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https://www.courtlistener.com/api/rest/v3/opinions/7218082/

ORDER This successive appeal arises from a summary judgment in favor of Re/Max North Central, Inc. (“Re/Max”). When this case was last before this Court, we reviewed the district court’s decision to grant Re/Max a preliminary injunction against Patricia Cook’s continued use of Re/Max’s marks and logos. In affirming the court’s decision, we concluded that Re/ Max demonstrated that (1) it would likely succeed on the merits, (2) it would suffer irreparable injury if the injunction was not granted, and (3) the trial judge had carefully and properly weighed the harm each party would likely suffer and, nonetheless, found that Cook failed to establish that she would suffer irreparable harm. Re/Max North Central, Inc. v. Cook, 272 F.3d 424, 433 (7th Cir.2001). On this return trip Cook asks this Court to review whether the district court’s granting of Re/Max’s motion for summary judgment was proper. We hold that it was. I. BACKGROUND In 1993, Cook and Re/Max entered into a franchise agreement that gave Cook the right to operate a Re/Max real estate office for a renewable five year term and required, as a condition for renewal, that Cook hire five sales associates by mid-1996. On May 1, 1998, Re/Max mailed Cook a notice of termination citing her failure to meet the sales associate hiring quota as the reason for termination.1 The notice of termination extended Cook’s franchise for six months under Article 6.D of the 1993 agreement.2 After sending a second notice in October 1998, verifying that Cook’s franchise would be terminated as of the first of November in the following month, Re/Max concluded that a termination would violate the Wisconsin Fair Dealership Law (‘WFDL”) because Cook had not been provided with 60 days to cure her franchise’s default. Re/Max then decided to rescind the two prior notices and, in a letter dated November 25, again extended the term of Cook’s franchise on a month to month basis. That letter further served as notice to Cook that her franchise would be terminated if she failed to cure her associate hiring default within 60 days, as required by Wis. Stat. § 135.04. In a February 17, 1999, letter to Cook, Re/Max acknowledged that Cook had cured her default by hiring the requisite number of sales associates3 and informed *564Cook that, “Renewal materials, including RE/MAX North Central’s current form of franchise agreement, [would] be forwarded to [her] shortly.” On April 22, Re/Max mailed Cook a copy of its 1999 franchise agreement on file with the State of Wisconsin, but Cook refused to sign the document primarily because it required her to maintain five sales associates throughout the five year term of the agreement even though Cook wished to retain only two sales associates. After extensive negotiations between Cook and Re/Max concerning the sales associate quota, the parties agreed that the quota would remain at five. However, when Re/Max provided Cook with another 1999 agreement to sign, she unilaterally without discussion reduced the number of sales associates required by the agreement to two associates in the first two years and three associates in the final three years. Re/Max declined to accept Cook’s proposed changes and in January of 2000, Re/Max once again initiated procedures to terminate Cook’s franchise. Cook’s franchise was ultimately terminated the following August. In October of 2000, Re/Max filed suit against Cook under the Lanham Act4 alleging trademar infringement because Cook continued to use Re/Max’s marks and logos subsequent to her franchise’s termination. Cook filed a counterclaim alleging that Re/Max had unlawfully terminated her franchise rights. The district court granted Re/Max’s motion for a preliminary injunction, affirmed by this Court, Re/Max, 272 F.3d at 426, and later granted Re/Max’s motion for summary judgment. Cook, taking a third shot at the apple, returns to this Court asking for relief from the summary judgment order. Re/Max cross-appeals the district court’s damage award of $10,304.81. Specifically, Re/Max argues that the court abused its discretion by denying Re/Max treble damages and attorneys’ fees. II. DISCUSSION This Court reviews the district court’s grant of Re/Max’s motion for summary judgment de novo. Albiero v. City of Kankakee, 246 F.3d 927, 931 (7th Cir.2001). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Id. Before the district court, Cook argued that Re/Max’s motion for summary judgment should have been denied because Re/Max had committed two violations of the WFDL. Cook first claimed that Re/Max’s year 2000 franchise agreement, which was tendered to Cook for her signature in March of 2000, changed the competitive circumstances of Cook’s dealership. Cook also alleged that Re/Max had not provided Cook with 60 days to cure her default after giving her notice in January of 2000 that she was in default for faffing to renew her franchise contract. The district court rejected both arguments and Cook has abandoned them in her current appeal. Instead, Cook claims that Re/Max was obligated to provide her with an opportunity to renew her franchise under the 1998 agreement because the 1998 agreement was the form of Re/Max’s franchise contract on February 17, 1999-the date Re/ Max acknowledged that Cook had cured her default by hiring five sales associates. By faffing to offer her the 1998 agreement, Cook contends that Re/Max violated the WFDL, specifically Wis. Stat. § 135.03,5 and breached the 1993 franchise contract. *565We do not reach the merits of Cook’s appeal, however, because Cook failed to argue that she was entitled to the 1998 agreement while opposing summary judgment in the district court. In fact, in her sixteen page response to Re/Max’s motion for summary judgment, Cook not even once mentions the 1998 agreement, let alone that Re/Max’s failure to tender the 1998 agreement somehow precluded summary judgment. “It is well-established that a party waives the right to argue an issue on appeal if he fails to raise that issue before the trial court.” Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.2002); accord Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir.1999); see also Laborers’ Intern. Union of North America v. Caruso, 197 F.3d 1195, 1197 (7th Cir.1999) (“ ‘We have long refused to consider arguments that were not presented to the district court in response to summary judgment motions.’ ”) (quoting Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.1996)). Cook’s waiver is further evidenced by the fact that the 1998 agreement is not found in the record, even though the record includes the 1993 and the 1999 agreements. Moving on to Re/Max’s cross-appeal of the damage award, this Court re-views the adequacy of monetary relief awarded under the Lanham Act and a denial of attorneys’ fees for an abuse of discretion. BASF Corp. v. Old World Trading Co., Inc., 41 F.3d 1081, 1092, 1099 (7th Cir.1994). Re/Max argues that the district court should have found that Cook’s infringement on Re/Max’s marks was willful and deliberate, thus justifying an award of treble damages and attorneys’ fees. Re/Max’s argument ignores that, “The discretion given by the Lanham Act6 to increase an award of lost profits if the circumstances warrant is to be exercised by the trial court and not by the court of appeals.” Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 745 (7th Cir.1985); see also BASF Corp., 41 F.3d at 1096 (“Enhancement of an award of damages is clearly committed to the district' court.”). If the circumstances warrant, it is solely within the district court’s discretion to enhance damages under the Lanham Act. Thus, we cannot say that the district court abused its discretion when refusing to do so. Re/Max’s argument that it is entitled to attorneys’ fees under Article 17 of the 1993 agreement7 is unsupported by citation to relevant authority 8 and, therefor, waived for lack of devel*566opment. United States v. Hook, 195 F.3d 299, 309-10 (7th Cir.1999) (stating that issues “present[ed] on appeal lacking] any degree of development in [the] briefs ... merit only our briefest attention. A party’s failure to address or develop a claim in its opening brief constitutes a waiver of that claim, for ‘[i]t is not the obligation of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel.’ ” (quoting Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir.1998))). Affirmed . Not only had Cook failed to meet the quota, she was the only sales associate in the office. . Article 6.D of the 1993 contract dictated the terms under which Cook's franchise operated as of May 1, 1998: If Franchisee continues to operate the Franchise after the end of the initial period ... without proper renewal and with the written consent of Subfranchisor, Franchisee shall be deemed to be operating on a month to month basis under the terms and conditions of the agreements then used by Subfranchisor for granting of new franchises within the state.... . To cure her default, Cook hired several family members as sales associates. . 15U.S.C. § 1051, etseq. . Wis. Stat. § 135.03 is entitled "Cancellation and alteration of dealerships,” and provides, "No grantor, directly or through any officer, agent or employee, may terminate, cancel, fail to renew or substantially change the competí*565tive circumstances of a dealership agreement without good cause. The burden of proving good cause is on the grantor.” . The Lanham Act states, "In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount.... The court in exceptional cases may award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). . Article 17 of the 1993 agreement states, “If Franchisee defaults in the performance of its obligations under this agreement, Franchisee shall pay to Subfranchisor, upon demand by Subfranchisor, the costs and expenses, including reasonable attorney’s fees, incurred by Subfranchisor, as a result of enforcing the provisions of this agreement.” . Re/Max cites only the Fifth Circuit case of McDonald’s Corp. v. Watson, 69 F.3d 36 (5th Cir.1995), in support of its argument that it is contractually entitled to attorneys’ fees. Watson, however, does not strengthen Re/Max’s position because it holds that, "The district court abuses its discretion if it awards contractually-authorized attorneys' fees under circumstances that make the award inequitable or unreasonable or fails to award such fees in a situation where inequity will not result.” Id. at 45-46. The district court concluded that because Cook validly contested the abrogation of the franchise and it was undisputed that her loss of the right to use Re/Max’s trademark would cost Cook roughly *56670% of her client base, the equities weighed against a contractual award attorneys’ fees.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218083/

ORDER Iva Hubbell, widow of deceased coal miner Ray Hubbell, filed a petition seeking federal black lung survivor’s benefits pursuant to the Black Lung Benefits Act, *56730U.S.C. § 901 et seq. An administrative law judge granted Ms. Hubbell’s claim and awarded her benefits, concluding that Mr. Hubbell’s death was caused, at least in part, by pneumoconiosis, also known as black lung disease. Mr. Hubbell’s former employer, Peabody Coal Company, and its insurer, Old Republic Insurance Company (collectively “Peabody”), appealed to the Benefits Review Board of the Department of Labor (“Board”), which affirmed the ALJ’s decision on initial review and again on reconsideration. Peabody now appeals, arguing that the ALJ wrongly credited the unsupported diagnosis of a treating physician in concluding that pneumoconiosis hastened Mr. Hubbell’s death. We affirm. BACKGROUND Mr. Hubbell was born in 1918 and worked 43 years as a Peabody coal miner in Jasonville, Indiana. He married Ms. Hubbell in July 1940, and retired from mining in June 1981. Mr. Hubbell also smoked cigarettes for a long period of time. Mr. Hubbell filed unsuccessful claims for disability benefits in September 1981 and December 1984. He filed another petition in November 1992, claiming that he was totally disabled due to pneumoconiosis, a chronic dust disease of the lungs arising from coal mine employment, see 20 C.F.R. § 718.201(a). In October 1996, Mr. Hub-bell was diagnosed with lung cancer. Dr. B. Jailwala provided him with radiation therapy, ruling out surgery due to the location of the tumor and his overall weak medical condition. Mr. Hubbell died in December 1996 while his petition was pending. His death certificate listed pneumoconiosis and lung cancer as the causes of death. The ALJ ultimately denied Mr. Hubbell’s final disability petition, concluding that, even though Mr. Hubbell had pneumoconiosis and was totally disabled, he nevertheless failed to establish that the disease had caused his total disability. The denial of Mr. Hubbell’s disability benefits petition has not been challenged on appeal. In March 1997 Ms. Hubbell filed a claim for survivor’s benefits, the subject of this appeal. In November 2000, the ALJ granted Ms. Hubbell’s petition and awarded her survivor’s benefits, concluding that pneumoconiosis hastened her husband’s death. See 20 C.F.R. § 718.205(c)(2). In reaching this determination, the ALJ reviewed medical evidence from Mr. Hub-bell’s previous applications, as well as additional x-ray evidence and medical opinions from several physicians. The ALJ first concluded that Mr. Hub-bell had pneumoconiosis under the criteria set forth in 20 C.F.R. § 718.202(a)(1) and (a)(4). See Peabody Coal Co. v. Dir., Office of Workers’ Comp. Programs, 972 F.2d 178, 181 (7th Cir.1992). Under § 718.202(a)(1), pneumoconiosis may be established by positive chest x-ray evidence. See Freeman United Coal Mining Co. v. Cooper, 965 F.2d 443, 447 (7th Cir.1992). The ALJ considered Mr. Hubbell’s extensive x-ray history, consisting of 36 conflicting readings taken from 1981 through 1996. None of the readings taken from 1981 through late 1992 were positive for the disease. But subsequent readings taken in December 1992, June 1993 and May 1994 were positive. More recent readings from May 7, 1994 through November 1996, however, disclosed no evidence of the disease. Still, the ALJ concluded that pneumoconiosis had been established by a preponderance of the x-ray evidence under § 718.202(a)(1). The ALJ cited the positive readings taken from 1992 through 1994, and noted that the x-rays taken since January 1994 were inconclusive because they had been taken during Mr. Hubbell’s *568hospital stays and were not necessarily read to detect pneumoconiosis. He also concluded that a finding of pneumoconiosis was bolstered by the fact that several x-rays revealed the presence of chronic obstructive pulmonary disease (“COPD”), which qualifies as “legal pneumoconiosis” if it is related to coal mine employment.* See 20 C.F.R. § 718.201(a)(2); Livermore v. Amax Coal Co., 297 F.3d 668, 670-71 (7th Cir.2002). The ALJ also found that pneumoconiosis had been established by well-reasoned medical opinion notwithstanding the presence of negative x-ray evidence under § 718.202(a)(4). See Newell v. Dir., Office of Workers’ Comp. Programs, 933 F.2d 510, 511 n. 2 (7th Cir.1991). Specifically, he cited the opinions of Dr. Robert Avena, Mr. Hubbell’s treating physician for his final three years who diagnosed pneumoconiosis; Dr. Frederick Ridge, who listed the disease as one of the causes of death; and Dr. Anand Bhuptani, who suspected that Mr. Hubbell had COPD, and hinted that it was related to his exposure to coal dust. Peabody does not contest that Mr. Hub-bell had pneumoconiosis; instead, it takes issue with the ALJ’s conclusion that Mr. Hubbell’s pneumoconiosis hastened his death under 20 C.F.R. § 718.205(c)(2). See Peabody Coal Co., 972 F.2d at 183-84 (recognizing that any condition that hastens death qualifies as a “substantially contributing cause or factor leading to death” under § 718.205(c)(2)); see also Livermore, 297 F.3d at 671. In doing so, the ALJ considered the death certificate, as well as the medical opinions of five physicians—Drs. Avena, Long, Bhuptani, Koenig and Tuteur. The ALJ placed “no particular weight” on the death certificate, (Ms. Hubbell Ex.3-A), because there was no evidence that the physician who signed it, Dr. Ridge, had treated Mr. Hubbell or that he was familiar with his condition, smoking history, employment history or medical data. Moreover, Dr. Ridge’s credentials were not in the record. The ALJ gave considerable weight to the opinion of Dr. Avena, Mr. Hubbell’s last treating physician. Dr. Avena had first examined Mr. Hubbell in January 1994, after he was admitted to Terre Haute Regional Hospital. Dr. Avena examined him nine times over the next three years and noted the presence of pneumoconiosis among a variety of other ailments. His final diagnosis, made two weeks before Mr. Hubbell’s death, listed the presence of lung cancer, black lung and COPD. He then listed the causes of death as respiratory arrest secondary to lung cancer, black lung and COPD. Dr. Avena’s pneumoconiosis diagnosis was seconded by Dr. Sarah B. Long, who provided a short medical opinion in August 1997 at the request of the Department of Labor. Dr. Long concluded that Mr. Hub-bell had died of lung cancer, but added that pneumoconiosis was a contributing factor. The ALJ, however, placed little weight on her opinion because the medical evidence on which she relied was not in the record, though he did make a finding that her opinion supported Dr. Avena’s conclusion. Dr. Bhuptani, board-certified in internal medicine and pulmonary disease, examined Mr. Hubbell in August 1994 at Dr. Avena’s request. Dr. Bhuptani diagnosed Mr. Hubbell with chronic bronchitis, and also suspected the presence of COPD. He also noted a history of coal-dust exposure. But because Dr. Bhuptani did not provide an etiology for the diagnosed conditions, the ALJ found that his report neither supported nor refuted a finding of pneumoconiosis. *569Dr. Steven Koenig, who is board-certified in internal medicine, critical care medicine, and pulmonary disease, reviewed Mr. Hubbell’s medical data in March 2000. Dr. Koenig did not diagnose pneumoconiosis. He opined that Mr. Hubbell had a totally disabling pulmonary impairment due to obstructive lung disease, including chronic bronchitis and emphysema. He stated that it was impossible to determine whether the emphysema was caused exclusively by coal dust or by cigarette smoking. Consequently, Dr. Koenig diagnosed both as causing his impairment. Dr. Koenig concluded that coal dust exposure could have significantly contributed to and hastened Mr. Hubbell’s death, which in his view was caused by respiratory arrest brought on by COPD and lung cancer. The ALJ believed that Dr. Koenig’s opinion was “too equivocal to merit much weight” because he did not explicitly link the COPD to coal-dust exposure; instead, he stated merely that exposure could have caused it. Dr. Peter Tuteur, who is board-certified in internal medicine and pulmonary disease, reviewed medical evidence in 1998. Unlike the other physicians, Dr. Tuteur opined that Mr. Hubbell died only from lung cancer caused by his cigarette smoking, and that he did not have pneumoconiosis. In Dr. Tuteur’s view, Mr. Hubbell’s symptoms were not consistent with any coal-dust related disease or impairment. Dr. Tuteur also did not believe that pneumoconiosis hastened Mr. Hubbell’s death. Though the ALJ “placed great weight” on Dr. Tuteur’s opinion that lung cancer was a cause of death, he concluded that the physician’s failure to address the possible consequences of other respiratory ailments undermined the value of the rest of the opinion. In light of all of this evidence, the ALJ decided that Ms. Hubbell should be awarded survivor’s benefits: Consequently, I am persuaded by the opinion of Dr. Avena, as bolstered by the findings of Drs. Long and Ridge, that pneumoconiosis at least hastened Mr. Hubbell’s death. This opinion is further supported by the miner’s 48 years of coal mine employment which exposed him to significant coal dust, and his documented respiratory disability. Therefore, I find Mrs. Hubbell is entitled to survivor’s benefits. (App. at 29.) ANALYSIS Although Peabody appeals the Board’s decision, we review the decision of the ALJ to ensure that is rational, supported by substantial evidence, and consistent with governing law. Peabody Coal Co. v. Estate of Goodloe, 299 F.3d 666, 670 (7th Cir.2002). The burden is on the claimant to establish that a miner died of pneumoconiosis or that it substantially contributed to his death. 20 C.F.R. § 718.205(a). Ms. Hubbell was required to establish by “competent medical evidence” that pneumoconiosis contributed to Mr. Hubbell’s death. Id. § 718.205(c)(1); Livermore, 297 F.3d at 671. On appeal, Peabody makes but one argument—that the ALJ’s decision to award benefits was legally flawed because it was based solely on the unsupported opinion of Dr. Avena, whom the ALJ credited merely because he was Mr. Hubbefl’s treating physician. As such, the decision was inconsistent with Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir.2001), which held that ALJs must have a medical reason for preferring one physician’s conclusion over that of another. Id. at 469-70. In McCandless, an ALJ credited the opinion of Dr. Henry Bockelman, a board-certified pathologist who after performing an autopsy concluded that a deceased miner had suffered from pneumoconiosis. Id. at 467. Dr. Bockelman’s opinion contra-*570dieted those of five other board-certified physicians, all of whom examined tissue slides from the autopsy and saw no evidence of the disease. Id. The ALJ, however, credited Dr. Bockelman’s opinion over the others because he performed the autopsy. Id. This court overturned the ALJ’s decision as irrational because it had no medical basis. Id. at 468. It noted that there was no medical reason to believe that the visual scrutiny of gross attributes was a more rehable way to diagnose pneumoconiosis than the microscopic examination of tissue samples. Id. Similarly, in evaluating whether the miner’s pneumoconiosis was disabling, the McCandless court concluded that the ALJ wrongly credited the miner’s treating physician, who said that the disease was disabling, in contrast to the view of several medical assessments. The McCandless court observed that an ALJ should only credit the treating physician’s opinion if there is a medical reason for doing so. Id. at 470. This court stressed that a physician’s beliefs “must be supported by medical reasons if they are to be given legal effect.” Id. Peabody argues that this case is controlled by McCandless and therefore must be set aside. But contrary to its assertion, we believe that the ALJ’s order is consistent with McCandless, as well as a later case, Zeigler Coal Co. v. Dir., Office of Workers’ Comp. Programs, 312 F.3d 332, 335 (7th Cir.2002). In Zeigler, this court affirmed an award of survivor’s benefits that was based primarily on the opinion of the treating physician. Zeigler made the same argument advanced now by Peabody; that the ALJ violated the principles espoused in McCandless by crediting the treating physician’s opinion over that of Dr. Tuteur who reviewed medical evidence in this case. Id. at 335. The ALJ in Zeigler rejected Dr. Tuteur’s opinion in favor of the treating physician’s opinion that the miner’s weakened state attributable to pneumoconiosis hastened his death from colon cancer. Id. at 334-35. Zeigler argued under McCandless that the treating physician’s diagnosis was unsupported by medical reasoning. Id. at 335. This court rejected that argument, however, concluding that the treating physician’s opinion had a medical basis: [Zeigler] relies on McCandless [citation omitted] for the proposition that medical diagnoses must be supported by medical reasoning. True enough, but as the Secretary observed when promulgating § 718.205(c)(5), the proposition that persons weakened by pneumoconiosis may expire quicker from other diseases is a medical point, with some empirical support. See 65 Fed.Reg. 79,920, 79,950 (Dec. 20, 2000). Whether this was true of Eugene [the miner] is a question that depends on the state of his physical health and mental health, a subject about which Ridge [the treating physician] professed to be knowledgeable. Id. at 335. Like the physician in Zeigler, Dr. Avena observed and noted Mr. Hub-bell’s physical deterioration over the course of three years and was very familiar with his mental and physical condition. And that familiarity and care is a recognized medical basis for crediting Dr. Avena’s view that pneumoconiosis contributed to Mr. Hubbell’s death, see id., particularly since Mr. Hubbell’s overall weak medical condition contributed to the decision to avoid surgery for his lung cancer. The ALJ not only had a medical reason for crediting Dr. Avena’s opinion, he also correctly discounted Dr. Tuteur’s opinion. The evidence presented in this case was similar to that submitted in Zeigler. And in Zeigler, this court pointed out that there was no evidence in the record to counter the treating physician’s view: Black lung disease weakens its victims, but maybe not in ways that matter for particular maladies. But Zeigler did not *571offer such evidence. Perhaps it does not exist—or perhaps it exists but favors miners by showing that black lung does hasten death from cancer. Either way, there is nothing in the record to counter Ridge’s conclusion, which therefore supplies substantial evidence to support the administrative decision. Id. These same infirmities were present in this case. Neither Dr. Avena nor Dr. Tutelar is a cancer specialist, but at least a treating physician like Dr. Avena had the advantage of observing whether Mr. Hub-bell’s pulmonary problems affected his ability to withstand the effects of cancer. Id. at 386. AFFIRMED

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218084/

ORDER Bettie J. Peppers, an employee of the United States Department of the Army, sued the Department and its secretary, Thomas E. White, Jr., alleging that she had been discriminated against on the basis of her sex and race in violation of Title VII of the Civil Rights Act of 1964. The matter was referred to a magistrate judge for discovery poorposes. After Peppers violated three court orders to supply adequate answers to the government’s discov*572ery requests, the government moved to dismiss the case as a discovery sanction pursuant to Fed.R.Civ.P. 37. Noting that he had previously warned Peppers that further refusal to comply with the court’s discovery orders would lead to dismissal of her case, the magistrate judge entered a report recommending that the district court dismiss her case. Although the magistrate judge specifically informed Peppers that she had to file objections to his report within 10 days or she would waive any objections on appeal, Peppers did not file any objections. The district judge adopted the magistrate judge’s report and dismissed the case, and Peppers appeals. Peppers’s appeal is frivolous for two reasons and must be dismissed. First, her brief violates Fed.R.Civ.P. 28(a)(9)(A) because Peppers has provided no coherent argument supported by relevant authority why the district court’s dismissal of her case is erroneous. The sum of her argument is that “I strongly disagree with the basis for which the District Court dismissed my complaint,” but her failure to provide any reason why the district court’s decision was erroneous dooms her appeal. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). Second, Peppers could not raise any challenge to the district judge’s decision to adopt the magistrate’s report because she did not object to it and has waived any arguments she may have. See 28 U.S.C. § 636(b)(1); Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.1999). Accordingly, we DISMISS Peppers’s appeal as frivolous.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218085/

ORDER Joseph Atchison pleaded guilty to possession with intent to distribute 5 or more grams of methamphetamine, 21 U.S.C. § 841(a)(1), carrying a firearm during and in relation to a drug-trafficking crime, 18 U.S.C. § 924(c), and possessing a handgun as a user of unlawful controlled substances, id. § 922(g)(3). In his plea agreement Atchison reserved the right to appeal the denial of his motion to suppress the evidence that led to the charges. Fed. R. Crim.P. 11(a)(2). The district court imposed concurrent terms of 66 months’ imprisonment on the first and third counts and a 60-month, mandatory consecutive term on the second count. Atchison filed a notice of appeal, but his lawyer now moves to withdraw because he believes that all grounds for appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s brief is facially adequate, and Atchison has responded under Circuit Rule 51(b), so we confine our attention to the potential issue identified both by counsel and Atchison. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). Counsel and Atchison consider one possibility: whether it would be frivolous to argue that the district court improperly denied the motion to suppress. In reviewing the district court’s ruling, we would examine questions of law de novo and the district court’s findings of fact for clear error. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Yang, 286 F.3d 940, 944 (7th Cir.2002). The district court denied the motion after an evidentiary hearing at which Atchison and Patrolman James Anderson of the Elkhart, Indiana, police department testified. Patrolman Anderson explained that on April 22, 2002, he was dispatched to a middle-class neighborhood in Elkhart to investigate a suspicious man who had red hair and a green coat and was carrying some bags. Atchison fit the description, so Anderson stopped his police cruiser and asked him if he would mind coming over to talk. Atchison agreed, and Anderson began by asking for identification, which Atchison did not have. At that point Anderson activated an audiovisual recorder in his cruiser by pushing a remote switch located on his belt. The tape begins with Atchison saying that he did not have any identification. It then shows Anderson asking for Atchison’s name, birth date, and social security number. Atchison answered these questions, and Anderson called the name in over the radio. Just over a minute later, the dispatcher radioed back that an outstanding warrant might exist under Atchison’s name. Anderson responded by relaying Atchison’s birth date and social security number and by continuing to ask Atchison questions (along with a detective who had arrived on the scene). Just over two minutes later Atchison asked if he could leave, to which Anderson responded, “Not just *574yet.” Another minute of conversation ensued, and the dispatcher confirmed that a warrant was “in hand” for $1539 in unpaid bills. Anderson then arrested Atchison, who tried to flee, and discovered a .45 caliber handgun, methamphetamine, cocaine, marijuana, plastic bags, and a camcorder in his backpack. At the hearing Atchison told a different story. He testified that before Anderson activated the recorder he asked whether he could leave and Anderson replied that he could not. Only then, Atchison testified, did Anderson ask for identification and start the recorder. In support of this chronology, Atchison introduced Anderson’s official report describing the arrest. In the report Anderson wrote that when Atchison asked to leave he replied, ‘“Wait a minute, I have to check some things.’ ” Then, the report reflects, Anderson asked for identification (at which point all agree that the tape begins). Anderson testified on redirect, however, that his report inaccurately described the point at which Atchison asked if he could go. The district court credited this explanation and found that Atchison was free to leave until after it was discovered that a warrant might exist for his arrest. The potential issue identified by counsel and Atchison is whether to argue that the court’s finding is clearly erroneous. We agree with counsel that it indeed would be frivolous to make such an argument because the district court was entitled to choose between competing versions of what happened. See, e.g., United, States v. Pedroza, 269 F.3d 821, 825-26 (7th Cir.2001). Atchison did not contend in the district court that his motion should have been granted if the court rejected his account of the arrest. In any event such an argument also would be frivolous. The Supreme Court and this court have repeatedly explained that Fourth Amendment protections do not arise when the police simply approach persons on the street and pose questions, ask for identification, or request consent to search their belongings-provided that the officers do not induce cooperation by coercive means. United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002); United States v. Childs, 277 F.3d 947, 950 (7th Cir.2002) (en banc). Here Anderson pulled up behind Atchison in broad daylight and asked if they could talk. Anderson did not suggest that Atchison could not leave, for example, by activating his lights and siren, displaying his gun, ordering Atchison to stop, using a strong tone, or physically touching Atchison. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Michigan v. Chesternut, 486 U.S. 567, 575, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). And by the time Atchison asked to leave, Anderson suspected that there was an outstanding warrant. Reasonable suspicion of prior criminal activity justifies a brief investigatory stop, Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Jackson, 300 F.3d 740, 745 (7th Cir.2002), and discovering that the warrant actually exists permits custodial detention. Thus, an argument that the district court should have suppressed the evidence obtained as a result of Atchison’s arrest would be frivolous. In his Rule 51(b) response, Atchison also expresses dissatisfaction with his lawyer’s performance, but he does not identify a particular concern that would amount to a potential issue for appeal. And even if this complaint amounted to a potential issue, we have noted in many cases that claims of ineffective assistance of counsel *575are rarely appropriate on direct review because the record typically is insufficient for a complete review. See, e.g., United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). The motion to withdraw is GRANTED, and the appeal is DISMISSED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218087/

ORDER After a jury trial Sandra Wright was convicted of bank fraud, 18 U.S.C. § 1344, in 1995. She served 51 months in federal prison, and then began a five-year term of supervised release. The conditions of her supervised release included a standard prohibition on committing any federal, state, or local crime as well as an order to pay restitution. Almost three years into Wright’s term of supervision, her probation officer filed a petition in the district court alleging that Wright had violated these conditions by committing three counts of battery one afternoon at a WalMart store and by failing to make restitution payments. The district court held a revocation hearing pursuant to Federal Rule of Criminal Procedure 32.1(2), at which Wright was represented by counsel. Among those testifying were Wright, a WalMart store clerk, and a police officer who arrived after the alleged batteries took place. Although the court discounted Wright’s testimony and the second-hand accounts of the police officer, it credited the clerk’s statement that Wright had shoved a shopping cart *579into an acquaintance during a heated argument. The court therefore found by a preponderance of the evidence that Wright had violated the conditions of her supervised release by committing one .count of battery; the petition’s other allegations were dismissed. As punishment, the court sentenced Wright to eight months’ imprisonment and a new supervised release term of two years. Wright appeals, but her counsel, believing all potential appellate arguments are frivolous, seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wright responded to our Circuit Rule 51(b) invitation to identify potential arguments other than those set forth in counsel’s facially adequate brief but has not identified any non-frivolous arguments. As we agree that the issues identified by counsel are frivolous, we grant counsel’s motion and dismiss the appeal. We begin with the potential arguments counsel identifies. First, he considers whether it would be frivolous to contend that the district court erred in finding that Wright had violated the terms of her supervised release, a determination we would review for an abuse of discretion. See United States v. Dillard, 910 F.2d 461, 464 (7th Cir.1990). As counsel notes, this case involved a simple dispute turning on a stark credibility finding: believe Wright’s testimony that she did not shove the shopping-cart into her acquaintance, or believe the clerk’s testimony that she did. We give special deference to such credibility determinations, United States v. Willis, 300 F.3d 803, 806 (7th Cir.2002), and can perceive nothing in the record suggesting that the district court erred by believing the clerk over Wright. The clerk’s testimony sufficiently supported the conclusion that Wright had committed battery under Indiana law, see Ind.Code § 35-42-2-l(a), and so we agree with counsel that it would be frivolous to argue that the district court abused its discretion in finding that Wright breached the condition that she commit no new crimes. Counsel next queries whether there is a non-frivolous argument that the district court erred in sentencing Wright for the violation. Counsel notes that Wright’s past misconduct placed her in criminal history category V and that this battery amounted to a Grade C violation because under Indiana law it was punishable by less than one year in prison. See U.S.S.G. § 7B1.1(3); Ind.Code § 35-50-3-3. Cross-referencing to U.S.S.G. § 7B1.4 reveals that the imprisonment range for Wright’s violation was seven to thirteen months. In sentencing Wright to eight months’ imprisonment, the district court discussed in open court the factors set forth in 18 U.S.C. § 3553(a). Further, the district court’s imposition of an additional two years’ supervised release was in accordance with 18 U.S.C. § 3583(h), which, as counsel notes, authorized the district court to require that Wright spend up to 52 months on additional supervised release. As we perceive no errors in the calculation or imposition of Wright’s sentence, we agree with counsel that any sentencing-related argument would be frivolous. Wright identifies two potential issues. First, she asks whether she could challenge her underlying conviction for bank fraud in this proceeding. The answer is no. See United States v. Thomas, 934 F.2d 840, 846 (7th Cir.1991); United States v. Wright, 2 F.3d 175, 180 (6th Cir.1993); United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.1993); see also United States v. Hofierka, 83 F.3d 357, 363 (11th Cir.1996) (per curiam) (“[A] supervised release revocation proceeding is not the proper forum in which to attack the conviction giving rise to the revocation.”). *580She also wonders whether she needed to be convicted of the battery charge before her supervised release could be revoked on that basis. Again, the answer is no. See United States v. Fleming, 9 F.3d 1253, 1254 (7th Cir.1993) (per curiam). Accordingly, we Grant counsel’s motion and Dismiss this appeal.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218088/

ORDER On January 29, 2002, shortly after 5:45 p.m., Charlie Washington was working in his garage when he was robbed by three dark-hooded assailants. The men, each holding a gun, ordered Washington to the ground, where he was kicked, threatened, and relieved of $250 in cash. Washington later learned from an unidentified neighborhood source that a man named “Fish” had bragged about the robbery. Washing*581ton went to the police with this information and was asked to examine a photo line-up. He selected the image of Richard Jones— a.k.a. “Fish”—and identified him as one of the assailants. Jones was arrested on March 6, 2002, and charged with robbery and confinement. But when Washington refused to name the person who told him of “Fish’s” involvement in the robbery, the Indiana state court dismissed the charges. Jones, however, was still on federal probation following a conviction in 2001 for distributing marijuana. The conditions of his probation included a ban on possessing any firearm and an instruction not to commit any federal, state, or local crime. Therefore, when the state court dismissed the charges against Jones, the probation office petitioned for revocation. ° A hearing was held at which Jones denied involvement in the robbery, insisting that he was working in the housewares department of a local K-Mart store at the time. To back up his alibi, he produced a computer-generated time-card for the day of the robbery, showing a clock-in time of 4:29 p.m. and a clock-out time of 10:02 p.m. He testified that it is impossible for an employee to have another person clock in and out, as a manager is always on-duty nearby to hand out shift assignments. He also testified that it is impossible for an employee to leave work during his shift without his absence being noticed by supervisors. But Jones presented no testimony from anyone who actually saw him at work that day or from anyone who could verify K-Mart’s timekeeping procedures and supervisory vigilance. Washington was also present at the hearing and positively identified Jones as one of the robbers. He testified that before lying down he was able to look at his assailants for a period of time—at one point he said he saw them for three to five seconds; later he estimated up to a minute. He also testified that he did not personally know anyone named “Fish,” and that no one had pointed Jones out to him before the photo line-up. To further support its case, the government pointed out that a few days after the robbery Jones abandoned his job at the K-Mart. The government also referred to testimony given by ATF Special Agent Eric Ellis at an earlier detention hearing. The exact content of that testimony is unclear (and the record contains no transcript of the hearing), but it appears that Ellis spoke to someone in K-Mart’s human resources department, and may have been told that management was uncertain of Jones’s whereabouts at the time of the robbery. On the basis of the testimony given and the documents submitted, the district judge declared himself reasonably satisfied that Jones had violated the conditions of his probation. Jones’s probation was therefore revoked and Jones was imprisoned for 23 months. To revoke probation, the district court need only be “reasonably satisfied” that the defendant has violated its terms. United States v. Hopson, 39 F.3d 795, 801 (7th Cir.1994). The decision is reviewed for abuse of discretion. Id. To the extent that the court’s decision to revoke probation depends on a determination of credibility, that decision is all but conclusive. See United States v. Yusuff, 96 F.3d 982, 986 (7th Cir.1996). However, the decision can be reversed if the credibility determination is exceedingly implausible. See id. This can be the case if the defendant’s version of the story is supported by indisputable documentary evidence. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993). In this case, the computer-generated time-card on which Jones rests his defense appears to be authentic. However, its value in establishing his alibi depends almost entirely on Jones’s own testimony. If one *582does not believe his report that a K-Mart manager directly oversees the clocking-in of employees and that his supervisors would necessarily notice if he was absent from his post, then it remains plausible either that someone else clocked in and out on Jones’s behalf or that Jones himself clocked in only to leave work soon after. The decision in this case therefore rests on a determination of credibility. Although Washington, by his own account, saw his hooded assailants for only a few seconds, the judge did not clearly abuse his discretion in choosing to credit the veracity and reliability of his testimony. We therefore AFFIRM the district court’s revocation of Jones’s probation.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218090/

ORDER Robert Lee Stokes was convicted of conspiracy to possess with intent to distribute cocaine in violation of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 846. Mr. Stokes filed two motions for a new trial, based on alleged ineffective assistance of counsel at trial and on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), respectively. The district court denied both motions; Mr. Stokes appealed. For the reasons set forth in the following order, we affirm the judgment of the district court. I BACKGROUND A. Facts 1. In late 1998, Mr. Stokes was dating Lakesha Miller. After Miller became *587pregnant with Mr. Stokes’ child, Mr. Stokes told Miller that he would take care of her and their child; specifically, he told Miller that he was going to “[s]ell cocaine.” Tr. Vol. 3 at 189. On January 13, 1999, Miller was with Mr. Stokes at the home of his nephew, Willard Williams, where Mr. Stokes had arranged for Miller to live.1 On that day, Miller observed Mr. Stokes and a man named Glenn cook cocaine. Mr. Stokes later told Miller that Glenn had brought cocaine to him from Texas. Mr. Stokes, in turn, distributed the cocaine to his dealers that same evening. Some of those dealers, such as Williams, received the cocaine directly from Mr. Stokes; with respect to at least one other dealer, Benjamin Hickman, Mr. Stokes left the cocaine with Miller for the dealer to pick up. Mr. Stokes fronted the drugs to his dealers who paid him after they had resold the cocaine. In February 1999, Miller found out from Hickman that Glenn had delivered another shipment of cocaine to Mr. Stokes. When Miller asked Mr. Stokes about this, he confirmed that he had received an additional amount of cocaine from Glenn and had given some of the cocaine to Williams and some to Hickman. Mr. Stokes also told Miller about a trip to Texas that he was planning to take on February 12, 1999; he planned to meet Glenn and to obtain a much larger quantity of cocaine. Mr. Stokes told Miller to make airline reservations for him to San Antonio, Texas, and to make the reservations in the name of his brother, John Stokes. Mr. Stokes provided Miller with his brother’s identification to assist her in making the arrangements. Miller took notes of the instructions given by Mr. Stokes.2 2. Around this time, the FBI received information from a confidential informant that crack cocaine was being sold out of a house at 4629 Jackson Street in Gary, Indiana. The informant provided the FBI with a description of the person operating the crack house. The investigating officers approached the house and identified themselves. Hickman, who fit the informant’s description, saw the police, ran between two houses and attempted to flee on foot. He was apprehended just behind the residences. Immediately after Hickman was taken into custody, the officers found “a sandwich bag filled with ... dime bags of crack cocaine right in the path where [Hickman] had run.” Tr. Vol. 5 at 284. Hickman later told law enforcement officers that he had obtained the cocaine from Mr. Stokes. Hickman agreed to cooperate with the authorities; specifically, he agreed to make a series of recorded telephone calls to Miller and Mr. Stokes, and “to set up a controlled delivery of large amounts of cocaine.” Id. at 289. In the telephone calls, both Miller and Mr. Stokes related that some of the cocaine had arrived from Texas; however, they were reluctant to discuss the cocaine in detail over the tele*588phone. Thus, Hickman met Mr. Stokes in person the following day and wore a recording device. During this conversation, Hickman inquired about the cocaine, and Mr. Stokes responded that he had received a kilogram of cocaine (“key”) but had given it to Williams to sell because Williams had a scale and Hickman did not. Ex.l8A3 at 6-7.4 However, Mr. Stokes also told Hickman that he may have some smaller quantities stored nearby; they then agreed to meet the following day so that Mr. Stokes could provide Hickman with some cocaine. Also during this taped conversation, Mr. Stokes gave Hickman detailed advice about dealing in cocaine. For instance, Mr. Stokes warned Hickman to “discuss nothing over the phone.” Ex.l8A at 20. Also, continued Mr. Stokes, Hickman should not “chill at no house that you sell dope out of.” Id. at 22; see also Tr. Vol. 5 at 337-38. The conversation also included a discussion of a large amount of cocaine that Mr. Stokes would receive. Hickman asked Mr. Stokes if he had gotten the “eleven keys” yet; Mr. Stokes responded that he would be making a trip to get the rest of it. Ex.l8A at 4. Mr. Stokes told Hickman that when he (Mr. Stokes) returned “after the 12th,” he would be able to give Hickman a kilogram of cocaine. Id. at 3. Mr. Stokes did not meet with Hickman the following day, nor make the trip to San Antonio on February 12, 1999. Hickman had told one of Mr. Stokes’ associates that he (Hickman) was wearing a wire. Through this associate, Hickman also warned Mr. Stokes not to show for the scheduled meeting. The following day, when Hickman arrived at the location where the purchase was to take place, Mr. Stokes never arrived. Instead, Mr. Stokes drove around the location several times in a manner consistent with counter-surveillance and ultimately drove away. He later was apprehended. 3. While Mr. Stokes was incarcerated awaiting trial, he called Miller. According to Miller’s testimony, Mr. Stokes told Miller that “there was nothing on [her].” Tr. Vol. 3 at 211. He advised her not to talk to law enforcement and to think about taking a trip. Three days later, Williams visited Miller. Miller testified that “[h]e [Williams] told me that I was the only one that could hurt RL and I may want to think about taking a trip.” Tr. Vol. 3 at 213. To encourage her to do so, Williams left $5,000 on her living room table. Miller did not accept the money from Williams. B. District Court Proceedings Mr. Stokes was charged with conspiracy to possess with intent to distribute cocaine. At trial, the bulk of the Government’s evidence was presented through the testimony of the investigating officers and of Williams, and through the tapes of the conversations between Hickman and Mr. Stokes.5 Hickman invoked his right to remain silent. *589With respect to Mr. Stokes’ defense, his trial counsel elicited testimony from Government witnesses that Mr. Stokes did not live in a manner usually associated with those dealing in large amounts of cocaine; he did not own a car, a house or any other assets. In addition, the police did not recover large sums of money or additional stores of cocaine belonging, or linked in some other way, to Mr. Stokes. Mr. Stokes’ counsel also aggressively attacked the credibility of Miller. On cross-examination, Miller admitted that she regularly used cocaine. She further acknowledged that the Government paid her $800 for her cooperation; she was supposed to use this money to relocate, but instead used at least some of it to purchase drugs. Finally, she admitted that she agreed to testify only after being granted immunity. After hearing the evidence, the jury convicted Mr. Stokes. Subsequently, Mr. Stokes filed a pro se motion for a new trial on the basis that his counsel was ineffective. Mr. Stokes maintained that his counsel should have called various witnesses known to counsel at the time of trial. The district court held two hearings on Mr. Stokes’ motion and also appointed Mr. Stokes new counsel for the post-trial proceedings. The motion ultimately was denied. Mr. Stokes also filed a second motion for a new trial on the basis that the Government withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Stokes contended that the Government was obligated to provide him with a copy of telephone records that the Government had obtained from the Metropolitan Correctional Facility (“MCC”) where he was incarcerated awaiting trial. Mr. Stokes claimed that these records undermined Miller’s testimony that a call took place because they did not reveal a direct call from MCC to Miller around the time that Mr. Stokes allegedly called Miller to convince her not to testify. The district court rejected this argument and denied the motion. Mr. Stokes appealed. II ANALYSIS A. Ineffective Assistance of Counsel Mr. Stokes first argues that the district court should have granted him a new trial because his trial counsel was constitutionally ineffective. He maintains that his attorney’s failure to introduce the testimony of a number of potential witnesses constituted deficient performance and prejudiced him at trial. We review claims of ineffective assistance of counsel de novo according to the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Coleman v. United States, 318 F.3d 754, 757 (7th Cir.2003). In order to establish a claim of ineffective assistance of counsel, a defendant must establish (1) that his attorney’s performance fell below an objective standard of reasonableness; and (2) that the deficient performance was prejudicial. See Strickland, 466 U.S. at 687. With respect to the first prong of the Strickland test, this court’s “review of the performance of counsel must be ‘highly deferential.’ ” Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.2001) (quoting Strickland, 466 U.S. at 689). ‘We must presume that counsel’s conduct falls within the wide range of reasonable professional assistance; to prevail, the defendant must overcome the presumption that the challenged act or omission might have been considered sound trial strategy.” Id. With respect to the second prong, a defendant must show that *590“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “If the defendant makes an insufficient showing on one prong of the test, a court need not consider the remaining prong.” Id. As noted above, Mr. Stokes believes that his counsel was ineffective because he failed to call witnesses at trial that either would have impeached testimony of Government witnesses or would have bolstered Mr. Stokes’ defense. Each of the proposed witnesses will be discussed below. 1. Donald Bennett Donald Bennett was an inmate at MCC with Stokes and Hickman during the time that Mr. Stokes was awaiting trial. Bennett was awaiting trial on a charge of wire fraud; with respect to this charge, he had raised insanity as a defense. Bennett had several other convictions, including forgery and bank robbery; Bennett had raised insanity as a defense in some of these proceedings and, with respect to at least one other charge, had been declared incompetent to stand trial. In addition to having a long criminal history, Bennett suffered from schizophrenia, specifically bipolar disorder. The disorder had caused him to suffer memory loss, and he had been treated for mental disease numerous times while incarcerated. If called at trial, Bennett was prepared to testify that, in his presence, Hickman had admitted six or seven times that he (Hickman) lied to the police when he told the police that he had obtained cocaine from Mr. Stokes. During the hearings on Mr. Stokes’ motion for a new trial, his former trial counsel acknowledged that Mr. Stokes had provided Bennett’s name as a possible witness. However, after discussing Bennett and Bennett’s statements with Mr. Stokes, trial counsel determined that Bennett’s testimony was inadmissible hearsay. Additionally, given Bennett’s history of criminal activity and mental illness, it was trial counsel’s opinion that Bennett would not have made a very credible witness. Mr. Stokes argues that this assessment was incorrect. Mr. Stokes believes that Hickman’s statements were statements against penal interest and, therefore, fell within one of the enumerated exceptions to the hearsay rule contained in Federal Rule of Evidence 804. According to Mr. Stokes, the statements subjected Hickman to a charge of false reporting because Hickman previously had told the police that Mr. Stokes was his source of cocaine. We believe, however, that trial counsel’s decision not to call Bennett as a witness is “within the wide range of reasonable professional assistance.” Hough, 272 F.3d at 890. We turn first to whether Hickman’s out-of-court statement falls within an exception to the hearsay rule. Federal Rule of Evidence 804 provides in relevant part: *591Fed.R.Evid. 804(b)(3). “In determining the admissibility of a statement under Rule 804(b)(3), we require that three elements be met: (1) the declarant must be unavailable; (2) the statement must be against the declarant’s penal interest; and (3) corroborating circumstances must exist indicating the trustworthiness of the statement.” United States v. Robbins, 197 F.3d 829, 838 (7th Cir.1999); see also United States v. Hall, 165 F.3d 1095, 1112 (7th Cir.1999) (“Rule 804(b)(3) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances that ‘clearly indicate’ the trustworthiness of the statement.” (emphasis in original)). The proponent of the out-of-court statement bears the burden of showing that these requirements have been met. See Robbins, 197 F.3d at 838. *590(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (8) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. *591Evaluating Bennett’s statements according to this tripartite test, there is no question that Hickman’s invocation of his Fifth Amendment right to remain silent rendered him “unavailable” for purposes of Rule 804. See Fed.R.Evid. 804(a)(1) (“ ‘Unavailability as a witness’ includes situations in which the declarant—(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement....”); Martinez v. McCaughtry, 951 F.2d 130, 134 (7th Cir.1991) (stating that individual “exercised his right to remain silent at trial and therefore was unavailable” for purposes of Rule 804). Furthermore, Hickman’s statements arguably were against his penal interests.6 However, Mr. Stokes does not point to any corroborating circumstances that suggest that Hickman’s statements to Bennett were trustworthy. In the absence of evidence “that ‘clearly indicate[s]’ the trustworthiness of the statements],” Hickman’s testimony is not admissible pursuant to Rule 804(b)(3). Hall, 165 F.3d at 1112. Consequently, Mr. Stokes’ trial counsel was not ineffective in failing to offer them. In addition to the substantive shortcomings of Bennett’s proposed testimony, Bennett had significant credibility problems. Bennett not only was a convicted felon, but suffered from a mental illness that affected his perception and memory. Indeed, in the past he had been declared incompetent to stand trial. We believe, therefore, that it was a reasonable tactical decision on the part of Mr. Stokes’ trial counsel to refrain from calling Bennett as a witness. 2. Edward Krecioch Like Bennet, Edward Krecioch (also an inmate at MCC) was prepared to testify that he, too, overheard Hickman state that he (Hickman) was lying with respect to who supplied his cocaine. At the time that Hickman made the alleged statements, Krecioch was serving a ten-year sentence for conspiracy and cocaine distribution. As with Bennett’s statements, Mr. Stokes fails to come forward with any corroborating circumstances that suggest Krecioch’s proposed testimony is rehable. Additionally, Krecioch suffers from some of the same credibility issues as Bennett. Consequently, we cannot say that failing to call Krecioch fell outside the realm of reasonable representation. *5923. Darlene Stokes Sumrall Darlene Stokes Sumrall, Mr. Stokes’ ex-wife, wás another potential witness whose name Mr. Stokes provided to his trial counsel. If called at trial, Sumrall would have testified that Mr. Stokes had asked her for money several times while he was living at the Bradley House. We do not believe that Mr. Stokes’ trial counsel was constitutionally ineffective for failing to call Sumrall at trial. “The Constitution does not oblige counsel to present each and every witness that is suggested to him. In fact, such tactics would be considered dilatory unless the attorney and the court believe the witness will add competent, admissible and non-eumulative testimony to the trial record.” United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir.1990). Sumrall’s testimony was largely cumulative of that elicited through the investigating officers who testified to Mr. Stokes’ apparent lack of assets. See Tr. Vol. 3 at 176-77. Consequently, because the substance of Sumrall’s testimony was presented through other, perhaps less biased, witnesses, the decision of Mr. Stokes’ trial counsel not to call Sumrall was reasonable. 4. John Stokes Mr. Stokes also had suggested that his counsel consider his brother, John Stokes, as a witness. John Stokes would have testified that, although he had loaned his fishing and driver’s licenses to Mr. Stokes frequently, John Stokes did not loan his identification to Mr. Stokes in February 1999. During the hearing on the motion for a new trial, Mr. Stokes’ trial counsel testified that he and Mr. Stokes had discussed his brother’s testimony, and, although counsel could not recall the precise nature of the testimony, counsel had concluded that “[i]t wasn’t something that was going to rebut the government’s evidence.” Tr. Vol. 9 at 68. We believe that counsel’s determination not to call John Stokes also was a reasonable, tactical decision. Although John Stokes would have testified that he did not recall loaning his fishing and driver’s licenses to his brother in February 1999, John Stokes also would have testified that “when he [Mr. Stokes] got them, he didn’t bring them back the same day he received them. When he got the fishing license ... he always held on to them.” Id. at 32. Referring to the licenses, John Stokes also noted that “he takes it a lot,” id. at 37. The whole of John Stokes’ testimony, therefore, actually may have bolstered the Government’s case against Mr. Stokes—by showing that he often was in possession of his brother’s identification—more than it would have assisted Mr. Stokes. Consequently, it was a reasonable decision not to call John Stokes as a witness. 5. Lester Norvell Lester Norvell was a caseworker at the Bradley House while Mr. Stokes lived there. According to Mr. Stokes’ trial counsel, Mr. Stokes never presented Norvell to him as a potential witness prior to trial. Nevertheless, if called, Norvell would have testified that Mr. Stokes had to sign in and out of Bradley House and was allowed to leave only for certain reasons. Furthermore, Norvell would have testified that it was not possible for Mr. Stokes to travel to San Antonio without violating the terms of his release. However, even if Mr. Stokes’ attorney had known about Norvell, it would have been a reasonable decision not to call Norvell at trial. Norvell’s testimony would have opened the door to questions concerning the many restrictions imposed on Mr. Stokes while living at the Bradley House and why those restrictions *593were imposed.7 Such information may-have given the jury the impression that Mr. Stokes was violent, dangerous, or, at the very least, needed to have his behavior curtailed in some manner. Therefore, it is questionable whether Norvell’s testimony would have, on par, benefitted Mr. Stokes. Because trial counsel’s decisions not to call the proposed witnesses constituted “sound trial strategy,” Hough, 272 F.3d 878, Mr. Stokes was not denied effective assistance of trial counsel. Consequently, the district court did not err in denying Mr. Stokes’ motion for a new trial on this basis. B. Alleged Brady Violation Mr. Stokes also argues that the Government had in its possession certain exculpatory evidence that should have been disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Stokes maintains that the Government possessed telephone records from the MCC that spanned the time during which Mr. Stokes allegedly called Miller to try to convince her not to testify. These records, continue Mr. Stokes, do not reveal any direct calls to Miller and, therefore, undermine Miller’s testimony that a call was made. This court reviews a district court’s denial of a new trial based on an alleged Brady violation for an abuse of discretion. See United States v. Wilson, 237 F.3d 827, 831 (7th Cir.), cert. denied, 534 U.S. 840, 122 S.Ct. 97, 151 L.Ed.2d 57 (2001). In its analysis, the district court first set forth the elements of a Brady claim: “To be entitled to a new trial as a result of a Brady violation, the defendant must establish that: (1) the prosecution suppressed the evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the case.” R.201 at 6 (citing United States v. Asher, 178 F.3d 486, 496 (7th Cir.1999)). With respect to the first issue—whether the Government suppressed the telephone records—the district court stated that “[ejvidence cannot be regarded as ‘suppressed’ by the government when the defendant has access to the evidence before trial by the exercise of reasonable diligence. Regardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.” Id. at 7-8 (quoting United States v. White, 970 F.2d 328, 337 (7th Cir.1992); additional internal quotation marks and citations omitted). Because Mr. Stokes could have obtained MCC’s telephone records by issuing a subpoena for them, the court determined that the records were equally available to Mr. Stokes and the Government. Consequently, the court held that the Government had not “suppressed” the evidence. The district court also found that the MCC telephone records were not material. According to the court, the only use for the telephone records was to show that Miller had lied as to matters in her testimony. Whether this impeachment evidence had a reasonable likelihood of affecting the outcome of the trial, continued the court, “ ‘depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness’ credi*594bility.’ ” R.201 at 9 (quoting United States v. Anderson, 724 F.2d 596, 598 (7th Cir.1984)). Although Miller was an important witness, she “was thoroughly impeached” in many other ways. Id. at 10. Furthermore, the district court stated, Mr. Stokes’ conviction was based on other substantial evidence. The court therefore concluded that the MCC records would not have resulted in a different verdict had they been presented. As noted above, the burden was on Mr. Stokes to establish a Brady violation. See United States v. Wilson, 237 F.3d 827, 832 (7th Cir.2001); United States v. White, 970 F.2d 328, 337 (7th Cir.1992). We do not believe that Mr. Stokes has met his burden. First, Mr. Stokes does not explain, in light of this court’s precedent, how the Government “suppressed” the evidence. The district court found that the MCC records were equally available to Mr. Stokes had he issued a subpoena for them. See R.201 at 8.8 When documents are equally available to both parties through the exercise of reasonable diligence, the Government cannot “suppress” the documents within the meaning of Brady. “Brady does not oblige the Government to provide defendants with evidence that they could obtain from other sources by exercising reasonable diligence. When evidence is available equally to the defense and the prosecution, the defendants must bear the responsibility for their failure to diligently seek its discovery.” United States v. Dula, 989 F.2d 772, 776 n. 9 (5th Cir.1993). Because Mr. Stokes has not shown that the Government “suppressed” the MCC telephone records, we must conclude that no Brady violation occurred.9 Conclusion Mr. Stokes’ claims are without merit. He has not established that his trial counsel’s performance fell below the level of reasonable professional representation, nor has he met his burden with respect to showing a Brady violation. The judgment of the district court, therefore, is affirmed. AFFIRMED . Prior to this time, Mr. Stokes had been placed in the Bradley House, a residential facility for those in the state criminal justice system. The Bradley House has varying levels of restrictions on personal freedom. At all times relevant to these proceedings, Mr. Stokes lived at the Bradley house and was subject to the most stringent of these restrictions. . These notes were later recovered during a search of Williams’ house pursuant to warrant. The flight plans, in the name of John Stokes, were confirmed through the records of Southwest Airlines. . Exhibit 18 is the actual tape of the conversation. Exhibit 18A is the transcribed conversation, which the jury used as an aid in following the taped conversation, but which was not admitted into evidence. For ease of reference, however, we refer to the transcribed conversation. . Later in the conversation, Mr. Stokes explained to Hickman that "[y]ou have to have a scale when you're dealing in keys.” Ex. 18A at 6; see also Tr. Vol. 5 at 338-39 (explaining the importance of a scale in drug distribution). . A defense motion to suppress the taped conversations was denied. . Hickman previously had told investigating officers that Mr. Stokes had provided him with the cocaine. Consequently, because the subsequent statements suggested that the pri- or statements were false, the subsequent statements could subject Hickman to a charge of making a false or misleading statement to a government agency pursuant to 18 U.S.C. § 1001. See United States v. Rodgers, 466 U.S. 475, 481-82, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984) (holding that individual may be held liable pursuant to 18 U.S.C. § 1001 for making false statements to the FBI). . There is evidence in the record that Mr. Stokes’ trial counsel did not want the jury to know about the restricted living conditions at the Bradley House. See Tr. Vol. 3 at 240-42. . Mr. Stokes does not argue that the district court erred in making this determination. . Furthermore, in order to prevail on his Brady claim, Mr. Stokes had to establish that the withheld documents would have affected the outcome of the trial. Mr. Stokes has not done so. As noted by the district court, Miller’s credibility had been called into doubt in many ways by defense counsel; the additional ambiguous evidence provided by the MCC records would not have done significant additional damage to her testimony. However, even if the MCC records would have caused the jury to hesitate in believing any of Miller's testimony, there was still substantial evidence of guilt, namely the taped conversations, Miller’s notes and the documented flight reservation.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218091/

*608MEMORANDUM ** Dennis Ray Wright appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for armed robbery. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. I Wright argues that his trial counsel provided ineffective assistance by not renewing his motion for judgment of acquittal on insufficiency of evidence grounds following the jury’s verdict. He similarly argues that his appellate counsel provided ineffective assistance by failing to appeal the trial court’s denial of his motion for judgment of acquittal. Finally, Wright contends that the state court erred when it allowed additional testimony from the victim bank teller during post-conviction proceedings on the ineffective assistance claims, and that this court must independently review the record rather than defer to the state court decision. To prevail on a claim of ineffective assistance of counsel, Wright must show both that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing a sufficiency of the evidence claim, this court determines if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir.2002). Wright fails to establish prejudice, as he cannot show a reasonable probability that but for his counsels’ failure to raise sufficiency of evidence arguments, the result of the proceedings would have been different. Because the evidence presented at trial was sufficient to support an inference that Wright positioned his hand under his jacket to simulate a gun, a reasonable juror could have concluded beyond a reasonable doubt that Wright committed the offense of armed robbery with a simulated weapon as defined by the Arizona Supreme Court. See State v. Bousley, 171 Ariz. 166, 168, 829 P.2d 1212 (1992). II Wright next argues that his Sixth Amendment right to a fair and impartial jury was violated because the state trial court failed to excuse a juror who had a working relationship with the victim bank teller’s mother. On direct appeal both the Arizona trial and appellate courts made a factual finding, entitled to a presumption of correctness, that juror Geren was not actually biased. See Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir.1990) (findings of state trial and appellate courts on juror impartiality deserve “a high measure of deference.”) (internal quotation marks omitted) (citation omitted). This is not the sort of “extreme” or “extraordinary” case justifying a finding of implied bias. See id. at 527; see also Dyer v. Calderon, 151 F.3d 970, 981-84 (9th Cir.1998). Given the juror’s repeated assurances of impartiality and the trial court’s strict monitoring of the situation, Wright fails to show that the state court findings were inconsistent with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented. *609ill Finally, Wright contends that his constitutional right to due process was violated when the panel that decided his direct appeal included a judge who represented Wright in a criminal matter over twenty years prior to the commission of the armed robbery and against whom Wright had filed a complaint with the State Bar. However, there is no evidence that Judge Gerber remembered the prior involvement with Wright at all, let alone that he “display[ed] a deep-seated favoritism or antagonism that would make fan-judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). This situation is quite unlike Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), upon which Wright relies, because there the defendant made persistent, insulting personal attacks on the judge which the Court believed should disqualify the judge from presiding over a contempt hearing based on that alleged improper conduct. Wright points out that his brief was ordered due by a certain date (pursuant to his counsel’s request for an extension of time), and that his counsel was ordered to show cause why sanctions should not be imposed if the filing is late, but these were routine case management orders entered by the chief appellate judge. In addition, he argues that Judge Gerber should have recused himself on account of the appearance of bias. However, we see no indication in the record that an appearance of bias clouded the proceedings. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218092/

MEMORANDUM ** Federal prisoner Rickey J. Maylender appeals pro se the district court’s partial dismissal and partial summary judgment in his 42 U.S.C. § 1983 action alleging various constitutional violations occurred while he was an inmate at Washington County Jail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s summary judgment. Barnett v. Centoni 31 F.3d 813, 815 (9th Cir.1994) (per curiam). We affirm. The district court properly granted summary judgment on Maylender’s claim that he was improperly classified as “8-Max” because a prisoner does not have a constitutional right to a particular security classification. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). The district court properly granted summary judgment on his claims involving restrictions on opportunities to shower, engage in outdoor exercise, attend group services and use a pay phone in administrative segregation, because Maylender failed to rebut the prison’s legitimate penological reason for its actions based on Maylender’s history of attempted escape, see Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Maylender failed to present sufficient evidence that he was deprived of the minimal civilized measures of life’s necessities, see Rhodes v. Chapman, 452 U.S. 337, 347-49, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The district court also properly granted summary judgment on Maylender’s retaliation claim because he failed to rebut the prison’s legitimate penological reason for its actions. See Turner, 482 U.S. at 89-91, 107 S.Ct. 2254. The district court also properly granted summary judgment on Maylender’s access to courts claims because he failed to show that he suffered any actual injury as a result of prison officials’ alleged interference with prison mail, restrictions on library use and restrictions on making telephone calls. See Sands v. Lewis, 886 F.2d 1166, 1170-71 (9th Cir.1989) (requiring prisoners to allege an actual injury). With respect to Maylender’s deliberate indifference to serious medical needs claims, summary judgment was proper because, at most, Maylender showed a difference of opinion over the proper course of *611treatment. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996) (difference of opinion regarding proper medical treatment is not deliberate indifference); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990) (negligence is not deliberate indifference). To the extent Maylender alleges that Washington County Sheriffs Deputies’ attendance at his sentencing hearing violated his due process rights, the district court properly dismissed this claim because Maylender has not invalidated his conviction or sentence on direct appeal, or by grant of a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Furthermore, the district court properly granted summary judgment on Maylender’s property loss claim because he has an adequate state remedy under the Oregon Tort Claims Act. See Hudson v. Palmer, 468 U.S. 517, 527-28, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The district court properly dismissed Maylender’s claims against the individually named Prison Health Service defendants because he can prove no set of facts in support of his claims which would entitle him to relief. See Steckman v. Hart, 143 F.3d 1293, 1295 (9th Cir.1998). The district court did not abuse its discretion by denying Maylender’s request for appointment of counsel because he failed to show exceptional circumstances. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980) (per curiam). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218093/

MEMORANDUM * Cathy Walden (‘Walden”) appeals the district court’s grant of summary judgment in favor of the Town of Paradise, California (“Paradise”), and its Town Manager, Charles Rough (“Rough”), in Walden’s 42 U.S.C. § 1983 action. We review a grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. In addition, we may affirm on any ground supported by the record. Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.2002). Walden claims that Rough effectively demoted her and subjected her to hostile treatment at work in retaliation for statements she made regarding employee benefits and criticizing Paradise’s handling of certain matters within the Financial Services Division. A public employee alleging an adverse employment action in retaliation for exercising her First Amendment rights must initially prove that her speech addressed matters of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.1995). The employee must then prove that the speech was a “substantial or motivating factor” for an adverse employment action. Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2361, 135 L.Ed.2d 843 (1996); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Assuming without deciding that Walden’s speech addressed matters of public concern, her speech was not a substantial or motivating factor in the alleged retaliatory action of reducing her position from 36 to 32 hours. Most of the speech in question occurred during August of 1998, well after the May 1998 managerial decision to alter the terms of Walden’s employment.1 Similarly, while Walden introduced evidence suggesting that she had a poor working relationship with Rough, she introduced none suggesting that her speech was a substantial or motivating factor in his treatment of her. Accordingly, because Walden is unable to prove that her speech was a substantial or motivating factor in the actions she identifies as adverse, we hold that summary judgment in favor of Appellees was appropriate. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . As to Walden's earlier speech, which concerned a collective bargaining issue involving employee benefits, Walden has utterly failed to demonstrate that those remarks were a substantial or motivating factor in any of the alleged adverse employment actions at issue in this case.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218095/

MEMORANDUM ** Troy K. Chapman pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He appeals the district court’s two-level increase in his offense level at sentencing for obstruction of justice and its finding that he had not accepted responsibility. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review for clear error the factual finding that Chapman willfully obstructed justice. See United States v. Shannon, 137 F.3d 1112, 1119 (9th Cir.1998). Chapman absconded from pretrial supervision sometime in May 2002 and sold his home in Nevada. He called Pretrial Services on May 30, leaving the message that he was doing something back east and was visiting his father and that the officer should “do what you have to do.” His rescheduled sentencing date of July 1, 2002 came and went. On July 6, 2002, he was arrested as he was leaving a bar in Greenville, South Carolina. At Chapman’s sentencing on September 3, the court stated: *620The Court finds the defendant left the jurisdiction of Nevada without any intention of returning for sentencing in his case on whatever date it was continued to, a fact that was confirmed by the Voice Mail message he left with Pretrial Services. This amounts to willful obstruction of the administration of justice during the sentencing process. This factual finding is not clearly erroneous. See United States v. Petersen, 98 F.3d 502, 508 (9th Cir.1996) (willful obstruction when defendant absconded after conviction while out on bail, and knew he was to return for sentencing but failed to do so, and thereby delayed sentencing). A defendant who obstructs justice can receive a reduction for acceptance of responsibility only in “extraordinary cases.” U.S.S.G. § 3E1.1, Application Note 4. We review for clear error a district court’s determination whether a case is extraordinary. See United States v. Thompson, 80 F.3d 368, 370 (9th Cir.1996). Chapman’s case was not extraordinary. See id. at 369-70 (where defendant obstructed justice by pleading guilty, and then absconding pending sentencing, later contrition does not make case “extraordinary”). Although after Chapman’s guilty plea the Supreme Court held that it was unconstitutional to punish the possession of virtual child pornography, see Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), Chapman’s attorney acknowledged at his sentencing hearing that the government had produced proof that Chapman possessed at least three pornographic images of actual children. It was not clear error to deny Chapman an adjustment for acceptance of responsibility. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218125/

ORDER The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218096/

MEMORANDUM * Paris Taylor appeals the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Taylor contends that the state court violated his right to due process when it denied his motion for a continuance of his trial. On October 29, 1994, Taylor was incarcerated at the Oregon State Penitentiary when prison guards found two combination padlocks tied together with a heavy cord, in Taylor’s coat pocket. Taylor was indicted on one count of Inmate in Possession of a Weapon, in violation of O.R.S. 166.275. The trial was scheduled for November 29, 1995. On November 16, 1995, Taylor sent a letter to his counsel, Mr. Price, requesting that Price resign from his case. On November 20, 1995, Price moved to withdraw as attorney of record and to have the court appoint new counsel. Price stated that the attorney-client relationship had reached a stage where he could no longer continue to represent Taylor. On November 22, 1995, the state court ordered that Price was allowed to withdraw as the attorney of record in the case and appointed Hellewell to represent Taylor. Although the court granted the motion, it warned that there would be no continuance. On November 29, 1995, the morning of trial, Hellewell moved for a continuance. The state court denied the motion as untimely, stating that if Taylor had problems with Price he should have addressed those issues at an earlier date. Taylor argues that the state court’s denial of the motion violated his right to due process. This argument fails. To warrant reversal, Taylor must show prejudice from the denial of the continuance. United States v. Pope, 841 F.2d 954, 957 (9th Cir.1988). Taylor has never shown any merits of the defense or evidence that he would have presented had the motion been granted. Further, Taylor had a witness list, yet he does not say that any of those witnesses would have been used had the motion been granted. Ultimately, Taylor has not hinted at anything that would have changed the outcome of the trial had the motion been granted. Accordingly, the district court’s denial of Taylor’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is AFFIRMED. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218097/

MEMORANDUM ** Victoria Alonso-Rodriguez (“Alonso”) petitions for review of a final order of removal by the Board of Immigration Appeals issued on April 25, 2002. Alonso contends that she is eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l)(D) because her removal would cause “exceptional and extremely unusual hardship” to her children. Alonso argues that the Board incorrectly applied the “exceptional and extremely unusual hardship” standard. However, we lack jurisdiction to review this discretionary determination. See Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.2003). Alonso also alleges that the Board violated her constitutional right to due process because the proceedings were “so fundamentally unfair that” that she was “prevented from reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (quoting PlateroCortez v. INS, 804 F.2d 1127, 1132 (9th Cir.1986). First, Alonso contends that the Board should have remanded for further testimony by Alonso’s sister-in-law, whose original testimony before the Immigration Judge (“IJ”) was never recorded, and thus was not part of the transcript on appeal. The INS was required to keep “a complete record ... of all testimony and evidence produced at the proceeding.” 8 U.S.C. § 1229a(b)(4)(C). Nonetheless, Alonso cannot demonstrate sufficient prejudice to require a remand. Because the missing testimony, as described by Alonso in her brief, merely duplicated the information in her sister’s affidavit, which the Board reviewed, Alonso has not shown that “the outcome of the proceedings may have been affected by the alleged violation.” Colmenar, 210 F.3d at 971. Nor can we conclude, as Alonso alleges, that the IJ prevented Alonso from fully presenting her case. The transcript shows that the IJ rarely interrupted the testimony and excluded only evidence that lacked foundation. The IJ provided Alonso with “a full and fair hearing” and “a reasonable opportunity to present evidence on [her] behalf.” Id. Finally, Alonso argues that the IJ made errors of fact in reaching his hardship *623determination by neglecting to take into account evidence presented by Alonso, and that the Board violated due process by failing to correct these errors, and by failing to conduct a de novo review of the record. These are abuse of discretion claims recast as due process claims, and so are not colorable. Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001). Because we lack jurisdiction to consider the ultimate determination concerning “exceptional and extremely unusual hardship,” we also lack jurisdiction to consider these related claims. PETITION DISMISSED IN PART AND DENIED IN PART. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218100/

MEMORANDUM** Betty Jean Rice (“Rice”) appeals from the district court’s dismissal of her malpractice suit against the defendant Richard V. Thomas, M.D. (“Thomas”) for lack of subject matter jurisdiction under 28 U.S.C. § 1332. The district court found that both Rice and Thomas were domiciled in Idaho, and, therefore, there was no diversity. We affirm. Because the parties are familiar with the factual and procedural history of this appeal, we need not recount it here. A district court’s determination on the question of diversity is reviewed de novo. Breitman v. May Co. Cal., 37 F.3d 562, 563 (9th Cir.1994). The factual underpinnings of those determinations, however, are reviewed for clear error. Prudential Real Estate Affiliates v. PPR Realty, 204 F.3d 867, 872-73 (9th Cir.2000).1 While physical presence is a central, and ordinarily necessary, factor in determining *629a person’s domicile, it is not dispositive. Hendrix v. Naphtal, 971 F.2d 398, 399 (9th Cir.1992). “A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001) (citing Weible v. United States, 244 F.2d 158, 163 (9th Cir.1957)). Residence is therefore only one factor in a domicile analysis. When the issue involves a change in domicile, additional principles of law apply. First, a change of domicile requires more than physical presence at the new location, it also requires evidence of an intent to remain there indefinitely. Lew v. Moss, 797 F.2d 747, 750 (9th Cir.1986). Second, a person’s old domicile is not lost until a new one is acquired. Barber v. Varleta, 199 F.2d 419, 423 (9th Cir.1952); see also Restatement (Second) of Conflicts §§ 18-20 (1971). Derived from this general rule is the presumption in favor of an established domicile over one newly acquired. Id. The evidence presented by the parties is consistent with a finding that Thomas’s presence in Utah was temporary, as a stage between his “old” and “new” life, with no intention on his part to stay there “indefinitely.” In the absence of a new domicile, Thomas remains a domiciliary of Idaho.2 AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Rice contends that the district court further erred in requiring more than a prima facie showing of domicile in the absence of an evidentiary hearing. Where there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court. See Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). In this case, especially as the district court based its determination solely on undisputed evidence, the failure to hold an evidentiary hearing was not an abuse of discretion. Rice also challenges the district court’s allocation of the burden of proof. The district court, however, correctly determined that Rice maintained the burden of proof on the issue of domicile regardless of shifting presumptions. . Rice contends that she may now be barred from pursuing her claim in state court due to the statute of limitations. The Court believes that Rice’s assumption of federal jurisdiction was reasonable, if incorrect. Moreover, the pendency of the federal action may have led an Idaho court to dismiss her case under Idaho Rule of Civil Procedure 12(b)(8). Rice, therefore, was reasonably diligent in pursuing her claim.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218102/

MEMORANDUM** Plaintiff Checkout Holdings, LLC, sued Defendant Amplified Holdings, Inc., and several of its officers, following a transaction in which Defendant purchased some of Plaintiffs assets in exchange for stock in Defendant. Plaintiff appeals the district court’s grant of Defendant’s Federal Rule of Civil Procedure 12(b)(6) motion, dismissing Plaintiffs Second Amended Complaint. A. Section 10(b) and Rule 10b-5 Under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), a securities fraud complaint must “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). A complaint must allege that the defendant made false or misleading statements either intentionally or with deliberate recklessness; if the challenged representation is a forward-looking statement, the complaint must allege that the statements were with made with actual knowledge of their misleading nature. Fischer v. Vantive Corp. (In re Vantive Corp. Sec. Litig.), 283 F.3d 1079, 1085 (9th Cir.2002). Further, the complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). The PSLRA’s standards for pleading scienter apply to private transactions that do not involve a securities exchange. See Falkowski v. Imation Corp., 309 F.3d 1123, 1133 (9th Cir.2002). On de novo review, we affirm the district court’s holding that Plaintiffs First Cause of Action, claiming a violation of Section 10(b) of the Securities Exchange Act of 1934 and of Rule 10b-5, does not state a claim upon which relief can be granted. *6331. Falsity As to the allegation that Defendant misled Plaintiff by claiming that it was worth $70 to $80 million: Plaintiffs allegations, at most, can prove only that the statements and omissions were untrue and misleading two months after the transaction was completed. Plaintiffs Second Amended Complaint contains no fact to suggest that the statements and omissions were untrue at the time they were spoken or omitted. Plaintiffs “negative” evidence regarding Defendant’s failure to state that anything significant occurred between the time of the statements and omissions and the time when they were alleged to be untrue is insufficient under the PSLRA’s requirement that a securities fraud complaint must “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,” 15 U.S.C. § 78u-4(b)(l). 2. Scienter Plaintiff cites numerous statements that it claims were misleading and numerous facts that Defendant and its officers failed to disclose. Nowhere in its Second Amended Complaint, however, does Plaintiff plead facts that would create a strong inference that Defendant and its officers knew that a particular statement was misleading or untruthful at the time the statement was made. Mere access to corporate information is inadequate evidence of scienter. Vantive Corp., 283 F.3d at 1086-88. Plaintiffs bald allegations that Defendant officers knew one thing about the matters asserted, but reported another, are inadequate to plead scienter. Plaintiffs allegation of a “Ponzi Scheme” by Defendant and the Secured Lenders is insufficient to create circumstantial evidence of scienter. Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532 U.S. 588, 121 S.Ct. 1776, 149 L.Ed.2d 845 (2001), which Plaintiff cites to support its position does not discuss pleading requirements and does not dimmish Plaintiffs burden to plead contemporaneous facts demonstrating that Defendant’s misrepresentations were knowingly false when made. B. Section 20(a) We have held that, “[t]o establish ‘controlling person’ liability, the plaintiff must show that a primary violation was committed and that the defendant ‘directly or indirectly5 controlled the violator.” Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1161 (9th Cir.1996). In this case, the alleged primary violation was of Section 10(b). Because we affirm the district court’s dismissal of Plaintiffs First Cause of Action, there is no “primary violation” remaining in the case, and we must dismiss the Section 20(a) claim as well. C. Leave to Amend In its Opening Brief, Plaintiff failed to discuss the claim that it should have been granted leave to amend its Second Amended Complaint and that the district court abused its discretion in failing to grant such leave. We therefore deem this claim waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (“[A]n issue referred to in the appellant’s statement of the case but not discussed in the body of the opening brief is deemed waived.”). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Gircuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218104/

