involving more than minimal planning. Section 2F1.1(b) (2) states " [i]f the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase by 2 levels." Because Mr. Cook is the only victim, the court granted the increase based on more than minimal planning. The district court's decision to enhance Defendant's offense level for more than minimal planning is subject to review for clear error. United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir. 1993) (factual findings subject to clear error review, interpretation of the Guidelines reviewed de novo).
The Guidelines Application Notes identify three groups of activities that merit an enhancement for more than minimal planning. In order to justify an enhancement for more than minimal planning, the district court must show that 1) Defendant took "significant affirmative steps ... to conceal the offense other than conduct" prohibited under the Guidelines' provisions for the obstruction of justice enhancement, or 2) Defendant engaged in "repeated acts over a period of time," or 3) Defendant's crime evidenced "more planning than is typical for commission of the offense in a simple form." U.S. Sentencing Guidelines Manual § 1B1.1(f) (2000) (defining more than minimal planning); see, e.g., United States v. Copus, 110 F.3d 1529, 1537 (10th Cir. 1997).
This offense clearly involved more than minimal planning. In fact, it was a highly sophisticated, detailed, extended effort at mail fraud. Pursuant to 2F1.1(b) (2), the Court can increase the offense levels if the record reflects repeated acts over an extended period of time and thereafter considered efforts to conceal those activities. I think all of that occurred here. A two-level increase is, therefore, appropriate for that as well.
Rec., Vol. IX, at 57.
It is unclear what "significant affirmative acts" to conceal Defendant's offense the district court relied upon in reaching its conclusion. Defendant's attempts to avoid sentencing by supplying fraudulent documents to the court cannot justify the court's decision to enhance for more than minimal planning because that conduct provides a basis for an enhancement based on obstruction of justice. See U.S.S.G. § 3C1.1 (minimal planning does not include affirmative acts of concealment qualifying as obstruction of justice). The district court failed to set forth any other significant affirmative acts that Defendant took to conceal his crime. Thus, the district court's findings are insufficient to support its enhancement based on significant affirmative acts of concealment.
The district court also cites Defendant's repeated acts to justify its decision to enhance for more than minimum planning. The court misconstrues the intent of the language "repeated acts over a period of time." A review of our prior decisions indicates that the notion of repeated acts refers to a series of acts each of which would be criminal standing alone, rather than referring to a crime that requires the completion of a series of steps. See, e.g., United States v. Allen, 129 F.3d 1159, 1166 (10th Cir. 1997) (multiple acts of embezzlement); United States v. Orr, 68 F.3d 1247, 1253 (10th Cir. 1995) (depositing 298 checks as part of a check kiting scheme); United States v. Rice, 52 F.3d 843, 850 (10th Cir. 1995) (filing fraudulent tax returns for several years); United States v. Wise, 990 F.2d 1545, 1550-51 (10th Cir. 1992) (execution of five notes and twelve draw letters over two and one-half years to defraud bank); United States v. Abud-Sanchez, 973 F.2d 835, 837 (10th Cir. 1992) (submission of multiple fraudulent invoices to multiple health benefit providers); United States v. Lee, 973 F.2d 832, 833 (10th Cir. 1992) (five separate cases of embezzlement); United States v. Williams, 966 F.2d 555, 558-59 (10th Cir. 1992) (repeated acts of embezzlement); United States v. Sanchez, 914 F.2d 206, 207 (10th Cir. 1990) (using a stolen credit card fifteen times). The district court's statement that "the record reflects repeated acts over an extended period of time" is insufficient for a finding of minimal planning. Rec., Vol. IX, at 57. Without setting forth the series of acts, each of which would be criminal standing alone, we are unable to affirm the district court's enhancement decision for more than minimal planning based on repeated acts.
The third basis on which the decision to enhance for more than minimal planning may be upheld is evidence that Defendant's crime required "more planning than is typical for commission of the offense in a simple form." U.S.S.G. § 1B1.1(f) (emphasis added). Defendant pleaded guilty to a single violation of 18 U.S.C. § 1341. He was sentenced pursuant to Guideline § 2F1.1(b) (1) (G) for fraud and deceit involving more than $40,000 but less than $70,000. Thus, the proper inquiry is whether Defendant's actions demonstrated a greater amount of planning than required to defraud an individual of between $40,000-$70,000 in a simple manner.
In this case, the success of Defendant's scheme to defraud depended upon his ability to successfully ingratiate himself to Mr. Cook. This required several contacts by phone, flying to Denver to meet Mr. Cook, renting a car to drive from Denver to Wyoming, development and use of false stories concerning his success in trading cattle futures, and several requests for money culminating in the receipt of Mr. Cook's check. Taken together, these actions show a level of planning in excess of the amount of planning required to commit mail fraud of $40,000-$70,000 in its simple form. See, e.g., United States v. Levinson, 56 F.3d 780, 782 (7th Cir. 1995) (inflating an otherwise valid insurance claim is an example of mail fraud in its simple form). Accordingly, we affirm the district court's decision to enhance Defendant's sentence for more than minimal planning.
Defendant also challenges the district court's decision to enhance his offense level by two points because his crime involved a vulnerable victim. Section 3A1.1(b) (1) allows an enhancement " [i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim...." We have previously held that it is not a prerequisite that a defendant be aware of the victim's vulnerability at the time the defendant targets the victim; learning about the vulnerability during the criminal episode is sufficient. See United States v. Hardesty, 105 F.3d 558, 560 (10th Cir. 1997).
The concept of "vulnerability" under the Guidelines is potentially confusing. Success of all fraudulent schemes depends in some measure on a victim's vulnerability, and perpetrators of fraud routinely target vulnerable individuals. The Guidelines' enhancement, however, is reserved for exceptional cases in which the victim is unusually vulnerable or particularly susceptible to the crime committed. See, e.g., United States v. Smith, 930 F.2d 1450, 1455 (10th Cir. 1991) (rejecting enhancement because fact woman victim was elderly alone was insufficient to justify vulnerable victim enhancement). "Vulnerable victims" are individuals unable to protect themselves who therefore require greater societal protection. See, e.g., United States v. Shumway, 112 F.3d 1413, 1422-24 (10th Cir. 1997). Membership in a class of individuals considered more vulnerable than the average individual is insufficient standing alone. See United States v. Tissnolthtos, 115 F.3d 759, 761-62 (10th Cir. 1997) (rejecting enhancement based on advanced age alone); Lee, 973 F.2d at 833-34 (same); Smith, 930 F.2d at 1455 (same); United States v. Creech, 913 F.2d 780, 781-82 (10th Cir. 1990) (rejecting enhancement because newlyweds as a class did not qualify as vulnerable victims).
One thing that has been established, based on my ability to assess Mr. Cook's testimony both in May and now, is that while he is normally to be considered a sophisticated businessman and while he impresses me as being a rugged individual who's not usually subject to vulnerability, it is clear, from listening to him and watching his face and seeing the impact that this story has on him just in retelling it, that he was, at the time of this defendant's crime, clearly a vulnerable individual.
He was given a diagnosis that has an uncertain future and, in its most aggressive form, has a very high degree of lethality. In a frame of mind that bordered on panic, he looked in directions that probably he shouldn't have looked and wouldn't have, had he had his wits about him, but he clearly did not.
This defendant had a full opportunity to assess the vulnerability of his prey. He stalked his prey like a mountain lion would stock [sic] one of Mr. Cook's calves. He knew early on of his health problems, even suggesting where he might find medical treatment. Perhaps a defendant with an ounce of due passion would have said, "Enough is enough; I'll find another." But instead, he used that to further his aims.
Clearly that is why the sentencing commission has adopted 3A1.1(b) (1), and clearly this victim-related adjustment is appropriate, given all the factual matters which have been presented to me.
Rec., Vol. IX, at 57-58.
It is uncontroverted that Mr. Cook is a successful businessman who built a multimillion dollar ranch from the ground up. To be successful in the ranching industry requires tremendous intellect, skill, hard work, and determination. Mr. Cook is familiar with complex financial transactions and had previously invested in the cattle futures market. He also employed legal counsel to assist in the drafting of contracts for the potential sale of his ranch and took legal counsel with him while meeting with a firm that specialized in estate planning after his medical diagnosis. In short, Mr. Cook is a sophisticated and successful businessman.