MEMORANDUM** Ramon Mfredo Perez entered a conditional guilty plea to conspiracy to possess with intent to distribute, and possession with intent to distribute, more than 50 grams of crystal methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846. He appeals from the district court’s denial of his motion to suppress. We review the district court’s ultimate conclusion that Perez did not have standing to contest the legality of the search de novo, and accept its findings of fact unless clearly erroneous. See United States v. Padilla, 111 F.3d 685, 687 (9th Cir.1997). A defendant must show that he has standing to challenge a search by demonstrating “a subjective expectation of privacy that is objectively reasonable” in the area searched. See United States v. Taketa, 923 F.2d 665, 670 (9th Cir.1991). The package was detained at the post office overnight until a drug search canine alerted to it. The package was not addressed to Perez, and he does not indicate how he had any possessory or privacy interest in it at the time. Instead, he argues that he had a privacy interest in the home of the addressee, Rosa Hernandez, where he resided at the time. This is irrelevant to the detention of the package at the post office. Nor does Perez show a privacy interest by arguing that he was participating in an “arrangement” with the other defendants, as there is not coconspirator exception to the Fourth Amendment standing requirement. See United States v. Padilla, 508 U.S. 77, 78, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) (per curiam); Padilla, 111 F.3d at 687 (same on remand). We note that, in any event, this court has found that Hernandez, the addressee of the package, had standing to challenge the search and that the post office had reasonable suspicion to detain the package at the post office. See United States v. Hernandez, 313 F.3d 1206, 1210-11 (9th Cir.2002), cert. denied —U.S. —, 123 S.Ct. 1953, 155 L.Ed.2d 867 (2003). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218126/

ORDER Upon consideration of Dwyn L. Dupree^ unopposed motion to dismiss 03-7086, IT IS ORDERED THAT: (1) The unopposed motion to dismiss is granted. (2) Each side shall bear its own costs.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218105/

MEMORANDUM** Espinoza-Cortez appeals from his judgment of conviction for conspiracy to distribute cocaine, heroin and methamphetamine in violation of 18 U.S.C. §§ 841(a) and 846, and from his sentence after a plea of guilty to illegal re-entry into the United States in violation of 8 U.S.C. § 1326. The district court had jurisdiction pursuant to 18 U.S.C. § 3231; this court has jurisdiction over Espinoza-Cortez’s timely appeal pursuant to 28 U.S.C. §§ 1291 and 1294. Espinoza-Cortez argues on appeal that his conviction following a bench trial for the conspiracy charge must be vacated because the record does not reflect that he made a knowing, voluntary or intelligent waiver of his right to a jury trial. The government candidly agrees. The adequacy of a waiver of the right to a jury trial is a mixed question of law and fact that this court reviews de novo. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997). Espinoza-Cortez did not sign a written waiver of his right to a jury trial. Pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure, cases such as this which are required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government. There was no written waiver here. But absence of a written waiver is not automatically fatal where the record demonstrates that the defendant made an oral waiver that was knowing, voluntary and intelligent. United States v. Saadya, 750 F.2d 1419, 1420 (9th Cir.1985). However, in this case, the government acknowledges that there was no colloquy with Espinoza-Cortez that would establish a knowing, intelligent or express waiver of Espinoza-Cortez’s right to a jury trial. We agree with the government’s confession of error. Espinoza-Cortez is therefore entitled to a new trial on the conspiracy conviction. *638Espinoza-Cortez pled guilty to the illegal re-entry charge and was sentenced on that charge at the same time he was sentenced on the conspiracy charge. Defendants are sentenced according to the greater of the two according to the adjustment for multiple counts. See U.S. Sentencing Guidelines Manual § 3D1.4. Espinoza-Cortez received an adjusted offense level of 28 due to the conspiracy charge, but it would have been only 24 for the illegal re-entry charge alone. Therefore, on remand, the district court must re-sentence Espinoza-Cortez on this count. Conspiracy conviction and sentence REVERSED and REMANDED for further proceedings. Re-entry conviction AFFIRMED but sentence VACATED and REMANDED for re-sentencing. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218106/

MEMORANDUM*** Petitioner Kamaljit Singh Khera was ordered excluded by the Immigration Judge (IJ). The BIA affirmed the decision of the IJ. This petition for review follows. Khera makes two arguments in support of the petition for review: (1) that the IJ lacked jurisdiction to continue with exclusion proceedings under Matter of Sanchez, 21 I. & N. Dec. 444, 1996 WL 413568 (BIA 1996) and (2) that the BIA erroneously concluded that Petitioner did not make an entry into the United States before April 1, 1997. The BIA’s determination of purely legal questions, such as the jurisdiction of the Immigration Judge (IJ), is reviewed de novo. See Molino-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002). Findings made by the BIA with respect to whether Petitioner effected entry before April 1, 1997, are reviewed under the deferential “substantial evidence” standard and will be upheld “unless the evidence compels a contrary conclusion.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.2000). I. Petitioner relies on Matter of Sanchez-Avila to argue that the IJ lacked jurisdiction to proceed with the termination proceedings because Petitioner was neither detained nor paroled at the border on December 13, 1995, and he subsequently did not appear at his admissibility hearings. In Matter of Sanchez-Avila, the BIA held that the IJ was without jurisdiction to continue exclusion proceedings when the alien was not detained or paroled into the United States and when the alien did not “appear or otherwise participate in the scheduled exclusion hearing. ” 21 I. & N. Dec. at 464, 1996 WL 413568 (emphasis added). In so holding, the BIA specifically rejected the position, urged by Khera, that an IJ “only has jurisdiction to hold an exclusion hearing if an alien is detained or has been paroled.” Id. The IJ here was not required to terminate proceedings simply because Petitioner was not detained or paroled on December 13, 1995. Matter of Sanchez-Avila itself makes clear that a relevant inquiry is whether Petitioner, through his actions, submitted to the jurisdiction of the immigration court. Assessing that issue here, we conclude that the actions of Petitioner and his counsel demonstrate that Petitioner submitted to the authority of the immigration court: First, Petitioner retained an attorney to appear at the hearings on his behalf; though Petitioner did not personally appear, his interests were represented. Second, in the May 15, 1996 hearing, Petition*640er’s counsel asked the court’s permission to withdraw the admissibility application, implicitly recognizing that Petitioner was subject to the authority of the immigration court. Cf. Matter of Gutierrez, 19 I. & N. Dec. 562, 564, 1988 WL 235445 (BIA 1988) (holding an alien may not withdraw an admissibility application as a matter of right because allowing withdrawal is a discretionary decision of the IJ). Third, when the INS objected to withdrawal of the admissibility application, Petitioner’s counsel requested a contested hearing, a recognition that termination of proceedings was not Petitioner’s unilateral right. Fourth, the jurisdiction of the immigration court was not contested until the April 1, 1997, hearing, at which time a jurisdictional challenge was made based on the then recent decision in Matter of Sanchez-Avila. If Petitioner had not submitted to the authority of the immigration court before April 1, 1997, his counsel’s role at the first hearing on May 15, 1996, should have included a challenge to jurisdiction. Because Petitioner participated in the exclusion hearings before April 1, 1997, through counsel, Matter of Sanchez-Avila is distinguishable and thus the IJ was not without jurisdiction to continue with exclusion proceedings despite Petitioner’s failure to appear in person. Petitioner submitted to the court’s jurisdiction when his counsel appeared for him without reservation or challenge to jurisdiction. II. Petitioner also argues that the BIA abused its discretion by concluding that Petitioner failed to show that he had made an entry into the United States before the April 1, 1997, hearing. To prove entry, Petitioner had to prove he was physically present in the United States. Matter of Phelsina, 18 I. & N. Dec. 272, 273, 1982 WL 190689 (BIA 1982). In addition, Petitioner had to prove that he was inspected and admitted by an immigration officer, or that he actually and intentionally evaded inspection at the nearest inspection point. Id. at 273. See also 8 U.S.C. § 1101(a)(13,). Here, Petitioner attempts to prove entry by pointing to the fact that he filed several documents with the INS after the May 15, 1996, hearing but before April 1,1997. He notes (1) that he filed his application for adjustment of status with the INS in San Francisco, California on October 28, 1996; (2) that he was scheduled for an adjustment of status interview on April 18, 1997; (3) that his medical examination establishing his test results were read on September 13, 1996; and (4) that his attorney submitted a declaration reciting that he personally accompanied Petitioner to the adjustment of status interview on April 18, 1997. However, none of this evidence establishes that Petitioner was physically present in the United States before April 1, 1997. Any of the documents filed by Petitioner when he was allegedly in the United States could have been filed for him by his attorney and thus do not prove that Petitioner was physically present. And, there is no evidence relating to whether Petitioner was inspected and admitted, or, in the alternative, that he actually and intentionally evaded inspection. We cannot say that the evidence presented by Petitioner “compels a contrary conclusion” to that reached by the BIA in its deliberate assessment. PETITION DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218107/

MEMORANDUM * Steven Bernard Brooks (Brooks) appeals from his convictions and sentence for distributing crystal methamphetamine and conspiring to distribute cocaine and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdic*643tion pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. Brooks challenges the district court’s decision to allow the government to ask witness Tracy Spencer whether he previously had told government agents that he knew Wong got his “ice” from Brooks. While Brooks concedes that Spencer’s statements were admissible in order to impeach Spencer’s credibility, see United States v. Bao, 189 F.3d 860, 865-66 (9th Cir.1999), he argues the district court committed plain error by failing sua sponte to give a limiting instruction. However, in light of the other evidence presented at trial, Brooks fails to meet his burden of showing that any such error “affect[ed] [his] substantial rights.” United States v. Armijo, 5 F.3d 1229, 1232 (9th Cir.1993). Here, as in Armijo, there was more than sufficient evidence, aside from Spencer’s prior written statements, from which the jury could conclude that Brooks was Wong’s supplier, including the recorded phone conversations between Wong and Brooks in which Brooks himself intimated to details of past and future drug sales to Wong. The government did not question Spencer for an inordinate amount of time regarding his prior statements or rely on the prior statements later in trial as substantive evidence of the crimes charged, and unlike United States v. Gomez-Gallardo, 915 F.2d 553 (9th Cir.1990), the government did not call Spencer for the primary purpose of impeaching him with otherwise inadmissible prior statements. We also reject Brooks’s claim that the district court erred by excluding Henthom materials.1 The district court acted within its discretion given the marginal relevance of the accusations contained in the agents’ files, Brooks’s ample opportunity to cross-examine both agents concerning their credibility, and the fact that exclusion of the evidence did not leave the jury with insufficient evidence to gauge the credibility of either witness. See United States v. James, 139 F.3d 709, 713-14 (9th Cir.1998). Brooks’s claim that the district court erroneously precluded testimony from witness Curtis Worsham is unsupported by the record. Although the court initially excluded a portion of Worsham’s testimony on hearsay grounds, it later ruled that Brooks could recall Worsham as a witness, an opportunity Brooks did not pursue. Brooks also argues that the district court erred in excluding testimony from Silva Brooks that Wong allegedly threatened her, her husband, and her children. She was permitted to testify that Wong was upset; however, the reasons for Wong’s anger are inadmissible and Silva Brooks was properly precluded from testifying about them. See United States v. Fontenot, 14 F.3d 1364, 1371 (9th Cir.1994). Nor did the court abuse its discretion in ruling that Silva Brooks’s state of mind was irrelevant, as no link was established between the threat to which she would have testified and Steven Brooks’s actions. Moreover, even assuming error, viewed in context of the entire trial Brooks cannot show that it “more probably than not tainted the verdict,” id., or that exclusion of the evidence violated his due process rights because it was “crucial” to his defense of entrapment. United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir.1992). Brooks presented his theory of entrapment through vigorous cross-examination of Wong, Gravely, and Agent Lawson, and through testimony from Chong, Sáfele, and Worsham. The district court did not err in denying a new trial based on admission of *644Brooks’s financial records, as such evidence was relevant to the conspiracy charge to show unexplained wealth and to the entrapment defense to show that he had money to pay his debt to Wong. See United States v. Miguel, 952 F.2d 285, 289 (9th Cir.1991); United States v. Bernal, 719 F.2d 1475, 1478 (9th Cir.1983). Brooks next argues that the district court erred in denying his motion to suppress post-arrest statements on the ground of pre-arraignment delay. We review for clear error a district court’s finding that a pre-arraignment delay was reasonable. See United States v. Mendoza, 157 F.3d 730, 732 (9th Cir.1998). We have held that 18 U.S.C. § 3501(c) creates a six-hour “safe harbor” during which a confession will not be excluded solely because of delay. Id. at 731; United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir.1996). A delay of less than six hours occurred between Brooks’s arrest and his September 1 statements bearing on Count 1. Accordingly, these statements are clearly admissible. See Van Poyck, 77 F.3d at 288. While Brooks’s confession going to the historical conspiracy count was not within the safe harbor, the district court did not clearly err in finding that the delay was not unreasonable, given Brooks’s waiver of both his Miranda rights and the right under Fed.R.Crim.P. 5(a) to be brought before a magistrate judge without unnecessary delay. See, e.g., United States v. Binder, 769 F.2d 595, 598-99 (9th Cir.1985) (“The waiver of legal rights following Miranda warnings also constitutes a waiver of those rights under Federal Rule of Criminal Procedure 5.”) (citing United States v. Indian Boy X, 565 F.2d 585, 591 (9th Cir.1977)). Brooks also claims his trial counsel rendered ineffective assistance of counsel by submitting a jury instruction regarding agency, an issue not in dispute. To succeed, Brooks must demonstrate that his counsel’s actions were “‘outside the wide range of professionally competent assistance,’ ” and that “ ‘the deficient performance prejudiced the defense.’ ” United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.1993) (quoting Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Here, there was no suggestion that Wong or Gravely were not government agents and both parties argued otherwise in closing. Thus, there is no “reasonable probability” that, had the jury not received the instruction, Brooks would have been acquitted. See United States v. Span, 75 F.3d 1383, 1390 (9th Cir.1996). Brooks’s argument that the district court erred in declining his proffered conspiracy instruction is likewise without merit. Brooks’s proposed instruction misstated what the jury had to find in order to convict him. Moreover, during the government’s rebuttal argument the court instructed the jury that for a conspiracy to distribute- to exist there must be something more than a simple sale of drugs by Brooks to Wong. Cf. United States v. Lennick, 18 F.3d 814, 820 (9th Cir.1994) (evidence insufficient to support conspiracy conviction where defendant made and occasionally sold personal use quantities and there was no evidence of an agreement with the buyers or anyone else). Given evidence of Brooks’s proactive and unhesitating involvement in the criminal scheme, the district court did not clearly err in denying Brooks’s motion to dismiss the indictment based on outrageous government conduct. See United States v. Bonanno, 852 F.2d 434, 437 (9th Cir.1988) (“Unacceptable governmental conduct occurs when the government agents act brutally by using physical or psychological coercion against the defen*645dant, or the agents engineer and direct the criminal enterprise from start to finish.”). The district court similarly did not err in denying Brooks’s motion for judgment of acquittal and/or new trial on the ground that he was entrapped as a matter of law. There are two elements to the defense of entrapment: (1) government inducement of the crime, and (2) the absence of predisposition on the part of the defendant. United States v. Tucker, 138 F.3d 1208, 1217 (9th Cir.1998). To succeed in showing entrapment as a matter of law, Brooks had to show that, viewing the evidence in the light most favorable to the government, no reasonable jury could have found in favor of the government as to inducement or lack of predisposition. United States v. Poehlman, 217 F.3d 692, 698 (9th Cir.2000). In light of Wong’s and Gravely’s unequivocal denial of ever having used Brooks’s debt as leverage to induce him to sell the drugs, as well as the evidence that Brooks had sufficient money to pay off the debt without resorting to selling drugs to Wong, Brooks fails to point to “undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by government agents.” United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992) (emphasis added and internal quotation marks omitted). Brooks’s claim of entrapment also fails because, viewing the evidence in the light most favorable to the government, a reasonable juror could find predisposition beyond a reasonable doubt. Brooks argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), renders 21 U.S.C. § 841 unconstitutional. This argument is foreclosed by United States v. Buckland, 289 F.3d 558, 564-68 (9th Cir.2002) (en banc). Brooks also contends that because the jury never made a finding as to drug quantity and quality, we must vacate his sentence pursuant to Apprendi and remand for resentencing. We have made clear that where a defendant’s actual sentence falls below the statutory maximum for the offense of conviction, any Apprendi error is harmless. See United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir.2000). Here, due to Brooks’s prior felony drug conviction, he was sentenced to 262 months, more than eight years less than the 30-year maximum to which he was subject under 21 U.S.C. § 841(b)(1)(C). Finally, failing to submit the prior conviction to the jury was not erroneous. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000) (noting that the Court in Apprendi “unmistakably carved out an exception for ‘prior convictions’ ”). Finally, Brooks argues that his conviction must be reversed because the district court failed sua sponte to dismiss a juror who, during voir dire, revealed that her husband had tested positive for crystal methamphetamine and had subsequently undergone rehabilitation. We review “ ‘for manifest error a court’s findings regarding juror impartiality.’ ” United States v. Hursh, 217 F.3d 761, 768 (9th Cir.2000) (quoting United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir.1999)). There was no such error, as the juror did not manifest actual bias and the relationship between her husband’s use and the distribution at issue in this case was too attenuated to support a finding of implied bias. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . United States v. Henthorn, 931 F.2d 29 (9th Cir.1991).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218108/

MEMORANDUM * Scott Augafa appeals the district court’s denial of his 28 U.S.C. § 2255 motion on the ground that his Fifth and Sixth Amendment rights to counsel and due process were violated by the magistrate judge’s failure to appoint counsel for part of a 28 U.S.C. § 2255 evidentiary hearing. The evidentiary hearing was to determine whether trial counsel was ineffective in advising Augafa about the safety valve, U.S.S.G. § 5C1.2, or failing properly to argue for safety valve relief at sentencing. However, as the district court held, Augafa’s 1988 conviction for Harassment was properly included in his criminal history calculation. That ruling is not certified for appeal. The Harassment conviction put Augafa into a criminal history category of II, which made him ineligible for safety valve relief as a matter of law. U.S.S.G. § 5C1.2(a)(1). For this reason, he cannot have been prejudiced by counsel’s failure (if any) to explain cooperation adequately. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, neither the conduct nor outcome of the evidentiary hearing has any bearing on the relief sought in Augafa’s § 2255 petition. The appeal is accordingly moot. DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218109/

MEMORANDUM ** Fredrick D. Turner appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition. Turner challenges his California conviction and 27-years-to-life sentence for receipt of stolen property. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing the district court’s decision de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm. Turner contends that his 27-years-to-life sentence for receipt of stolen property constitutes cruel and unusual punishment, in violation of the Eighth Amendment. We cannot agree. Under California’s three-strikes law, the state court’s refusal to reduce Turner’s conviction to a misdemeanor was within its discretion. See Ewing v. California, — U.S. —, 123 S.Ct. 1179, 1189-90, 155 L.Ed.2d 108 (2003). Because Turner has at least two prior violent or serious felonies, he received a mandatory sentence of 25-years-to-life. See Cal.Penal Code §§ 667(e)(2)(A).1 The State of California *648is entitled to punish recidivists more harshly than first-time offenders. See Ewing, 123 S.Ct. at 1190. Although Turner’s sentence is severe, we cannot say that it violates the Eighth Amendment. See Id. at 1189-90. Because the state court’s decision was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court, the district court properly denied Turner’s § 2254 petition. See Lockyer v. Andrade, —U.S. —, 123 S.Ct. 1166, 1173-75, 155 L.Ed.2d 144 (2003) (upholding state court’s affirmance of two consecutive 25-years-to-life sentences for petty theft). AFFIRMED.2 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . Because of Turner’s two prior robbery convictions, he was also sentenced to an additional two consecutive years. See Cal.Penal Code § 667.5. . All pending motions are denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218110/

REINHARDT, Circuit Judge, specially concurring. I concur only under compulsion of the Supreme Court’s decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218111/

PREGERSON, Circuit Judge, writing separately, dissenting in part. In good conscience, I cannot vote to go along with the sentence imposed in this case.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218112/

MEMORANDUM * The Department of Environmental Quality for the State of Oregon (“DEQ”) appeals from the district court’s grant of summary judgment to various owners and operators of a dry cleaning business located in MilwauMe, Oregon. Because the relevant facts are known to the parties they are not repeated here.1 Departing from a baseline of strict liability, see Or.Rev.Stat. § 465.255, the Oregon legislature in 1995 implemented a separate and distinct liability scheme for the dry cleaning industry: Except as provided under subsections (3), (4), and (5) of this section, no dry cleaning owner or dry cleaning operator shall be subject to any administrative or judicial action to compel a removal or remedial action or to recover remedial action costs caused by the release or threatened release of dry cleaning solvent from an active or inactive dry cleaning facility, whether the action is brought under ORS 465.200 to 465.510 and 465.900 or any other statute or regulation. Or.Rev.Stat. § 465.503(1). This broad grant of immunity, however, is inapplicable if “[t]he release resulted from a violation of federal or state laws in effect at the time of the release, including but not limited to waste minimization requirements imposed under ORS 465.505.” Or.Rev.Stat. § 465.503(3)(b). Notwithstanding this statutory language and the owners’ and operators’ long history of improperly disposing perchloroethylene (“PCE”) directly into the ground, the district court determined that § 465.503(3)(b) was ambiguous, and resorted to legislative history in concluding that “only dry cleaning owners and operators who do not comply with environmental laws after June 30, 1995 lose the exemption from liability allowed for in O.R.S. 465.503(1).” We disagree. The Oregon Supreme Court has instructed that “[i]f the legislature’s intent is clear from [an] ... inquiry into text and context, further inquiry is unnecessary.” Portland Gen. Elec. Co. v. Bureau of Labor and Indus., 317 Or. 606, 859 P.2d 1143, 1146 (Or.1993). Here, the clear import of § 465.503(3)(b) is that dry cleaning owners and operators are liable for the release of dry cleaning solvent that stemmed from conduct that violated state or federal law at the time of release.2 *650Nevertheless, the owners and operators contend that a plain meaning interpretation of § 465.503(3)(b) conflicts with the stated legislative purpose of “ereat[ing] a $1 million cleanup fund paid for solely by the dry cleaning industry, and ... otherwise exempting] dry cleaning owners and dry cleaning operators from cleanup liability.” Or.Rev.Stat. § 465.500(l)(a). But our interpretation of § 465.503(3)(b) does not render § 465.500(l)(a) meaningless. Indeed, releases by the dry cleaning industry of spent PCE directly into the ground before the solvent was classified as a hazardous waste would not fall under § 465.503(3)03). Neither would any PCE that leaked into the ground as a byproduct of pouring wastewater down the drain.3 Thus, in limiting the scope of immunity afforded to the dry cleaning industry, the Oregon legislature made a perfectly reasonable determination that the cleanup fund would offset releases of PCE that were lawful at the time of release, but that owners and operators would bear further responsibility for their consciously illegal activities.4 We therefore conclude that nothing in the text or context of § 465.503(3)(b) supports the district court’s determination that immunity is abrogated for past releases of dry cleaning solvent only when the dry cleaner has continued to violate environmental laws. Properly construed, this statutory provision was intended to subject owners and operators to liability for past releases that resulted from contemporaneous state or federal law violations.5 REVERSED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . DEQ’s motion for certification of state law questions to the Oregon Supreme Court is denied. . The operators argue that because § 465.503(3)(b) specifically references waste minimization requirements under § 465.505, the Oregon legislature intended that owners and operators were to receive immunity for pre-1995 state and federal law violations. But there is nothing on the face of the statutory language that suggests that § 465.505 somehow defines or limits the nature of state and federal law violations within the purview of § 465.503(3)(b). Moreover, the mere fact that § 465.505 was enacted in 1995 does not evince a legislative intent to limit liability to only post-1995 violations of environmental laws. Accordingly, the singular reference to § 465.505 does not undermine a plain meaning interpretation of § 465.503(3)(b). . This practice was finally prohibited in 1995 by § 465.505(l)(b), which provides: "Waste-water contaminated with dry cleaning solvents from the water separation process of dry cleaning machines may not be discharged into any sanitary sewer or septic tank or into the waters of this state." . Following the magistrate judge's entry of amended findings and recommendations, which the district court subsequently adopted, the Oregon legislature amended § 465.503(3) in 2001. The provision now reads: "Notwithstanding the date on which the release occurred,” § 465.503(1) does not apply to a dry cleaning operator if "[t]he release resulted from an action or omission that was a violation by the dry cleaning owner or dry cleaning operator of federal or state laws in effect at the time of the release, including but not limited to waste minimization requirements imposed under ORS 465.505.” Or.Rev.Stat. § 465.503(3)(b) (as amended) (emphasis added). See Or.Rev.Stat. § 465.503(4) (applying a similar standard to dry cleaning owners). The legislature’s decision to amend subsequent to commencement of litigation in this case merely reinforces our conclusion that § 465.503(3)(b), as originally enacted, should be interpreted in accordance with its plain meaning. See 1000 Friends of Oregon v. Wasco County Court, 299 Or. 344, 703 P.2d 207, 219 n, 15 (Or. 1985). . Alternatively, Parker and Spar Investment argue that an operator’s unlawful disposal of PCE does not deprive an owner of immunity. They cite to the statutory text which provides that the immunity "provisions of subsections (1) and (2) of this section do not apply to a diy cleaning owner or dry cleaning operator” under certain circumstances. Or.Rev.Stat. § 465.503(3) (emphasis added). Parker and Spar Investment claim that the use of the word "or’*' indicates that owners may not be held liable for the past misdeeds of operators. However, most of the provisions that exempt the industry from immunity specifically refer to a "dry cleaning owner or dry cleaning operator.” See Or.Rev.Stat. § 465.503(3)(a) ("The release was caused by gross negligence of the dry cleaning owner or dry cleaning operator") (emphasis added); § 465.503(3)(c) {"The dry cleaning owner or dry cleaning operator willfully concealed a release of dry clean*651ing solvent ... ”) (emphasis added); § 465.503(3)(d) {"The dry cleaning owner or dry cleaning operator denies access or unreasonably hinders or delays removal or remedial action necessary at the facility”) (emphasis added). If an operator engaged in gross negligence, willfully concealed a release, or unreasonably delayed a removal action, the use of the disjunctive term "or” indicates that while the operator is subject to liability, the owner’s immunity remains intact. Thus, it is quite telling that § 465.503(3)(b) does not employ the same disjunctive phrasing. See Emerald People’s Util. Dist. v. Pac. Power & Light, Co., 302 Or. 256, 729 P.2d 552, 559 (Or. 1986) (the use of a term in. one section and not in another section of the statute indicates a purposeful omission). Section 465.503(3)(b) simply states: "The release resulted from a violation of federal or state laws in effect at the time of the release ...” In the absence of language similar to § 465.503(3)(a), (c), and (d), the clear import of § 465.503(3)(b) is that dry cleaning owners and operators are both ineligible for immunity if the release of dry cleaning solvent resulted from unlawful conduct.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218113/

MEMORANDUM *** American Financial, Inc. f/k/a First National Insurance, Inc. (“FNI”) appeals from the district court’s grant of summary judgment to American States Insurance Company (“ASI”). Because the relevant facts are known to the parties they are not repeated here. FNI first argues that the district court erred in rejecting its claim for malicious prosecution. At issue here is whether ASI was responsible for litigating, prosecuting, or continuing the underlying negligence suit brought by the Board of Trustees for School District No. 69 in West Yellowstone, Montana (“the school district”) against FNI. See Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 896 P.2d 411, 431 (1995). It is true that ASI’s counsel provided information and encouragement to the school district to bring suit against FNI. But irrespective of any prodding by ASI’s legal counsel, the school district made the decision to sue FNI on its own. Indeed, the school district’s attorney, Michael Lilly, submitted an affidavit stating: Mr. Posten’s [ASI’s legal counsel] suggestions and encouragement did not in any way cause me to file suit against FNI. To the contrary, formal discovery, my own investigation, and research into the pertinent legal issues convinced me that the School District had a viable claim against FNI based on its negligence in its advice to and procurement of insurance for the School District. In addition, under Montana law, the mere act of furnishing information to a relevant authority is not actionable as malicious prosecution. See Vehrs v. Piquette, 210 Mont. 386, 684 P.2d 476, 478 (Mont.1984). And to the extent that FNI argues that ASI’s denial of coverage was “responsible” for the school district’s decision to bring suit, as the district court aptly noted, it is outside the scope of a claim for malicious prosecution. In any event, even after it successfully prevailed against ASI, the school district, without any urging or input by ASI, still maintained its cause of action against FNI for negligence. We therefore agree with the district court that FNI does not have a viable claim for malicious prosecution. FNI next argues that the district court erroneously rejected its claim under the common law tort of bad faith. Under Montana law, a third-party claimant may bring an action for bad faith against an insurance company for its unfair practices. Brewington v. Employers Fire Ins. Co., 297 Mont. 243, 992 P.2d 237, 240 (Mont.*6531999). To fit within this scope, FNI contends that a third-party claimant “is any person who has been personally damaged as a result of an insurance company’s bad faith conduct.” Blue Brief at 22. In support of this proposition, FNI cites to O’Fallon v. Farmers Ins. Exch., 260 Mont. 283, 859 P.2d 1008 (Mont.1993). FNI’s argument, however, that O’Fallon applies to its situation is misguided. There, the plaintiffs who brought the claim of bad faith consisted of the accident victims who successfully prevailed against the insurance company, and the drivers of the vehicles that were subject to the counterclaim and third-party complaint instigated by the insurance company. Here, the “damage” is far less tangible. Indeed, ASI’s wrongful denial of coverage, and subsequent improper backdating of an endorsement, did not by itself subject FNI to any hardship. It was the intervening and independent decision by the school district to bring suit against FNI for negligence that caused it harm. We agree with the district court that “[e]xtending third-party status to peripheral parties affected by the denial of coverage” such as FNI “would lead to a result where potentially anyone impacted by a bad faith denial of coverage could sue the insurance company.” Finally, FNI claims that ASI was negligent. The Montana Supreme Court has stated “that in the absence of foreseeability, there is no duty; in the absence of duty, there is no negligence.” Lopez v. Great Falls Pre-Release Servs., Inc., 295 Mont. 416, 986 P.2d 1081, 1086 (Mont.1999). While Beck Construction, SFA, and the school district may have been foreseeable plaintiffs, it is a far greater leap to suggest that ASI should have reasonably foreseen the harm that FNI incurred. FNI was neither an insured party covered by the insurance policy in dispute, nor was it a third-party claimant seeking redress pursuant to the policy. Because the school district’s decision, made on its own accord, to bring suit against FNI, rather than ASI’s denial of coverage, was the underlying cause of FNI’s harm, the district court was correct in granting summary judgment to ASI.1 AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . Because we affirm the district court’s grant of summary judgment to ASI on FNI’s claim of negligence, we need not reach the merits of ASI’s protective cross-appeal.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218127/

MICHEL, Circuit Judge. Defendant Apotex, Inc. appeals the June 10, 2002, order of the United States District Court for the Northern District of Illinois, Glaxo Group Ltd. v. Apotex, Inc., No. 00-CV-5791 (N.D. Ill. June 10, 2002), preliminarily enjoining Apotex from marketing a generic antibiotic drug, cefuroxime axetil (“CA”), that allegedly infringes U.S. Pat. Nos. 4,562,181 (“the 181 patent”) and 4,820,833 (“the ’833 patent”), owned by plaintiffs Glaxo Group Ltd. and Smithkline Beecham Corp. (collectively “GSK”). Because on this record, in the preliminary injunction context, the district court did not err in construing the patent claim “purity” as excluding excipients from being considered impurities, and did not abuse its discretion in entering the preliminary injunction, we affirm. BACKGROUND Because we write solely for the benefit of those involved, especially appellant, we recount the facts and procedural history of the case only insofar as they are material to our analysis, which follows. Both the 181 and ’833 patents are directed to a highly pure, substantially amorphous form of CA. The 181 patent covers the product itself, while the ’833 patent covers a process for preparing such CA. Because the ’833 patent expired on December 31, 2002 due to a terminal disclaimer, we need only address issues relating to the 181 patent. Claims 1 and 8 of the 181 patent read: 1. Cefuroxime axetil in amorphous form essentially free from crystalline material, and having a purity of at least 95% aside from residual solvents. 8. An antibacterial pharmaceutical composition containing an antibacterially effective amount of cefuroxime axetil according to claim 1 in admixture with one or more pharmaceutical carriers or ex-cipients. 181 patent, col. 13,11. 4-6 and col. 14,11. 1-4. The 181 patent claims a highly pure CA in amorphous form because the patentee discovered that “contrary to previous experience in the cephalosporin field,” *753highly pure CA in amorphous form has better bioavailability upon oral administration compared to highly pure CA in crystalline form. Id. col. 2, 11. 7-15. “This is despite the known tendency for amorphous materials to have inferior chemical stability to crystalline materials and also the known tendency for highly pure amorphous materials to crystallize.” Id. col. 2, 11. 15-18. The specification thus discloses: According to one aspect of the present invention, there is provided cefuroxime axetil in highly pure, substantially amorphous form. The cefuroxime axetil in accordance with the invention preferably contains less than 5% mass/mass (m/m), advantageously less than 8% m/m, of impurities. It is to be understood that references herein to ‘impurities’ are to be understood as not including residual solvents remaining from the process used in the preparation of the cefuroxime axetil of the invention.... Typical impurities which may be present are the delta2-isomers of cefuroxime axetil and the corresponding E-isomers of cefuroxime axetil. Id. col. 2,ll. 27-38. As initially filed, claim 1 read: “Cefuroxime axetil in highly, pure, substantially amorphous form.” Upon the Examiner’s indefiniteness rejection, the claim was changed to “Cefuroxime axetil in amorphous form essentially free from crystalline material, which contains less than 5% m/m of impurities other than residual solvents and less than 6% m/m of residual solvents.” Upon another rejection based on § 112, ¶¶ 1 and 2, Glaxo changed the claim to the current form and eliminated the reference to “impurities.” All of remaining claims were then allowed. Glaxo holds the New Drug Application for CA tablets sold under the brand name Ceftin. In May 2002, Glaxo moved to preliminarily enjoin Apotex from selling its generic CA product after being informed that approval by the Food and Drug Administration (“FDA”) of Apotex’s abbreviated new drug application (“ANDA”) was imminent. The district court held a hearing in June, and later entered the preliminary injunction. The court set the bond at $5 million, although Apotex sought a bond of at least $40 million. The FDA approved Apotex’s ANDA on October 2, 2002. Apotex moved for an increase in the bond to more than $162 million. The district court required an additional $3 million in the amount of the bond. On appeal Apotex challenges the district court’s claim construction, its prehminary injunction decision based on its findings of GSK’s likelihood of success on the merits with respect to infringement and validity and the other balancing factors, and the amount of bond. DISCUSSION We review a trial court’s decision on a preliminary injunction to determine “whether the district court abused its discretion, committed an error of law, or seriously misjudged the evidence underlying its findings of fact.” Nutrition 21 v. United States, 930 F.2d 867, 869, 18 USPQ2d 1347, 1349 (Fed.Cir.1991). We review a district court’s legal conclusions such as claim construction de novo. Novo Nordisk of N. Amer., Inc. v. Genentech, Inc., 77 F.3d 1364, 1368, 37 USPQ2d 1773, 1776 (Fed.Cir.1996). Apotex contends that (I) the district court erred in its claim construction, (II) Glaxo did not prove likelihood of success on infringement, (III) Apotex raised a substantial question with respect to the validity of the patent, (IV) Glaxo did not meet its burden of showing irreparable harm *754and the other factors for a preliminary injunction, and (V) the district court abused its discretion in setting the amount of the bond. After considering each of Apotex’s arguments, we conclude that, in the preliminary injunction context, the district court did not err in its claim construction, Glaxo proved likelihood of success on infringement, Apotex did not raise a substantial question regarding the validity of the ’181 patent, and the court did not abuse its discretion in granting a preliminary injunction or setting the amount of bond. I Apotex argues that the district court erred in construing claim 1 of the ’181 patent as covering CA having no more than 5% degrading, unwanted impurities not including excipients, such as the sorbitol and zinc chloride added by Apotex to its CA product. Apotex asserts that “a purity of at least 95%” means at least 95% of a sample has to be CA regardless of what the remaining 5% is. The district court did not commit legal error in claim construction in its preliminary injunction decision. First, to read the CA of claim 1 as containing less than 5% of anything other than CA would read preferred embodiments of the invention out of the scope of the claim. For example, the product disclosed in Example 26 contains 60% of CA and 40% of additives. T81 patent, col. 11, ll. 42-55. It is well established that claims are generally construed so as to not exclude a preferred embodiment. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583, 39 USPQ2d 1573, 1578 (Fed.Cir.1996) (stating that a claim interpretation that excluded a preferred embodiment “is rarely, if ever, correct and would require highly persuasive evidentiary support, which is wholly absent in this case”). Second, the specification describes impurities and that the typical impurities are degrading, unwanted isomers of CA. ’181 patent, col. 2, ll. 27-38. The description of the typical impurities in the specification is consistent with the patentee’s early attempt during the prosecution history to define the invention using a percentage of impurities. We thus conclude that, in the context for the preliminary injunction, the district court did not err in construing claim 1 so that excipients would not be counted as impurities to affect the purity of CA as claimed by the ’181 patent. Although GSK and Apotex also dispute various dictionary definitions of “purity,” we find the district court’s construction correct at least for purposes of a preliminary injunction in view of the claims, specification, and prosecution history of the T81 patent. II “[B]ecause of the extraordinary nature of the relief, the patentee carries the burden of showing likelihood of success on the merits with respect to the patent’s validity, enforceability, and infringement.” Novo Nordisk, 77 F.3d at 1367, 37 USPQ2d at 1775. Apotex argues that GSK did not prove likelihood of success on infringement because Apotex’s CA product is an amorphous co-precipitate, not “cefuroxime axetil in amorphous form,” and Apotex’s co-precipitate does not satisfy the “purity of at least 95%” claim limitation. Although claim construction is a question of law, infringement, either literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). We conclude that the district court did not clearly err in finding that GSK proved likelihood of success with respect to infringement. The court did not clearly err in finding that there was no chemical difference between Apotex’s co-precipitate created by mixing pure CA and the excipients into acetone *755and then spray-drying it to make it amorphous, and GSK’s patented product created by mixing pure CA in acetone and spay-drying it to make it amorphous and then combining the result with excipients. Although CA is air-dried together with excipients to form Apotex’s product, it is not asserted that the air-drying process changes the chemical properties of CA. The claims of the T81 patent do not require that amorphous CA be in certain separable particles or a certain phase. Thus, the CA in Apotex’s co-precipitate is still CA after the drying process, and the CA is amorphous after the drying even though it co-exists in such form with the excipient molecules. Additionally, the district court did not clearly err in finding that Apotex’s products satisfied the “purity of at least 95%” claim limitation because it is undisputed that, excluding excipients, Apotex’s CA is at least 95% pure. Further, for the same reasons stated above, the district court did not clearly err in finding that claim 8, as well as claim 1, is likely infringed.1 Ill Apotex also argues that it raised a substantial question with respect to the validity of the patents in suit. Apotex asserts that its expert, Dr. Siegel, followed the teachings of a prior art patent, U.S. Pat. No. 4,264,320 (“the ’320 patent”), and found that the CA obtained was inherently amorphous and had a purity greater than 97%. Thus, Apotex asserts, the invention claimed in the ’181 patent is anticipated by the ’320 patent. Apotex asserts obviousness as well, which is based on anticipation, except claims 6 and 12, which are allegedly obvious because of an expert declaration of obviousness. We conclude that the district court did not clearly err in finding that Apotex failed to raise a substantial question concerning validity of the ’181 patent. There is no clear error in the court’s findings that Dr. Siegel did not follow Example 1 of the ’320 patent precisely but instead elected to mix other methods from other portions of the patent to come up with a highly pure, amorphous CA, and that Apotex failed to present persuasive evidence to show that one skilled in the art would have selected the particular elements from the ’320 patent as selected by Dr. Siegel and come up with the product claimed by the ’181 patent. The district court thus did not clearly err in finding that Apotex failed to raise a substantial question on anticipation. Neither did it clearly err in finding that Apotex failed to present persuasive evidence that the subject matter of the ’181 patent would have been obvious at the time the invention was made to a person having ordinary skill in the art. IV Apotex further argues that GSK did not prove the other factors relevant to a preliminary injunction, but rather that factors such as irreparable harm, balancing of hardships, and the public interest should be so decided as to warrant denying the preliminary injunction. After considering the district court’s findings relevant to each factor, we do not see clear error. (1) Irreparable harm Apotex argues that the district court committed legal error in presuming that GSK would sustain irreparable harm, and that GSK did not meet its burden of showing irreparable harm. *756A presumption of irreparable harm arises upon a clear (or strong) showing of infringement and validity. Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1271, 225 USPQ 345, 348 (Fed.Cir.1985). Here, although the district court did not expressly state that there was a clear showing of infringement and validity, it seemed to have found so. Even if the presumption does not apply for a lack of clear showing of infringement and validity, we conclude that the court did not clearly err in finding that such irreparable harm was likely to occur. There is ample evidence in the record to show that allowing Apotex to market its generic CA product would cause unquestionable loss of GSK’s patent right, in view of GSK’s likelihood of success with respect to infringement and validity. Although Apotex presented an expert declaration that a brand name would maintain its price rather than suffer lowering of its prices upon generic entry, GSK on the other hand has shown that generic entry, even if it is not the first generic competition, would affect not only price and profit but also cause a significant loss in market share. (2) Balance of hardships Apotex also argues that a balancing of the hardships favors Apotex because it faces greater harm from being kept off the market than GSK would have faced without the injunction. Apotex asserts that after the huge amount of investment it put into preparing to bring the generic CA to the market, it stands to lose millions of dollars a month as a result of the delay in the market entry. GSK, on the other hand, has already enjoyed many years of monopoly sales for Ceftin, and already faces generic competition from the first generic competition, Ranbaxy. The district court did not clearly err in finding that, without the preliminary injunction, Glaxo would lose the value of its patent while Apotex would only lose the ability to go on to the market and begin earning profits earlier. Additionally, Apotex’s loss of profit is secured by the issuance of the bond if the ultimate ruling is non-infringement or patent invalidity. The court did not clearly err in finding that additional generic competition would likely drive down the brand name’s price and market share, causing permanent loss of customers and users of plaintiffs’ patented product. Thus, the court did not abuse its discretion in finding that a balancing of the hardships favored the patentee GSK. (3) Public interest Finally, the district court did not clearly err in finding that public interest favors the patentee as the court found that the value of patent protection for the patent’s full term was more important in this case than allowing a second generic Ceftin maker to enter the market early. To the extent that the public interest favors generic competition, it is also the public’s strong interest to protect patent rights, especially in view of GSK’s likelihood of success with respect to infringement and validity of the patent. V Apotex repeatedly argues both at the district court level and on appeal that the bond set by the district court should be raised. We do not find that the district court abused its discretion in setting a bond at $5 million and then raising it to $8 million after the FDA approved Apotex’s ANDA in October 2002. The T81 patent will expire only about ten months after the FDA approval. There is already another generic Ceftin maker on the market. Apotex has not provided sufficient evidence to support a higher amount for the bond, or *757show how the trial court abused its discretion here. CONCLUSION We hold that at the preliminary injunction setting, the district court did not err in construing the claims of the ’181 patent as excluding excipients from impurities in calculating the purity of the CA. Additionally, the district court did not clearly err in finding GSK’s likelihood of success with respect to infringement and validity. Further, the court did not clearly err in its findings on irreparable harm, balancing of hardships and public interest. The court did not abuse its discretion in granting a prehminary injunction. Nor did it abuse its discretion in setting the amount of bond. Accordingly, the order of the district court is, in all respects challenged on appeal, affirmed. . Apotex also relies on a Canadian federal court decision finding that the Canadian equivalent to the ’181 patent was not infringed by Apotex’s CA product. We note that the Canadian judgment construing the Canadian patent and applying Canadian patent law does not control our decision here.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218128/

MICHEL, Circuit Judge. Dandy Products, Inc. (“Dandy”) appeals the rulings of the United States District Court for the Eastern District of Virginia amending its judgment entered upon Atlantic Construction Fabric, Inc.’s (“ACF”) Rule 68 offer of judgment, granting partial summary judgment of invalidity of claims 1 and 5 of U.S. Patent No. 5,632,888 (“the ’888 patent”), granting judgment as a matter of law of noninfringement of claims 2 and 6 of the ’888 patent, and awarding attorneys’ fees to ACF under 35 U.S.C. § 285. Because the court did not err in any of its rulings, we affirm. BACKGROUND Dandy is the assignee and owner of the ’888 patent. The ’888 patent is directed to a filter for removing particulate matter from water flowing into a curb inlet. Basically, the invention is to be placed in front of a curb storm drain such that it substantially covers the drain. Runoff water then must then pass through the filter to reach the drain. In that process, the invention filters out particulate matter from the runoff. Claim 1 is representative (disputed terms underlined): *759’888 patent, col. 3, lines 22-27, col. 4, lines 1-9. *7581. An environmental filter system, comprising: a curb inlet and an environmental filter in combination, said environmental filter including an elongated porous material for substantially covering a mouth of said curb inlet, said curb inlet in a plane having a vertical component, such that water will pass through said porous material while sediment and other solids will be substantially blocked from passing through said porous material; and a permeable body portion enclosed within said porous material, said permeable body portion providing a degree of rigidity and form to said elongated porous material whereby debris is substantially prevented from entering said curb inlet. *759There were many disputed claims and the district court construed them in its Markman order. Only some of the court’s constructions are relevant to this appeal: “Filter”: a pervious article through which fluid is passed while sediment and other solids are substantially blocked; “Porous material”: a material having small openings (or pores) that allow gasses and liquids to pass through while sediment and other solids are substantially blocked from passing through; “Permeable body portion”: a body portion having openings to allow water to flow through the filter system; and “Sediment”: dust, soil, silt, and other particulates of a type suspended in runoff waters. Before the claim construction, ACF made an offer" of judgment pursuant to Federal Rule of Civil Procedure 68. The offer of judgment, in relevant part, stated: Plaintiff ... offers to allow judgment to be taken against it with respect to Count One of the Counterclaim filed by Dandy Products, Inc. in the amount of Seven Thousand Five Hundred Dollars ($7,500) inclusive of the following.... ACF hereby offers to allow a Permanent Injunction Order to be entered against it enjoining it from infringing and from inducing or contributing to infringement by other of United States Patent No. 5,632,888 for the remaining term of such patent. Before Dandy’s counsel accepted the offer they called ACF’s counsel to clarify the scope of the offer. Dandy subsequently accepted the offer and the court entered judgment for Dandy on all five ACF products. Shortly thereafter, ACF moved to amend the judgment under Federal Rule of Civil Procedure 60(b) because the order did not reflect the intent of the parties— namely, it failed to incorporate a “clarification” of its scope that occurred in a telephonic conversation between counsel. The court amended its judgment pursuant to Rule 60(b) because the order as written, did not reflect the parties’ “meeting of the minds.” The court granted summary judgment of anticipation of claim 1 and obviousness of claim 5 based upon a single reference: a filter system depicted in figure 13 of the International Erosion Control Association (“IECA”) Training Manual dated April 1993. The sole issue in the anticipation analysis was whether the “filter” or “porous material” elements were met by the prior art system using multiple bags of gravel lined-up next to each other, rather than a unitary filter. The court found that the above elements 'were met because there is nothing in the patent that requires the “filter system referenced [in the patent] to consist of a unitary, elongated filter, as opposed to being composed of several discrete parts.” Dependent claim 5 adds only the limitation that “said porous material is a geotextile material.” The court found that claim was obvious, based on the above reasoning and the fact that “use of geotextile material as a porous material for filtering purposes was well known within the sediment and erosion control industry.” At the close of Dandy’s counterclaim case, ACF moved for judgment as a matter of law of nonmfringement of claims 2 and 6 of the ’888 patent pursuant to Rule 50(a). The court granted that motion as to all three remaining products. The court granted the motion as to the Silt Sack and Ultra Drain Guard, because those products did not filter water and therefore lacked a “porous material” that filtered water. The court granted the motion as to the Gutter-buddy III, because that product also did not have “porous material” capable of fil*760tering “sediment” because its openings were 1/2 inch wide. After trial, the court granted ACF’s motion for all attorneys’ fees ACF incurred in defending against Dandy’s counterclaim. The court did so because it determined that: (1) Dandy should have known its case could not be successful because the “porous material” limitation could not be met in any of the products; (2) Dandy’s evidence at trial was grossly insufficient (i.e., it presented no evidence that the Silt Sack and Ultra Guard filtered water, how any of the products actually worked, produced no technically qualified expert); (3) Dandy did not adequately investigate the case (did not test any of the accused products relying only on descriptions of how they worked from brochures); and (4) it engaged in vexatious litigation conduct. On appeal, Dandy challenges several of the court’s rulings. Dandy challenges the court’s grant of ACF’s motion to amend the court’s judgment entered in accordance with ACF’s offer of judgment. Dandy’s primary argument is that the court erred in its claim construction. Dandy also challenges the court’s application of its construction in granting partial summary judgment of invalidity and in granting JMOL of noninfringement. Lastly, Dandy challenges the court’s award of attorneys’ fees under § 285. DISCUSSION I Dandy argues that the trial court erred in granting ACF’s motion to amend the court’s initial order and judgment issued pursuant to Dandy’s acceptance of ACF’s offer of judgment. Because the court had to amend its order to give effect to the mutual intent of the parties, we hold that the court properly granted ACF’s motion to amend the judgment pursuant to Rule 60(b). First, the court properly decided that ACF’s subsequent, oral clarification of the offer was permissible. Although there is case law in other circuit courts stating that an offer of judgment is irrevocable, e.g., Webb v. Dick James, 147 F.3d 617 (7th Cir.1998), there is no case holding that the offer cannot be clarified before it is accepted. In fact, there is a case holding that such a clarification is permissible. Radecki v. Amoco Oil Co., 858 F.2d 397 (8th Cir.1988); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1240 (4th Cir.1989). Although the offer contained no truly ambiguous terms, there is an absence of information as to what products are covered by the offer. ACF’s subsequent oral communication clarified that only two products were covered by the offer of judgment— the Gutterbuddy I and Gutterbuddy II— even though count one of Dandy’s counterclaim included three other ACF products—the Gutterbuddy III, the Silt Sack, and the Ultra Guard. Thus, the court properly determined that the offer was modified by the subsequent, pre-acceptance communication. Second, we conclude that the court correctly determined that Dandy accepted only the offer as modified. There is no dispute that the clarification was communicated before Dandy accepted the offer and that ACF stated that the offer only applied to the Gutterbuddy I and II products. Thus, the only offer that Dandy could have accepted was the modified offer. Therefore, we conclude that there was mutual assent between the parties on the offer of judgment as modified. The trial court, then, did not abuse its discretion in granting ACF’s motion to amend its judgment entered pursuant to the Rule 68 offer. The court had to do so *761to conform its judgment to the offer as clarified and intended by the parties. II Dandy also challenges several aspects of the trial court’s claim construction. Because we conclude that the trial court committed no errors in construing the claims, we uphold the trial court’s constructions. Dandy first argues that the court erred in not requiring the terms “filter” and “porous material” to mean a single or unitary structure. Dandy asserts that the claims, specification, and the prosecution history all consistently use “an” or “a” or refer to “the filter.” Such references are not enough to limit the claims to a unitary structure. KCJ Corp. v. Kinetic Concepts, Inc., 228 F.3d 1351, 1356, 55 USPQ2d 1835, 1839 (Fed.Cir.2000) (“[A]n indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising.’”). Further, there is no language in the patent or prosecution history that disclaims multiple structures or expressly defines the filter as a single or unitary structure. See, e.g., Teleflex, Inc. v. FICOSA N. Am. Corp., 299 F.3d 1313, 1327, 63 USPQ2d 1374, 1382 (Fed. Cir.2002). Dandy also argues that the purpose of the invention—providing an environmental filter system that is easy to install and maintain—would be frustrated were multiple pieces to be used. This is because, Dandy asserts, filling several gravel bags is time-consuming and each of the multiple bags is heavy to lift and install. Dandy does not, however, explain why multiple pieces would so completely frustrate the purpose of the invention as to take such products outside of the claim language. Indeed, it seems that multiple, smaller bags could have some maintenance advantages, such as ease of cleaning, and installation advantages, such as being adaptable to drains of multiple sizes. In sum, Dandy has not shown that non-unitary structures were disclaimed. Dandy’s next claim construction argument is that the court erred by interpreting the pores in the “porous material” to be of a certain size (1/2 inch). At the threshold, we disagree with the premise of Dandy’s argument—the court’s construction did not require a specific size of pore. The court construed “porous material” as being a material having small openings (or pores) that allow gasses and liquids to pass through while sediment and other solids are substantially blocked from passing through. “Sediment,” in turn, was construed as dust, soil, silt, and other particulates of a type suspended in runoff waters. The court, then, merely applied its constructions of “porous material” and “sediment” to the accused product—and its outer layer containing 1/2 inch holes or pores—and determined that the “porous material” limitation was not met because 1/2 inch holes cannot block particulate matter. Lastly, Dandy argues that the district court erred in not considering that the “permeable body portion” can also perform the function of filtering sediment. This argument clearly fails, as the claims state that it is the “porous material” that blocks the sediment, whereas the “permeable body portion” provides “a degree of rigidity and form to said elongated porous material.” ’888 patent, col. 4, lines 1-9. In sum, because we reject Dandy’s arguments discussed above and several other arguments it makes in its briefing regarding the proper process for claim construction, we hold that the trial court did not err in its claim constructions. In addition, because we uphold the court’s claim constructions, we also affirm the court’s grant of judgment as a matter of law of nonin*762fringement of claims 2 and 6 of the ’888 patent, as Dandy’s arguments on that point depended upon our adoption of its claim construction. III Dandy also challenges the trial court’s grant of partial summary judgment of anticipation of claim 1 of the ’888 patent and obviousness of claim 5 of the ’888 patent. Apart from its claim construction arguments disposed of above, Dandy argues the court erred “[bjecause ACF did not present tests demonstrating how the several gravel burlap bags ... functioned to anticipate or render obvious Claims 1 and 5, it did not meet its burden of showing invalidity by clear and convincing evidence.” The only basis Dandy recites for ACF’s evidence being insufficient is that the court required this evidence from Dandy in proving its infringement case. Dandy’s argument ignores the other evidence ACF presented, namely the expert declaration of Jerald Fifield (authenticating his drawings and photographs of the prior art system and describing how it operates based on his own use and teaching of the system). The failure to test the prior art product does not raise a genuine issue of material fact in light of this evidence. Therefore, we hold that the trial court properly granted partial summary judgment of invalidity of claims 1 and 5 of the ’888 patent. IV Dandy’s final argument is that the court clearly erred in finding that this was an “exceptional” case and abused its discretion in awarding attorneys’ fees to ACF. Dandy challenges each of the trial court’s reasons for awarding attorneys’ fees to ACF. First, it argues that it was not the court’s construction of the term “porous material” that made its infringement case not well founded; rather, it was the court’s modification of that construction to include a 1/2 inch size limitation. As discussed earlier, the court did not change its constructions; it merely applied them to the facts. Second, Dandy argues its proofs at trial were not legally insufficient because the court excluded its only testing evidence and because it reasonably relied on an ACF brochure stating that its products were “filters.” But the court did not abuse its discretion when it excluded the testing evidence, as Dandy first revealed it had done any testing at trial while questioning a witness. This late disclosure violated the discovery requirements. Also, it was made clear at trial that the devices did not “filter,” but rather blocked water. Third, Dandy argues that it went to trial on advice of counsel, that ACF’s offer of judgment shows that its case had merit, and that the case law relied on by the district court did not compel it to award attorneys’ fees. But Dandy never had a qualified technology expert give it an infringement opinion; nor did it have one testify at trial. In addition, the lack of testing or knowledge of the accused devices would make any advice of counsel suspect. In short, nothing Dandy argues demonstrates clear error in any of the court’s subsidiary factual findings leading to its finding that this was an exceptional case; nor does Dandy demonstrate that the court abused its discretion in awarding attorneys’ fees. Dandy’s fall-back position is that even if the court properly granted attorneys’ fees, the court nonetheless erred in awarding all costs incurred by ACF in defending against the counterclaim because the court only found unreasonable Dandy’s continued pursuit of its infringement case after the court’s construction of the claims in its Markman order. Thus, Dandy argues, the court should only have awarded post*763Markman order costs. The court, however, found that “Dandy was aware both before and after the Court issued its Markman opinion that the Gutterbuddy and ACF curb adapter products could not infringe the claims of the ’888 Patent.” The court charged Dandy with pre-Markman order knowledge of the weakness of its case because Dandy had urged the construction the court adopted and because Dandy had argued in a prior case that “the wire mesh with 1/2 inch openings disclosed in a prior art reference did not anticipate the ’888 patent because the wire mesh could not be porous material.” In light of this reasoning, we cannot say the trial court abused its discretion in awarding ACF’s attorneys’ fees for its entire defense of Dandy’s infringement counterclaim. CONCLUSION In conclusion, because we hold the trial court did not err in making any of its rulings, we affirm.

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PER CURIAM. Bradley E. Farris seeks review of the final decision by the Merit Systems Protection Board (“Board”) in 2002 dismissing his 1996 appeal of his separation from his position as a mail handler. Farris v. U.S. Postal Serv., No. AT0752000293-M-1 (Oct. 29, 2002). The Board ruled that he submitted his resignation from the United States Postal Service (“agency”) and it was voluntary and therefore the appeal fell outside of the Board’s jurisdiction. Id, Because the Board’s finding of the voluntariness of Farris’s oral resignation is supported by substantial evidence, including evidence addressed in the remand decision *764about the agency’s personnel manual which contains procedures concerning acceptance of resignations, we affirm. This is the second time this case has been before this court. In the first appeal, we vacated and remanded the decision for lack of jurisdiction because the Board “overlooked a key piece of evidence that bears on whether Mr. Farris’s resignation was voluntary.” Farris v. U.S. Postal Serv., 26 Fed.Appx. 963, 965 (Fed.Cir.2002) (“Federal Circuit Decision”). Specifically, the Board neglected to consider whether the agency’s personnel manual supported or controverted the finding that Farris’s telephone resignation was voluntary, although Farris had raised the issue and cited the manual before the Board. Id. In remanding, this court took no position on the ultimate question, but merely directed the Board to make that determination in the first instance after addressing the previously overlooked evidence. Id. at 966. That evidence was just the manual provision. Having now demonstrated careful scrutiny of both the manual—that resignation in writing is preferred but not required and oral resignations “must” be accepted - and the testimony explaining the agency personnel’s nonconformance with the customary paperwork procedures for recording oral resignations, the Board has shown in its remand opinion that the additional evidence actually supports its original decision. Farris v. U.S. Postal Serv., No. AT0752000293-M-1, slip op. at 7 (Sept. 24, 2002). Indeed, the Board simply reissued its earlier opinion with several pages added. The Administrative Judge found based on conflicting testimony that Farris did resign over the phone and was not coerced. Id. at 9. Indeed, the years of delay before the appeal hardly support his claim of being misunderstood or coerced. Further, the Board found “there was nothing nefarious about the timing of [the supervisor’s] recording of the appellant’s oral resignation or her failure to use the proper form, just a lack of experience in handling resignations.” Id. at 6. And also, that the supervisor’s delay and failure to use the proper form to record the resignation “do not detract from her credibility.” Id. The Administrative Judge had accepted the supervisor’s testimony about the content of the phone call, rejecting Farris’s in which he denied saying he was resigning. Because we conclude that the manual evidence adds to rather than diminishes the prior evidence, we hold there was substantial evidence supporting the Board’s remand decision, including on the sole issue for further consideration in this court’s remand instructions—what “evidentiary weight [should be given] the agency’s rules on how voluntary resignations are to be processed,” Federal Circuit Decision at 965. We therefore must affirm.

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DECISION PER CURIAM. Thomas B. Jackson (“Jackson”) petitions for review of the decision of the Merit Systems Protection Board (“Board”), which dismissed his petition after Jackson, through his attorney, withdrew his appeal. Jackson v. Dept. of Veterans Affairs, MSPB Docket No. CH-0432-02-0236-I-1, 93 M.S.P.R. 303 (May 21, 2002) (petition for review denied Aug. 15, 2002). Because the Board’s decision is not arbitrary, capricious, or an abuse of discretion, and is otherwise in accordance with law, this court affirms. BACKGROUND Jackson was employed at the Veterans Affairs (“VA”) Outpatient Clinic in Peoria, Illinois as a Supervisory Social Worker for approximately seven years. In January 2001, he made a formal Equal Employment Opportunity (“EEO”) complaint alleging that he was harassed, discriminated against, and generally treated unfairly by supervisors at the VA. In August 2001, he was removed from VA employment for performance problems. The decision regarding his EEO complaint was rendered in December 2001, which found that he did not establish discrimination as set forth in his complaint. Jackson appealed his decision to the Board in January 2002, and designated counsel that same month. The following May, Jackson’s attorney filed “Appellant’s Withdrawal of Request For Hearing,” wherein it was noted, “Jackson respectfully requests that the Administrative Judge grant his withdrawal of this appeal before the Board.” Following the request for withdrawal, the Administrative Judge (“AJ”) dismissed the appeal since no matter remained for adjudication. Jackson, now acting pro se, filed a petition for review with the Board in June. With his petition, he submitted what he considered to be new evidence to support his claims of discrimination. He made no mention of his previous withdrawal, other than a reference that implied he was unable to spend any additional money on attorney’s fees associated with the proceeding. The Board denied the petition in August 2002, citing a lack of new and material evidence and no errors on the part of the AJ. Thus, the AJ’s initial decision was made final and this timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION This court must affirm the Board’s decision unless it is arbitrary, capricious, an *766abuse of discretion, or otherwise' not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed.Cir.1986). Withdrawal of an appeal is an act of finality that removes an appeal from the Board’s jurisdiction. Spencer v. R.R. Ret. Bd., 93 M.S.P.R. 80, 82 (2002). The relinquishment of one’s right to appeal to the Board must be by clear, unequivocal and decisive action. Etheridge v. Dep’t of Veterans Affairs, 67 M.S.P.R. 53, 56 (1995). Absent unusual circumstances such as misinformation or new and material evidence, the Board will not reinstate an appeal once it has been withdrawn. White v. United States Postal Serv., 92 M.S.P.R. 113, 114 (2002). A person appearing before the Board is bound by the actions of his or her selected representative, regardless of the representative’s expertise. Duncan v. Merit Sys. Prot. Bd., 795 F.2d 1000, 1002-03 (Fed.Cir.1986) (holding petitioner to be bound by non-lawyer representative’s withdrawal of appeal); Massingale v. Merit Sys. Prot. Bd., 736 F.2d 1521, 1523 (Fed.Cir.1984) (holding petitioner’s filing of appeal to be untimely even though petitioner was advised to delay filing by union representative); Johnson v. Dep’t of Treasury, 721 F.2d 361, 365 (Fed.Cir.1983) (holding petitioner “cannot now avoid the consequences of the acts or omissions of this freely selected [attorney] agent.”) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). Here, Jackson’s attorney clearly withdrew his appeal in the May ‘Withdrawal of Request for Hearing,” in clear, unequivocal language. This withdrawal removed the appeal from the jurisdiction of the Board; thus the Board did not act arbitrarily or capriciously, nor did it abuse its discretion or act not in accordance with the law by dismissing the appeal. Jackson’s petition for review did not present any accusations of misinformation to him on the part of his attorney; such accusations may have given the Board the opportunity to reinstate the appeal. See White, 92 M.S.P.R. at 114. Jackson made statements in his response to the Board’s brief that indicate at least some confusion on his part regarding the effect the dismissal had on his case and his misunderstanding that he could continue his appeal pro se. He did indicate both in his petition and response that he was concerned about the amount of money spent on his attorney up until the withdrawal. Whether he communicated to his attorney that he wished to withdraw his representation rather than his appeal is not before us, nor has this ever been expressed. When faced with an action from Jackson’s counsel withdrawing the appeal, the Board cannot assume that the actions of counsel “fail to reflect the [party’s] own desires.” See Johnson, 721 F.2d at 365. Thus, the Board’s dismissal, based on the withdrawal made by Jackson’s attorney, was proper. We accordingly affirm the Board’s decision dismissing Jackson’s appeal.

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RADER, Circuit Judge. Petitioner James Martin appeals the October 21, 2001 initial decision of the administrative judge, made final by the January 10, 2002 decision of the Merit Systems Protection Board (Board), which dismissed Mr. Martin’s appeal as untimely. Because Mr. Martin filed this appeal over eight years late without explanation for the delay, this court affirms. BACKGROUND The United States Postal Service removed Mr. Martin from his position as a letter carrier with the Memphis Post Office by letter dated June 1, 1993, which indicated the effective date of the removal as June 21, 1993. Mr. Martin, through his attorney, appealed the Postal Service’s action to the Board on August 7, 2001. On August 15, 2001, the Board’s administrative judge issued an acknowledgement order advising him that his appeal appeared to be untimely and ordering him to submit “evidence and argument showing that [his] appeal was timely filed or that good cause existed for the delay.” The acknowledgement order gave Mr. Martin fifteen days to submit his evidence and argument on the timeliness issue. Mr. Martin did not respond to the acknowledgement order. On October 22, 2001, the administrative judge issued an initial opinion dismissing Mr. Martin’s appeal as untimely filed. The initial decision explained: [T]he Board’s regulations require that an appeal be filed within 30 days after the effective date of the relevant action, or 30 days after the date of receipt of the agency’s decision, whichever is later. See 5 C.F.R. § 1201.22(b).... [T]he appellant has the burden of proof by preponderant evidence on the issue of timeliness. See 5 C.F.R. § 1201.56(a)(2)(h). *768[T]he present appeal was filed with the Board over 8 years after the effective date of the appellant’s removal. The appellant has provided no explanation for this lengthy filing delay, despite being specifically directed to do so. Mr. Martin filed a petition for review with the full Board, which failed to address the timeliness issue. The Board denied Mr.-Martin’s petition on January 10, 2002 for failing to satisfy the standard of review set forth in 5 C.F.R. § 1201.115. This appeal followed. DISCUSSION This court must affirm the Board’s decision unless it is (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law, (2) obtained without procedure required by law, rule, or regulation having been followed, or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Walls v. Merit Sys. Protect. Bd., 29 F.3d 1578, 1581 (Fed. Cir.1994). Mr. Martin, in his initial brief to this court, again failed to address the sole issue on appeal, timeliness. Mr. Martin only attempts to address the timeliness question in his reply brief with blanket statements that he “meant no disrespect to the MSPB” for failing to respond to the administrative judge’s order. Mr. Martin has not shown that the Board’s decision was in any way arbitrary or capricious, obtained without following proper legal procedure, or unsupported by substantial evidence. The record undeniably shows that Mr. Martin filed his appeal over eight years late without explanation. Accordingly, the final decision of the Board is affirmed.

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07-25-2022

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PER CURIAM. Deirdre La Cour petitions for review of the decision of the Merit Systems Protection Board (“Board”) effective March 6, 2002, Docket Nos. DA-0752-01-0694-1-1 and DA-0752-02-0122-1-1, dismissing, without prejudice, her appeals filed on September 11, 2001 and November 21, 2001 contingent on their being refiled by March 13, 2002. Because La Cour’s arguments are not properly before this court, as they do not address what the Board decided, but issues the Board has yet to be presented with, we dismiss for lack of jurisdiction. BACKGROUND Ms. La Cour filed two appeals with the Board. On September 11, 2001 she filed an appeal alleging that she was constructively suspended by the United States Postal Service (“USPS”). On November 21, 2001, Ms. La Cour filed another appeal, this time alleging the USPS had constructively suspended her during a different time period, had failed to notify her of her appeal rights, and discriminated against her because of her request for an accommodation for her disability. By order dated November 28, 2001, an administrative judge (“AJ”) joined La Cour’s two appeals. On January 29, 2002, in the face of an imminent hearing, La Cour notified the AJ that she no longer had union representation and that she needed time to obtain a new representative. As a result, one day later, the AJ issued a decision dismissing, as of March 6, La Cour’s joined appeals without prejudice to her right to refile on or before March 13, 2002. La Cour has not refiled her appeals with the Board, either before or after March 13. Nor did she proffer to the Board the reasons for delay she argues to us. She nevertheless now petitions this court through counsel to review the AJ’s decision dismissing her appeal. DISCUSSION La Cour argues that she had good cause for her delay in filing her November 21, 2001 appeal and her failure to refile her joined-appeal by March 13, 2002. These arguments, however, are improper because neither issue was ever decided by the Board. These arguments must be presented to and decided by an AJ in the first instance. Only if the Board reaches a “final decision,” presumably deciding these points, would we have jurisdiction to review them. 28 U.S.C. § 1295(a)(9) (2000) (“The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction-® of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5.”); 5 U.S.C. § 7703(a)(1) (2000) (“Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.”). As the record currently stands, the only Board decision before us is that dismissing the joined appeal without prejudice. Although purportedly appealing from that decision, petitioner makes no challenge to it. Indeed, she all but requested that decision. Instead, her arguments are directed to other issues not there decided. Yet, for us to reach any of these other rulings or issues would require us to act as an initial adjudicator and as a fact-finder—something we, as a court of review, lack jurisdiction to do. Rather, we may only review final decisions of the Board. See, e.g., 28 U.S.C. § 1295(a)(9); 5 *770U.S.C. § 7703(c) (“In any case filed in the Court of Appeals for the Federal Circuit, the court shall review the record. ” (emphasis added)). For these reasons, we dismiss.

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PER CURIAM. The decision of the Merit Systems Protection Board (“Board”), affirming the reconsideration decision of the Office of Personnel Management (“OPM”) that denied the petitioner Klenn S. Grant federal disability retirement benefits because his application was untimely filed, is affirmed. I The facts are undisputed. Grant was separated from federal employment on December 26, 1994, after working for forty-one months for the Indian Health Service. More than six years later, on January 11, 2001, he applied to OPM for a disability *771retirement annuity. In its reconsideration decision, OPM denied the application as untimely. Grant challenged that action before the Board. In her initial decision, which became final when the full Board refused to review it, the Board’s administrative judge rejected Grant’s contention that the one-year statutory period for applying for a disability retirement should be waived because of his mental incompetence. Grant v. OPM, No. DE-844E-02-0044-I-1 (May 14, 2002). She found that Grant “has failed to establish by a preponderance of the evidence that he was incompetent between. December of 1994 and January of 2001.” Id. at *7. The administrative judge stated the following “undisputed” facts relating to that issue: Grant applied for and received a Social Security disability annuity. Id. “A 1997 SSA [Social Security Administration] psychiatric assessment does not indicate any competency problems.” Id. In his original application to OPM, Grant stated that he had delayed filing it until 2001 “because of the time it took to compile the necessary documentation.” “In a submission to OPM dated April 26, 2001, the appellant stated that he was not incompetent. The appellant’s treating physician since 1993, Dr. Odegaard, stated in a July 24, 2001 letter that, as long as he has known the appellant, the appellant has been competent to make his own decisions regarding his medical care, financial affairs, and other concerns.” Id. Grant “submitted a January 23, 2002, assessment from Dr. Victor Houser explaining the appellant’s post traumatic stress disorder. However, Dr. Houser did not state that the appellant was not competent nor does the statement explain why the appellant’s health problems prevented him from applying for disability until January of 2001.” Id. II Under 5 U.S.C. § 8453 (2000), an application for disability retirement benefits must be filed with OPM before the employee is separated or “within 1 year thereafter.” OPM may waive this time limitation for an employee “who, at the date of separation from service or within 1 year thereafter, is mentally incompetent. ...” 5 U.S.C. § 8453. In that situation, the employee must file an application within one year of regaining competency. Id. Grant contends that the Board failed to consider two statements of Dr. Houser. The Board discussed Dr. Houser’s first statement of January 23, 2002, but found it unpersuasive because “Dr. Houser did not state that the appellant was not competent nor does the statement explain why the appellant’s health problems prevented him from applying for disability until January of 2001.” Grant, No. DE-844E-02-0044I—1, at *7. Dr. Houser’s second statement was dated June 17, 2002, which was more than thirty days after the administrative judge issued her initial decision on May 14, 2002. She cannot be faulted for failure to consider that letter. Moreover, the letter did not unequivocally state that Grant had been mentally incompetent, but only that, in view of the medical problems from which Grant suffered, “I would not find it surprising that he lacked ‘minimal capacity to manage his own affairs,’ during the dates in question.” In view of the foregoing facts, we cannot say that the Board’s decision that Grant was not mentally incompetent between December 1994 and January 2001 is “unsupported by substantial evidence,” which is the standard for our review of Board factual determinations. 5 U.S.C. § 7703(c)(3). The Board was fully justified in affirming *772OPM’s denial of Grant’s application for retirement disability benefits.

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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, Wiley Y. Daniel, Senior United States District Judge This case, arising under the Federal Tort Claims Act (“FTCA”), involves a premises liability claim under the Colorado Premises Liability Act (“CPLA”) against the United States. It arises from a bicycle accident of Plaintiff James Nelson on property of the United States Air Force Academy. Plaintiffs claim that Mr. Nelson suffered injuries in that accident when he fell into a large, unmarked sinkhole that bisected the entire width of a bicycle path that he was riding on. Plaintiff Elizabeth Varney, Mr. Nelson’s wife, brings a loss of consortium claim. By Order of November 12, 2013, I struck the jury trial based on the parties’ stipulation that this case must be tried to the court by statute. See 28 U.S.C. §§ 2402, 1346(b)(1). I also bifurcated the issues of liability and damages. A bench trial was held on December 2-5, 2013. This trial was on liability only. Plaintiffs James Nelson and Elizabeth Varney appeared and were represented by David P. Hersh and Steven G. Greenlee of the firm Burg Simpson Eldredge Hersh & Jardine, P.C. Defendant United States of America was represented by W. Aaron Vandiver and Mark Pestal of the United States Attorney’s Office. Having heard and considered the evidence, including stipulated facts, live witness testimony, deposition testimony, admitted exhibits submitted by the parties, counsel’s arguments, and the parties’ proposed findings of fact and conclusions of law, I now enter the following Findings of Fact, Conclusions of Law and Order. *1115 I.FINDINGS OF FACT A. UNDISPUTED FACTS1 1. This case arose from a biking accident that occurred on an asphalt paved path (“the asphalt path” or “the path”) on real property owned by the United States Air Force Academy (“Academy” or “USA-FA”) in Colorado Springs, Colorado. 2. The biking accident occurred on September 3, 2008. 3. Before September 3, 2008, an asphalt paved path located on the east side of Colorado Interstate 25 (“1-25”), paralleling the highway, existed near the eastern boundary of the Academy. 4. The United States is the landowner of the property for purposes of the CPLA, Colo. Rev. Stat. § 13-21-115, and the Colorado Recreational Use Act, Colo. Rev. Stat. § 33-41-101, et seq. 5. The property where the accident occurred was part of a United States Air Force installation known as the Air Force Academy and is located on the northern edge of Colorado Springs, Colorado. 6. The Academy encompasses approximately 18,500 acres. 7. The installation includes an academic campus, airfield, sports stadium, golf course, housing, commercial areas, and designated multi-use recreational trails. 8. In July 1958, the USAFA granted an easement to the Colorado Department of Highways (now the Colorado Department of Transportation) (“CDOT”) for the construction of a highway, designated currently as 1-25. 9. The USAFA also granted Mountain View Electric Association (“MVEA”) an easement in this same area to build and maintain an overhead utility line. 10. The asphalt path was located within the CDOT easement through which 1-25 was located. 11. Mr. Jeffrey Thoma, the head of USAFA security, did not monitor the path. 12. The USAFA’s property had a border fence to the east of the asphalt path with a sign that read, “Warning. U.S. Air Force Installation. It is unlawful to enter this area without permission of the Installation Commander. Sec 21, Internal Security Act of 1950; 50 U.S.C. § 797. While on this installation all personnel and the property under their control are subject to search.” 13. The asphalt path on which the biking accident occurred was not identified on the USAFA’s Real Property Record. 14. The USAFA maintained a series of official recreational and multi-use trails throughout the installation. 15. The Faldón Trail was located west of 1-25 and received hundreds of users per week. 16. The asphalt path where the accident occurred was not part of the USA-FA’s official trail system. 17. The USAFA had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails. 18. The Trails Management Plan did not apply to unofficial trails. 19. The USAFA did not act to prevent the public from entering its property to use the asphalt path. 20. At the time Mr. Nelson was injured on September 3, 2008, the north entrance to the asphalt path was marked with a sign *1116that read: “Bicycle Path, No Motorized Vehicles.” The sign was off of the USAFA property. 21. There was a USAFA “Warning” sign in the area, but it was located about 30 to 45 feet to the east of the “Bicycle Path” sign. 22. The entrance to the path was a clear opening where the USAFA boundary fence ended. The fence ends at that location with an engineered/planned corner/ending. 23. The USAFA boundary fence did not cross the path. 24. The USAFA did nothing to remove the “Bicycle Path, No Motorized Vehicles” sign prior to September 3, 2008. 25. CDOT offered to remove the bicycle path sign prior to September 3, 2008, but USAFA did not request that the sign be removed. 26. Specifically, Debbie Barrett was asked by CDOT in 2007 whether the USA-FA wanted to remove the “Bicycle Path” sign. 27. Before September 3, 2008, the path was used by members of the public for recreational purposes, such as walking, jogging, and bicycling. 28. James Nelson had ridden his bicycle on the path prior to September 3, 2008. 29. Mr. Nelson had visited the USAFA on previous occasions. 30. Mr. Nelson did not pay a charge to anyone to use the path. 31. Analysis of Mr. Nelson’s bicycle by Defendant’s expert, Mr. Nicholas Ault, indicates that Mr. Nelson struck the sinkhole with sufficient force to cause substantial damage to various parts of the bicycle. 32. James Nelson was aware of the “Bicycle Path, No Motorized Vehicles” sign prior to September 3, 2008. 33. James Nelson knew the property where the path was located was on USA-FA property. 34. Mr. Nelson has no memory of September 3, 2008, or the incident. 35. Mr. Nelson cannot remember what time he left his house. 36. Mr. Nelson’s wife, Ms. Varney, made a handwritten statement to police on September 3, 2008, stating, inter alia, that Mr. Nelson left the house at 8:00 p.m. Ms. Varney signed the statement. 37. The bicycle Mr. Nelson was riding was not equipped with a headlight. 38. While riding on the path, James Nelson fell into a sinkhole on the path. 39. The sinkhole encompassed the entire width of the asphalt path. 40. From 2000-2008, Dr. Mihlbachler was employed by the United States Fish and Wildlife Service as a biologist. 41. Dr. Mihlbachler was stationed at the Academy as the Natural-Resources Manager. 42. Dr. Mihlbachler’s job at the Academy involved going out and surveying areas throughout the Academy and monitoring the landscape. He had responsibility for managing the natural resources — including the land, vegetation, and animal life — on the Academy’s 18,500 acres. Dr. Mihlba-chler had additional responsibility to determine the impact of erosion on an endangered species, the Preble’s Meadow Jumping Mouse. Dr. Mihlbachler was also managing a number of multi-million dollar erosion remediation projects in the area. 43. Dr. Mihlbachler was looking at the erosion effects on Academy property located on the east side of 1-25. 44. On August 20, 2008, Dr. Mihlba-chler took a number of photographs of *1117erosion problems caused by storm water draining onto the property from residential neighborhoods east of the property. 45. The sinkhole on the path was photographed on August 20, 2008, by Dr. Mihlbachler. 46. Dr. Mihlbachler did not consider the sinkhole a high priority relative to all the other erosion issues that he was dealing with along the eastern boundary. 47. Dr. Mihlbachler did not report the sinkhole or show the photographs to anyone else before September 3, 2008. 48. Dr. Mihlbachler thought the path was a service road used by CDOT or MVEA. 49. Dr. Mihlbachler had seen CDOT and MVEA service crews using the path as a service road from 2000-2008. 50. Dr. Mihlbachler did not believe the path was an official recreational trail, or that outside users were invited or permitted to use the path for recreation. 51. Dr. Mihlbachler did not believe there was an urgent need to have the path repaired because it was on the CDOT and MVEA easement and was present for their use. 52. Dr. Mihlbachler testified that he had never seen the “Bicycle Path” sign near the north end of the path. 53. The USAFA had a “work order” review process. 54. The USAFA had a work-order-request-review board, consisting of a number of officials, such as Mr. Greg Long, the asset manager of the property in 2008. 55. Sunset on September 3, 2008, was 7:25 p.m. 56. James Nelson was found by a jogger near the asphalt path on the morning of September 4, 2008. 57. Plaintiffs submitted their claim regarding the biking accident to the USAFA on August 25, 2010. 58. The USAFA denied the claim on September 23, 2011. 59. Plaintiffs filed this lawsuit against the United States under the CPLA on November 14, 2011. B. FINDINGS OF ADDITIONAL FACT 1. James Nelson was injured as a result of the bicycle accident on September 3, 2008, on a path owned by the USAFA. 2. Mr. Nelson left his home in Colorado Springs, Colorado, at approximately 7:20-7:25 p.m. to go for the bicycle ride. This finding is based on Ms. Varney’s testimony which I find credible that the family started dinner on September 3, 2008, at 7:00 p.m. and finished at 7:10 p.m. Thereafter, while Ms. Varney and the rest of the family went in to watch television, Mr. Nelson cleaned a bad smell from his truck. This took about ten minutes, and he was finished at approximately 7:20 p.m. He then left the house for his bicycle ride. 3. Mr. Nelson told Ms. Varney he was going for a “quick” or “fast” bicycle ride. Ms. Varney understood this to mean that he would be back from his ride in about 15 minutes. 4. Mr. Nelson’s habit was to make his bicycle rides 15 to 20 minutes. 5. Mr. Nelson’s habit was not to ride his bicycle if it was dark. 6. Mr. Nelson’s habit for bicycle riding was to ride fast to exercise and get his heart rate up. 7. Mr. Nelson estimated that the average speed for his bicycle rides on the asphalt path was up to 20 to 25 miles per hour. *11188. There is no evidence that Mr. Nelson’s speed was unreasonable. 9. Mr. Nelson rode his bicycle approximately 2 -2.4 miles after leaving his home. 10. James Nelson rode his bicycle on the asphalt path, which ran parallel to I-25. 11. The path was not lighted. 12. Mr. Nelson believed that the USA-FA permitted him and other members of the public to use the path for recreational purposes. 13. Sometime after he left his house, Mr. Nelson encountered the sinkhole on the path, lost control of the bicycle, and sustained injuries. 14. At the likely speed Mr. Nelson was riding at the time, and based on the likely route he would have taken, it would have taken him approximately 10 to Í5 minutes to reach the sinkhole. Thus, Mr. Nelson would likely have encountered the sinkhole at approximately 7:30 p.m. to 7:40 p.m. 15. The end of civil twilight was 7:53 p.m. 16. Taking the times of sunset and civil twilight into account, Defendant’s witness Nicholas Ault testified that if it took Mr. Nelson approximately ten minutes to get to the sinkhole after leaving his home at 7:20 p.m., he would have still have had 25 to 40 minutes of light at that time. He also testified from his observations of the accident scene on July 12, 2012, that there was sufficient light to see for approximately 30 minutes after sundown. After 30 minutes, it became more and more difficult to see. 45 minutes after sunset, Mr. Ault needed a flashlight to safely navigate the path.2 17. At around 8:00 p.m. or a few minutes thereafter, after the television show she was watching ended, Ms. Varney realized that Mr. Nelson had not come home from his bicycle ride. 18. Ms. Varney went outside to look for Mr. Nelson. She testified that it was still light outside, and that she did not need a flashlight. 19. There is no evidence that a headlight was necessary for Mr. Nelson to safely ride on the asphalt path on September 3, 2008. There is no evidence that the presence or use of a headlight on September 3, 2008 would have made any difference in preventing the injuries sustained by Mr. Nelson. 20. Based on the evidence that I have outlined herein, sufficient available daylight existed such that it was reasonable for Mr. Nelson to ride his bicycle on the path without a headlight. 21. When Ms. Varney did not find Mr. Nelson, she knew something was wrong and called the police. This occurred about 8:10 p.m. on September 3, 2008. 22. When the police had not arrived, Ms. Varney called the police again at approximately 10:00 p.m. The police arrived at Ms. Varney’s and Mr. Nelson’s home at approximately 10:30 p.m. 23. Witness Jesse Kurtz, who encountered the sinkhole while jogging when the sun was up the morning after Mr. Nelson’s accident, thought the sinkhole was water until he was significantly closer to it. 24. On the other hand, Dr. Mihlbachler testified that the sinkhole was large and readily visible during the day. *111925. The path where the injury occurred was located within and on the USAFA’s real property and the USAFA owned that property. 26. The USAFA, through its representative Johnny Van Winkle, told the public immediately after Mr. Nelson’s accident that it was the Academy’s responsibility to fix the path. He also said that upkeep of the property was the Academy’s responsibility. Mr. Van Winkle is the public relations officer at the USAFA serving as a deputy chief of media relations and the public affairs director. He was authorized as part of his duties to speak to news outlets and provide them information' about the USAFA as well as answer questions about events that occurred on the USAFA. 27. Other than the United States, no person or entity has claimed any ownership or control over the property and path. 28. The easement granted to CDOT and the Memorandum of Understanding and contractual obligations related to the easement do not discuss who is responsible for maintenance of the path. 29. CDOT representatives Michael Shay and Russell Bircher testified it was not CDOT’s responsibility to maintain the path. Indeed, Mr. Bircher testified that CDOT does not maintain any bicycle paths. There is no evidence to the contrary. 30. Mr. Bircher also testified that if CDOT had wanted to do any work on the asphalt path, it would have had to contact the USAFA for permission since the path was on Academy property. While Mr. Bircher admitted to performing some minor maintenance on the asphalt path during the 1990s, he was told by his supervisor to stop performing such work as it was not CDOT’s responsibility. 31. CDOT representative Mr. Shay testified that there is no evidence that CDOT constructed the path, as any such construction would have been on a plan set. CDOT has plan sets back to the 1930s, and the path is not on any of those plan sets. 32. There is no evidence that MVEA was responsible for maintenance of the path under the easement or otherwise. 33. The USAFA did not need permission from anyone, including CDOT, to take action with respect to the sinkhole because it was on its property. 34. In 2007, CH2M Hill Academy Services (“CHAS”) entered into a contract with the USAFA (“the CHAS Contract”). 35. The CHAS Contract required CHAS to maintain only those paths and trails that were identified on the Academy’s Real Property Record. 36. Because the asphalt path was not identified on the Academy’s Real Property Record, maintenance of the path did not fall within the scope of the CHAS contract. 37. The USAFA knew that the path existed on its property prior to September 3, 2008. 38. The USAFA does not know when the path was constructed, by whom, or for what purpose. 39. Aerial photographs (Ex. 13) suggest the path has existed since at least the 1960s. 40. The asphalt path could be seen from 1-25. 41. There is no evidence that the USA-FA used the asphalt path for any official functions, with the minor exception being a training exercise in 1984. There is also no evidence that the path had any official Academy use. 42. The path is not and has not been actively maintained by the USAFA. *112043. Before Mr. Nelson’s injury, the USAFA knew that members of the public used the path where Mr. Nelson was injured. 44. Ms. Debbie Barrett received an email from Brian Kay of the El Paso County Parks Department that referred to the asphalt path and attached photos of the path and the bicycle path sign. (Ex. 4.) While Ms. Barrett admitted receiving this e-mail, she does not recall seeing the attached photographs. The e-mail advised that as a result of meetings and conversations last year, Mr. Kay had “been working under the guidance that this was a ‘utility maintenance road’ and NOT a trail, and discouraging people from trespassing on AFA property.” (Id.) It also stated that Mr. Kay was advised in a meeting with CDOT that a “Bike Path” sign is posed on the northern end of the trail (a photo of which is attached to the e-mail), asks if some research could be done by the USAFA about the path and its easements, and says the Parks Department wanted to give the USAFA the “heads-up in case questions come your way.” (Id.) Ms. Barrett testified that she did not do anything in reference to this e-mail or try to ascertain what Mr. Kay was taking about; it just kind of fell off her radar. 45. Ms. Barrett also received an e-mail from a CDOT project engineer responding to Mr. Kay’s e-mail and asking her to keep him informed of the trail situation. (Ex. 5.) The engineer asked Ms. Barrett if she would like CDOT to remove the “Bicycle Path” sign. Ms. Barrett forwarded the email to Real Property specialist, Karen Leikam, who was employed by CHAS, and asked her to respond to the two e-mails. Ms. Barrett took no further action with regard to the e-mails. She also never received any information back from Ms. Leikam about the e-mails. There is no evidence in the record that Ms. Leikam took any action with respect to the e-mails or responded to same. 46. The USAFA’s “Warning” signs prohibiting entry to Academy property were posted around the perimeter of the base. There is no evidence, however, that they were conspicuous to persons entering the property to access the asphalt path. 47. Three-strand barbed wire USAFA boundary fencing was located on the property near where Mr. Nelson was injured both before and after the accident. The purpose of this fencing was to keep unauthorized personnel from gaining access to .Academy property. The fence ended before the asphalt path. 48. The public, including Mr. Nelson, could access the asphalt path before September 3, 2008, because there were no barricades, barriers, or fences to block the entrance to the path. 49. The path was not a recreational path identified on records of USAFA property and the USAFA did not designate or maintain the path as a recreational trail. 50. The USAFA understood how to make other parts of its property available for recreational use as it took steps to make trails available to the public, such as the Santa Fe Trail and the La Foret Trail. 51. All of the official trails were unpaved, and were located west of 1-25. 52. The USAFA did not take any action or steps to make the asphalt path available to the public or James Nelson. 53. There were no official USAFA publications or literature that invited the public to use the asphalt path or showed the path as one the public could use. 54. Prior to the accident, the USAFA represented to El Paso County that the path was not open for public use. *112155. The USAFA took no actions prior to September 3, 2008, that invited the public to use the path. 56. The USAFA did not intend for the path to be a public recreational trail. 57. The path was not authorized for recreational use by the USAFA prior to September 3, 2008. 58. The USAFA considered people who used the path as unauthorized and trespassers. 59. Despite considering the path closed to the public and despite considering public users of the path unauthorized or trespassers, the USAFA took no action prior to September 3, 2008, to prevent the public from entering its property to use the path. 60. The USAFA also did not did not take any measures to guard against or warn anyone using the path of the sinkhole condition prior to September 3, 2008. 61. There is no evidence that the USA-FA considered any political, social, or economic policies in deciding not to warn or guard against the dangerous sinkhole. 62. According to Ms. Barrett, the consensus reached after an investigation by the Academy was that Mr. Nelson was unauthorized and was a trespasser on the property when he was injured on September 3, 2008. 63. The USAFA continues to view Mr. Nelson as a trespasser on the path. 64. Mr. Greg Long testified that the Academy is an open campus and that officials often refrained from interfering when members of the public used Academy property for recreational purposes. 65. Mr. Long also testified, however, that prior to September 3, 2008, if people were observed on the asphalt path by Academy personnel, he believed they should have stopped them and asked what they were doing there or, if the people could not be confronted directly, the Academy personnel should have brought the issue back to the squadron for an investigation since it was not an authorized trail. 66. The “Bicycle Path” sign was posted near the beginning of the north end of the path, about 45 feet outside the USAFA’s property line. 67. The sign was located near an opening in the USAFA’s boundary fence, through which access to the path was possible. 68. There was a similar sign near the south entrance to the path. 69. The “Bicycle Path” signs are not USAFA signs. No one knows when the bicycle signs were erected or by whom. 70. There is nothing about the “Bicycle Path” sign that would tell a member of the general public that it is not a sign of the USAFA. 71. According to Ms. Barrett, after Mr. Nelson’s accident the USAFA determined through an investigation that the “Bicycle Path” signs were unauthorized and had been installed by unknown third persons. 72. The USAFA did not intend for the “Bicycle Path” signs to be an invitation to the public to use the path. 73. USAFA representatives, including Ms. Barrett and Mr. Long, testified that because of the existence and placement of the “Bicycle Path, No Motorized Vehicles” sign in relation to the path, third parties would reasonably believe that they were authorized or invited to go on the path and ride their bicycle. 74. The sinkhole across the path that Mr. Nelson encountered during the accident was the result of wash-out/erosion problems in the area. 75. More specifically, the sinkhole on the path was the result of off-site water *1122flow onto USAFA property that overwhelmed the culvert running under the path, causing a washout. 76. Off-site water flow onto USAFA property in the area of the asphalt path was a known condition and problem that USAFA had been investigating, documenting, and addressing for many years before September 3, 2008. 77. USAFA representatives, including Jeffrey Thoma, testified that the condition of the asphalt path with the sinkhole on September 3, 2008, was dangerous and hazardous for users of the path. 78. The condition of the asphalt path with a sinkhole did not meet Academy safety standards. 79. According to Mr. Long, the sinkhole was a dangerous emergency situation that required immediate action and he believed that something had to be done on an emergency basis because of safety considerations. 80. Dr. Mihlbachler was part of the “eyes on the ground” for the USAFA, checking areas that the security forces did not get to that often and reporting to the appropriate party if issues were identified. 81. For all intents and purposes, Dr. Mihlbachler functioned as a USAFA employee. 82. Dr. Mihlbachler’s duties included responsibilities related to USAFA safety and security. 83. Dr. Mihlbachler testified that as part of his duties, he spends a large amount of time in the field and driving into remote areas of the Academy where the security forces and others do not routinely go. Because he spends a lot of time around boundary fences, back roads and trails, and corners of the USAFA that other people do not often get to, he is another source of information to the security forces and civil engineers that take care of maintenance and infrastructure. 84. Dr. Mihlbachler had responsibility for investigating the substantial erosion problems and had observed these problems in the area, including the east side of 1-25, for many years. 85. Dr. Mihlbachler viewed the sinkhole on the path as insignificant in relation to the large-scale erosion problem affecting the eastern part of the property. 86. Dr. Mihlbachler knew of the existence and condition of the path. 87. Dr. Mihlbachler had seen five to six people use the path for walking, jogging, and biking prior to September 3, 2008. He saw most of these people before 2005, when Struthers Road was built. The construction of Struthers Road in 2005 provided an alternate route across Black Forest Creek so that people did not need to use the asphalt path. 88. Dr. Mihlbachler had never seen anyone using the path at night. 89. Dr. Mihlbachler was only on the path once every month or so. 90. Dr. Mihlbachler testified that the condition of the asphalt path with the sinkhole which he observed before Mr. Nelson’s accident would be a safety hazard for users of the path if it were an official USAFA trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. 91. Dr. Mihlbachler testified that to his understanding there was no rule or regulation in the Trails Management Plan or otherwise that would have required fixing a hole on an unofficial path. 92. He also testified that he did not think the path was being used by pedestrians or bikers. Thus, the thought never *1123occurred to him that the damage to the path would create a safety hazard. 93. If Dr. Mihlbachler had been aware, however, of the “Bicycle Path” sign on the path or that it was a recreational trail that was getting used, he would have either removed the path because it did not fit with the official Trails Management Plan or it would have been incumbent on him to take the proper action to prevent a safety hazard. This would have been required as part of his duties. 94. Dr. Mihlbachler’s decision not to do anything about the sinkhole on the path or report it to anyone was based on his perception that it was on the CDOT and MVEA easement for their use and was not the responsibility of the Academy. It also was based on the fact that he did not think people were using the path for recreational purposes. 95. Dr. Mihlbachler did not consider the costs involved in fixing the sinkhole when he decided not to do anything about it. 96. Dr. Mihlbachler testified that he believes that there is an expectation these days for all government employees to say something if they see something. 97. The USAFA removed the sign that said “Bicycle Path, No Motorized Vehicles” immediately following James Nelson’s accident. The USAFA also disavowed the “Bicycle Path” sign and stated that the sign was neither installed by nor authorized by the Academy. 98. Also immediately following James Nelson’s accident, the USAFA filled the sinkhole on the path with rip-rap and covered it in gravel. The USAFA also installed barriers and warning signs at both ends of the path and near the sinkhole. 99. There is no evidence that the steps taken immediately after the accident to fill the hole and install barriers were done pursuant to a work order. 100. Thereafter, the USAFA constructed a new fence across the path at its boundary. According to Mr. Long, this was to make it clear and to make sure there was no misunderstanding that this was USAFA property and was not a public trail. 101. The USAFA ultimately removed the path. 102. The removal of the path likely would have involved a work order. USA-FA’s work-order-request-review board reviewed work order requests to determine which requests should be approved and which requests should receive priority. II. CONCLUSIONS OF LAW A. Jurisdiction — Exhaustion of Remedies and Timeliness 1. The FTCA is a limited waiver of the sovereignty of the United States permitting the United States to be sued. See United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). “The FTCA lists many types of claims for which the United States has consented to be sued.” Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir.2008). “Included among-those are claims for certain injuries caused by government employees acting within the scope of their employment.” Id. Thus, the FTCA “waives sovereign immunity for actions against the United States resulting from injuries caused by the negligent acts of governmental employees while acting in the scope of their employment.” Garcia v. United States Air Force, 533 F.3d 1170, 1175 (10th Cir.2008) (citing 28 U.S.C. § 1346(b)(1)). 2. Under the FTCA, the government can be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accor*1124dance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Thus, the United States is liable “ ‘in the same manner and to the same extent as a private individual under like circumstances.’ ” Tisdale v. United States, 62 F.3d 1367, 1371 (11th Cir.1995) (quoting 28 U.S.C. § 2674). 3. The duty of the United States in a tort action is defined in accordance with the law of the state where the negligence occurred. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Because the alleged negligence occurred in Colorado, the Court applies Colorado law. Levin v. United States, — U.S. -, 133 S.Ct. 1224, 185 L.Ed.2d 343 (2013). 4. Plaintiffs sue the United States for personal injuries under the Colorado Premises Liability Act, which Act defines the duty that landowners owe to persons on their property and holds landowners responsible for causing injury to persons on their property as specified therein. See Colo. Rev. Stat. § 13-21-115. 5. Venue is proper in this Court. 6. A plaintiff suing under the FTCA must first present the tort claim to the appropriate federal agency for possible settlement within two years after the claim accrues. 28 U.S.C. §§ 2401(b), 2675(a). The United States does not dispute that the Plaintiffs timely presented their claim to the proper federal agency, the United States Air Force, within two years after their claim accrued. 7. A complaint cannot be filed until the administrative claim has been denied or until six months have passed without the agency acting on the administrative claim. 28 U.S.C. § 2675(a). The United States does not dispute that the Plaintiffs timely filed their Complaint against the United States after it denied the Plaintiffs’ claim. 8.Under the undisputed facts, the Court finds that the Plaintiffs exhausted their remedies and timely brought their claim against the proper parties under the FTCA. B. Discretionary Function Exception to the FTCA 9. Excluded from the FTCA’s waiver of immunity “are claims based on the performance of ‘a discretionary function or duty on the part of a federal agency or an employee of the Government.’ ” Garcia, 533 F.3d at 1175 (quotation omitted). The discretionary function exception states that the liability imposed by the FTCA shall not apply to “(a) [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). 10. The discretionary function exception “poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.” Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998). “If the discretionary function exception applies to the challenged conduct, the United States retains its sovereign immunity and the district court lacks subject matter jurisdiction .... ” Domme v. United States, 61 F.3d 787, 789 (10th Cir.1995). 11. The discretionary function exception applies “whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). “Thus, the question of negli*1125gence is irrelevant.” Garcia, 533 F.3d at 1175-1176. 12. The purpose of the discretionary function exception is “to protect policymaking by the executive and legislative branches of government from judicial ‘second-guessing.’” Garcia, 533 F.3d at 1176 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). “Thus, it ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Id. (quoting Varig Airlines, 467 U.S. at 808, 104 S.Ct. 2755). 13. To determine whether conduct falls within the discretionary function exception, courts apply the two-part test stated in Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See Garcia, 533 F.3d at 1176. First, the court must “ascertain the precise governmental conduct at issue and consider whether that conduct was ‘discretionary,’ meaning whether it was ‘a matter of judgment or choice for the acting employee.’ ” Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). “Conduct is not discretionary if ‘a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.’ ” Garcia, 533 F.3d at 1176 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954); see also Harrell v. United States, 443 F.3d 1231, 1235 (10th Cir.2006) (“plaintiffs must show that [the government] ‘violated a federal statute, regulation, or policy that is both specific and mandatory”’) (quotation omitted). The burden of presenting “evidence of a discretion-constraining regulation or policy resides with the plaintiffs.” Sydnes, 523 F.3d at 1185. 14. If the first element is satisfied, the Court then considers the second Berkovitz element: “whether the decision in question is one requiring the exercise of judgment based on considerations of public policy.” Garcia, 533 F.3d at 1176. “Decisions that require choice are exempt from suit under the FTCA only if they are ‘susceptible to policy judgment’ and involve an exercise of ‘political, social, [or] economic judgment.’ ” Duke v. Dep’t of Agric., 131 F.3d 1407, 1410 (10th Cir.1997) (quotations omitted). 15. In making the analysis regarding the second element, the court does “not consider the employee’s ‘subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.’ ” Garcia, 533 F.3d at 1176 (quoting United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The court also does not ask “ “whether policy analysis is the actual reason for the decision in question.’” Sydnes, 523 F.3d at 1185 (emphasis in original) (quotation omitted). 16. Applying the first step of the Ber-kowitz test, I first must determine the precise governmental conduct at issue. Here, I agree with Plaintiffs that the conduct at issue is the USAFA’s failure to guard against or warn against a dangerous condition that was known or that should have been known by the USAFA to exist on the. asphalt path before Mr. Nelson’s injury; namely, the sinkhole. See Duke, 131 F.3d at 1410. 17. Although there was testimony concerning the decision to remove the path after Mr. Nelson’s injury as well as other actions that occurred related to the sink*1126hole and path after the accident, that is not the conduct at issue. Whether or not the USAFA should have had a path or whether it should have been removed is not what caused the dangerous condition. See Smith v. United States, 546 F.2d 872, 874 (10th Cir.1976) (“The decision to develop only certain areas did not create the problem or the need to decide whether warning signs should be erected.”). The removal of the path and policies relating thereto are accordingly irrelevant to the application of the discretionary function exception in this case. 18. The United States also references the granting of the easement in 1958 for the property on which the path is located. Again, that is not the governmental conduct at issue. There is no evidence that the easement holders were responsible for •maintenance of the path or the failure to warn or guard against the danger on the path at the time of the accident. The fact that the United States may have mistakenly believed they were responsible for the path under the easement does not make the easement relevant to application of the discretionary function exception. 19. I now turn to the main issue under the first element of Berkovitz — whether the conduct at issue was discretionary, i.e., whether it was “ ‘a matter of judgment or choice for the acting employee.’ ” Garcia, 533 F.3d at 1176 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). I find that the conduct was discretionary, and that Plaintiffs failed to show that it was not a matter of judgment or choice. There is no evidence that the USAFA’s failure to guard against or warn against a dangerous condition on the path before the accident violated a specific and mandatory federal statute, regulation, or policy. In other words, Plaintiffs did not show that any statute, regulation or policy required the USAFA to repair or maintain the path, post warning signs, barricade, or close the path. 20. While the USAFA had a Trail Management Plan in effect when the accident occurred, Greg Long and Dr. Mihlbachler both testified that nothing in that Plan required the USAFA to maintain the 'asphalt path in the same condition as official Academy trails. Indeed, the Trail Management Plan did not require any particular action with regard to the property or the path at issue. Thus, the Trail Management Plan was not specific and mandatory within the meaning of the discretionary function exception. See also Aragon, 146 F.3d at 824 (“An agency manual, in contrast to a regulation, is not necessarily entitled to the force and effect of law. This is particularly true if the agency did not intend the manual to be mandatory, but rather intended it as a guidance or advisory document.”). 21. Thus, the first prong of the two-part test for application of the discretionary exception is met. Even though Plaintiffs failed under Berkovitz’s first prong, they “may still overcome the discretionary function exception by demonstrating, pursuant to Berkovitz’s second prong, that ‘the nature of the actions taken’ does not ‘implicate public policy concerns, or [is not] susceptible to policy analysis.’ ” Sydnes, 523 F.3d at 1185 (quotation omitted). 22. As to the second element, while the decision not to guard against or warn of the danger may have involved a “decision” involving choice, not all decisions or non-decisions “that involve choice and any hint of policy concerns are discretionary and within the exception.” Duke, 131 F.3d at 1411. The Tenth Circuit in Duke agreed with the District of Columbia Circuit that to find otherwise would not only eviscerate the second step but “ ‘would allow the exception to swallow the FTCA’s sweeping waiver of sovereign im*1127munity.’ ” Id. (quoting Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995)). Indeed, as the Duke court recognized, “nearly every governmental action is, to some extent, subject to policy analysis — to some argument that it was influenced by economics or the like.” Id. at 1410. Further, a failure to act can also “be a policy decision; and a failure to think about acting may still be ‘susceptible to policy analysis’ ”. Id. at 1410. However, not all actions involving choice or failures to act are within the discretionary function exception. Id. at 1410-11. As noted in Cope, “[t]he mere presence of choice — even if that choice involves whether money should be spent— does not trigger the exception.” 45 F.3d at 449. 23. In the case at hand, I find that the second element required for application of the discretionary function exception is not met because the USAFA’s failure to guard against or warn of the danger of the sinkhole or condition of the path on September 3, 2008, did not implicate public policy concerns. The evidence shows that the USAFA did not maintain the path, repair it, or warn against the dangerous condition when it was found because it believed that CDOT or MVEA were responsible for the path. This was confirmed by Dr. Mihlbachler, who saw the sinkhole shortly before the accident but thought that nothing needed to be done because it was the responsibility of the easement holders. Thus, the USA-FA’s actions or failure to act regarding the asphalt path were based on confusion about or a misunderstanding about who was responsible for maintaining the path, and not because of any social, economic, or policy judgment. See Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir.1991) (recognizing that the discretionary function exception does not apply where the government’s failure to warn of hazardous conditions does not involve any social, economic, or policy judgment). 24. Related to the above, the choice made by Dr. Mihlbachler not to take any action regarding the sinkhole was not based on a policy decision which created the hazard. See Zumwalt, 928 F.2d at 955. While Dr. Mihlbachler testified that he had discretion regarding how to address erosion issues, his failure to warn or to take steps to guard against the sinkhole was not based on this discretion. Instead, as stated above, he failed to take action because he thought that CDOT and/or MVEA were responsible for the path under the easement. 25. My conclusion is also supported by two cases discussed by the Zumwalt court in connection with its recognition that the discretionary function exception does not apply where the government’s failure to warn does not involve a social, economic, or policy judgment. See Zumwalt, 928 F.2d at 955. Those two cases are Boyd v. United States ex rel. United States Army, Corps of Eng’rs, 881 F.2d 895 (10th Cir.1989) and Smith v. United States, 546 F.2d 872 (10th Cir.1976). 26. In Boyd, the government argued that because it was a discretionary decision not to zone the swimming area where the accident occurred, “ ‘the regulations in force at the time [] also meant that no warning signs or other safety devices would be installed in the area.’ ” 881 F.2d at 898. In other words, the government asserted “that a discretionary decision not to zone an area necessarily makes discretionary a decision that nothing be done there, regardless of potential hazards.” Id. (emphasis in original). The Tenth Circuit disagreed, stating that “an alleged failure to warn swimmers of dangerous conditions in a popular swimming area does not implicate any social, economic, or political policy judgments with which the *1128discretionary function exception properly is concerned.” Id. In other words, “the alleged failure to warn swimmers of dangerous conditions was not shown to be part of the policy decision not to zone a particular area.” Zumwalt, 928 F.2d at 955. In so finding, the Boyd court noted that the claim “is based on an alleged direct omission by the government as landowner.” Id. 27. In Smith, the Tenth Circuit rejected the government’s argument that its policy decision to designate certain areas of Yellowstone National Park as “undeveloped”, including the area of superheated thermal pools where the accident at issue occurred, made the government’s decision not to erect safety devices or warnings a policy decision subject to the discretionary function exception. 546 F.2d at 874. It stated on that issue: A policy decision to designate certain areas as “undeveloped” ones may reasonably entail the omission of boardwalks, trails or footpaths and signs marking such ways. However, it does not follow that the Government, as a landowner, is absolved of all duty under state law to erect safety devices or signs cautioning about conditions which have been left undisturbed as a policy matter. See United States v. White, 211 F.2d 79, 82 (9th Cir.1954). If we were to accept the Government’s broad interpretation of the discretionary exception, it is difficult to perceive which duties under tort law could not be avoided by a similar policy decision to ignore them. This would run counter to the Supreme Court’s admonition that such exceptions to this remedial law be narrowly construed .... Id. In other words, in Smith “the decision not to post warning signs near [the] thermal pools [where the accident occurred] was not connected to the decision to leave the area undeveloped.” Zumwalt, 928 F.2d at 955. The Smith court accordingly held “that the Government’s decision, as a landowner, not to warn of the known dangers or to provide safeguards cannot rationally be deemed the exercise of a discretionary function.” Id. 28. As in Boyd and Smith, the absence of warning signs and the failure to guard against the danger of the sinkhole in this case was not the result of any policy decision by Dr. Mihlbaehler or the USAFA. Instead, it was based on a perception (mistaken or not) that the USAFA need not do anything regarding the path because it was the responsibility of the easement holders. 29. I also note that Dr. Mihlba-chler did not think the path presented a hazard because it was not an official trail of the USAFA and he believed that it was not being used by pedestrians or bikers. However, “failure to warn resulting only from failure to recognize a potentially dangerous condition does not implicate a policy analysis and does not invoke the discretionary function exception.” Duke, 131 F.3d at 1414 (Brisco, J., concurring and dissenting) (citing Smith, 546 F.2d at 876-77). Notably, in rejecting the government’s discretionary function exception argument, Smith found persuasive the testimony from a park ranger that the decision to not place warning signs at a dangerous area of the park was not related to any policy decision “but to lack of need for warnings there.” Smith, 546 F.2d at 877 n. 5. This is similar to what Dr. Mihlba-chler testified to in this case — that his decision was based on his perceived lack of need of the USAFA to repair or warn about the sinkhole. 30. My finding that the USAFA’s failure to act to warn or guard against the danger of the sinkhole is not subject to the discretionary function exception is also *1129supported by other authority. For example, the analysis and conclusion reached by the court in Gotha v. United States, 115 F.3d 176 (3rd Cir.1997), cited by the Tenth Circuit in Duke, is persuasive. The Gotha court held that the “Navy’s failure to provide routine safeguards on a footpath leading to a structure under its control does not implicate the discretionary function exception.” Id. at 178. It stated that the “routine safeguard ... was a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy’s mission as it is possible to get .... It is difficult to conceive of a case more likely to have been within the contemplation of Congress when it abrogated sovereign immunity than the one before us.” Id. at 181. 31.Like Gotha, fixing a sinkhole on a path on USAFA property or warning of a hazard on the path is a “mundane, administrative, garden-variety, housekeeping problem” that has not been shown to relate in any way to the USAFA’s missions. See also O’Toole v. United States, 295 F.3d 1029, 1035-36 (9th Cir.2002) (“an agency’s decision to forego, for fiscal reasons, the routine maintenance of its property— maintenance that would be expected of any other landowner — is not the kind of policy decision that the discretionary function exception protects”); Cope, 45 F.3d at 451 (“the discretion regarding where and what type of [warning] signs to post [about a road surface] is not the kind of discretion protected by the discretionary function exception”); ARA Leisure Servs. v. United States, 831 F.2d 193, 196 (9th Cir.1987) (“the government’s failure to maintain [t]horoughfare ... [in a safe condition] falls in the category of ‘ordinary garden-variety negligence’ ”) (internal quotation marks omitted). 32. As noted by the Tenth Circuit in Duke, the types of cases in which the courts have applied the discretionary function exception involve decisions involving national forests, wilderness areas, or national parks, where “there are situations in which both known and unknown hazards exist and in which a deliberate decision is made not to warn against or eliminate the hazard.” In those cases “the decision not to erect signs or eliminate a hazardous condition is justified by the policy of preserving the area in its pristine condition to protect the wilderness experience of the visitors.” Duke, 131 F.3d at 1411 (citing, as examples, Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir.1993); Johnson v. United States Dep’t of Interior, 949 F.2d 332, 338 (10th Cir.1991); and Zumwalt, 928 F.2d at 953). This case does not present such a situation. 33. By contrast, the Tenth Circuit and other jurisdictions have found that the discretionary function exception does not apply where there is a failure to warn or 'guard against a specific known hazard, as here. “In these cases a specific hazard existed, distinct from the multitude of hazards that might exist in, for example, a wilderness trail through a national park or forest....” Duke, 131 F.3d at 1411. The discretionary function exception is not applicable in such cases because the purported decision not to warn or guard against the hazard is not “of the kind that the discretionary function exemption was designed to shield.” Id. This case falls within that category of cases. 34. While there was a suggestion by the United States that the decision regarding the path was an economic decision, Dr. Mihlbaehler testified that he did not consider the costs involved to warn or guard against the sinkhole. Further, no request was ever submitted for a work request review board decision, no direct scheduled *1130work request was submitted, and most importantly, there is no evidence that any policy decision was contemplated or even implicated concerning allocation of resources as to the path prior to Mr. Nelson’s injury. The testimony of Mr. Long also supports this finding. He described the sinkhole as a dangerous emergency situation which required immediate action due to safety considerations. And in fact, the path was immediately repaired the day after Mr. Nelson’s injury with no evidence that any economic or other policies were implicated or considered in connection with this decision. 35. In conclusion, I find that the USA-FA’s decision not to warn or guard against a specific hazard — a sinkhole of which the USAFA knew or should have known existed on a path on property under its control — is not a decision that is grounded in policy considerations. There was no discretionary decision made concerning the failure to maintain the path or warn of the sinkhole that involved or implicated political, social, or economic policy considerations. There is no discretionary policy decision that this Court must “second guess.” Accordingly, I find that the discretionary function exception to the FTCA is inapplicable and the Court has subject matter jurisdiction over the Plaintiffs’ claims against the United States. C. Colorado Recreational Use Statute 36. Legislation intended to encourage private landowners to make their lands available for public recreational use “has been enacted in nearly all of the fifty states.” Klepper v. City of Milford, Kansas, 825 F.2d 1440, 1444 (10th Cir.1987). “[Tjhese statutes promote casual recreational use of open space by relieving landowners of the concern that they will be sued for injuries to strangers who hunt, trek, fish, and otherwise recreate on their land or water free of charge.” Id. 37. Like these other statutes, the Colorado Recreational Use Statute [“CRUS”] “provides limitations on liability concerning lands made available for recreational purposes without charge.” Luenberger v. City of Golden, 990 P.2d 1145, 1147 (Colo.App.1999). 38. The CRUS provides, in relevant part, that: (1) ... an owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose; (b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; (c) Assume responsibility or incur liability for any injury to person or property or for the death of any person caused by an act or omission of such person. Colo. Rev. Stat. § 33-41-103 (2006). 39. The stated purpose of the CRUS “is to encourage owners of land to make land and water areas available for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Colo. Rev. Stat. § 33—41—101; Smith v. Cutty’s, Inc., 742 P.2d 347, 348 (Colo.App.1987); see also McIntyre v. Bd. of Cnty. Comm’rs, 86 P.3d 402, 413 (Colo.2004) (“[t]he General Assembly has encouraged landowners to allow public use of their land; in turn, it has guarded against landowners losing their property rights when allowing such use.”). Implicit in the statute “is the legislative recognition of the right of the landowner to close to public access” any part of the land. Peo*1131ple v. Emmert, 198 Colo. 137, 597 P.2d 1025, 1029 (Colo.1979). 40. The United States is entitled to the protection of the CRUS when it is sued under the FTCA. Evert v. United States, 535 Fed.Appx. 703, 707 (10th Cir.2013) (quoting 28 U.S.C. § 2674); see also Maldonado v. United States, 893 F.2d 267, 268-69 (10th Cir.1990); Kirkland v. United States, 930 F.Supp. 1443, 1446 (D.Colo.1996). The issue is whether the CRUS is applicable under the circumstances of this case. 41. It is undisputed from the evidence that Mr. Nelson did not pay a charge for using the path. Further, he was using the path for recreational purposes. 42. However, I find from the evidence that the USAFA did not directly or indirectly invite Mr. Nelson or the public in general to use the asphalt path for recreational (or any purpose). The USAFA took no action that would support such a finding or inference, as it did nothing to make the asphalt path available for recreational use. Instead, the evidence shows that the asphalt path was not an official trail of the USAFA and USAFA representatives testified that the USAFA did not invite people to use the path for any purpose. Indeed, people who used the path were deemed “unauthorized” or trespassers by the USAFA. Consistent with this, Mr. Nelson was and is still deemed by the USAFA to be an unauthorized person and a trespasser in his use of the asphalt path. Also, prior to Mr. Nelson’s accident the USAFA conveyed to at least one government agency that the asphalt path was not for public use. 43. By contrast to the facts in the previous paragraph, the evidence shows that the USAFA clearly understood and took action to make its property available for recreational use when it wanted to; for example, through the designation of the Santa Fe and La Foret trails as official USAFA trails for public recreational use. 44. I also find that there is no evidence that the USAFA directly permitted people to use the path. At most, the evidence shows that it did not preclude people from using the path. 45. Thus, the critical issue is whether the United States indirectly permitted Mr. Nelson to use the asphalt path. As noted by the Tenth Circuit, “[i]t is the permission granted to use such land for recreational purposes without charge that immunizes the landowner.” Evert, 535 Fed.Appx. at 708. 46. The term “permit” is not expressly defined in the statute itself. I note, however, that the term “permission” has been defined for purposes of the CPLA as “ ‘conduct that justified others in believing that the possessor of property is willing to have them enter if they want to do so.’ ” Corder v. Folds, 292 P.3d 1177, 1180 (Colo.App.2012) (quoting Black’s Law Dictionary at 1255 (9th ed. 2009)). The question then becomes what type of conduct gives rise to permission. 47. There is no evidence in this case of any conduct by the USAFA that justified others in believing that it was willing to have it use the path for any reason, including recreational use. It took no action to allow people to use the path, did not include it as an official trail for use, and did not even maintain the path.3 The *1132USAFA relies, however, on the fact that it did not remove people from the path as well as the “Bicycle Path” signs that were posted adjacent to the path by an unknown third party. 48. I find that the “Bicycle Path” signs justified others in believing that the USA-FA was willing to have the path used by the public for recreational purposes. The fact that the signs were not authorized by or placed by the USAFA could not have been known to the public. However, that does not answer the question as to whether these signs, as well as the USAFA’s inaction in connection with people using the path, are sufficient to allow the United States to invoke the protection of the CRUS. 49. Ultimately, I find that the issue presented by this case is whether a party is protected under the CRUS when it neither prevents nor affirmatively invites a person to use the land in question. See Coursey v. Westvaco Corp., 790 S.W.2d 229, 231-23 (Ky.1990). Related to that is whether the USAFA itself, as landowner, needs to take some action indicating that it permits people to use the land, as compared to reliance on an act of a third party such as at issue here in connection with the “Bicycle Path” signs. These issues are not addressed by the CRUS and I found no cases interpreting the CRUS that answer the question. Thus, I look to cases from other states that have similar recreational use statutes. See Evert, 535 Fed.Appx. at 708 (looking to persuasive authority from other jurisdictions to interpret the Wyoming Recreational Use Act). 50. There appears to be a split of authority in other states as to this issue. See Cudworth v. Midcontinent Commc’ns, 380 F.3d 375, 379 and n. 3 (8th Cir.2004) (citing cases); Coursey, 790 S.W.2d at 230. I find persuasive the Kentucky Supreme Court’s analysis of the issue in Coursey in connection with the Kentucky recreational use statute, which is similar to the CRUS and has an identical purpose. See Coursey, 790 S.W.2d at 230; K.R.S. 411.190(2). 51. The Coursey court found, and I agree, that “[t]he heart of the controversy is whether this Court should interpret the recreational use statute broadly or narrowly.” 790 S.W.2d at 231. As explained in Coursey, the plaintiff “claimed that because the statute’s purpose is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability, the statute should be interpreted more narrowly so as to accomplish the stated purpose of the statute.” Id. Thus, he contended that “in order to receive the benefit of limited liability the landowner must make the land available to the public” and that “[i]f the landowner is not required to affirmatively make his land available or at least have an intent to do so, then the legislation is in essence a blanket grant of immunity to landowners without any rational basis.” Id. On the other hand, the defendant argued that “to give the statute broad effect, the General Assembly chose words to allow the owner to come under the statute by doing nothing” and that “[t]o require the owner to do anything would limit the scope of this statute and withdraw land from recreational use by the public.” Id. 52. The Kentucky Supreme Court recognized that “[ojther states with virtually *1133identical recreational use statutes have interpreted their statutes both broadly and narrowly.” Coursey, 790 S.W.2d at 232. It then stated, “Kentucky will adopt the position that a landowner to come within the protection of the statute must show at a minimum, proof that the landowner knows that the public is making recreational use of his property, and proof of some words, actions or lack of action on his part from which it can be reasonably inferred that he intended to permit such use to be made of his property.” Id Thus, it held that “a landowner must show he knew and condoned the public making recreational use of his property, and by the landowner’s words, actions or lack of action it must be able to be reasonably inferred the landowner intended to permit such use.” Id. Accordingly, it answered “no” to the question of whether a party is protected under the Kentucky recreational use statute when the party neither prevents nor affirmatively invites a person to enter the land in question. Id.4 53. I find that the holding in Coursey is consistent with the purpose of the CRUS to encourage landowners to open their land to the public for recreational use. It is the landowner who has the capacity and ability to invite or permit the public to enter their land in order to take advantage of the immunity afforded by CRUS. Thus, I find it is the landowner’s actions and intent that should be looked at in determining whether it directly or indirectly invited or permitted persons to use its land for recreational purposes. To find otherwise could mean that unless an owner of land affirmatively prevents all people at all times from entering their land, the public is deemed to be “indirectly” invited or permitted on the property for recreational purposes, despite the owner having no intention to invite or permit them to do so. I reject that interpretation of CRUS as inconsistent with the law and the stated purpose of CRUS.5 54. My interpretation of the CRUS is supported by other cases as well. Thus, in Watters v. Buckbee Mears Co., 354 N.W.2d 848, 852 (Minn.App.1984), the court held that the Minnesota recreational use statute did not apply because there was no evidence that the defendants offered the land for public use. Indeed, the defendants argued that the plaintiffs were trespassers; thus, “they did not directly or indirectly invite or permit people to use the property for recreational purposes”. Id (citing Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 427 (Minn.1983) (“the Recreational Use Statute has no application where the defendant landowner does not offer the [property] in question for public use and, indeed, claims ... that it has discouraged the public from using the [property]”, even where the landowner knew that the property was being used by the public for swimming)). *113455. Similarly, the Delaware Supreme Court rejected an argument that the Delaware recreational use statute’s “protection extends to any land ‘available’ for putting to recreational use without regard to the intent of the owner that they be so used.” Gibson v. Keith, 492 A.2d 241, 244 (Del.1985). Instead, it held that “the owner’s positive efforts to make” its land available for recreational use were determinative of a landowner’s right to invoke the statute. See also Craig v. Sepulvado, 709 So.2d 229, 230-31 (La.App.3d Cir.1998) (finding that the landowner was not entitled to recreational immunity for allowing her grandchildren to use the land for hunting purposes when there was no evidence that the landowner intended the public to use her land for recreational purposes) (citing Monteville v. Terrebonne Parish Consol. Government, 567 So.2d 1097, 1105 (La.1990) (a landowner “who does not evidence an intent to permit the public to enter without charge for recreational use may not invoke the recreational use statute’s protective benefits against liability”)). 56. Finally, I note the decision from this Court in Rankin v. Union Pac. R.R., No. 04-cv-00372-OES-PAC, 2005 U.S. Dist. LEXIS 45351 (D.Colo. Sept. 15, 2005). Rankin stated as a basis to deny applicability of the CRUS that “[t]he railroad has pointed to no evidence that suggests that it has invited or encouraged people, either directly or indirectly, to engage in recreational activities” on the land at issue. Id. at *14. 57. Here, while there is evidence that the USAFA knew that the public used the path and did not actually remove people from the path, I find no evidence from the USAFA’s words, actions or lack of action that allow me to reasonably infer that it intended for the asphalt path to be used for recreational purposes or encouraged such use. Indeed, the undisputed evidence is that the USAFA did not consider or intend for the path to be an authorized public trail, and that it considered people who used the path to be trespassers and unauthorized on its property. This is consistent with Mr. Long’s testimony that if people were observed on the asphalt path by Academy personnel, he believed the personnel should have stopped the people or, if the people could not be confronted directly, the issue should have been brought back to the squadron for an investigation since it was not an authorized trail. 58. I also find, although not dispositive of my decision, that the extensive actions taken by the USAFA concerning the path (including removing and disclaiming the “Bicycle Path” signs, barricading the path and installing a fence across the path) shortly after Mr. Nelson’s accident are persuasive evidence that the USAFA had no intent to directly or indirectly invite or permit the public to use the path. Mr. Long agreed in his testimony that the reason the fence was placed across the asphalt path was to make it clear to the public that the path was USAFA property and was not a public trail. See Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 982 (10th Cir.1993) (“a landowner who bars public access to its property has not directly or indirectly invited or permitted the public to use that property for recreational activities and thus is not entitled to immunity” under the Kansas Recreational Use Statute); Gibson, 492 A.2d at 244 (“a landowner who undertakes affirmatively either to warn or bar the public from entry cannot assert the statute as a bar to a tort claim”). 59. While the United States objects to the admission of the remedial measures regarding the path and the sinkhole that it took after the accident under Fed. R. Evid. 407, I found at trial and reiterate herein *1135that it is admissible. The evidence was not offered or admitted to show negligence, culpable conduct, a defect in the path’s design or construction or a need for warning, but for another purpose; namely, to show the United States’ intent with regard to use of the path by the public for recreational purposes. See Leprino Foods Co. v. Factory Mut. Ins. Co., 653 F.3d 1121, 1125 (10th Cir.2011) (“Rule 407 only prohibits the admission of evidence of subsequent remedial measures for the purposes of ‘negligence, culpable conduct, a defect in a product, ... or a need for a warning or instruction.... The rule permits the evidence’s admission for other purposes ....) (quotation and internal footnote omitted). 60. Based on the foregoing, I find that the USAFA did not directly or indirectly invite or permit the public, including Mr. Nelson, to use the asphalt path for recreational purposes. Accordingly, I find that the CRUS does not apply. D. Plaintiffs’ Premises Liability Claim 61. I now turn to the merits of Plaintiffs’ claim against the United States. The Colorado Premises Liability Act (“CPLA”) provides the exclusive remedy against a landowner for physical injuries sustained on the landowner’s property. Vigil v. Franklin, 103 P.3d 322, 328 (Colo.2004). 62. The purpose of the CPLA is to “promot[e] ‘a state policy of responsibility by both landowners and those upon the land as well as [assuring] that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee.’ ” Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo.2002) (quoting Colo. Rev. Stat. § 13-21-115(1.5)(a)). 63. The definition of landowner is “expansive” under the statute. Pierson, 48 P.3d at 1221. “Landowners” who are liable under the statute include, “without limitation, ... a person in possession of real property and a person legally responsible for the condition of real property or for. the activities conducted or circumstances existing on real property.” See Colo. Rev. Stat. § 13-21-115(1). 64. While the United States initially contested its status as a landowner, arguing in its summary judgment motion that it was not a landowner because it transferred possession of the property through its easement, this argument was withdraw! at trial. The United States now stipulates, and the evidence at trial confirms, that the United States is the landowner of the property where Mr. Nelson was injured for purposes of the CPLA. Therefore, the United States owed the requisite duties under the CPLA to persons entering its land, including Mr. Nelson. 65. Under Colorado law, a landowner owes certain non-delegable duties to a person who enters the landowner’s property, and the duty owed depends on whether that person is a “trespasser”, “licensee”, or “invitee”, as those terms are defined by the CPLA. Colo. Rev. Stat. § 13-21-115(3). 66. The CPLA defines an “invitee” to include “a person ... who enters or remains on [the land of another] in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” Colo. Rev. Stat. § 13-21-115(5). A “licensee” is “a person who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent.” Id. A “trespasser” is a person who enters or remains on the land *1136of another without the landowner’s consent. Id. 67. An invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known. A licensee may recover only for damages caused by the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or by the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew. Finally, a trespasser may recover only for damages willfully or deliberately caused by the landowner. Colo. Rev. Stat. § 13-21-115(3). 68. In the case at hand, I find that the evidence supports a finding that Mr. Nelson was an invitee on the USA-FA’s land at the time of the accident. While there is no evidence that he was on the path in response to the USAFA’s express representation that the public was requested, expected, or intended to enter or remain on the property, there is evidence of an implied representation of this through the “Bicycle Path, No Motorized Vehicles” signs. USAFA representatives admitted that there is no way that members of the public could have known that these signs were not USAFA signs, and I note that the sign on the north end of the path was next to and clearly related to the asphalt path that entered and crossed the Academy property. Given the close proximity of the “Bicycle Path” signs to Academy property, members of the public could reasonably have believed that the signs were on Academy property or at least authorized by the Academy. 69.USAFA representatives also admitted that a reasonable person seeing the “Bicycle Path” signs would believe that this meant the path was open to the public for bicycling. While I do not believe a landowner would be deemed to have invited a person onto its land based on a sign or similar object that it did not know about, in this case the USAFA had been advised of the existence of the sign and even asked whether it wanted it removed. The USAFA did nothing in response. Thus, I find that the “Bicycle Path” sign supports a finding of an implied representation by the USAFA that the public was requested, expected, or intended to enter or remain on the asphalt path. 70. As an invitee, Mr. Nelson may recover for damages caused by the USAFA’s unreasonable failure to exercise reasonable care to protect against dangers of which it actually knew or should have known. Here, I find that Mr. Nelson is entitled to recover damages because the USAFA unreasonably failed to exercise reasonable care to protect against a danger — the sinkhole on the path caused by erosion — of which it actually knew. The evidence demonstrates that the USAFA knew there was extensive drainage and erosion problems in the area where the path was located, knew through Dr. Mihlbaehler of the actual existence of the sinkhole prior to Mr. Nelson’s accident, admitted that the sinkhole was a dangerous condition, and did nothing to protect anyone from the danger that the sinkhole presented to those using the path for biking or other purposes. I find from the evidence that the USAFA failed to use reasonable care to protect against the danger on the property, and that its unreasonable failure to exercise reasonable care with regard to the sinkhole was the cause of Mr. Nelson’s injuries. 71. In further support of my findings in the previous paragraph, I note that Dr. Mihlbaehler was part of the “eyes on the *1137ground” for the USAFA, checking areas that the security forces did not get to that often and reporting to the appropriate party if issues were identified. For all intents and purposes, Dr. Mihlbachler functioned as a USAFA employee, and had responsibility for reporting safety concerns. Thus, I find that his knowledge should be imputed to the USAFA. I also note that Mr. Long admitted that the sinkhole was a dangerous emergency situation that required immediate action because of safety considerations. Moreover, the parties stipulated that the United States did not take any measures to guard against this danger or warn anyone using the path of the sinkhole condition. 72. In the alternative, I find that Mr. Nelson was a licensee while on the property of the USAFA at the time of the accident. As stated previously, a “licensee” is “a person who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent.” Colo. Rev. Stat. § 13-21-115(5). I found in connection with the CRUS that there was no evidence that the United States permitted Mr. Nelson on its property, ie, there was no conduct by the USA-FA that justified others in believing that it was willing to have it use the path for any reason, including recreational use.6 Thus, the issue becomes whether there is evidence of the USAFA’s consent to Mr. Nelson’s use of the property. 73. While there is no evidence of express consent by the USAFA, a person can be a licensee if the person has implied consent to enter the land. Corder, 292 P.3d at 1177 (holding that although the landowner did not give express consent to entry and argued that the injured person was a trespasser, the history and course of conduct allowed the injured party to claim he was not a trespasser because he had implied consent to enter the land); see also Reid v. Berkowitz, 315 P.3d 185, 189 (Colo.App.2013) (“The term ‘consent’ as used in the statute includes implied consent.”) Indeed, the Colorado courts have cited with approval authority holding that consent “ ‘may be implied from custom, usage, or conduct.’ ” Corder, 292 P.3d at 1180 (emphasis in original) (quoting 7 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 23.32, at 974-75 (2011) and citing 1 F. Harper, F. James, Jr. & O. Gray, Harper, James & Gray on Torts § 1.11, at 47-48 (3d ed. 2006)). 74. In this case, there is evidence of a course of conduct and usage in connection with the asphalt path before Mr. Nelson’s accident, ie., the evidence showed that the USAFA knew that people were using the path for recreational purposes, ie., biking, jogging and walking, and did not affirmatively preclude people from its use. 75. Moreover, “it is the manifestation of consent which is decisive and not the state of mind which the possessor intends to express.” Restatement (2d) of Torts § 330, cmt. d. “[T]he decisive factor is the interpretation which a reasonable person would put on the possessor’s acts.” Id. I find that the “Bicycle Path” signs on the path, even though not known about or authorized by the USAFA, could be deemed evidence of implied consent of the USAFA for people to use the bath for biking. A reasonable person would likely believe the Bicycle Path signs were, at the very least, authorized by the USAFA, given that the signs were next to and clearly *1138related to the paved path on USAFA property. USAFA officials admitted that there is no way the public could have known that the signs were not USAFA signs. The evidence also supports a finding that the Bicycle Path signs would allow members of the public, including Mr. Nelson, to reasonably believe that the USAFA consented to the public’s use of the path for biking. This finding is further supported by the fact that the path was open to and accessible by the public through an engineered entry point/opening in the USAFA’s boundary fence. Finally, Mr. Nelson had used the path before and knew that other people entered the property and.used the path. 76. I find that the circumstances outlined above would have led a reasonable member of the public to believe, and in fact led Mr. Nelson to reasonably believe, that he had implied consent to enter the property and use the path at issue for his own convenience or to advance his own interests. Accordingly, I find that Mr. Nelson meets the definition of a “licensee”. 77. As a licensee on the asphalt path, Mr. Nelson may recover for damages caused by the USAFA’s unreasonable failure to warn of dangers not created by the USAFA which are not ordinarily present on property of the type involved and of which the USAFA actually knew. Here, I find that the USAFA unreasonably failed to warn of a danger — the sinkhole — that was not caused by the USAFA but by erosion. I further find that a sinkhole of the magnitude in this case (covering the entire width of the path) is not the kind of hazard ordinarily presented on the property of the type involved (asphalt paths used by the public for walking, running or bicycling), and that the USAFA — through Dr. Mihlbachler — knew of the sinkhole approximately two weeks before Mr. Nelson’s accident and did nothing to protect people using the path. 78. In conclusion, I find that the USA-FA is liable as a landowner under the CPLA for the injuries, damages, and losses that Mr. Nelson sustained. I also note as to the injuries, damages and losses claimed by Mr. Nelson’s wife that “[a] loss of consortium claim is derivative of the underlying injury claim and therefore subject to the same defenses”. Schwindt v. Hershey Foods Corp., 81 P.3d 1144, 1148 (Colo.App.2003). Thus, it appears the United States is also liable to Mrs. Nelson for any damages she sustained. Since the United States is hable under Colorado state tort law, the United States is liable to Plaintiffs for their damages under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2674. No evidence has yet been presented, however, as to damages. E. Defendant’s Comparative Fault Affirmative Defense 79. Colorado law provides for assessment of a plaintiffs comparative fault. Colo. Rev. Stat. §§ 13-21-111; 13-21-115(2). Under the rule of comparative negligence or fault, a plaintiff “ ‘has the duty to act as a reasonably prudent person by avoiding undue risk of harm to himself.’ ” Dillon Cos. v. Hussmann Corp., 163 Fed.Appx. 749, 753 (10th Cir.2006) (quoting Fay v. Kroblin Refrigerated Xpress, Inc., 644 P.2d 68, 70 (Colo.App.1981)). Thus, a plaintiff may not recover from a defendant when the plaintiffs negligence or fault is equal to or greater than the negligence or fault of the party against whom relief is sought. Colo. Rev. Stat. § 13-21-111(3). 80. Comparative fault is an affirmative defense that is available in connection with claims asserted under the CPLA. Colo. Rev. Stat. § 13-21-115(2); Union Pac. R.R. Co. v. Martin, 209 P.3d *1139185, 186 (Colo.2009). The United States has the burden of proof to establish its affirmative defense of comparative fault by a preponderance of the evidence. See Folck v. Haser, 164 Colo. 11, 15, 432 P.2d 245 (Colo.1967). 81. Having considered the evidence, I find no fault or negligence on the part of Mr. Nelson. Thus, I find that his failure to use a headlight on his bicycle was not negligent; he was not negligent in riding his bicycle on the asphalt path at the time of the accident; and he was not negligent when he rode his bicycle into the sinkhole. 82. As to the headlight, the United States offered no evidence that a headlight was necessary to safely ride on this path at the time of the accident on September 3, 2008, nor any evidence that the presence or use of a headlight on September 3, 2008, would have made any difference in preventing the accident. Indeed, I find based on the evidence presented that it would have still been light outside when Mr. Nelson was riding his bicycle on the path and when he encountered the sinkhole, and the lighting would be sufficient such that he would not have needed artificial illumination as he rode his bicycle. 83. Further, there is evidence from a third party witness, Jesse Kurtz, that the sinkhole was difficult to see until he got close to it because it looked like water. I find this evidence from an unbiased witness credible. The photographs entered into evidence also support my view that the sinkhole could be reasonably seen as water (particularly because of the location at the creek), or as a shadow cast by the bushes on the sides of the path. Thus, it appears that the sinkhole would not have been readily apparent to someone biking on the path. 84. I also note that there is no evidence that Mr. Nelson’s speed was unreasonable, that he was not paying attention, or that he should have seen the sinkhole in time to be able to stop or avoid the hole. “The mere happening of an accident fails to raise a presumption of negligence.” Kendrick v. Pippin, 252 P.3d 1052, 1062 (Colo.2011). 85. Finally, the USAFA did not offer any evidence that Mr. Nelson knew or should have known that a sinkhole would exist on the path, that a sinkhole was actually on the path, or that the sinkhole was óf such a size as to pose a danger. There were no warnings, signs, or barricades on or near the path regarding the sinkhole. 86. Based on the foregoing, I find that the United States has failed to establish its affirmative defense of comparative fault on the part of Mr. Nelson. III. CONCLUSION AND ORDER OF THE COURT In conclusion, it is hereby adjudged and ORDERED: 1. The Court has jurisdiction over Plaintiffs’ claims under the Federal Tort Claims Act. 2. The discretionary function exception to the Federal Tort Claims Act is not applicable in this case. 3. The Colorado Recreational Use Statute is not applicable in this case. 4. Mr. Nelson was an invitee and/or licensee on the USAFA’s property at the time of the accident on September 3, 2008. 5. The United States is liable under the Colorado Premises Liability Act for injuries, losses or damages sustained by Mr. Nelson and Elizabeth Varney in regard to Mr. Nelson’s accident on September 3, 2008; *11406. The Plaintiff, James Nelson, was not at fault in causing his own injuries, damages, and losses. . The parties submitted these facts through a document entitled "Undisputed Findings of Fact” filed on December 13, 2013 (ECF No. 127). . These findings were based on Mr. Ault’s personal observations and were not expert opinions. Mr. Ault was not certified as an expert in'regard to lighting conditions, but I find his testimony credible as to his personal observations of the lighting conditions at the accident scene. Even though made at a different time of year than the accident, they still provide some guidance as to how long it takes after sunset to get dark. . While the USAFA points to the fact that it did not take the “Bicycle Path” signs down after CDOT asked it whether it wanted the signs removed, this was not the result of any actual decision or action by the USAFA. Instead, the evidence on that issue shows that when Ms. Barrett received CDOT's e-mail about the signs, she did not respond or take *1132any action regarding same, other than to send it on to CHAS representative Karen Liekam. She testified that it then fell off her radar. There is also no evidence that Ms. Leikam or CHAS ever took any action or even responded to that e-mail. Indeed, the evidence shows that CHAS was not responsible for the asphalt path. Thus, I find that this fact is not relevant to whether the USAFA permitted people to use the path. . The Kentucky Supreme Court also held that the landowner need not make a formal dedication of the land for public use, but that "a landowner must at a minimum show he knew and condoned the public making use of his land for a recreational purpose, and by the landowner's words, actions or lack of action it must be able to be reasonably inferred the landowner intended to put his land to such use.” Id. . I also reject any suggestion by the United States that the words “indirectly invites or permits” as used in the CRUS are associated with the legal concept of "implied consent” as used in and applied to the CPLA. Neither the words "permission” nor "invitation” are the same as the legal concept of "implied consent” as that issue arises under the CPLA and which is discussed in the next section. Not only are "permit” and "consent” different legal concepts, “indirect” and "implied” are two different words implicating different legal concepts. . I agree with the United States that the term "permit” should be applied consistently across both the CRUS and the CPLA.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224429/