It is also uncontroverted that Mr. Cook received devastating news regarding his health. Facing the possibility of a premature death is daunting. Such news causes many individuals to reconsider their current course of conduct. Mr. Cook's response to the news is understandable. He attempted to take steps to put his financial affairs in order and limit any potential negative consequences to his family should he pass away.
Without question, Mr. Cook's illness prompted him to look for a buyer for his ranch. In that sense, Mr. Cook's illness may have opened the door for Defendant's criminal conduct because it allowed Defendant the opportunity to approach him under the guise of an interested buyer. Like any effective con man, Defendant used Mr. Cook's illness to ingratiate himself with Mr. Cook by feigning empathy and offering to help him by recommending a medical specialist. It is important to note, however, that Defendant did not fraudulently deprive Mr. Cook of ranch ownership, nor did he ever attempt to do so. Portraying an interest in purchasing the ranch was the guise that allowed Defendant to approach Mr. Cook about investing in cattle futures.
We believe that the district court's decision to enhance Defendant's offense level for vulnerable victim was clearly erroneous. The district court's reasoning is devoid of sufficient information demonstrating that Mr. Cook was particularly vulnerable or in need of greater societal protection. We do not dispute his illness or the grave effect the news of his illness had upon him. But, allowing a vulnerable victim enhancement based on illness alone would suggest that sick individuals as a group qualify as "vulnerable victims." Our prior cases reject the granting of vulnerable victim status to members of a group. See, e.g., Tissnolthtos, 115 F.3d at 761-62. Mr. Cook possessed several self-defense mechanisms which he used while making other decisions at the same time Defendant defrauded him. For example, Mr. Cook had a lawyer accompany him on a trip to discuss his estate with a firm specializing in overseas investment. He also used an attorney to draft several proposed contracts for the sale of his ranch. He could have used these same mechanisms to detect Defendant's fraud. Mr. Cook could have used these resources and knowledge to employ counsel in his decision to invest or to investigate Defendant's background.
We might have reached a different conclusion if Defendant had defrauded Mr. Cook of his ranch after discovering Mr. Cook was ill and wished to sell it. In that circumstance, the correlation between Mr. Cook's health, his decision to sell the ranch, and Defendant's ability to defraud him of ranch ownership would be direct. However, we must focus on the fraud actually committed — the "investment" in cattle futures. The link between Mr. Cook's illness and Defendant's success in defrauding him is indirect. Mr. Cook's illness led to his decision to sell the ranch. This, in turn, allowed Defendant to meet Mr. Cook and encourage him to send Defendant money for an "investment" in cattle futures. There is no direct correlation between Mr. Cook's illness and his decision to invest in cattle futures in the present case.
Mr. Cook's decision to invest appears to be based on the very same reasons that the majority of those who fall victim to investment scams have — the lure of a substantial return on an investment in a relatively short period of time. This lure has caused many to make decisions atypical of their general approach to financial matters.
The vulnerable victim enhancement inquiry must remain focused on the victim's status. In this case, we hold that the evidence presented to the district court is insufficient to demonstrate that Mr. Cook was particularly vulnerable to Defendant's scam. We reverse the district court's decision to enhance Defendant's offense level for victim vulnerability.
Defendant next challenges the district court's refusal to grant him credit for acceptance of responsibility. The district court's decision is subject to clearly erroneous review. See United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997). Defendant bears the burden of proving entitlement to an adjustment for acceptance of responsibility. See United States v. Wach, 907 F.2d 1038, 1040 (10th Cir. 1990).
Guideline § 3E1.1(a) states that " [i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels." In addition, the commentary to this section indicates that " [c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a) Commentary Note 4. The Guidelines do envision extraordinary cases where a defendant could receive an adjustment for acceptance of responsibility despite also receiving an enhancement for obstruction of justice. See id.; see also United States v. Archuletta, 231 F.3d 682, 686 (10th Cir. 2000) (recognizing exception for extraordinary cases but holding that defendant's case was not extraordinary).
Defendant faces a daunting task. He must clear the difficult hurdle of clearly erroneous review and demonstrate that his case is an exceptional one which justifies the grant of an acceptance of responsibility adjustment despite the enhancement for obstruction of justice. Research of our published cases failed to reveal a single instance where we have overturned a district court's denial of acceptance of responsibility. The district court judge "is in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. § 3E1.1, application note 5.
Defendant concedes that his conduct warrants an enhancement for obstruction of justice. We have continually upheld a district court's refusal to grant an acceptance of responsibility adjustment where the defendant's actions merited an enhancement for obstruction of justice. See, e.g., Archuletta, 231 F.3d at 686; United States v. Lindsay, 184 F.3d 1138, 1143-44 (10th Cir. 1999); United States v. Hawley, 93 F.3d 682, 688-90 (10th Cir. 1996); United States v. Nelson, 54 F.3d 1540, 1544-45 (10th Cir. 1995); United States v. Fetherolf, 21 F.3d 998, 1001 (10th Cir. 1994); United States v. Tovar, 27 F.3d 497, 499 (10th Cir. 1994); United States v. Amos, 984 F.2d 1067, 1072-73 (10th Cir. 1993).
Defendant has presented no evidence proving that his case is exceptional enough to warrant a rarely granted deviation from the Guidelines' explicit provisions. We affirm the district court's denial of an adjustment to Defendant for acceptance of responsibility.
In addition to enhancing Defendant's offense level, the district court determined that Category V better represented Defendant's criminal history than Category IV. Accordingly, the district court added two criminal history points to Defendant's criminal history. By adding two criminal history points, Defendant's criminal history was calculated as Category V. We review the district court's decision to upwardly depart "under a unitary abuse-of-discretion standard which `includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.'" United States v. Hanson, 264 F.3d 988, 994 (10th Cir. 2001) (quotations and citations omitted). Departure decisions resting on factual considerations are "entitled to substantial deference." Id.; United States v. Fortier, 242 F.3d 1224, 1232 (10th Cir. 2001).
"We consider four factors in reviewing the propriety of a district court's upward departure from the Guidelines." United States v. Walker, 284 F.3d 1169, 1171 (10th Cir. 2002) (citation omitted). They are: "(1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable." United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997).
The Court will upward-depart on criminal history based on the inadequacy of the criminal history score. The departure is based on a combination of factors relating to the inadequacy of his criminal history. Those factors include, as I indicated ... the [prior] offense involved fraudulent acts in that offense of 13 separate victims. The details of the crime outlined in that paragraph are virtually a mirror image of the present offense in this case. Couple all of that with the fact that the defendant failed to pay the court-imposed special assessment which is mandatory for the conviction of any felony offense or restitution obligations indicates to this Court his increased likelihood of recidivism.
Additionally, while on supervised release, as I indicated earlier, he opened numerous accounts of credit with virtually no means of paying them off, accumulating debt approaching $40,000, filing bankruptcy on the debt which, as far as I'm concerned, establishes a civil record of his ongoing financial irresponsibility.
As I alluded to it earlier, in addition, while on pretrial supervision, he's written three insufficient-funds checks resulting in misdemeanor charges in another jurisdiction ... and those charges remain pending as of the present hour, and he has not been given any criminal history points for that at all.
Guideline 4A1.3 indicates that if reliable information indicates the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the Court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning, B, prior sentences of substantially more than one year imposed as a result of independent crimes committed on different occasions; C, prior similar misconduct established by civil adjudication or by failure to comply with an administrative order; E, prior similar adult criminal conduct resulting in criminal conviction.
The [Akers] Court saw that  proof of a commitment to criminal enterprise  made rehabilitation improbable and recidivism exceptionally likely. The Court thinks that in this case the reasons I have articulated demonstrate amply a justification for such a departure.
Based on these factors, it is determined that the criminal history of V, Roman Numeral V, rather than IV as reported in the presentence investigation report, more accurately reflects the serious nature of the defendant's past conduct and the likelihood that he will commit future crimes of this nature. Based on that criminal history, the Court finds it's not a question of "if" this defendant will re-offend; it is merely a question of "when."
We first review the departure factors the district court used in its decision to upwardly depart to determine whether those factors are permissible departure factors. United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir. 1998). The district court justified its decision to upwardly depart on at least five grounds. Those grounds were: Defendant's prior fraud sentence in excess of one year imprisonment, Defendant's declaration of bankruptcy for debts incurred without any ability to repay them, prior similar misconduct, subsequent misdemeanor bad check charges that had not been considered in establishing Defendant's criminal history, and Defendant's potential for recidivism.
Only one of the factors used by the district court can possibly be challenged as improper. The district court took the position that Defendant's bankruptcy declaration involving debts that he never had the ability to pay in the first instance qualified as prior similar misconduct established by civil adjudication. We seriously doubt the propriety of the district court's application of the Guidelines in this instance. Likely, this reason for departure would be applicable if Defendant had been sued civilly for bankruptcy fraud or had his bankruptcy petition rejected because of his alleged fraudulent activities. For purpose of analysis, we assume without deciding that the district court's reliance on this factor was improper.
Regardless, " [i]f the sentencing decision rested on other permissible factors in addition to the improper factor, and we determine the district [court] would have imposed the same sentence even in the absence of the improper factor, then we will not disturb the decision." Id. at 1250 (citation omitted). At least four of the five factors the court relied upon are valid departure factors. Because we believe the district court would have imposed the same sentence without considering Defendant's bankruptcy proceeding, we hold that the district court relied on permissible factors in deciding to depart. See Koon v. United States, 518 U.S. 81, 113, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996) (court should remand district court's decision to upwardly depart based upon valid and invalid factors unless it determines district court would have imposed same sentence without considering the invalid factors).
We next consider whether the departure factors the district court relied upon removed the Defendant from the applicable Guideline heartland. The district court's finding "is entitled to substantial deference." Walker, 284 F.3d at 1172. We limit our review to determining whether "the factual circumstances from the vantage point of the district court make this the atypical case." Collins, 122 F.3d at 1303 (quotation omitted). "If the case is a typical one, the `court must impose a sentence within the applicable Sentencing Guidelines range.'" Whiteskunk, 162 F.3d at 1252 (quotations omitted).
The district court relied heavily upon Defendant's prior fraud conviction entailing a scheme similar to the one in the instant case where Defendant defrauded eighteen individuals of $160,000. Additionally, Defendant's failure to pay any restitution or the special assessment, his passing of bad checks after being indicted in the present case, and submission of false medical documentation in an attempt to delay sentencing all evidence Defendant's potential for recidivism. These circumstances led the district court to the conclusion that Defendant's past conduct and his potential for recidivism were atypical of defendants with Category IV criminal histories.
Defendant insists that he is merely representative of the typical fraud defendant and that "you can't beat a dog for being a dog." Rec., Vol. IX, at 45. Defendant misunderstands the nature of the Guidelines. Because Defendant's prior conduct was extremely similar to the crime he is currently being sentenced for and because he evidences a potential of recidivism atypical of other criminal defendants within his criminal history category, he merits an upward adjustment to his criminal history category. The district court did not abuse its discretion when it determined that "Defendant's criminal history [was] sufficiently exceptional to remove it from the `heartland' of criminal history category" IV. Walker, 284 F.3d at 1172.
The third step is to determine "whether the record sufficiently supports the factual basis underlying the departure." Collins, 122 F.3d at 1303. The record is replete with evidence supporting the district court's findings. Thus, we hold that the factual basis for upward departure cited by the district court is sufficiently supported in the record.
The final step is to determine whether the district court's degree of departure was reasonable. "Articulation of the factual basis for upwardly departing `does not automatically suffice to explain the degree of departure.'" Walker, 284 F.3d at 1172 (quoting Whiteskunk, 162 F.3d at 1253). Simply restating the justification for upward departure "does not fulfill the separate requirement of stating the reasons for imposing the particular sentence." United States v. Flinn, 987 F.2d 1497, 1502 (10th Cir. 1993). The district court is required to "precisely lay out [its] reasoning and analysis as to why [it is selecting] a particular degree of departure." United States v. Bartsma, 198 F.3d 1191, 1197 (10th Cir. 1999). This reasoning and analysis must give us "reasonable indicia that the sentence [the district court pronounces] is proportional to the crime committed." United States v. Kalady, 941 F.2d 1090, 1101 (10th Cir. 1991). The district court accomplishes this task by using any "reasonable methodology hitched to the Sentencing Guidelines to justify the reasonableness of the departure." United States v. Harris, 907 F.2d 121, 124 (10th Cir. 1990).
The district court summarized its decision to depart by stating, " [I]t is determined that the criminal history of V, Roman Number V, rather than IV as reported in the presentence investigation report, more accurately reflects the serious nature of the defendant's past conduct and the likelihood that he will commit future crimes of this nature." Rec., Vol. IX, at 62. Typically, this reasoning is insufficient because it simply restates the reasons justifying the decision to upwardly depart in the first instance. We have consistently rejected similar statements as insufficient to satisfy the reasonableness of departure requirement. See, e.g., Bartsma, 198 F.3d at 1197; United States v. Okane, 52 F.3d 828, 836 (10th Cir. 1995); United States v. Yates, 22 F.3d 981, 991 (10th Cir. 1994); Flinn, 987 F.2d at 1503.
We typically require a more reasoned explanation justifying the sentence the district court imposes instead of the Guidelines' sentence. It is true that district judges have not been "reduced to being scriveners in the role of sentencing." Rec., Vol. IX, at 65. However, district courts deciding to upwardly depart in extraordinary cases must show that their level of departure is reasonable. Without a reasoned analysis of the district court's degree of departure, the Guidelines' goals of uniformity and proportionality are lost. See United States v. Gardner, 905 F.2d 1432, 1436-39 (10th Cir. 1990) (Guidelines require uniformity and proportionality even in decisions to upwardly depart).
However, a reasoned explanation is not necessary in this particular case. The district court relied upon permissible departure factors, those permissible factors removed Defendant from the Guidelines' heartland, and the record sufficiently supported the factual basis underlying the departure. The district court's departure from Category IV to Category V represents the smallest possible departure the district court could have made. Having held that the district court properly used its discretion to depart, no justification is required from the district court when it elects the smallest possible departure. In this narrow circumstance, a reasoned explanation detailing why the district court selected the sentence imposed justified by a methodology reasonably hitched to the Guidelines is unnecessary. Accordingly, we affirm the district court's decision to upwardly depart.
We affirm the district court's enhancement of Defendant's sentence for more than minimal planning, its denial of an acceptance of responsibility adjustment, and its decision to upwardly depart. We reverse the district court's decision to enhance for vulnerable victim. We remand to the district court for resentencing in a manner consistent with this opinion.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.


ERNEST A. ABRAHAMSON, CLAIMANT-APPELLANT v. STATE OF CONNECTICUT, DEPARTMENT OF PUBLIC WORKS, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLEE AND GAB ROBINS NORTH AMERICA, ADMINISTRATOR.
This Petition for Review of the January 6, 2006 Finding Award of the commissioner acting for the Second District was heard July 14, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
The claimant was represented by Amy Stone, Esq., O’Brien, Shafner, Stuart, Kelly Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.
The respondent, State of Connecticut was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This case presents a question in regards to the appropriate interpretation of § 31-300 C.G.S. This statute permits a trial commissioner to award interest and attorney’s fees if he determines a respondent engaged in unreasonable delay in paying a claim or unreasonably contested liability. In this case, the trial commissioner ordered an award of interest on an unpaid award, but declined to order the sanction of the claimant’s attorney fees against the respondent. The claimant has appealed from this decision, claiming that both interest and attorney’s fees must be awarded in this case. In reviewing the actual findings and the applicable case law, we are unable to determine whether the trial commissioner intended to award interest under § 31-295(c) C.G.S. rather than § 31-300 C.G.S. We are also unable to determine what provision of § 31-300 C.G.S. the trial commissioner applied in this matter. As a result, we remand this matter for an articulation as to what result the trial commissioner intended and what factors motivated his decision.
The trial commissioner found the following facts, the majority of which are not disputed. The claimant was employed both by the A. Torrance Construction Company and by the State of Connecticut. He worked for the Department of Public Works from 1964 until his retirement in 1985 as a construction supervisor. He suffers from asbestos related lung disease. He had surgery performed in 1980 and did not have further treatment or examination of his lungs until 2000. He had a biopsy done in 2001. In 2001 he filed a notice of claim against the State for his asbestos exposure while in state service.
The claimant was examined by his treating physician and an examiner chosen by the respondent State of Connecticut. Following a June 9, 2004 examination the state’s expert assigned a 40% permanent partial disability rating to his lungs and attributed 20% of the claimant’s lung exposure to his state service and 80% to A. Torrance Construction Company. The respondent made a $10,000 payment to the claimant without prejudice on August 23, 2004.