ORDER ON SUMMARY JUDGMENT Wiley Y. Daniel, Senior United States District Judge I. INTRODUCTION THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment filed on March 26, 2013. The individual Defendants assert that they are entitled to qualified immunity on Christian Aubin Robinson’s [“Robinson”] claims in the Amended Complaint. Defendant City and County of Denver [“Denver”] claims it is entitled to summary judgment on the municipal liability claims. A response to the summary judgment motion was filed on May 20, 2013, and a reply was filed on June 17, 2013. Additionally, Robinson filed a Notice of Clarification regarding his response on June 26, 2013, along with a Motion to Supplement Response Brief with a Recently Discovered Exhibit and a Notice of Conventionally Submitted Exhibit on July 18, 2013. A response and a reply to the motion to supplement were both filed on August 7, 2013. The Motion to Supplement Response Brief was granted on August 27, 2013.1 *1144II. FACTUAL BACKGROUND Before addressing the facts, I note that I have cited only to the facts most relevant to my opinion as they are rather voluminous. I have, however, considered all the facts cited by the parties and evidence related thereto. Also, I have cited to the record only when the facts are disputed. This is a civil rights suit by Robinson for damages arising out of Denver police and sheriff officers’ conduct in allegedly unreasonably arresting and incarcerating him pursuant to a warrant for a twelve (12) day period. {See Am. Compl. ¶ 1, ECF No. 44.) Defendants assert that Robinson was arrested on a warrant containing his name and identifying information when he came to the headquarters of the Denver Police Department [“DPD”] in order to try to cure the identity mixup that led to him being named in the warrant. Robinson’s arrest and incarceration arose out of the fact that a person named Michael Cagle [“Cagle”] used Robinson’s Colorado Identification [“ID”] card to identify himself to DPD officers when he was arrested in 2009, and identified himself as “Christian Robinson”.2 When Ca-gle failed to appear at court appearances, a warrant was issued that contained only Robinson’s name and information except for a State Identification Number [“SID”] connected to Cagle. At the time of Cagle’s arrest, the Denver Sheriffs Department [“DSD”] took Cagle’s unique identifying information and associated much of this information with the arrestee “Christian Robinson”, related to Criminal Case No. 09CR6188, including fingerprints, SID number, and mugshot photos belonging to Cagle. The DSD kept the above identifying information regarding the arrest of Cagle on file in various computer systems, including Cagle’s fingerprints, SID number and mugshot photos. The Denver District Court [“state district court”] transmitted warrant information using an electronic system to the DSD on September 8, 2010. The warrant was placed on National Crime Information Center [“NCIC”] and Colorado Crime Information Center [“CCIC”], which are computer databases of information used by criminal justice agencies to access criminal histories and other information. The warrant that was sent by the state district court to the DSD and the Colorado Bureau of Investigation [“CBI”] on September 8, 2010, contained only Robinson’s name, alias, and information except for a SID connected to Cagle. {See ECF No. 55, Exs. H and A; see also ECF No. 67, Ex. 10.) Cagle’s name does not appear on that warrant. {Id.) Robinson admitted this in response to the summary judgment motion.3 *1145The state district court transmits its warrants to the DSD NCIC Unit so that additional identification information may be added, and also for DSD to act as a contact when law enforcement requests a confirmation of the warrant. Warrants are then “packed”. Packing is a warrant modification process that involves the DSD taking custody of the warrant, adding/changing information in it, and deciding whether to put it on the NCIC network. (ECF No. 66, Ex. 1, Tafoya Dep. 10:5-11:4, 62:18-25; see also ECF No. 53, Ex. K-Packing.”) Mary Goos [“Goos”] is an NCIC Agent for the DSD. Part of her job is to add additional identification information to the warrants she receives from the court. While Goos testified that her job does not include removal of information from the warrant. (ECF No. 53, Ex. L, Goos Dep. 7:5-8:10), Robinson denies this. Prior to a policy change included in Defendants’ Exhibit K (“Never change the SID number on original warrant from the court”), Robinson points to testimony that the SID numbers were occasionally (albeit infrequently) changed if they appeared to be incorrect or in conflict with information in a warrant transmitted to the DSD NCIC unit. (ECF No. 66, Ex. 1, Tafoya Dep. 14:11-21, 17:16-18:25, 28:10-22, 61:11-62:1.) In this case, in the process of “packing” the warrant for distribution, Goos saw that the SID number on the warrant (which belonged to Cagle) did not match the name “Christian Robinson”. Thus, she removed the SID belonging to Cagle from the warrant and replaced it with a SID belonging to Robinson which she found using a CCIC/NCIC search. (ECF No. 53, Ex. L, Goos Dep. 8:14-18; ECF No. 66, Ex. 1, Tafoya Dep. 11:19-12:21.)4 Robinson asserts that this change continued on in the modified warrant that was then distributed to law enforcement, per the standardized packing process. (ECF No. 66, Ex. 1, Tafoya Dep. 62:18-25; see also ECF No. 55, Ex. K.) Goos does not remember the incident or why she changed the SID number, but it was a mistake for her to do this. (ECF No. 53, Ex. L, Goos Dep. 8:14-18, 21:13-22:10, 23:13-20.)5 It is known to Denver that the most important piece of identification information in a warrant is the SID number. That number allows law enforcement personnel to correctly connect fingerprint, mugshot and other key identifying information to the “body” seized. Both Goos and Denver know that an incorrect adjustment to a warrant during the “packing” process could result in fundamental changes to the warrant, including a change in whom the warrant had been issued for. Other than this incident, Goos testified she had not changed information on a court warrant. (ECF No. 53, Ex. L, Goos Dep. 8:7-13.) Robinson denies this, noting several circumstances that were identified before his case that involved the need to change seemingly conflicting warrant information that had been sent incorrectly from the state district court. (ECF No. 66, Ex. 1, Tafoya Dep. 16:20-25.) License numbers have been transposed, SID numbers have been transposed, FBI numbers have been incorrectly transmitted, and *1146names have been incorrectly entered. Ruth Tafoya [“Tafoya”], the NCIC supervisor at the DSD, testified that the need to make changes is very infrequent — she had only seen a change to the SID number two or three times. (Id. 14:11-15:3, 17:2-15, 19:23-20:5.) Goos testified that any problem with conflicting or erroneous information is for the supervisor to resolve. (ECF No. 53, Ex. L, Goos Dep. 19:21-20:13.) She further testified, however, that she was not trained in what to do when she found conflicting information in the warrant. She just took it upon herself to give such conflicts to her supervisor. (ECF No. 66, Ex. 12, Goos Dep. 11:9-12:14.) Robinson denies that any problem with conflicting or erroneous information is for the supervisor to resolve, asserting that before the policy change regarding SID numbers, the packing clerks had authority and discretion to alter information in a warrant. {Id., Ex. 1, Tafoya Dep. 14:11-21, 62:9-63:11; see also Ex. 12, Goos Dep. 11:9-12:20.) Further, Goos testified that if there is a question about identity or information in packing a warrant, she brought it to the supervisor. (ECF No. 53, Ex. L, Goos Depo. 26:14-25.) Robinson denies this, pointing out that the supervisor was not contacted when Goos replaced the SID number in the warrant at issue. (ECF No. 66, Ex. 1, Tafoya Dep. 12:16-13:1.) Tafoya did not recall any situations before the instant case where the wrong person was arrested when corrections were made, although those corrections did not involve using somebody else’s name. (ECF No. 66, Ex. 1, Tafoya Dep. 19:1-10.) She testified that when a packing clerk uses somebody else’s name, the “confusion begins” and it causes a “snowball effect”. (Id. 17:22-25.) Denver has no technological system of double-checks or fail-safes to insure that erroneous information is not mistakenly entered that could fundamentally change a warrant. Before the policy change whereby no SID number could be changed on the warrant, Denver did not technologically limit the type of information that may be manually entered by packing clerks. Robinson asserts that Denver did not train its employees about what to do when conflicting warrant information was provided. Tafoya and Goos testified that there were no procedures in place to instruct employees what to do in that situation. (ECF No. 66, Ex. 1, Tafoya Dep. 13:2-6; Ex. 12, Goos Dep. 12:2-10.) There was also no training, and the perception in the department was that they were to try to correct the information. {Id., Ex. 1, Tafoya Dep. 21:22-22:1.)6 Denver did not instruct its packing clerks not to change the SID number. {Id. 19:7-12.) As to the warrant modified by Goos, Robinson admits that it included a name spelled exactly as his, as well as the same birth date, social security number, height and weight as his. Robinson testified that there was nothing on the face of the warrant that would alert an officer that the warrant was for a person other than Robinson. (ECF No. 53, Ex. C, Robinson Dep. 178:12-15.) He now denies this, asserting that the modified warrant prominently lists case number 2009CR6188 and that Officer Keita wrote that case number on the booking slip in the section marked “charges.” That case is connected to Ca-gle with various identifiers, not to Robin*1147son. (ECF No. 66, Ex. 4; Ex. 18, Folmar Dep. 57:19-58:13.) In November 2010, Robinson discovered that his name had been mixed up with someone else for whom a warrant had been issued when a background check was conducted regarding a potential job in Las Vegas, Nevada. Robinson immediately flew from Las Vegas to Denver in an attempt to cure the identity confusion and to clear his name. On November 13, 2010, Robinson went into DPD headquarters and spoke with front-desk officer Jean Keita [“Keita”]. Robinson communicated to Officer Keita that the warrant was not his warrant, that a warrant had been mistakenly issued in his name, that he had flown in from Las Vegas to cure the mixup im identity, and asked that police compare his fingerprints and biographical information to prove that he was not the man truly sought by authorities. During his conversation with Officer Keita, Robinson provided his ID. Every identifier on Robinson’s ID and the warrant matched, and Robinson was arrested by Keita at that time. Keita has been trained to compare biographical information from a warrant to a party who presents himself at DPD headquarters in order to attempt to establish that there is probable cause for arrest. He testified that if someone comes into the department and there is a felony warrant, he checks with the ID bureau and NCIC and then arrests the person if they match the information in the warrant (social security number, height, weight). (ECF No. 66, Ex. 17, Keita Dep. 16:9-17:5, 37:16-25, 93:1-22.) If the person protests that they are not the person on the warrant, it is for the court to sort it out. (Id. 39:5-9.) Thus, Officer Keita testified that even in circumstances where people complain of mistaken identity, he follows the above procedure and does not give them special treatment. (ECF No. 66, Ex. 17, Keita Dep. 37:12-23, 38:7-14, 39:11-40:4.) If everything matches and there is reasonable suspicion that the person matches the description on the warrant, the warrant has to be executed. (Id. 39:11:15.) That is what Keita claims happened in this case. Keita testified that he acted in good faith on the probable cause established by the state district court warrant describing Robinson. Robinson denies that Keita acted in good faith in arresting him, asserting that Keita did not have probable cause to arrest him merely because Robinson’s name and biographical information matched the information on the warrant. At the time of Robinson’s arrest, the DPD front-desk computer had computer programs, including PictureLink (also called Webmug”) and JMS/TAG. Defendant Keita was able to and did look up Cagle’s mugshot after this lawsuit was initiated. (ECF No.66, Ex. 17, Keita Dep. at 87:25, 88:1-6.) Keita testified it was apparent from the Webmug shot of Cagle that he looked nothing like Robinson. (Id. 32:3-6.) Also, Chief Horner testified that a comparison of the JMS/TAG photos would have revealed an identity problem. (Id., Ex. 5, Horner Dep. 44:22-46:9, 112:1-11.) Robinson asserts, and it appears from the evidence, that the DPD does not train its front-desk officers to utilize or rely on computer programs such as Pictu-reLink/Webmug when arresting on a warrant (id., Ex. 17, Keita Dep. 88:7-89:3; Ex. 7, Barker Dep. 50:13-51:7, 58:1-17), even in cases of mistaken identity. Robinson also asserts that criminal case number 09CR6188 clearly belongs to Cagle (ECF No. 66, Ex. 18, Folmar Dep. 57:19-58:13), and should have put a reasonable officer on notice of the identity confusion. Defendants deny this, noting that Robin*1148son’s name was listed on the criminal case records of 09CR6188 as an alias. (ECF No. 55, Ex. G p. 1.) They further assert that Cagle’s use of Robinson’s ID apparently created the “snow ball” effect, which affected the state district court and Goos. Robinson testified that while Officer Keita had Robinson in custody, he and another unknown officer repeatedly looked back and forth at Robinson, whispered to each other their doubt that Robinson looked like the person they believed should be arrested, and verbally expressed that in the face of such doubt they would “just let the system sort it out.” (ECF No. 66, Ex. 2, Robinson Dep. 102:9-17; Ex. 20, ¶ 7.)7 Defendants assert that Robinson was arrested on the state district court warrant, case number 2009CR6188. (ECF No. 53, Ex. A, Keita Dep. 69:17-70:3.) Robinson denies that he was arrested “on” a warrant. The arrest booking slip indicates that the basis for the arrest (“charges”) was criminal case 2009CR6188. (ECF No. 66, Ex. 3.)8 Robinson testified after his arrest that he requested to be fingerprinted. He was taken to another floor and fingerprinted by a middle-aged Hispanic man. Thereafter, the man left and then returned and said the warrant was Robinson’s warrant. Robinson was on the floor where fingerprinting was performed for 15 to 25 minutes. At DPD Headquarters, an officer told Robinson that the bond was $500, and Robinson admits that he had the $500 to bond out. He further admits that the bond amount stated on the warrant is $500. Robinson denies, however, that he could pay the $500 required for bond for fear that if he paid such monies, he would tacitly approve that he was guilty and/or that he was the man for whom the warrant sought. (ECF No. 66, Ex. 2, Robinson Dép. 104:1-19; Ex. 20.) DSD was notified to pick up Robinson and take him to the Denver Detention Center [“DDC”]. Deputies Jason Cruz [“Cruz”] and Jessica Jaquez [“Jaquez”] transported Robinson from DPD headquarters across the street to the DDC, and were with Robinson for approximately three minutes. Deputy Joseph Armijo [“Armijo”] assisted in processing Robinson into the DDC at the Admissions post. The Admissions post is responsible for inputting information and demographics into the computer and creating the booking number. Robinson asserts that during the process of being transported and processed into the .DDC, he described to the deputies that he was not the person for whom a warrant had been issued and his identity had been confused for someone else. (ECF No. 66, Ex. 2, Robinson Dep. 119:14-23; Ex. 20.) Deputies typically compare height, weight and other warrant descriptors to make sure they have the right person. *1149Defendants also assert that the Prisoner Identity-in-Question Investigation procedure [“PIQ procedure”] (ECF No. 66, Ex. 6) is part of the various intake procedures at the DDC. The PIQ procedure is designed to verify a person’s identity when someone complains of mistaken identity. (Id., Ex. 7, Barker Dep. 51:8-52:24.) The PIQ procedure was utilized and logged 99 times from February through December 2010.9 The PIQ procedure precipitates an inquiry with the DPD ID Bureau regarding warrant identification. Robinson asserts, and Defendants do not dispute, that some sheriffs deputies, including Armijo, were told that they had a duty to initiate an identity investigation to prevent unjustified and unnecessary continuing detentions of innocent persons. Armijo acknowledges being put on notice that an identity investigation procedure was designed to prevent unconstitutional deprivations and that the failure of an officer to implement the procedure could result in a constitutional deprivation of a person who had been mistakenly arrested in their facility. Defendants asserts that the Defendant deputies had actually used the PIQ procedure before Robinson’s arrest, and that this procedure requires a deputy to report to a sergeant when a prisoner complains about identification on an arrest warrant. (ECF No. 53, Ex. 0, Cruz Dep. 16:15-17:9, 18:17-19:25; Ex. P, Jaquez Dep. 12:25-13:3, 14:23-16:13; Ex. Q, Armijo Dep. 13:11-14:11, 50:6-11.) Robinson denies that the deputies had previously used the PIQ procedure, arguing that they testified in a conflicting manner about that. He asserts that the deputies appeared confused about the circumstances under which they should initiate the PIQ. (See ECF No. 66, Ex. 8, Armijo Dep. 15:6-12, 16:3-20, 25:8-21, 26:2-14; Ex. 13, Cruz Dep. 14: 3-10, 17:10-18:7.) Robinson further notes that although Armijo testified he would report a discrepancy to a supervisor (ECF No. 55, Ex. Q, Armijo Dep. 47:19-23), he failed to report the discrepancy in this case between the warrant and the criminal case number even though he had looked at the criminal case information. (ECF No. 66, Ex. 16.)10 Thus, it is undisputed that the PIQ process was not initiated by the deputies that transported Robinson. Indeed, no sheriffs deputy initiated that procedure during the time Robinson was detained. (ECF No. 66, Ex. 5, Horner Dep. 54:4-10; Ex. 25.) Robinson asserts that if any deputy had initiated a PIQ procedure, he would have been released. While the testimony he cited does not support this (see ECF No. 66, Ex. 5, Horner Dep. 44:20-45:3.), Chief Horner did testify to that effect. (Id. 54:4-10.) Chief Horner also acknowledged that if the photos of Robinson and Cagle had been pulled up, it would have revealed an identity problem. (Id. 42:3-19, 44:22-45:3.) Further, there is evidence that just by “eyeballing” the fingerprints of Robinson and Cagle, a distinctive difference could be noted. (Id., Ex. 18, Folmar Dep. 53:6-54:3.) Chief Horner also testified that if any officer had looked up Robinson’s name they would have had access to records that would have created reasonable doubt that two inmates could have the same case *1150number. (ECF No. 66, Ex. 5, Horner Dep. 112:1-7.) He then clarified that by stating that there is a possibility that two inmates could be on the same case number, so that would have raised a warning to look into it further. {Id. 112:8-11.) Indeed, in the case records in this case, Robinson’s name was listed as an alias. (ECF No. 55, Ex. G p. 1.) Defendants note that Robinson was the “Christian Robinson” in the court records because it was his identity that was used at the first arrest in case no. 2009CR6188. While Robinson was incarcerated at the DDC, Chief Horner testified that there was no written record of complaints or grievances from Robinson. (ECF No. 53, Ex. I, Horner Dep. 132:7-25.) While Robinson denies this, he does not show that there was such a written record. Robinson testified, however, that he wrpte approximately two requests or complaints per day maintaining that his identity had been confused with someone else. (ECF No. 66, Ex. 2, Robinson Dep. 133:14-134:23.) On Monday, November 15, 2010, the state district court was notified by DSD that the warrant had been executed and a person was in custody, and on that day the state district court set a court appearance for Robinson on November 24, 2010 at 1:30 p.m. Chief Horner testified that when a person comes into the jail or is arrested on a state district court warrant, the state district court is notified promptly. (ECF No. 73, Ex. X, Horner Dep. 130:25-131:3.) The DSD notifies the state district court that it has someone in custody on a state district court warrant, and the state district court does the scheduling. (ECF No. 53, Ex. I, Horner Dep. 18:22-19:2.) Chief Horner testified that the state district court controls the timing of a court appearance of an arrestee on a state district court warrant, and the DSD acts pursuant to the will of the state district court. (ECF No. 53, Ex. I, Horner Dep. 18:20-19:13; ECF No. 73, Ex. X, Horner Dep. 130:25-131:3.) While Robinson denies this, he has not cited competent evidence to dispute Horner’s testimony. He does complain, however, that Denver deliberately relies on a policy that defers the scheduling of court appearances for new arres-tees to state district court discretion. Chief Horner acknowledged that while in a county court matter the arrestee usually appears in court the next day after arrest, it takes longer in the state district court. (ECF No. 53, Ex. I, Horner Dep. 18:9-19:2.) He testified that in a state district court case it could take up to ten days for an appearance. (Id. 20:17-22.) Robinson contends that there is competent evidence that Denver could act to shorten this waiting period. The only evidence he cites, however, is Chief Horner’s testimony that when a person was severely ill, the DSD had requested a PR bond to get them out as soon as they could. (Id. 22:14-23:15.) Robinson also points to testimony that anyone — family, friends, their attorney, can call the court and petition to be seen sooner than scheduled by the court. (Id. 27:15-20.) This does not, however, rebut Chief Horner’s testimony. It is undisputed that in Robinson’s case, the scheduling of his court appearance by the district court resulted in a twelve-day incarceration before Robinson was given a hearing before a judge. (ECF No. 66, Ex. 5, Horner Dep. 14: 23-25, 15:1-3.) Thus, on November 24, 2010, Robinson appeared on the warrant in the state district court division which issued the warrant. The deputy district attorney agreed that Robinson was not the person who pled guilty in the case. Robinson was released on a personal recognizance bond. Robinson appeared again in state district court on December 2, 2010, the bond was vacated, and *1151it was noted that Robinson was a victim of ID theft. A motion for factual innocence was prepared for Robinson which was granted by the state court on January 10, 2011. Robinson asserts at the time he was arrested that Denver knew it had a regularly reoccurring mistaken identity arrest problem. He cites testimony which I summarize as follows. Denver was taking action and adopting standardized procedures regarding cases of mistaken identity because it recognized it could do a better job. (ECF No. 66, Ex. 7, Barker Dep. 19:4-15.) There had been some lawsuits regarding mistaken identity. (Id. 19:7-9.) The two biggest problems Denver had regarding identity in question issues were that (1) people lie about who they are and (2) courts typically do not add very much identifying material on a case, making it more difficult for officers to determine who it is they are trying to pick up in relationship to the real suspect on a case. (Id. 20:10-21:3.) Chief Horner testified that of the cases where the PIQ procedure was implemented, 60 percent resulted in a determination that it was not the correct person being held. (Id., Ex. 5, Horner Dep. at 55:16-56:4-16.)11 The DPD has extensive policies regarding probable cause and arrest in the Operations Manual, § 104. Defendants assert that DPD officers are trained to arrest upon probable cause, citing to deposition testimony of Lieutenant Barker. (ECF No. 53, Ex. V, Barker Dep. 69:16-19.) Robinson denies that DPD officers are properly trained to find appropriate “probable cause” in circumstances of mistaken identification, because DPD officers are trained only to check and compare the information on the warrant. (ECF Ño. 66, Ex. 17, Keita Dep. 37:4-11, 38:1-41:4, 124:3-13.) DPD officers receive extensive field training on matching warrant descriptors to a suspect. Defendant Keita has had training on the Fourth Amendment, the probable cause standard to arrest, and matching an arrest warrant to a suspect. DPD has a dedicated Bureau to identification matters. Personnel in the ID Bureau include police technicians who are trained and experienced in both practical, general police work and specialized identification matters including fingerprinting. III. ANALYSIS A. Standard of Review Summary judgment may be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “A fact is ‘material’ if, under the governing law, it could have an effect on the outcome of the lawsuit.” E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000). *1152“A dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on the evidence presented.” ■ Id. The burden of showing that no genuine issue of material fact exists is borne by the moving party. Horizon/CMS Healthcare Corp., 220 F.3d at 1190. “ ‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000) (quotation omitted). When applying the summary judgment standard, the court must “ ‘view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.’ ” Id. (quotation omitted). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991). In this case, Defendants assert qualified immunity which “is an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). The court “has discretion to determine ‘which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009)). If the defendants did not violate the plaintiffs constitutional rights, the court need not address whether those rights were clearly established. Id. “In determining whether the plaintiff has met his burden of demonstrating a violation of a constitutional right that was clearly established, [the court] will construe the facts in the light most favorable to the plaintiff as the nonmoving party.” Estate of Bleck ex rel. Churchill v. City of Alamosa, Colo., No. 12-1139, 540 Fed.Appx. 866, 868, 2013 WL 5878802, at *2 (Nov. 4, 2013) (citing Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). Since the case is “ ‘beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record.’ ” Id. (quotation omitted). B. The Merits of the Motion 1. The First Claim — Fourth Amendment Violation Against Officer Keita in His Individual Capacity Defendants argue that Robinson cannot meet his two-part heavy qualified immunity burden on this claim as Officer Keita had probable cause to arrest Robinson. The Fourth Amendment requires probable cause for arrest. See Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289 (10th Cir.2006). “‘Probable cause to arrest exists if, under the totality of the circumstances, the facts and circumstances within the officer’s knowledge are sufficient to justify a prudent officer in believing the defendant is engaged in an illegal activity.’ ” United States v. Brown, *1153234 Fed.Appx. 838, 845 (10th Cir.2007) (quoting United States v. Stephenson, 452 F.3d 1173, 1178 (10th Cir.2006)). Probable cause is a “ ‘practical, nontechnical conception’ ” which deals with probabilities, not “hard certainties”. Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quotation omitted). “[T]he evidence ... must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id. at 232, 103 S.Ct. 2317. In the qualified immunity context, officers are shielded “from suit for damages if ‘a reasonable officer could have believed [the plaintiffs] [arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.’ ” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “Even law enforcement officials who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to immunity.” Id. (quoting id.) As recognized by Judge Krieger in Jama v. City and Cnty. of Denver, No. 08-cv-01693-MSK-KLM, 2010 WL 3615027 (D.Colo. Sept. 9, 2010), the clearly established law governing mistaken identity arrests is set out in Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). Hill was summarized by Judge Krieger as follows: In Hill, police officers obtained an arrest warrant for Mr. Hill, which included his age, physical description, and address. When they arrived at Mr. Hill’s apartment, Mr. Miller, who fit Mr. Hill’s physical description, was present in the apartment but Mr. Hill was not. Despite Mr. Miller’s protests that he was not Mr. Hill and production of an identification card indicating he was Mr. Miller, the police officers believed Mr. Miller to be Mr. Hill and arrested him on the warrant for Mr. Hill. They also conducted a search of the apartment incident to the arrest, which resulted in seizure of a number of items that were subsequently used to convict Mr. Hill of robbery. Mr. Hill appealed his conviction arguing that the evidence was not admissible because Mr. Hill, the subject of the arrest warrant, had not actually been arrested prior to the search. The Supreme Court framed the issue as whether Mr. Miller’s arrest was constitutional, because if it was constitutional then the subsequent search was constitutional and the evidence admissible. The Supreme Court concluded that “when the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.” It reasoned that the arrest was a “reasonable response to the situation facing them at the time.” To support the finding of reasonableness, the Supreme Court noted that the officers executed the search warrant at Mr. Hill’s apartment on a person who met the description of Mr. Hill. The fact that Mr. Miller produced identification showing that he was, in fact, Mr. Miller, did not make the arrest unreasonable because aliases and false identifications are not uncommon. Id., 2010 WL 3615027, at *6. The Hill case: does not ... clearly establish, nor even address, what degree of similarity between the suspect and the description in the warrant must be present to make an arrest reasonable, nor when it is reasonable to arrest someone based on the purported use of an alias. Rather, Hill provides that reasonable mistakes do *1154not constitute constitutional violations, and demonstrates that an arrest based on similarities in descriptors is reasonable even in the face of some contrary evidence that the individual is the person described in the warrant. As such, it cannot serve to put an officer on notice that the arrest of a suspect who has the same name as an alias used by the suspect and matches a warrant’s description of the suspect, albeit with some differences, is unconstitutional. Id. Based on Hill, it is clearly established that if police have probable cause to arrest a person, and reasonably mistake someone else for that person, then the arrest of the other person is a valid arrest. Jama, 2010 WL 3615027, at *6. It is also “clearly established that mistaken identity arrests are governed by a ‘reasonableness’ standard — whether the officer’s mistake as to the identity was reasonable under the circumstances facing him or her at the time of the arrest.” Id. I find in this case that it was reasonable for Officer Keita to arrest Robinson, given the fact that the warrant upon which he was arrested included all of Robinson’s identifying information, including his name, birth date, social security number, height, and weight. See Reyes v. Bd. of County Comm’rs, No. 06-cv-2319-WDM-BNB, 2008 WL 961565, at 4 (D.Colo. April 8, 2008) (“it was reasonable for the ACDF employees to conclude that Plaintiff was the person named in the warrant, as there were numerous matching identifiers”; no Fourth Amendment violation was found as the facially valid warrant gave the officers sufficient probable cause to arrest and detain plaintiff); Archuleta v. Wagner, No. 06-cv-02061-LTB-MJW, 2007 WL 646317, at *5-6 (D.Colo. Feb. 27, 2007) (plaintiffs name was same as alias used by wanted fugitive; booking plaintiff after arrest on warrant, despite claims of innocence and mistaken identity, did not give rise to constitutional claim against booking officer, despite officer’s subjective belief that plaintiff might not be named in warrant), aff'd, 311 Fed.Appx. 113 (10th Cir.2009); see also Brown v. Patterson, 823 F.2d 167, 169 (7th Cir.1987) (“If, as here, an arrest warrant, regular on its face, is duly issued, the officer executing the warrant does not violate the Fourth Amendment by arresting the wrong person,'- unless the officer acts unreasonably. ... As the warrant did not violate the Fourth Amendment by containing an inaccurate or too general description of the person to be arrested”, the officer was found to have acted reasonably.). No independent constitutional requirements exist for matching warrant descriptors to a suspect, and Robinson has not identified any authority that requires that. Robinson acknowledges that a warrant normally could provide sufficient information for a field officer to make a reasonable determination, in good faith, that there was probable cause to arrest a suspect. He argues, however, that in a circumstance where an officer is safe, with time and resources at his disposal at the police department headquarters front desk, no reasonable front-desk officer would ignore the communication of a citizen who came into headquarters and stated that the warrant that might be used to compare identifying information erroneously identified him. In other words, he argues that Office Keita failed to act as a reasonable officer would when conducting a probable cause identity investigation, and that Keita demonstrated deliberate indifference to Robinson’s constitutional right to be free from unjustified detention when he failed to use resources available at the front desk to confirm/deny the existence of probable cause regarding Robinson’s identity, ar*1155rested him within minutes of his mistaken identity communication, and left “the system to sort it out.” I reject Robinson’s argument, finding that he has not cited clearly established authority for the proposition that Keita had a duty to further investigate Robinson’s mistaken identity contention once he matched the identifiers on the warrant. Again, I find the Jama case instructive on the issue. In Jama, as in this case, the plaintiff claimed “that it was unreasonable for the Officers to not further investigate once Mr. Jama expressed his innocence and/or they developed doubt that - Mr. Jama was in fact Mr. Alia”, the person named on the warrant. 2010 WL 3615027, at *7. Judge Krieger noted that this was a “troubling” allegation “because it appears that the [DPD] had the means by which to investigate Mr. Jama’s claims of mistaken identity, but did not.” Id. at 7 n. 1. However, she found it was “not clear that either of these Officers [whose involvement ended either when Mr. Jama was arrested or was transported to the jail] had a clearly established obligation to do so.” Id. Since the plaintiff cited no authority “establishing that the Officers had such a duty”, Judge Krieger found that “Mr. Jama has not met his burden of establishing that the Officers’ failure to investigate his claims of innocence (or their own subjective doubts) as to his guilt, was a violation of the Fourth Amendment and, therefore, the Officers are entitled to qualified immunity....” Id. As in Jama, Robinson has not cited authority that Officer Keita’s failure to further investigate his claim of innocence after Keita matched the identifiers on the warrant was a constitutional violation. Moreover, cases have routinely found that a failure to investigate a claim of innocence under similar circumstances does not give rise to a Fourth Amendment violation. The key case on this issue is the Supreme Court’s decision in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In Baker, as here, the plaintiff asserted a § 1983 claim based upon his arrest pursuant to a warrant. Id. 141-42, 99 S.Ct. 2689. The warrant was issued for the plaintiff but was based on conduct by his brother, who had stolen the plaintiffs driver’s license. Id. Despite the plaintiffs protests of mistaken identity, he was detained for three days. Id. at 144, 99 S.Ct. 2689. When officers eventually ascertained the validity of the plaintiffs protests, he was released. Id. The Supreme Court in Baker affirmed dismissal of the § 1983 claim for violation of the plaintiffs Fourth Amendment rights. 443 U.S. at 147, 99 S.Ct. 2689. The court noted that Baker was arrested pursuant to a facially valid warrant, and found that the plaintiffs claim that the officer arresting him should have investigated his claim of mistaken identity did not give rise to a constitutional violation. Id. at 143-44, 99 S.Ct. 2689. In so finding, the Court noted that the plaintiffs “innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment ..., is largely irrelevant to his claim of liberty without due process of law.” Id. at 145, 99 S.Ct. 2689. That is because “[t]he Constitution does not guarantee that only the guilty will be arrested.” Id. “ ‘Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’ ” Id. (quotation omitted). The Court then stated: Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to independently investigate ev*1156ery claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury. Id. 145-146, 99 S.Ct. 2689. The Tenth Circuit relied on the Baker decision in Romero v. Fay, 45 F.3d 1472 (10th Cir.1995), where the plaintiff claimed that the defendants “falsely imprisoned him by conducting an inadequate investigation into the facts forming the probable cause to arrest him for the murder of David Douglas.” Id. Among other things, the plaintiff argued that defendants falsely imprisoned him by refusing to release him when he repeatedly protested his innocence. Id. The Tenth Circuit rejected this argument, finding under Baker that “[o]nce Defendants concluded that the initially discovered facts established probable cause, they were under no obligation to forego arresting Plaintiff or release him merely because he said he was innocent.” Id.; see also Marx v. Gumbinner, 905 F.2d 1503, 1507 n. 6 (11th Cir.1990) (“[The police officers] were not required to forego arresting [plaintiff] based on initially discovered facts showing probable cause simply because [plaintiff] offered a different explanation); Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir.1988) (“A policeman ... is under no obligation to give any credence to a suspect’s story nor should a plausible explanation in any sense require the officer to forego arrest pending further investigation if the facts as initially discovered provide probable cause.”). Based on the foregoing,' I find that Robinson has not shown a constitutional violation by Officer Keita. Robinson also asserts, however, that he was seized pursuant to an erroneously issued warrant that should have been issued for Cagle. He argues that an erroneously issued warrant cannot provide probable cause for an arrest, relying on Berg v. County of Allegheny, 219 F.3d 261, 276 (3rd Cir.2000) and other cases. I find the Berg case distinguishable as to this argument, as the plaintiff there had no connection to the criminal case out of which the warrant was issued. Id. at 266-67. Berg relied on Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), in which the warrant was improperly issued by a justice of the peace solely on a conclusory statement of a sheriff. That is certainly not the situation here. More importantly, I find that the cases relied on by Robinson, all of which are from outside the Tenth Circuit, do not constitute clearly established authority in support of Robinson’s claim against Officer Keita. Instead, I find that the Baker case is controlling under these facts. See Archuleta v. Wagner, 2007 WL 646317, at *5-6) (applying Baker and surveying the case law). Based on the foregoing, I find that Robinson has not met his burden of demonstrating a violation by Officer Keita of a constitutional right that was clearly established. Accordingly, I find that Officer Keita is entitled to qualified immunity, and grant summary judgment on the first claim for relief. 2. The Second Claim — Due Process Violation Against Deputies Jaquez, Cruz and Armijo I also find that the deputy Defendants are entitled to qualified immunity in connection with the due process claim asserted against them. Robinson alleges that the deputies deprived him of liberty without due process of law by ignoring his claims of innocence and deliberately failing *1157to initiate the PIQ procedure. (See Am. Compl. ¶ 42.) I note as to the actual acts of transporting and booking Robinson into the DDC that it is undisputed that Robinson’s name is on the warrant, as is his birth date, social security number and other identifying information. The arrest was made by Keita, and the deputies merely enforced the warrant by transporting Robinson to the DDC where he was processed and booked. Robinson argues, however, that there is a history of mistaken identification cases that have recognized a person’s right to be free from continued detention after an initial mistaken identity arrest. While he acknowledges that the Tenth Circuit has not yet found occasion to recognize the right, he argues that the Supreme Court has identified the right and at least four circuit courts have followed in development of the contours of the right. Robinson asserts that these and other cases demonstrate that the right may be violated by law enforcement’s conduct in continuing to detain a suspect while he knew or should have known that the detainee is entitled to release. The primary method of violating a person’s rights in this context, according to Robinson, is ignoring a detainee’s repeated pleas that his/her identity have been confused with someone else over a prolonged period of time. Robinson contends that such conduct shows deliberate indifference to the risks of unjustified detention and such indifference is the reason that the deputies were added as parties in the Amended Complaint. From these allegations, it appears that Robinson is asserting a substantive due process claim. I now turn to the cases relied on by Robinson. I first address the Baker case, which I find is the controlling case on this issue. As discussed previously, the Supreme Court in Baker noted that a sheriff executing an arrest warrant is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or not. 443 U.S. at 145-46, 99 S.Ct. 2689. Relevant to the claim against the deputies, Baker also noted that the official charged with maintaining custody of the accused named in the warrant, in this case the deputies, is not required by the Constitution to perform an error-free investigation of such a claim. Id. at 146, 99 S.Ct. 2689. The Supreme Court in Baker found no Fourteenth Amendment violation where a person was wrongfully detained based upon mistaken identity for three days. It acknowledged, however, in dicta that there could be limits to the period of detention, stating, “[o]bviously ... one could not be detained indefinitely in the face of repeated protests of innocence ... detention pursuant to a valid warrant but in the face of repeated protests of innocence will, after a lapse of a certain amount of time, deprive the accused of liberty without due process of law”. Baker, 443 U.S. at 144-145, 99 S.Ct. 2689. Robinson relies on this in arguing a constitutional violation based on his twelve day detention. . The deputies’ involvement with Robinson’s detention, however, appears to have been very brief. Jaquez and Cruz transported Robinson from the DPD headquarters across the street to the DDC, and Armijo assisted in booking and processing Robinson into the DDC. No further contact with the deputies at the DDC is alleged and no evidence has been provided of any further contact. There is no evidence showing that Armijo, Jaquez or Cruz were involved in the decision to continue to detain Robinson after their initial involvement was over, nor is there an allegation or evidence that they had the authority to release Robinson. See Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.*11581987) (finding no constitutional violation against police officer who reasonably arrested the plaintiff on a warrant even though the plaintiff was held for five days “over his vigorous protest that he” was the wrong man as “there was no suggestion that [the officer] continued to exercise a baleful influence over” the plaintiffs destiny after he “was carted off to Cook County Jail”). Moreover, even if the deputies could be assumed to be responsible for the detainment of Robinson for the full twelve day period, the language relied on in Baker is dicta and provides no concrete guidance on what specific conduct would rise to the level of a due process violation, including how long one would need to be detained for a constitutional violation to occur. Thus, it cannot constitute clearly established law as it would not alert a reasonable official as to the contours of the right. Robinson also cites cases from other Circuits to support his argument that the right at issue was clearly established. Robinson argues in the cases that the officer or jailer responsible for continued detention of a suspect failed to take action to utilize or compare information that was available and which should have put the defendant on notice that the detainee was entitled to release. The cases found that incarceration durations ranging from seven (7) to sixty-eight (68) days were severe enough to qualify as Fourteenth Amendment violations. Together, Robinson argues that these cases have developed the contours of the Fourteenth Amendment right against continued detention in the mistaken identity context and demonstrate a great weight of circuit authority clarifying a “right to be free from continued detention after it is known or should have been known that a detainee is entitled to release.” {See PL’s Resp. to Defs.’ Mot. Dismiss, at 7.) I now turn to those cases. I first address Cannon v. Macon County, 1 F.3d 1558 (11th Cir.1993), which is probably the strongest case in support of Robinson’s argument. There, an arrestee brought a § 1983 action alleging that her arrest and seven-day incarceration, on the basis of her misidentification as a fugitive violated her due process rights. Id. at 1560-61. As here, the plaintiff alleged that she repeatedly maintained to the defendants that she was not the person they thought she was. Id. The 'court noted that “Cannon’s § 1983 claim ... is essentially a claim of false imprisonment rising to the level of a liberty deprivation”, and recognized that “[a]t the time of the relevant conduct, Cannon had a clearly established right against false imprisonment without due process.” Id. at 1562. However, the facts of Cannon are distinguishable from this case. In that case Cannon, then known as Mary Rene Parrot, was arrested after a sheriffs deputy got a “hit” from the NCIC that a Mary E. Mann [“Mann”], a.k.a Mary E. Parrot, was wanted. Cannon, 1 F.3d at 1560. The deputy transported Cannon to the jail, where he left the arrest report for Deputy Collins to complete. Id. Collins completed the arrest report and presented an affidavit to a judge “that served as the basis for the issuance of the fugitive warrant for Cannon’s arrest.” Id. at 1565. Collins took this action despite the fact that Cannon repeatedly claimed she was not Mann, the sheriffs office had Cannon’s driver’s license and other identifying information on file, the information on the driver’s license differed significantly from the' description for Mann, Cannon’s physical description did not match Mann’s description, and while Collins initially claimed that he got the information for the arrest report from Cannon, he later “conceded that it was possible that he obtained some of the information from the NCIC report *1159rather than from Cannon.” Id. at 1563-64. The court found that the jury was presented with substantial evidence that Collins unreasonably violated Cannon’s clearly established right, holding that: at the time of Cannon’s incarceration, and considering all the evidence in the light most favorable to Cannon, a reasonable official in Collins’ position would have known that Collins’ conduct could violate Cannon’s fourteenth amendment right not to be falsely imprisoned. A reasonably well trained officer would have at least attempted to obtain information from Cannon for purposes of filling out Cannon’s arrest report, rather than copying data from an NCIC computer printout. A reasonable official also would be unlikely, in the face of Cannon’s assertions of mistaken identity, to sign an affidavit swearing to a belief that Cannon was a wanted fugitive without taking any steps to verify that belief. Id. at 1565. In the case at hand, unlike Cannon, the warrant used to arrest and detain Robinson appeared to be facially valid and the deputies were simply enforcing the warrant by transporting Robinson to the DDC where he was processed and booked. The deputies did not sign any affidavit or make representations regarding Robinson’s identity. Moreover, unlike Cannon, there are no allegations from which I can draw the inference that the deputies as reasonably trained officers should have attempted to obtain further information about Plaintiff before transporting him to the DDC. Given the factual differences between the two cases, I cannot say that Cannon supports a finding that a reasonable official in the deputies’ positions would have known that their conduct violated a Fourteenth Amendment right not to be falsely-imprisoned without due process. I next address Fairley v. Luman, 281 F.3d 913 (9th Cir.2002), where Fairly was detained by the police and held for 12 days on outstanding warrants for the arrest of his twin brother. Id. at 915. An officer approved Fairley’s booking on the warrants based on the similarity in the physical descriptions alone of the twins. Id. Despite Fairley’s protests of innocence and statements that his twin was the person they wanted, the police failed to conduct a fingerprint comparison or a Department of Motor Vehicles check during his detention, either of which “would have immediately alerted the City it had the wrong man.” Id. While the court found that “ ‘an individual has a liberty interest in being free from incarceration absent a criminal conviction’ ” and that Fairley “had a liberty interest in being free from a twelve-day incarceration without any procedural safeguard in place to verify the warrant he was detained on was his and in the face of his repeated protests of innocence”, id. at 918 (quotation omitted), the case addressed only the municipality’s liability in connection with a policy or procedure, as the individual defendants were exonerated at trial. Id. at 916. As such, I fail to see how that case could provide notice to a reasonable official in the deputies’ position that their conduct in transporting Robinson and booking him violated a clearly established right. In Russo v. City of Bridgeport, 479 F.3d 196 (2nd Cir.2007), the plaintiff was arrested based on mistaken identity and held for 217 days. During that period, the police had in their possession a videotape that showed the perpetrator, unlike Russo, had no tattoos as well as information that the physical characteristics of the perpetrator differed from Russo. Russo repeatedly protested his innocence and requested that the officers view the videotape. The Second Circuit dismissed the false arrest and *1160false imprisonment cases because the plaintiff was arrested on a facially valid warrant. While the court denied summary judgment as to Russo’s claim based on an unreasonably prolonged detention, this was based on the “individual defendants-appellees’ alleged mishandling of exculpatory evidence and failure to turn that evidence over to the prosecuting attorney which, in turn, prevented the prosecutor from complying with his duty to give the exculpatory evidence to the defense.” Russo, 479 F.3d at 205. The right the court found was clearly established was the “right to be free from prolonged detention caused by law enforcement officials’ mishandling or suppression of exculpatory evidence in a manner which ‘shocks the conscience.’ ” Id. at 211. This again is factually distinct from this case. Finally, in Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir.2001), a mentally disabled person named Kerry Sanders was incorrectly identified as fugitive Robert Sanders. Id. at 676. As a result, he “was extradited from California to New York in October 1993 and incarcerated” until October 1995 when it was learned that the real Robert Sanders had been arrested another jurisdiction. Id. Thus, Kerry Sanders was incarcerated for two years. The plaintiffs alleged that the defendants “ignored his ‘obvious’ mental capacity and failed to take any steps to identify him before arresting him as Robert Sanders pursuant to a fugitive warrant.” Id. at 684. Indeed, he was arrested under a warrant with a different name — Robert Sanders — and his identifying characteristics did not match those of Robert Sanders. Id. at 685. The plaintiffs alleged that “had defendants in any other way verified the identity of the man they had in custody, Kerry Sanders would not have been arrested, extradited, or incarcerated as Robert Sanders.” Id. at 676-77. Here, unlike in Lee, Plaintiff was arrested on what appeared to be a facially valid warrant, and steps were taken to match the information on the warrant to Robinson’s information.12 Based on my analysis of these cases, I find that they are factually distinguishable from this case. I further find that Robinson has failed to show that these cases constitute a consensus of persuasive authority outside of the Tenth Circuit which makes it apparent that in the light of preexisting law a reasonable officer would have known that the conduct here violated Robinson’s constitutional rights. Robinson also argues that the deputies’ failures were similar to those in Reyes v. Bd. of County Comm’rs, No. 06-cv-02319-WDM-BNB, 2008 WL 961565 (D.Colo. April 8, 2008), but that the facts are even more egregious than in that case. I disagree, and find that the Reyes decision does not help Robinson. The court in that case granted qualified immunity to police *1161officers on the plaintiffs Fourteenth Amendment due process claim, finding that the plaintiffs detention from November 18 to December 1 was not unduly long. Id. at *5. The time frame of the detention in that case is similar to this case. The court also found that the defendants did not engage in behavior that shocks the conscience, as required to assert a substantive due process claim. Id. At most, the defendants “negligently failed to discover that Plaintiff was not the fugitive named in the warrant ....”, as they “could have discovered that Plaintiff was not the wanted fugitive if they had taken further steps.” Id. Again, that appears to be the situation here. While Reyes acknowledged the decisions in Fairly, Cannon, and Russo, it found that the cases were factually distinguishable and thus did “not help Plaintiffs claim to survive”, just as I did. Id. Finally, Robinson argues that the deputies violated his Fourteenth Amendment rights by engaging in conduct that disregards a known, specific risk of harm when they transported and booked him for detention while ignoring his pleas of innocence. He cites Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir.1992) and Romero v. Fay, 45 F.3d 1472 (10th Cir.1995). Neither of those cases supports Robinson’s position, and I find they would not have put a reasonable official on notice that the conduct at issue herein would give rise to liability. Indeed, neither case is even remotely similar to this case factually. Medina involved a bystander’s claim against Denver and several of its police officers for injuries sustained when the bystander was struck by a suspected felon during a high speed automobile chase. 960 F.2d at 1494. Romero involved a warrantless arrest where the plaintiff was implicated in a murder. 45 F.3d at 1474. Moreover, the Romero case actually supports a finding of qualified immunity. It held that the defendant’s “failure to investigate Plaintiffs alleged alibi witnesses did not negate the probable cause for the warrantless arrest in the absence of a showing that Defendant Fay’s initial probable cause determination was itself unreasonable.” 45 F.3d at 1478. I already found in connection with Officer Kei-ta that the decision to arrest Robinson based on the warrant was reasonable. Romero also held in regard to a three month detention that the “judicial system represents the proper forum in which to determine the innocence of an arrestee, Defendants’ refusal to release Plaintiff when he maintained his innocence does not exhibit deliberate or reckless intent to falsely imprison him.” Id. at 1481. Based on the foregoing, I find that Robinson has not shown that Deputies Armijo, Jaquez or Cruz’s conduct violated clearly established constitutional rights of which a reasonable person would have known. It was not apparent in light of pre-existing law, including Baker and Reyes, that reasonable officers would have known that the conduct in question violated a constitutional right. See Green v. Post, 574 F.3d 1294, 1300 (10th Cir.2009). Thus, I find that the deputies are entitled to qualified immunity in connection with the claim asserted against them. Moreover, I note that the Tenth Circuit has held that officers can, on an objectively reasonable basis, rely on the collective information of law enforcement. See Stearns v. Clarkson, 615 F.3d 1278, 1286 (10th Cir.2010) (“the assisting officer is not required to second-guess the requesting officer’s probable cause determination, nor is he required to independently determine that probable cause exists.... Rather, ‘a police officer who acts in reliance on what proves to be the flawed conclusions of a *1162fellow police officer may nonetheless be entitled to qualified immunity as long as the officer’s reliance was objectively reasonable.’ ”) (quotation omitted). Here, given the limited actions of the deputies in enforcing what they thought was a facially valid warrant with Robinson’s identification information, qualified immunity may also be appropriate on this basis.13 At most, it appears from the facts at issue that the deputies violated a law enforcement agency (DSD) policy in regard to not initiating the PIQ procedure. This does not equate to a constitutional violation. See Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993). “Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision. Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); see also Herring v. Keenan, 218 F.3d 1171, 1180 (10th Cir.2000). Based on the foregoing, summary judgment is granted as to Claim Two. Defendants Armijo, Jaquez, and Cruz are entitled to qualified immunity. 3. The Third and Fourth Claims— Municipal Liability The Tenth Circuit has indicated it will not hold a municipality “liable for constitutional violations when there was no underlying constitutional violation by any of its officers.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir.2002); see also Ellis v. Ogden City, 589 F.3d 1099, 1104-05 (10th Cir.2009) (once the claims against the officers are properly dismissed, the claims against the municipality are also property dismissed); Cordova v. Aragon, 569 F.3d 1183, 1193 (10th Cir.2009) (to succeed on a § 1983 claim against a municipality, a plaintiff must first show that a municipal employee committed a constitutional violation). Thus, Robinson’s argument that Denver is liable because it failed to train its front-desk officers to conduct a reliable identity and/or probable cause investigation, to implement the PIQ procedure and/or to train its employees to utilize the PIQ procedure fails because there was no underlying constitutional violation and Denver cannot be vicariously liable for the acts of its employees. See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.2013).14 Notwithstanding the above, a municipality can be independently “liable when enforcement of its policies causes a constitutional deprivation.” Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1279 (10th Cir.2009). “ ‘[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to *1163represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.’ ” Id. (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). “ ‘Local governing bodies, therefore, can be sued directly under § 1983 ... where ... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the local government] body’s officers.’ ” Id. (quoting Monell, 436 U.S. at 690, 98 S.Ct. 2018.) A plaintiff must “ ‘ ‘identify a specific deficiency’ that was obvious and ‘closely related’ to his injury, ... so that it might fairly be said that the official policy or custom was both deliberately indifferent to his constitutional rights and the moving force behind his injury.” Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir.2010) (quotation omitted). In the case at hand, Robinson refers to an alleged policy of deferring to the state district court to schedule court appearances. He asserts that Denver “clings to a policy that affirmatively violates detainees [sic] Constitutional rights by requiring them to be held for an average of 10 days before such arrestees are presented to a neutral magistrate for a judicial determination of probable cause.” (Pl.’s Resp. to Mot. Summ. J. at 31.) While on its face this argument refers to a policy, Robinson has not alleged the implementation or execution of an actual policy statement, ordinance, regulation, or decision officially adopted and promulgated by Denver’s officers as to this issue. To the extent Robinson relies on the failure to make a policy under these circumstances, ie., to simply defer to the state district court, I find that Robinson has not shown deliberate indifference. There is no evidence to suggest that Denver’s reliance on the state district court to schedule a hearing after being promptly advised of a warrant arrest was substantially certain to result in a constitutional violation. See Bryson v. City of Okla. City, 627 F.3d 784, 789 (10th Cir.2010).15 Accordingly, I also find that summary judgment is appropriate as to this portion of the municipal liability claims. Finally, Robinson alleges that Denver: (1) failed to train its clerks in how to process seemingly conflicting information that could change the target of a warrant, and (2) failed to implement fail-safes, double-checks and/or technological information to prevent the entry of erroneous warrant information that may change the target of the warrant. “Municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference’ to the injuries that may be caused.” Brammer-*1164Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175, 1189 (10th Cir.2010). The Tenth Circuit has explained the evidence required to establish deliberate indifference when the municipality fails to train or act: The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm. In most instances, notice can be established by proving the existence of a pattern of tortious conduct. In a narrow range of circumstances, however, deliberate indifference may be found absent a pattern of unconstitutional behavior if a violation of federal rights is a 'highly predictable or plainly obvious consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee in specific skills needed to handle recurring situations, thus presenting an obvious potential for constitutional violations. Bryson, 627 F.3d at 789. I find that a reasonable jury could find that Denver had actual or constructive notice that its failure to train as to how to process conflicting information during the packing process was substantially certain to result in a constitutional violation, and that Denver consciously or deliberately chose to disregard the risk of harm. I also find this is true with regard to Denver’s failure to implement fail-safes, double-checks and/or technological information to prevent the entry of erroneous warrant information that may change the target of the warrant. Robinson has shown that Denver had no training procedures in place as to what packing clerks should do when they received seemingly conflicting or inaccurate information in a warrant. Further, at the time of Robinson’s arrest, the packing clerks had complete discretion to change information in a warrant, even the SID number which Denver has acknowledged is the most important piece of identification information in a warrant. That number allows law enforcement personnel to correctly connect fingerprint, mugshot and other key identifying information to the “body” seized. Denver admitted that an incorrect adjustment to a warrant during the “packing” process could result in fundamental changes to the warrant, including a change in whom the warrant had been issued for. There is also evidence that the packing clerks did change information in the warrants they received, including SID numbers and names that had been incorrectly entered. While this appears to have been infrequent, it does seem to present at least a limited pattern of conduct that Denver' has acknowledged could result in a change in the person for whom the warrant was issued, ie., a warrant for the arrest of the wrong person. Further, I find that a violation of federal rights was a highly predictable or plainly obvious consequence of Denver’s failure to train and inaction, as Denver failed to train its packing clerks in specific skills needed to handle recurring situations where conflicting information was received in a warrant. This presents an obvious potential for constitutional violations as a warrant could be changed at the discretion of a packing clerk and without any double-checks in a manner that results in the wrong person being arrested and detained. Indeed, Goos’ change of the SID number in the warrant resulted in the wrong person being arrested, and was the moving force behind Robinson’s injuries. I find particularly instructive the Third Circuit’s decision in Berg v. County of Allegheny, 219 F.3d 261 (3rd Cir.2000). In *1165Berg, a warrant clerk responsible for issuing and clearing arrest warrants was given an arrest sheet that contained information for the arrest of Paul Banks, including Banks’ offense, date of birth, criminal complaint number, social security number, and address. Id. at 266. While inputting the information into the computer, the clerk transposed two digits in the criminal complaint number. This resulted in her pulling up the criminal complaint number of Berg and Berg’s identifying information. Id. While the information shown on the computer screen relating to Berg was different than the information for Banks on the arrest warrant information sheet, the clerk noticed only that the address was different. Id. at 267. Concluding that the court system “contained an old or otherwise incorrect address for Banks”, the clerk “manually changed the information”, replacing the plaintiffs address with Banks’ old address. Id. Because of her “clerical error, and her subsequent decision to change the information contained in the ICIS, an arrest warrant was issued for Berg rather than Banks.” Id. Berg contended that the county was liable because of its failure to provide sufficient procedural or technical safeguard against errors such as the one that resulted in his arrest. Berg, 219 F.3d at 276. The record contained “no evidence of procedures guarding against” the clerk’s mistake, and there were no double checks to ensure that warrants were issued in the correct name. Id. The Third Circuit held that the county may be liable under those circumstances, stating: Having employed a design where the slip of a finger could result in wrongful arrest and imprisonment, there remains an issue of fact whether the County was deliberately indifferent to an obvious risk. The County’s failure to provide protective measures and fail safes against Demko’s mistake seems comparable to “a failure to equip law enforcement officers with specific tools to handle recurring situations.” ... When such a simple mistake can so obviously lead to a constitutional violation, we cannot hold that the municipality was not deliberately indifferent to the risk as a matter of law. Id. at 277. The Third Circuit made this holding despite the fact that this problem had never previously occurred, as alleged in this case. Id. at 267. As in Berg, Denver’s failure to provide training or double-checks against the mistake made by Goos in this case, i.e., the changing of the SID number resulting in Robinson’s arrest, seems comparable to a failure to equip' its law enforcement officers with tools to handle recurring situations. Her mistake in changing the SID number led to Robinson’s wrongful arrest and imprisonment. Thereafter, Denver instituted a more stringent procedure whereby SID numbers could not be changed by the packing clerks. Under these circumstances, I find that there are genuine issues of material fact as to whether Denver was deliberately indifferent that require me to deny summary judgment on this portion of the municipal liability claim. See also Milligan v. United States, 644 F.Supp.2d 1020 (M.D.Tenn.2009). III. CONCLUSION Based upon the foregoing, it is ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 53) is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to the first and second claims against Officer Jean Keita, Deputy Joseph Armijo, Deputy Jessica Jaquez, and Deputy Jason Cruz. Defendants Keita, Armijo, Jaquez, and Cruz are dismissed from the case and shall *1166hereafter be taken off the caption. It is DENIED as to the portion of the municipal liability claims against the City and County of Denver asserting liability based on the failure to train its warrant clerks in how to process conflicting information and its failure to implement fail-safes, double-checks and/or technological information to. prevent the entry of erroneous warrant information that may change the target of the warrant. . I note that a motion to dismiss previously filed by Deputies Joseph Armijo, Jessica Ja-quez, and Jason Cruz also asserted that they were entitled to qualified immunity with regard to the claims asserted against them. Since this same argument was made in the *1144summary judgment motion, I denied that motion as moot on August 27, 2013. However, the arguments made and authority cited in that motion have been considered in connection with the summary judgment motion. . Robinson had lost his ID card at some point prior to Cagle’s arrest and had not reported it. (ECF No. 53, Ex. C, Robinson Dep. 205:20-207:11.) . Later, however, Robinson supplemented his response with an exhibit showing that the original warrant issued by the state district court on September 8, 2010, listed only Ca-gle’s name as the party subject to the warrant. (ECF No. 77, Ex. 3 at p. 3.) While Robinson asserts in his motion to supplement that this original court-issued warrant was intended for Cagle, without mention of any a.k.a. or alternative name of "Christian Robinson”, I note that the actual warrant he cites to lists Christian A. Robinson as an a.k.a. name on its second page. {Id. at p. 4.) In any event, Robinson has not shown that this original warrant was ever transmitted by the district court to the DSD or CBI. Thus, I find it is *1145not the warrant upon which Robinson was purportedly arrested. . Robinson was assigned a SID number before this incident because he had been previously arrested and incarcerated. . Goos also added additional information to the warrant, including Robinson’s social security number. This may have been auto-populated into the warrant when the SID number was changed. . Goos did, however, receive training on NCIC rules and regulations when she worked at the Aurora Police Department, and in her employment with Denver receives annual NCIC recertification and gets training on any new codes, policies or procedures. (ECF No. 73, Ex. Y, Goos Dep. 32:23-33:4, 34:14-36:7.) . Robinson also asserts that despite the fact that Keita took no extra steps to properly identify or distinguish him from the man truly sought by the warrant, Keita had sufficient information to doubt that Robinson was the person sought by the warrant. I find this is not established by the cited evidence. . Robinson also disputes that the warrant was, in fact, issued for him. The state district court's Request/Order for a warrant was for Cagle, Michael aka Robinson, Christian A. (Id., Ex. 4 at Bates 103-104.) Also, the original warrant issued by the state district court on September 8, 2010, listed only Cagle’s name as the party subject to the warrant. (ECF No. 77, Ex. 3 at p. 3.) As noted earlier, Robinson has not shown that this warrant was transmitted by the state district court to the DSD or the CBI. He also has not shown that he was arrested in connection with that warrant. . While Chief Horner testified that the PIQ policy had been done for years, a formal process for it was implemented in 2008. (ECF No. 66, Ex. 5, Horner Dep. 10:16-21; see also Ex. 6.) . According to Defendants, these court records would not create a discrepancy that would trigger any action as Robinson’s name was listed as an alias. . The testimony Robinson cited of Officer Keita does not support his argument. Keita testified that twice per year he does not arrest people on a warrant where they resemble the warrant, but there is a piece of distinguishing information. (Id., Ex. 17, Keita Depo. 20:6-21:23.) Robinson also refers to Orders from Case No. 08-CV-01693-MSK-KLM which he asserts indicate recognition of many confirmed mistaken identity arrests (ECF No. 66, Ex. 21). Those, however, are discovery rulings and are not rulings on the merits. Thus, they do not support his argument. Robinson also refers to news articles pertaining to Denver mistaken identity arrests (id., Ex. 24), but newspaper articles are inadmissible on summary judgment. See Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir.2005) (newspaper articles are classic, inadmissible hearsay, not competent summary judgment evidence); Miles v. Ramsey, 31 F.Supp.2d 869, 876 (D.Colo.1998). . The other cases are also distinguishable. I previously discussed the Seventh Circuit's decision in Patton. In Sanders v. English, 950 F.2d 1152 (5th Cir.1992), the plaintiff claimed that he was illegally detained by an officer who "knowingly and willfully ignored substantial exculpatory evidence” that he had arrested the wrong man. Id. at 1162. The court found that the officer’s “deliberate failure to disclose this undeniably credible and patently exculpatory evidence to the prosecuting attorney's office plainly exposes him to liability under § 1983.” Id. In this case, there is no evidence that the deputies had exonerative evidence that they failed to turn over. Douthit v. Jones, 619 F.2d 527 (5th Cir.1980) involved a situation where a sheriff's department imprisoned the plaintiff for 30 days beyond a court ordered sentence without a valid commitment order. Id. at 532. Since the sheriff's department did not have a good faith belief that it could continue to hold the plaintiff, it was denied qualified immunity. Id. at 532-37. Again, that is not the situation here. . The deputies could also have reasonably believed that they were entitled to absolute immunity in enforcing the court-ordered warrant by transporting and booking Robinson. See Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir.2009) (“ 'officials charged with the duty of executing a facially valid court order enjoy [ ] absolute immunity from liability for damages in a suit challenging conduct prescribed by that order' ”) (quotation omitted). . Further, I find that Robinson has "failed to show, as the law requires, that 'the need for more or different training [was] so obvious’ " that a violation of constitutional rights was likely to result from the alleged failures of Denver. Id. at 773-74. I also note that “[evidence that police officers violated certain policies is not sufficient to show the officers were inadequately trained ... because 'a municipality’s failure to train must reflect a deliberate or conscious choice by the municipality.' ” Ibarra v. City of Tahlequah, No. 12-CV-0098-JHP, 2013 WL 1991546, at *11 (E.D.Okla.2013) (quoting Zuniga v. City of Midwest City, 68 Fed.Appx. 160, 164 (10th Cir.2003) (further quotations omitted)). . The cases relied on by Robinson are distinguishable because they dealt with situations where the jail either failed to schedule a court appearance or relied on the court to schedule an appearance and no appearance was scheduled, leaving the plaintiff in prison for a substantial period of time before the jail realized the error. See Hayes v. Faulkner Cnty., 388 F.3d 669, 674-75 (8th Cir.2004); Armstrong v. Squadrito, 152 F.3d 564, 578-79 (7th Cir.1998); Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir.1999); McDonald v. Dunning, 760 F.Supp. 1156, 1163-64 (E.D.Va.1991). Here, it is undisputed that Denver promptly scheduled a hearing for Robinson. While Robinson does not agree with the timing of the hearing set by the state district court, he has not shown that this timing rises to the level of a constitutional violation. The 48-hour period that Robinson relies on is only applicable to a probable cause determination where there is a warrantless arrest, unlike here. See County of Riverside v. McLaughlin, 500 U.S. 44, 49, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Lingenfelter v. Bd. of Cnty. Commr's, 359 F.Supp.2d 1163, 1169-70 (D.Kan.2005).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224430/

ORDER GRANTING CLAIMANT’S MOTION FOR SUMMARY JUDGMENT Blackburn, United States District Judge The matter before is the Claimant’s Motion for Summary Judgment or in the Alternative Motion To Dissolve Injunction [# 19],1 filed January 10, 2014. I grant the motion for summary judgment and dismiss this case. I. JURISDICTION I putatively have jurisdiction over this matter pursuant to 28 U.S.C. § 1333(1) (admiralty and maritime claims). II.STANDARD OF REVIEW Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judg*1168ment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134. A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D.Colo.2002). In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). III. ANALYSIS Petitioner is the owner of the unnamed vessel Hull ID # SERA5032J798 (the “vessel”). On or about June 19, 2011, petitioner was operating the vessel on the navigable waters of Lake Powell. Claimant Alexis Perakos was injured while wa-terskiing behind the vessel. She filed suit against petitioner in Colorado state district court, alleging negligence and negligence per se. Petitioner subsequently brought the present complaint, invoking the court’s admiralty jurisdiction and seeking limitation of liability as provided by 46 U.S.C. § 30505(a), and Supplemental Rule F of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions. After the prerequisites of the Supplemental Rule had been satisfied, the court issued an order enjoining further prosecution of all claims against petitioner as the owner of the vessel and requiring all claimants to file their claims in this action. (See Order [# 16], filed January 3, 2014.) Ms. Perakos was the sole claimant to submit a claim: She now moves for summary judgment, arguing that because petitioner has acknowledged that he was operating the vessel at the time of the accident, the essential element of privity has been established, negating his right to seek limitation.2 The Shipowners Limitation of Liability Act (the “Act” or the “Limitation Act”) was enacted “to encourage the development of American merchant shipping,” and thus “is directed at misfortunes at sea where the losses incurred exceed the value of the vessel and the pending freight.” Lake Tankers Corp. v. Henn, 354 U.S. 147, 150-51, 77 S.Ct. 1269, 1271-72, 1 L.Ed.2d *11691246 (1957).3 “[T]he primary purpose of the Act [is] to provide a marshaling of assets [and] the distribution pro rata of an inadequate fund among claimants, none of whom can be paid in full.” Complaint of Dammers & Vanderheide & Scheepvaart Maats Christina B.V., 836 F.2d 750, 755 (2nd Cir.1988) (citation and internal quotation marks omitted).To that end, the Act provides, in relevant part, that “the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b)[4] shall not exceed the value of the vessel and pending freight.” 46 U.S.C. § 30505(a). If the statute is properly invoked, [thereafter, in a proceeding known as a concursus, the district court, sitting in admiralty without a jury, determines whether there was negligence; if there was negligence, whether it was without the privity and knowledge of the owner; and if limitation is granted, how the [limitation] fund should be distributed. Complaint of Dammers, 836 F.2d at 755 (citation and internal quotation marks omitted). Thus, a concursus is a two-step process: First, the court must determine what acts of negligence or conditions of unseaworthiness caused the accident. Second, the court must determine whether the shipowner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. The damage claimants bear the initial burden of establishing liability (i.e., negligence or unseaworthiness), and the shipowner then bears the burden of establishing the lack of privity or knowledge. Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060, 1062-63 (11th Cir.1996) (internal citations omitted). Petitioner argues that Ms. Perakos is not entitled to. summary judgment on the issue of privity or knowledge because she has not yet met her burden of proof on the issue of negligence. In other words, petitioner contends that the two-step process must be undertaken seriatim, and thus the court may not address the question of privity or knowledge until that of negligence vel non has been resolved. The law, however, is to the contrary. The Limitation Act shields from liability, beyond the amount of their interest in a vessel, “innocent shipowners and investors who were sued for damages caused through no fault or neglect of their own.” Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 231 (7th Cir.1993) (quoting American Car & Foundry Co. v. Brassert, 289 U.S. 261, 264, 53 S.Ct. 618, 619, 77 L.Ed. 1162 (1933) (internal quotation marks omitted)), aff'd, 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). “[P]rivity or knowledge’ generally refers to the vessel owner’s personal participation in, or actual knowledge of, the specific acts of negligence or conditions of unseaworthiness which caused or contributed to the accident.” Suzuki of Orange Park, 86 F.3d at 1064 (internal citations omitted).5 It therefore stands to reason *1170that, “when an owner is in control of and operating his pleasure craft he has privity or knowledge with respect to its operation, therefore he is not entitled to limitation for accidents arising from his negligence.” Fecht v. Makowski, 406 F.2d 721, 722 (5th Cir.1969).6 Numerous courts have followed the logical premise of this decision: that where the owner admits to having been present and operating the vessel at the time of the accident, “[i]f there was negligence in the operation of the motorboat, only [the operator] could have been guilty of it.” Complaint of Ingoglia, 723 F.Supp. 512, 515 (C.D.Cal.1989). See also, e.g., In re Kohnechi, 2018 WL 5220799, at *2 (D.Ariz. Sept. 17, 2013); Complaint of Martin, 18 F.Supp.2d 126, 127-28 (D.Mass.1998); Complaint of Marine Sports, Inc., 840 F.Supp. 46, 49 (D.Md.1993). Petitioner here has admitted that he was operating the boat at the time of claimant’s injuries. (Verified Pet. ¶ 10 at 3 [# 1], filed November 19, 2013.) Under those circumstances, where petitioner clearly is not entitled to limitation of liability under the Act in any event, there is no right to a determination of negligence in this court. See Fecht, 406 F.2d at 723 (“Where no grant of limitation is possible, ... a boat owner should not be treated more favorably than an automobile driver.”). Indeed, to hold otherwise would run counter to the limited grant of federal court jurisdiction as to admiralty claims, which “save[s] to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1). “Because of the saving to suitors clause ... the shipowner may not force the damage claimants to litigate their claims in the admiralty court unless a concursus is necessary to protect the vessel owner’s claim of limited liability under the Act.” Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1039 (11th Cir.1996), cert. denied, 520 U.S. 1275, 117 S.Ct. 2455, 138 L.Ed.2d 213 (1997) (emphasis in original). The fact that Ms. Perakos first filed her action in state district court thus bears significant weight in the analysis. Complaint of Ingoglia, 723 F.Supp. at 514. See also 3 Benedict on Admiralty § 51 (discussing need “to preserve, where possible, the shipowner’s rights under the Limitation of Liability Act and the suitor’s rights to a common law remedy in the common law courts under the Judiciary Act of 1789”). To allow petitioner to force Ms. Perakos to try her negligence claims in this court rather than in her chosen forum would impermissibly “transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights ...” Lake Tankers Corp. v. Henn, *1171354 U.S. 147, 152, 77 S.Ct. 1269, 1272, 1 L.Ed.2d 1246 (1957). I therefore find and conclude that Ms. Perakos is entitled to summary judgment and dismissal of this action seeking limitation or exoneration of liability under the Act. IV. ORDERS THEREFORE, IT IS ORDERED as follows: 1. That Claimant’s Motion for Summary Judgment or in the Alternative Motion To Dissolve Injunction [# 19], filed January 10, 2014, is GRANTED insofar as it seeks summary judgment; 2. That the Verified Petition for Exoneration from or Limitation of Liability [# 1], filed November 19, 2013, is DENIED; 3. That the injunction entered pursuant to this court’s Order ¶ 1 at 2 [# 16], filed January 3, 2014, is VACATED; and 4. That this action is DISMISSED in its entirety. . "[# 19]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order. . Alternatively, Ms. Perakos asks the court to lift the injunction under the "sole claimant” exception. Because I find that Ms. Perakos is entitled to summary judgment, I do not consider this alternative argument. . A brief but thorough history of the Act is set forth in Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 446-48, 121 S.Ct. 993, 999-1000, 148 L.Ed.2d 931 (2001). . "[C]laims, debts, and liabilities subject to limitation under subsection (a) are those arising from ... any loss, damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.” 46 U.S.C. § 30505(b). .Such a requirement serves the Act’s purpose “to encourage investment in the shipping industry by limiting the physically remote shipowner’s vicarious liability for the negligence of his or her water-borne ser*1170vants.” Suzuki of Orange Park, Inc., 86 F.3d at 1064. . Petitioner claims that Fecht is not good law because its author later "repudiated” its holding. See In re Petition of M/V Sunshine II, 808 F.2d 762 (11th Cir.1987). Setting aside the problematic issue whether a decision from one circuit court of appeals can undermine that of another, M/V Sunshine II is clearly distinguishable. The court there was faced with an accident involving two ships, each denying its own negligence and claiming that of the other caused the accident. Faced with multiple potentially negligent parties, the court simply noted that “[t]he 'owner at the helm’ doctrine is ... not a talisman,” and could not summarily forestall a prior determination of negligence on the basis of "conclu-sory and disputed allegations.” Id. at 765. Indeed, the court distinguished the "barebone conclusions” before it with those in a case in which the court dismissed a limitation action based on "the undenied allegations in plaintiff's exceptions to the petition.” Id. at 765 n. 2 (citing Petition of Davis, 1950 A.M.C. 1028 (N.D.Cal.1950)).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224431/

ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Blackburn, United States District Judge This matter is before me on the following: (1) the Recommendation of United *1173States Magistrate Judge [# 39]1 filed April 25, 2013; (2) the Defendants’ Motion To Dismiss [# 42] filed May 10, 2013; and (3) the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013. No objections were filed concerning the first recommendation t# 39]. Both the plaintiff and one defendant, Captain Klien, filed objections [# 54 & # 56] to the second recommendation [# 46]. I approve and adopt the first recommendation [# 39]. I approve and adopt the second recommendation [# 46] in part and respectfully reject it in part. I. STANDARD OF REVIEW Because no objections were filed concerning the first recommendation [# 39], I review that recommendation only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.2005).2 Finding no error, much less plain error, in the magistrate judge’s recommended disposition, I approve and adopt the first recommendation. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the second recommendation [# 46] to which any party objects. I have considered carefully the recommendation, the objections, and the applicable case law. The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). II. BACKGROUND The plaintiff, Kevin Williams, is an inmate at the Federal Correctional Institution in Florence, Colorado. In his complaint, Mr. Williams alleges that from March 2011 to March 2012, and possibly at other times, he was awakened each night while he was sleeping. As the guards were conducting count, they would beat on his cell door. Mr. Williams contends these actions were taken to deprive him of adequate sleep. Mr. Williams filed grievances concerning this conduct. On May 16, 2011, the defendant, Captain Klien, met with the plaintiff. Allegedly, Captain Klien used “racial epithets and ... a tone of voice that was threatening and intimidating.” Recommendation [# 46], p. 5. According to Mr. Williams, Captain 'Klien threatened that he would take Mr. William’s job if Mr. Williams did not stop filing grievances. Captain Klien asked Mr. Williams how many grievances he had filed “and said I bet your kind can’t even count that high.” Id. According to Mr. Williams, Captain Klien placed Mr. Williams in the extremely restricted Special Housing Unit (SHU) to keep him from filing grievances. Id., p. 12. While Mr. Williams was in the SHU, Captain Klien allegedly tolerated and encouraged efforts undertaken by guards under Captain Klien’s supervision to deprive Mr. Williams of sleep. Amended Prisoner Complaint [# 21], p. 12.3 *1174III. ANALYSIS In the first recommendation [# 39], the magistrate judge recommends that the complaint be dismissed as to defendant, C.O. Royal, based on Mr. William’s failure to prosecute those claims. After noting that the defendant named as C.O. Royal had not been served with a summons and complaint, the magistrate judge ordered Mr. Williams to show cause why the complaint should not be dismissed as to C.O. Royal based on the plaintiffs failure to prosecute. The plaintiff did not respond. Under Fed. R. Crv. P. 41 and D.C. COLO. LCivR 41.1, dismissal for failure to prosecute is proper in these circumstances. Thus, I approve and adopt the first recommendation [# 39]. In the second recommendation [# 46], The magistrate judge recommends that the motion to dismiss be denied as to the due process and retaliation claims asserted against Captain Klien. As to all other claims and defendants, the magistrate judge recommends that the motion to dismiss be granted. In his objection [# 54], Mr. Williams contends the claims against defendants other than Captain Klien should not be dismissed. After careful consideration of the relevant record, I overrule the objections and approve and adopt the recommendation concerning the claims against defendants other than Captain Klien. Addressing the claims against Captain Klien, the magistrate judge concludes that the allegations of Mr. Williams are sufficient to allege a retaliation claim against Captain Klien, based on the right of Mr. Williams to be free from retaliation for filing grievances, an exercise of First Amendment rights by Mr. Williams. The magistrate judge notes also that Captain Klien does not move to dismiss the due process claim asserted against him. In his objection [# 56], Captain Klien contends that Mr. Williams may not assert a claim for damages based on an alleged violation of the First Amendment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In addition, Captain Klien argues that the allegations of Mr. Williams do not state a claim for First Amendment retaliation and that, in any case, Captain Klien is entitled to qualified immunity on this claim. A. First Amendment Bivens Claim for Damages Captain Klien is correct when he contends that Mr. Williams may not assert a Bivens claim for damages based on an alleged violation of the First Amendment. The Supreme Court of the United States has not recognized a Bivens claim for damages based on an alleged violation of the First Amendment. Indeed, the Supreme Court has refused explicitly to acknowledge that federal prisoners may bring a claim for monetary damages based on an alleged First Amendment violation. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (noting that the Court has “declined to extend Bivens to a claim sounding in the First Amendment”); Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (in addressing a First Amendment retaliation claim by a federal employee against a supervisor, the Court refused to recognize a right to seek damages for a First Amendment violation under Bivens, noting availability of alternative remedies). Conceivably, the Court has not recognized such claims in the context of claims by prison inmates because prisoners may pursue claims for injunctive relief based on an alleged violation of the First Amendment. See Corr. Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate who may not assert *1175Bivens claim for damages against private prison contractor may bring suit in federal court for injunctive relief and file grievances using Bureau of Prisons administrative remedy program); Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (in claim of alleged government harassment and intimidation of landowner aimed at extracting easement from landowner, the existence of adequate, alternative bases for pursuing a particular claim amount “to convincing reason for the Judicial Branch to refrain from providing new and freestanding remedy in damages”). On the other hand, the United States Court of Appeals for the Tenth Circuit has recognized the viability of a First Amendment retaliation claim by a prison inmate. Williams v. Meese, 926 F.2d 994, 998 (10th Cir.1991) (federal prisoner alleging job transfer in retaliation for filing grievances states a claim) (citing Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir.1990) (prison officials do not have discretion to punish federal prisoner for exercising First Amendment rights by transferring prisoner to different institution). However, these cases do not address directly the question of whether such a claim may be brought as a Bivens claim for damages. Based on the foregoing authority, I respectfully reject the recommendation of the magistrate judge to the extent the magistrate judge recommends that the motion to dismiss be denied as to the Bivens1 claim for damáges based on the First Amendment retaliation claim asserted by Mr. Williams. Rather, I conclude that the motion to dismiss must be granted as to any claim for damages included in the First Amendment claim of Mr. Williams. B. Failure To State A Claim The fact that Mr. Williams may not assert a Bivens claim for damages based on a violation of the First Amendment does not preclude him from seeking declaratory and injunctive relief. See Corr. Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate who may not assert Bivens claim for damages against private prison contractor may bring suit in federal court for injunctive relief and file grievances using Bureau of Prisons administrative remedy program); Simmat v. U.S. Bureau of Prisons 413 F.3d 1225, 1231-1233 (10th Cir.2005) (federal courts have jurisdiction to issue injunctions to protect rights safeguarded by the Constitution). Captain Klien does not argue otherwise. However, Captain Klien does argue that the allegations in the complaint are not sufficient to state a viable First Amendment retaliation claim. I disagree. Mr. Williams alleges that Captain Klien expressed his disdain for Mr. Williams and his grievances and then arranged for continued adverse actions to be taken against Mr. Williams. These allegations are sufficient to allege (1) that the plaintiff sought to exercise his First Amendment rights by filing a grievance; (2) that the defendant was aware of the plaintiffs attempt to file grievances; (3) that as a result of that awareness, the defendant took action to impose an adverse consequence on the plaintiff; and (4) that the consequence would chill a person of ordinary firmness from engaging in the constitutionally protected activity. These allegations are sufficient to state a retaliation claim. See Leverington v. City of Colorado Springs, 643 F.3d 719, 729 (10th Cir.2011); Rocha v. Zavaras, 443 Fed.Appx. 316, 318 (10th Cir.2011). To the extent Mr. Williams asserts a First Amendment retaliation claim, I overrule the objections of Captain Klein and approve and adopt the recommendation of the magistrate judge. *1176 C. Qualified Immunity Finally, Captain Klien argues he is entitled to qualified immunity concerning the First Amendment claim of Mr. Williams. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). However, qualified immunity is not a shield against a claim for injunctive relief. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.2001). The remaining First Amendment claim of Mr. Williams is a claim for injunctive relief. Thus, there is no viable claim of qualified immunity. IV. CONCLUSION & ORDERS Based on the authority cited above, I conclude that the plaintiff may not assert a First Amendment claim for damages under Bivens. Thus, I respectfully reject that portion of the recommendation [# 46] of the magistrate judge in which the magistrate judge recommends that the motion to dismiss be denied as to this claim. Instead, I grant the motion to dismiss to the extent the plaintiff asserts against Captain Klien a First Amendment claim for damages under Bivens. Otherwise, I approve and adopt the recommendation of the magistrate judge. THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [# 39] filed April 25, 2013, is APPROVED and ADOPTED as an order of this court; 2. That under Fed. R. Civ. P. 41 and D.C.COLO.LCivR 41.1, all claims against defendant, C.O. Royal, are DISMISSED; that C.O. Royal is DROPPED as a defendant; and that the case caption is AMENDED accordingly; 3. That the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013, respectfully is REJECTED to the extent the magistrate judge recommends that the Defendants’ Motion To Dismiss [# 42] filed May 10, 2013, be denied as to the First Amendment claim for damages under Bivens. 4. That the objections [# 56] of defendant, Captain Klien, are SUSTAINED to the extent Captain Klein objects to the recommendation that the motion to dismiss be denied as to the First Amendment claim for damages under Bivens; 5. That otherwise, the Recommendation of United States Magistrate Judge [#46] filed November 7, 2013, is APPROVED and ADOPTED as an order of this court; 6. That otherwise, the objections [# 56] of defendant, Captain Klien, are OVERRULED; 7. That the objections [# 54] of the plaintiff are OVERRULED; 8. That the Defendants’ Motion To Dismiss [# 42] filed May 10, 2013, is DENIED as to the due process claim against Captain Klien and the First Amendment retaliation claim in which Mr. Williams seeks injunctive relief; 9. That otherwise, the Defendants’ Motion To Dismiss [# 42] filed May 10, 2013, is GRANTED as to all other claims and defendants, including the First Amendment claim for damages under Bivens; and 10. That the defendants named as C.O. J. Sander, C.O. Dockins, C.O. Price, and C.O. Koch are DROPPED as a defen*1177dants, and the case caption is AMENDED accordingly. . "[# 39]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order. . This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122. . As detailed in the second recommendation [# 46], Mr. Williams alleges in his amended complaint several other claims against other defendants.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224432/

MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on Defendant the Board of County Commissioners of the County of Bernalillo’s Motion to Dismiss Plaintiffs’ Claims Against Bernalillo County Metropolitan Detention Center, filed January 3, 2014 (Doc. 48)(“MTD”). The Court held a hearing on February 12, 2014. The primary issues are: (i) whether Defendant Board of County Commissioners of the County of Bernalillo1 (“Bernalillo County”) has waived its sovereign immunity with respect to claims of simple negligence; (ii) whether Bernalillo County has waived its sovereign immunity with respect to claims of negligent classification or placement; and (iii) whether Bernalillo County has waived its sovereign immunity with respect to claims of negligent supervision. After examining the waivers of immunity in the New Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to -30 (“NMTCA”), the Court concludes that none of these claims fall within the enumerated waivers, and Bernalillo County is entitled to immunity with respect to all of the Plaintiffs’ remaining claims. For that reason, the Court grants the MTD in its entirety, dismisses all claims against Bernalillo County with prejudice, and terminates Bernalillo County from the case. FACTUAL BACKGROUND The Court takes its facts from the Second Amended Complaint for Damages and Medical Negligence, filed November 26, 2013 (Doc. 30)(“SAC”). In 2010, Plaintiff Rainan Samayoa was twenty-five years old and “already had a very significant psychiatric history including a traumatic brain injury.” SAC ¶ 13, at 3. On July 3, 2010, Plaintiff Teddie Williams, Samayoa’s mother, took Samayoa to the University of New Mexico Psychiatric Center emergency services, because he had symptoms of disor*1179ganized behavior; he was admitted to the University of New Mexico Hospital Behavioral Health Programs and discharged on August 2, 2010. See SAC ¶¶ 14, at 3. During his stay at the UNM Hospital Behavioral Health Programs and subsequent visits through February 8, 2011, Samayoa was diagnosed with chronic schizophrenia, paranoid ideation, intermittent explosive disorder, auditory hallucinations, post-traumatic stress disorder, borderline intellectual disorder, and traumatic brain injury. See SAC ¶ 15, at 3-4. When he was released from the UNM Hospital Behavioral Health Programs, his “mental condition had stabilized to the point he could hold meaningful conversations with his mother, Plaintiff Williams. He could function mentally within limitations and was not a harm to himself or others.” SAC ¶ 16, at 4. On January 19, 2011, Samayoa exhibited “psychiatric behavioral problems including disorientation, confusion, depression and aggression” while he was at Valencia Counseling in Los Lunas, New Mexico; he was transported to the UNM Psychiatric Center emergency services. SAC ¶ 17, at 4. The UNM Hospital Behavioral Health Programs staff evaluated Samayoa and determined that he should be admitted for safety and stabilization; Samayoa was admitted involuntarily. See SAC ¶ 18, at 4. “A few minutes later, Plaintiff Samayoa allegedly assaulted two staff members. Instead of treating his conduct which was consistent with his mental disorder, staff involved the UNM Police Department and ultimately had Plaintiff Samayoa discharged to the custody of the Albuquerque[, New Mexico,] Police Department. ...” SAC ¶ 19, at 4. While he was incarcerated, Samayoa was not given his psychotropic medications, “even though [Defendants Correctional Healthcare Companies, Inc. and Bernalillo County Metropolitan Detention Center (“BCMDC”) ] staff were aware hé was very ill and had been on suicide watch at [the UNM Hospital Behavioral Health Programs].”2 SAC ¶¶ 21, at 4-5. Samayoa was incarcerated until January 26, 2011, and then transported back to the UNM Hospital Behavioral Health Programs. See SAC ¶ 20, at 4. On February 5, 2011, Samayoa called 911, stating that he wanted to kill himself; the Belen, New Mexico, Police Department took Samayoa to the UNM Psychiatric Center3 emergency services. See SAC ¶ 23, at 5. The UNM Hospital Behavioral Health Programs evaluated Samayoa after he spent about fifty-two hours in the emergency services and determined that “his actions were inappropriate, that he had become progressively worse since incarceration and planned to transfer him from [the UNM Psychiatric Center] emergency services to [the UNM Hospital Behavioral Health Programs] as soon as a bed was available for him (in-patient care).” SAC ¶ 24, at 5. On February 8, 2011, the UNM Hospital Behavioral Health Programs had a unit available, “but instead, transported *1180[Samayoa] to Mesilla Valley Hospital in Las Cruces, New Mexico, without Plaintiff Williams’ consent and against her wishes.” SAC ¶ 25, at 5. The Mesilla Valley Hospital assessed that Samayoa was a danger to himself and others, and diagnosed him with a psychotic disorder and a traumatic brain injury. See SAC ¶ 26, at 5. Samayoa stayed at Mesilla Valley Hospital until February 24, 2011, and was then transferred to New Mexico Behavioral Health in Las Vegas, New Mexico, where he stayed until he was discharged on April 21, 2011, and ultimately diagnosed with intermittent explosive disorder, psychotic disorder, and a traumatic brain injury. See SAC ¶¶ 26-27, at 5-6. After these events, Samayoa “has not regained enough mental stability to hold any degree of meaningful conversations with his mother, Plaintiff Williams, or anyone else. He has remained in a volatile mental state and is periodically dangerous to himself and to others.” SAC ¶ 28, at 6. PROCEDURAL BACKGROUND The Plaintiffs allege six claims in the SAC: (i) a claim of medical negligence, in which Bernalillo County is clearly not named, see SAC ¶¶ 33-37, at 6-7 (not mentioning Bernalillo County or “BCMDC,” the acronym the Plaintiffs use for Bernalil-lo County in their briefing); (ii) a claim of negligence per se for failure to comply with the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, in which Bernalillo County is clearly not named, see SAC ¶¶ 38-43, at 7-8 (not mentioning BCMDC); (iii) a claim of negligence, in which Bernalillo County appears to be named, see SAC ¶¶ 44-48, at 8 (alleging that Bernalillo County “w[as] under a duty,” “did nothing,” “w[as] negligent,” and “w[as] the cause of injuries and damages”); (iv) a claim of intentional infliction of emotional distress, in which Bernalillo •County appears to be named, see SAC ¶¶ 49-53, at 8-9 (alleging that Bernalillo County’s “conduct ... was extreme and outrageous,” “[t]hey acted intentionally and recklessly,” and “[a]s a result of the[ir] conduct ... Plaintiffs experienced severe emotional distress causing injuries and damages”); (v) a claim of negligent infliction of emotional distress, in which Bernal-illo County appears to be named, see SAC ¶¶ 54-58, at 9-11 (making identical allegations as the claim of intentional infliction of emotional distress with respect to Bernalil-lo County); and (vi) a claim for loss of consortium, in which Bernalillo County appears to be named, see SAC ¶¶ 59-64, at 11 (alleging that Bernalillo County “caused repeated injuries to Plaintiff Samayoa’s mental state and stability through [its] actions or failures to act to the point he lost the ability to communicate rationally with his own mother”). 1. Bernalillo County Files the MTD. Bernalillo County filed the MTD arguing for the dismissal of the four claims (claims three through six) in which Bernalillo County believes it is named. See MTD at 4-9. After outlining the rule 12(b)(6) standard, see MTD at 3-4 (citing Fed.R.Civ.P. 12(b)(6)), Bernalillo County focuses all its arguments on the NMTCA, contending that “ ‘[t]he right to sue state defendants is limited to those rights and conditions expressly presented in the [Tort Claims] Act,’ ” MTD at 4 (second alteration in original)(quoting Begay v. State, 104 N.M. 483, 487, 723 P.2d 252, 256 (Ct.App.1985), rev’d on other grounds, 104 N.M. 375, 721 P.2d 1306 (1986)). Bernalillo County argues that none of the Plaintiffs’ claims fit into any of the waivers of sovereign immunity enumerated in the statute, and, thus, the Court must dismiss them all. Bernalillo County analyzes the claims under N.M. Stat. Ann. § 41-4-12, which applies to law *1181enforcement officers. It argues that Metropolitan Detention Center officers are considered “law enforcement officers” under this Section as, under New Mexico law, a correctional officer at a detention center in which inmates are primarily “accused of a criminal offense” and awaiting trial (in contrast to inmates convicted of a criminal offense) fall within the definition of “law enforcement officer” under the TCA. MTD at 5 n. 1 (quoting Davis v. Bd. of Cnty. Comm’rs of Dona Ana Cnty., 1999-NMCA-110, ¶ 35, 127 N.M. 785, 796, 987 P.2d 1172, 1183). Bernalillo County first argues that “there is no waiver of tort immunity for negligence, standing alone.” MTD at 4 (citing Lessen v. City of Albuquerque, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179). It contends that “the TCA does not waive immunity for law enforcement officers for simple negligence, but only for negligence that causes an enumerated tort or violation of rights for which immunity is waived in the TCA.” MTD at 5. Bernalillo County also argues that one of the more specific theories of liability asserted under the umbrella of negligence, “negligent placement/classification,” see SAC ¶46, at 8, has been specifically ruled óut as a viable cause of action by the New Mexico state courts. See MTD at 5-6. It cites Archibeque v. Moya, in which it asserts that the Supreme Court of New Mexico answered a certified question from the United States Court of Appeals for the Tenth Circuit — “ ‘Does [§ 41-4-6 of the NMTCA] provide immunity from tort liability to an employee of the state penitentiary whose alleged negligence in releasing a prisoner into the general prison population, which included known enemies of the prisoner, resulted in the prisoner being beaten and injured by one of his enemies?’ ” MTD at 6 (quoting 116 N.M. 616, 617-18, 866 P.2d 344 (1993))—with the response being that “there was no such waiver of immunity,” MTD at 6. Bernalillo County asserts that this result was consistent with two other cases, Wittkowski v. State, 103 N.M. 526, 529, 710 P.2d 93, 96 (Ct.App.1985), and Gallegos v. State, 107 N.M. 349, 351, 758 P.2d 299, 301 (Ct.App.1987). It also asserts that plaintiffs often try to argue that the waiver provisions of § 41-4-6 apply, as that section waives immunity for ordinary “negligence of public employees while acting within the scope of their duties.” N.M. Stat. Ann. § 41-4-6. See MTD at 6. It argues that the courts have refused to recognize § 41-4-6 claims against law enforcement officers, because that section waives immunity only for “ ‘injuries ... [that] occurred] due to a physical defect in a building.’” MTD at 6 (quoting Wittkowski v. State, 103 N.M. at 530, 710 P.2d at 97). Bernalillo County also addresses the SAC’s claims of medical negligence, see MTD at 7, intentional and negligent infliction of emotional distress, see MTD at 7-8, and loss of consortium, see MTD at 8-9. The Court will not summarize these arguments, as the Plaintiffs subsequently clarified that they are not asserting those claims against Bernalillo County. 2. The Plaintiffs Respond to the MTD. The Plaintiffs responded eighteen days later. See Plaintiffs’ Response to Defendant the Board of County Commissioners of the County of Bernalillo’s Motion to Dismiss Plaintiffs’ Claims Against Ber-nalillo County Metropolitan Detention Center, filed January 21, 2014 (Doc. 59)(“Response”). After a lengthy factual background, see Response at 1-8, and an outlining of the rule 12(b)(6) standard, see Response at 8-9, the Plaintiffs then clarified which of their claims they were *1182alleging against Bernalillo County. “Plaintiffs state they are only bringing claims for medical negligence, intentional infliction/negligent infliction of emotional distress, and loss of consortium against Defendant UNM Psychiatric Center and Defendant CHC and not against Defendant County.” Response at 9 (title case omitted). See Response at 12-14. The Plaintiffs, therefore, assert only the following claims against Bernalillo County: (i) “negligence”; (ii) “negligent placement/classification”; and (iii) “negligent supervision.” Response at 9 (title case omitted). The Plaintiffs attempt to justify bringing these three claims against Bernalillo County. “[A]s a threshold matter, Plaintiffs’ [sic] agree the New Mexico Tort Claims Act’s Section 41-4-12, is applicable to Defendant County because their BCMDC officers are considered ‘law enforcement officers’ under the TCA.” Response at 9. The Plaintiffs first argue that their negligence claim is viable and attempt to distinguish Archibeque v. Moya, 1993-NMSC-079, 116 N.M. 616, 866 P.2d 344. They contend that “Archibeque v. Moya is easily distinguished because the analysis in that case was under Section 41-4-6, the ‘maintenance of a building’ portion of the TCA, and not under Section 41-4-12, which is applicable in this case.” Response at 10. The Plaintiffs cite Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980), for the proposition that “the New Mexico Legislature intended ‘caused by’ in Section 41-4-12 to include those acts enumerated in that section which were caused by the negligence of law enforcement officers while acting within the scope of their duties.” Response at 10 (emphasis in original). They quote the Supreme Court of New Mexico’s language that, “ ‘[w]hen one party is in the custodial care of another, as in the case of a jailed prisoner, the custodian has the duty to exercise reasonable and ordinary care for the protection of the life and health of the person in custody.’ ” Response at 10 (alteration in original)(quoting City of Belen v. Harrell, 93 N.M. 601, 603, 603 P.2d 711, 713 (1979)). They also cite Weinstein v. City of Santa Fe, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313, and Cross v. City of Clovis, 107 N.M. 251, 253, 755 P.2d 589, 591 (1988), for essentially the same proposition. 3. Bernalillo County Replies to the Plaintiffs ’ Response. Bernalillo County replied to the Response ten days later. See Reply to Plaintiffs’ Response to Defendant the Board of County Commissioners of the County of Bernalillo’s Motion to Dismiss Plaintiffs’ Claims Against Bernalillo County Metropolitan Detention Center, filed January 31, 2014 (Doc. 65)(“Reply”). It first requests the Court to formally dismiss the claims against it — for medical negligence, intentional and negligent infliction of emotional distress, and loss of consortium — that the Plaintiffs say they never intended to bring against it. See Reply at 2. Bernalillo County asserts that “these distinctions are not made clear in Plaintiffs’ pleadings, where Plaintiffs essentially lump all claims against all Defendants.” Reply at 2. Bernalillo County attacks the Plaintiffs’ claim of simple negligence, arguing that, “[u]nder New Mexico law, it is the plaintiffs burden to identify the specific statutory section that waives immunity and to then demonstrate that the facts alleged fit within one of the exceptions.” Reply at 3 (citing Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 448, 744 P.2d 919, 921 (Ct.App.1987)). It quotes § 41^-12, noting that negligence is not mentioned, and contends that “ ‘it is well established in New Mexico’ that there is no waiver of immunity for negligence standing alone under § 41-4-12.... ‘[I]f the Legislature had in*1183tended to include other acts or the tort of simple negligence, it could have done so.’ ” Reply at 3 (quoting Dickson v. City of Clovis, 2010-NMCA-058, ¶¶ 18-19, 148 N.M. 831, 242 P.3d 398, 403). It also cites Lessen v. City of Albuquerque, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179, for the same proposition. Bernalillo County addresses head-on the cases that the Plaintiffs cite: Plaintiffs cite Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980), to support their argument that there is waiver of immunity under § 41-4-12 for simple negligence. Response at 10. However, that case involved the beating of an inmate by other inmates, without a jailer showing up during the fight, rendering the inmate unconscious. 95 N.M. at 330, 622 P.2d at 235. This would be the classic example of an officer’s negligence resulting in injury to a foreseeable victim where the negligence caused a third party to commit acts specifically found in § 41-4-12 (ie., assault and battery). See Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04 (“[AJllegations of negligence based oh one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party to commit one of the enumerated intentional acts.”). Reply at 4. Bernalillo County also argues that the “more specific tort ... of alleged ‘negligent placemenVelassification’ of Plaintiff Samayoa into the general population has similarly been rejected.” Reply at 5 (citing Archibeque v. Moya, 116 N.M. at 618, 866 P.2d at 346). It responds to the Plaintiffs’ contention that “the Archibeque decision is inapplicable because here Plaintiffs’ claim is being made under § 41-4-12 of the TCA, rather than per § 41-4-16.” Reply at 5 (citing Response at 10). It argues: “What Plaintiffs’ argument fails to grasp ..., is that there is no specific waiver of immunity found in §' 41-4-12 for a claim of alleged negligent placement/classification,” and as the “Plaintiffs do not contend that the alleged negligent placement/classification of Plaintiff Samayoa led to an enumerated tort found in § 41^1-12 ..., Plaintiffs’ tort claim for negligent placement/classification fails.” Reply at 5. Bernalillo County last contends that there is no waiver of immunity under the NMTCA for negligent supervision. See Reply at 6-7. Its argument is essentially the same as the one it made against the negligent placement/classification claim. It attempts to distinguish a case that the Plaintiffs cite, Weinstein v. City of Santa Fe, 1996-NMSC-021, 121 N.M. at 648, 916 P.2d at 1315, asserting that, in that case, “law enforcement officers were [alleged to be] negligent in failing to develop a policy to prevent the premature release of certain prisoners and in failing to forward the paperwork necessary for the prosecution of a man who later raped the plaintiff, causing her to suffer a battery.” Reply at 6. It asserts that this case is consonant with the rule it articulates that “ ‘[allegations of negligence based on one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party to commit one of the enumerated intentional acts.” Reply at 6 (alteration in original)(quoting Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04). Bernalillo County concludes: In short, the question is whether Plaintiffs have stated a claim that alleged tort violations [enumerated in] § 41-4-12 [were committed] by Defendant CHC [and] were caused by the ... negligence of Defendant County. Without demonstrating that Defendant CHC engaged in a specific tort found under *1184that particular subsection of the TCA, Plaintiffs’ claim of alleged negligent supervision against Defendant County fails and should be dismissed. Reply at 7. 4. The Court Holds a Hearing on the MTD. The Court held a hearing on the MTD. See Transcript of Hearing, taken February 12, 2014 (“Tr.”).4 The Plaintiffs first clarified that they were not asserting the medical negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, or loss of consortium claims against Bernalillo County. See Tr. at 4:8-19 (Barela). Bernalillo County then addressed what it views as the three remaining claims against it: “simple negligence”; “negligent placement or classification”; and “negligent supervision of the [BC]MDC contractor, CHC [Correctional Healthcare Companies].” Tr. at 6:13-16 (Quinones). It noted that “the parties agreed in the briefing process that per the Mynah Davis decision, [BC]MDC officers are considered law enforcement officers” under the NMTCA. Tr. at 6:21-24 (Qui-nones). It then proceeded to outline an argument almost identical to the one it laid out in its briefing. See Tr. at 7:7-11:16 (Quinones). The Court asked the other parties to the ease whether they had any input on the MTD, and they stated that they did not. See Tr. at 11:19-12:4 (Court, Park, Garcia). The Plaintiffs then presented their argument, contending that the case at hand is more similar to Methola v. County of Eddy, 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234 (1980)—a case in which “the [Supreme] Court said ... when you take custody of a person, everything that you do you have to do in a reasonable fashion,” Tr. at 12:24-13:1 (Barela)—than Lessen v. City of Albuquerque, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179 (2008)—a case in which “an inmate was released from the metropolitan detention center[ ] and ... wandered off into the desert, and ended up falling in an arroyo and meeting his demise,” Tr. at 12:13-16 (Barela). They noted that, “[h]ere, in this particular case, the defendant county has not argued that the law enforcement officers, their employees, were acting outside the scope of their duties,” Tr. at 13:11-14 (Barela), and argued that, because they were acting in the scope of their duties, Bernalillo County had a “duty to exercise reasonable and ordinary care for the protection of life and health of the person,” Tr. at 13:20-22 (Barela). They contend that what was “required was a hospital. And they’re depriving him of that by classifying him as fit to be in the metropolitan detention center by concluding that their contractor of health care services was able to provide the type of services that Mr. Samayoa needed.” Tr. at 13:24-14:3 (Barela). The Plaintiffs argue that the outcome in Lessen v. City of Albuquerque hinged on foreseeability: “It was not foreseeable that he would wander off into the desert and never make it to his destination.” Tr. at 14:24-15:1 (Barela). The Plaintiffs also attempted to distinguish the case on the ground that, here, the Plaintiff is “in their facility. He is not allowed to leave their facility.” Tr. at 17:17-18 (Barela). The Court then questioned Bernalillo County whether a police officer would be immune from suit if he negligently crashed his cruiser into a citizen and caused personal injury, see Tr. at 18:22-25 (Court); id. at 19:12-15 (Court), to which it re*1185sponded that the officer would not be liable, see Tr. at 19:19-25 (Quinones). Bernalillo County then discussed Bober v. N.M. State Fair, 111 N.M. 644, 808 P.2d 614 (1991), which it quoted as saying: “No case has held that simple negligence in the performance of a law enforcement officer’s duty amounts to commission of one of the torts listed in Section 41-4-12.” Tr. at 21:5-9 (Quinones). The Court then clarified with the Plaintiffs that “the only provision [that they are] coming under is the law enforcement provision,” § 41-4-12, which the Plaintiffs confirmed. Tr. at 21:24-22:2 (Court, Bare-la). The Court stated that it was inclined to “think that the county is reading these [cases] correctly,” Tr. at 26:9-10 (Court), and was “inclined to grant the motion and dismiss” the claims, Tr. at 26:25 (Court). LAW REGARDING RULE 12(b)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff”) (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)). A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insuffi-*1186dent; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (emphasis omitted). The Tenth Circuit stated: “[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (citations omitted). LAW REGARDING THE NMTCA The New Mexico Legislature enacted the NMTCA because it recognized “the inherent unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.” N.M. Stat. Ann. § 41-4-2A. The New Mexico Legislature also recognized, however, that while a private party may readily be held liable for his torts within the chosen ambit of his activity, the area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done. N.M. Stat. Ann. § 41-4-2A. As a result, it was “declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the Tort Claims Act and in accordance with the principles established in that act.” N.M. Stat. Ann. § 41-4r-2A. The NMTCA is also “based upon the traditional tort concepts of duty and the reasonably prudent person’s standard of care in the performance of that duty.” N.M. Stat. Ann. § 41-4-2B. The NMTCA is the exclusive remedy against a governmental entity or public employee for any tort for which immunity has been waived under the Tort Claims Act and no other claim, civil action or proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or claim. N.M. Stat. Ann. § 41-4-17A. A plaintiff may not sue a New Mexico governmental entity, or its employees or agents, unless the plaintiffs cause of action fits within one of the exceptions created for governmental entities and public employees in the NMTCA. See N.M. Stat. Ann. § 41-4-4 (granting immunity from tort liability to all “governmental entities] and ... public employee[s] while acting within the scope of [their] dutfies]”); Begay v. State, 104 N.M. 483, 486, 723 P.2d 252, 255 (Ct.App.1985) (“Consent to be sued may not be implied, but must come within one of the exceptions to immunity under the Tort Claims Act.”), rev’d on other grounds, Smialek v. Begay, 104 N.M. 375, 721 P.2d 1306 (1986). A plaintiff also may not sue a governmental entity or its employees for a damage claim arising out of violations of rights under the New Mexico Constitution unless the NMTCA contains a waiver of immunity. See Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633 JB/DJS, 2008 WL 5992269, at *6-7 (D.N.M. Oct. 17, 2008) (Browning, J.); Barreras v. N.M. Corr. Dep’t, 2003-NMCA-027, ¶ 24, 133 N.M. 313, 319, 62 P.3d 770, 776 (“In the absence of affirmative legislation, the courts of this state have consistently de-*1187dined to permit individuals to bring private lawsuits to enforce rights guaranteed by the New Mexico Constitution, based on the absence of an express waiver of immunity under the Tort Claims Act.”); Chavez v. City of Albuquerque, 1998-NMCA-004, 124 N.M. 479, 482, 952 P.2d 474, 477 (noting that a plaintiff cannot seek damages for violations of rights under the New Mexico Constitution against a city or its employees or agents unless the NMTCA waives immunity); Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 449, 744 P.2d 919, 922 (Ct.App.1987) (holding that no waiver of immunity exists for damages arising out of alleged educational malpractice claim against a school board); Begay v. State, 104 N.M. at 488, 723 P.2d at 257 (finding that no waiver existed in NMTCA for suit under Article II, § 11 of the New Mexico Constitution). Thus, if no specific waiver can be found in the NMTCA, a plaintiffs complaint against the governmental entity or its employees must be dismissed. See Begay v. State, 104 N.M. at 486, 723 P.2d at 255. 1. Section 41-4-6. Section 41-4-6 exempts from immunity “liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings.” N.M. Stat. Ann. § 41-4-6. This exception balances the principle that “government should not have the duty to do everything that might be done” with the desire “to compensate those injured by the negligence of public employees and to impose duties of reasonable care.” Cobos v. Doña Ana County Hous. Auth., 1998-NMSC-049, ¶ 6, 126 N.M. 418, 420, 970 P.2d 1143, 1145 (1998) (citations omitted)(intemal quotation marks omitted). To resolve the tension between these two goals, § 41-4-6 “grant[s] governmental entities and employees a general immunity from tort liability, [and] waives that immunity in certain defined circumstances.” Cobos v. Doña Ana County Hous. Auth., 126 N.M. at 420, 970 P.2d at 1145. The Supreme Court of New Mexico has explained that, “[w]hile [§ ]41 — 4—6 may appropriately be termed a ‘premises liability’ statute, the liability envisioned by that section is not limited to claims caused by injuries occurring on or off certain ‘premises,’ as the words ‘machinery’ and ‘equipment’ reveal.” Cobos v. Doña Ana County Hous. Auth., 126 N.M. at 421, 970 P.2d at 1146. Section 41-4-6 “contemplates waiver of immunity where due to the alleged negligence of public employees an injury arises from an unsafe, dangerous, or defective condition on property owned and operated by the government.” Bober v. New Mexico State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991) (citations omitted)(internal quotation marks omitted). New Mexico courts have found that § 41-4-6’s waiver of immunity does not extend to negligent supervision, see Pemberton v. Cordova, 105 N.M. 476, 478, 734 P.2d 254, 256 (Ct.App.1987), negligent design, see Rivera v. King, 108 N.M. 5, 12, 765 P.2d 1187, 1194 (Ct.App.1988), negligent inspection, see Martinez v. Kaune, 106 N.M. 489, 491-92, 745 P.2d 714, 716-17 (Ct.App.1987), or negligent classification of a prison inmate, see Archibeque v. Moya, 116 N.M. 616, 620, 866 P.2d 344, 348 (1993). In the prison context, the Supreme Court of New Mexico has held that “[t]he ‘operation’ and ‘maintenance’ of the penitentiary premises, as these terms are used in [§ ]41 — 4-6, does not include the security, custody, and classification of in-mates_Section 41-4-6 does not waive immunity when public employees negligently perform such administrative func*1188tions.” Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347 (citations omitted). In Archibeque v. Moya, Chris Archibeque, an inmate at the Central New Mexico Correction Facility, was transferred to the New Mexico State Penitentiary in Santa Fe, New Mexico. See 116 N.M. at 618, 866 P.2d at 346. Before being released into general population, a prison intake officer, Moya-Martinez, met with Archibeque to discuss whether he had any known enemies within the prison’s general population. Archibeque informed Moya-Mar-tinez that another inmate, Gallegos, was one of his enemies, and Moya-Martinez, without checking an available list of current inmates, informed Archibeque that Gallegos was no longer at the prison. He was released into general population, and Gallegos assaulted him that night. See 116 N.M. at 618, 866 P.2d at 346. Archi-beque sued Moya-Martinez, other corrections officers, and the New Mexico Department of Corrections in federal court for violations under 42 U.S.C. § 1983 and the NMTCA. The district court interpreted § 41-4-6 narrowly and held that the statute did not waive immunity for negligent security and custody of inmates at the penitentiary. Thereafter, Archibeque’s § 1983 claims were resolved in favor of Moya-Martinez and the other corrections employees. The federal district court denied Archibeque’s motion for reconsideration. Archibeque appealed, and the Tenth Circuit certified a question to the Supreme Court of New Mexico: Does [NMSA 1978, Section 41-4-6] of the New Mexico Tort Claims Act, [NMSA 1978, Sections 41-4-1 to -29], provide immunity from tort liability to an employee of the state penitentiary whose alleged negligence in releasing a prisoner into the general prison population, which included known enemies of the prisoner, resulted in the prisoner being beaten and injured by one of his enemies? 116 N.M. at 617, 866 P.2d at 345 (alterations in original). Archibeque argued that Moya-Martinez was participating in the operation of the penitentiary when she classified Archibeque as an inmate who could safely be released into the general prison population, and he argued that Moya-Martinez’ alleged negligence in mis-classifying him and releasing him into the general population constituted negligent operation of the penitentiary, thereby waiving immunity under § 41-4-6. See 116 N.M. at 618-19, 866 P.2d at 346-47. The Supreme Court of New Mexico found that § 41-4-6 did not waive Moya-Mar-tinez’ immunity, stating: “The ‘operation’ and ‘maintenance’ of the penitentiary premises, as these terms are used in Section 41-4-6, does not include the security, custody, and classification of inmates.” 116 N.M. at 619, 866 P.2d at 347. The Supreme Court of New Mexico reasoned that Moya-Martinez was not operating and maintaining the prison’s physical premises when she negligently classified Archi-beque. Rather, she was performing an administrative function associated with the operation of the corrections system. Section 41-4-6 does not waive immunity when public employees negligently perform such administrative functions. To read Section 41-4-6 aS waiving immunity for negligent performance of administrative functions would be contrary to the plain language and intended purpose of the statute. See State v. Riddall, 112 N.M. 78, 80, 811 P.2d 576, 578 (Ct.App.1991) (stating that when interpreting a statute, an appellate court is required to consider the plain meaning of the words used and the intended purpose of the statute). *1189Archibeque v. Moya, 116 N.M. at 619, 866 P.2d at 347. The Supreme Court of New Mexico further explained: While Moya-Martinez’s misclassification of Archibeque put him at risk, the negligence did not create an unsafe condition on the prison premises as to the general prison population. Reading Section 41-4-6 to waive immunity every time a public employee’s negligence creates a risk of harm for a single individual would subvert the purpose of the Tort Claims Act, which recognizes that government, acting for the public good, “should not have the duty to do everything that might be done,” and limits government liability accordingly. See N.M. Stat. Ann. § 41^-2(A). 116 N.M. at 620, 866 P.2d at 348. According to the Supreme Court of New Mexico, to permit a waiver of immunity under § 41-4-6 whenever injury results from a negligently performed administrative task “would undermine the purpose of the Tort Claims Act by subjecting the State to liability for virtually any mistake made during the administration of corrections facilities that results in injury to an inmate.” 116 N.M. at 621, 866 P.2d at 349. The Supreme Court of New Mexico noted that, “[wjhile a segment of the population at risk might justify waiver of immunity under Section 41-4-6, a situation in which a single inmate is put at risk is not comparable.” 116 N.M. at 621 n. 3, 866 P.2d at 349 n. 3. The Honorable Richard Ransom, Chief Justice of the Supreme Court of New Mexico, in his concurring opinion, noted: I concur because there was no showing that the general prison population reflected anything but the reasonable and expected risks of prison life. The classification of Archibeque did not change the condition of the premises. I see Archibeque’s injuries as having been proximately caused by a discrete administrative decision. As an alternative to releasing Archibeque into the general population, he could have been placed in administrative segregation, a form of protective custody. The risk arose not from a condition of the premises (as with the wild dogs in Castillo [v. County of Santa Fe, 107 N.M. 204, 755 P.2d 48 (1988),] or, arguably, the inadequate health care facilities in Silva [v. State, 106 N.M. 472, 745 P.2d 380 (1987) ]); it arose from the classification itself. 1993-NMSC-079, ¶ 17, 116 N.M. at 622, 866 P.2d at 350 (Ransom, C.J., concurring)’. In Callaway v. New Mexico Department of Corrections, 117 N.M. 637, 642, 875 P.2d 393, 398 (Ct.App.1994), the Court of Appeals of New Mexico held that the New Mexico Department of Corrections “knew or should have known that roaming gang members with a known propensity for violence had access to potential weapons in the recreation area, that such gang members created a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was foreseeable.” 117 N.M. at 643, 875 P.2d at 399. The Court of Appeals of New Mexico found that immunity was waived under the NMTCA, because the “inmate[-]assailant was unusually dangerous and the prison authorities had knowledge of the danger posed by the inmate.” 117 N.M. at 643, 875 P.2d at 399. 2. Section 41-4-12. Section 41-4-12 of the NMTCA provides a waiver of immunity for certain torts that law enforcement officers commit and for negligence that causes a specified tort. See Oliveros v. Mitchell, 449 F.3d 1091, 1096 (10th Cir.2006) (citing Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234, 238 (1980); Caillouette v. Hercules, *1190Inc., 113 N.M. 492, 827 P.2d 1306, 1311 (Ct.App.1992)). Section 41-4-12 provides: The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. N.M. Stat. Ann. § 41-4-12. Thus, in order to state a tort claim under the waiver of immunity set out in Section 41-4-12, a plaintiff must demonstrate that the defendants were law enforcement officers acting within the scope of their duties, and that the plaintiffs injuries arose out of either a tort enumerated in this section or a deprivation of a right secured by law. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep’t, 121 N.M. 646, 649, 916 P.2d 1313, 1316 (1996). A law enforcement officer is a “full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for crimes, or members of the national guard when called to active duty by the governor.” N.M. Stat. Ann. § 41-4-3. “New Mexico courts have construed this definition strictly.” Chavez-Rodriguez v. City of Santa Fe, 2008 WL 5992269, at *4. See, e.g., Montes v. Gallegos, 812 F.Supp. 1165, 1172 (D.N.M.1992) (holding that mayor is not a law enforcement officer under the NMTCA, notwithstanding his statutory authority and obligation to exercise law enforcement functions); Dunn v. McFeeley, 1999-NMCA-084, 127 N.M. 513, 984 P.2d 760, 767 (holding that medical investigator and crime laboratory technician are not law enforcement officers under the NMTCA); Coyazo v. State, 120 N.M. 47, 51, 897 P.2d 234, 238 (Ct.App.1995) (holding that the District Attorney and his staff are not law enforcement officers under § 4141-3D); Callaway v. N.M. Dep’t of Corr., 117 N.M. at 641, 875 P.2d at 397 (holding that correctional officers at penitentiary are not law enforcement officers under the NMTCA, notwithstanding their statutory power to make arrests); Dunn v. State ex rel. Tax. and Revenue Dep’t, 116 N.M. 1, 4, 859 P.2d 469, 472 (Ct.App.1993) (holding that Director of Motor Vehicle Division is not a law enforcement officer under the NMTCA, notwithstanding his statutory power to make arrests); Vigil v. Martinez, 113 N.M. 714, 721, 832 P.2d 405, 412 (Ct.App.1992) (holding that probation and parole officers are not law enforcement officers under the NMTCA); Anchando v. Corr. Dep’t, 100 N.M. 108, 111, 666 P.2d 1255, 1258 (1983) (holding that the Secretary of Corrections and the Warden of a state penitentiary are not law enforcement officer under the NMTCA). See also Johnson v. Holmes, 377 F.Supp.2d 1069, 1083 (D.N.M.2004) (Browning, J.)(“ ‘Akin’ to a law enforcement officer is, as a matter of law, insufficient to waive sovereign immunity under § 41-4-12 NMSA 1978”), aff'd, 455 F.3d 1133 (10th Cir.2006). The Court of Appeals of New Mexico has held that corrections officers who hold convicted persons in custody are not law enforcement officers under § 41-4-3D, which defines law enforcement officer as used in § 41-4-12, see Callaway v. N.M. Dep’t of Corr., 117 N.M. at 641, 875 P.2d at 397 (stating that “we affirm the trial court’s determination that corrections officers are not law enforcement officers un*1191der Section 41-4-3(D)”), but those working in jails “in which the inmates are primarily ‘accused of a criminal offense’ and awaiting trial, fall within the definition of law enforcement officers under the [TCA],” Davis v. Bd. of Cnty. Comm’rs of Dona Ana Cnty., 1999-NMCA-110, ¶ 35, 127 N.M. 785, 796, 987 P.2d 1172, 1183. In Anchondo v. Corrections Department, the Supreme Court of New Mexico received a certified question from the Honorable Juan G. Burciaga, United States District Judge for the District of New Mexico, asking: “Are the Secretary of Corrections and the Warden of the State Penitentiary in Santa Fe ‘law enforcement officers’ within the meaning of Section 41-4-3(D), NMSA 1978?” 100 N.M. at 109, 666 P.2d at 1256. The Supreme Court of New Mexico found that the Secretary of Corrections and the Warden are not law enforcement officers. See 100 N.M. at 109, 666 P.2d at 1256. The Supreme Court of New Mexico explained: From looking at the statutes, we see that neither the Secretary of Corrections nor the Warden engage in any of the traditional duties of “law enforcement officers.” They do not deal directly with the daily custodial care of prison inmates. Moreover, because they do not have commissions, they have no power to make arrests or to take people into custody should a violation of the public order occur. They are merely administrative officers appointed by the governor to oversee, administer, and supervise the state’s corrections system. 100 N.M. at 109-10, 666 P.2d at 1256-57. “To determine whether positions are of a law enforcement nature, this Court will look at the character of the principal duties involved, those duties to which employees devote the majority of their time.” Anchondo v. Corr. Dep’t, 100 N.M. at 110, 666 P.2d at 1257. The Supreme Court of New Mexico has stated that “no case has held that simple negligence in the performance of a law enforcement officer’s duty amounts to commission of one of the torts listed in [§ 41-4-12].” Bober v. N.M. State Fair, 111 N.M. 644, 653-54, 808 P.2d 614, 623-24 (1991). That does not mean, however, that a law enforcement officer must actually, himself, commit one of the enumerated torts to trigger the waiver: if an officer’s negligence results in a third party committing one of the enumerated torts — such as where an officer negligently places an ar-restee with individuals the officer should know will harm the arrestee — then immunity is waived. See Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04 (“[Allegations of negligence based on one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party to commit one of the enumerated intentional acts.”); Weinstein v. City of Santa Fe, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313; Methola v. Eddy Cnty., 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234. ANALYSIS The Court will dismiss all the Plaintiffs’ claims against Bernalillo County pursuant to rule 12(b)(6), because none of the waivers in the NMTCA apply, and because Bernalillo County is, thus, entitled to immunity. The Court’s analyses of the three claims overlap almost completely, and the end result of each is the same: § 41-4-12, the section of the NMTCA that the parties agree controls, does not contain a waiver of immunity for any of the disputed claims. I. BERNALILLO COUNTY HAS NOT WAIVED ITS IMMUNITY UNDER THE NMTCA WITH RESPECT TO CLAIMS OF SIMPLE NEGLIGENCE, AND, THUS, THE COURT MUST DISMISS THAT CLAIM. Bernalillo County is a “political subdivision” of the state, not an “arm of the *1192state,” and, thus, it is not entitled to immunity under the Eleventh Amendment. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, ¶ 7, 120 N.M. 97, 101, 898 P.2d 1235, 1239 (noting that, in New Mexico, cities, counties, and school boards are political subdivisions, not arms of the state). See Ambus v. Granite Bd. of Educ., 995 F.2d 992 (10th Cir.1993) (outlining and applying the distinction between political subdivisions and arms of the state, and noting that the distinction is disposi-tive of the question whether an entity is entitled to immunity under the Eleventh Amendment). As a New Mexico “governmental entity,” however, it is entitled to blanket immunity from state tort suits. See N.M. Stat. Ann. § 41-4-4; Todd v. Montoya, 877 F.Supp.2d 1048 (D.N.M.2012) (Browning, J.)(applying the NMTCA in a suit against Bernalillo County). If, therefore, the Plaintiffs are to assert a viable claim for relief against Bernalillo County, their complaint must plausibly allege conduct that falls within one of the specific waivers of immunity found in §§ 41^4-5 to -12. See N.M. Stat. Ann. § 41-4-17A; Borde v. Bd. of Cnty. Comm’rs of Luna Cnty., N.M., 423 Fed.Appx. 798, 801 (10th Cir.2011) (unpublished) 5 (“In moving to dismiss under Rule 12(b)(6) based on a claim of absolute immunity, ‘[t]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.’ ” (alteration in original)(quoting Howards v. McLaughlin, 634 F.3d 1131, 1140 n. 6 (10th Cir.2011), rev’d on other grounds, Reichle v. Howards, — U.S. -, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012))).6 These eight sections each contain unique, conditional, and limited waivers of immunity applicable to different government entities and operations: -10 *1193applies to health care providers; -6 to buildings, public parks, and machinery; -7 to airports; and so on. See N.M. Stat. Ann. § 4141-5 to -12. On the question of which of these sections the Court should use to analyze the claims in this case, the parties agree: the correctional officers are “law enforcement officers” under the meaning of § 41-4-12, and were “acting within the scope of their duties” at the time of the alleged incident, and so that section is the one at play. See MTD at 5 n. 1; Response at 9; Reply at 8-7 (analyzing the case under § 41-4-12); Tr. at 10:6-8 (Quinones); id. at 15:15-19 (Barela); id. at 20:12-14 (Barela). As the statutory definition of “law enforcement officer” includes “any full-time salaried public employee of a governmental entity whose principal duties under law are to hold in custody any person accused of a criminal offense,” N.M. Stat. Ann. § 41-4-3(D), correctional officers are law enforcement officers if and only if the facility in which they work holds primarily inmates awaiting trial rather than convicts. See Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1269 (D.N.M.2010) (Browning, J.); Davis v. Bd. of Cnty. Comm’rs of Dona Ana Cnty., 1999—NMCA-110, ¶ 35, 127 N.M. at 796, 987 P.2d at 1183. Compare Callaway v. N.M. Dep’t of Corr., 1994-NMCA-049, ¶¶ 9-12, 117 N.M. 637, 641, 875 P.2d 393, 397 (holding that correctional officers who work at facilities that principally house individuals already convicted of crimes are not law enforcement officers), with Abalos v. Bernalillo Cnty. Dist. Attorney’s Office, 1987-NMCA-026, ¶¶ 26-30, 105 N.M. 554, 560, 734 P.2d 794, 800 (holding that the director of a jail that housed primarily inmates awaiting trial was a law enforcement officer for the purposes of § 41-442). The Court is willing to defer to the parties’ agreement, although it has yet to see any evidence or allegation that the BCMDC is a facility whose inmates are primarily individuals awaiting trial. But see Abalos v. Bernalillo Cnty. Dist. Attorney’s Office, 1987-NMCA-026, ¶¶ 26-20, 105 N.M. at 560, 734 P.2d at 800 (holding that, at least before 1987, the BCMDC was such a facility, and that its officers were law enforcement officers). Once the appropriate section is identified, the analysis is straightforward. The section provides: The immunity granted pursuant to Subsection A of Section 414-4 NMSA 1978 does not apply to liability for personal injury, bodily injury, wrongful death or property damage resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties. N.M. Stat. Ann. § 41-4-12. This section simply does not — either on its face or through its construction by the New Mexico courts — set forth a waiver of immunity for negligence. The Court will therefore dismiss the Plaintiffs’ simple negligence claim. Plaintiffs’ confusion stems from the literal manner in which the New Mexico courts have interpreted the language of the statute, which waives immunity from liability for “injury ... resulting from assault, battery, false imprisonment-” N.M. Stat. Ann. § 41-4-12 (emphasis added). The courts interpret this waiver as encompassing any situation in which a law enforcement officer’s actions “result” in injury from one of the enumerated intentional torts, even if the officer himself was not the one who committed the tort. See *1194Dickson v. City of Clovis, 2010-NMCA-058, ¶ 20, 242 P.3d at 403-04 (“Allegations of negligence based on one of the torts specified in Section 41-4-12 are appropriate only when a law enforcement officer’s negligence allegedly caused a third party to commit one of the enumerated intentional acts.”); Methola v. Eddy Cnty., 1980-NMSC-145, 95 N.M. 329, 622 P.2d 234; Weinstein v. City of Santa Fe, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313. If a law enforcement officer’s negligence causes an inmate to be thrown to the wolves — attacked, raped, or subjected to any of the other torts enumerated in the statute by people the officer should have known not to allow around the inmate- — • the officer cannot hide behind the general rule of immunity against negligence claims. See, e.g., 1980-NMSC-145, ¶¶ 2-4, 26, 95 N.M. at 330, 334, 622 P.2d at 235, 239. It is upon these cases, Methola v. Eddy County and Weinstein v. City of Santa Fe, that the Plaintiffs rely, but the cases stand for what Bernalillo County says they do: one of § 41-4-12’s enumerated torts must be the direct cause of the Plaintiffs injury, which in this case means that, “without demonstrating that Defendant CHC engaged in a specific tort found under that particular subsection of the NMTCA, Plaintiffs’ claim of alleged negligent supervision against Defendant County fails and should be dismissed.” Reply at 7. As none' of the six claims alleged in the SAC— medical negligence, negligence per se based on the Emergency Medical Treatment and Active Labor Act, simple negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, or loss of consortium — is on the list of torts enumerated in § 41-4-12, the Plaintiffs’ claim of negligence is subject to immunity under § 41-4-4, and fails as a matter of law. 11. BERNALILLO COUNTY HAS NOT WAIVED ITS IMMUNITY UNDER THE NMTCA WITH RESPECT TO CLAIMS OF NEGLIGENT INMATE CLASSIFICATION OR PLACEMENT, AND, THUS, THE COURT MUST DISMISS THAT CLAIM. The Plaintiffs cannot sustain a claim that Bernalillo County was negligent in its classification or placement of Williams, because Bernalillo County has not waived its immunity with respect to such a claim. Because the Plaintiffs specifically argue that their claim is viable by way of the waiver of immunity in § 41-4-12, the analysis is identical to the one the Court conducted on their simple negligence claim: the section does not waive immunity for the tort of negligent classification or placement. The Court will not repeat that analysis here. There is some basis 'for a claim like this one to be made under N.M. Stat. Ann. § 41-4-6 (waiving immunity for “damages resulting from ... injury ... caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings”). See Callaway v. N.M. Dep’t of Corr., 117 N.M. 637, 642, 875 P.2d 393, 398 (Ct.App.1994) (holding that a correction facility waived its immunity regarding an assault on an inmate by other inmates where the facility “knew or should have known that roaming gang members with a known propensity for violence had access to potential weapons in the recreation area, that such gang members created a dangerous condition on the premises of the penitentiary, and that the danger to other inmates was foreseeable”). The Plaintiffs went to great lengths to specify that they were bringing this claim pursuant to § 41-4-6, however, and the Court is not in the business of restyling plaintiffs’ claims to *1195address every conceivable theory of liability. See Response at 10; Tr. at 21:24-22:2 (Court, Barela)(clarifying that the negligent classification claim was not being brought under § 41-4-6, but only under § 41-4-12); Glover v. Gartman, 899 F.Supp.2d 1115, 1153 (D.N.M.2012) (Browning, J.)(noting that it is the plaintiffs burden to specify under which exact section it is alleging that a governmental defendant has waived its immunity). Even had the Plaintiffs brought the claim under § 41-4-6, it would likely fail, because the alleged negligence did not expose the Plaintiff to safety risks — ie., the risk of being attacked by fellow inmates— but rather to health risks. The Court addressed a similar situation under § 41-4-6 in Lymon v. Aramark Corp. In that case, the plaintiff alleged that a correctional facility “negligently misclassified him for work in the prison kitchen contrary to his medically ordered restriction prohibiting heavy lifting.” 728 F.Supp.2d at 1266. The Court, following Chief Justice Ransom’s concurrence in Archibeqiie v. Moya, held that the plaintiffs allegations that other inmates had been misclassified were insufficient to waive immunity under § 41-4-6. See Lymon v. Aramark Corp., 728 F.Supp.2d at 1266. It stated that, to fall within Chief Justice Ransom’s concurrence, a misclassification “must raise security risks, not health risks.” Lymon v. Aramark Corp., 728 F.Supp.2d at 1266. The Court found that the plaintiffs “threadbare allegations” that other inmates were misclassified did not rise “to the level of a dangerous condition on the premises of the penitentiary,” because no other inmate was alleged to have been injured as a result. Lymon v. Aramark Corp., 728 F.Supp.2d at 1267 (internal quotation marks omitted). Like its claim of simple negligence, the Plaintiffs’ claim of negligent classification or placement fails, ultimately, because the Plaintiff was not the victim of any of the enumerated torts in § 41-4-12, and the NMTCA does not otherwise waive immunity for negligent acts. The Court will therefore dismiss the claim of negligent classification or placement. III. BERNALILLO COUNTY HAS NOT WAIVED ITS IMMUNITY UNDER THE NMTCA WITH RESPECT TO CLAIMS OF NEGLIGENT SUPERVISION, AND, THUS, THE COURT MUST DISMISS THAT CLAIM. The Plaintiffs cannot sustain their claim of negligent supervision against Bernalillo County, because § 41-4-12 of the NMTCA contains no waiver of immunity for such a claim. The analysis is identical to the one the Court has already laid out in addressing the simple negligence claim, and the Court will not repeat that analysis here. As the NMTCA does not waive Bernalillo County’s immunity from the claim, the Court will dismiss the Plaintiffs’ claim of negligent supervision. IT IS ORDERED that Defendant the Board of County Commissioners of the County of Bernalillo’s Motion to Dismiss Plaintiffs’ Claims Against Bernalillo County Metropolitan Detention Center, filed January 3, 2014 (Doc. 48), is granted. The Court will dismiss all claims asserted against Defendant Bernalillo County Metropolitan Detention Center with prejudice, and will terminate Defendant Board of County Commissioners of the County of Bernalillo from the case. . The Plaintiffs erroneously name the Bernal-illo County Metropolitan Detention Center, not the Board of County Commissioners, as Defendant. Because the "BCDC is similar to a police department in that it is ... subsumed within the larger municipality,” it “lack[s a] legal identit[y] apart from the municipality,” and the “Plaintiff[s], thus, cannot sue BCDC.” Ketchum v. Albuquerque Police Dep't, 958 F.2d 381, at *2 (10th Cir.1992) (unpublished)(citing Martinez v. Winner, 771 F.2d 424, 443 (10th Cir.1985)). The Court will restyle the Plaintiffs' allegations against the Board of County Commissioners, and refer to Plaintiffs’ claims as such throughout this Memorandum Opinion and Order. . The SAC states that Samayoa had been on suicide watch at "UNMH.” While the SAC does not define that acronym, it most likely refers to the UNM Hospital, which is commonly called UNMH in the area. In any case, the Court believes that the Plaintiffs intended to state more specifically that Sa-mayoa had been on suicide watch at the UNM Hospital Behavioral Health Programs, which the Plaintiffs abbreviate as "UNMHBHP”; the Plaintiffs may have also intended the University of New Mexico Health Sciences Center, which they abbreviate as “UNMHSC.” SAC ¶¶ 5, 7, at 2; id. ¶ 21, at 5. . In paragraph 23 of the SAC, the Plaintiffs state that the Belen Police Department took the Defendant to "UNMPS emergency services.” SAC ¶ 23, at 5. The Court believes the Plaintiffs intended to write "UNMPC,” which is their abbreviation for the UNM Psychiatric Center. SAC ¶ 8, at 2. . The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final transcript may contara slightly different page and/or line numbers. . Borde v. Board of County Commissioners of Luna County, New Mexico is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished decisions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated: In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision. United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005). The Court finds that Borde v. Board of County Commissioners of Luna County, New Mexico, as well as Ketchum v. Albuquerque Police Department, 958 F.2d 381 (10th Cir.1992) (unpublished), have persuasive value with respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion and Order. . Bernalillo County argues that "[ujnder New Mexico law, it is the plaintiff's burden to identify the specific statutory section that waives immunity and to then demonstrate that the facts alleged fit within one of the exceptions.” Reply at 3 (citing Rubio v. Carlsbad Mun. Sch. Dist., 106 N.M. 446, 448, 744 P.2d 919, 921 (Ct.App.1987)). Under the doctrine first articulated in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal courts are bound to employ their own procedural rules in diversity cases — including the rules for assessing the sufficiency of pleadings. See Fed. R.Civ.P. 8(a); Rules of Decision Act, 28 U.S.C. § 1652; Rules Enabling Act, 28 U.S.C. § 2072. The Court concludes, however, that Bernalillo County’s statement is also an accurate recitation of federal procedure. See Glover v. Gartman, 899 F.Supp.2d 1115, 1153 (D.N.M.2012) (Browning, J.)("As a threshold matter, T. Glover's Complaint fails to identify the specific section of the NMTCA pursuant to which he is bringing his claim. T. Glover may not sue a New Mexico governmental entity or its employees acting within the scope of their duties, unless he is bringing his claim pursuant to one of the specific exceptions within the NMTCA.” (citing N.M. Stat. Ann. § 41-4-4(A); Begay v. State, 104 N.M. at 486, 723 P.2d at 252)).

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https://www.courtlistener.com/api/rest/v3/opinions/7218115/

ORDER Plaintiff-Appellant’s Petition for Rehearing is GRANTED. The memorandum filed October 16, 2002 is withdrawn. A new memorandum is filed concurrently with this order. MEMORANDUM * The district court erred in construing Shortt’s Rule 60(b) motion as a successive habeas petition under 28 U.S.C. § 2254 because Shortt’s motion did not challenge the integrity of the state criminal trial but rather challenged the integrity of the federal habeas proceeding. See 28 U.S.C. § 2254(d)(1) (authorizing district courts to consider claims that were “adjudicated on the merits in State court proceedings [that] ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”). The district court also erred in denying Shortt’s Rule 60(b) motion on the merits. This is not a case where a petitioner has failed to make or decided not to make a timely appeal and later attempts to circumvent procedural rules by filing a 60(b) motion. To the contrary, Shortt reasonably pursued avenues to obtain a hearing on the merits of his claims—which have been adjudged facially valid—and was frustrated in his attempts by the timing of subsequent authority. Under such circumstances, we conclude that Shortt has demonstrated “extraordinary circumstances” that warrant Rule 60(B)(6) relief. See Community Dental Services v. Tani, 282 F.3d 1164, 1168 (9th Cir.2002). Reversed and Remanded. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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https://www.courtlistener.com/api/rest/v3/opinions/7218116/

RYMER, J., dissenting. I dissent because, regardless of whether Shortt’s motion is construed as a successive habeas petition, he failed to demonstrate “extraordinary circumstances” that warrant Rule 60(b) relief. See Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir.1989).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218118/

MEMORANDUM** The district court did not abuse its discretion when it denied Stella Onuaguluchi’s motion for an extension of time to file a notice of appeal. Onuaguluchi failed to demonstrate “excusable neglect” through the existence of extraordinary circumstances and likelihood of an unjust result. See Marx v. Loral Crop., 87 F.3d 1049, 1053 (9th Cir.1996). “Inadvertence or mistake of counsel does not constitute excusable neglect.” Id. (citation omitted). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

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https://www.courtlistener.com/api/rest/v3/opinions/7218119/

MEMORANDUM ** Plaintiff David Q. Webb obtained an $80,000 jury verdict in this civil rights action against Carson City, Nevada, after he was prosecuted without probable cause for obstruction of justice. Defendant Carson City appealed in case No. 01-16855; Plaintiff cross-appealed, filing a pro se brief that alleges 12 claims of error. We resolved Carson City’s claims in a separate published opinion. Plaintiff’s first claim alleges unlawful arrest. Construing this allegation either as a challenge to the jury’s verdict in favor of Deputy Sloan, or as a challenge to the district court’s ruling on the Rule 50(a) motion in favor of Carson City, it must fail. Plaintiffs version of the arrest and Deputy Sloan’s version of the arrest conflicted. The jury accepted Deputy Sloan’s version of events, which was supported by substantial evidence. See Hines v. Gomez, 108 F.3d 265, 267 (9th Cir.1997) (stating standard of review). Similarly, the district court correctly granted the Rule 50(a) motion on behalf of Carson City on the theory that municipal liability could not attach for the isolated action of a police officer in the field. Plaintiff presented no evidence to show *658that street patrol officers are final policymakers for the municipality. The district court’s directed verdict was proper because no reasonable jury could have found for Plaintiff with respect to that issue. See Montiel v. City of L.A., 2 F.3d 335, 342 (9th Cir.1993) (stating standard of review). The next claim of error is that Defendants falsely imprisoned Plaintiff despite their knowledge of the true suspect. This claim cannot support reversal, because Plaintiff prevailed on this claim at trial. Next, Plaintiff argues about intentional infliction of emotional distress. Plaintiff conceded below that Defendants were entitled to judgment as a matter of law on this issue. Therefore, he may not revive the claim on appeal. The remaining arguments concern mistakes allegedly made by Plaintiffs counsel below. Plaintiff did not object to any of those acts at trial and so has waived them. Doi v. Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir.2002). In any event, in this civil case Plaintiff is bound by the alleged errors and omissions of his own counsel. Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Plaintiff has no right to counsel in this § 1983 action; thus, he has no right to effective counsel. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985) (per curiam).1 AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . We note, however, that the verdict in Plaintiffs favor seems evidence enough that in fact he had effective counsel despite his complaints.

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DECISION PER CURIAM. Jose F.S. Simoy appeals from the decision of the United States Court of Federal Claims granting the United States’ motion to dismiss. Simoy v. United States, No. 01-489C, slip op. at 3 (Fed.Cl. Sept. 11, 2002). Because the court’s decision is not in error, we affirm. DISCUSSION Mr. Simoy is a military prisoner serving a life sentence for the felony murder of an airman. Simoy was serving in the United States Air Force under an enlistment that was to expire on March 23, 1992, when in December 1991, in the course of a robbery on an Air Force base, one of Simoy’s accomplices killed a man. Military authorities apprehended Simoy in January 1992, and court-martial charges were preferred against him on January 20. The pretrial investigation required by 10 U.S.C. § 832 (“Article 32”) was to begin on January 29 but due to repeated requests for delays by Simoy’s counsel the Article 32 hearing did not take place until April 7. In the meantime, Simoy’s enlistment expired on March 23, at which time he was administratively placed in an unpaid status in order to prevent his separation or retirement. On April 21, charges were referred to a trial by general court-martial. On July 22, Si-moy was convicted by court-martial and sentenced to death and forfeiture of all pay and allowances. In 1996, the United States Court of Appeals for the Armed Forces affirmed Simoy’s conviction but ordered resentencing because it concluded that the military judge’s instructions regarding the death sentence were erroneous. United States v. Simoy, 50 M.J. 1, 2 (U.S.A.F.1998). In 1999, Simoy was re-sentenced to life imprisonment. His new sentence did not include a forfeiture of pay or allowances. *746Simoy brought suit in the United States Court of Federal Claims, seeking pay and allowances for the nearly ten-year period between the expiration of his enlistment (March 23, 1992) and the approval by the convening authority of his resentencing (February 8, 2002). Simoy, slip op. at 1. The court granted the United States’ motion to dismiss, citing Moses v. United States, 137 Ct.Cl. 374, 1957 WL 8298 (1957) and rejecting Simoy’s contention that the rule stated in Moses violates the Thirteenth Amendment. Moses held that “[wjhen an enlisted person is in confinement awaiting trial at the time his term of enlistment expires, his pay and allowances terminate on the date his enlistment expires unless he is subsequently acquitted.” Id. at 380. Simoy has appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We review the court’s grant of a motion to dismiss de novo. Wheeler v. United States, 11 F.3d 156, 158 (Fed.Cir.1993) (“This court reviews de novo whether the Court of Federal Claims possessed jurisdiction and whether the Court of Federal Claims properly dismissed for failure to state a claim upon which relief can be granted, as both are questions of law.” (citations omitted)). On appeal, Simoy argues that the court erred by not applying the following authorities: (1) Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961); (2) Dickenson v. United States, 163 Ct.Cl. 512, 1963 WL 8493 (1963); (3) Graham v. United States, 36 Fed.Cl. 430 (1996); (4) Dock v. United States, 46 F.3d 1083 (Fed. Cir.1995); and (5) 7A Department of Defense Financial Management Regulations (“DOD FMR”), ch. 48, 1ÍH 480901-02 (2001), which entitle him to back pay for the period of his post-enlistment detainment until his second sentence was approved by a convening authority. Simoy’s arguments are unpersuasive. The Court of Federal Claims applied the settled rule of law that an enlistee may be held in service without pay pending court-martial after his enlistment expires, unless he is subsequently acquitted. Moses, 137 Ct.Cl. at 380; that rule is codified in 7A DOD FMR, ch. 3, K 030207(D) (2000) (“If a member is confined awaiting court-martial when the enlistment expires, pay and allowances end on the date the enlistment expires. If the member is acquitted when tried, pay and allowances accrue until discharge.”). Simoy’s situation precisely fits the rule. On March 23, 1992, when his enlistment expired, he was confined awaiting court-martial. He was subsequently convicted and never acquitted. The authorities cited by Simoy, while only sketchily responded to by the government, do not compel a different result. First, Bell addresses a different fact situation. In that case, the Supreme Court held that American soldiers serving in the Korean War who were prisoners of war at the time their enlistments expired and who acted with disloyalty to their country while imprisoned were nonetheless statutorily entitled to pay during their imprisonment after expiration of their enlistment. 366 U.S. at 415-16. The distinction between soldiers held as prisoners of war and those awaiting court-martial at the time their enlistments expire, however, makes that holding inapplicable to this case. Simoy was not a prisoner of war. Moreover, the Court in Bell held only that the soldiers’ conduct while imprisoned did not deprive them of their pay and allowances. Id. Dickenson also addresses a different situation. In that case, Dickenson’s enlistment also expired while he was a prisoner of war. The Army held him in active status through the duration of his imprisonment and then for a short period of time thereafter for medical treatment. Nine *747months after expiration of his enlistment, he was subjected to court-martial charges. The Court of Claims held that he was entitled to pay for the period during which the court-martial charges were pending, even though he was later convicted. Like the soldiers in Bell, and unlike Simoy, Dickenson was not awaiting court-martial when his enlistment expired. Rather, his enlistment expired long before he was subjected to court-martial charges, and the Army held him in active service not because court-martial charges were then pending against him, but because of his status as a prisoner of war and his subsequent need for medical care. At the time his enlistment expired Simoy was awaiting court-martial - a situation squarely controlled by Moses. In Graham, the Court of Federal Claims denied the government’s motion to dismiss a reservist’s claim for recovery of pay withheld prior to approval of his court-martial conviction. 36 Fed.Cl. at 431. The court did so because Graham’s enlistment did not expire until after a convening authority had approved his court-martial conviction and sentence. Id. at 432. In contrast, Simoy’s enlistment expired while he was awaiting court-martial. Dock also does not support Simoy. In that case, the service member was convicted by court-martial, and during the pen-dency of his appeal from that conviction his enlistment expired. 46 F.3d at 1086. The conviction was set aside on appeal, but he was subsequently reconvicted. Id. Dock sought recovery of pay withheld as a result of the first conviction, id., but we interpreted 10 U.S.C. § 875(a) (“Article 75(a)”) to bar his recovery because the second sentence reimposed the same forfeiture, id. at 1087, 1093. Simoy argues that the opposite result should occur in his case because his reconviction did not include the same sentence of forfeiture. We disagree. Simoy’s argument fails because, even though Simoy’s resentencing did not include forfeiture of pay and allowances, Moses requires that a service member’s entitlement to pay ceases when his enlistment expires, even though he is administratively held in active service pending subsequent court-martial, unless he is later acquitted, Moses, 137 Ct.Cl. at 380. Dock, which does not deal with a pre-conviction expiration of enlistment, is therefore inap-posite to the present case. Moreover, to the extent that Dock could be interpreted to conflict with Moses, the Moses holding prevails as being earlier in time and thus binding on this court. Finally, the DOD FMRs cited by Simoy do not support his claim for recovery of pay. Paragraph 480901 addresses the situation “when new trial or rehearing is not ordered” and is thus inapplicable to Simoy. Paragraph 480902, although applicable in a case like Simoy’s in which a “court martial sentence which includes a forfeiture is set aside or disapproved, and a new trial or rehearing is ordered,” assumes that the service member is otherwise entitled to pay. Paragraph 480902 does not apply to a situation in which entitlement to pay ceased when Simoy’s enlistment expired prior to his conviction. We have carefully considered Simoy’s remaining arguments and find them to be unconvincing. Because we find no legal error in the court’s decision, we affirm.

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ORDER The parties having so agreed, it is ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).

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ORDER Upon consideration of the United States’ unopposed motion to dismiss Board Machine, Inc. et al.’s appeal, IT IS ORDERED THAT: (1) The motion is granted. (2) Each side shall bear its own costs.

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ORDER Upon consideration of Randolph J. Noelle’s unopposed motion to voluntarily dismiss his appeal, IT IS ORDERED THAT: (1) The motion is granted.* (2) Each side shall bear its own costs. We note that Noelle requests that this dismissal be without prejudice, however, it is not the practice of this court to dismiss with or without prejudice.

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*821SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 9th day of May, Two Thousand and Three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED. Plaintiffs-appellants Susan Augienello, Philip Einhorn, Eileen Papp, Richard Do-ran, Vincent Amato, and Craig Nazzaro, former middle-management employees at the Mortgage Division of Superior Bank FSB (“Superior”), appeal the district court’s August 14, 2002 judgment granting the motion to dismiss of defendants-appellees Coast-to-Coast Financial Corp. (“CCFC”), Superior’s parent corporation, and Alvin Dworman, Penny Pritzker, Nelson Stephenson, Monte Kurs, Kevin Sexton, and Neil Halleran, all of whom were CCFC stockholders and/or officers of CCFC, Superior, or other CCFC subsidiaries. The plaintiffs’ complaint included three causes of action. First, the plaintiffs claim that the defendants were fiduciaries under an Employee Retirement Income Security Act (“ERISA”) plan, and that the defendants breached their fiduciary duties to the plaintiffs. Second, the complaint alleges that CCFC, Dworman, and Pritzker breached employment contracts that plaintiffs entered into with Superior. Finally, plaintiffs claim that CCFC, Dworman, and Pritzker were unjustly enriched by taking money from the ERISA plan and by unjustly using the plaintiffs’ labor. The plaintiffs claims depend on their entitlement to certain benefits (severance pay and deferred compensation) promised in the employment contracts between the plaintiffs and Superior. However, the district court found that the plaintiffs were not entitled to these benefits because, according to the terms of the employment contracts, the contracts terminated automatically when the Federal Deposit Insurance Corporation (“FDIC”) placed Superior into receivership. Although the contracts also provided that rights and obligations that were vested when the contract terminated would survive the termination, the district court concluded that none of the plaintiffs claimed rights were vested at the time the contract terminated. We agree, for substantially the same reasons as those given by the district court, that according to the terms of the contract the plaintiffs did not have any vested rights at the time the contracts terminated. See Int’l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir.2002) (“Under New York law, the initial interpretation of a contract is a matter of law for the court to decide.... If the court finds that the contract is not ambiguous it should assign the plain and ordinary meaning to each term and interpret the contract without the aid of ex*822trinsic evidence .... ” (internal citations and punctuation omitted)). On appeal, the plaintiffs have also argued that even if the defendants did not violate the express terms of the contracts, they violated the implied covenant of good faith and fair dealing.1 The plaintiffs contend that the defendants “cannot be heard to argue that there was no breach of the Employment Agreements, asserting that those agreements terminated by operation of law and not in any manner that permitted the payment of continued compensation to [the plaintiffs] ... [because the defendants] themselves were the ones who proximately caused the failure of Superior, and are the alter egos of Superior. Consequently, they cannot be allowed to take advantage of circumstances that they created in order to avoid liability.” Appellants’ Br. at 17-18; see also Reply Br. at 5 (citing Lowell v. Twin Disc, Inc., 527 F.2d 767 (2d Cir.1975) (“It is a fundamental principle of law that in every contract there exists an implied covenant of good faith and fair dealing. Furthermore, each contract contains an implicit understanding that neither party will intentionally do anything to prevent the other party from carrying out his part of the agreement.”)). However, as the plaintiffs’ counsel acknowledged at oral argument, the complaint does not include a claim for or allegation of a breach of the duty of good faith and fair dealing. Nonetheless, plaintiffs ask us to construe their complaint liberally to reach this issue. Although we recognize the principle that, on a motion to dismiss, the complaint should be construed liberally, see Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001), that principle is not enough to save the plaintiffs here. Nowhere in the complaint is there any mention of a duty of good faith and fair dealing, or allegation that the defendants breached such a duty. Thus, the plaintiffs are not asking for liberal construction of their complaint so much as amendment of the complaint to include a claim that they did not plead. Because the plaintiffs never sought leave in the district court to amend the complaint to add such a claim, we conclude that there was no error in the district court’s decision to dismiss the plaintiffs’ complaint for failure to state a claim. We have considered all of the appellants’ remaining arguments and find them to be without merit. For these reasons, the judgment of the district court is AFFIRMED. In light of this holding, we deny as moot CCFC’s February 10, 2003 Motion for “Judicial Notice of Complaint Filed by Plaintiffs-Appellants in Related Case.” In light of this holding, we deny as moot CCFC’s February 10, 2003 Motion for “Judicial Notice of Complaint Filed by Plaintiffs-Appellants in Related Case.” . Although the plaintiffs have not sued Superior, the counter-party to the employment contracts, they contend that the defendants here may properly be held accountable for Superior’s obligations by piercing the corporate veil. See Island Seafood Co., Inc. v. Golub Corp., 2003 N.Y. Slip Op. 11959, 2003 WL 1090189, at *1 (3d Dep’t Mar. 13, 2003). However, in order for corporate veil piercing to be of any assistance, the plaintiffs must first establish a claim against Superior. Because we agree with the district court's conclusion that the plaintiffs did not have any vested rights under the employment contracts, the only remaining argument for a claim against Superior is for a breach of the implied covenant of good faith and fair dealing.

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DECISION SCHALL, Circuit Judge. Frances T. Woods petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Department of the Air Force (“agency”) removing her from her position as a GS-5 Supervisory Education *778Technician with the Child Development Center, 61st Air Base Group, Los Angeles, California. Woods v. Dep’t of Air Force, 91 M.S.P.R. 383 (2002). We affirm. DISCUSSION I. The events that resulted in Ms. Woods’ removal took place on July 12, 2000. That day, at approximately 1:30 p.m., Ms. Woods, who was relieving another employee, was watching 12 children during their naptime. The children ranged in age from 2 to 4. In response to a fire alarm, Ms. Woods assembled the children and evacuated them to a park across the street. At the time, despite a visual inspection, Ms. Woods did not realize that she had overlooked one of the children, a 4-year old who was asleep on her cot, under a blanket. The child was discovered by a fireman, who carried her outside. No one was injured in the incident, and about 20 minutes later, the building was pronounced safe for return. By memorandum dated December 14, 2000, the agency informed Ms. Woods that it proposed to remove her form her position based upon two charges: (i) negligence in properly supervising children under her care; and (ii) failure to comply with proper directives in using Air Force Form 1930 (Youth Flight Daily Attendance Record) to identify and account for children under her supervision. In a memorandum dated December 5, 2000 proposing Ms. Woods’ removal, her supervisor undertook a twelve-part “Douglas factors” analysis. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 308 (1981). Among other things, the memorandum noted that Ms. Woods had received extensive training in child safety and that, on December 2, 1997, she had received a letter of counseling after a similar incident in which she had left a child in a classroom during an emergency evacuation that resulted from a bomb threat. In responding to the proposed removal, Ms. Woods admitted that the alleged offense was serious, but she argued that removal was too severe a penalty. On January 30, 2001, the agency informed Ms. Woods that she was to be removed from her position effective that day. In connection with the removal action, the deciding official signed a memorandum in which she concurred with the Douglas factors analysis prepared by Ms. Woods’ supervisor. Ms. Woods timely appealed her removal to the Board. On June 22, 2001, following a hearing at which Ms. Woods and other witnesses testified, the administrative judge (“AJ”) issued an initial decision. In his initial decision, the AJ sustained the charge of negligence, but found that the agency had not proved the charge that Ms. Woods failed to use the proper form to account for the children in her care. The AJ found that the agency had established a nexus between the sustained charge of negligence and the legitimate interests of the agency. However, citing various mitigating factors, the AJ mitigated the penalty to a ninety-day suspension. On July 26, 2001, the agency petitioned the Board for review of the AJ’s initial decision. Subsequently, on May 7, 2002, the Board issued a final decision in which it granted the petition for review in part, affirmed the initial decision as to the charges against Ms. Woods, but modified the initial decision by sustaining the penalty of removal. Ms. Woods timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. Our scope of review in an appeal from a decision of the Board is limited. Specifi*779cally, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation having been'followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.1998). On appeal, Ms. Woods makes essentially two arguments. The first is that the Board erred when it determined that a balancing of the Douglas factors justified imposition of the penalty of removal. According to Ms. Woods, removal is too severe a penalty for her offense, and the AJ properly mitigated the penalty to a suspension. Ms. Woods’ second argument is that the Board erred in not finding that she was subjected to disparate treatment.1 We address these contentions in turn. We will only overturn an agency’s penalty determination if it is “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” O’Neill v. Dep’t of Hous. & Urban Dev., 220 F.3d 1354, 1365 (Fed.Cir.2000) (quoting Villela v. Dep’t of Air Force, 727 F.2d 1574, 1576 (Fed.Cir.1984)). In this case, we simply cannot say that the agency abused its discretion in imposing the penalty of removal. 'While it is true that Ms. Woods’ 15 years of service with the agency were free of disciplinary aetions and were marked by fully successful performance appraisals, her offense, as she acknowledges, was serious. In addition, when she was counseled in 1997 for having overlooked a child during a bomb threat evacuation, she was warned that a similar incident in the future could result in her removal. Únder these circumstances, we cannot properly disturb the agency’s decision to impose the penalty of removal. Turning to Ms. Woods’ second argument, in order to prevail on a claim of disparate treatment, a petitioner must demonstrate that similarly situated employees were treated differently for the same offense. Casias v. Dep’t of Army, 62 M.S.P.R. 130, 131-32 (1994). Substantial evidence supports the Board’s finding that Ms. Woods was not subjected to disparate treatment. Neither of the two employees to whom Ms. Woods points—both of whom the Board recognized performed unsatisfactorily on the day of the incident—was primarily responsible as a caregiver for children, as was Ms. Woods. In addition, unlike Ms. Woods, neither of the two employees was involved in a prior incident of similar negligence. For the foregoing reasons, the final decision of the Board is affirmed. No costs. . Ms. Woods also argues that the Board improperly substituted its own credibility determinations for those of the AJ. Ms. Woods points to the AJ’s alleged findings (i) that her remorse over the July 12th incident appeared genuine; and (ii) that the agency’s assertion (through the testimony of Ms. Woods’ supervisor) that it had lost confidence in her was not credible because, following the incident, her duties were not changed, and the agency waited five months before initiating a removal action. Ms. Woods states that the Board found that the AJ erred in considering both of the above factors when he mitigated the penalty. The record does not support Ms. Woods' assertions. In its final decision, the Board did not question the sincerity of Ms. Woods' remorse. Neither does it appear that the AJ made any demeanor-based credibility determinations with respect to Ms. Woods’ supervisor. Rather, the AJ concluded that the agency’s actions undermined its assertion that it had lost confidence in Ms. Woods.

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JUDGMENT PER CURIAM. This CAUSE having been heard and considered it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs filed by the parties, and was argued by counsel. For the reasons set forth in the attached memorandum, it is ORDERED and ADJUDGED that the judgment of the district court be affirmed. *782Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41. MEMORANDUM Appellant Clyde Anthony Scott seeks to withdraw, or have vacated, his plea of guilty to the charge of conspiracy to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(i), and 846. We first reject Scott’s argument that the district court’s denial of his motion to withdraw his plea should be reviewed for abuse of discretion. In fact, there is no denial to review. The court gave Scott multiple opportunities to submit a motion to withdraw in writing, and Scott failed to do so; in the end, he stated that he no longer wished to withdraw his plea. See First Sentencing Hr’g Tr. at 33-34; Second Sentencing Hr’g Tr. at 2,12-15. Second, we consider Scott’s claim that the district court’s initial acceptance of his guilty plea failed to comport with Fed.R.Crim.P. 11. We apply plain error review, taking into account the entirety of the record. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1048, 1054-55, 152 L.Ed.2d 90 (2002). Scott’s claim that the district court failed to establish a factual basis for the plea is unfounded. The heroin, packaging material, and scale found in his apartment, as well as Scott’s own admissions in open court, amply satisfy Rule ll’s requirement that a plea be grounded in “sufficient evidence from which a reasonable jury could conclude that the defendant committed the crime.” United States v. Abreu, 964 F.2d 16, 19 (D.C.Cir.1992). Third, Scott argues that the court failed to establish the voluntariness of his plea. We disagree. The judge thoroughly explained the charge and relevant conduct to which Scott was pleading and questioned him at length about the voluntary nature of the plea. This careful, patient, and detailed colloquy fully satisfied the requirements of Rule 11. See, e.g., In re Sealed Case, 283 F.3d 349, 352 (D.C.Cir.2002). Moreover, although Scott, the government, and the judge were all mistaken at the plea hearing as to the applicable criminal history category under the Sentencing Guidelines, the judge clearly warned the defendant that he could not rely on any sentencing predictions made at that time. See, e.g., United States v. Mathis, 963 F.2d 399, 411 (D.C.Cir.1992). Finally, although we agree with Scott that his attorney erred by incorrectly assessing his criminal history category pri- or to entry of the plea, Scott cannot prevail on his ineffective assistance of counsel claim because he has not shown that he has been prejudiced by the error. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Scott does not affirmatively allege, much less establish to a reasonable probability, that he would have chosen to go to trial had he known the correct category. See United States v. Horne, 987 F.2d 833, 835-36 (D.C.Cir.1993). In fact, the 108-month sentence that the court imposed fell within the possible sentencing ranges discussed at the plea colloquy, but Scott still chose not to go to trial. Nor does Scott show any reason to believe that he would have succeeded at trial. See id. Indeed, he proffers no plausible defense at all. See United States v. Farley, 72 F.3d 158, 163 (D.C.Cir.1995). Although Scott attempts to avoid the prejudice requirement by casting his ineffective assistance claim as a conflict-of-interest argument, we have re*783peatedly rejected such repackaging attempts, see, e.g., United States v. Bruce, 89 F.3d 886, 893 (D.C.Cir.1996), and we discern no actual conflict of interest between Scott and his attorney, see id. at 895. We therefore affirm the judgment of the district court.