In his Finding and Award of January 6, 2006 the trial commissioner found the opinion of the treating physicians persuasive as to causation, but found the respondent’s examiner more persuasive as to disability. As no evidence was proffered that the claimant had been exposed to asbestos after leaving state service the State was deemed the § 31-299b C.G.S. carrier for purposes of apportionment. The commissioner established a 40% disability rating and a maximum medical improvement date of March 5, 2003.
d. The respondent State of Connecticut shall pay statutory interest on those owed benefits pursuant to 31-295(c) and 31-300. e. The claimant’s claim for attorney’s fees is dismissed.
The claimant moved for articulation on the interest rate due on the unpaid balance of the award, as the commissioner had the discretion to award either a 12% or 10% interest rate under § 31-300. On January 25, 2006 the trial commissioner determined the interest rate to be 10%. The claimant did not seek an articulation as to why attorney’s fees were not awarded. Instead, a petition for review on this issue was filed on January 24, 2006.
In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.
The parties both cite appellate authority for their positions. The claimant alleges that the holding of Imbrogno v. Stamford Hospital, 28 Conn. App. 113 (1992) requires the award of both attorney’s fees and interest in this instance. In Imbrogno the trial commissioner awarded attorney’s fees, but not interest. The Appellate Court held, “[w]e read the words of 31-300, `may include in his award interest . . . and a reasonable attorney’s fee’ to allow a discretionary award of both interest and attorney’s fees or neither, but not to allow an award of one and not the other.” Id., pp. 125.
The respondent relies on a CRB decision to justify their position attorney fees are not owed. In Cirrito v. Resource Group Ltd. ofConn., 4248 CRB-1-00-6 (June 19, 2001) we laid out an analysis of § 31-300 which the respondent believes is dispositive of this dispute.
To resolve this issue we are required to look first at the “plain meaning” of the relevant statute as per § 1-2z C.G.S. We must also look to the “plain meaning” of the Finding and Award as we cannot simply add findings of fact to the award which would conveniently comport with a simple decision herein.
As noted, there are two different provisions in the relevant statute governing the award of interest to the claimant. Only one provision deals with the award of attorney’s fees. Where there is a finding of “fault or neglect,” the trial commissioner may award interes and a reasonable attorney’s fee. (Emphasis added). As a resultImbrogno is unassailable precedent that if an attorney’s fee is awarded, interest must be awarded as well, as the statute is written in conjunctive fashion. However, the converse reading cannot be presumed, as the statute does provide for the award of interest without attorney’s fees if there is no finding of fault.
As a result, we find this case exactly on point with a decision which neither party cited as precedent in its brief Ortiz v. HighlandSanitation, 4439 CRB-4-01-9 (November 12, 2002). In Ortiz an identical fact pattern occurred, as a trial commissioner awarded interest on a delayed award pursuant to § 31-300 C.G.S. without awarding attorney’s fees. We held in that case, “[b]ecause we would be venturing a guess as to the trier’s intent either way, the best solution is for us to remand this case to the trier with instruction that he clarify the status and origin of the award of interest that was ordered via the granting of the claimant’s Motion to Correct.” Id. Stare decisis compels a similar outcome in this matter.
The Ortiz case also dealt with another fact present in this case: the fact that the ultimate outcome — the issuance of interest at the rate of 10% without awarding attorney’s fees — can be reached by applying another statute cited in the Finding and Award which does not have the alternative remedies of § 31-300. In Ortiz we held “one could reasonably make a case for either statute as the trier’s envisioned basis for his granting of the claimant’s requested correction.” In this case the Finding and Award references both § 31-295(c) and § 31-300. The Motion for Articulation granted a 10% interest rate which is the interest rate in § 37-3a and the rate applied in a non penalty situation under § 31-300. This is the same interest rate as applied on unpaid awards in § 31-295(c). The language of this statute is a “no-fault” penalty.
If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.
As result, we find this record is inadequate for appellate review. In order to ascertain if the trial commissioner’s Finding and Award comports with the Imbrogno precedent we need to obtain clarification as to what relief the trial commissioner intended. We herein remand this matter for an articulation as to whether the trial commissioner found fault on the part of the respondent for the delay in payments and if not, whether he intended to order interest pursuant to § 31-295(c) or § 31-300.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.
 We agree with the claimant that when a trial commissioner finds fault or neglect on the part of a respondent for failing to pay an award, or for unreasonably contesting the case, both attorney’s fees and interest must be awarded as per Imbrogno. These findings cannot be inferred from the record at hand.


Justia › US Law › Case Law › Nebraska Case Law › Nebraska Supreme Court Decisions › 2014 › Potter v. Bd. of Regents of Univ. of Neb.
Appellant was a temporary employee at the University of Nebraska. After the University considering terminating Appellant’s employment, human resources completed a “threat assessment” in relation to the termination, which noted Appellant’s criminal record and history of becoming upset over discussion of work performance. When the University decided to terminate Appellant, an e-mail was circulated warning coworkers to alert campus police and lock their doors if they saw Appellant. Appellant filed this action under 42 U.S.C. 1983 against the University Board of Regents and two of its managers, making a “stigma plus” claim that he was deprived of a liberty interest in his good name without due process of law. The district court granted summary judgment in favor of Defendants, concluding (1) there was no genuine issue of material fact that Appellant had not sufficiently suffered a constitutional violation; (2) the Board of Regents was shielded by sovereign immunity; and (3) the individual defendants were protected by qualified sovereign immunity because the alleged violation was not clearly established. The Supreme Court affirmed, holding that the district court did not err in its judgment.
Nebraska Advance Sheets 732 287 NEBRASKA REPORTS maximize speed and efficiency of distributions while minimizing expenses. Thus, the court today correctly declines the appellant s invitation to expand its review under the waiver rule to evidence outside of the divorce decree and the associated property settlement agreement. But a better approach is available, and I commend it to the Legislature. Paul D. Potter, appellant, v. Board of R egents of University of Nebraska et al., appellees. the ___ N.W.2d ___ Filed March 21, 2014. No. S-13-544. 1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. 2. Public Officers and Employees: Immunity: Liability. Qualified immunity protects government officials acting in their individual capacities from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 3. ____: ____: ____. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law. 4. Constitutional Law: Civil Rights: Actions. A private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States is created by 42 U.S.C. § 1983 (2006). 5. Constitutional Law: Due Process: Tort-feasors. The 14th Amendment s Due Process Clause does not extend to citizens a right to be free of injury wherever the State may be characterized as the tort-feasor. 6. Due Process. Procedural due process limits the ability of the government to deprive people of interests that constitute liberty or property interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard. 7. Due Process: Termination of Employment. Neither liberty nor property interests are at stake when an at-will employee loses a job but remains as free as before to seek another. 8. Due Process: Libel and Slander. Standing alone, stigma to one s reputation through defamatory statements is not sufficient to invoke the procedural protection of the Due Process Clause. Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 733 Cite as 287 Neb. 732 9. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. If, in the course of subjecting an at-will employee to the present injury of termination, the State attaches to the employee a badge of infamy that impairs future employment opportunities, liberty interests come into play. 10. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander: Words and Phrases. The combination of stigmatizing state action coupled with some more tangible interest, thereby giving rise to a protectable interest under the 14th Amendment, is referred to as stigma plus. 11. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. Once a termination of employment qualifies as stigma plus, due process is violated if the employee challenges the substantial truth of the defamatory statement and has not been given an opportunity for a nameclearing hearing. 12. Libel and Slander: Words and Phrases. A stigma is a mark or token of infamy, disgrace, or reproach. 13. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. The requisite stigma for a stigma-plus claim has generally been found when an employer has accused an employee of serious character defects such as dishonesty, immorality, criminality, racism, and the like; it must be more than allegations of incompetence or the fact of the employment decision itself. 14. Civil Rights: Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. A supervisor is not responsible under a 42 U.S.C. § 1983 (2006) stigma-plus claim for unauthorized rumors circulating among employees. 15. Civil Rights: Employer and Employee: Liability. There is no respondeat superior liability under 42 U.S.C. § 1983 (2006). 16. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. The requirement of public dissemination in stigma-plus claims limits constitutional claims to those instances where the stigmatizing charge is likely to be disseminated widely enough to damage the discharged employee s standing in the community or foreclose future job opportunities. 17. ____: ____: ____: ____. What is sufficient to constitute public disclosure in a stigma-plus claim will vary with the circumstances of each case. 18. ____: ____: ____: ____. Statements protected by qualified privilege do not pass the stigma-plus test. 19. Public Officers and Employees: Libel and Slander: Words and Phrases. Conditional or qualified privilege comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which the author has a duty public, personal, private, legal, judicial, political, moral, or social made to a person having a corresponding interest or duty. Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge. Affirmed. Nebraska Advance Sheets 734 287 NEBRASKA REPORTS Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for appellant. John C. Wiltse, of University of Nebraska, and David R. Buntain, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees. Heavican, C.J., Connolly, McCormack, Miller-Lerman, and Cassel, JJ. McCormack, J. NATURE OF CASE A former temporary employee brought action under 42 U.S.C. § 1983 (2006) against the Board of Regents of the University of Nebraska (Board of Regents) and two of its managers after an e-mail circulated the day of the employee s termination of employment, warning coworkers to alert campus police and lock their doors if they saw him. The employee makes a stigma plus claim that he was deprived of a liberty interest in his good name without due process of law in violation of the 14th Amendment to the U.S. Constitution. The Board of Regents asserts that it is shielded by sovereign immunity and is not a person under § 1983 or Neb. Rev. Stat. § 20-148 (Reissue 2012) and that the managers are protected by qualified sovereign immunity because the alleged violation was not clearly established. The district court granted summary judgment in favor of the defendants, and the employee appeals the judgment. We affirm. BACKGROUND Paul D. Potter was a student at the University of NebraskaLincoln (University) studying electrical engineering. From 2006 to 2009, Potter was a part-time student employee working for the Communications and Information Technology Department (CIT) as a help desk technician at the call center located in Miller Hall on the University s east campus. Potter often provided technical support at nearby Agricultural Hall, where the office of the vice chancellor was located. The assistant vice chancellor was the unit director for CIT. Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 735 Cite as 287 Neb. 732 Potter began working full time in 2009, while still a student. The full-time employment offer stated that the temporary appointment was to begin October 28, 2009, and may last until August 14, 2010, but could be ended for any reason and without notice. A background check conducted in relation to the full-time position revealed that in 2004, Potter had been charged with burglary, battery, and stalking, and had pled guilty to the misdemeanor offenses of trespass on an unenclosed curtilage, harassing a witness to hinder a report, and battery. He had been fined and sentenced to 12 months of probation. The chancellor s office discussed these matters with Potter, and there is a notation on a copy of his criminal record to disregard the 2004 charges. The University also became aware at this time that Potter was on probation for a recent conviction of driving under the influence. Around the same time that Potter was given the new temporary appointment, Potter s manager at the call center was promoted to a position outside of CIT and a new manager, Terry Bockstadter, transferred in. Robert Losee was the information technology coordinator and Bockstadter s supervisor. CIT was also moving at that time to a fee-for-service charging model. As a result, CIT technicians were expected to keep time-tracking records with appropriate codes for serv ices provided. Potter and other technicians struggled with the transition. Notes and e-mails reflect that beginning February 15, 2010, and continuing up to July 12, Potter was repeatedly counseled that he needed to do better with his timesheets. In June 2010, Potter was asked to sign a statement reflecting issues that needed to be rectified in order for [him] to continue to be an effective part of the CIT Help Desk. These issues included the accurate and timely submission of timetracking reports and Potter s failure to communicate daily availability status. Potter refused to sign the statement. Sometime before July 20, 2010, Losee contacted human resources about the possibility of terminating Potter s employment. Pursuant to standard University procedure, human resources completed a threat assessment in relation to the possible termination. The threat assessment for Potter noted Nebraska Advance Sheets 736 287 NEBRASKA REPORTS manager concerns based on Potter s previous reaction of getting upset over discussion on work performance, a decrease in sociability in the last year, and his criminal record. The threat assessment was forwarded to campus police to determine whether there was any cause for concern. The record does not directly reflect what campus police communications took place regarding the threat assessment. On the morning of July 20, 2010, two police officers arrived at Potter s place of work and escorted him away. Apparently unbeknownst to Potter or anyone else, a bench warrant for Potter s arrest had been issued after he missed a court date in relation to his probation for the conviction of driving under the influence. Potter testified in his deposition that he had not received the mailing advising him of the court date. Potter did not explain to his superiors or coworkers the circumstances surrounding the police visit and his sudden departure, which was witnessed by Bockstadter. Potter explained that he did not say anything, because he thought Bockstadter had been the one to alert the police of the outstanding warrant. Losee alerted human resources that two plainclothes Lincoln Police Department officers had been looking for Potter at his place of work. The decision to terminate Potter s employment was finalized that afternoon. A personnel coordinator consulted human resources about drafting a release to employees in what had recently become known as the EdMedia department (formerly CIT), pursuant to University procedure to ensure the safety of University technology when an employee with access to sensitive technological equipment is terminated. The proposed release did not mention termination of any employee, but advised that the EdMedia department would be changing passwords and access privileges. The proposed release was sent via e-mail to a few select University employees. Human resources asked that the recipients of the e-mail be discreet and explained: We will move forward with termination of [Potter] tomorrow if possible. We are not sure when that will Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 737 Cite as 287 Neb. 732 happen. It will depend if [Potter] shows up to work. HR, [University] Police and EAD will be involved in the termination meeting. At this point the police have been unable to locate [Potter]. Potter did not show back up to work and did not advise Bockstadter or Losee as to the reason for his unexpected and police-escorted departure. On the afternoon of July 21, 2010, an administrative employee sent an e-mail to 27 University employees working in either Miller Hall or Agricultural Hall. The e-mail stated: Judy went around this afternoon to let available staff members know of the situation regarding the termination of . . . Potter, Help Desk student worker. If you see him in the building, please shut and lock your door and call me . . . and I will alert the Campus Police. We do not need to be fearful but cautious and aware of who is in our building. Potter was in court the morning of July 21, 2010, responding to the bench warrant. He explained in his deposition that he could not be reached while in court. When he arrived at east campus later that afternoon, Potter received an e-mail from a coworker telling him that his coworkers were told to call the police if they saw him. According to Potter, another coworker who also received the e-mail told him that an administrative employee was crying and telling people to check their e-mail and lock their doors. According to Potter, that coworker told Potter that the administrative employee had implied that Potter had a gun. When Potter saw campus police, he left without incident. Potter subsequently received a letter dated July 22, 2010, informing him of his termination effective that same date. In addition to those employees who received the e-mail, Potter identified three other persons who were warned of his possible presence on campus that day. First, according to Potter, an employee working in Agricultural Hall told him someone had come in and told her there was an alert that there was somebody on campus. Nebraska Advance Sheets 738 287 NEBRASKA REPORTS Second, Potter s CIT manager from 2006 to 2009 was defending her dissertation in Agricultural Hall when her advisor warned her that they may have to go into lockdown. She learned from the vice chancellor s office that the warning related to Potter. She testified that she also heard a rumor that Potter had a gun. Third, according to the aforementioned former CIT manager, Losee had told the assistant vice chancellor s wife about the alert. Losee had apparently attempted to contact the assistant vice chancellor/CIT unit director at his home, but he was out of town. Losee told the assistant vice chancellor s wife, who had answered the telephone, that if Potter showed up, she should not let him in. According to Potter, that same assistant vice chancellor later apologized to him for the way his termination was handled. The assistant vice chancellor explained there had been a mistake. Potter stated that since the incident, he has not returned to east campus. But he has not had any trouble enrolling in classes, which he takes at the main campus. He was able to obtain employment as a network manager with a retirement home, but was laid off for lack of funds for the position. He is currently self-employed. Potter presented no evidence that prospective employers were aware or were likely to become aware of the events that transpired on July 21, 2010. Potter presented no evidence that the community at large was aware or likely to become aware of the incident. Potter sued the Board of Regents and Bockstadter and Losee in their individual capacities. Potter alleged a cause of action under § 1983 and § 20-148, for being deprived of a liberty interest in his good name without due process of law, in violation of the 14th Amendment to the U.S. Constitution. Potter also alleged an action for discrimination under Neb. Rev. Stat. § 48-1104 (Reissue 2010), but that claim is no longer asserted on appeal. The principal relief sought was compensatory damages for loss of reputation, emotional distress, and humiliation, but he also stated claims for declaratory and injunctive relief. Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 739 Cite as 287 Neb. 732 Potter did not seek reinstatement of his employment with the University. The district court granted summary judgment in favor of the defendants. The court found the evidence insufficient to create a genuine issue of material fact that the statements in the e-mail stigmatized Potter by seriously damaging his reputation or that the statement foreclosed other employment opportunities; thus, Potter s due process rights were not violated. The court found that even if they were violated, sovereign immunity protected the defendants from the claim. As to Bockstadter and Losee, the court found that the constitutional right allegedly violated had not been clearly established and that thus, the claim was barred by qualified immunity. Potter appeals. ASSIGNMENTS OF ERROR Potter assigns that the district court erred in finding (1) that there was no genuine issue of material fact that he had not sufficiently suffered a constitutional violation and (2) that Potter s alleged right was not clearly established at the time. STANDARD OF REVIEW  An appellate court will affirm a lower court s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.1 ANALYSIS Potter admits he is no longer pursuing equitable relief. Instead, he seeks monetary relief for the alleged deprivation of his right to procedural due process. The Board of Regents and Bockstadter and Losee in their official capacities are entitled to sovereign immunity and do not qualify as persons under 1 Peterson v. Homesite Indemnity Co., ante p. 48, 840 N.W.2d 885 (2013). Nebraska Advance Sheets 740 287 NEBRASKA REPORTS § 1983.2 Section 20-148 is a procedural statute designed to allow plaintiffs to bypass administrative procedures in discrimination actions against private employers; it does not operate to waive sovereign immunity and has no application here.3 [2,3] We are presented with Potter s claims under § 1983 against Bockstadter and Losee for actions taken in their individual capacities under color of state law.4 Qualified immunity protects government officials acting in their individual capacities from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.5 A qualified immunity analysis has two prongs: (1) whether the official violated a statutory or constitutional right and (2) whether the right was clearly established at the time of the challenged conduct.6 Courts have discretion to decide which of the two prongs to address first.7 Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.8 We agree with the district court 2 3 4 5 6 7 8 See, Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Michael E. v. State, 286 Neb. 532, 839 N.W.2d 542 (2013); Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010); Shearer v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999), disapproved on other grounds, Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004). See, Stanton v. Sims, ___ U.S. ___, 134 S. Ct. 3, 187 L. Ed. 2d 341 (2013); Ritchie v. Walker Mfg. Co., 963 F.2d 1119 (8th Cir. 1992); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996); Wiseman v. Keller, 218 Neb. 717, 358 N.W.2d 768 (1984); Sinn v. City of Seward, 3 Neb. App. 59, 523 N.W.2d 39 (1994). See, e.g., Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). See, Brandon v. Holt, 469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985); Michael E. v. State, supra note 2. See, e.g., Ashcroft v. al-Kidd, ___ U.S. ___, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). Id. Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 182 L. Ed. 2d 47 (2012). Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 741 Cite as 287 Neb. 732 that qualified immunity bars Potter s § 1983 action against Bockstadter and Losee. [4-6] Section 1983, which derives from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, creates a private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States. 9 The 14th Amendment s Due Process Clause does not, however, extend to citizens a right to be free of injury wherever the State may be characterized as the tort-feasor.10 Rather, procedural due process limits the ability of the government to deprive people of interests that constitute liberty or property interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.11 Procedural due process claims center on the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it. 12 [7,8] Neither liberty nor property interests are at stake when an at-will employee loses a job but remains as free as before to seek another.13 Likewise, standing alone, stigma to one s reputation through defamatory statements is not sufficient to invoke the procedural protection of the Due Process Clause.14  But one of the liberties protected by the 14th Amendment is the individual s right to engage in any of the common occupations of life. 15 And federal circuit 9 10 11 12 13 14 15 Rehberg v. Paulk, ___ U.S. ___, 132 S. Ct. 1497, 1501, 182 L. Ed. 2d 593 (2012). See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). See State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). See, e.g., Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Speer v. City of Wynne, Ark., 276 F.3d 980 (8th Cir. 2002); Johnston v. Panhandle Co-op Assn., 225 Neb. 732, 408 N.W.2d 261 (1987). See Paul v. Davis, supra note 10. Board of Regents v. Roth, supra note 13, 408 U.S. at 572. Nebraska Advance Sheets 742 287 NEBRASKA REPORTS courts have universally held that if, in the course of subjecting an at-will employee to the present injury of termination, the State attaches to the employee a badge of infamy that impairs future employment opportunities, liberty interests come into play.16  The combination of stigmatizing state action coupled with some more tangible interest, thereby giving rise to a protectable interest under the 14th Amendment, is referred to as stigma plus. 17 It is the individual s status as a government employee and not his property interest in continued employment which furnishes the plus in at-will termination cases.18  Once the termination qualifies as stigma plus, due process is violated if the employee challenges the substantial truth of the defamatory statement and has not been given an opportunity for a name-clearing hearing.19 If no name-clearing hearing is provided, or if the hearing is inadequate, the former employee may sue for monetary damages.20 It appears that in the context of termination of at-will employment, more is required to allege the necessary level of defamation and dissemination in a stigma-plus due process claim than the kind of damage to reputation sufficient for a simple tort defamation claim.21 Thus, the Second Circuit 16 17 18 19 20 21 See Paul v. Davis, supra note 10, 424 U.S. at 705. See, also, e.g., Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977); Board of Regents v. Roth, supra note 13; Brown v. Simmons, 478 F.3d 922 (8th Cir. 2007); Ridpath v. Board of Governors Marshall University, 447 F.3d 292 (4th Cir. 2006); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir. 1989); Doe v. United States Dept. of Justice, 753 F.2d 1092 (D.C. 1985). See, e.g., Zutz v. Nelson, 601 F.3d 842 (8th Cir. 2010); State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012). Dennis v. S & S Consolidated Rural H.S. Dist., 577 F.2d 338 (5th Cir. 1978). See Paul v. Davis, supra note 10. See, also, e.g., Codd v. Velger, supra note 16; Board of Regents v. Roth, supra note 13; Brown v. Simmons, supra note 16. Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004). Filgueiras v. Newark Pub. Schools, 426 N.J. Super. 449, 45 A.3d 986 (2012). Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 743 Cite as 287 Neb. 732 requires that the defendant employer made stigmatizing statements about the plaintiff that call into question the plaintiff s good name, reputation, honor, or integrity or that denigrate the plaintiff s competence as a professional and impugn the plaintiff s professional reputation in such a fashion as to effectively put a significant roadblock in the plaintiff s continued ability to practice his or her profession.22 The Ninth Circuit requires that the charge against the plaintiff is one that might seriously damage his or her standing and associations in the community.23 The Sixth Circuit requires that the false, stigmatizing statements not be merely allegations of improper or inadequate performance, incompetence, neglect of duty, or malfeasance.24 The Seventh Circuit requires a tangible loss of other employment as a result of a stigmatizing public disclosure.25 Most courts set forth several conjunctive elements for an at-will termination stigma-plus claim. The elements are var iously stated and somewhat intertwined. We will utilize the test of the Eighth Circuit, which requires that (1) the public employer s reasons for the discharge stigmatized the employee by seriously damaging his standing and association in the community or by foreclosing employment opportunities that may otherwise have been available, (2) the public employer made the reason or reasons public, and (3) the employee denied the charges.26 [12,13] We have explained that a stigma is a mark or token of infamy, disgrace, or reproach.27 The requisite stigma for a stigma-plus claim has generally been found when an employer has accused an employee of serious character defects such as dishonesty, immorality, criminality, racism, 22 23 24 25 26 27 Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006); Patterson v. City of Utica, supra note 20. See Llamas v. Butte Community College Dist., 238 F.3d 1123 (9th Cir. 2001). See Brown v. City of Niota, Tenn., 214 F.3d 718 (6th Cir. 2000). See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010). See Speer v. City of Wynne, Ark., supra note 13. State v. Norman, supra note 17. Nebraska Advance Sheets 744 287 NEBRASKA REPORTS and the like;28 it must be more than allegations of incompetence or the fact of the employment decision itself.29 This case involves the alleged stigma arising from an implied character charge of dangerousness communicated in security warnings during an employee s termination. Specifically, the warnings at issue stated that Potter was being terminated that day and that persons who saw him should be cautious and lock their doors and notify campus police. [14,15] We find insufficient evidence that either Bockstadter or Losee was responsible for any alleged statements or implications to the effect that Potter was roaming around east campus with a gun. A supervisor is not responsible under a § 1983 stigma-plus claim for unauthorized rumors circulating among employees.30 The U.S. Supreme Court has made clear that there is no respondeat superior liability under § 1983.31 The standard by which a supervisor is held liable under § 1983 in his or her individual capacity for the actions of a subordinate is extremely rigorous.32 The plaintiff must establish that the supervisor personally participated in the unconstitutional conduct or was otherwise the moving force of the violation 28 29 30 31 32 See, e.g., Board of Regents v. Roth, supra note 13; Ridpath v. Board of Governors Marshall University, supra note 16; Winegar v. Des Moines Indep. Com. School Dist., 20 F.3d 895 (8th Cir. 1994). See, e.g., Zepp v. Rehrmann, 79 F.3d 381 (4th Cir. 1996); Jones v. University of Iowa, 836 N.W.2d 127 (Iowa 2013); Herrera v. Union No. 39 School Dist., 186 Vt. 1, 975 A.2d 619 (2009). See Palmer v. City of Monticello, 31 F.3d 1499 (10th Cir. 1994). See, also, Lancaster v. Independent School Dist. No. 5, 149 F.3d 1228 (10th Cir. 1998); Silva v. Worden, 130 F.3d 26 (1st Cir. 1997); Fittshur v. Village of Menomonee Falls, 31 F.3d 1401 (7th Cir. 1994); Moore v. State of Ind., 999 F.2d 1125 (7th Cir. 1993); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988). See, Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Board of Comm rs of Bryan Cty. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997); Monell v.New York City Dept. of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Mann v. Taser Intern., Inc., 588 F.3d 1291 (11th Cir. 2009). Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 745 Cite as 287 Neb. 732 by authorizing, approving, or knowingly acquiescing in the unconstitutional conduct.33 Potter only presented limited evidence of Bockstadter s and Losee s involvement in the e-mail and the corresponding verbal warnings. Potter did not present Bockstadter s or Losee s testimony, or the testimony of the author of the e-mail warning or the employee who verbally disseminated that warning. There are no admissions in the record pertaining to Bockstadter s or Losee s participation in the warnings. Nevertheless, based on the chain of events reflected in internal e-mails and Bockstadter s and Losee s positions within the EdMedia department, we will generously infer a material issue as to whether they were responsible for the alleged character charge. We will also accept for purposes of this appeal the hearsay testimony that Losee called the assistant vice chancellor s wife and told her not to open the door for Potter, because there was no objection to that testimony. The alleged stigma in this case is unique. Because of highly publicized incidents of workplace and school violence and the mounting pressure on employers and educational institutions to proactively protect their employees and students from such violence,34 the warnings may have merely communicated zealous security measures rather than a stigmatizing character charge. Even assuming there was a stigmatizing character charge, however, Potter failed to present a material issue that this charge seriously damaged his standing and association in the community or foreclosed employment opportunities that might otherwise have been available. 33 34 See, Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013); Schneider v. City of Grand Junction Police Dept., 717 F.3d 760 (10th Cir. 2013); Myers v. Bowman, 713 F.3d 1319 (11th Cir. 2013); Burlison v. Springfield Public Schools, 708 F.3d 1034 (8th Cir. 2013); Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012); Heyerman v. County of Calhoun, 680 F.3d 642 (6th Cir. 2012); Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). See Kimberly Smith, A Plea for Mandatory Disclosure: Urging Michigan s Legislature to Protect Employees Against Increasing Phenomena of Workplace Violence, 79 U. Det. Mercy L. Rev. 611 (2002). Nebraska Advance Sheets 746 287 NEBRASKA REPORTS  There can be no infamy unless the character charge is sufficiently made public.35 The requirement of public dissemination in stigma-plus claims limits constitutional claims to those instances where the stigmatizing charge is likely to be disseminated widely enough to damage the discharged employee s standing in the community or foreclose future job opportunities.36 Potter argues that dissemination of the warning to certain employees not in the building where he worked, and to the assistant vice chancellor s wife, means there was public dissemination and that, thus, that element of his claim has been met. He also points out that in Putnam v. Keller,37 the court upheld the denial of summary judgment for defendants who had disseminated to the faculty and staff of several campuses, as well as to the local sheriff and county attorney, stayaway letters accusing a former employee of theft and other immoral conduct.  But what is sufficient to constitute public disclosure in a stigma-plus claim will vary with the circumstances of each case.38 In determining the degree of dissemination that satisfies the public disclosure requirement, courts must look to the potential effect of dissemination on the employee s standing in the community and the foreclosure of job opportunities.39 Accordingly, in a different case, Nuttle v. Ponton,40 a student who sought employment at the college where she studied did not state a stigma-plus claim, because the judiciary file against her was not disseminated outside the college. 35 36 37 38 39 40 See State v. Norman, supra note 17. See, e.g., Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623 (2d Cir. 1996); Eberhardt v. O Malley, 17 F.3d 1023 (7th Cir. 1994); Wilcox v. Newark Valley Cent. School Dist., 107 A.D.3d 1127, 967 N.Y.S.2d 432 (2013). Putnam v. Keller, 332 F.3d 541, 547 (8th Cir. 2003). See, e.g., Brandt v. Board of Co-op. Educational Services, 820 F.2d 41 (2d Cir. 1987). Id. Nuttle v. Ponton, 544 F. Supp. 2d 175, 176 (W.D.N.Y. 2008). Nebraska Advance Sheets POTTER v. BOARD OF REGENTS 747 Cite as 287 Neb. 732 Other than the assistant vice chancellor s wife, Potter did not allege that the warning was or would be disseminated outside of east campus. There is no evidence that the e-mail is maintained as part of Potter s personnel file and will be shared with prospective employers. As explained already, the statements were unique to the circumstances existing at the time they were made, and the stigma associated with the warnings is tempered by the commonsense understanding that proactive security measures do not always target those who are genuinely dangerous. In fact, Potter admitted that none of the people whom he knew and who had received the warning changed their opinion of his character as a result. Under the circumstances, the extent of the dissemination did not threaten to seriously damage his standing and association in the community or to foreclose employment opportunities that may otherwise have been available.  Moreover, there is no material issue of fact that the statements were protected by qualified privilege. Statements protected by qualified privilege do not pass the stigmaplus test.41  Conditional or qualified privilege comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which the author has a duty public, personal, private, legal, judicial, political, moral, or social made to a person having a corresponding interest or duty.42 Whether a qualified privilege exists is a matter of law.43 The warnings here were on a subject matter to which the authors had a moral duty, and the statements were made 41 42 43 See, Abelli v. Ansonia Bd. of Educ., No. 3:12-cv-1432, 2013 WL 6587784 (D. Conn. Dec. 13, 2013); Wilcox v. Newark Valley Cent. School Dist., supra note 36; Sweet v. Tigard-Tualatin School Dist. #23J, 124 Fed. Appx. 482 (9th Cir. 2005). Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987); Helmstadter v. North Am. Biological, 5 Neb. App. 440, 559 N.W.2d 794 (1997). Id. Nebraska Advance Sheets 748 287 NEBRASKA REPORTS to persons with a corresponding interest in their well-being. Publication is privileged if made for the purpose of protecting anyone friend, employee, or stranger against violence.44 There was no evidence from which one could reasonably find actual malice in disseminating the warning pertaining to Potter s discharge. While Bockstadter and Losee may have been mistaken about the need for the measures taken, there is no indication that they acted with knowledge that Potter presented no danger the day he was terminated or with reckless disregard to the truth of such implied character charge. Not only were Bockstadter and Losee aware of Potter s past criminal convictions, which included assault, there was documentation of emotional reactions to negative feedback and social withdrawal. Most significantly, Bockstadter and Losee were left in the dark after Potter was escorted off campus by police pursuant to an outstanding warrant of an unknown nature, and they had no knowledge of Potter s whereabouts or state of mind at the time of discharge. Potter testified that he worked as a technician throughout east campus, but especially in Agricultural Hall. The call center is located in Miller Hall. Thus, there is no indication that the extent of dissemination throughout Miller Hall and Agricultural Hall was in bad faith. Likewise, there was no evidence that Losee acted in bad faith when warning the assistant vice chancellor s wife of Potter s possible arrival at their home. The assistant vice chancellor was Potter s unit director. Potter has failed to demonstrate a material issue as to whether Bockstadter and Losee violated a clearly established due process right. Indeed, we can find no other case in which a stigma-plus claim has arisen from warnings meant to protect employees and other persons believed to be in danger. Bockstadter and Losee made good faith judgments about how to best protect their employees, students, and the assistant vice chancellor s wife. They were protected by qualified immunity, and the court properly granted summary judgment in their favor. 44 See Restatement (Second) Law of Torts § 595, comment g. (1977). Nebraska Advance Sheets STATE v. YOUNG 749 Cite as 287 Neb. 749 CONCLUSION For the foregoing reasons, we affirm the judgment of the district court granting summary judgment in favor of the defendants. Affirmed. Wright and Stephan, JJ., not participating. State of Nebraska, appellee, v. Antoine D. Young, appellant. ___ N.W.2d ___ Filed March 21, 2014. No. S-13-557. 1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court s determination will not be disturbed. 2. ____: ____. In an appeal from a proceeding under the DNA Testing Act, the trial court s findings of fact will be upheld unless such findings are clearly erroneous. 3. DNA Testing. The DNA Testing Act, passed in 2001, was created to allow wrongfully convicted persons an opportunity to establish their innocence through DNA testing. 4. ____. A person in custody takes the first step toward obtaining possible relief under the DNA Testing Act by filing a motion requesting forensic DNA testing of biological material. 5. DNA Testing: Evidence. After a proper motion seeking forensic DNA testing has been filed, the State is required by Neb. Rev. Stat. § 29-4120(4) (Reissue 2008) to file an inventory of all evidence that was secured by the State or a political subdivision in connection with the case. 6. DNA Testing: Collateral Attack. An action under the DNA Testing Act is a collateral attack on a conviction and is civil in nature. 7. DNA Testing: Proof. The burden of proof under the DNA Testing Act is upon the defendant. 8. DNA Testing: Affidavits: Evidence. Under the DNA Testing Act, the defendant has the burden to provide the district court with affidavits or evidence at a hearing establishing the three required factual determinations for the district court under Neb. Rev. Stat. § 29-4120(5) (Reissue 2008). 9. DNA Testing: Evidence. Under the DNA Testing Act, DNA evidence which was available at trial but not pursued is not considered to have been unavailable. Appeal from the District Court for Douglas County: P eter C. Bataillon, Judge. Affirmed.