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JUDGMENT PER CURIAM. Consolidated with Case No. 02-7090 This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs by the parties and oral arguments of counsel. It is Ordered and Adjudged that the judgment of the District Court be affirmed. Appellants Peabody and Southern California Edison, defendants below, sought a stay pending arbitration pursuant to 9 U.S.C. § 3. The District Court denied the motion for stay, see Navajo Nation v. Peabody Holding Co., 209 F.Supp.2d 269, 280 (D.D.C.2002), and appellants now seek review pursuant to 9 U.S.C. § 16(a)(1)(A). We affirm the District Court, because the matters at issue are not arbitrable under the royalty rate arbitration provisions at issue. The Complaint in this case alleges that appellants, through a pattern of wrongdoing, violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”), the federal law *784of Indian trusts, and various tort and contract doctrines, for which appellees seek treble damages. Appellants assert that, because the alleged wrongdoing relates to appellants’ behavior leading to the establishment of royalty rates under coal leases between the parties, the disputes now at issue are referable to arbitration pursuant to arbitration clauses in the lease agreements between the parties. The District Court rejected this claim, as do we. The leases between appellants and the Navajo Nation state that, in resolving coal royalty rate disputes, “[t]he decision of the arbitrator or arbitration panel shall be limited to establishing the mineral royalty rates.” Joint Appendix (“J.A.”) 587; J.A. 635. Only the “issue of royalty rate” is arbitrable under the parties’ arbitration clause. J.A. 569; J.A. 618. The lease between appellants and The Hopi Tribe is similarly restrictive. J.A. 676. Indeed, the record indicates that appellants have never even sought to compel arbitration of the Hopi Tribe’s claims. There is no doubt that the District Court was correct in rejecting appellants’ motion for a stay pending arbitration, for the appellees’ Complaint does not raise disputes that are cognizable under the parties’ arbitration clauses. The arbitration clauses are unambiguous in limiting the arbitrators’ authority, both as to the scope of the substantive issues that are referable to arbitration and as to remedies. It is clear that appellees’ RICO claims do not fall within the scope of the arbitration provisions, because they go well beyond the limited arbitrable issue of “establishing the mineral royalty rates.” On the merits, the dispositive issue in this litigation is not the appropriate royalty rate, but rather whether appellants engaged in the predicate acts of racketeering, including fraud and obstruction of justice, that form a pattern of racketeering in violation of RICO, and whether appellants otherwise engaged in wrongdoing for which damages may be awarded. Hence, there is no arbitrable issue for which a stay is warranted. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

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https://www.courtlistener.com/api/rest/v3/opinions/7218140/

JUDGMENT PER CURIAM. This cause was considered on the record from the Federal Communications Commission and the briefs and oral arguments of counsel. It is Ordered and Adjudged that the order of the Commission reinstating the application of Abundant Life, Inc., for a construction permit for a new FM station be affirmed. Unity Broadcasters challenges the decision of the Commission to reinstate the application of its competitor, Abundant Life, Inc., for a construction permit for a new FM station in Hattiesburg, Mississippi. The Chief of the FM Branch and the Office of the Managing Director had dismissed the application for failure to pay the required hearing fee by the deadline established in a public notice. The Commission reversed and reinstated the application, finding that Abundant’s counsel reasonably relied on the Commission’s pronouncements in restricting his search of the public notices such that he did not find the notice setting the deadline, which resulted in Abundant failing to pay the fee on time. Due process precludes an agency from penalizing a party for violating a rule unless the agency provides adequate notice of the substance of the rule. Satellite Broad. Co. v. FCC, 824 F.2d 1, 3 (D.C.Cir.1987). If an agency determines that its rule did not provide adequate notice, that is sufficient justification not to penalize a party and to grant a waiver of the rule. See High Plains Wireless, L.P. v. FCC, 276 F.3d 599, 607 (D.C.Cir.2002). As the Commission found, Abundant’s counsel reasonably interpreted the unclear pronouncements of the Commission in limiting his search of the public notices to the close of the amendment period forward because he believed the hearing fee deadline would not be determined until after that period expired. Therefore the Commission’s decision to reinstate the application was neither arbitrary nor capricious. Unity’s argument that Abundant’s president had actual knowledge of the hearing fee deadline was not properly presented to the Commission. In its opposition to Abundant’s application for review by the Commission, Unity addressed the argument only in a footnote that did not sufficiently describe the factual basis of the argument. Although Unity pointed to affidavits and documentary evidence in its petition for reconsideration, the Commission properly dismissed the petition because the reinstatement of an application is interlocutory and therefore not subject to a petition for reconsideration. See 47 C.F.R. § 1.106(a)(1). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of *786the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218141/

JUDGMENT PER CURIAM. This cause was considered on the record from Federal Energy Regulatory Commission and on the briefs filed by the parties and oral arguments of counsel. It is Ordered and Adjudged that the petition for review is granted, the Commission’s orders are vacated, and the case is remanded to the Commission. NSTAR Electric & Gas Corporation petitions for review of Commission orders granting the New England ISO waivers of the rate-filing requirement in Section 205(d) of the Federal Power Act, 16 U.S.C. § 824d(d), and refusing to require the New England ISO to pay NSTAR refunds for payments made in excess of the filed rates. NSTAR seeks review of the Commission’s original order, Mirant Americas Energy *787Mktg., L.P., 96 F.E.R.C. ¶ 61,201, 2001 WL 34076566 (Aug. 10, 2001); the Commission’s order granting NSTAR’s request for clarification, Mirant Americas Energy Mktg., L.P., 97 F.E.R.C. ¶ 61,108, 2001 WL 1326461 (Oct. 26, 2001); and the Commission’s order denying NSTAR’s further request for clarification, Mirant Americas Energy Mktg., L.P., 97 F.E.R.C. ¶ 61,360, 2001 WL 1638782 (Dec. 21, 2001). Section 205(d) provides that public utilities must give notice to the Commission sixty days before implementing rate changes unless the Commission waives the sixty days’ notice “for good cause shown.” 16 U.S.C. § 824d(d). In Central Hudson, the Commission stated that it would generally find good cause to justify a waiver for “filings that increase rates when the rate change and the effective date are prescribed by” a contract already on file with the Commission because, “[i]n [those] instances, there is a contractual commitment as to the effective date which the Commission has already accepted.” 60 F.E.R.C. ¶ 61,106, at 61,338, 1992 WL 187771 (1992). Market Rule 17 does not set forth rate changes or effective dates; instead, it permits the New England ISO to enter into mitigation contracts, the terms of which are to be determined by the New England ISO. Therefore the Commission’s citation to Central Hudson neither explained, nor in itself supported, the Commission’s waiver decision. Cf. Exxon Corp. v. FERC, 206 F.3d 47, 53 (D.C.Cir.2000). As to the refusal to order refunds, the Commission offered no rationale for its decision other than that it has granted waivers to the New England ISO. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218143/

JUDGMENT PER CURIAM. This cause was considered upon the record from the Federal Communications Commission and on the briefs and arguments of parties. It is ORDERED AND ADJUDGED that the Commission’s order be affirmed. Although the Commission’s order could have been more clear, its conclusion that when a license expires by operation of law under 47 U.S.C. § 312(g) the Commission lacks discretion to extend the license term necessarily defeats the appellant’s claim that the Commission should have reinstated its call letters for the limited purpose of considering an application for renewal of its license. The cases upon which the appellant relies, in which the Commission has considered renewal applications after expiration, do not involve § 312(g), and the Commission’s order adequately explains why it believes expiration by operation of § 312(g) is unique. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218144/

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. Plaintiff-appellant Mill-Bern Associates, Inc. appeals from a November 6, 2001 judgment of the United States District Court for the Southern District of New York (Richard Conway Casey, Judge), granting defendant-appellee IBM’s motion for summary judgment and denying Mill-Bern’s motion for partial summary judgment. Beginning in 1993, Mill-Bern and IBM entered into a series of contracts whereby Mill-Bern served as a sales representative for IBM’s semiconductor products and IBM paid sales commissions to Mill-Bern. The parties entered into the most recent of these agreements in January 1997 (the “1997 Agreement”). During 1997, Mill-Bern alleged that it had earned more commissions than IBM had paid; IBM disagreed. At a December 18, 1997 meeting, IBM informed Mill-Bern that it did not intend to enter into a new agreement with Mill-Bern when the 1997 Agreement was due to expire on January 7, 1998. The next day, December 19, Mill-Bern provided IBM with written notice of its intent to terminate the 1997 Agreement for cause, on the basis of various alleged breaches by IBM. IBM took the position that Mill-Bern’s attempted termination of the 1997 Agreement was ineffective because it failed to provide IBM with the requisite thirty days notice to cure (i.e., Mill-Bern’s notice came less than thirty days before the 1997 Agreement was to expire). IBM also contended that the 1997 Agreement expired on January 7, 1998 and that, under § 11(a) of the Agreement, it was not obligated to pay Mill-Bern any commissions for products shipped after that date. Mill-Bern, in contrast, took the position that it had properly terminated the 1997 Agreement for cause, and that, under § 11(d) of the Agreement, IBM was obligated to pay it commissions for all orders accepted by IBM prior to the December 19, 1997 termination notice and shipped within ninety days thereafter. Faced with competing summary judgment motions, the District Court granted IBM’s motion and denied Mill-Bern’s. The court found that the one-year limitations period contained in the parties’ agreements (“Neither party will bring any legal action against the other more than one year after the cause of action arose.”) barred Mill-Bern’s claims for commissions on orders that had been shipped more than one year before Mill-Bern filed suit, and that the 1997 Agreement expired on January 7, 1998, before Mill-Bern’s attempt to terminate it could take effect, barring Mill-Bern’s claims for commissions on orders shipped after January 7, *7941998. The District Court also rejected Mill-Berris argument that the expiration provision of the 1997 Agreement was unconscionable. On appeal, Mill-Bern attacks each of the bases for the District Court’s ruling. We address them in turn and agree with the District Court as to each. Mill-Bern does not contest the existence of the one-year limitations period. Rather, it argues that IBM should be equitably estopped from relying on the limitations period because IBM failed to provide Mill-Bern with copies of the invoices from which Mill-Bern could have discerned the amount of the commissions that it had earned. Mill-Berris equitable estoppel argument fails, however, because Mill-Bern has not alleged that its failure to file suit within the limitations period was “induced by fraud, misrepresentations or deception” on the part of IBM. See Simcuski v. Saeli 44 N.Y.2d 442, 449, 406 N.Y.S.2d 259, 377 N.E.2d 713, 716 (N.Y.1978); see also Dillman v. Combustion Eng’g, Inc., 784 F.2d 57, 60-61 (2d Cir.1986). Mill-Bern also argues, in the alternative, that it did commence “legal action” against IBM within the one-year limitations period. Mill-Bern argues that two letters it sent to IBM in 1994 and 1997, seeking the type of commissions that it seeks in this action, constituted “legal action” within the meaning of the contracts. Contrary to Mill-Berris argument, the term “legal action” is not ambiguous, and it does not include Mill-Berris letters. See Black’s Law Dictionary 28 (6th ed.1990) (defining “action” as “a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law”). We conclude, as did the District Court, that Mill-Bern did not bring any legal action against IBM until it filed this lawsuit on March 26, 1998, and that all claims arising more than one year before that date are barred. Next, Mill-Bern argues that it properly terminated the 1997 Agreement on December 19, 1997, entitling it to commissions on sales accepted by IBM prior to December 19 and shipped within ninety days thereafter. IBM argues, in response, that any termination of the 1997 Agreement had to be made on thirty days notice and, therefore, would not take effect until thirty days after the notice of termination. Under New York law, an attempt to terminate a contract containing a notice provision does not take effect until the notice period has passed. See G.B. Kent & Sons, Ltd. v. Helena Rubinstein, Inc., 47 N.Y.2d 561, 565, 419 N.Y.S.2d 465, 393 N.E.2d 460, 467 (1979). As a result, by the time Mill-Berris attempted termination could become effective—thirty days after its December 19, 1997 notice, or January 18, 1998—the 1997 Agreement had already expired by its terms, on January 7. We therefore agree with the District Court that the 1997 Agreement expired and was never properly terminated by Mill-Bern. Lastly, we reject Mill-Berris argument that the expiration provision of the 1997 Agreement—which stated that “any obligation of IBM to pay [Mill-Bern] Commission for orders which have been accepted by IBM as of the date of expiration of this Agreement” would “cease” upon the Agreement’s “expiration”—was unconscionable. In order to succeed on its unconscionability argument, Mill-Bern must show that, in entering into the 1997 Agreement, it had “an absence of meaningful choice,” resulting in “contract terms which are unreasonably favorable to the other party.” State v. Avco Fin. Serv. Inc., 50 N.Y.2d 383, 389, 429 N.Y.S.2d 181, 406 N.E.2d 1075, 1078 (1980). Unconscionability is a question of law for the court. McNally Wellman Co. v. N.Y. State Elec. & Gas Corp., 63 F.3d 1188, 1198 (2d Cir.1995). As the District Court noted, Mill-Bern is an experienced commercial enterprise and was represented by counsel at all *795relevant times. Moreover, Mill-Bern was able to negotiate certain terms of the 1997 Agreement, yet it presented no evidence that it attempted to negotiate the expiration provision. While the expiration provision may have had unfortunate consequences for Mill-Bern, that alone does not render the provision unconscionable. See Leasing Serv. Corp. v. Graham, 646 F.Supp. 1410, 1418 (S.D.N.Y.1986) (“[A] party who knowingly enters a lawful but improvident contract is not entitled to protection by the courts.”). Accordingly, the judgment of the District Court is AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218145/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated Term of the United Stated Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 14th day of April, two thousand and three. ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Plaintiff Miller appeals from the Memorandum Decision and Order, dated May 17, 2002, of the U.S. District Court for the Northern District of New York (Homer, M. J.) granting defendant Hartford Life Insurance Company’s (“Hartford”) motion for summary judgment and denying her motion for summary judgment. Miller brings this diversity action as the executrix of the estate of Orman Muzzy. Miller is Muzzy’s grandniece. Muzzy was born in 1915, as was his wife, Helen, whom he married in 1944. In late 1994, when he was seventy-nine years old, Muzzy contacted his attorney, George Mills, concerning the purchase of an annuity. Specifically, Muzzy told Mills that he want to purchase a “single premium immediate life annuity” as a means of shielding his assets from any attempt by the Government to seek reimbursement for Medicaid benefits. Muzzy expected that he would be vulnerable to an attempt at reimbursement because Helen, who had been diagnosed with Alzheimer’s disease, would soon need to enter a nursing home, the cost of which would largely be borne by Medicaid. Muzzy told Mills that he wished to purchase an annuity which would name him as sole beneficiary. This wish was based upon Muzzy’s belief that naming a beneficiary other than himself would not protect the annuity from Medicaid reimbursement. It is not contested that this belief was false, and that Muzzy in fact received no benefit with regard to Medicaid by not naming someone else as a beneficiary. Mills testified that he had no experience in legal matters involving Medicaid, and no experience in “elder law” generally. Mills also testified that he did not opine on the wisdom of the purchase beyond asking Muzzy if he understood the risk inherent in a single premium immediate life annuity, i.e., that he would receive payment under the annuity only so long as he lived and that, should he die before his expected life span, the seller of the annuity would retain the balance of the purchase price. It was Mills’ impression that Muzzy was fully aware of this risk. Indeed, Mills was convinced that Muzzy “had his mind made up” regarding the annuity purchase. He also testified that Muzzy was to all indications of sound mind. According to Mills, all Muzzy asked him to do with respect to the purchase was to inquire among various insurance agents as to which of them offered the best deal. Mills eventually recommended that Muzzy *797contact the Rowledge Agency, which was an authorized dealer of Hartford insurance products. The agency had provided ordinary insurance services to Muzzy in the past. Muzzy went to speak to Roderick Row-ledge in January 1995. Rowledge testified that Muzzy told him that he was intent upon purchasing an annuity naming himself as sole beneficiary and wanted no recommendation from Rowledge as to whether or not this was a good idea. Like Mills, Rowledge also testified that he inquired as to whether Muzzy understood the risks of an annuity and was convinced that he did. Also as with Mills, Rowledge testified that he discussed Medicaid with Muzzy and that Muzzy asserted that he had “checked it out” on his own and was under the impression that naming a beneficiary on the annuity other than himself would subject the annuity funds to Medicaid reimbursement. Rowledge asserted that he had no prior knowledge as to whether or not Muzzy was correct, but that he telephoned a Hartford sales representative, who agreed with Muzzy’s position. Rowledge testified that he saw no indication that Muzzy was not of sound mind. Further, after speaking with Muzzy, Row-ledge called the vice-president of Muzzy’s bank, who confirmed that Muzzy was in full possession of his faculties. Muzzy purchased the annuity on January 18, 1995 for $180,000. On the application form, he elected the form of annuity that promised payments only for the remainder of his life, rather than one of the available options for somewhat reduced payments for life with a guarantee of a minimum number of years of benefits to designated beneficiaries. Five days later, his wife Helen entered a nursing home. It is uncontested that Muzzy made no effort to rescind the annuity during the 10-day grace period provided for this purpose. Under the terms of the annuity, Muzzy received monthly payments of $2,192.40. He died of “end stage congestive heart failure” on September 23, 1996. Thus, Muzzy received $43,848 on the annuity, leaving Hartford $136,152 on his death. We review de novo the District Court’s grant of summary judgment. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285 (2002). Having considered Miller’s claims pursuant to this standard, we affirm the District Court in all respects. A. Constructive Trust/Unjust Enrichment. In considering whether to establish a constructive trust, the elements a court may consider include the existence of “1) a confidential or fiduciary relation, 2) a promise, 3) a transfer in reliance thereon and 4) unjust enrichment.” Counihan v. Allstate Ins. Co., 194 F.3d 357, 362 (2d Cir.1999) (citation omitted). “[Ajlthough these factors provide important guideposts, the constructive trust doctrine is equitable in nature and should not be rigidly limited.” Id. (citation and quotation omitted). Still, “[ujnder New York law, one who seeks to impose a constructive trust must establish the facts giving rise to that remedy by clear and convincing evidence.” The Martha Graham School and Dance Foundation, Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 224 F.Supp.2d 567, 610 (S.D.N.Y.2002). A constructive trust should not be established here. The central allegation in Miller’s complaint is that Muzzy “was easily confused, given his advanced age, deteriorating health and the effects in which the diagnosed malady of kidney failure impaired his ability to comprehend.” But Miller also asserts that it is not herein contended that [Muzzy] was mentally incapacitated [,] but, instead, if matters had been better explained ... some other pru*798dent [investment] choice could have been made.” Muzzy’s purchase of the annuity was not impulsive; he asked Mills to find him the best deal and the purchase itself did not take place until weeks later. As already noted, both Mills and Rowledge believed Muzzy to be of sound mind. The most Miller herself testified to was that Muzzy was sometimes depressed and confused in his last years. And Miller’s expert witness merely opines that the purchase of the annuity was “totally inappropriate,” not that Muzzy did not understand what he was buying into. At most, the evidence in the record establishes that Muzzy made an unwise decision, not that he was incapable of making an informed choice. What is more, “[u]nder New York law the relationship between an insurance company and a policyholder is a contractual relationship, not a fiduciary one.” Freeman v. MBL Life Assur. Corp., 60 F.Supp.2d 259, 266 (S.D.N.Y.1999) (collecting cases). Miller’ assertion that “it goes without saying” that such a relationship must exist here because of the size of the investment is wholly unsupported. There is no contention here that Rowledge was— or that he held himself out to be—an investment advisor, someone who does have a fiduciary relationship with clients. See Capital Dist. Physician’s Health Plan v. O’Higgins, 939 F.Supp. 992, 1002 (N.D.N.Y.1996). A corollary of this lack of a fiduciary relationship is that “[t]here [is] no duty cast upon the defendant to investigate the health of those seeking annuities.” Tabachinsky v. Guardian Life Ins. Co. of America, 147 N.Y.S.2d 719, 722 (Sup.Ct.N.Y.Cty.1956). Thus, even if Muzzy was occasionally confused due to poor health, there was no obligation on the part of Rowledge or Hartford to ascertain this. Further, the only promise that Row-ledge and Hartford made to Muzzy is that he would be paid $2192.40 a month until he died. It is undisputed that this promise was carried out. It is thus incorrect for Miller to assert that Muzzy “received nothing” or “truly received no benefit whatsoever” pursuant to the annuity. B. Negligent Misrepresentation. Again, it is not disputed that both Muzzy and Hartford were incorrect in their assessment about the effect of the annuity upon Medicaid reimbursement. But an essential element of a claim of negligent misrepresentation is the existence of a duty on the part of the defendant, arising from a fiduciary relationship, to impart correct information. Hydro Investors, Inc. v. Trafalgar Power, Inc., 227 F.3d 8, 20 (2d Cir.2000). No such relationship exists in this case. C. Rescission. “Annuity agreements, like other contracts, may be rescinded, set aside, or voided upon proper grounds. Thus, where an annuity agreement apparently was entered into through fraud, duress, misrepresentation, or undue influence, or where it appears that the underlying transaction was unconscionable under the circumstances, the agreement may be set aside or recovery back of the consideration may be permitted.” 4 N.Y.Jur.2d, Annuities, § 13. None of these grounds is present here. Indeed, as the District Court found, Muzzy effectively ratified the annuity contract by not availing himself of the ten-day grace period in which he could have rescinded the contract, and by accepting payments under the contract for nineteen months. D. Claims Under New York Statute Law. The District Court correctly held that, in so far as it can be ascertained what claims Miller is asserting under statutory law, such claims are waived because they were only asserted as part of Miller’s op*799position to Hartford’s summary judgment motion. No statutory claims are set forth in the complaint and, as Hartford points out, Miller appears to have only considered bringing such claims more than a year after the complaint was filed by -writing the state Department of Insurance in order to ask their advice as to which statutory claims might be appropriate. Accordingly, for the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218146/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 23rd day of April, two thousand three. AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby AFFIRMED. Plaintiff-Appellant Milton Silverman appeals from an August 21, 2002 judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) granting summary judgment in favor of the defendants. We affirm for substantially the reasons given by the District Court. See Silverman v. City of N.Y., 216 F.Supp.2d 108 (E.D.N.Y.2002). Silverman’s employment discrimination claims fail because, at bottom, *801whereas the defendants have articulated a legitimate, nondiscriminatory reason for the adverse employment actions taken against Silverman, Silverman has not set forth sufficient evidence upon which a jury could find, by a preponderance of the evidence, that the defendants’ articulated reason is pretext for discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although Silverman does point to differences in how Defendant Lawrence was disciplined and to several derogatory remarks allegedly made by Defendants Kaplan, Navarro and Lawrence, we agree with the District Court’s conclusion that “in the face of ‘abundant and uncontroverted independent evidence that no discrimination had occurred,’ ” these limited items do “nothing more than create a ‘weak issue of fact as to whether the employer’s reason was untrue.’” 216 F.Supp.2d at 119 (quoting Reeves, 530 U.S. at 148); see also St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“It is not enough ... to dis believe the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.” (emphasis in original)). As for Silverman’s remaining claims, the equal protection claim was properly dismissed because there was a rational basis for disciplining Silverman differently from Lawrence. Silverman’s alleged sexual advance was targeted at a young intern working in the same office, while Lawrence’s alleged misconduct occurred out of the office with an adult. The Department of Housing, Preservation and Development could have rationally determined that Silverman, unlike Lawrence, posed a present threat best handled immediately by suspension rather than mere counseling. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). The § 1983 conspiracy claim fails because Silverman’s allegations are unspecific, eonclusory and unsupported. See Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993) (“complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed”); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977) (“Diffuse and expansive allegations [of conspiracy to deprive a person of constitutional rights] are insufficient, unless amplified by specific instances of misconduct.”). Accordingly, the judgment of the District Court is hereby AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218148/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, *807Foley Square, in the City of New York, on the 1st day of May, two thousand three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the judgment of the district court be AFFIRMED. Plaintiff-appellant Pierre Bazile appeals from an order entered in the United States District Court for the Southern District of New York (Marrero, J.) on July 8, 2002, granting summary judgment to the defendants and dismissing all of his claims. Bazile is a uniformed member of the New York City Police Department (“NYPD”). On May 11, 1997, while off duty and working as a private security guard, Bazile discharged his firearm eleven times at a pit bull that approached him in the lobby of an apartment building. In February 1999, Bazile sued under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, alleging that he suffered retaliation, a hostile work environment, and discrimination on the basis of his race and national origin in the investigatory and disciplinary proceedings that followed the incident. On appeal, he challenges the dismissal of these claims and the court’s decision to exclude expert testimony. We review the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). We affirm for substantially the reasons stated in the district court’s decision and the magistrate judge’s report and recommendation, with the following observations. 1. Title VII Hostile Work Environment Claim: Bazile’s hostile work environment claim fails on both procedural and substantive grounds. First, it is procedurally barred because Bazile did not assert it in a timely EEOC complaint, and it is not “reasonably related” to the complaint that he did file. Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir.2001) (per curiam). As the district court concluded, the EEOC complaint would not have led to an investigation of this claim. (Decision & Amended Order, dated Aug. 1, 2002, at 9-12.) Second, even if Bazile had exhausted his administrative remedies, he offers no evidence showing that his workplace was “permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citation omitted). The mere fact of Bazile’s assignment to the Brooklyn court section (and later to the walking post) does not establish such conditions, nor does the NYPD’s investigation and the referral to the psychological unit. Bazile also offers no evidence that the teasing he endured over the pit bull incident had any discriminatory component. 2. Title VII Retaliation Claim: “A plaintiff claiming retaliation must prove: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between plaintiffs protected activity and the adverse *808employment action.” Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir.2000). A plaintiff must exhaust his administrative remedies before suing for retaliation. See Legnani, 274 F.3d at 686. Bazile’s retaliation claim does not satisfy these requirements. First, the district court properly concluded that Bazile failed to exhaust his administrative remedies with regard to his Brooklyn court section assignment. (Decision & Amended Order, at 15.) Second, most of Bazile’s remaining allegations of retaliation involve unprotected activities because they reference no discrimination. See 42 U.S.C. § 2000e-3(a). Third, while a single internal affairs communication and Bazile’s EEOC complaint alluded to discrimination, Bazile failed to establish the requisite causal connection between those activities and the adverse employment actions. (Decision & Amended Order, at 17.) Finally, even if Bazile could establish a prima facie case of retaliation, his conduct in the pit bull incident constituted a legitimate, non-discriminatory reason for the NYPD’s investigatory and disciplinary actions. Bazile has raised no genuine issue of material fact demonstrating that this reason was pretextual. 3. Section 1988 Claim: Bazile notes that the district court’s decision spoke only to the retaliation component of his § 1983 claim. (Pl.’s Br. at 43; see also Decision & Amended Order, at 18-19.) Even if Bazile’s § 1983 claim stretches more broadly to encompass discrimination on the basis of race and national origin, Bazile does not explain how he suffered “a procedural violation in the administrative process sufficient to trigger due-process scrutiny,” nor does he dispute that “he could have pursued an Article 78 proceeding to correct such a violation.” (Magistrate Judge’s Report & Recommendation, dated May 10, 2002, at 65.) See Campo v. New York City Employees’ Retirement Sys., 843 F.2d 96, 101 (2d Cir.1988) (“If the record before the Article 78 court demonstrates a lack of appropriate procedure, the Article 78 court has the authority and seemingly the duty to order the agency to conduct a proper hearing, regardless of the type of substantive claim involved.”). 4. Expert Testimony: Bazile also argues that the district court erred by excluding the testimony of his proposed expert witness. Expert opinion testimony is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue,” provided that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R.Evid. 702. The district court serves a “gatekeeping role,” determining whether the proffered testimony is relevant and sufficiently reliable. Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002). The court should “consider the indicia of reliability identified in Rule 702,” id. at 265, as well as the factors developed by the Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). This is a flexible, case-specific inquiry, which gives the district court “broad discretion.” Amorgianos, 303 F.3d at 265-66. Since summary judgment must be based on “such facts as would be admissible in evidence,” Fed.R.Civ.P. 56(e), “[t]he principles governing admissibility of evidence do not change on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997). “We review a district *809court’s determination to admit or exclude expert testimony under Daubert for abuse of discretion,” and we find such abuse only if the court’s decision was “manifestly erroneous.” Amorgianos, 303 F.3d at 264-65 (internal quotation marks omitted). We see no manifest error. The district court excluded the testimony of plaintiff’s proposed expert, Michael Levine, in part because he lacked experience in “conducting internal disciplinary investigations” such as the one at issue here. (Decision & Amended Order, at 22.) Plaintiff points out that Levine has reviewed “the handling and disposition of personnel type investigations (i.e. Use of Deadly Force, Bias, Corruption, Investigative Procedures, etc.)” at the Drug Enforcement Administration. (Levine Aff., dated May 23, 2000, at 2; see also PL’s Br. at 46.) Even if this experience is relevant to NYPD disciplinary proceedings, it does not establish that Levine had any “particular expertise that would qualify [him] to assess whether a discriminatory animus motived the NYPD,” that he relied upon “any theory related to discriminatory motivations,” or that “there are any standards which control the operation of his opinions.” (Decision & Amended Order, at 22.) The district court properly relied upon these considerations in excluding Levine’s testimony. Bazile also points out that the defendants did not rebut Mr. Levine’s testimony, but that is of no moment. See Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000) (per curiam) (rejecting “argument that th[e court’s] gate-keeping role disappears when a proposed expert witness is not challenged by an opposing expert witness”). For the reasons set forth above, the judgment of the district court is hereby affirmed:

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SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 6th day of May, two thousand and three. ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. On November 12, 1998, Nicolina Mendolia of Endvest, Inc. (“Endvest”) hired Doudou B. Janneh (“Plaintiff-Appellant”), a 44 year-old African-American man originally from SeneGambia, (sic) Africa, to work as a “manager/trainee” at Arby’s Roastbeef Restaurant (“Arby’s”) in Vestal, New York. Plaintiff-Appellant would have been eligible to be promoted to the position of an assistant restaurant manager upon completing his training. However, Mendolia terminated Plaintiff-Appellant during the training period. Plaintiff-Appellant filed suit against Endvest, which operated the restaurant, and Triare Restaurant Group (“Triare”), which licensed Endvest to operate the Arby’s franchise. Plaintiff-Appellant alleged that Endvest and Triare (“Defendants-Appellees”), subjected him to a hostile work environment, failed to promote him, and terminated him based upon his race, color, national origin, gender, and/or age, in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the New York State Human Rights Law. Plaintiff-Appellant also asserted a claim under the National Labor Relations Act and a common law claim for breach of an implied contract. The district court granted Defendants-Appellees’ motion for summary judgment, and Plaintiff-Appellant appeals that decision. We analyze Plaintiff-Appellant’s discrimination claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which first requires the plaintiff to establish a prima facie case of discrimination. See, e.g., Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir.2001). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the termination, after which the plaintiff must proffer evidence that reasonably supports a finding of discrimination. Id. Plaintiff-Appellant cannot establish a prima facie case that he was subjected to an unlawfully hostile work environment because he proffers no evidence of “discriminatory behavior that is sufficiently severe or pervasive to cause a hostile environment.” Brown v. Coach Stores, Inc., *816163 F.3d 706, 713 (2d Cir.1998) (citations omitted). Plaintiff-Appellant argues that one of his supervisors, Jerry Holdbrook, was “impolite, sarcastic, antagonistic, and totally rude.” However, there is no evidence that Holdbrook made racially-charged comments to Plaintiff-Appellant, and the record reflects that Holdbrook was equally unpleasant to Caucasian employees. In fact, Endvest transferred Hold-brook in response to Plaintiff-Appellant’s complaints. Plaintiff-Appellant also alleges that another supervisor, Michael Cumak, assigned him to clean and mop the dining room floor while other trainees were assigned to administrative duties. However, Plaintiff-Appellant proffers no evidence in support of his allegation. He does not dispute that he did not observe all of his fellow trainees during their shifts, and he concedes that he was responsible for maintaining the restaurant’s cleanliness. While Plaintiff-Appellant alleges that he was disparately disciplined for tardiness and absenteeism, he does not dispute that thirteen other employees were disciplined for similar infractions. Plaintiff-Appellant cannot establish a prima facie case for an unlawful failure to promote because he cannot establish that he “applied and was qualified for a job for which the employer was seeking applicants.” Id. at 709 (citations omitted). It is undisputed that Plaintiff-Appellant was not eligible to become an assistant restaurant manager until he completed his training. However, Plaintiff-Appellant neither completed his training nor sought the promotion. Moreover, Plaintiff-Appellant does not dispute that the other employees who were promoted had completed their training. Plaintiff-Appellant’s claim for unlawful termination also fails. Assuming Plaintiff-Appellant could establish a prima facie case, Defendants-Appellees maintain that the termination was motivated by economic conditions. Defendants-Appellees proffer evidence that the restaurant’s sales plummeted between December 1998 and January 1999, which they contend necessitated a reduction of the workforce. Mendolia, who hired Plaintiff-Appellant, decided to terminate him because he was the last trainee hired prior to the decline. Plaintiff-Appellant proffers no evidence to discount this explanation or to demonstrate that Mendolia’s decision was unlawfully motivated. While Plaintiff-Appellant argues that other employees were not terminated, it is undisputed that he had the least seniority, and Defendants-Appellees’ failure to include their termination policy in the employee handbook does not refute their proffered explanation. Contrary to his allegation, Plaintiff-Appellant proffers no evidence that Defendants-Appellees replaced him with a Caucasian employee, and the mere fact that Mendolia based her decision in part upon Plaintiff-Appellant’s performance does not create a triable issue. We decline to consider Plaintiff-Appellant’s claims of retaliation and defamation because they were not asserted in the amended complaint. To the extent the amended complaint raised a claim for intentional infliction of emotional distress, it fails because Plaintiff-Appellant proffers' no evidence that he suffered unlawful discrimination. Plaintiff-Appellant’s claim under the National Labor Relations Act fails because he proffers no evidence that Defendants-Appellees breached a collective bargaining agreement, and his common law claim for breach of an implied contract fails because he was an at-will employee.1 We have considered Plaintiff-*817Appellant’s remaining claims and find them to be without merit. Accordingly, the judgment of the United States District Court for the Northern District of New York is AFFIRMED.2 . Even assuming Plaintiff-Appellant had asserted viable claims, we conclude that he pro*817vides no basis for holding Triare liable. . Plaintiff-Appellant's motion for "review” is moot. Pursuant to Plaintiff-Appellant’s representation, this Court treated the motion and its exhibits as his reply brief.

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SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 8th day of May, two thousand three. ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED, except that the sentence is remanded, in a written opinion filed this date, for reconsideration of the employment restriction imposed as a condition of supervised release. Vassilios K. Handakas appeals from the May 20, 2002, judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, District Judge) resentencing him after a remand from our Court. Handakas was originally convicted, following a jury trial, of one count of conspiracy to commit mail fraud, two counts of illegally structuring financial transactions in order to evade reporting requirements, one count of money laundering conspiracy, one count of failure to file a currency report, one count of making a materially false representation, and one count of conspiracy to defraud the United States. On direct appeal, this Court reversed the mail fraud conspiracy count, the money laundering conspiracy count, and one of the two structuring counts, leaving it to the District Court on remand to elect which structuring count should remain. United States v. Handakas, 286 F.3d 92, 100, 113 (2d Cir.2002) (“Handakas /”). The Court affirmed the convictions on all other counts. The District Court resentenced Handakas to 50 months’ imprisonment, three years’ supervised release, a $100,000 fine, and restitution in the amount of $396,501. The De*819fendant was also ordered to forfeit $1,416,077.17. The Defendant’s challenge to the condition of supervised release that prohibits him from working on government construction contracts has been considered in an opinion filed this date. United States v. Handakas, 329 F.3d 115 (2d Cir.2003). This summary order considers several claims raised by Handakas in a pro se brief. Several of these arguments challenge the term of imprisonment imposed by the District Court. Because the Defendant completed service of that term on January 31, 2003, his contentions that the Court incorrectly applied the Sentencing Guidelines to the structuring offenses, that the Court erroneously applied a role-in-the-offense enhancement and an obstruction of justice enhancement, and that the sentencing enhancements violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), are all moot. Handakas contends that he received ineffective assistance of counsel at his resentencing. The transcript of the sentencing hearing contradicts most of Handakas’s specific claims about his lawyer’s actions. Handakas also faults his lawyer for alerting the District Court to a particular provision in the Sentencing Guidelines that was applicable to his case. However, since counsel has an ethical obligation to alert the Court to relevant law, this cannot constitute ineffective assistance of counsel. Nor did counsel provide ineffective assistance by failing to assert certain claims on this appeal; Handakas raised these claims in his pro se brief, and we have considered them fully and conclude that they lack merit. Handakas also contends that the amount he was ordered to forfeit and the fine he was ordered to pay violate the Excessive Fines Clause of the Constitution. See U.S. Const, amend. VIII. He relies on United States v. Bajakajian, 524 U.S. 321, 337, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), which held that “[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense, it is unconstitutional.” However, the District Court reconsidered both the forfeiture order and the fine in light of the new situation on remand. Judge Weinstein decreased both the forfeiture and the fine significantly, and the reduced amounts are proportional under Bajakajian. Handakas also claims that he has suffered impermissible multiple punishment because all the charges against him are based on the same financial transactions. However, the fact that the same transactions were the occasion for criminal conduct violating distinct statutes is not a ground for relief. Indeed, the Guidelines explicitly envision this occurrence by allowing for grouping of counts that derive from the same transaction. Such grouping occurred in this case. See United States Sentencing Manual § 3D1.2(b) (1997). As for his remaining contentions, Handakas made the claims involving the Klein conspiracy, see United States v. Klein, 247 F.2d 908 (2d Cir.1957), and the order of restitution to the IRS on his previous appeal. We noted that “Handakas’s pro se brief raises a number of additional arguments-all of which are meritless.” Handakas I, 286 F.3d at 95 n. 1. We may not consider these claims, since the law of the casé doctrine requires “a court of appeals [to] adher[e] to its own decision at an earlier stage of the litigation.” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.2001) (internal quotation marks omitted). For the reasons stated above and in our written opinion filed this date, we affirm all aspects of conviction and sentence, except the employment condition of super*820vised release, which is the subject of the written opinion.

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SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at Foley Square, in the City of New York, on the 13th day of June, two thousand and three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the case is AFFIRMED. Adell P. Allen, appearing pro se, appeals from two orders of the United States District Court for the Southern District of New York (McMahon, /.) dismissing (1) all claims except those for discriminatory retaliation against St. Cabrini for failure to state a claim and failure to exhaust administrative remedies, and (2) the discriminatory retaliation claims against St. Cabrini on summary judgment. We affirm for substantially the reasons stated by the district court. See Allen v. St. Cabrini Nursing Home, 198 F.Supp.2d. 442 (S.D.N.Y.2002) (CM); Allen v. St Cabrini Nursing Home, 00 Civ. 8558(CM), 2001 WL 286788 (S.D.N.Y. March 9, 2001).

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OPINION OF THE COURT McKEE, Circuit Judge. Bryant Sheard appeals from the judgment of sentence that was entered following the district court’s acceptance of Sheard’s guilty plea pursuant to a written plea agreement. Defense counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) in which counsel avers that, “after a conscientious examination of the record, *844[he] could find no non-frivolous issues for appeal.” Appellant’s Br. at 17. Accordingly, we will affirm the judgment of sentence.

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PER CURIAM. Coy Hazel Howe seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). An appeal may not be taken from the final order denying a motion under § 2255 unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. *901§ 2253(c)(2) (2000). We have independently reviewed the record and conclude that Howe has not made the requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 'before the court and argument would not aid the decisional process. DISMISSED.

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ORDER Ken Mitán appeals from an order of the district court sitting as an appellate court in bankruptcy. The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a). On January 20,1999, a Chapter 11 involuntary bankruptcy petition was filed against Buscemi’s International, Inc. (“Buscemi’s”). The case was eventually converted to a Chapter 7 liquidation on August 29, 2000. A trustee was appointed to serve as Chapter 7 trustee of Buscemi’s. On September 22, 2000, the trustee for the estate conducted a sale of assets of the estate. At the sale, the trustee accepted the highest bid, which was from Original Buscemi’s of Michigan. Mitán did not submit a bid at the sale. Subsequent to the sale, Mitán claimed that he could tender a higher legitimate offer for the assets. The bankruptcy judge provided Mitán with an opportunity to prove that he had the financial ability to buy the assets at a higher amount at a hearing on October 10, 2000. When Mitán was unable to prove his ability to buy the *911assets at that point, the bankruptcy judge gave Mitán until 1:00 p.m. the next day, October 11, 2000. Again, after considering Mitan’s offer, the bankruptcy judge concluded that Mitán did not make a valid higher offer, and therefore, authorized the sale of the assets to Original Buscemi’s of Michigan. On October 13, 2000, Mitán filed with the bankruptcy court a motion for reconsideration and a motion for stay. On October 16, 2000, the bankruptcy court denied the motion for reconsideration. On October 23, 2000, the bankruptcy court denied the motion for stay. Mitán filed a timely appeal in the district court. Mitán also filed with the district court an emergency motion requesting a stay of the sale order. On October 24, 2000, an order was entered by the district court granting an expedited hearing on Mitan’s motion to stay the sale order. The hearing was scheduled for October 25, 2000. Upon conclusion of the hearing, the district court denied Mitan’s motions after specifically finding that the bankruptcy court did not abuse its discretion in entering the sale order. Reconsideration was denied on November 7, 2000. Following entry of the November 7, 2000 order, Mitán took no further steps to prosecute the appeal. Mitán allowed his appeal to languish for over a year. Finally, on December 20, 2001, a conference call was conducted by the district court with the parties’ counsel. During the conference, the district court addressed the status of the appeal. The district court indicated its intent to enter a written order closing the appeal for lack of prosecution. No objections were made by Mitan’s counsel of record orally or in writing. Accordingly, on December 20, 2001, the district court entered an order closing the appeal because Mitán failed to file an appellate brief and for lack of prosecution. This timely appeal followed. Federal Rule of Bankruptcy Procedure 8001(a) grants the district court authority to dismiss appeals for non-prosecution. Cf. Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988) (in the absence of notice that dismissal is contemplated under Fed.R.Civ.P. 41(b), the district court should impose penalty short of dismissal unless derelict party has engaged in “bad faith or contumacious conduct”). The late filing of a required document does not justify the dismissal of the appeal absent a showing of bad faith, negligence, or indifference. Third Nat’l Bank v. Winner Corp. (In re Winner Corp.), 632 F.2d 658, 660-61 (6th Cir.1980) (late filing of designation of record). See also Brake v. Tavormina (In re Beverly Mfg. Corp.), 778 F.2d 666, 667 (11th Cir.1985) (under Bankruptcy Rule 8009(a)(1), requiring timely filing of briefs after entry of appeal on district court docket, is merely a non-jurisdietional defect that does not require dismissal unless bad faith, negligence or indifference is shown; following In re Winner Corp.). A district court’s dismissal for non-compliance with non-jurisdictional bankruptcy rules is reviewed for an abuse of discretion. Fitzsimmons v. Nolden (In re Fitzsimmons), 920 F.2d 1468, 1471 (9th Cir.1990). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995). A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law, or uses an erroneous legal standard. Id. at 615. Upon review, we conclude that the district court did not abuse its discretion when it dismissed Mitan’s appeal for non-*912prosecution. The timely filing of briefs is governed by Bankruptcy Rule 8009, which establishes, in the absence of an overriding time limitation, a fifteen day period for the filing of a brief after the appeal has been entered. The rule provides: 8009(a) Briefs. Unless the district court or the bankruptcy appellate panel by local rule or by order excuses the filing of briefs or specifies different time limits: (1) The appellant shall serve and file his brief within fifteen days after entry of the appeal on the docket pursuant to Rule 8007. Federal Rule of Bankruptcy Procedure 8009(a). Rule 8007(b) establishes the procedure for docketing of an appeal in the district court: When the record is complete for purposes of appeal, the clerk of the bankruptcy court shall transmit it forthwith to the clerk of the district court or the clerk of the bankruptcy appellate panel.... On receipt of the transmission the clerk of the district court or the clerk of the bankruptcy appellate panel shall enter the appeal in the docket and give notice promptly to all parties to the judgment, order, or decree appealed from of the date on which the appeal was docketed. Federal Rule of Bankruptcy Procedure 8007(b). The district court docketing date for this appeal is October 23, 2000. Notice of the appeal was mailed to all counsel of record pursuant to Bankruptcy Rule 8007(b) on October 24, 2000, but Mitán never filed a brief. Indeed, more than a year lapsed until the district court contacted Mitan’s counsel on December 20, 2001, to discuss the status of the appeal. At that time, the district court indicated that it considered the appeal closed based upon its prior rulings. Mitan’s counsel made no request for further briefing or oral argument. This led to the order closing the appeal for lack of prosecution as the record reflected that Mitán had abandoned his interest in timely pursuing his appeal. Mitan’s complete failure to file a brief shows at least negligence, if not complete indifference, on his part. Therefore, the district court did not abuse its discretion by dismissing the appeal for lack of prosecution. Accordingly, the district court’s order is affirmed.

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ORDER Virginia Brown Prather appeals pro se a district court judgment dismissing her miscellaneous action claiming $26,000 in United States currency construed as being filed pursuant to Fed.R.Civ.P. 60(b). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel -unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). On August 12, 2001, Prather filed a claim to property in a concluded forfeiture proceeding. The property, $26,000, was seized from her on or around November 30, 1985, by members of a federal airport task force. The currency was forfeited in 1986. The district court construed Prather’s action as one seeking relief from judgment pursuant to Fed.R.Civ.P. 60(b) and dismissed Prather’s claim as legally deficient as it was untimely filed, denied Prather permission to proceed in forma pauperis on appeal, and certified that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Prather moved the court pursuant to Fed. R.App. P. 24(a)(5) to grant her permission to proceed in forma pauperis on appeal. The court denied Prather pauper status because an appeal would be frivolous. See Callihan v. Schneider, 178 F.3d 800, 804 (6th Cir.1999). Prather paid the filing fee, and on appeal reasserts her challenge to the validity of the 1986 forfeiture action. She claims that she lacked notice of the 1986 forfeiture proceeding because notice was given only through publication, and she argues that personal service was required. This court reviews the district court’s denial of a Fed.R.Civ.P. 60(b) motion for an abuse of discretion. Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir.1998); Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir.1998). A district court abuses its discretion when it relies on clearly erroneous findings of fact, uses an incorrect legal standard, or applies the law incorrectly. Bovee v. Coopers & Lybrand C.P.A, 272 F.3d 356, 361 (6th Cir.2001). An abuse of discretion has been defined as a “ ‘definite and firm conviction that the trial court committed a clear error of judgment.’ ” Byers, 151 F.3d at 578-79 (quoting Logan v. Dayton Hudson Corp., 865 *914F.2d 789, 790 (6th Cir.1989)). An appeal from an order denying a Fed.R.CivP. 60(b) motion does not bring up for review the underlying judgment dismissing the complaint. Browder v. Dir., Dep’t of Corrs., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Hood v. Hood, 59 F.3d 40, 42 (6th Cir.1995). Rather, this court’s inquiry is limited to “whether one of the specified circumstances exists in which [the plaintiff] is entitled to reopen the merits of his underlying claims.” Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir.1998). Upon review, we conclude that the district court did not abuse its discretion when it denied Prather’s motion, which is construed as filed pursuant to Fed. R.Civ.P. 60(b). The party seeking to invoke the Rule bears the burden of establishing that its prerequisites are satisfied. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir.2001). Prather failed to demonstrate the existence of any of the grounds for relief specified in Fed.R.CivP. 60(b)(l)-(6). A Rule 60(b) motion must be made within a reasonable time. The motion shall be made within a reasonable time, and for reasons 60(b)(1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. Prather waited over fifteen years after the currency was forfeited before filing her Rule 60(b) motion. Thus, any attempt to obtain relief from judgment pursuant to reason one, two, and three of Rule 60(b) is untimely. The residual clause is reason six and it may afford relief only in exceptional circumstances which are not otherwise addressed by the first five reasons of the rule. Lewis v. Alexander, 987 F.2d 392, 395 (6th Cir.1993). Reason six is properly invoked in unusual and extreme situations where principles of equity mandate relief. Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.1990). There are no unusual or extreme circumstances in this case. The record reveals that Prather has initiated two previous actions (in 1990 and 1991) in which she sought to pursue her present claim for the currency. She failed in both instances and did not appeal. Thus, the district court properly dismissed Prather’s motion. Accordingly, the district court’s judgment is hereby affirmed pursuant to Rule 34(j)(2)(C), Rules of the Sixth Circuit, for the reasons set forth in the district court’s order of December 14, 2001.

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COHN, District Judge. This is a criminal case. Defendant-Appellant Steven Benton (Benton) appeals from his conviction under 21 U.S.C. § 841(a)(1), possession with intent to distribute a schedule II controlled substance (cocaine base more than 5 grams). Benton argues that there was insufficient evidence to sustain the conviction, that the government encouraged witness testimony that it knew to be false, and that the government failed to reveal a deal it made with a witness. The government argues that the evidence was sufficient to sustain the conviction, that it did not encourage false testimony, and that it did not have a deal with the witness in question. For the reasons that follow, the judgment of the district court will be affirmed. I. Factual Background and Procedural History Benton went to the trader home of his long-time friend Johnny Finch (Finch) on the evening of September 17, 2000. The next day Benton called Shannon Robinson (Robinson), with whom he had previously had a relationship, and asked her to meet him at Finch’s trailer because he was trying to get back together with her. She went to the trailer around noon. Robinson also had an on-again, off-again relationship with Tyrone Sidnor, the father of her four children. Sidnor went to the trader that afternoon and asked Robinson to go home with him, but she refused and told him she was going to get back together with Benton. Probation Officer Poindexter (Poindexter) was overseeing Robinson at the time because she was on probation for trafficking cocaine. Robinson had used cocaine for over ten years and had twice been convicted of trafficking cocaine. After Robinson refused to leave with him, Sidnor called Poindexter and told him that Robinson was at Finch’s trader smoking crack cocaine. Poindexter went to Finch’s trader with Russellvdle Police Department Officer Ann Stovad (Stovall)1 and Logan County Deputy Sheriff Jimmy Phelps (Phelps) at approximately 10:00 pm on September 18, 2000 and knocked on the door. No one answered at first. Poindexter testified he saw Robinson and Benton sit down on the couch and saw Benton shove something between the couch cushion and the arm rest. He testified he saw this through a four to five inch gap between the curtains in the lower corner of the door. Benton testified that the window was “fuzzed up” and therefore opaque.2 The two other officers testified they saw Benton through a window next to the door; Phelps testified he saw Benton sitting on one end of the couch making a motion like he was stuffing something beside the cushion or trying to hide something there, and Stovall testified she saw Benton “fidgeting to the side of the couch.” One of the officers knocked on the door of the trailer. After a delay of approximately two minutes, Finch opened the door. After receiving Finch’s permission, the officers entered. Both Robinson and Benton were sitting on the couch when the officers entered. They patted down Rob*917inson and Benton but found nothing on either one of them. There were no pipes or other drug paraphernalia found in the trailer. Poindexter checked the couch where Robinson had been sitting and found nothing. Poindexter also checked the cushion of the couch where he said he had seen Benton stuffing something into the couch; he found a small bag of cocaine there. Robinson said the cocaine belonged to Benton. Stovall asked Benton if he had any money on him. He told her that he did not, but when she further searched him, she found $636 cash. There were six $100.00 bills in his wallet, and in his pocket he had one $20.00 bill, one $5.00 bill, and eleven $1.00 bills. Although it was past Robinson’s probationary curfew and she was seen in proximity to cocaine, she was allowed to go home without any questioning. Benton was arrested. Benton was indicted on one count, 21 U.S.C. § 841(a)(1). Benton filed a motion to suppress, which was denied after a hearing. After a trial lasting two days, the jury reached a verdict of guilty. The district court sentenced Benton to sixty-three months imprisonment and four years supervised release. Robinson testified at the trial. She admitted that her large amount of cocaine usage over the previous ten years could affect her memory. She also admitted that she has failed at least one drug test since September 18, 2000,3 has twice been convicted of drug trafficking, and had an outstanding warrant for stolen checks at the time of Benton’s arrest. She testified she saw Benton selling cocaine to several people during the day in question. Benton also testified at trial. He said the drugs did not belong to him and he did not know they were in the couch. He said the officers told him that the reason he was being arrested was that he was the closest to the drugs. II. Discussion The district court exercised jurisdiction under 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291. A. Sufficiency of the Evidence “In order to appeal a conviction based on sufficiency of the evidence, a defendant must move for judgment of acquittal during the trial or within seven days after the jury is discharged pursuant to Fed.R.Crim.P. 29.” United States v. Horry, 49 F.3d 1178, 1179 (6th Cir.1995). The usual standard of review applied when insufficiency of the evidence is raised is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. However, when the defendant moves for judgment of acquittal at the close of the government’s case-in-chief, and defense evidence is thereafter presented but the defendant fails to renew the motion at the close of all the evidence, he waives objection to the denial of his earlier *918motion, absent a showing of a manifest miscarriage of justice. United States v. Price, 134 F.3d 340, 349-50 (6th Cir.1998) (citations omitted); see also United States v. Morrow, 977 F.2d 222, 230 (6th Cir.1992). Here Benton moved for acquittal after the government’s case in chief but failed to renew the motion at the close of his defense. He therefore may appeal based on sufficiency of the evidence but must proceed under the “manifest miscarriage of justice” standard of review. “A miscarriage of justice exists only if the record is devoid of evidence pointing to guilt.” Id. (quotation marks and citations omitted). Benton’s reliance on United States v. Messina, No. 97-1961, 1999 WL 232692, 1999 U.S.App. LEXIS 7826 (6th Cir. April 15, 1999) (unpublished opinion) (holding defendant forfeited right to challenge sufficiency of the evidence), is unavailing because it does not address this situation. In Messina, the defendant did not move for acquittal on the charge in question at any time in the proceedings. Id. To establish a violation of 21 U.S.C. § 841(a)(1), the government must prove “(1) knowing (2) possession of a controlled substance (3) with intent to distribute.” United States v. Christian, 786 F.2d 203, 210 (6th Cir.1986). Benton argues that the government failed to prove the second and third elements. He first argues that the government had insufficient evidence to prove possession because Robinson and Poindexter were not credible witnesses. He argues that Robinson was not credible because she is a cocaine addict, was pressured to testify for the government, and her testimony was inconsistent. He argues that Poindexter was not credible because he “had on numerous occasions, but to no avail, attempted through informants to purchase cocaine from” Benton. J.A. at 104.4 We do not review witness credibility, however, as credibility determinations are reserved to the jury. United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994) (holding that “[i]n cases in which we assess the sufficiency of the evidence, we do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury”). We will not reverse based on the witnesses’ asserted lack of credibility.5 Benton argues second that the government has not shown constructive possession because mere proximity to drugs, presence on the property where drugs are located, or association with a person who controls drugs is insufficient to support a conviction for possession. See, e.g., United States v. Smith, 20 Fed.Appx. 258 (6th Cir.2001) (unpublished opinion) (holding that showing defendant was in same car as drugs and appeared to be stoned was insufficient to establish actual possession or intent to distribute); United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir.1992) (holding that a houseguest’s knowledge of drug’s existence and location is insufficient to establish possession). The government did not need to show constructive possession here, however, as the evidence showed actual possession. Robinson said she saw Benton selling cocaine earlier in the day and identified the cocaine found in the couch as belonging to Benton. The three officer witnesses said they saw Benton stuff something in the couch, and they found the cocaine right where they saw *919him stuffing something. A jury could reasonably infer actual possession from this testimony; the government had no need to show constructive possession. Benton also challenges the third element, intent to distribute. He notes that none of the witnesses testified specifically as to Benton’s intent. The evidence presented was sufficient to establish intent to distribute as well as possession. Viewed in the light most favorable to the government and assuming that the jury found the witnesses credible, a rational trier of fact could have found the intent to distribute beyond a reasonable doubt. See United States v. Price, 134 F.3d 340, 349-50 (6th Cir.1998). There was certainly sufficient evidence to find that there was not a manifest miscarriage of justice. See id. Robinson testified that she saw Benton sell cocaine “several times” to “quite a few other girls that was over there.” J.A. at 131. Approximately 10 grams of cocaine were found in Benton’s immediate vicinity, which Stovall testified was a “large amount” that was more than the amount someone would normally have to smoke personally. Robinson testified that it was worth about $350 to $400. There were no crack pipes or other drug paraphernalia found in the trailer, which the jury could have interpreted to mean that the cocaine was not for personal consumption. Benton argues that even though he had $636 on his person, the denominations of the money (six $100, one $20, one $5 and eleven $1 bills) do not indicate that he was making a number of small sales of cocaine, as Robinson testified. Although the evidence of the denominations of the bills has some tendency to undermine the claim that Benton made numerous small sales of cocaine, the remaining evidence-Robinson’s testimony, the amount of cocaine, the total amount of money, and the lack of paraphernalia-is enough to sustain a conviction. B. False Testimony Benton failed to preserve his complaint of false testimony for review, because he made no motion for a new trial and he never accused the government of using false testimony until his appeal. The standard of review is therefore for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The analysis under 52(b) follows four steps: 1) whether an error occurred, 2) whether the error was plain, 3) whether the plain error affects substantial rights, and 4) whether the plain error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Thomas, 11 F.3d 620, 630 (6th Cir.1994). “Plain errors are limited to those harmful ones that are so rank that they should have been apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or public reputation of the trial.” United States v. Causey, 834 F.2d 1277, 1281 (6th Cir.1987). “The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989). This rule applies to both the solicitation of false testimony and the knowing acquiescence in false testimony. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). “To prevail on a claim that the government presented perjured testimony, [a claimant] must show ‘(1) that the statements were actually false; (2) the statements made were material; and (3)[the] prosecution knew they were false.” ’ United States v. Pierce, 62 F.3d 818, 834 (6th Cir.1995) (quoting United States v. Farley, 2 F.3d *920645, 655 (6th Cir.1993). The burden is on Benton to show that the testimony was false. United States v. Griley, 814 F.2d 967, 971 (6th Cir.1987). Benton argues that Robinson’s testimony was false. As evidence he cites the fact that she was not sent to jail despite being on probation for trafficking cocaine and failing numerous drug tests.6 He also says that Robinson admitted she was influenced by overhearing officers discuss “what happened” in a room next to where she was during the trial, though she only admitted to hearing it, not to being influenced by it. J.A. at 146-48. Benton also says that Robinson changed part of her story the day of trial after talking to Poindexter at lunch.7 Robinson testified that she had not talked to Poindexter at all the day of the trial, but later testimony showed they had spoken briefly that day, albeit not about the case. J.A. at 108-09, 134-35. He also notes Robinson’s testimony that Poindexter told her that “I needed to come up here and tell the truth or if I made him look like a fool, yeah, he was going to put me in jail.” J.A. 150-51. Benton also points to another witness’s testimony that Robinson had told her that if she did not testify about Benton then the government would charge her with the drugs, revoke her probation, and take her children. He also says Robinson’s testimony was self-contradictory in a way that shows she was lying, but his description of the testimony is misleading.8 Benton argues that the government did not revoke Robinson’s probation despite her violations in order to encourage her false testimony. Poindexter, however, said that his department generally does not revoke probation on one failed drug test. Furthermore, even if the jury believed that Robinson received more lenient treatment in exchange for her testimony against Benton, that does not mean that the government was encouraging her to offer false testimony. The evidence cited by Benton (except for the change of story which was not presented to the jury) was presented at trial as impeachment evidence going to Robinson’s credibility. It does not clearly establish that her testimony was false. We have held that “mere inconsistencies in testimony by government witnesses do not establish knowing use of false testimony.” United States v. Scarborough, 43 F.3d 1021, 1026 (6th Cir.1994) (quotation marks and citation omitted). Benton cannot prove that the government made knowing use of false testimony. The jury had available to it essentially the same evidence we now have, so either it found Robinson *921credible despite the impeachment evidence, in which case we will not review its assessment of credibility, or it found that the other evidence was sufficient to sustain a guilty verdict without Robinson’s testimony, in which case the district court’s error in allowing her testimony was harmless because it would not have affected the judgment of the jury. See United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989) . C. Brady Violation Benton argues that the government failed to disclose a deal it made with Robinson in exchange for her testimony. Benton never alleged at trial that the government had a formal agreement with Robinson (though it was implied in Poindexter’s cross examination), he never sought a hearing to determine the existence of any such agreement, and he filed no post-trial motion claiming the existence of such an agreement. Benton failed to preserve this issue for appeal, so the standard of review is plain error. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The due process clause requires the government to disclose favorable evidence to a defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To establish a Brady violation, the defendant must show (1) that the prosecutor suppressed evidence, (2) that such evidence was favorable to the defense, and (3) that the suppressed evidence was material. See Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). A promise not to prosecute a witness falls within the Brady rule, as does a promise of immunity. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (promise not to prosecute); United States v. Boykins, 915 F.2d 1573 (6th Cir.1990) (promise of immunity). The government must disclose even an informal agreement with a witness. United States v. Katsakis, No. 89-80041, 1992 WL 232491, at *5 (6th Cir. Sept.21, 1992) (unpublished). Benton argues that Robinson must have had a deal with the government based on the same evidence he used to argue she testified falsely. Just as the evidence does not show that Robinson’s testimony was false, neither does it show that she had a deal with the government. Benton argues that “[l]ogic and the deduction of any reasonable person would conclude that Shannon Robinson must have been offered a deal,” Reply Brief at 14, but speculation is insufficient to maintain a claim of a Brady violation based on failure to disclose an agreement with a witness. See United States v. Mullins, 22 F.3d 1365, 1373 (6th Cir.1994). III. Conclusion The testimony of the three officer witnesses was sufficient to sustain Benton’s conviction even if the jury did not find Robinson credible. Benton’s evidence concerning Robinson is insufficient to show that she testified falsely or that she had a deal with the government. It does go to her credibility, but he was able to introduce almost all of the evidence at trial, and we will not reconsider the jury’s assessment of Robinson’s credibility. Accordingly, Benton’s conviction is AFFIRMED. . Ann Stovall later changed her name to Ann Stovall Phelps, and the record reflects both names. . Benton says in his brief that "several witnesses’’ indicated this, but the joint appendix includes only his own testimony on this point. J.A. at 168. . Benton argues in his brief that she had failed "numerous” drug tests, while the government replies that it was only one. When asked, "Have you had dirty urine samples while you've been on probation?”, Robinson replied, "Yes, I have.” The prosecutor also asked, "Those, those are strict violations of your probation, aren’t they?”, to which she replied, "Yeah, they are.” J.A. at 136. A reasonable inference from this testimony is that Robinson failed more than one drug test, but it does not provide any precise number. In any event, the number of times she failed a drug test is irrelevant, as the jury was aware that Robinson had failed at least one drug test. . The government correctly notes that the record only indicates one attempted purchase by an informant of drugs from Benton, not "numerous” attempts. . We note that Benton does not challenge the credibility of Stovall and Phelps, yet their testimony also could have contributed to the conviction. . See footnote 3, supra. . Benton says that at the beginning of trial, Robinson was going to say that Benton refused to sell her drugs, but then after talking with Poindexter at lunch, she changed her story and said that she never asked for drugs from Benton. The portion of the record cited actually shows that Robinson changed her story about why Benton did not make a sale to a third person earlier in the day; it says nothing about him selling drugs to her. She was originally going to say that there was an unsuccessful sale because Benton did not trust the buyer, but then she changed her story such that the reason the sale was unsuccessful was because the buyer wanted too small a quantity. In the end, the government chose not to ask Robinson about the unsuccessful sale at all, so the jury did not hear either story. J.A. at 123-24. . Benton says that Robinson both said that Benton was going to sell some of the cocaine to her and that “Appellant did not like her using crack cocaine, that he did not use crack cocaine, and that he would not let her use crack cocaine.” The transcript, however, reveals that Robinson testified that Benton was trying to get her off cocaine and that he wouldn’t let her have it until she had her fits, at which point he started providing her with cocaine every day. J.A. at 139.

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ORDER W. Dale Grooms, and Rosa B. Grooms (the “debtors”), appeal an order of the Bankruptcy Appellate Panel (“BAP”) which affirmed a bankruptcy court order dismissing their Chapter 12 case for having defaulted under their confirmed plan and because more than five years elapsed since confirmation. The debtors have filed a motion to expedite the appeal and a motion for a stay of proceedings in the Adams County Court of Common Pleas. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Because the parties are familiar with the factual and procedural history of this case, we need not recount it here. Suffice it to say that the bankruptcy court confirmed the debtors’ Chapter 12 plan on April 25, 1997. The Chapter 12 Trustee and W/C Millings Co. (“W/C Millings”) filed motions to dismiss the case on the grounds that (1) the debtors had defaulted under the terms of the Chapter 12 plan by *923failing to make all required payments; and (2) more than five years had elapsed without the plan’s being completed. The debtors argued in response that they were exempt from making payments during calendar years 1997, 1998, and 1999 because the county in which they conduct their farming operations was declared a federal disaster area in those years. On June 7, 2002, the bankruptcy court granted both the Trustee’s and W/C Millings’ motions to dismiss, finding that cause existed to dismiss under Bankruptcy Code § 1208(c) because the debtors were in material default under their plan. The court also denied the debtors’ motion for a hardship discharge. The BAP affirmed the bankruptcy court’s decision. An appeal to this court followed. Bankruptcy cases differ from most other federal cases in that the court of appeals does not afford first-instance appellate review. Rather, Congress has provided for intermediate review, conferring on district courts and federal bankruptcy appellate panels the authority to hear appeals from bankruptcy court decisions, but preserving to the parties a right of further review in the courts of appeals. See 28 U.S.C. § 158. Whether such an appeal comes to this court by way of the district court or the BAP, the standard of review is the same: this court focuses on the bankruptcy court’s decision, scrutinizes that court’s findings of fact for clear error, and affords de novo review to its conclusions of law. See Rembert v. AT & T Universal Card Servs., Inc. (In re Rembert), 141 F.3d 277, 280 (6th Cir.1998); Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994). Findings of fact are reviewed under the clearly erroneous standard. See Fed. R. Bankr.P. 8013. A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Tedeschi v. Falvo (In re Falvo), 227 B.R. 662, 663 (B.A.P. 6th Cir.1998) (citations omitted). Conclusions of law are reviewed de novo. “De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468, 469 (B.A.P. 6th Cir.1998). This court reviews the bankruptcy court’s decision to dismiss a debtor’s bankruptcy case for abuse of discretion. See Indus. Ins. Servs. v. Zick (In re Zick), 931 F.2d 1124, 1126 (6th Cir.1991). We may find an abuse of discretion when we have “a definite and clear conviction that the trial court committed a clear error of judgment.” Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir.1996). Upon review, we conclude that the record is clear that the debtors failed to make their plan payments. A failure to make a payment required under the plan is a material default and is cause for dismissal. See 11 U.S.C. § 1208(c)(6); In re Fennig, 174 B.R. 475, 479 (Bankr.N.D.Ohio 1994). See also AMC Mortgage Co. v. Tenn. Dep’t of Revenue (In re AMC Mortgage Co.), 213 F.3d 917, 921 (6th Cir.2000) (cause exists to dismiss a Chapter 11 case for material default when a debtor fails to make required payments under a confirmed plan). The bankruptcy court’s decision to dismiss the case for cause under 11 U.S.C. § 1208(c)(6) was proper. Upon further review, we conclude that the bankruptcy court did not err in denying the debtors’ motion for a hardship discharge under 11 U.S.C. § 1228(b). The debtors did not qualify for such a discharge because the unsecured creditors had not been paid the amount they would have been paid under a Chapter 7 liquidation, which is a prerequisite to receiving *924a discharge under Bankruptcy Code § 1228(b)(2). Finally, we deny the debtors’ motion for a stay because they have not shown a strong or substantial likelihood of success on the merits. See Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). Accordingly, the motion to expedite the appeal is granted, the motion for a stay is denied, and the order of the BAP is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

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ORDER This pro se Michigan prisoner appeals a district court judgment denying his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Seeking a declaratory judgment and monetary damages, Michael B. Runyon sued James R. Dougan, Kent County (Mich.) Sheriff; Joseph Glynn, Kent Coun*925ty Sheriffs Deputy; Ron Gates, Detective at the Kent County Sheriffs Department; Gerald Miedema, Lieutenant at the Kent County Sheriffs Department; Stephen Spanel, Medical Administrator at the Kent County Correctional Facility (KCCF); Correctional Medical Services (CMS); Jon Hess, Captain and Jail Administrator at KCCF; and the Kent County Sheriffs Department. Runyon claimed that: 1) Deputy Glynn used excessive force in arresting him (Runyon also raised a state tort claim of assault and battery against Deputy Glynn); 2) CMS delayed medical attention for a neck injury he claims to have sustained dining his arrest; 3) defendants Gates, Miedema, Dougan, Hess, and the Kent County Sheriffs Department ignored his repeated requests to file a complaint for assault and battery against Deputy Glynn; and 4) defendants Dougan, Hess, and the Kent County Sheriffs Department interfered with his outgoing mail. Runyon framed his claims under the First, Fourth, and Fourteenth Amendments. The magistrate judge recommended granting summary judgment in favor of the defendants. The district court adopted the magistrate judge’s report and recommendation over Runyon’s objections. The district court also denied Runyon leave to file a second amended complaint. Runyon appeals that judgment. In his timely appeal, Runyon reasserts the claims set forth in the district court and seeks to amend his complaint a second time. On appeal, this court reviews a judgment granting summary judgment de novo. Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir.1999). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c). The facts and inferences drawn therefrom are to be viewed in the light most favorable to plaintiff. See Jackson, 168 F.3d at 909. Ultimately, this court must decide whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. See Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Upon review, we conclude that the district court properly granted summary judgment for the defendants for the reasons set forth in the district court’s opinion of July 23, 2002. To the extent that Runyon claims that the district court erred in denying his motion to file a second amended complaint, the claim is meritless. This court reviews a district court’s denial of a motion to amend a complaint for an abuse of discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 783 (6th Cir.2000). A motion to amend a complaint should be denied if the amendment would be futile. Marx v. Centran Carp., 747 F.2d 1536, 1550 (6th Cir.1984). The district court did not abuse its discretion. Runyon’s second amended complaint was futile because it contained nothing to support his claims. See id. at 1550. Accordingly, we hereby affirm the district court’s judgment for the reasons set forth in the court’s opinion of July 23, 2002.

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ORDER Dorothy Mitchell, a Tennessee resident, appeals a district court judgment dismissing her employment discrimination action filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and 2000e-3(a). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a). On February 26, 2002, Mitchell filed a complaint against Per-Se Technologies, Inc. (“Per-Se”) alleging that Per-Se (1) discriminated against her by creating a hostile work environment, and (2) retaliated against her after she complained to management about the alleged discrimination and filed complaints with the Equal Employment Opportunity Commission (the “EEOC”). She also alleged that she was discriminated against on the basis of her race, sex, and religion. On March 28, 2002, the district court determined that it lacked subject matter jurisdiction over Mitchell’s claims of racial and religious discrimination and granted partial summary judgment to Per-Se. On September 10, 2002, summary judgment for Per-Se was granted on the remaining claims. This appeal followed. This court reviews the district court’s award of summary judgment de novo. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 882 (6th Cir.1996). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. If the movant points to a lack of evidence concerning an element of the case, the burden shifts to the nonmoving party to bring forth significant evidence *927which shows that there is a genuine issue of material fact to be resolved at trial. Gaines v. Runyon, 107 F.3d 1171, 1174-75 (6th Cir.1997). “There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for that party.” Id. at 1174. Upon review, we conclude that the district court properly dismissed Mitchell’s race and religious discrimination claims for lack of subject matter jurisdiction. This court reviews de novo a district court’s decision to dismiss for lack of subject matter jurisdiction. Ang v. Procter & Gamble Co., 932 F.2d 540, 544 (6th Cir.1991). “In order for federal courts to have subject matter jurisdiction of Title VII claims, the claimant must first unsuccessfully pursue administrative relief.” Id. at 545 (citing Love v. Pullman Co., 404 U.S. 522, 523, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)). A Title VII plaintiff is limited to the allegations in the EEOC complaint and any charges reasonably expected to grow out of the charge of discrimination. Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir.1992). The allegations in Mitchell’s complaint are not the same as the allegations in her EEOC complaint. Moreover, the scope of the investigation reasonably expected to grow out of Mitchell’s EEOC charge does not include race or religious discrimination claims. Id. The district court properly dismissed Mitchell’s hostile environment claim for the reason stated by that court. The statute of limitations period for Title VII actions after an EEOC complaint is filed is 300 days. See 42 U.S.C. § 2000e-5(e)(l). “In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2075, 153 L.Ed.2d 106 (2002). The last act that Mitchell alleges that could be construed as sexual harassment occurred on December 1, 1999. Thus, the statute of limitations period ran on September 26, 2000. Since Mitchell did not file her charge with the Tennessee Human Rights Commission until November 22, 2000, her hostile environment claim is barred under the statute of limitations period. Finally, the district court properly granted summary judgment in favor of Per-Se with respect to Mitchell’s retaliation claim. In order to establish a prima facie case of retaliation, the plaintiff must prove that: “(1) [s]he engaged in activity protected by Title VII; (2) the exercise of [her] civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Mitchell failed to establish a prima facie case of retaliation, as she failed to establish that a causal connection existed between her participation in protected activity and the termination of her employment. Causation may be inferred from such factors as temporal proximity and differential treatment of similarly situated comparators. Id. More than a year lapsed between Mitchell’s call to Compliance regarding alleged co-worker harassment and Mitchell’s discharge. As a result, Mitchell cannot demonstrate proximity as a factor to determine causation. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that temporal proximity is sufficient to establish causation only when “very close”). *928Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

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07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218168/

OPINION GIBBONS, Circuit Judge. A jury convicted defendant-appellant D’Shawn Dwayne Shinholster of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d). The district court sentenced him to eighty months incarceration. Shinholster appeals his conviction and sentence. For the following reasons, we affirm. I. On February 14, 2001, two masked men robbed the First Merit Bank of Akron, Ohio. One of the men brandished a firearm during the robbery. A bank customer, Kathryn Graf, witnessed the men flee the bank in a car driven by a third man. Graf gave a description of the vehicle and its license plate number to the police, who stopped the vehicle about one-half hour after the robbery. Shinholster was the driver of the vehicle, and Leonard Harris and Blade Sherman were the two passengers. The police found a .38 caliber revolver in Harris’s waistband and two black ski masks, black gloves, and two walkietalkie radios in the vehicle. The robbers had abandoned the stolen money when dye packs exploded in the bags containing the money. A grand jury indicted Shinholster and Harris on March 6, 2001. Both were charged with one count of aiding and abetting each other to commit armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(l)(A)(ii). Sherman, who agreed to plead guilty and testify against the others, was charged separately in a one count information. The district court scheduled a trial for Shinholster and Harris for May 14, 2001. Prior to trial, however, Harris reached a plea agreement with the government and agreed to testify against Shinholster. Shinholster’s trial was continued until June 18, 2001. At Shinholster’s trial, the government called Graf as the first witness. She testified that she saw the robbery, chased the two robbers out of the bank, and wrote down the license plate number of the getaway car, which a third man was driving. Officer Thomas Woodill, one of the police officers who stopped the vehicle identified by Graf, testified that Shinholster was driving and that Harris and Sherman were passengers. Harris testified that the planning for the robbery occurred at Shinhol*930ster’s house, where a fourth man, Billy Shinholster, gave each of the other three men assignments. Billy Shinholster assigned Harris to carry the gun, Sherman to collect the money, and D’Shawn Shin-holster (“Shinholster”) to drive the getaway car. During the bank robbery, Billy Shinholster stood across the street from the bank and directed the others with a walkie-talkie. Billy Shinholster did not ride in the getaway car. Sherman’s testimony regarding the planning and execution of the bank robbery was consistent with Harris’s account. On June 21, 2001, the jury found Shin-holster guilty of count one, armed bank robbery, but not guilty of count two, using and carrying a firearm during and in relation to a crime of violence. After the verdict, the government approached Shin-holster about testifying against Billy Shin-holster. Shinholster signed a proffer agreement and made a proffer statement on July 24, 2001, but the government chose not to use his testimony. Before sentencing, Shinholster moved for a downward departure from the sentencing guidelines based on his substantial assistance to the government. The government opposed this motion, and the district court denied the motion. The district court sentenced Shinholster to eighty months incarceration. II. Shinholster raises five issues on appeal. He claims that (a) his statutory right to a speedy trial was violated, (b) his Fifth Amendment right to remain silent was violated by an FBI agent who during trial testimony referenced Shinholster’s refusal to make a post-arrest statement, (c) the evidence was insufficient to support his conviction, (d) the district court erred by refusing to enforce the government’s obligation to file a motion for a downward departure for substantial assistance, and (e) the district court improperly enhanced his sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C) for possessing or brandishing a firearm. A. Shinholster’s Right to a Speedy Trial Pursuant to 18 U.S.C. § 3161(c)(1), the trial of a criminal defendant shall commence within seventy days from the later of the filing date of the indictment or the date the defendant first appears in court. Shinholster contends that the time started running on the date he was indicted, March 6, 2001. According to Shinholster, because his trial did not commence within seventy days from March 6, 2001, his speedy trial right was violated. Shinholster’s argument fails to account for days that are excluded from the calculation of time within which the trial must commence pursuant to § 3161. Between March 6, 2001, and the date the trial began, June 18, 2001, 103 days elapsed. Because more than thirty-three of these days are excluded under § 3161, Shinholster’s right to a speedy trial was not violated. Although it is the better practice to do so, a district court is generally not required to enter orders documenting time that is excluded under the Speedy Trial Act. We therefore review the record ourselves to determine the amount of time that is excluded. See United States v. Jenkins, 92 F.3d 430, 439 (6th Cir.1996) (rejecting the district court’s determination of excluded time but reviewing the record to find a sufficient amount of excluded time pursuant to its own calculation). Pursuant to § 3161(h)(1)(F), delay resulting from “any pretrial motion” shall be excluded in computing the time within which a criminal trial must commence. We do not distinguish among pretrial mo*931tions because “there is no authority for excluding some pretrial motions on the basis that they do not require a significant amount of thought or attention by the court.” Jenkins, 92 F.Sd at 440 (excluding thirty days based on a pretrial motion to seal a copy of a letter). Moreover, § 3161(h)(1)(F) does not require that the length of the delay resulting from a pretrial motion be reasonable. Henderson v. United States, 476 U.S. 321, 326-27, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). For a pretrial motion that requires a hearing, the entire time from the filing of the motion through the date of the hearing is excluded. United States v. Robertson, 260 F.3d 500, 504 (6th Cir.2001). If the pretrial motion does not require a hearing, then the time from the filing of the motion through the date that the district court receives all the information necessary to decide the motion is excluded. Id. Once the district court has all the information necessary to decide a pretrial motion, including argument heard at any hearing, then, pursuant to § 3161(h)(l)(J), a maximum of thirty days is excluded while the district court has the motion under advisement. Id. On April 25, 2001, Shinholster filed a pretrial motion for review of his detention order. At the district court’s request, the government responded to this motion on May 14, 2001, which is the date that the district court had all the information necessary to decide the motion. The time from April 25 through May 14 (twenty days) is excluded pursuant to § 3161(h)(1)(F). See United States v. Salgado, 250 F.3d 438, 454 n. 2 (6th Cir.2001) (finding that a pretrial motion for revocation of a detention order results in excluded time). The district court denied the motion on June 13, 2001. Pursuant to § 3161(h)(l)(J), the thirty days that this motion was under advisement by the district court are excluded. Based on these two exclusions alone, which total fifty days, it is clear that Shinholster’s speedy trial right was not violated.1 B. Shinholster’s Fifth Amendment Right to Remain Silent FBI agent Alan Grimes investigated the bank robbery at issue in this case. During the government’s direct examination of Grimes at trial, the following exchange occurred: *932Although no objection was made at trial, on appeal Shinholster asserts that his conviction should be reversed on the ground that this exchange violated his Fifth Amendment right to remain silent after his arrest. *931Q. Did you interview any of the suspects down there [at the police station]? A. Yes, I did. Q. Who was that? A. I interviewed Blade Sherman. I attempted to interview D’Shawn Shinholster and Leonard Harris, but they refused to provide an interview. Q. Did you in fact interview Blade Sherman? A. Yes. *932Because no objection was made at trial, we review for plain error. United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994) (citing Fed.R.Crim.P. 52(b)). Under a plain error standard of review, the court makes four distinct inquiries. Id. First, the court considers whether an error occurred in the district court. Id. If an error occurred, the court considers whether the error was “plain.” Id. If a plain error occurred, the court considers whether it “affects substantial rights.” Id. If the plain error affects substantial rights, the court nevertheless affirms unless “the plain error affecting substantial rights seriously affected the fairness, integrity, or public reputation of the proceedings.” Id. The Supreme Court has held that the prosecution cannot “use for impeachment purposes” a criminal defendant’s post-arrest silence. Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (quoting Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). In this case, the prosecution did not attempt to use Shinholster’s post-arrest silence to impeach Shinholster or to imply that Shinholster had a “consciousness of guilt.” United States v. Whitney, 734 F.2d 1129, 1137 (6th Cir.1984) (forbidding a “prosecution’s emphasis on the defendant’s post-arrest silence in an effort to imply consciousness of guilt”) overruled on other grounds, see United States v. Robinson, 887 F.2d 651, 653 n. 1 (6th Cir.1989). After responding to the prosecutor’s proper question about the identity of the person he interviewed, agent Grimes volunteered, without further commentary, that Shinholster refused an interview. Defense counsel did not object, and the prosecutor immediately refocused the witness on the responsive part of his answer. The prosecutor did not solicit this comment and did not make any reference to it during closing argument or otherwise dining the trial. The district court did not commit a plain error with regard to agent Grimes’s single, unsolicited comment, and this comment did not seriously affect the fairness, integrity, or public reputation of the proceedings. Therefore, we cannot reverse Shinholster’s conviction on this ground. C. Sufficiency of the Evidence Shinholster contends that the government presented insufficient evidence to prove beyond a reasonable doubt that he aided and abetted in the commission of armed bank robbery. Shinholster does not dispute that the armed bank robbery occurred; instead, he contends that the government failed to prove that he had any role in it. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the government and will affirm the jury’s verdict unless no rational trier of fact could have found beyond a reasonable doubt that the defendant committed the offense charged. United States v. Morrow, 977 F.2d 222, 230 (6th Cir.1992). The evidence presented at trial against Shinholster was more than sufficient to support his conviction. Graf, who witnessed the armed bank robbers flee, testified that she wrote down the license plate number of the getaway car. Shinholster was driving this car when it was stopped by police about one-half hour after the robbery. Among the items the police found in the car were black ski masks, walkie-talkies, and a firearm. The two passengers in the car, Harris and Sherman, both admitted their involvement in the crime and testified that Shinholster *933participated in the planning and execution of the armed bank robbery. Based on this evidence alone, a rational trier of fact could have found beyond a reasonable doubt that Shinholster aided and abetted in the commission of armed bank robbery. D. Shinholster’s Entitlement to a Downward Departure After Shinholster was convicted, the government approached him about testifying against Billy Shinholster. Shinholster alleges that in return for his agreement to cooperate, the government promised to recommend that his sentence be reduced on the basis of his substantial assistance. While he admits that there is no writing evidencing the government’s promise, Shinholster contends that he and the government entered into a binding oral agreement. Shinholster argues that he fulfilled his obligations under the oral agreement by making a proffer statement and showing the government the route he took in the getaway car after the robbery. The government states that it never promised to recommend that Shinholster’s sentence be reduced on the basis of his substantial assistance. According to the government, the prosecutor offered to hear Shinholster’s proffer and then decide whether the government wanted to offer Shinholster something in return for his testimony against Billy Shinholster. The government’s description of the arrangement it had with Shinholster is corroborated by the written proffer agreement that both parties signed. After hearing Shin-holster’s proffer, the government chose not to use his testimony, and, therefore, the government did not recommend to the district court that Shinholster’s sentence be reduced on the basis of substantial assistance. The district court found as a factual matter that the government had not made an oral promise as alleged by Shinholster. The district court instead found that the government had merely agreed to consider Shinholster’s proffer and then decide whether to offer Shinholster something in exchange for his testimony. Because the district court’s findings of fact are not clearly erroneous, we affirm the district court’s conclusion that the government had no obligation to file a motion for a downward departure based on substantial assistance. United States v. Hayes, 135 F.3d 435, 437 (6th Cir.1998) (reviewing for clear error a district court’s findings of fact in connection with sentencing). E. Shinholster’s Sentence Enhancement Finally, Shinholster challenges the sentencing enhancement he received under U.S.S.G. § 2B3.1(b)(2)(C) for participating in a jointly undertaken criminal activity during which a firearm was foreseeably possessed or brandished. Shinholster contends that because the jury acquitted him of using or carrying a firearm in violation of 18 U.S.C. § 924(c), the district court was precluded from enhancing his sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C). An acquittal under 18 U.S.C. § 924(c) does not preclude a sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(C) because the government’s burden of proof is significantly lighter at sentencing than at trial. United States v. McCall, 85 F.3d 1193, 1198 (6th Cir.1996). For purposes of U.S.S.G. § 2B3.1(b)(2)(C), the district court need only find by a preponderance of the evidence that the defendant participated in a jointly undertaken criminal activity during which a firearm was foreseeably possessed or brandished. Id.; U.S.S.G. § lB1.3(a)(l)(B) (providing that for sentencing purposes a defendant is responsible for all reasonably foreseeable acts of others in furtherance of a jointly undertaken criminal activity). *934Here, the district court relied on Harris’s and Sherman’s testimony that Shin-holster was present when the four men, including Shinholster, agreed and planned to rob the bank using a firearm. The district court’s determination that Shinholster knew when he agreed to participate in the bank robbery that a firearm would be used was not clearly erroneous, and, therefore, we affirm the district court’s decision to enhance his sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C). See United States v. Cowan, 196 F.3d 646, 650 (6th Cir.1999) (reviewing for clear error a district court’s factual findings for purposes of enhancing a sentence pursuant to U.S.S.G. § 2B8.1(b)(2)(C)). III. For all the foregoing reasons, we affirm the judgment of the district court in all respects. . In addition, our review of the record reveals many other days that are excluded. For example, on April 9, 2001, Shinholster filed a pretrial motion requesting additional time to file motions. On April 13, 2001, the district court granted this motion. The time from April 9 through April 13 is excluded. See United States v. Bruce, Nos. 95-6046 to 95-6049, 1996 WL 640468, at *2 (6th Cir. Nov. 5, 1996) (excluding forty-one days for the resolu- . tion of a motion to extend the time for filing pretrial motions). While excluding large amounts of time for pretrial motions such as a motion to review a detention order and a motion for more time to file motions could undermine the purpose of the Speedy Trial Act, Congress was aware of this potential abuse and consciously chose not to address it by statute. Henderson, 476 U.S. at 327-28 (finding that Congress intended that such abuse be precluded by district and circuit court rules relating to speedy dispositions of pretrial motions).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218169/

ORDER This is a direct appeal from a district court judgment denying a petition for a writ of habeas corpus filed on the authority of 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). In 1999, Michigan inmate George Bonser filed a § 2254 petition in which he challenged the constitutionality of his state court conviction for criminal sexual conduct with a sentence as a habitual offender. The matter was referred to a magistrate judge who recommended that the petition should be granted. The district court rejected the recommendation, in response to the objections of the Michigan Attorney General, and denied the petition. The only issue certified for appellate review is whether the district court erred in concluding that Bonser’s 1993 Michigan state court conviction for second-degree criminal sexual misconduct was not obtained in violation of Bonser’s Sixth Amendment right to a speedy trial. This court reviews de novo a district court’s legal conclusions in habeas corpus actions and reviews its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). An examination of the present appeal under these standards supports the judgment on review. Bonser was arrested in May 1991 following allegations that he had improperly touched a seven-year-old daughter of an acquaintance. Bonser appeared at a pretrial hearing on August 28, 1991, and the girl gave a detailed account of Bonser’s actions on the night in question. Bonser was bound over to the circuit court for trial and his case was registered incorrectly as “inactive” by that court’s docketing *935system. No action had been taken when Bonser filed his initial demand for a speedy trial on August 5, 1992. Bonser’s motion did not prompt a response, or any other action, by the Michigan state court. Bonser subsequently moved to dismiss the prosecution on speedy trial grounds on March 10, 1993, over nineteen months after he was bound over. The trial court denied the motion and Bonser proceeded to trial before a jury. The chief witness against Bonser was the complainant, by then twenty-three months older. She took the stand and admitted that she could not remember what had happened on the night in question. The court ordered a brief recess and the complainant again testified that she could not remember any details of Bonser’s alleged improper touching. The court took a lengthier recess, during which the child apparently consulted with the prosecuting attorney. When the complainant took the stand again on direct examination, she was able to testify in great detail as to the events of the night in question. On cross-examination, however, the girl admitted that she had no independent recollection of the events and that most of her testimony was based on her conversation during the recess with the prosecuting attorney. The trial judge nevertheless permitted this testimony to go to the jury. Defense counsel’s closing argument contained a plea to the jury to consider the entire sequence of the victim’s testimony and her recall of the events being “refreshed” only after a lengthy, ex parte communication with the prosecuting attorney. The jury found Bonser guilty as charged in spite of the efforts of defense counsel. Bonser first presented his Sixth Amendment / Speedy Trial claims to the Michigan state courts. The Michigan Court of Appeals considered this claim and concluded, in relevant part, that Bonser could not make an affirmative showing that he was prejudiced by the delay. The court noted that, had the trial occurred in a more timely fashion, the complainant’s memory of the events might not have needed “refreshing,” as evidenced by her testimony at the preliminary hearing. The court also noted that the vigorous cross-examination of the victim brought out the fact that she really had very little independent recollection of Bonser’s actions and defense counsel hammered home this point with the jury during closing. Bonser reasserted his Speedy Trial claims in his § 2254 petition. The magistrate judge to whom the matter was assigned noted that the only point of contention was whether or not the Michigan state courts properly applied federal law in deciding that Bonser’s claims did not exhibit the requisite degree of prejudice. The magistrate judge concluded that they did not and recommended granting the petition. The district court rejected the magistrate judge’s evaluation of the Michigan court’s decision. The district court held that the decision of the Michigan Court of Appeals was objectively reasonable on the record and dismissed the petition. This appeal followed in which the only question presented is whether the district court correctly held that the Michigan Court of Appeals application of federal Sixth Amendment law was objectively reasonable. Upon examination, we will affirm the judgment on appeal for the reasons set forth in the district court’s opinion and order dismissing the petition with prejudice entered on March 27, 2002. Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218170/

ORDER This is an appeal from a district court order denying a motion to withdraw from an agreement to settle a civil action. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a). In 1998, Michigan inmate Stephen Rusieeki filed a civil rights complaint in Michigan state court seeking monetary damages and other relief against several individuals and political entities. The defendants successfully removed the action *937to federal court and eventually entered into an agreement with Rusiecki to settle the case. Rusiecki thereafter moved to withdraw from the agreement and the matter was referred to a magistrate judge. The magistrate judge recommended that the motion to withdraw should be denied. The district court adopted this recommendation, over Rusiecki’s objections, and this appeal followed. The only issue presented for appellate review is whether the district court erred in refusing to permit Rusiecki to withdraw from a previously-accepted settlement agreement. A district court’s ultimate decision to approve a settlement agreement, the issue effectively before this court, is reviewed for an abuse of discretion. Odomes v. Nucare, Inc., 653 F.2d 246, 252 (6th Cir.1981). An abuse of discretion occurs when the reviewing court is firmly convinced that a mistake has been made. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995). An examination of record and law using the foregoing standards shows that the judgment on appeal was not the product of a mistake. Rusiecki was incarcerated from late November 1996 through February 1997 in connection with charges of criminal sexual conduct. Rusiecki was eventually found guilty on his plea to the charge and sentenced to a seven to fifteen year term of incarceration. Rusiecki’s civil complaint is directed to that pre-trial period during which he may have been incarcerated approximately seventy-seven days by Michigan law enforcement agents acting without proper authority. The district court found that all but a few defendants (the “Marquette defendants”) enjoyed qualified immunity with respect to all but five days in question. The parties then entered into settlement negotiations, Rusiecki having obtained counsel for this purpose, before Magistrate Judge Timothy Greeley. Rusiecki and the Marquette defendants agreed to settle the complaint for $2,500 in accordance with Fed.R.Civ.P. 68. The Marquette defendants, acting in conformity with Rule 68, sent an offer of judgment to Rusiecki’s counsel in the amount specified on February 15, 2002. Rusiecki and his counsel executed the acceptance of offer on March 5, 2002. The Marquette defendants immediately sent a draft for $2,500, payable to Rusiecki, to his counsel and submitted the proposed judgment to the district court. The district court approved the settlement and, on March 15, 2002, the court entered the submitted judgment for Rusiecki against the Marquette defendants. On March 27, 2002, Rusiecki filed a formal motion to withdraw from the settlement. Rusiecki’s motion contains details of alleged coercion, or duress, brought to bear upon him by his counsel at an earlier date. Counsel allegedly told Rusiecki that 1) his parole request would be adversely impacted if he did not settle the civil action, 2) his petition for a writ of habeas corpus would also be doomed, 3) counsel would not go to trial with Rusiecki in this matter, and 4) defense counsel would harass Rusiecki’s aged father. The Marquette defendants responded in opposition and the district court assigned the motion to Magistrate Judge Greeley. Magistrate Judge Greeley concluded, from the pleadings and from his participation in the settlement phase, that Rusiecki could not make any legal or factual case for permitting the settlement agreement to be withdrawn. The district court adopted this conclusion, denied the motion and granted the defense motion for satisfaction of judgment. On appeal, Rusiecki takes issue with this latter decision in its entirety and raises, for the first time, the specter of being coerced into the settlement by the actions of Magistrate Judge Greeley. , *938The appeal lacks merit. It is initially noted that Rusiecki attempts to interject claims of coercion at the hands of Magistrate Judge Greeley that were not raised in his motion or objections. This claim, not having been presented in any detall to the district court, will not be considered on appeal. See, e.g., Enertech Elec. v. Mahoning County Comm’rs, 85 F.3d 257, 261 (6th Cir.1996). In addition, public policy favors settling cases without litigation, and settlement agreements should be upheld whenever it is equitable to do so. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.1976). Enforcement of a settlement agreement is appropriate where no substantial dispute exists, as in the present case, regarding the entry into and terms of an agreement. See Kukla v. National Distillers Prods. Co., 483 F.2d 619, 621 (6th Cir.1973). “[0]nly the existence of fraud or mutual mistake can justify reopening an otherwise valid settlement agreement.” Brown v. County of Genesee, 872 F.2d 169, 174 (6th Cir.1989). The fact that Rusiecki may have changed his mind about the settlement is insufficient to justify reopening, id. at 174-75, as is a threat from Rusiecki’s attorney to withdraw representation. See, e.g., Macktal v. Sec’y of Labor, 923 F.2d 1150, 1157-58 (5th Cir.1991). Rusiecki received the benefit of his bargain and has offered absolutely nothing that would qualify as coercion or duress within this context so as to justify finding any abuse of the district court’s discretion in entering the settlement as negotiated. Accordingly, the motion for counsel is denied and the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218171/

ORDER Miomirka Deljevic and Anton Deljevic, natives of the former Yugoslavia, petition through counsel for review of an order of the Board of Immigration Appeals dismissing their appeal from a decision of an Immigration Judge denying their motion to reopen exclusion proceedings. The parties have not requested oral argument, and this panel unanimously agrees that oral argument is not necessary in this case. Fed. R.App. P. 34(a). The Deljevics, a married couple, entered the United States in 1994. They overstayed their visas and were placed in deportation proceedings. They applied for asylum pursuant to 8 U.S.C. § 1158, arguing that they feared persecution if they returned to their homeland because the husband is an ethnic Albanian. The Deljevics left the country, but returned in 1997, when they were placed in exclusion proceedings, and renewed their application for asylum. A hearing on the merits of their application was scheduled for November 26, 1997. The Deljevics applied for advance parole to leave the country and return again, and were granted such status from September 10, 1997, to February 15, 1998. On the date of the hearing, counsel appeared and informed the Immigration Judge (IJ) that a friend of the Deljevics had called him and informed him that they had left the country on advance parole due to a family emergency. The IJ therefore denied the application for asylum and ordered the Deljevics removed in absentia. Near the end of the advance parole period, the Deljevics returned to this country and moved to reopen the exclusion proceedings, arguing that they had good cause for not attending the hearing because they had been granted advance parole, and asserting that the IJ had promised counsel to reopen the proceedings if they showed that they had been on advance parole. No transcript of the hearing is found in the record to substantiate the latter argument. The IJ denied the motion, concluding that the Deljevics should have moved for a continuance of the hearing, or submitted some evidence of the reason they were required to leave the country for an extended period. *940The Deljevics appealed to the Board of Immigration Appeals (BIA), reasserting their argument that their receipt of advance parole was sufficient to excuse their failure to appear at their hearing. They also moved to remand the proceedings to apply for relief under the Convention Against Torture. The BIA agreed with the IJ that the Deljevics should have moved for a continuance, returned to the country in time to attend their hearing, or submitted some evidence as to why they were required to be absent from the country. The appeal was dismissed and the motion for remand was denied in the same order. Before this court, the Deljevics make two arguments: their departure from the country rendered the existing exclusion proceedings moot, and new proceedings should have been commenced on their return; or alternatively, their absence from the country on advance parole warrants setting aside the in absentia removal order. They advance no claim regarding their motion to remand to apply for relief under the Convention Against Torture. This court reviews the denial of a motion to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). An abuse of discretion will be found where the denial is without rational explanation, is an inexplicable departure from established policy, or rests on an impermissible basis. Balani v. INS, 669 F.2d 1157, 1160-61 (6th Cir. 1982). The Deljevics have not established that the BIA abused its discretion in dismissing their appeal from the denial of their motion to reopen. The first argument, that their departure from the country required new proceedings to be commenced on their return, was never raised before the IJ or the BIA, and therefore need not be reviewed by this court. Zhang v. INS, 274 F.3d 103, 107 (2d Cir.2001); Farhoud v. INS, 122 F.3d 794, 797 (9th Cir.1997). Both arguments rest on a misunderstanding of the purpose of 'advance parole. Advance parole allows an alien to leave this country with the understanding that they may be paroled into the country on their return, provided they meet certain conditions. Balogun v. Attorney General, 304 F.3d 1303, 1308 (11th Cir.2002). If an alien has an application pending before the INS, advance parole allows them to leave and reenter without jeopardizing those proceedings. Barney v. Rogers, 83 F.3d 318, 321 (9th Cir.1996). The Deljevics point to no authority for the proposition that leaving the country on advance parole renders pending proceedings moot or establishes prima facie evidence that they have good cause for not appearing at a scheduled hearing of which they had notice and failed to move for a continuance. The BIA explained that the Deljevics had nearly three months from when they were issued advance parole on September 10 to inform their attorney that they needed a continuance of the November 26 hearing. Alternatively, they could have returned to the country in time for the hearing. A third option would have been to include any information in their motion for reopening which would indicate why their lengthy absence was justified. Because the motion contained no explanation, the BIA did not abuse its discretion in dismissing their appeal from its denial. Accordingly, the petition for review is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218172/

OPINION COLE, Circuit Judge. Petitioner Derwood Stewart petitions this Court for review of a decision of the Secretary of the United States Department of Agriculture (“USDA”) finding that he violated the Horse Protection Act (“HPA”), 15 U.S.C. §§ 1821-31, when he entered his horse in a horse show while “sore.” For the reasons that follow, we DENY Stewart’s petition for review. I. BACKGROUND The HPA was enacted to prohibit the practice of deliberately inflicting pain on a horse to reproduce the high-stepping gait of a champion Tennessee Walking Horse. See Baird v. United States Dep’t of Agric., 39 F.3d 131, 132 n. 1 (6th Cir.1994). Soring occurs when an injury to or sensitization of a horse’s legs, rather than training or breeding, is used to induce the desired gait. Rowland v. United States Dep’t of Agric., 43 F.3d 1112, 1113 (6th Cir.1995). A horse is presumed to be sore if it exhibits abnormal sensitivity in both of its forelimbs or both of its hindlimbs. 15 U.S.C. § 1825(d)(5). Managers of horse shows appoint Designated Qualified Persons (“DQPs”) to inspect horses for compliance with the HPA. 15 U.S.C. § 1823; 9 C.F.R. §§ 11.1, 11.7. The showing, exhibiting, or entering into a show of any sore horse is prohibited by the HPA. 15 U.S.C. § 1824(2). In 1988, Stewart owned seven Tennessee Walking Horses, including one named “JFK’s 0 My Jackie 0” (“Jackie 0”). Stewart’s horses were boarded with and trained by Don Milligan. At that time, Jessie Smith was working for Milligan as a horse trainer. In mid-1998, Stewart moved his horses to his own barn and hired Smith to train them. Stewart instructed Smith not to abuse his horses “in any shape, form, or fashion.” In late October 1998, Jackie 0 was entered in the 30th Annual National Walking Horse Trainers Show (“the Show”) in Shelbyville, Tennessee. On October 28, 1998, as part of the pre-exhibition inspection, Jackie 0 was found to be sore. Stewart was not present at the examination of Jackie 0. When Stewart learned that Jackie 0 had been found to be sore, he fired Smith. The Administrator of the Animal and Plant Health Inspection Service (“APHIS”), an agency of the USDA, filed a complaint charging Stewart, his daughter Rhonda Stewart, and the additional respondents (together, the “family busi*943ness”), with violating the HPA. Following an administrative hearing, the Chief Administrative Law Judge (“ALJ”) dismissed the complaints against Rhonda Stewart and the family business, but determined that Stewart violated the HPA and assessed a $2,000 penalty against him. Both Stewart and the USDA appealed the decision to the Secretary, and a Judicial Officer to whom the Secretary delegated authority over the case generally adopted the ALJ’s decision, but modified the decision to increase the penalty to $2,200 and to disqualify Stewart from showing horses for one year. Stewart now appeals that decision. II. ANALYSIS A. Violation of § 182b(2)(B) Our review of an administrative decision regarding the HPA is limited to a determination of whether proper legal standards were used and whether substantial evidence exists to support the decision. Bobo v. United States Dep’t of Agric., 52 F.Sd 1406, 1410 (6th Cir.1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, means more than a scintilla of evidence but less than a preponderance, and must be based on the record taken as a whole. Id. Section 5(2)(A) of the HPA prohibits any person from showing or exhibiting, in any horse show or exhibition, any horse which is sore. See 15 U.S.C. § 1824(2)(A). Section 5(2)(B) prohibits any person from entering for the purpose of showing or exhibiting, in any horse show or exhibition, any horse which is sore. See- 15 U.S.C. § 1824(2)(B). Section 5(2)(C) prohibits any person from selling, auctioning, or offering for sale, in any horse sale or auction, any horse which is sore. See 15 U.S.C. § 1824(2)(C). Section 5(2)(D) prohibits any horse owner from allowing another person to do one of the acts prohibited in sections 5(2)(A), 5(2)(B), and 5(2)(C). See 15 U.S.C. § 1824(2)(D). The amended complaint filed by the USDA alleged that Stewart violated section 5(2)(B) by entering a sore horse, and that Rhonda Stewart and the family business violated 5(2)(D) by allowing the entry of a sore horse. The ALJ found that Stewart violated section 5(2)(B), and dismissed the complaints against Rhonda Stewart and the family business. Stewart argues that he is not liable under section 5(2)(B) because Jackie O was entered into the show by Smith, and Stewart therefore did not enter a sore horse. Stewart contends that, for purposes of the HPA, “entry” has been held to encompass all requirements, including inspection and time necessary to complete these requirements. In support of this proposition, Stewart cites Elliott v. Administrator, Animal and Plant Health Inspection Service, 990 F.2d 140, 145 (8th Cir.1993). As the Judicial Officer noted, however, nothing in Elliott requires that all steps or any particular step in the process of entry must be personally completed by the owner of the horse, rather than by the trainer, in order to conclude that the owner, entered the horse. Indeed, requiring an individual to have personally performed every step of the entry process in order to qualify as having entered the horse for HPA purposes would result in the untenable holding that if two individuals divide the entry responsibilities, both are able to escape liability under section 5(2)(B). In the present case, the Judicial Officer found, and the evidence in the record demonstrated, that Stewart decided to exhibit Jackie O at the Show, paid the entry fee to enter Jackie O, and provided the means to transport Jackie O there. Thus, substantial evidence existed to sup*944port the claim that Stewart entered Jackie 0 in the Show. Additionally, Stewart does not contest the finding that Jackie 0 was sore. Accordingly, we do not find error in the Judicial Officer’s determination that Stewart entered Jackie 0 in the Show while sore. Stewart also argues that this Court’s decision in Baird requires a finding that he has no liability due to the fact that he was unaware that the horse was sore. Such a finding, Stewart contends, would result in a strict liability standard, which this Court held in Baird should not be imposed. The alleged violation in Baird, however, was of section 5(2)(D), where the owner allowed his horse to be entered in a show and was unaware that the horse was sore, but did not himself enter the horse. See Baird, 39 F.3d at 132. Here, the Judicial Officer found Stewart liable, not for allowing the entry of Jackie 0, but for actually entering Jackie 0, and the Judicial Officer was therefore correct in finding Baird to be inapposite. B. Timeliness of USDA’s Appeal to the Secretary Stewart also argues that the Judicial Officer erred in failing to dismiss the USDA’s appeal as untimely. The administrative regulations governing these proceedings state that a party may file an appeal of the ALJ’s decision within thirty days after receiving service of the decision. 7 C.F.R. § 1.145(a). The ALJ’s decision was filed with the hearing clerk on May 31, 2001. On June 28, 2001, the USDA requested an extension of time for filing an appeal. The Judicial Officer granted this request, extending the time for filing until July 20, 2001. The USDA again requested an extension of time for filing an appeal on July 20, 2001, by leaving a voicemail at the Office of the Judicial Officer before 4:30 p.m., the time at which the hearing clerk’s office closes. The request for an extension of time was granted on July 23, 2001, extending the time in which the appeal could be filed until July 23, 2001. The USDA’s appeal was then filed on this date. We review a federal agency’s interpretation of an administrative regulation for an abuse of discretion. See Oakland County Bd. of Comm’rs v. United States Dep’t of Labor, 853 F.2d 439, 442 (6th Cir.1988). In this case, the find that the Judicial Officer did not abuse his discretion in granting the extensions of time to the USDA, or in finding that the appeal by the USDA was timely filed. C. One-Year Period of Disqualification Lastly, Stewart contends that there was not substantial evidence to support the Judicial Officer’s decision to impose a one-year disqualification period.1 “Determination of a sanction to be applied by an administrative agency, if within the bounds of its lawful authority, is subject to very limited judicial review.” Woodard v. United States, 725 F.2d 1072, 1077 (6th Cir.1984). This Court must only determine whether the Judicial Officer’s decision was “unwarranted in law” or “without justification in fact.” Butz v. Glover Livestock Comm’n Co., Inc., 411 U.S. 182, 186, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973). The period of disqualification imposed is authorized by 15 U.S.C. § 1825(c) and warranted by Stewart’s violation of 15 U.S.C. § 1824(2)(B). Accordingly, the decision to *945impose the one-year disqualification period was proper. III. CONCLUSION For the foregoing reasons, we DENY Stewart’s petition for review. . The Judicial Officer not only imposed a one-year period of disqualification which had not been imposed by the ALJ, but also increased the fine from $2,000 to $2,200, pursuant to the Federal Civil Penalties Inflation Adjustment Act. 28 U.S.C. § 2461. While Stewart appeals the decision to impose the one-year disqualification, he does not appeal the increase in the monetary penalty.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218175/

*960I. PER CURIAM. This is a criminal appeal from a consolidated jury trial.1 Douglas Liddell, Ruby Liddell (a.k.a. Rudy Liddell). Clarence Thompson, and Eddie Isom (collectively the “Defendants”) were indicted on one count of conspiracy to distribute controlled substances and several other drug and gun violations. All four were found guilty of the conspiracy count with special verdicts indicating the drug and quantity ranges for each Defendant. In addition, three of the four Defendants were found guilty of one or more additional counts. The Defendants now appeal their convictions along with the district court’s application of the United States Sentencing Guidelines. We affirm the district corut in all respects. II. Rudy Liddell and Derrick Peterson began selling drugs in Saginaw, Michigan in 1990. Peterson moved to Detroit in 1993 and began buying larger quantities of cocaine to sell in Saginaw. Liddell made frequent trips to help deliver this cocaine. Eventually, the distribution business grew and diversified, involving multiple people in the sale of heroin, cocaine base, marijuana, and powder cocaine. The conspiracy was eventually apprehended after investigators intercepted calls between a paid informant, Rudy Lid-dell, and Liddell’s supplier. The investigators attempted a controlled sale of forty-seven kilograms of cocaine between the informant and Liddell. The sale fell through when the agents refused to give Liddell a sample of their cocaine. In the meantime, officers also made controlled purchases with Isom, Thompson, and multiple other co-defendants.2 Officers executed search warrants at six different residences in December 1998. Police seized drugs, scales, paraphernalia, and loaded firearms. Defendant Thompson also reportedly made several admissions to investigators during one of these searches. The Defendants were tried and convicted in March 2001. They now appeal with separate assertions of error. III. A. Apprendi v. New Jersey Thompson and Douglas Liddell allege that their sentences violated their due process rights because the district court sentenced them using drug quantities which were not specifically found by their jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In each Defendant’s case, the jury issued a special verdict form which specified the quantities of drugs for which it found each Defendant responsible. The Apprendi arguments made by these Defendants have no merit. Due process is only violated when a sentence is imposed which is beyond the allowed statutory maximum for the convicted crime. Apprendi 530 U.S. at 494-95, 120 S.Ct. 2348. The statutory maximum for each of these Defendants was twenty years imprisonment. See 21 U.S.C. § 841(b)(1)(C). Thompson received a sentence of sixteen years, three months, and Liddell received a sentence of ten years, one month. As *961such, the district court did not violate the Defendants’ due process rights. B. Standard of Proof Douglas Liddell argues that the district court erred in applying a preponderance of the evidence standard at sentencing. He urges that because the court’s factual determinations exposed him to a sentence twice as long as the sentence “authorized” by the jury, the court should have applied a higher standard of proof.3 Under McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). sentencing factors need to be established by a preponderance of the evidence. The adoption of federal sentencing guidelines does not change this approach. United States v. Zajac, 62 F.3d 145, 148 (6th Cir.1995). Liddell points to no mandatory legal authority for his argument.4 As such, McMillan is controlling and must be followed. McMillan requires that evidence used for sentencing be found only by a preponderance of the evidence.' This is the standard the district court used. Accordingly, we affirm. C. Drug Quantity Douglas Liddell’s last assertion of error is that there was not enough evidence under the preponderance of the evidence standard to assess him with 977 kilograms of marijuana equivalent. He urges that the district court committed clear error in relying only on unreliable witness testimony to satisfy the burden of proof. The district court may rely on any competent evidence in the record. Physical evidence is not required. United States v. Pruitt, 156 F.3d 638, 647 (6th Cir.1998). Furthermore, we must defer to the district court’s determinations unless there is no foundation for them. United States v. Owusu, 199 F.3d 329, 339 (6th Cir.2000) (citing Pruitt, 156 F.3d at 647). The district court in this case specifically found the witnesses in question credible. The fact that such witnesses were uncorroborated drug users who testified pursuant to plea agreements does not automatically make their testimony not credible. There is no additional evidence before this court that the findings of the district court as to these witnesses’ credibility were clearly erroneous. Accordingly, we affirm the district court’s findings. *962Douglas Liddell also alleges that he cannot be held responsible for an attempted transfer of heroin between Defendant Rudy Liddell and one Martin Buchanan. Again, this argument is no more than a challenge to the district court’s credibility findings. As such, we review for clear error. United States v. Hoskins, 173 F.3d 351, 354 (6th Cir.1999). We find no clear error in the district court’s finding. The district court found that this transaction was a part of the conspiracy at the time Douglas Liddell was involved and that the transaction was reasonably foreseeable.5 This is sufficient to attribute the transaction to Liddell under the conspiracy charge. We thus affirm the judgment of the district court.6 D. The Jury 1. Excusáis for Cause Defendant Eddie Isom alleges that two potential jurors should have been excused for cause. Under United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), no rule-based or constitutional right is violated if a defendant exercised a peremptory challenge against a potential juror he was unable to dismiss for cause, so long as no biased juror remained on the panel. The Defendants used their peremptory challenges to remove the potential jurors in question. As such, Martinez-Salazar is dispositive and this court does not need to further review the district court’s ruling on dismissal for cause. 2. Batson Challenges Defendants Eddie Isom and Rudy Liddell allege that the Government violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) when it dismissed two potential jurors who were African-American.7 The Defendants made a prima facie case under Batson (the Government does not deny this). However, the Government met its burden by offering race-neutral reasons for each potential juror’s dismissal.8 The Government is not required to articulate a reason which would be adequate enough for a challenge *963for cause. Id. at 97, 106 S.Ct. 1712. The reason must simply be race-neutral. Accordingly, the findings of the district court on the Defendants’ Batson challenges are affirmed. E. Expert Testimony At trial, the Government admitted into evidence an English translation of the transcripts of several Spanish language phone calls. Officer Jesse Diaz, an investigator on the case, testified as an expert as to the accuracy of the translations. Officer Diaz is a native Spanish speaker. Defendants Eddie Isom and Rudy Lid-dell allege that it was an abuse of the district court’s discretion to admit these transcripts. They argue that a jury could easily be confused by the dual role of both fact and expert witness presented by Officer Diaz. We have recognized that this situation involves significant risk but have not adopted a per se rule against allowing officers to testify as both a fact and expert witness. See United States v. Tocco, 200 F.3d 401, 418 (6th Cir.2000); United States v. Thomas, 74 F.3d 676, 680-81 (6th Cir.1996). We decline to do so today. This court has found that there can be no abuse of discretion in this type of situation when the Defendants involved did not point to any specific inaccuracy in the translation or offer any alternative translation. United States v. Garcia, 20 F.3d 670, 673 (6th Cir.1994). The Defendants at bar never offered an alternate version of the transcripts or pointed out any inaccuracy in their translation. Accordingly, we find the district court did not abuse its discretion in admitting the translations or the expert testimony of Officer Diaz. F. The Testimony of Derrick Peterson Defendants Eddie Isom and Rudy Liddell contest the district court’s decision not to declare a mistrial or strike the testimony of Government witness Derrick Peterson. The Defendants argue that the Government’s acts in putting Peterson on the stand and not correcting his testimony constituted the presentation of known false evidence and required a mistrial under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The fact that a witness once perjured himself does not mean he will perjure again. Peterson was extensively impeached with his grand jury testimony and his prior statements to police. Although he did not outright admit his perjury at that time, he did admit to holding back during prior testimony. Defense counsel was notified of the Government’s knowledge of Peterson’s false testimony prior to trial. The Government, therefore, met its obligations under Brady. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There is no evidence that Peterson perjured himself during his trial testimony. Furthermore, he was fully cross-examined and impeached. As such, we can find no evidence of an abuse of discretion by the district court. See United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990) (noting that a district court’s denial of a motion for mistrial is reviewed for abuse of discretion). G. Thompson’s Heroin Conviction Defendant Thompson argues there was insufficient evidence to support a verdict that he had possessed heroin with an intent to distribute. Thompson admitted that he dealt “mostly” in cocaine and marijuana but had accompanied other conspirators on two occasions to pick up or deliver heroin. This statement constitutes an admission that part of Thompson’s business was in heroin, or at the very least, that he was aware of the other conspirators’ involvement in heroin. Such an admission is *964sufficient in this circumstance to support the jury’s finding that Thompson’s role in the conspiracy involved heroin. As such, Thompson’s conviction is affirmed. H. Thompson’s Minor Role Adjustment Thompson’s last assertion of error is that the district court should have granted him an adjustment under the United States Sentencing Guidelines for a minor role in the conspiracy. We review a district court’s findings of fact under the Sentencing Guidelines for clear error and its conclusions of law de novo. United States v. Rutana, 18 F.3d 363, 365 (6th Cir.1994). A defendant is entitled to an adjustment for his minor role in the offense if he is less culpable than most of the other participants, but his role could not be described as minimal. U.S.S.G. § 3B1.2, cmt. n. 3. Thompson does not meet this standard. While his conduct may have been less culpable than the other Defendants, this does not say much about his overall culpability. Under our precedent, the defendant has the burden of proving that he was “substantially less culpable than the average participant.” Owusu, 199 F.3d at 337 (emphasis added) (citation omitted). The district court was not bound by the jury’s findings on this matter. Notably, this jury did not make specific findings as to many other members of the conspiracy who were not before it. Further, while this jury did not find either Douglas Liddell or Eddie Isom responsible for any powder or crack cocaine, it found Thompson responsible for quantities of all four controlled substances. This distinction alone demonstrates that it is not obvious that Thompson was “substantially less culpable” than the other conspirators, and thus we cannot find clear error on the part of the district court in denying him a minor role adjustment. As such, the sentencing of the district court is affirmed. I. The Admission of Grand Jury Testimony Finally, Rudy Liddell argues it was reversible error for the district court to admit the grand jury testimony of Fred Gilmer into evidence. The court admitted the testimony as a non-hearsay prior consistent statement under Fed.R.Evid. 801(d)(1). This decision is reviewed for plain error. United States v. Toney, 161 F.3d 404, 408 (6th Cir.1998). Gilmer testified at trial that he obtained heroin by contacting Rudy Liddell and telling him he was “sick.” Following these phone calls, a young man would arrive with heroin for sale. On the stand, Gilmer testified that he was unaware of the connection between Liddell and the heroin. In response, the Government presented Gilmer’s conflicting grand jury testimony where he specifically stated he had bought heroin from Liddell on several occasions. According to the trial transcript, the court admitted this evidence as a prior consistent statement. Liddell argues that this testimony is actually a prior inconsistent statement because it conflicts directly with Gilmer’s in-court statements. As such, he asserts it should not have been admitted as a non-hearsay consistent statement. Since Gilmer was one of few witnesses who testified to Liddell’s involvement with heroin, Lid-dell asserts that his testimony was crucial on this point and it was more than harmless error for the court to admit this evidence. We hold it was not plain error for the district court to admit the statement. The district court apparently recognized the testimony as a prior inconsistent statement and admitted the evidence despite an incomplete explanation for why such testimony was not hearsay. Additionally, in making an argument for admission of the *965testimony, the prosecutor specifically cited Rule 801(d)(1)(A), which deals with inconsistent statements, and not (B), which deals with consistent statements. The evidence was admissible as a prior inconsistent statement. As such, it was not hearsay. In this case, the semantics involved make any error by the district court harmless. Accordingly, we affirm. IV. We have reviewed all of the Defendants’ assertions of error in detail. We find no error on the part of the district court. The judgment of the district court is thereby AFFIRMED. . United States District Court for the Eastern District of Michigan, the Honorable Victoria A. Roberts, United States District Judge, and the Honorable David M. Lawson, United States District Judge, presiding. . A total of twenty-two people were indicted for their involvement in the conspiracy. This jury was only asked to convict six of these Defendants. The others either pled guilty or were tried separately. . The jury found Liddell responsible for less than 100 grams of heroin, which would have put him in a sentencing range of 63-78 months. At sentencing, the court found him responsible for 977 kilograms of marijuana equivalent, which placed him in a sentencing range of 121-151 months. . Liddell argues, however, that McMillan also stands for the proposition that if a sentencing hearing is “a tail which wags the dog of the substantive offense,” then its holding should not be seen to allow an increase in the entire range of penalties which the sentencing judge may utilize. See McMillan, 477 U.S. at 88, 106 S.Ct. 2411. Liddell asserts that this holding should apply not just to cases that exceed the statutory maximum but also to those that shift the original guideline range to a higher range. Liddell cites a Third Circuit case as an example of where a court required a higher standard of proof when a defendant’s sentence was significantly higher than the sentence originally authorized by the jury. See United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990). In Kikumura, the defendant was assessed an upward departure of 330 months based upon the sentencing factor of promotion of terrorism. The Third Circuit wrote “[where] the magnitude of a contemplated departure is sufficiently great that the sentencing hearing can fairly be characterized as 'a tail which wags the dog of the substantive offense,' ” a district court's factual findings regarding a sentencing enhancement must satisfy a higher standard of proof than mere preponderance of the evidence. Kikumura, 918 F.2d at 1100-01 (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411). . To attribute this specific 100 grams of heroin to Liddell, the district court should have asked whether the transaction was (1) foreseeable to Douglas Liddell, and (2) within the scope or furtherance of the criminal activity he had agreed to undertake. At sentencing the district court found the 100 gram transaction was "foreseeable” but made no finding as to whether it was within the scope or furtherance of the criminal activity that was the subject of the conspiracy. However, assuming this was error, it was harmless error. This is so because the extra 100 grams of heroin attributed to Douglas from the Rudy Liddell/Martin Buchanan transaction raised the amount of marijuana equivalent attributed to Douglas from 777 kilograms to 877 kilograms. This did not alter the sentencing range to which Douglas was exposed because the same range applies to any quantity between 700 kilograms of marijuana equivalent and 1,000 kilograms. . At oral argument, counsel stressed that the district court had mistakenly attributed an additional 100 kilograms of marijuana equivalent to Douglas Liddell. This was a separate finding from the Buchanan transaction. Ultimately, as with the additional 100 kilograms from the Buchanan transaction, any error was harmless since the increase from 877 kilograms to 977 kilograms did not change the sentencing range to which Liddell was exposed. . There were no African-Americans on the jury and there were only three African-Americans total in the venire. . One of the potential jurors was a recent divorce client of the one of the defense attorneys. The other confessed that she had two close friends who had been prosecuted and sentenced some years earlier. These previous cases had been prosecuted by the Assistant United States Attorney assigned to the case at bar.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218176/

FORESTER, District Judge. The Defendant, Melvin L. Franklin, Jr., stands convicted of possessing marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). He now appeals, arguing that the district court erred by (1) failing to give him credit for his pretrial detainment and other pretrial restrictions upon his liberty; (2) denying his motion to dismiss for violations of the Speedy Trial Act; (3) depriving him of due process of law, and (4) converting cash found in his vehicle to a quantity of marijuana for sentencing purposes. For the following reasons, we AFFIRM. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY In January of 1999, Tennessee Alcohol Beverage Commission Officers conducted a lawful search of Franklin’s home and found roughly two pounds of marijuana, several weapons and marijuana residue. The Officers also located roughly fifteen pounds of marijuana in an abandoned railroad bed adjacent to Franklin’s house. When the Officers subsequently arrested Franklin, they discovered $20,620 in cash hidden in the engine compartment of the car. A federal grand jury indicted Franklin for (1) possession of marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); (2) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(l)(A)(i); and (3) forfeiture pursu*967ant to 21 U.S.C. §§ 841 and 853. Franklin made his initial appearance on May 14, 1999. at which time the magistrate judge ordered him to stay at the Salvation Army Halfway House pending trial. On June 23, 1999, Franklin filed a motion for a hearing on reconsideration of his bond, which the magistrate judge denied. On June 29, 1999, Franklin notified the district court of his intent to plead guilty and the district court cancelled the trial date. On July 19, 1999, Franklin filed a motion for a psychiatric examination, which the district court granted ten days later. After Franklin was transferred to the Federal Medical Center in Lexington, Kentucky for purposes of evaluation, the district court adopted the magistrate judge’s report and recommendation and found Franklin incompetent to stand trial. The district court committed Franklin to an institution for observation for a period not to exceed four months. With new counsel, Franklin decided not to plead guilty and filed a motion for a speedy trial. On April 13, 2000, the psychiatric examiners concluded that Franklin was competent to stand trial. Franklin filed a subsequent motion for a speedy trial on May 10, 2000. The parties orally stipulated that Franklin was competent to stand trial on May 31, 2000, and entered this stipulation with the district court on June 10, 2000. On June 14, 2000, the district court referred the issue of Franklin’s competency to the magistrate judge for a report and recommendation. The district court then entered an order rescheduling Franklin’s trial for September 11, 2000. On July 11, 2000, after realizing that September 11, 2000 would be beyond the time allowed for a speedy trial, the government moved for a new trial date. On July 14, 2000, the magistrate judge issued a report and recommendation finding Franklin competent to stand trial. On the same day, the district court granted the government’s motion for a new trial date, setting the trial date for July 19, 2000, only five days later. Prior to the trial, the district court expressed its -willingness to give Franklin a continuance if he desired. Franklin, however, decided to preserve his speedy trial rights and declined to seek the continuance. At trial, the jury found Franklin guilty of possessing marijuana with the intent to distribute and possessing a firearm in furtherance of a drug trafficking crime. The district court subsequently converted the $20,620 in cash to un amount of marijuana for sentencing purposes. After Franklin objected to the pre-sentence report, the district court sentenced him to a ninety-seven month term of imprisonment. Franklin timely filed a notice of appeal. We will now address each of Franklin’s claims in turn. II. FRANKLIN’S PRETRIAL DETAINMENT Factual findings in relation to application of the Sentencing Guidelines are subject to a clearly erroneous standard of review, Buford v. United States, 532 U.S. 59, 64, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), while all legal conclusions are reviewed de novo. United States v. Edwards, 272 F.3d 812, 815 (6th Cir.2001). We review a sentencing court’s decision regarding departure for an abuse of discretion. Koon v. United States, 518 U.S. 81, 91, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Smith, 278 F.3d 605, 609 (6th Cir.2002). Franklin invokes 18 U.S.C. § 3742(a)(2) and argues that the district court incorrectly applied the Sentencing Guidelines when imposing his sentence. In particular, Franklin contends that the district court misunderstood its authority to impose a sentence outside the guideline range when mitigating factors exist which the Sentencing Commission did not adequately consider. *968Under 18 U.S.C. § 3585(b), “a defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.... ” The Supreme Court, in Reno v. Koray, 515 U.S. 50, 56-62, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995), held that a restrictive condition placed on bail-confinement to the premises of a Volunteers of America community treatment center-did not qualify as “official detention.” Accordingly, the Court held that it would be inappropriate to give the defendant credit for time served even though restrictions were placed upon the defendant’s liberty as a condition of his release on bail. Id. In reaching this decision, the Court reasoned that “a defendant suffers ‘detention’ only when committed to the custody of the Attorney General; a defendant admitted to bail on restrictive conditions ... is ‘released.’ ” Id at 57, 115 S.Ct. 2021. (citations omitted) Koray is directly applicable here and Franklin is not entitled to credit for the time he spent in the Salvation Army halfway house. The government does concede that Franklin should receive credit for the time that he spent in the federal prison facility while undergoing the psychiatric evaluation, but that issue is appropriate for the Bureau of Prisons and not this Court. The district court correctly observed that the Bureau of Prisons is responsible for adjusting sentences for time served. Here, Franklin has not pursued his administrative remedies with the Bureau of Prisons, as required under 28 C.F.R. §§ 542.10-542.16(1997), and is barred from raising the issue before this Court. In his final sentencing argument, Franklin contends that the district court erred in construing the departure statute by failing to exercise its discretion. Franklin specifically alleges that the district court was unaware of its authority to depart on the basis of the time that Franklin spent in the halfway house. As this Court said in United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995). “the refusal of a district judge to make a downward departure is not ordinarily appealable.” Although a district court’s erroneous belief that it lacked authority to depart downward is appealable, we presume that a district court is aware of its discretion and we do not require a district court to affirmatively state that it knows of its discretion. United States v. Farrow, 198 F.3d 179, 199 (6th Cir.1999) (internal quotations and citations omitted). Here, the district court concluded that the time that Franklin spent in the halfway house did not constitute a valid ground for a downward departure. The district court never affirmatively stated that it lacked discretion to depart on the basis of the time Franklin spent in the halfway house, and it is unclear whether the district court believed that it possessed the discretion to depart on that ground. Therefore, under the presumptions of Farrow, and in the absence of evidence indicating that the district court believed that it lacked discretion, we conclude that the district court’s failure to depart downward is not reviewable on appeal. III. SPEEDY TRIAL We review de novo a district court’s statutory interpretations. United States v. Thomas, 111 F.3d 426, 428 (6th Cir.1997). Pursuant to 18 U.S.C. § 3161(c)(1), a defendant must be tried within seventy days of either the filing of the indictment or the first appearance before a judge or magistrate, whichever comes last. Under § 3161(h)(1)(F), a delay resulting from any pretrial motion is excluded from this seventy day period. As this Court said in United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.1996): “A court should exclude all the days during which it is waiting to receive information *969necessary to decide a pending pre-trial motion. If that motion requires a hearing, the entire time from the filing of the motion through the date of the hearing is excludable.” Both parties agree that twenty-seven days elapsed between Franklin's first appearance and the filing of the first pretrial motion. The parties disagree, however, as to when the clock should have started again. Franklin argues that the May 31, 2000 oral competency stipulation should have set the speedy trial clock back in motion. Forty-nine additional days elapsed between this point and the July 19, 2000 trial date. Use of Franklin's proposed May 31, 2000 date places his trial outside the seventy-day speedy trial requirement. The government, however, contends that the clock properly resumed when the parties entered their competency stipulation with the district court on June 10, 2000. The government further claims that because this stipulation was not binding upon the district court, which had its own reservations about Franklin’s competency, the pretrial motion on competency may not have concluded until July 17, 2000, when the district court ultimately found Franklin competent to stand trial. Use of the government’s June 10, 2000 or July 17, 2000 dates places the Franklin’s trial within the seventy-day speedy trial requirement. Franklin has provided no support for his contention that the speedy trial should have resumed running at the time of the May 31, 2000 oral stipulation. Franklin’s argument appears to be untenable, as the district court did not have “the information necessary” to decide the pretrial competency motion until-at the earliest-the district court received the stipulation on June 10, 2000. Therefore, the district court did not err when it denied Franklin's motion to dismiss for violations of the Speedy Trial Act. TV. DUE PROCESS Franklin contends that the government and the district court violated his Fifth Amendment right to due process of law, his Sixth Amendment right to compulsory process, the Federal Rules of Criminal Procedure and the Local Rules of the Eastern District of Tennessee when the district court granted the government’s motion for a new trial date on July 14, 2000, and set the trial date for July 19, 2000, only five days later. The government, in response, correctly argues that the issue only involves due process and the district court’s failure to grant a continuance. While the actions leading up to the district court’s decision to move Franklin’s trial date from September 11, 2000 to July 19, 2000 might have involved procedural errors, one fact disposes of this issue-the district court offered to grant Franklin a continuance to further prepare for the trial, but Franklin refused the offer in an effort to preserve his Speedy Trial claim. By refusing to seek the continuance, Franklin cannot now claim that the district court provided him with an insufficient opportunity to prepare for trial. For Franklin to succeed, he must argue that the district court, on its own, should have granted a continuance to protect Franklin’s due process and compulsory process rights. “The matter of a continuance is within the discretion of the trial judge.” United States v. Medina, 992 F.2d 573, 581 (6th Cir.1993) (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). “A showing of actual and specific prejudice is required for reversal of a judge’s decision not to grant a continuance.” Id. (internal citation omitted). Franklin argues that the limited time between July 14, 2000 and July 19, 2000 denied him the ability to find two witnesses necessary for his defense. When considering Franklin’s claim that he *970had insufficient time to prepare for trial, this Court must consider all the facts and circumstances. See U.S. v. Knight, 443 F.2d 174, 177 (6th Cir.1971). Franklin cannot show that actual and specific prejudice resulted from the district court’s failure to grant a continuance when the district court expressed its willingness to do so. It was Franklin’s decision to forego the continuance and proceed with the trial on July 19, 2000. Franklin cannot force the government to trial under the Speedy Trial Act and then claim due process and compulsory process violations arising from an insufficient amount of time to prepare for trial. V. THE CONVERSION OF CASH TO A QUANTITY OF MARIJUANA “A district court’s determination of the quantity of drugs used to compute a defendant’s sentence is a finding of fact that should not be rejected unless clearly erroneous.” United States v. Thomas, 49 F.3d 253, 259 (6th Cir.1995). As explained in the Sentencing Guidelines, “[wjhere there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1, comment (n.12). In United States v. Layne, 192 F.3d 556, 578 (6th Cir.1999), this Court concluded that a district court did not commit plain error by converting cash to a drug quantity because substantial evidence linked the cash to the drug activities. Franklin argues that the evidence introduced at trial did not support the district court’s finding that the $20,620 found in Franklin’s car was in any way related to drug activities. Franklin contends that the money found in his car was payment for traded outdoor machinery. A defense witness. Ellis Ashley, testified to these facts, and Franklin claims that Ashley’s testimony was uncontroverted. The evidence presented at trial, however, also showed that Franklin earned only approximately $10,000 a year at the time of his arrest, that the $20,620 was found hidden in the firewall of Franklin’s car, that drug dealers frequently place drug proceeds in concealed areas, that Franklin had a bank account, and that the $20,620 was found wrapped in plastic bags-similar to the marijuana recovered in this case-in different denominations of $20’s $50’s and $100’s. Although an argument can be made that the $20,620 was not related to Franklin’s drug activities, this evidence sufficiently linked the two. Accordingly, the district court’s conversion was not clearly erroneous. VI. CONCLUSION Accordingly, we AFFIRM the judgment of the district court.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218177/

OPINION GILMAN, Circuit Judge. Ruth Ann Wuerth Trimbur was arrested for cashing two lottery tickets that had been reported as stolen by the Rite-Aid store where she had purchased them two months earlier. Three weeks after Trim-bur’s arrest, all criminal charges against her were dropped. Trimbur stipulated that probable cause existed for her arrest as part of her agreement with the state prosecutor to have all of the criminal charges dismissed. She then sued the Kentucky Lottery Corporation, Rite-Aid, the investigating police officers, and the Jefferson County Judge/Executive, alleging numerous civil rights violations and tort claims in conjunction with her arrest. After considering the defendants’ respective motions for summary judgment, the district court dismissed all claims against the police officers and the County Judge/Executive. The court, in a separate order, also dismissed all of Trimbur’s claims against the Kentucky Lottery and Rite-Aid except for those sounding in negligence. After a jury trial on the negligence claims, the district court entered judgment for the Kentucky Lottery and Rite-Aid based upon the jury’s verdict. For the reasons set forth below, we AFFIRM all three judgments of the district court. I. BACKGROUND A. Factual background Trimbur purchased two Kentucky lottery tickets from a Rite-Aid store in Louisville, Kentucky on March 8, 1997. The next day, an unidentified person stole an entire lottery ticket dispenser from the store. Trimbur’s two tickets were among those reported as stolen to the Kentucky Lottery Corporation. Two months later, Trimbur attempted to redeem the two tickets, worth a total of $3.00, at a Party Mart store in Louisville. The Lottery’s computerized database identified the two tickets as lost or stolen, which caused a Lottery agent to promptly call the Jefferson County police to investigate. Three police officers arrived on the scene. Although precisely what took place at the Party Mart store is disputed, Trim-bur apparently was uncooperative and resistant to the officers’ attempts to investigate the situation. The officers testified that she spoke to them in a loud tone of voice and was repeatedly told to speak more quietly. Based upon the information *973available to the officers, Trimbur was arrested for disorderly conduct, resisting arrest, and possession of forged instruments. All criminal charges against Trimbur were subsequently dropped in exchange for her stipulation that probable cause existed for the arrest. B. Procedural background Trimbur alleged that the police officers disregarded her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments in conjunction with her arrest, the subsequent search of her purse, and her detention in jail for several hours. She asserted claims of negligence, gross negligence, and negligence per se against the Kentucky Lottery and Rite-Aid. Against all parties except Rite-Aid, Trim-bur alleged false arrest, false imprisonment, malicious prosecution, and intentional and/or negligent infliction of emotional distress. Finding probable cause for her arrest, the district court granted summary judgment on all claims against the police officers and the County Judge/Executive, and on all claims against the Kentucky Lottery and Rite-Aid except for those sounding in negligence. The negligence claims proceeded to a trial by jury. In December of 2000, the district court entered judgment for the Kentucky Lottery and Rite-Aid based upon the jury’s verdict in favor of the defendants. Although Trimbur was represented by counsel at all prior stages of this case, she now appeals the three judgments of the district court pro se. Trimbur alleges errors ranging from the granting of the motions for summary judgment to the district court’s rulings during discovery and trial. II. ANALYSIS A. Standard of review We review the district court’s grants of summary judgment de novo. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th Cir.2002). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.P. 56(c). In considering such a motion, the court construes all reasonable factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All of Trimbur’s alleged errors concerning the district court’s conduct of pretrial discovery and of the trial itself are reviewed under the “abuse of discretion” standard. Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir.1993) (“It is well established that the scope of discovery is within the sound discretion of the trial court.”) (internal quotation marks omitted); United States v. King, 127 F.3d 483, 486-87 (6th Cir.1997) (‘We review the district court’s denial of a motion for a continuance for an abuse of discretion.”); Sommer v. Davis, 317 F.3d 686, 693 (6th Cir.2003) (“Abuse of discretion is the proper standard of review of a district court’s evidentiary rulings.”) (citations and internal quotation marks omitted). Finally, the district court’s alleged errors regarding the jury instructions are reviewed to determine whether they are a correct interpretation of the relevant law. Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 263 (6th Cir.2000) (holding that the court reviews jury instructions “as a whole to determine whether they adequately inform the jury of rele*974vant considerations and provide a basis in law for the jury to reach its decision.”) (internal quotation marks and citations omitted). B. The district court properly granted motions for summary judgment on all claims against the police officers and the Jefferson County Judge/Executive, and on all claims against the Kentucky Lottery and Rite-Aid except for those sounding in negligence The district court dismissed the bulk of Trimbur’s claims on motions for summary judgment based upon its finding of probable cause for Trimbur’s warrant-less arrest. We conclude that the court properly analyzed the issues pertaining to the motions for summary judgment in its Memorandum Opinion and Order dated April 23, 1999 that dismissed all claims against the police officers and the County Judge/Executive, and in its March 27, 2000 Opinion and Order dismissing all claims against the Kentucky Lottery and Rite-Aid except for those sounding in negligence. The district court held that the undisputed facts in the record demonstrated that probable cause existed to arrest Trim-bur, thus leading to the dismissal of all of her claims against the police officers. Specifically, the court found that upon arriving at the Party Mart store, the officers knew that two reportedly stolen lottery tickets had just been redeemed by Trim-bur. Trimbur vehemently denied that the tickets were stolen when the officers arrived, but there was no way for them to determine any differently at the time of the arrest. The district court held that the inferences and facts available to the officers at the scene were sufficient to find that probable cause existed to arrest Trim-bur. In addition, Trimbur had stipulated that probable cause existed for her arrest as part of her settlement of the state criminal charges. Regarding her claims against the Kentucky Lottery and Rite-Aid, the district court held that Trimbur’s stipulation of probable cause for her arrest barred most of those claims as well. See Broaddus v. Campbell, 911 S.W.2d 281, 283 (Ky.App.1995) (holding that an unconditional stipulation of probable cause bars claims of false arrest, false imprisonment, and malicious prosecution against all parties, not just the police). In addition, in both summary judgment opinions, the district court held that Trimbur had not pled sufficient facts to meet her burden of proof on her emotional-distress claims. The district court correctly held that Trimbur pled nothing to show that the police knew or should have known “that the[ ] arrest would have resulted in emotional distress that would in turn result in bodily harm to [Trimbur].” On appeal, Trimbur simply reiterates the fact that she was humiliated and distressed by her arrest, but shows nothing from which a factfinder could determine that the police had any awareness that their conduct would cause her harm. The district court also held that Trimbur had not pled facts sufficient to support any First, Fifth, or Eighth Amendment claims, and that a finding of probable cause for her arrest defeated Trimbur’s Fourth and Fourteenth Amendment claims. In further support of the district court’s disposition on summary judgment, Rite-Aid points to the fact that Trimbur raised no allegations of error as to the summary judgments in her post-judgment motions in the district court, nor has she advanced any new arguments on appeal regarding these judgments. Upon review, we conclude that the district court properly dismissed the claims in question. *975C. The district court properly ruled on the discovery, pretrial, and evidentiary matters about which Trimbur complains on appeal Trimbur contends that there were numerous errors committed by the district court during the course of the trial on her negligence claims against the Kentucky Lottery and Rite-Aid. Her allegations are wide-ranging, but they point to nothing sufficient to establish that the district court abused its discretion in conducting the trial. Specifically, Trimbur argues that the district court abused its discretion by denying her last-minute motions to continue her trial date and to compel additional discovery against Rite-Aid, and in denying her the use of certain documents and witness testimony as evidence. The facts and circumstances surrounding each of these alleged errors, however, clearly show that the district court did not abuse its discretion. First, the magistrate judge, in charge of all pretrial discovery, noted that Trimbur had unduly delayed the filing of her motion to compel, and that her discovery requests were overbroad. The record shows that Trimbur waited until two weeks before trial to file her motion to compel, and that her request to Rite-Aid for all documents covered “each and every sales transaction involving the sale of consumer goods-including but not limited to Kentucky lottery tickets” for a three and a half month period. We agree with the magistrate judge that Trimbur’s motion to compel was untimely and that her request for documents was “unusually overbroad.” Just as there is no evidence of an abuse of discretion by the district court on the discovery matters, there is similarly no evidence of an abuse of discretion by the district court in denying Trimbur’s motion for a continuance filed one week prior to trial. The district court thoroughly addressed Trimbur’s motion in a Memorandum and Order, finding that she had not made any showing that her preparation for trial would be aided by an extension of time. Trimbur argues nothing new on appeal to suggest that the district court abused its discretion in denying her motion. Trimbur further contends that the district court abused its discretion in excluding from evidence a confidential security audit prepared by the Kentucky Lottery. In the context of a motion in limine, the magistrate judge inspected this document in camera and concluded that it had no relevance to the issues to be presented at trial. The district court agreed. Trim-bur has failed to demonstrate how she was prejudiced by her inability to use the document at trial. She has simply alleged that she was prejudiced and that the document could have provided context to her negligence claims. But she has not shown that the district court abused its discretion in making its ruling. Trimbur next complains that the district court erred in limiting the proffered testimony of her minister, Thomas Bumpas. She sought to have her minister testify as an expert concerning her distressed state of mind. But Trimbur filed no pretrial disclosures regarding expert witnesses pursuant to Rule 26(a) of the Federal Rules of Civil Procedure. She also refused to turn over Bumpas’s records detailing his counseling sessions with her. As a result, the district court ruled that Bumpas could testify only as a fact witness. This caused Trimbur and her attorneys to not call Bumpas to testify. Because Trimbur failed to comply with Rule 26(a), there is no basis to conclude that the district court abused its discretion in limiting the scope of Bumpas’s testimony. *976Trimbur also argues on appeal that she was not permitted to call Margaret Gibbs, Chief Operating Officer of the Kentucky Lottery, as a witness at trial. Gibbs, however, was released from her subpoena to testify when Trimbur failed to timely identify Gibbs as a witness whom she intended to call. Trimbur thus has no basis for her claim that the district court abused its discretion in releasing Gibbs’s subpoena when Trimbur failed to identify Gibbs as a witness at the time the court requested this information. D. The district court properly entered judgment for the Kentucky Lottery and Rite-Aid Finally, Trimbur contends that the district court erred in its instructions to the jury. She does not discuss this issue on appeal, but simply refers the court to her motion for a new trial. In that motion, she disputes the order in which the instructions were given, not their substance. Trimbur faded to explain in her brief why the jury instructions did not properly reflect the law. We thus have no basis to conclude that the district court abused its discretion in instructing the jury. Judgment for the Kentucky Lottery and Rite-Aid based upon the jury’s verdict was therefore properly entered. III. CONCLUSION For all of the reasons set forth above, we AFFIRM all three judgments of the district court.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218178/

OPINION COLE, Circuit Judge. The United States appeals the district court’s award to defendant Donald G. Ford of interest accrued on $926,202.53 in funds seized by the government and held pending Ford’s criminal trial, but later found by the jury not to have been directly traceable to illegal activity. Specifically, the district court ordered the United States to credit, against fines and penalties owed by Ford, the interest accrued on this sum during the period between the date the funds were seized and the date of the judgment in Ford’s criminal case. The United States claims that sovereign immunity bars this award of interest and, to the extent that sovereign immunity is not a *978bar, such an award is otherwise improper in this case. For the reasons described below, we VACATE the district court’s award of interest and REMAND this case for further proceedings. I. BACKGROUND In August 1992, the Internal Revenue Service (“IRS”) seized cash and certain bank accounts, belonging to either Donald G. Ford (“Ford”) or Arcade Plaza, Inc., a bingo operation run by Ford, totaling $1,349,694.10. This sum remains in the possession of the IRS. Ford was later indicted on thirty-six counts relating to illegal gambling and money laundering in connection with these and other funds. In November 1996, a jury found Ford guilty on numerous charges of illegal gambling, money laundering, and engaging in financial transactions representing the proceeds of unlawful activity. The jury also acquitted Ford of certain conduct. Ford was found guilty of illegal activity that involved a total of $1,137,348.63, but was acquitted of conduct alleged to involve $806,542.33. In October 1997, Ford was sentenced to serve 108 months in prison to be followed by a term of supervised release of three years. Ford was also ordered to pay an assessment of $1,450.00 and a criminal fine of $705,478.30. On November 4, 1997, the district court issued a First Final Order of Forfeiture, ordering that Ford forfeit to the United States $1,137,348.63 in “property ... involved in money laundering, or ... traceable to money laundering.” This amount included $194,238.68 in seized funds that had been deemed by the jury to be traceable to illegal activity. An additional $943,109.95 in non-traceable funds was found to be criminally forfeitable.2 The district court further ordered that the IRS, acting as a custodian, hold $926,202.53 in seized funds that the jury concluded were not directly traceable to specified unlawful activity as assets that would likely become forfeitable, subject to third-party claims, as substitute assets. On June 31, 1998, Ford moved for assessment and crediting of interest on seized money that was not ordered forfeited. Specifically, Ford sought to have credited toward monies he owed in criminal fines the interest accrued on the $926,202.53 in non-traceable funds. Because Ford’s appeal of his sentence was pending in this Court at that time, the district court did not have jurisdiction to address Ford’s motion. Accordingly, in July 2000, Ford renewed and supplemented his motion for assessment and crediting of interest and the government responded. On November 7, 2000, the district court allowed Ford’s renewed motion for assessment and crediting of interest, ordering the government to credit the interest accrued on the $926,202.53 between the date of seizure and the date of judgment against the amounts Ford owed in criminal penalties. In particular, the district court stated: It has been established by the jury that during the period from seizure to judgment the United States held $926,202.53 in non-tainted funds which it could not then lawfully restrain as substitute assets. See, United States v. Fields [sic], 62 F3d [sic] 246 (8th Cir.1995); United States v. Floyd, 992 F.2d 498 (5th Cir.1993). But for his outstanding obligations under the gambling and money *979laundering judgment, Ford would be entitled to a return of those funds with interest under the authority of United States v. $515,060.42 in United States Currency, 152 F.3d 491 (6th Cir. 1998).... Until the judgment was entered on the gambling and money laundering verdict the United States held Ford’s non-tainted funds without proper claim to the property. It must account for interest on those funds during that period of time, despite the fact that the same funds may ultimately be forfeited in satisfaction of other obligations. The funds remained the property of Ford prior to entry of judgment, and the United States had no right to retain them. The Judgment in a Criminal case, entered November 4, 1997, then formed the basis to restrain substitute assets to satisfy the order of forfeiture. Accordingly, interest should be assessed at the legal rate from the date of seizure until November 4, 1997, and the sum should be credited as part of the res no matter the final disposition of the funds. The United States moved for reconsideration, claiming: (1) that it had probable cause to seize the assets and did so under the theory that they were tainted and, thus, it did not retain the assets in question under a substitute assets theory prior to trial; (2) that the interest to be credited should not include interest accrued after the jury verdict but prior to the judgment, which was not issued until nearly a year later; and (3) that Ford’s recovery should be barred because he had unclean hands, sat on his rights, and would be receiving a windfall. Ford opposed the motion for reconsideration. On May 29, 2001, the district court denied the government’s motion to reconsider, concluding that it was undisputed that there existed probable cause to seize the funds and that the seized assets deemed non-tainted may be forfeited as substitute assets, although they could not have been restrained prior to trial on that theory. However, the court concluded that these issues were not material to the its decision to award interest. The district court also rejected the argument that interest accrued prior to the jury verdict, but not the judgment, should be credited, reiterating its earlier statement that “[ujntil the judgment was entered ... the United States held Ford’s non-tainted funds without proper claim to the property.” Specifically, the district court found that the assets in question did not become eligible to be retained as substitute assets until the date of judgment. The district court also rejected the government’s arguments that Ford could not recover in equity because of his refusal to provide the court with financial information and because such recovery would be a windfall. This appeal followed. II. ANALYSIS The government appeals the district court’s November 7, 2000 order awarding Ford interest, and the district court’s May 29, 2001 denial of the government’s motion to reconsider the November 7, 2000 decision. The government argues, first, that sovereign immunity and the concomitant “no-interest” rule bar any award of interest against the government. Second, the government argues that, even if disgorgement of interest is sometimes appropriate, the district court’s order of disgorgement in this case was inappropriate. Although we reject the government’s first argument, we are persuaded that the district court’s award of interest to Ford was premature, and, therefore, will vacate the award and remand this matter for further proceedings. *980A. Sovereign Immunity Whether the government enjoys sovereign immunity with respect to a particular matter is a question of law that this Court reviews de novo. United States v. Kentucky, 252 F.3d 816, 825 (6th Cir.2001). We reject the government’s argument that sovereign immunity and the “no interest” rule of Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986) always bar awards of interest in forfeiture cases where seized property is returned to its owner as not forfeitable.3 This Court has previously held that the government may be required to disgorge interest received on funds or property lawfully seized as potentially forfeitable where it is later determined that the government had no proper claim to the funds or property. United States v. $515,06042 in United States Currency, 152 F.3d 491, 504 (6th Cir.1998) (concluding that “the Government may not always be permitted to profit from the seizure of property which is ultimately returned to the owner”).4 This Court’s decision in $515,06042 arose out of a civil forfeiture proceeding instituted by the government against funds seized and held as evidence in connection with a criminal proceeding relating to gambling and illegal bingo operations. Id. Ultimately, the civil forfeiture action was dismissed on statute of limitations grounds and, as a result, the district court ordered the government to return to the claimants $515,060.42 in seized currency plus interest. Id. at 497. The government appealed to this Court, challenging the award of interest as barred by sovereign immunity and Shaw’s “no-interest” rule. We framed the issue as follows: The Government sometimes seizes property for purposes of forfeiture and is later found, for whatever reason, to have no proper claim to the property. When the property is returned to its owner, the question arises, as it did in this case, as to what extent an owner may recover the Government’s profit from the use of the seized property. Id. at 504. We expressly approved of the Ninth Circuit’s analysis in United States v. $277,000 U.S. Currency, 69 F.3d 1491, 1493 (9th Cir.1995), where that court affirmed the award of interest in a civil forfeiture action. There, the Ninth Circuit had concluded that where the government was unsuccessful in obtaining forfeiture of currency that it had seized, “to the extent that the government profited from the use of the property, ... it must disgorge [interest] earnings along with the property *981itself.” $277,000 U.S. Currency, 69 F.3d 1493. Likewise, this Court concluded that “the interest was not really typical prejudgment interest, but an aspect of the seized res, and thus the existing sovereignty bar to an award of pre-judgment interest did not enter the picture.” $515,06042, 152 F.3d at 504. The $515,06042 Court focused on the fact that the government is not an owner of seized property until the time at which forfeiture is decreed. Id. (citing United States v.1980 Lear Jet. Model 35A, Serial Number 277, 38 F.3d 398, 402 (9th Cir.1994); United States v. 92 Buena Vista Ave., 507 U.S. 111, 124, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993)). Thus, to the extent that it is determined that property seized and held by the government pending a judgment of forfeiture is ultimately adjudged not forfeitable, and, therefore, is returnable to its rightful owner, it is appropriate for the government to disgorge interest it constructively or actually received on the property during the period commencing on the date of seizure and ending on the date that the property was deemed not forfeitable. Id. at 504-05. Under this theory, the government is not being asked to pay interest, but rather, to disgorge benefits received from property in which it never actually held a proprietary interest. Because $515,06042 clearly permits ordering the government to disgorge interest on seized property later deemed returnable, we reject the government’s argument that sovereign immunity always bars such an award. To the extent that the United States asks this panel to overrule $515,06042, this request must too be rejected. It is well-established that one panel of this Court cannot, absent intervening Supreme Court precedent, overrule another panel. See United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001); Timmer v. Mich. Dep’t of Corr., 104 F.3d 833, 839 (6th Cir.1997). No such intervening precedent would permit us to overrule $515,06042 at this time.5 B. Disgorgement Theory The government argues that Ford cannot prevail because the seizures and retention of the assets in this case were lawful. Moreover, the government claims that disgorgement is an equitable theory upon *982which Ford cannot prevail because he: (a) failed to raise his claim for wrongful retention in a timely fashion, (b) has unclean hands as a result of his refusal to make customary financial disclosures, and (c) failed to keep his assets in interest-bearing accounts prior to seizure. Third, the government argues that Ford was required to file a motion pursuant to Federal Rule of Criminal Procedure 41 seeking return of the interest at issue here. Finally, the government argues that the award of interest to Ford was premature. We reject the government’s first three arguments, but find that the award in this case was indeed premature. 1. Lawful Seizure and Retention As the district court concluded, it is of no consequence that the original seizures in this case were lawful. To the extent the funds were held as tainted funds, and not for some alternative purpose, the government was, up to the time of the entry of judgment of acquittal, holding funds to which, as it turned out, it had no proper claim. It is undisputed that the initial seizures of the $926,202.53 were proper insofar as they were supported by search warrants, seizure warrants, the indictments, and, in some instances, warrants of arrest in rem. However, the fact that there was probable cause for these seizures does not necessarily mean that the assets seized are forfeitable. See United States v. One 1974 Learjet 24D, Serial Number 24D-290, Mexican Registration, XA-RMF, 191 F.3d 668, 673 (6th Cir.1999) (explaining that probable cause to seize should not be conflated with probable cause to forfeit because “the ... determinations involve different queries [and, perhaps,] different evidence.”). The government’s pre-trial retention of assets believed to be tainted and, therefore, forfeitable, is permissible.6 However, at the time the judgment acquitting Ford in part was issued, it became clear that the government had held the $926,202.53 in assets permissibly, but without any proprietary interest therein, as these assets proved not to have been tainted. Although, at the time of judgment, these same assets became retainable and potentially forfeitable as substitute assets, the government could not have retained these assets qua substitute assets prior to trial. See 21 U.S.C. § 853(p); United States v. Field, 62 F.3d 246, 247 (8th Cir.1995); Ripinsky, 20 F.3d at 362. 365: Floyd, 992 F.2d at 501 (holding that the government lacks statutory authority to restrain untainted assets prior to trial in context of 18 U.S.C. § 982 and 21 U.S.C. § 853). Of course, the government is not barred from retaining previously seized, but non-tainted, assets after trial as substitute assets. This fact, though, does not create a proprietary interest in the assets during the period between seizure and the judgment of acquittal. Because the seizures and retention were lawful, the United States argues that the district court improperly viewed the government as a wrongdoer, justifying its equitable award to Ford. The government analogizes to criminal arrest, arguing that if there was probable cause to arrest some*983one the fact that they are later acquitted will not necessarily render the arrest and detention improper. However, the government’s argument ultimately is unpersuasive. Here, the question is not whether the seizure and retention of the assets was permissible. It is clear that both were permissible. Rather, the question is whether the United States had a proprietary claim to the assets during the period from seizure until judgment. Under the law of this circuit, we find that the government had no such proprietary claim. See $515,060.42, 152 F.3d at 504. 2. Equity “Restitution and disgorgement are part of courts’ traditional equitable authority.” United States v. Universal Servs. Mgmt. Inc., 191 F.3d 750, 760 (6th Cir.1999). “Absent a clear command by Congress that a statute providing for equitable relief excludes certain forms of such relief, this court will presume the full scope of equitable powers may be exercised by the courts.” Id. at 761. “Disgorgement ... removes ill-gotten gain by forcing surrender of profits.” Id. at 763. This Court “reviews a district court’s decision on disgorgement for abuse of discretion.” SEC v. Johnston, 143 F.3d 260, 262 (6th Cir.1998). “Abuse of discretion [requires] ‘a definite and firm conviction that the trial court committed a clear error of judgment.’” Id. The United States argues that Ford cannot recover in equity because he “sat on his rights,” has unclean hands, and would receive a windfall. We find each of these arguments unpersuasive. Ford does not challenge the restraint of the assets; he simply seeks the return of interest on assets found to have been improperly retained—only during the period of their improper retention. Thus, as the district court explained, Ford did not “sleep” on his rights since the filing of the Indictment in this case, as the government suggests. Rather, Ford only secured the right to obtain interest on the $926.202.53 when the judgment was entered in November 1997. Second, Ford is not required to facilitate the forfeiture of his property. Thus, his refusal to voluntarily make financial disclosures has no bearing on this Court’s decision to award interest, although it may subject Ford to other penalties. Third, the fact that Ford had not placed the $926,202.53 in interest-bearing accounts prior to its seizure, even if true, does not support a finding permitting the government to receive a windfall on property that it held without proprietary interest. 3. Federal Rule of Criminal Procedure 41 The government argues that Ford should have filed a motion pursuant to Federal Rule of Criminal Procedure 41 seeking return of the interest. Federal Rule of Criminal Procedure 41(g), formerly Rule 41(e), provides that a person aggrieved by an unlawful search and seizure or by the deprivation of property may seek return of the property on the ground that they are entitled to lawful possession of the property. Fed. R.Crim. P. 41(g). Rule 41 does not provide specifically for the return of interest along with the return of seized property. In fact, some courts have found that Rule 41 must be strictly construed against a finding that the rule waives sovereign immunity. See, e.g., Pena v. United States, 157 F.3d 984, 986 (5th Cir.1998) (explaining that Rule 41 does not authorize the payment of damages). However, under $515,060.42, it is appropriate to view the return of interest on improperly seized property as the disgorgement of a benefit improperly obtained by the government, rather than the payment of damages. 152 F.3d at 504. *984Had Ford filed a Rule 41 motion seeking return of the $926,202.53 after the judgment was rendered in his criminal case, that motion would have been treated as a civil action in equity. See United States v. Dusenbery, 201 F.3d 763, 768 (6th Cir.) (“Rule 41(e) proceedings are equitable in nature if criminal proceedings are no longer pending.” (citing United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990), United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.1999))), cert. denied, 531 U.S. 925, 121 S.Ct. 301, 148 L.Ed.2d 242 (2000). Thus, the district court did not err in treating Ford’s motion for assessment and crediting of interest as a motion in equity. 4. Interest Award on Returnable Property The law of this circuit supports the return of interest under circumstances similar to those presented in this case. Under $515,060.42, we look to whether the government had a proper claim to the property deemed not forfeitable. 152 F.3d at 504. If the government had no proper claim, it must return the property to its rightful owner. Id. The returnable property includes the government’s profit from the use of the seized property during the period in which the property was improperly held, which includes interest accrued during this period. Id. Unlike $515,060.42, the present case is not a civil forfeiture action. We are cognizant of the significant distinctions between civil and criminal forfeiture proceedings. See United States v. Corrado, 286 F.3d 934, 937, 939 (6th Cir.2002) (explaining that civil forfeiture does not constitute punishment, while “[a] criminal forfeiture award is part of the defendant’s sentence, not part of the substantive offense of conviction.”). Acquittal in an in personam criminal forfeiture proceeding does not conclusively determine whether the particular property will ultimately be forfeited. This is in part because “[ajcquittal in a criminal forfeiture proceeding does not bar a subsequent civil forfeiture proceeding against the same illegally smuggled goods.” Id. at 939; see also United States v. Ursery, 518 U.S. 267, 274, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). Because criminal forfeiture proceedings, require a higher standard of proof than do civil forfeiture proceedings, an acquittal in the former does not bar the latter. See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 359, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). In contrast, a civil forfeiture action is an action in rem to hold guilty, by reliance on a legal fiction, property, condemning its involvement in wrongdoing; thus, liability in such an action attaches to the property itself. See United States v. O’Dell, 247 F.3d 655, 680 (6th Cir.2001). Accordingly, acquittal in such a proceeding requires the return of property to its proper owner. It has long been clear that a judgment in rem denying forfeiture, unlike an acquittal in a criminal proceeding, is conclusive evidence that there is no justifiable cause for a forfeiture. See Apollon, 9 Wheat. 362, 22 U.S. 362, 367, 6 L.Ed. 111 (1824) (“The question [of whether there was justifiable cause of seizure] has been already decided in the proceedings in rem, and the decree of acquittal, not having been appealed from with effect, is conclusive evidence in every inquiry before every other tribunal, that there was no such cause.”). Here, the district court ordered the government to pay Ford interest in the original criminal proceeding. Nothing about $515,06042 suggests that its rationale only applies in civil forfeiture cases. The essential holding of $515,06042 requires that at the time property is deemed not forfeitable and, therefore, returnable to its proper owner, the government must re*985turn any interest, actual or imputed, along with the property-the res. $515,060.$2, 152 F.3d at 504. However, while a determination that property is not forfeitable in a civil forfeiture proceeding would conclusively render the property returnable to the successful civil claimant, it is not clear that the property at issue here is or ever will be returnable to Ford. To the extent that the judgment finding the $926,202.53 not forfeitable as tainted proceeds of unlawful activity demonstrated that the government previously had not held any proprietary right in the property in question, the United States may be required to disgorge benefits it received on this sum between the date of seizure and the date of judgment to the rightful owner of these assets. These benefits would include interest accrued on this amount. Generally, interest accrued on a returnable res during this time period would simply follow the res. We are not persuaded, however, that the res need actually be returned to require the government to disgorge interest. The rationale that the government should not reap benefits from the money of its citizens applies with equal force whether the res is forfeitable under another theory or not. Nevertheless, we find that no interest award could properly have been made to Ford absent a determination that he was indeed the proper owner of the $926,202.53 during the period of its retention by the government. Insofar as no such determination was made and, given the potential rights of third parties to the res in this case, we find that the district court’s order awarding interest in this case was premature. However, to the extent that the res is found to have belonged to Ford during the relevant period, the interest constructively or actually earned by the United States on this sum should be disgorged to him. Insofar as Ford is not adjudicated the rightful owner of the $926,202.53, the interest cannot properly be credited against Ford’s debts to the government. Of course, any third party with rights to this sum would have to assert those rights in a civil forfeiture action and could not recover in this case. Thus, we remand this matter for a determination of whether Ford, rather than some third party, was the rightful owner of this currency during the relevant period before ordering the return of the interest accrued on the sum to Ford. To the extent that a separate civil forfeiture action, or the ancillary proceedings that the government represented to this Court have been stayed during the pendency of this appeal, constitute the proper forum in which to determine the rightful owner of the $926,202.53, it may be appropriate to await the outcome of such proceedings before ordering any disgorgement of interest. Further, if, upon remand, the district court finds the award of interest to Ford appropriate, the district court should also make specific findings as to whether the assets in question were held by the government in interest-bearing accounts, to assist in the specific computation of interest.7 III. CONCLUSION For the reasons stated above, we VACATE the district court’s orders dated November 7, 2000 and May 29, 2001, awarding interest to Ford, and REMAND *986this case for further proceedings consistent with this opinion. . The district court later adjusted the amount of non-traceable sums to $889,226.30, to account for the government's double counting of amounts at issue in multiple counts of the Indictment. . In Shaw, an employment discrimination case, the Supreme Court held that "interest cannot be recovered in a suit against the Government in the absence of an express waiver of sovereign immunity from an award of interest." 478 U.S. at 311, 106 S.Ct. 2957. . The issue of whether interest may be awarded under the circumstances presented in $515,060.42 is the subject of a circuit split. Compare $515,060.42, 152 F.3d 491, 504 (permitting disgorgement of interest); United States v. $277,000 U.S. Currency, 69 F.3d 1491, 1493 (9th Cir.1995) (same); and United States v. 1461 West 42nd St., Hialeah, Fl., 251 F.3d 1329, 1338 (11th Cir.2001) (suggesting it would follow $515,060.42), with Larson v. United States, 274 F.3d 643, 647 (1st Cir.2001) (finding interest barred by sovereign immunity); United States v. $30,006.25, 236 F.3d 610, 612 (10th Cir.2000) (same); United States v. $7,990.00 in U.S. Currency, 170 F.3d 843 (8th Cir.1999), cert. dismissed, 528 U.S. 1041, 120 S.Ct. 577, 145 L.Ed.2d 449 (same); Ikelionwu v. United States, 150 F.3d 233, 239 (2d Cir.1998) (same). However, because Congress has chosen to amend the civil forfeiture statute, this split is of diminishing importance. See Smith v. Principi, 281 F.3d 1384, 1388 n. 2 (Fed.Cir.2002) (describing the circuit split to be "of diminishing significance, as Congress has recently amended the forfeiture statute to allow prospectively the recovery of interest”). . The government argues that the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA”), Pub.L. No. 106-185, § 4(a), 114 Stat. 202, 211-13 (2000) (codified at 28 U.S.C. § 2465(b)(1)(C)), abrogated this Court’s decision in $515,060.42. Among other things, CAFRA amended the civil forfeiture statute to provide for payment by the government of actual or imputed interest on returned currency, negotiable instruments, and proceeds where a claimant "substantially prevails.” 28 U.S.C. § 2465(b)(1)(C). We note that because this is not a civil forfeiture action commenced after August 2000, CAFRA is not implicated. See Pub.L. No. 106-185, § 21. Nevertheless, we are not persuaded by the government’s argument that $515,060.42 has been abrogated by CAFRA. A review of the statute and its legislative history reveals no mention of sovereign immunity, and supports the conclusion that CAFRA ratified the outcome, if not the rationale, of this Court's decision in $515,060.42. See H.R. Rep. 106-192, § 5 (1999) (explaining that under the amendment "the United States shall disgorge to the claimant any funds representing interest actually paid to the United States from the date of seizure or arrest of the property that result from the investment of the property in an interest-bearing account or instrument and for any period during which no interest is actually paid, an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate described in section 1961”); 145 Cong. Rec. H4854-02 (daily ed. June 24, 1999) (statement of Rep. Conyers) ("This provision prevents the government from gaining an windfall on improperly seized property and puts the property owner in the position he or she would have been if the property had not been seized in the first instance.”). . 18 U.S.C. § 982(a)(1) authorizes the government to seize forfeitable assets upon conviction for money laundering offenses. See United States v. Floyd, 992 F.2d 498, 501 n. 3 (5th Cir.1993). Criminal forfeitures pursuant to § 982 are governed by 21 U.S.C. § 853. See 18 U.S.C. § 982(b)(1). Under § 853, the government may obtain a protective order to restrain forfeitable assets prior to conviction if there is a substantial probability that the government will prevail, it appears that the defendant may otherwise transfer or conceal those assets by the time of conviction, and the balance of the hardships favors retention. 21 U.S.C. § 853(e); cf. United States v. Ripinsky, 20 F.3d 359, 361-62 (9th Cir.1994). . The amount of interest has not been put directly at issue in this appeal. Nevertheless, where seized funds did not earn interest, these funds " ‘should be considered as constructively earning interest at the government’s alternative borrowing rate at all times’ until a judgment is rendered.” $515,060.42, 152 F.3d at 505 (citing $277,000 U.S. Currency, 69 F.3d at 1496). Where the funds in question did actually earn interest, the actual amount of interest earned must be disgorged. Id. at 505-06.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218187/