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This document relates to the confidentiality policies concerning personal data processed by Anci Servizi s.r.l. a Socio Unico, which manages the website https://www.cimac.it through the company White, Red & Green Milano S.r.l.
This document describes the methods for managing the processing of personal data of website users and visitors. Pursuant to current legislation on the processing of personal data, personal data provided by the data subject (also in the case of data subjects operating as sole traders, small businesses, or professionals) or its employees, agents, representatives and collaborators (hereinafter the “Data”) will be processed in accordance with the provisions of the current applicable privacy legislation, i.e. pursuant to Regulation (EU) 2016/679 (hereinafter the “GDPR”) and to national applicable legislation (Leg. Decree 196/03, as amended by Leg. Decree 101/2018). Data is processed in such a way as to ensure its safety, and in line with the principles of fairness, lawfulness and confidentiality provided for under art. 5 of the GDPR.
The Data Controller, pursuant to art. 4 of the GDPR, is Anci Servizi S.r.l. a Socio Unico, with registered offices in Milan, Via Alberto Riva Villasanta 3, and with operating premises in Vigevano, C.so Brodolini 19 and Via Aguzzafame 60/B. To contact the Data Controller, simply send an e-mail to info@cimac.it or call either +39.0381.84722 or +39.02.438291. The Data Controller has appointed a DPO, who can also be contacted as above.
Data is processed, in line with the principles of lawfulness provided for under art. 6 of the GDPR, for purposes relating to the relationship established with the Data Controller; therefore, data processing is legally justified, as required by art. 13 c) of the GDPR, by the purposes for which the relationship is established with the Data Controller, i.e. in this particular case, to access the latter’s website as a visitor or user.
The processing of data supplied to the Data Controller, for example by filling in forms, browsing the website, communicating email addresses, etc., includes managing, organising, storing, using and creating a database, as well as carrying out statistics, destroying or amending processed data at the data subject’s request or consulting same, notifying future initiatives, processing and emailing soft spam and light marketing, producing statistics, sending promotional material, erasing data and using it for conferences and meetings.
Moreover, please note that data relating to the web services offered by this website is processed on the Data Controller’s corporate premises, exclusively by employees, collaborators or third parties authorised to conduct occasional maintenance operations.
Data will be processed in paper form and/or electronically by parties specially authorised to do so. Providing data is optional, except for that acquired automatically by the system; however, it is hereby understood that upon continuing to browse the website without disabling cookies (see Cookies policy), consent shall be deemed to have been provided pursuant to art. 4, para. 11.
Data will be stored for ten years and in any case for the time required to fulfil the purpose of the collection.
Processing includes communication of data to members of the Data Controller’s organisational structure, i.e. to its consultants entrusted with managing the business, in and outside the EU (in the countries set forth in artt. 45 and 46 of the GDPR), and communication to partners with which the company organises its initiatives, all of which are appointed as external Data Protection Officers pursuant to art. 28 of the GDPR, as well as to Organisations, Institutions and Confindustria.
The Data Controller reminds the data subject that the personal Data requested and supplied does not fall under the categories of personal data listed in artt. 9 and 10 of the GDPR; consequently, the Data Controller does not process special category data.
To exercise the rights listed above or to obtain more information on the processing of your personal data, simply email info@cimac.it, stating the wording “Exercising of rights under the GDPR” in the subject line and specifying the right that you wish to exercise in the body of the email, along with your name, surname and the email address where you wish to receive the reply. Once your request has been processed, the Data Controller will send its feedback in the terms set forth in art. 12, point 3, of the GDPR.
The Data Controller informs you that the rights listed in and guaranteed by artt. 15-22 of the GDPR may not be exercised by submitting a request to the Data Controller or by lodging a complaint under art. 77 of the GDPR if exercising same could cause real, concrete injury to certain data categories and/or to certain activities listed in art. 2-undecies of Leg. Decree 196/03, as amended by Leg. Decree 101/2018; this does not prejudice the provisions, specified in paragraphs 2 and 3 of the aforementioned article, in terms of limitations, exclusions or delays in exercising rights.
During normal operations, the computer systems and software procedures used to operate this website acquire some personal data, the transmission of which is an inherent feature of Internet communication protocols. This data is only used to obtain anonymous statistical information on use of the website and to check its correct functioning, and is deleted immediately after it is processed. The data may be used to ascertain responsibility in the event of hypothetical computer crimes against the website.
The documentation, texts, images, brands and anything else published and reproduced on this website is the property of Anci Servizi S.r.l. a Socio Unico and/or licensed to same by third parties. All the contents of this website are protected by the provisions of law relating to copyright and intellectual property. Any reproduction thereof, even in part, is forbidden.
Anci Servizi S.r.l. a Socio Unico shall not be held liable either for the content of the information published on this website or for the use that third parties may make of same, due to any contamination deriving from website access, interconnection, or downloading of material or software from this website. Consequently, Anci Servizi S.r.l. a Socio Unico shall not be held liable or in any way obliged to answer for any damage, loss or harm that third parties may suffer as a result of coming into contact with this website or as a result of its use and reliance of the information published on same or of any connected software.
The material and information available on the website may be changed or updated without notice.
Although Anci Servizi S.r.l. a Socio Unico uses the utmost care when uploading information on the website, the latter takes no responsibility regarding the accuracy and completeness of the information provided, the use of which is at the sole risk of the user. Placing said information at the disposal of the user does not grant any licenses on copyrights, patents or any other intellectual property right.
The Data Controller regularly reviews its compliance with these privacy regulations, which it adapts regularly to reflect the latest requirements.
If you have any questions or concerns regarding these privacy regulations, you can contact the DPO at any time by writing to: info@cimac.it.
We respond to all users who lodge a formal written complaint to this address in order to get to the bottom of the problem reported. We undertake to cooperate with the competent authorities to resolve any complaints regarding the transfer of personal data that should not be resolved directly between the Data Controller and private individuals.

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