JOHN R. GIBSON, Circuit Judge. Warden Leonard appeals from the district court’s orders granting Lyndon Miller relief on one of his claims for habeas relief pursuant to 28 U.S.C. § 2254 (2000). The district court concluded that Miller had received ineffective assistance of counsel based on his lawyer’s acquiescence to a jury instruction that Miller asserts allowed the jurors to convict him of a drug trafficking charge by improperly considering evidence relating to an earlier drug possession charge. Considering the standards and presumptions set forth in the Antiterrorism and Effective Death Penalty Act (known as AEDPA), we reverse. Miller was twice indicted by a Hamilton County, Ohio grand jury. The first indictment charged him with two counts of possession of marijuana on August 18, 1997. The later indictment charged him with one count of trafficking in marijuana on September 22, 1997. When the earlier case was called for trial, the prosecutor moved for joinder of both cases, and the trial court granted the motion over defense counsel’s objection. The trial was brief. From opening statements through closing arguments and instructions, the' trial lasted little more than five hours. Most of the state’s evidence was directed to Miller’s alleged possession of marijuana, and the only evidence of trafficking came from the testimony of a co-defendant, Brian Morgan. Following his first indictment, Miller had apparently left Cincinnati, but police set up surveillance of him after being told he had returned. The surveillance operation began about 4:30 p.m. on September 22 and ended around three and a half hours later when Miller was stopped and arrested. During the surveillance, police also observed and arrested Brian Morgan, who had 25 pounds of marijuana and approximately $12,000 in his vehicle; a search of Morgan’s residence revealed an additional nine pounds of marijuana and close to $15,000 in currency. Miller was never observed to be in the company of Morgan during the surveillance, and Miller had no marijuana, large sums of money, or packaging material when he was arrested. At trial, however, Morgan testified that he had obtained 37 pounds of marijuana from Miller that day, which he had taken home to weigh, and that he was on his way back to pay Miller for the purchase when he was arrested. The jury began its deliberations at 2:25 p.m. on May 20, 1998 and continued through that afternoon. They returned the following day at 9:00 a.m. and deliberated throughout the day. Sometime during the morning of the third day the jury sent a note asking: “Can we consider the testimony re: August 18th in deliberating the facts of the case, re: September 22nd as they were presented together in testimony of the witnesses?” When the trial judge received the note, Miller’s counsel was not present because of a medical appointment. Instead, he had stand-in counsel in the courtroom to represent his client. The trial judge read the question and proposed an answer: ‘You have three counts or charges against the defendant. You can consider any testimony as to a count which you find to be material and relevant to the issues in that count.” The prosecutor agreed with the answer. Miller’s stand-in counsel replied that he had spoken with Miller’s counsel the day before about the case. “I don’t know much about the facts, but his instructions to me were that if there was a question coming back from the jury regarding the jury requesting to hear testimony, that that’s already been presented, object to that. That’s it. With respect to this question right here, it’s my belief that the Judge’s answer to the jury’s question is *33proper.” Although the transcript indicates nothing more than that a recess followed, presumably the trial court’s answer was given to the jury in writing. The jurors soon notified the trial court that they had reached a verdict. At 2:10 p.m., the jury returned to the courtroom and delivered guilty verdicts on all three counts. Miller was sentenced to concurrent eight- and three-year terms for the possession counts and a consecutive three-year term on the trafficking count. In addition, he was fined $35,000. Miller filed a direct appeal of his convictions to Ohio’s First Appellate District, which affirmed the trial court. The Ohio Supreme Court denied Miller leave to appeal. Miller then filed his federal habeas corpus petition, asserting three grounds for relief. The district court dismissed the petition as to the second and third grounds, without hearing, and granted habeas relief on the first ground. The district court concluded that Miller’s stand-in counsel was constitutionally ineffective in failing to object to the prejudicial response to the jury question. The Warden appeals from the order granting Miller habeas relief. We review de novo the district court’s decision to grant habeas relief. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000); Barker v. Yukins, 199 F.3d 867, 870 (6th Cir.1999). The parties agree that this habeas case is governed by the standards and directives of the AEDPA, as Miller filed his petition after the Act’s effective date. The relevant provision is 28 U.S.C. § 2254(d): An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. The district court determined that Miller’s claim was adjudicated on the merits in state court. In its review of the state court proceedings, the district court concluded that the Ohio Court of Appeals opinion was based on an unreasonable determination of the facts. Specifically, the district court disagreed with the state appellate court’s “conclu[sion] that the trial court’s answer to the jury’s question did not materially alter the instruction first given.”1 The district court wrote: [Wjhen later asked by the jury if it could consider the testimony relating to the August 18 offense in determining the facts relating to the September 22 offense, the trial court responded that it could consider any testimony which it found to be relevant to the issues in that count____. Because evidence that petitioner possessed a large amount of marijuana as well as a large sum of money on August 18 makes it more probable that he was trafficking in marijuana on September 22 than it would be without that evidence, the testimony relating to the August 18 offense was clearly relevant. Nevertheless, under Ohio Evidence Rule 404(B), such evidence should not have been considered by the jury---The [District] Court finds the state *34court’s conclusion that it did not alter the original instruction to be unreasonable. (emphasis in original) The district court found that stand-in counsel’s failure to object to the proposed instruction was deficient performance. Without examining the trial transcript, however, the district court was unable to determine whether the deficiency had caused Miller to suffer prejudice. The parties were allowed to brief the issue and, after examining the briefs and the transcript, the district court concluded “that there is a probability sufficient to undermine confidence in the outcome that, but for counsel’s error, the result of the proceeding would have been different.” Our review of the state court proceedings leads us to a different conclusion than the one reached by the district court. As we read its opinion, the Ohio Court of Appeals did not make a fact-based decision. Rather, the state appellate court examined the trial court’s response to the jury question to determine first, whether, as a matter of law, the jury instruction was defective, and second, whether Miller had received ineffective assistance of counsel due to his counsel’s failure to object to these instructions. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In applying Strickland to the trial court’s proceedings under a plain error standard of review, the state appellate court concluded that stand-in counsel met the Strickland requirements. The Ohio Court of Appeals decision was an application of clearly established Supreme Court precedent to counsel’s performance with respect to the proposed response to a jury question. Therefore, our review is governed by § 2254(d)(1), not by § 2254(d)(2). We hold that the district court erred in granting habeas relief because the Ohio Court of Appeals decision did not involve an unreasonable application of Strickland to the facts of Miller’s trial. Ineffective assistance of counsel occurs when counsel’s performance is deficient and the deficient performance so prejudices the defense as to render the trial unfair and the result unreliable. Strickland, 466 U.S. at 687. The Ohio Court of Appeals determined that Miller’s stand-in counsel did not perform deficiently in failing to object to the proposed answer, as the court viewed that answer to be a restatement of the earlier, correct instruction. While, in retrospect, the better choice might have been simply to re-read the pertinent part of the charge rather than to have paraphrased it, we cannot conclude that the trial court’s answer to the jury’s question materially altered the instruction first given, bearing in mind the limitations of the application of the concept of plain error. Having determined that counsel’s performance was not deficient, the Ohio Court of Appeals had no need to continue to the question of prejudice a Strickland analysis. That court’s decision will be deemed an “unreasonable application” of Strickland if “the state court identifies the correct governing legal rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[E]ven if we believe that a state court incorrectly applied federal law, we must refuse to issue the writ of habeas corpus if we find that the state court’s decision was a reasonable one.” Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir.2000); see also Simpson v. Jones, 238 F.3d 399, 405 (6th Cir.2000). The district court ruled that the state appellate court’s denial of Miller’s direct appeal was based on an unreasonable determination of the facts. Specifically, it *35concluded that the Ohio Court of Appeals’s finding that “the trial court’s answer to the jury’s question did not materially alter the original instruction given the jury is unreasonable.” It thus held that Miller’s counsel was deficient because he did not object to the supplemental jury instruction. There are two problems with the district court’s finding that the supplemental jury instruction materially differed from • the original instruction. First, the district court elided over the words “as to a count” in the supplemental instruction. These words were crucial, because they instructed the jury that it may not, as the district court believed, “consider any testimony which it found to be relevant.” (Emphasis added.) Rather, the supplemental instruction admonished the jury that it may “consider any testimony as to a count” that it found to be relevant to the issues in that count. (Emphasis added.) Second, the district court did not explain why it concluded that the state court’s determination was unreasonable, as opposed to merely incorrect. There is no doubt that the best answer that the state trial court could have given to the jury’s inquiry was simply “No.” But the actual answer given was determined by the Ohio Court of Appeals to be the equivalent of “No.” And even if we were to agree that the supplemental instruction did, in fact, materially alter the original instruction, we do not believe that the state appellate court’s finding to the contrary was unreasonable. The burden is on Miller to show that the Ohio Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner,2 and we are not free to substitute our judgment for that of the Ohio Court of Appeals. Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002). Given the strictures of § 2254(d)(1), habeas relief cannot be granted to Miller on the grounds that he received ineffective assistance from stand-in counsel who failed to object to the trial court’s response to a jury question. The district court judgment is reversed and this case is remanded for entry of an order denying Miller’s petition. . All of the reviewing courts and the parties concur that the trial court’s first instruction was correct, as it directed the jury to "consider each count and the evidence applicable to each count separately....” . Miller's burden is not one of clear and convincing evidence, however. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1043, 154 L.Ed.2d 931 (2003) (“AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence. The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.”).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218188/

ORDER Winfred White, a pro se Michigan resident, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Seeking monetary relief, White sued Montcalm County, Michigan, a state circuit judge, his defense counsel, and multiple unidentified individuals regarding his 1996 guilty plea for felony, drunk driving. Upon de novo review of a magistrate judge’s report, the district court dismissed the complaint as meritless. In his timely appeal, White argues that he was wrongly convicted and that he is entitled to have his conviction reversed. The district court’s judgment is reviewed de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). White’s complaint is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that a state prisoner cannot make a cognizable claim under § 1983 for an alleged unconstitutional conviction or for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” unless a prisoner shows that the conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87, 114 S.Ct. 2364. Furthermore, the claim is not cognizable and must be dismissed whether the plaintiff seeks to obtain monetary damages or to attack the validity of his confinement. Id. at 487, 114 S.Ct. 2364; see also Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (habeas corpus proceeding, not § 1983, is appropriate remedy for a state prisoner to attack the validity or length of his sentence). *37As White’s conviction has not been invalidated, any ruling on White’s arguments would call into question the validity of his conviction. Thus, the district court did not err in dismissing White’s civil rights complaint. Heck, 512 U.S. at 486-87, 114 S.Ct. 2864. Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218189/

PER CURIAM. This case arose from a contract dispute between defendant-appellant ePlus Group, Inc. (ePlus) and plaintiff-appellee Digital Storage, Inc. (Digital). The facts are undisputed. Defendant ePlus leased computer equipment to Digital for a term of three *38years ending on November 80, 2000. The lease would renew for a three-month period unless either party provided ninety days notice to the other of its intent to terminate the lease. Digital could purchase the equipment at the end of the lease for fair market value, if Digital notified ePlus of its intent to do so at least sixty days before the lease terminated. On August 31, 2000, Digital notified ePlus of its intent to terminate the lease in ninety days. On September 29, 2000, Digital attempted to exercise its purchase option. After initially making offers to sell the equipment, ePlus then refused, contending that Digital could not exercise its purchase option after providing notice of its intent to terminate the lease. Digital sued for breach of contract, breach of the obligation of good faith and fair dealing, and unjust enrichment. It sought declaratory judgment and specific performance of the purchase option provision. Additionally, ePlus counterclaimed for anticipatory breach of contract, claiming that Digital was a holdover tenant and seeking monetary damages. Both parties moved for summary judgment. The district court granted summary judgment in favor of Digital, finding that Digital’s notice of intent to terminate the lease in ninety days did not extinguish its purchase option and that Digital properly exercised the purchase option. It stated that “[tjhere is no language in the contract stating that the purchase option was invalidated once a party gave notice of intent to terminate. As long as the contract remained in effect, so too did the purchase option.” Digital Storage, Inc. v. ePlus Group, Inc., No. C-2-01-002, 2001 WL 1678786 (S.D.Ohio Nov. 16, 2001). Among other cases, the district court cited Shell Oil Co. v. Addessi, 363 F.2d 101, 103 (1st Cir.1966), which states, “If a period of notice is required, the contract remains in force and must continue to be performed according to its terms during the specified period after receipt of the notice of termination.” The district court also held that ePlus breached the lease contract by refusing to permit Digital to exercise its purchase .option. Finding that specific performance was the most cost- and time-efficient form of relief, the district court ordered ePlus to sell the equipment to Digital for the value at which it had been appraised. ePlus now appeals that decision. It contends that the district court should have held that the notice of intent to terminate the lease terminated the purchase option immediately. For the reasons articulated by the district court in its summary judgment order, we agree that Digital’s notice of intent to terminate the lease did not terminate it immediately, but rather provided for termination ninety days after the notice. This holding is supported by the termination provision in the contract as well as the language of the notice itself. In this case, it is undisputed that the purchase option is part of the lease, such that it was valid as long as the lease itself remained in effect. Therefore, the purchase option was still in effect when Digital attempted to exercise it. Having had the benefit of oral argument, and having studied the record on appeal and the briefs of the parties, we are not persuaded that the district court erred in granting summary judgment in favor of Digital. Because the reasons why judgment should be entered for ePlus have been fully articulated by the district court, the issuance of a detailed opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we affirm the judgment of the district court upon the reasoning set out by that court in its opinion and order entered November 16, 2001.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218191/

PER CURIAM. The defendant, Anthony Foster, pleaded guilty to one count of possession with intent to distribute cocaine base in exchange for an agreement by the government not to prosecute him on a similar count of possession with intent to distribute cocaine powder. The district judge sentenced Foster to 120 months in prison, but recognized the defendant’s reservation of his right to appeal to this court the decision to deny a motion to suppress the drug evidence. We find no reversible error and affirm. FACTUAL AND PROCEDURAL BACKGROUND In the early morning hours of November 6, 1999, Kentucky State Trooper Joseph Johnson stopped a vehicle traveling south on Interstate 75 near Crittenden, Kentucky. According to Johnson, the maroon Buick, driven by Anthony Foster, ap*43peared to have no illuminated license tag, in violation of applicable Kentucky statutes. After approaching the vehicle, however, Johnson noticed a temporary license tag affixed vertically, rather than horizontally, to the rear windshield of the car. It was not illuminated. As a result, Johnson approached the driver and asked to see Foster’s driver’s license. When the defendant stated that he had no license with him because it had been revoked, Johnson initiated efforts to confirm the driving status of the defendant by contacting the police dispatcher. Because Foster had, in fact, never been licensed to operate a motor vehicle, efforts to obtain information from the defendant’s home state of Illinois also proved futile. Trooper Johnson continued to investigate the situation, and when he was unable to document the registration of the vehicle itself, he called for assistance from another available trooper. Foster was admittedly very cooperative with the officers’ requests and even handed Johnson an identification card in an effort to expedite matters. A passenger in the car also provided paperwork that indicated that an individual other than Foster was the registered owner, but efforts to corroborate that information also failed. Johnson then allegedly asked the defendant whether the troopers could look inside the trunk of the Buick. Although Johnson and another trooper testified at a suppression hearing that Foster freely agreed to the inspection by retrieving the keys from the ignition and unlocking the trunk, the defendant himself maintained that the law enforcement officers directed him to open the trunk and offered no opportunity to withhold consent. Within 25-30 minutes after the initial stop of the defendant’s vehicle, the officers searched the trunk and found a paper sack in that storage area. The sack contained a significant quantity of cocaine powder and cocaine base packaged for distribution. Once the container was discovered, however, Foster fled on foot, only to be recaptured later in Illinois. Following the defendant’s flight from the scene of the traffic stop, the police conducted a further examination of the vehicle at the roadside and confiscated a cellular telephone plugged into the car’s cigarette lighter. Eventually, the phone was activated and a revealed telephone number assigned to Foster. After his arrest and arraignment, Foster filed a motion with the district court to suppress the contraband and the telephone seized from the automobile. In that motion, he contended that the initial traffic stop was illegal, that the detention was unconstitutionally lengthy, that the troopers had no consent to search the trunk, and that the search and seizure of the cellular phone violated Fourth Amendment principles. When the district judge denied the motion in its entirety, Foster entered a guilty plea but specifically reserved the right to appeal the propriety of the suppression decision to this court. Based upon the defendant’s extensive criminal history, the district court sentenced Foster to 120 months in prison. In accordance with the reservation of rights made in the plea agreement, however, the defendant now challenges the legal validity of the district court’s decision to deny the motion to suppress the evidence of his guilt. DISCUSSION I. Legality of Initial Stop of Vehicle On appeal, Foster first contends that the initial stop of the vehicle he was driving was improper and, consequently, that any information or evidence gathered from that detention cannot be used against him in court. The defendant’s assertion of unconstitutional conduct is premised upon Foster’s belief that he had violated no *44Kentucky traffic law that would justify the stop. As we have consistently held, however, “so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resultant stop is not unlawful and does not violate the Fourth Amendment.” United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir.1996) (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993) (en banc)). “The probable cause determination turns on ‘what the officer knew at the time he made the stop. ’ ” Id. (quoting Ferguson, 8 F.3d at 391) (emphasis in original). In this case, Trooper Johnson testified that on the night of the stop, he could not see an illuminated license plate on Foster’s vehicle due to darkness. Because Kentucky Revised Statute § 186.170(1) provides unequivocally that “[pjlates shall be kept legible at all times and the rear plate shall be illuminated when being operated during the [period from one-half Qf¡) hour after sunset to one-half Qk) hour before sunrise],” see also K.R.S. § 189.030, the trooper clearly had probable cause to stop the vehicle for an apparent violation of applicable traffic laws. Foster argues forcefully that he did, in fact, have a temporary tag taped inside his rear windshield that and no state statute or regulation specifically requires that temporary tags be illuminated at night. According to the defendant, therefore, there was no probable cause for Johnson to believe Foster was in violation of any traffic regulation. However, the lack of a specific provision in the Kentucky code dealing with temporary license tags does not necessarily imply that they need not also be illuminated at night. More logically, the absence of a provision exempting temporary tags from the general applicability of K.R.S. § 186.170(1) supports the proposition that they are subject to the same illumination requirements as are permanent plates.1 Moreover, the mere fact that few stops or arrests are actually made for violation of that code provision does not diminish its applicability. II. Propriety of the Detention of the Defendant The next question presented by this appeal is whether, after legally stopping Foster, the law enforcement officers illegally detained the defendant beyond the time necessary to resolve the traffic incident that precipitated the encounter. Our analysis of this allegation of error is governed by our decision in United States v. Mesa, 62 F.3d 159 (6th Cir.1995). In that case, we held simply that “[o]nce the purposes of the initial traffic stop were completed, ... the officer could not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention.” Id. at 162. Had Foster been stopped solely for failing to display a registration plate on his vehicle, an argument could be made that Johnson’s discovery of the temporary tag obviated any further need to detain the defendant and that, as a result, no further investigation was proper.' This, however, was not the case here. Testimony before the district court established unequivocally that Foster was stopped both for failure to display the license plate properly and for failing to illuminate it. Even though Foster now insists that he could not be stopped for failing to illuminate a tempo*45rary license tag because no Kentucky statute specifically requires that he do so, we conclude that the Commonwealth’s statutory scheme, as presently written, contains no such exemption. Because no statute exempts drivers of vehicles with temporary plates from the display and the illumination requirements of K.R.S. § 186.170(1), there was probable cause to believe that the defendant’s vehicle was in violation of a traffic regulation. Moreover, the fact that the temporary tag appeared to be taped sideways in the back window could create a reasonable suspicion that the driver was attempting to obscure the information that appeared on the tag, thus justifying further investigation by the trooper. Armed with a reasonable basis to stop the vehicle, Johnson was also authorized to request documentation concerning the vehicle’s registration and Foster’s license to operate the car. Once- the defendant was unable to produce such information, a violation of K.R.S. § 186.620(2), the trooper was then permitted to seek verification of the explanation offered by Foster through the police’s computer records. See, e.g., United States v. Erwin, 155 F.3d 818 (6th Cir.1998) (en banc) (after the reason for the stop is satisfied, police may continue detention if there is then reasonable and articulable suspicion that the defendant is engaged in other criminal activity). It was that attempt at verification that accounted for the vast majority of the time the defendant was detained at the side of the interstate. Such detention was, therefore, proper under the unique facts of this case and does not give rise to a legitimate cause of action for a Fourth Amendment violation. III. Validity of Consent to Search the Vehicle Foster next contends that, even if the stop and detention were proper, Johnson had no constitutional justification for searching the trunk of the car the defendant was driving. The district court concluded, however, that Foster knowingly and voluntarily gave his consent for the search, thus obviating the necessity for the government to establish probable cause for the intrusion. The evaluation of the voluntariness of an alleged consent to search “is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consequently, a district court’s decision regarding consent will not be overturned on appeal unless that determination is clearly erroneous. See United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999). In this case, defendant Foster testified that he retrieved the car keys from the ignition and unlocked the trunk only because he believed that the officers directed him to do so and that he had no other option but to comply with their demand. Such capitulation, argues the defendant, is “merely a response conveying an expression of futility in resistance to authority or acquiescing in the officers’ request,” id. at 386, and is not tantamount to an unequivocal statement of free and voluntary consent. However, the government witnesses who testified at the suppression hearing claimed that Foster was asked whether the police could look in the trunk and that the defendant freely and voluntarily consented to that search, obtained the keys, and unlocked the locked compartment himself. The district judge had the opportunity to view the witnesses and assess their credibility, and he was able to review the videotape of the encounter made by a camera in the trooper’s patrol car. After doing so, he concluded that the defendant freely consented to the *46search. Based upon the record testimony before this court on appeal, such a determination cannot be classified as clear error. Likewise, there is no merit to Foster’s assertion that the officers exceeded the scope of the consent by looking into the paper bag found in the trunk. Having obtained valid consent to examine the trunk, the troopers were, in the absence of a revocation of consent by the defendant or express limitations on the scope of that consent, justified in examining the contents of the sack found there. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). TV. Search of the Cellular Telephone Finally, Foster argues that the police infringed upon his Fourth Amendment rights when the troopers seized a cellular telephone plugged into his vehicle’s cigarette lighter and when the police later activated that phone and recorded the fist-ed telephone number. By the time the officers confiscated the phone, however, the defendant had fled from the scene and had abandoned the vehicle he was driving. Such abandonment extinguishes any reasonable expectation of privacy the defendant might once have had in the property, together with any accompanying Fourth Amendment protections. See United States v. Oswald, 783 F.2d 663, 666 (6th Cir.1986). Furthermore, even had a violation of Foster’s Fourth Amendment rights occurred as a result of the seizure of the cell phone, any error in its admission was harmless beyond a reasonable doubt. According to the testimony offered at the suppression hearing, only the phone number associated with the device was recovered from the seized phone itself. Because the defendant does not dispute the fact that he gave the troopers his correct name and even offered them an identification card in an effort to establish his right to operate the motor vehicle, the phone number at issue would have inevitably been discovered by the police through routine investigation. This claim of error is, therefore, also without merit. CONCLUSION For the reasons set out above, we AFFIRM the judgment of the district court. . At oral argument, the parties agreed that the temporary tags in this case were issued in Illinois, not in Kentucky- Although such information does not appear in the record now before us, we are confident that no "full faith and credit” challenge to the arrest under Article IV, § 1 of the United States Constitution is viable, because the Illinois statutes are essentially identical to Kentucky’s in all aspects relevant to this dispute. See, e.g., 625 Ill. Comp. Stat. 5/12-201(c)(2002).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218193/

ORDER Nazmi Potka, a native of Albania, petitions for review of a Board of Immigration Appeals order that affirmed without opinion a decision of the immigration judge that denied Potka’s application for asylum. The parties have waived oral argument in this case. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Potka applied for admission to enter the United States in 1996 without valid entry documents. Potka applied for asylum on the ground that he was persecuted in Albania on the basis of his anti-Communist political beliefs, and a well-founded fear of further persecution if he returns. The Immigration and Naturalization Service issued a notice to appear charging Potka with being subject to removal because of inadmissibility, and the Immigration Judge conducted a hearing on December 11, 1997. The Immigration Judge denied Potka’s petition, and Potka appealed the decision pro se. The Board of Immigration Appeals affirmed the Immigration Judge’s decision without opinion in a per curiam order, and this timely petition for review followed. *51Before this court, Potka is represented by counsel, and contends that he should be granted asylum and deportation should be withheld because he was persecuted and has a well-founded fear of persecution if he is returned to Albania. The government responds that the Immigration Judge’s decision is supported by substantial evidence, and moves to substitute the United States Attorney General as the proper respondent in this case. This court reviews a decision denying asylum to determine whether it is supported by substantial evidence, and may not grant a petition for review merely because it would have decided the case differently. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998). A petition for review may be granted only if the evidence is so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. INS v. EliasZacarias, 502 U.S. 478, 481, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The evidence in this case does not meet this standard. Potka does not dispute the Immigration Judge’s summary of the evidence of record, which need not be reiterated at length herein. However, the Immigration Judge noted that Potka presented credible evidence that members of his family suffered persecution at the hands of the Communist government no longer in power in Albania. In particular, Potka testified that his mother was killed, and Potka saw her body dragged through the streets after she was captured during an attempt to escape Albania into Greece in 1974. Nonetheless, the Immigration Judge determined that Potka did not meet his burden of showing that he was persecuted by the former Communist government. Rather, the evidence suggests that Potka was harassed by the Albanian government only during the period 1987-91, in 1987 as a result of Potka’s cousin’s escape from the country, and in 1991 when Potka helped topple a statute of a Communist leader. Evidence that supports Potka’s contention that his treatment ever subsequently rose to the level of persecution is inconsistent and therefore not credible. Thus, the evidence does not support Potka’s contention that he has a well-founded fear of persecution if he is returned to Albania. In 1991, elections in Albania swept the Communist government out of office. Evidence that Potka has anything to fear if returned to Albania is vague and scant. The evidence in this case is not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See Elias-Zacarias, 502 U.S. at 481, 484. Moreover, Potka’s experiences at no point were comparable in degree or severity to the experiences of those aliens that the courts have found deserving of asylum in the absence of a well-founded fear of persecution. See, e.g., Bucur v. INS, 109 F.3d 399, 405 (7th Cir.1997) (holding that the granting of asylum on the basis of past persecution alone is to be reserved for “the case of the German Jews, the victims of the Chinese ‘Cultural Revolution,’ survivors of the Cambodian genocide, and a few other such extreme cases”). See also 8 C.F.R. § 208.13(b)(1)(iii)(A)(2001) (allowing asylum on the basis of past persecution without a fear of future persecution where there are “compelling reasons for being unwilling or unable to return to the [applicant’s] country arising out of the severity of the past persecution”). Accordingly, the petition for review of the decision of the Board of Immigration Appeals must be denied. Finally, the motion to substitute the Attorney General as respondent will be granted. The government correctly notes that 8 U.S.C. § 12(b)(3)(A) provides that the Attorney General is the proper respondent in an action for judicial review of a *52Board of Immigration Appeals order. See Westerner v. Reno, 202 F.3d 475, 477 n. 1 (1st Cir.2000). Accordingly, the motion to substitute the Attorney General as respondent is granted. For the foregoing reasons, the motion to substitute is granted, and the petition for judicial review of the Board of Immigration Appeals order is denied.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218194/

ORDER John C. Collie appeals his judgment of conviction and sentence. The case has been referred to this panel pursuant to Rule 34(j)(l). Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. Fed. R.App. P. 34(a). Collie pleaded guilty to charges that he bribed a public official and committed mail fraud, violations of 18 U.S.C. §§ 201(b)(1)(C). 1341. He was sentenced to fifteen months of imprisonment to be followed by three years of supervised release. In this timely appeal, Collie’s appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Collie was notified of counsel’s motion to withdraw, but he has not responded. *53The Anders brief submitted by counsel reflects that counsel has reviewed the entire record and proceedings. Independent review of the record shows that counsel accurately submits that this case presents no colorable issue for appeal. The district court properly accepted Collie’s valid guilty plea. A plea of guilty is valid if entered knowingly, voluntarily, and intelligently; its validity is determined under the totality of the circumstances. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Constitution requires that such circumstances reflect that the defendant be informed of all the direct consequences of his plea. Brady, 397 U.S. at 755. The district court assured itself that Collie understood the constitutional rights he was waiving, the statutory maximum sentences he faced, and the applicability of the Sentencing Guidelines. The district court explained that no specific sentence was guaranteed by the plea agreement. Fed. R.Crim.P. 11(c)(1), (c)(3), (c)(6). Finally, the court painstakingly established that there was a factual basis for Collie’s plea. The district court committed no prejudicial error in sentencing Collie. At sentencing. Collie objected only to the denial of a reduction in offense level for acceptance of responsibility. The court granted Collie the maximum three-level reduction for accepting responsibility, see § 3El.l(b), which produced a guideline sentencing range of 12-to-18 months of imprisonment. The court sentenced Collie in the middle of this range. Collie waived any other claim of error by failing to object to the presentence report. United States v. Ward. 190 F.3d 483, 492 (6th Cir.1999). The record discloses no other nonfrivolous issue. Accordingly, we GRANT counsel’s motion to withdraw and AFFIRM the district court’s judgment of conviction and sentence. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218196/

ORDER In March 1997 federal inmate Jerome Jerricks, then incarcerated at Pontiac Correctional Center in Illinois, suffered a stroke that left him partially paralyzed on his right side. In July 1999 Jerricks was found guilty of violating prison rules; as a result, the prison rescinded his access to yard recreation for 30 days. In August 1999 Jerricks again was found guilty of violating prison rules; this time the prison revoked his yard time for 60 days. In September 1999 he lost another 90 days’ yard time for committing yet another disciplinary violation. In November 1999 the prison found Jerricks guilty of damaging property and of disobeying a guard’s order. Soon thereafter, Jerricks filed a grievance challenging this most recent punishment, but an administrative review board denied his claim. In March 2000 the prison found Jerricks guilty of assault and imposed another 180 day yard restriction. As a result of these disciplinary infractions, Jerricks was denied yard access for approximately 14 months, from July 29,1999 until October 2000. Jerricks brought this civil rights action, see 42 U.S.C. § 1983, in federal district court alleging that Warden James Schomig and Lieutenant Benny Dallas violated his Eighth Amendment rights by denying him yard access for over 14 months. Jerricks claimed that this time without yard access, sunshine, and fresh air caused him great suffering and muscle atrophy. In December 2000 the district court dismissed his complaint sua sponte under the screening mechanism of 28 U.S.C. § 1915A for failure to state a claim. The court concluded that Jerricks failed to allege that the defendants denied him all forms of exercise or that he suffered physical harm as a result of the prison’s disciplinary action. It also noted that Jerricks has no constitutional right to sunshine and fresh air. We review the district court’s dismissal de novo and will affirm only when it appears beyond doubt that no set of facts supports the plaintiffs claims. Wynn v. Southward, 251 F.3d 588, 591-92 (7th Cir.2001) (per curiam). Because Jerricks is proceeding pro se, we construe his complaint liberally and subject it to less stringent scrutiny than complaints prepared by counsel. See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.2001). We believe the district court dismissed Jerricks’s complaint prematurely. Jerricks alleged that the defendants caused him great suffering by denying him yard access, sunshine, and fresh air every day from July 29, 1999 until October 2000. Although the court concluded that he did not state a claim under the Eighth Amendment, the defendants do not ask us to affirm on this ground and with good reason-we have recognized that less severe deprivations than the one Jerricks suffered may violate the Constitution. See Delaney v. DeTella, 256 F.3d 679, 684 (7th Cir.2001) (inmate denied yard access for six months suffered sufficient constitutional deprivation); Pearson v. Ramos, 237 F.3d 881, 884-85 (7th Cir.2001) (denial of yard privileges for more than 90 days may be cognizable under Eighth Amendment); see also Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 810 (10th Cir.1999) (nine-month denial of outdoor exercise states Eighth Amendment claim). The defendants advance another basis for affirming-exhaustion-but their argument is unavailing. They claim that Jerricks only challenged one of his disciplinary sanctions, and not the other four. But failure to exhaust is an affirmative defense, which the defendants have yet to *59plead; therefore, dismissal on this ground would not have been appropriate. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002). The defendants acknowledge that failure to exhaust is an affirmative defense, but claim that the district court could have dismissed the complaint for frivolousness under § 1915A because Jerricks’s failure to exhaust is obvious from the face of the complaint. See id. But this conclusion is anything but clear. Although Jerricks attached only one grievance to his civil rights complaint, he also alleged that he had utilized the prison’s grievance procedure to obtain relief. Consequently, the affirmative defense of failure to exhaust is not “so plain from the face of the complaint” as to warrant dismissal. See id. Moreover, even if Jerricks only filed one grievance, he had already been deprived of yard time for approximately four months when it was filed, a sufficient length of time to trigger constitutional protection. See Delaney, 256 F.3d at 684; Pearson, 237 F.3d at 884-85. We therefore VACATE the district court’s judgment and REMAND for further proceedings. In light of this disposition, Jerricks should not have been assessed a strike under 28 U.S.C. § 1915(g).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218198/

ORDER Luther Woods, an African-American, was terminated from his position as a dep*66uty sheriff of Perry County, Illinois, after Sheriff Keith Kellerman concluded that Woods had violated several departmental rules. Believing that the real reason for the Sheriff’s action was race discrimination, Woods decided to challenge it in a lawsuit filed against Sheriff Kellerman, the County, and the Perry County Sheriff’s Office in the Southern District of Illinois. The district court dismissed the claims against the county defendants and granted summary judgment to Sheriff Kellerman. Woods appeals, and we affirm. I Woods began his employment as a deputy patrolman in the Perry County Sheriffs Office in 1987 under then-Sheriff Sam Heller. At the time he was hired, Woods received a copy of the Perry County Sheriffs Department Policy and Procedures Manual (the “Manual”), which set forth the rules that deputies are required to follow. Woods admitted that he read and understood the Manual. Woods worked as a patrolman until 1998, when he became a D.A.R.E. (Drug Abuse Resistance Education) officer. Sheriff Heller was replaced after Sheriff Kellerman was elected to that post in December 1998. During his tenure with the Sheriffs Office, Woods was subjected to numerous disciplinary actions. For example, Sheriff Heller suspended Woods for four days after equipment was stolen from his unlocked patrol car. On another occasion, Sheriff Heller suspended him for one day when he ignored a lieutenant’s order to stay away from sheriffs dispatcher Sandra Coleman. Woods also violated department rules after Sheriff Kellerman took over. In August 1999 Woods admitted that he had taken gasoline from the county for his personal use on two or three occasions even though he knew that this type of petty theft violated rules in the Manual. Sheriff Kellerman issued Woods a written reprimand for his conduct and warned that similar conduct could lead to his termination. In October 1999 a dispatcher accused Woods of having an unauthorized female in his patrol car. Woods denied the allegation, and nothing came of it. Also in October 1999 Sheriff Kellerman spoke with Woods about an allegation that he was speeding in his patrol car, but again the Sheriff let the matter drop. Woods also received a verbal reprimand for “loafing and hanging out” at the Du-Quoin, Illinois, city hall when he should have been working. Woods admitted that Sheriff Kellerman also disciplined white employees from time to time, including issuing verbal warnings and suspensions to some, and terminating (or seeking the resignation of) several others. In May 2000 Woods, while on duty, drove his friend, Joe Clark, in his patrol car to a restaurant for lunch. Sheriff Kellerman learned about the incident and advised Woods that he did not want Woods to have Clark in his car; he did not otherwise discipline Woods for the incident. Woods acknowledged that his conduct violated Rule 21 of the Manual regarding unauthorized persons in police vehicles. Clark subsequently pleaded guilty to the felony charge of possession of a controlled substance, at which point Chief Deputy Michael Plumlee advised Woods that the Manual prohibited deputies from associating with convicted felons. Notwithstanding the direct order from Sheriff Kellerman and the warning from Chief Deputy Plumlee, in August 2000 Woods agreed to allow Clark to accompany him to Springfield, Illinois, where Woods had police business. He picked up Clark in a marked police car. Woods knew that allowing Clark to ride in his car would violate the Sheriff’s direct order. Two months later Sheriff Kellerman learned *67about the trip and initiated an investigation. He spoke with Clark, who admitted that he had accompanied Woods to Springfield. Sheriff Kellerman and his attorney then met with Woods and Woods’s union attorney; at that meeting, Woods admitted that Clark rode with him to Springfield. After the meeting the Sheriff offered Woods the chance to resign, but Woods rejected that option. The parties attempts ed to negotiate a lesser punishment for Woods, but when they could not reach agreement, Sheriff Kellerman fired Woods on October 17, 2000. In a memorandum to Woods, Sheriff Kellerman stated that Woods was fired “for [his] association with Joseph Clark who recently plead guilty to felony charges pertaining to cocaine and methamphetamine” and for “disobedience of orders to [him] pertaining to having contact with Joseph Clark.” The memorandum also stated that Woods had violated numerous provisions of the Manual, including rules regarding disobedience of orders (Rule 2), associating with persons convicted of a felony (Rule 8), having unauthorized persons in a police vehicle (Rule 21), not being truthful (Rule 25), and engaging in conduct that has a tendency to destroy respect for or confidence in the Sheriffs Office (Rule 33). Woods grieved his dismissal through his union, but it was denied. As a result of his termination from the Perry County Sheriffs Office, Woods also was decertified as a D.A.R.E. officer. Woods filed a complaint with the EEOC alleging that he was terminated on the basis of his race and was denied his constitutional right to equal protection of the laws. After the EEOC issued a right-to-sue letter, Woods filed this suit in the district court, asserting that Sheriff Kellerman’s actions had violated 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. The district court dismissed with prejudice all of his claims against the County and the Sheriff’s Office; Woods has not pursued those claims on appeal, and thus we have no need to discuss them further. After discovery the district court granted Sheriff Kellerman’s motion for summary judgment, concluding that Woods had failed to prove discrimination under the “direct” method because he provided no evidence apart from his own hearsay testimony that others had stated that Sheriff Kellerman was racist. The court also determined that Woods had not proven discrimination under the indirect method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because he did not show that any similarly-situated white employees were treated differently from himself or that Sheriff Kellerman’s proffered reason for firing him was a pretext for discrimination. The court rejected Woods’s equal protection claim because he failed to demonstrate that he was treated differently from individuals outside the protected class. II On appeal Woods has focused on the district court’s decision to grant summary judgment to Sheriff Kellerman on the §§ 1981 and 1983 claims. We review the district court’s determination de novo, taking all of the facts and reasonable inferences drawn therefrom in Woods’s favor. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir.2002). Woods first asserts that the district court was mistaken in its evaluation of his § 1981 claim, insofar as it rested on direct proof of race discrimination. He argues that two statements from fellow Sheriffs Office employees show that Sheriff Kellerman fired him because of his race: 1) during a conversation between Woods and Liz Phillips, an African-American dis*68patcher, Phillips allegedly stated that Sheriff Kellerman was prejudiced against blacks; and 2) in response to Woods’s comment that Sheriff Kellerman had problems with him because he was black, Chief Deputy Plumlee responded, “you know, well, you’re right.” These statements fall short of direct evidence of discrimination for several reasons. First, the only person to testify to the statements was Woods himself, and so (as the district court recognized) they are inadmissible hearsay. Boyce v. Moore, 314 F.3d 884, 889 (7th Cir.2002). Moreover, Woods did not present any evidence that either statement was made contemporaneously with his termination or was causally related to Sheriff Kellerman’s decision-making process, nor did he establish a “real link between the [alleged] bigotry and an adverse employment action.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.2001); see also Markel v. Board of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 910 (7th Cir.2002). The district court therefore was correct to conclude that Woods had no direct evidence of discrimination. Woods also argues that the district court erred by rejecting his indirect method of proving his § 1981 claim, using the McDonnell Douglas approach. See Alexander v. Wisconsin Dep’t of Health and Family Servs., 263 F.3d 673, 682 (7th Cir.2001) (McDonnell Douglas indirect analysis applicable to § 1981 claims). In order to meet his initial burden under McDonnell Douglas, Woods needed to set forth a prima facie case of discrimination by demonstrating that 1) he is a member of a protected class; 2) he was meeting the legitimate expectations of his employer at the time of his discharge; 3) he was discharged; and 4) similarly situated employees outside of the protected class were treated more favorably. Peters, 307 F.3d at 545. The district court concluded that Woods met the first three elements, but failed to establish that any similarly-situated white employees were treated differently than he was. Here, as in the district court, Woods identifies a number of white Sheriff’s Office employees who engaged in misconduct but were not terminated. When disparate discipline is asserted, a plaintiff must demonstrate that he or she was punished differently from other employees who are “similarly situated with respect to performance, qualifications, and conduct.” Ra-due v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir.2000). Employees are only similarly situated, however, if they deal with the same supervisor, are subject to the same standards, and engage in similar misconduct. Id. at 617-18. In his brief, Woods argues that several white employees were comparable to him, yet they were not fired for their infractions. He first identifies two correctional officers, Estep and Helsley, who were suspended rather than fired by Sheriff Kellerman after they violated departmental rules. Woods, however, was a deputy patrolman and D.A.R.E. officer, not a correctional officer, and he presented no evidence to show that the positions were comparable or subject to the same standards. Id. at 618; see also Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d 644, 651 (7th Cir.2001) (individuals holding different positions not similarly situated); Peters, 307 F.3d at 546 (plaintiff bears burden of establishing similarity between himself and the allegedly comparable employees). Additionally, the conduct for which Woods was terminated is not similar to that of the correctional officers - an inmate escaped from jail under Estep’s watch (although Estep apparently prevented a second from also escaping at the same time), and Helsley was *69caught sleeping on the job. Peters, 307 F.3d at 547; Radue, 219 F.3d at 618. Second, Woods claims he is similarly situated to two white deputy patrolmen who violated department rules but were not fired. Jerry Speers was not disciplined after a county resident complained that he was harassing her by driving back and forth in front of her house in a patrol car. But Woods failed to establish that Speers’s conduct was as severe as his, because there is no evidence that Speers had violated a superior’s order not to engage in that conduct. See Peters, 307 F.3d at 547. Woods also asserts that Speers and Jamie Ellermeyer were not disciplined after an incident in which they pulled over a motorist who appeared to be drunk but decided not to administer a breathalyzer test or take him into custody. The decision to leave a dangerous driver on the road, Woods argues, violated a departmental rule regarding neglect of duty. But Woods again has not shown that then-conduct was comparable to his, because Sheriff Kellerman’s undisputed deposition testimony shows that officers have discretion whether to ticket motorists and thus this decision, while perhaps ill-advised, did not amount to a violation of any department rules. Woods also asserts that two other employees violated some of the same rules he did but were not punished. He points out that Sheriff Kellerman himself was not disciplined when he was a deputy sheriff after he refused to obey a superi- or’s order. But Sheriff Kellerman obviously was not under the same supervisor as Woods (since Woods’s ultimate supervisor was Sheriff Kellerman at the time he was disciplined), and so this earlier incident cannot help Woods. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002) (employees with different supervisors not similarly situated). He also argues that Chief Deputy Plumlee played golf with a convicted felon but was not punished for violating the department’s rule against consorting with criminals. Sheriff Kellerman’s uncontradicted evidence, however, shows that Chief Deputy Plumlee had not been ordered not to see the person in question. See Peters, 307 F.3d at 547. Additionally, Woods and Chief Deputy Plumlee did not hold the same job at the time, and they were therefore not similarly situated. Hoffman-Dombrowski, 254 F.3d at 651. Woods also makes a broad assertion that “Sheriff Kellerman has not enforced department Rule 21 regarding unauthorized persons in police vehicles other than in regard to Deputy Woods.” Although he states that “[e]very deputy has operated a patrol car with unauthorized persons in the vehicle,” he did not provide any evidence that other deputies ignored an explicit order not to have a particular individual in their car, as he did, and thus he failed to establish that the other deputies were similarly situated. See Peters, 307 F.3d at 547. The district court therefore correctly held that Woods failed to establish a prima facie case of race discrimination under § 1981. Woods also challenges the district court’s determination that he failed to establish that Sheriff Kellerman’s proffered reason for firing him was merely a pretext for discrimination. We need not reach this argument, because Woods failed to establish a prima facie case of race discrimination. Even if we did consider it, however, Woods failed to present evidence that Sheriff Kellerman’s stated reasons for firing him were pretexted. In the discrimination context pretext is “deceit used to cover one’s tracks.” Grayson v. O’Neill, 308 F.3d 808, 819 (7th Cir.2002) (quoting Grube v. Lau Indus., Inc., 257 F.3d 723, 730 (7th Cir.2001)). To demonstrate pretext, Woods needed to establish that Sheriff Kellerman’s reasons for firing him had *70no basis in fact, did not actually motivate his decision, or were insufficient to support the decision. Grayson, 308 F.3d at 820. Woods asserts that he had a worthy reason for disregarding the order about Clark, namely, that Clark was threatening to commit suicide, and Woods felt entitled under the Law Enforcement Code of Ethics to take steps to safeguard Clark’s life. But he does not contest that his conduct violated numerous departmental rules and was in direct contravention to Sheriff Kellerman’s order not to have Clark in his car, nor does he dispute that violating departmental rules constitutes an adequate basis for terminating his employment. Woods therefore did not demonstrate that Keller-man’s proffered reason for firing him was untruthful and pretextual. Woods also argues that the district court erroneously concluded that he faded to demonstrate that Sheriff Keller-man’s actions violated his equal protection rights. He asserts that the district court erred in granting summary judgment because the evidence showed that “Keller-man’s decision to terminate [him] for rules violations is an action that, though taken only once, exhibits a custom of favoring white deputies over the only black deputy.” In support of his argument, Woods cites Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), for the proposition that a governmental entity may be hable when one of its policymaking employees violates an individual’s constitutional rights. But that case is inapposite because it dealt with municipal liability for single discriminatory act by a municipal employee, not individual liability. See id. at 480-184. To the extent that Woods is attempting to argue that the district court erred by dismissing his equal protection claims against the county defendants, we will not consider it because he waived it by never raising this argument in the district court. (Indeed, he did not even file a response to the defendants’ motion to dismiss his claims against the County and the Sheriffs Office.) Grayson v. City of Chicago, 317 F.3d 745, 751 (7th Cir.2003). To the extent that Woods is asserting that the district court erroneously granted summary judgment to Sheriff Kellerman on his equal protection claim, his argument is also without merit. To avoid summary judgment, Woods needed to establish that 1) he is a member of a protected class; 2) he was similarly situated to members of an unprotected class; and 3) he was treated differently than members of the unprotected class. Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 997 (7th Cir.2002). The district court properly granted summary judgment on Woods’s equal protection claim, however, because as with his race discrimination claim he failed to demonstrate that he was treated differently from any similarly situated white employees. Id. at 998; Ibarra v. Martin, 143 F.3d 286, 292 (7th Cir.1998). For these reasons, we Affirm the judgment of the district court.

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ORDER We first met Ricky Swift and Joseph Taylor when the government appealed an order of the district court suppressing evidence which revealed that they robbed a bank in Osceola, Indiana. We reversed that decision. United States v. Swift, 220 F.3d 502 (2000). During their subsequent trial, Swift and Taylor contended that a police officer changed his testimony relevant to the suppression issues; they again asked the district judge to suppress the evidence. He declined, relying on the law of the case established by our decision. Swift and Taylor appeal that issue and, in addition, contend that the juror selection plan of the Northern District of Indiana is unconstitutional because it failed, in their case, to produce a jury pool with at least one minority member. We reject both arguments. Our earlier decision sets out in copious detail the facts about this robbery; mercifully, we will not repeat them here. The alleged change in testimony involved whether this case involved two Terry stops rather than one as our decision implied. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At trial, Officer Hurley seemed to be uncertain whether after the stop Swift was allowed to get back into his Jeep. Hurley also said that he “may have” handed back to Swift the vehicle registration, whereas his normal practice was to retain the registration until the Terry stop is completed. The registration was found in the glove box when the Jeep was later searched. This, Swift and Taylor assert, means that they were stopped, let go, and stopped again. Officer Hurley’s trial testimony does not change our original conclusion. *72For one thing, we are not convinced that there were, in fact, two Terry stops. Cf. United States v. Peters, 10 F.3d 1517 (10th Cir.1993); United States v. Garcia, 23 F.3d 1331 (8th Cir.1994). More importantly, there is nothing here which would have allowed the district judge to ignore the law of the case. It is well-established that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” United States v. Feldman, 825 F.2d 124, 130 (7th Cir.1987); United States v. Story, 137 F.3d 518 (7th Cir.1998). It is true that in an extraordinary circumstance the doctrine does allow some flexibility. See, e.g., United States v. Buckley, 251 F.3d 668 (7th Cir.2001); Evans v. City of Chicago, 873 F.2d 1007 (7th Cir.1989). But this is not such a case. For another reason, the decision as to Taylor is the law of the case. We found that he lacked standing to assert claims as to the seized evidence. Nothing presented here would move us to change that conclusion. The defendants’ objections to the jury plan as unconstitutional and a violation of the Jury Selection and Service Act of 1968 (28 U.S.C. §§ 1861-1878) also fail. In the first place, their objection was untimely. A motion must be made “before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier.” 28 U.S.C. § 1867(a). Furthermore, we have previously considered and rejected a nearly identical claim involving the venire in the Northern District of Indiana. United States v. Phillips, 239 F.3d 829 (7th Cir.2001). As to the constitutional issue, we noted in Phillips that, while the right to a jury trial guarantees the criminal defendant a fair trial by a panel of impartial jurors, there is no requirement that a venire or jury panel itself mirror the general population. We have also said that “the makeup of any given venire is not significant, provided all rules for selection have been observed.” United States v. Duff, 76 F.3d 122, 125 (7th Cir. 1996) (citing Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990)). The judgments of conviction are AFFIRMED.

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07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218200/

ORDER Indiana prisoner Rosalio Hernandez brought this action under 42 U.S.C. § 1983 alleging that Warden Craig Hanks and Casework Manager Diane Daugherty are violating his Eighth and Fourteenth Amendments rights by holding him in disciplinary segregation. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a claim. We affirm. In his pro se complaint, Hernandez alleges that Daugherty improperly changed his segregation release date on the paperwork for two conduct violations, requiring him to serve nine additional years in disciplinary segregation (his release from segregation is now scheduled for April 2011; his prison term apparently is projected to end in 2054). Hernandez asserts that he has already served the three years’ of disciplinary segregation imposed for a 1998 attempted murder and an additional year for a 1999 battery and, therefore, by his count should have been released to the general prison population in July 2002. Because Daugherty modified the segregation release date, however, Hernandez remains in disciplinary segregation without the benefit of the various privileges afforded inmates in the general population. Hernandez challenged his segregation release date through the classification and disciplinary review processes, but relief was denied. We review de novo dismissals under § 1915A for failure to state a claim, accepting as true the plaintiffs factual allegations and drawing all inferences in the plaintiffs favor. Wynn v. Southward, 251 F.3d 588, 591-92 (7th Cir.2001). Dismissal of Hernandez’s complaint was proper only if no relief is available under any conceivable set of facts consistent with his allegations. Id. at 592. Hernandez first argues that his continued detention in segregation violates due process because the defendants ex*74tended the length of his stay without affording him a hearing or other procedures. We note that prison officials, in responding to Hernandez’s grievance, commented that apparently he had “forgotten about the numerous other CAB convictions in which Disciplinary Segregation sanctions were applied.” Regardless, even if Hernandez’s scenario about the date change is accurate, he cannot establish a due process violation without demonstrating that he has a liberty interest in returning to the general prison population after completing his segregation sanction, whatever its length. See DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.2000). The length of disciplinary segregation does not implicate a federally protected liberty interest even if the period extends for the entire term of incarceration. Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir.1997); see Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (disciplinary segregation did not impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”); Higgason v. Farley, 83 F.3d 807, 809 (7th Cir.1996) (inmate’s transfer from general population to segregation did not implicate liberty interest because restrictions did not impose atypical and significant hardship). As we said in Smith v. Shettle, “a prisoner has no natural liberty to mingle with the general prison population.” 946 F.2d 1250, 1252 (7th Cir.1991). Accordingly, the district court properly dismissed Hernandez’s due process claim. Likewise, the court appropriately dismissed the Eighth Amendment claim. Hernandez argues that, by keeping him in disciplinary segregation and out of the general prison population even though he completed the originally imposed sanctions, the defendants are subjecting him to cruel and unusual punishment. But, to succeed on an Eighth Amendment claim, Hernandez must demonstrate that being excluded from the general prison population deprives him of the “ ‘minimal civilized measure of life’s necessities,” ’ such as adequate food, clothing, shelter, or medical care. Higgason, 83 F.3d at 809 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)); see Brown v. Nix, 33 F.3d 951, 953, 955 (8th Cir.1994) (nine years’ disciplinary segregation not cruel and unusual punishment). Because Hernandez does not allege that he is being deprived of anything beyond the privilege of . being in the general population, he fails to state a claim under the Eighth Amendment. The judgment of the district court is AFFIRMED. Hernandez’s motion to appoint counsel,'filed April 22, 2003, is DENIED. The district court’s dismissal and our decision here count as two of Hernandez’s three allotted “strikes” under 28 U.S.C. § 1915(g). He previously incurred a “strike” in Hernandez v. Aul, No. 02-CV-1673 (S.D.Ind. Dec. 5, 2002). This brings the total number of strikes to three and, accordingly, bars Hernandez from bringing future civil suits in forma pauperis except a provided in § 1915(g).

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07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218202/

ORDER Gail Terrell, an African-American woman over the age of forty, sued Oseo Drug, claiming that Oseo discriminated against her because of her color, race, religion, and sex in violation of Title VII, 42 U.S.C. § 2000e, et seq., and her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 626, et seq. She alleged that Oseo discriminated against her when it failed to promote her from Assistant Manager to Operating Manager; demoted her to Scan Coordinator (a position that required her to ensure that merchandise rang up at the proper price); failed to accommodate her religious beliefs by preventing her from advancing in management because she requested Sundays off; and paid her less than other employees. Oseo moved for summary judgment, but Terrell did not respond to Osco’s motion. Analyzing the motion under two legal theories (failure to accommodate and failure to promote), the district court granted summary judgment to Oseo. Regarding the failure-to-aecommodate theory, the court explained that Terrell’s own deposition testimony established that Oseo always honored her request that she not be scheduled to work on Sundays. As for the failure-to-promote theory, the court noted that Terrell’s own testimony established that she never applied for a promotion and that she deemed herself unprepared from a promotion to the next level of management. We affirm. When reviewing a grant of summary judgment, we typically view the facts in the light most favorable to the non-moving party, Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir.2002), but when a party fails to respond to a motion for summary judgment, its failure “constitutes an admission ... that there are no disputed issues of genuine fact warranting a trial.” Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir.1995); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003) (failure to controvert movant’s facts deemed an admission of those facts). Thus, we deem Terrell’s failure , to respond as an admission that Osco’s version of the facts is true. Terrell, however, does not raise any cognizable argument on appeal. Her brief only recites unsubstantiated allegations that she believes support her discrimination claims. For instance, she asserts that Oseo consulted attorneys regarding “how to handle” her before it allowed her into management, and that two witnesses can verify that Oseo would never promote her because she could not work on Sundays. *78But Terrell did not introduce any evidence in the district court substantiating these claims, and we will not consider them for the first time here. Bennington v. Caterpillar Inc., 275 F.3d 654, 659 (7th Cir.2001). Moreover, she fails to challenge the basis for the district court’s ruling, and we believe summary judgment for Oseo was appropriate. See Grayson v. City of Chicago, 317 F.3d 745, (7th Cir.2003) (plaintiff, as part of prima facie case for failure to promote, must show that “he applied for and was qualified for the position sought”); EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir.1996) (plaintiff, as part of prima facie case for failure to accommodate religious practice, must show that “the religious practice was the basis for the adverse employment decision”). AFFIRMED.

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https://www.courtlistener.com/api/rest/v3/opinions/7218203/

ORDER A Conduct Adjustment Board (CAB) found Indiana inmate Stephan Clippinger guilty of possessing escape paraphernalia and sanctioned him with the loss of 180 days’ good-time credit and demotion from *79Credit Class I to Credit Class II. Clipping-er petitioned for a writ of habeas corpus, which the district court denied. We affirm. Tipped that Clippinger was planning to escape, prison officials searched his cell and found printed maps of Indianapolis, hand-drawn maps detailing two areas of the prison grounds, two letters discussing an escape plan, and forty feet of rope. Officials then discovered in an adjacent cell a small “screwdriver-type tool” belonging to inmate Kingery, whose handwriting did not match the handwriting in the two letters. An investigator also interviewed inmate Cody, Clippinger’s friend, and compared his handwriting to the letters, but apparently there was no match. Officials charged Clippinger, but not Kingery or Cody, with possession of escape paraphernalia. Inmates are allowed to own cats at Clippinger’s prison, and he named his Smokey. At the CAB hearing Clippinger insisted that he never possessed a rope but did have-until his cell was searched-a leash for Smokey that spanned the length of five cells. Clippinger reasoned that if guards found a “rope” suitable for an escape then it must have come from another inmate’s cell; the conduct report, he said, was inadequate to prove that it came from his cell because the author of the report had ignored a prison policy requiring that corroborating statements be attached. Clippinger also demanded access to the results of a polygraph he allegedly passed during the investigation, but the CAB declined to disclose or consider the polygraph report. Clippinger’s habeas corpus petition challenged the CAB’s decision on seven grounds. But four of them are not discussed in his brief and are therefore abandoned. See Jones v. Union Pac. R.R. Co., 302 F.3d 735, 741 n. 5 (7th Cir.2002). He does identify in his opening brief an issue regarding the chain of custody for the evidence admitted at his CAB hearing, but because he does not develop this issue, it is waived. Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir.2002). All that is before us, then, are his arguments regarding the polygraph and the uncorroborated conduct report. Indiana prisoners have a liberty interest in their good-time credits and credit-earning class and, therefore, are entitled to due process safeguards before either can be taken away. Piggie v. McBride, 277 F.3d 922, 924 (7th Cir.2002). Due process requires that an inmate receive at least twenty-four hours’ written notice of the charges, an opportunity to present evidence at a hearing before an impartial decisionmaker, and a written explanation of the CAB’s decision. Wolff v. McDonnell, 418 U.S. 539, 564-66, 570-71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); White v. Ind. Parole Bd., 266 F.3d 759, 767 (7th Cir.2001); McPherson v. McBride, 188 F.3d 784, 785-86 (7th Cir.1999). Further, the disciplinary board’s decision must be supported by “some evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.2000). “Some evidence” exists when the disciplinary board has some factual basis for its decision. McPherson, 188 F.3d at 786. Clippinger first argues that the CAB violated his due process rights when it refused to consider the favorable polygraph results. A CAB may not arbitrarily refuse to consider exculpatory evidence, see Piggie, 277 F.3d at 925, but the polygraph results-whether or not favorable to Clippinger-were not evidence. As the CAB noted in its decision, prison policy prevented it from considering polygraph results, and so its refusal to do so could not have denied Clippinger due process *80even if the examiner detected no deception in his responses to questioning. See Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (examiner’s conclusion that state’s witness had been deceptive during polygraph was not “evidence” subject to disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because state law precluded the admission of polygraph results even for impeachment). Clippinger also argues that his due process rights were violated because prison policy required the conduct report to be supported by staff witness statements that he never received. The conduct report was based on a prison investigator’s written summaries of information received from the guards who searched Clippinger’s and his neighbor’s cells, as well as on comparisons of different inmates’ writing to the writing in the letters found in Clippinger’s cell. But the investigator did not append to her own reports, or to the conr duct report, written statements from the guards who conducted the searches or the individual who analyzed the handwriting. Whether the omissions violated prison policy is irrelevant, see Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (federal habeas court cannot review errors of state law), and so Clippinger has shifted focus, arguing that disclosure of the underlying documents was necessary because they are exculpatory and because the conduct report is unreliable without them. But Clippinger did not raise these arguments in the district court and, therefore, they are waived. See Grayson v. City of Chicago, 317 F.3d 745, 751 (7th Cir.2003) (appellant waives argument not raised in district court). AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218205/

ORDER Wis-Pak, Inc. operates bottling plants in several locations. It opened a new plant in Quincy, Illinois, but later discovered that the city was substantially overcharging for its water and sewer service to the plant. Wis-Pak settled the discrepancy with the city, but at the time Wis-Pak had a contract with National Utility Service, Inc. to monitor its utility bills and recommend measures that would lower utility costs. Based on this contract, NUS claims that it is owed fifty percent of the nearly two million dollars Wis-Pak recovered in its settlement with the city. In a suit for declaratory judgment, the district court granted Wis-Pak’s motion for summary judgment, concluding that it did not owe NUS any amount of money under the contract. NUS appeals, and we affirm. I. On June 16, 1995, Wis-Pak, Inc., a soft drink bottler, entered into a utility cost consulting agreement with National Utility Service, Inc. (“NUS”), whereby Wis-Pak authorized NUS to analyze its utility bills and offer recommendations regarding possible savings and refunds on the company’s energy expenses (“Agreement”). The Agreement provided, inter alia, that: Any recommendation you [NUS] make will be considered by us [Wis-Pak] and shall be subject to our approval. We will advise you in writing [of] our intent to pursue or not pursue each of your recommendations, and in the latter case, detail the reasons. However, if any recommendation made by you is accepted by us and is subsequently implemented, we will pay you as outlined [in the Agreement] after such savings and refunds are achieved. All information pertaining to your recommendations that we accept, including correspondence with our suppliers, will be sent to you promptly for your evaluation and further advice. However, you shall not have authorization to communicate or negotiate with third party suppliers except with our express written consent. Wis-Pak paid NUS a one-time fee of $12,000 at the commencement of the Agreement. Other than this initial fee, Wis-Pak was only required to pay NUS under the terms of the Agreement if NUS made a recommendation that Wis-Pak adopted, and which led to a refund, credit, or savings on one of the company’s utility bills. If this occurred, the Agreement provided that Wis-Pak would pay, after recapturing its initial $12,000 fee, fifty percent of any refund or credit obtained as a result of any recommendation made by NUS, and fifty percent of any monthly savings realized for a period of 60 months. *86In April 1998, Wis-Pak advised NUS that it was constructing a new bottling plant in Quincy, Illinois (“Quincy Plant”), and that once the plant was up and running it would have NUS analyze the utility bills the company received from the City of Quincy (“City”) in conjunction with the operation of the plant. Pursuant to WisPak’s discussions with the City, the Quincy Plant was constructed with a water meter to measure the amount of water supplied by the City to the plant, as well as a “deduct meter,” which measures the volume of water used by the plant to fill soft drink product into cans and bottles. The sole purpose of installing a deduct meter at the Quincy Plant was to calculate the amount of discharge from the plant to the City’s sewer system in order to accurately compute the company’s municipal sewer bill. From the time the deduct meter was installed in November 1998 until April 2000, Wis-Pak did not verify the proper functioning or reading of the deduct meter or whether the City was billing Wis-Pak for sewer service based upon readings from the deduct meter. Wis-Pak assumed, incorrectly, that the City would read the deduct meter and adjust the Quincy Plant’s water and sewer bills in accordance with such meter readings. In January 1999, Wis-Pak began sending NUS the company’s water/sewer bills for the Quincy Plant (but did not advise NUS that it had installed a deduct meter at the Quincy Plant). On November 24, 1999, NUS sent Wis-Pak a letter and a report (“Report”) dated November 23, 1999, that contained, inter alia, the following observations and recommendations: We note at the [Quincy Plant] you aré currently receiving your water service requirements from the City of Quincy. We note that the sewer charges applied are based on the presumption that 100% of the water delivered is being discharged into the sewer system. In many cases, we have found the discounts on these charges can be obtained where it is determined that not all the waste water is being returned to the sewer system. That is, where there is a significant loss of water due to use in processing, steam heat, recirculation, cooling towers, evaporation or any means, relief can be obtained in proportion to the amount of water which is consumed in lieu of being discharged into the sewer system. We would suggest investigating this possibility by having the appropriate personnel at this facility determine the approximate amount of water that is retained (not eventually deposited into the sewer system). If your findings indicate a sizable amount of water remains in your operation as to warrant consideration of this proposal, we believe that additional action would be advisable. It has been our experience that some utilities accept a certain percentage of water that is retained in your operation, often based upon industry standards or some other estimate, while others may require the installation (either temporary or permanent) of a sewer outflow meter. Our analysis (based upon the period 9-14 — 98 to 3-15-99) indicates annual savings of approximately $2,400, based on the assumption that 4% of your metered water is not returned to the sewer system. Of course, this is an estimate and actual savings may vary based upon factors such as usage, rate revisions, etc. John Uttech, Wis-Pak’s vice president of operations, received NUS’s Report but did nothing with it because Wis-Pak had already installed a deduct meter at the Quincy Plant, and because he believed that Michael Zeman, Wis-Pak’s project manager for the Quincy Plant, was reviewing the *87company’s quarterly water and sewer bills for that facility. Zeman, however, neither received nor reviewed these bills. Instead, the City sent them directly to Wis-Pak’s accounts payable department in Water-town, Wisconsin, where they were paid but apparently not reviewed for accuracy. On January 25, 2000, the City sent a letter directly to the Quincy Plant, advising Wis-Pak that because the company’s sewer discharge was especially high it would be required to pay an additional surcharge charge on its water and sewer bills. This letter was brought to Zeman’s attention who in turn advised Mark Kimmel, Wis-Pak’s director of operations, of the surcharge being imposed by the City. On March 30, 2000, NUS sent a letter to Wis-Pak advising that “a review of the numerous recommendations provided you by NUS ... indicates that all recommendations presented maintain their viability and. savings potential.” In that correspondence, NUS also requested that Wis-Pak “review the recommendations again, and provide us your formal response regarding the actions taken and to be taken regarding the investigation and implementation of these items.” Finally, NUS opined “that the implementation of our recommendations could result in annual savings [of] over $300,000.” At no time between Wis-Pak’s receipt of the Report and its receipt of the March 30, 2000 letter did Wis-Pak formally reject the recommendation made by NUS for sewer savings at the Quincy Plant, advise NUS that it did not understand or agree with the recommendation contained in the Report, or otherwise communicate any complaint, criticism, or objection to the Report or recommendation contained therein. In May 2000, Kimmel reviewed WisPak’s financial statements for the first four months of the calender year, and in doing so noticed that the water and sewer charges for the Quincy Plant were extremely high. As a result of this review, Kimmel contacted the company’s accounting department and requested a copy of the most recent water and sewer bill for the Quincy Plant, which he then showed to Zeman. Upon examining the bill (dated April 3, 2000), Zeman immediately knew that the company was being overcharged because, in addition to the excessive nature of the sewer charges ($86,798.44), the bill also contained no “deduct meter amount.” Zeman then spoke with the City and confirmed that it had not been reading the deduct meter, and was instead billing Wis-Pak as if all of the water coming into the plant was being discharged into the City’s sewer system. From May through December 2000, Wis-Pak and the City ran tests and readings on both the incoming and deduct meters at the Quincy Plant. Based on the testing and studies that occurred during that time period, the City concluded that eighty percent (80%) of the water delivered to Wis-Pak by the City was going into the company’s soft drink products and that the remaining twenty percent (20%) was being discharged into the City’s sewer system. Testing also revealed that the City’s meter had been under-registering incoming water by almost eighteen percent (18%). The City concluded that Wis-Pak had been under-billed for incoming water by $23,394.90 and over-billed for outgoing sewer by $236,763.15. In December 2000, Wis-Pak and the City agreed that in the future Wis-Pak would be billed for sewer at 20% of the volume of water coming into the Quincy Plant (an estimate based on actual meter readings). On January 9, 2001, Wis-Pak and the City agreed that Wis-Pak would receive a credit of $241,763.15, which would be applied against future water and sewer charges that Wis-Pak incurred. The City thanked *88Zeman for bringing the billing error to its attention, and for working with the City to resolve the matter. At the time Zeman handled this matter, he had no knowledge of NUS’s consulting role with Wis-Pak or of the November 23, 1999 Report’s existence. During this same time period, NUS and Wis-Pak exchanged several written and oral communications, but Wis-Pak did not advise NUS of its ongoing discussions and negotiations with the City regarding the foregoing billing error. On July 10, 2001, NUS sent a facsimile to Wis-Pak which noted: We recently reviewed your water/sewer invoices for the referenced account rendered by the City of Quincy ... [and] are pleased to note that our recommendations regarding the sewer service has [sic] been implemented and savings are being realized. We are in the process of preparing statements reflecting the savings realized and will forward same to your attention shortly. We ask that you continue to provide us copies of the quarterly invoices for this service on a regular basis. We also note that present on your water/sewer invoice for the period September 29, 2000 to January 3, 2001 was a sizable credit. Unfortunately, the details of this credit were not included on the invoice. Accordingly, any information you can provide concerning the details of same would be gratefully appreciated. NUS followed up on its July 10, 2001 correspondence by sending Wis-Pak invoices totaling $984,986.12, the amount it claimed entitlement to under the terms of the parties’ Agreement.1 Wis-Pak refused to pay these invoices, and, on October 30, 2001, the company filed a civil action in the Circuit Court of the State of Wisconsin against NUS, seeking a declaratory judgment with respect to the parties’ rights and obligations under the Agreement. In short, Wis-Pak argued that it was not required to pay NUS anything under the Agreement as a result of it achieving a credit on future water/sewer bills or making billing arrangements with the City in accordance with certain meter readings. On November 21, 2001, NUS removed the case to the United States District Court for the Western District of Wisconsin, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, and in so doing answered Wis Pak’s complaint and filed a counterclaim, seeking damages for breach of contract, quantum merit, unjust enrichment, specific performance, and declaratory relief. According to NUS, the Agreement covered the credit and “savings” obtained by WisPak from the City of Quincy because: (1) NUS identified that the City was billing Wis-Pak for sewer charges based on a presumption that Wis-Pak was discharging one hundred percent of its incoming water to the City’s sewer system, (2) NUS made recommendations for addressing the problem; and (3) the recommendations NUS made encompassed the actions WisPak took to remedy the problem. The parties subsequently filed cross motions for summary judgment, and the district court granted Wis-Pak’s motion, concluding that the company “did not implement any of the recommendations [NUS] made in its November 23, 1999 report----[but instead] achieved savings as a result of investigating the city’s erroneous sewer billings and its failure to deduct from the sewer bills the eighty (80%) percent of *89incoming water that went into [Wis-Pak’s] product and should have been reflected on the deduct meter, not because it followed any of [NUS’s] recommendations.” NUS appeals this decision, and we affirm.2 II. This court reviews the district court’s grant of summary judgment de novo, construing all fact in favor of NUS, the non-moving party. Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 854 (7th Cir. 2002). This case boils down to a simple question: Did Wis-Pak accept and subsequently implement the savings recommendation made by NUS for the Quincy Plant in its November 23, 1999 Report? On appeal, NUS claims that the district court erred in concluding that Wis-Pak did not accept and implement the recommendation contained in the Report because “[a] review of the text of [the] Report clearly establishes that NUS recommended that Wis-Pak investigate why the [City] was treating 100% of the water delivered to the Quincy Plant as being discharged into the sewer system and the possibility of obtaining a refund (i.e., a refund of prior overcharges and a reduction of sewer charges on future bills),” and because Wis-Pak did indeed accept and implement this recommendation. We disagree. NUS did not recommend that Wis-Pak investigate why the City was billing the company for sewer charges based on a presumption that one hundred percent of the water coming into the Quincy Plant was being discharged back into the City’s sewer system; nor did NUS recommend that Wis-Pak seek a refund for any amount that the company may have been overbilled. Instead, NUS gave Wis-Pak a two-step recommendation. First, NUS recommended that Wis-Pak have “the appropriate personnel at [the Quincy Plant] facility determine the approximate amount of water ... retained,” i.e., water not eventually deposited into the sewer system, “due to use in processing, steam heat, recirculation, cooling towers, evaporation or any means.”3 Second, NUS advised Wis-Pak that if the company found “a sizable amount of water remains in your operation,” due to “use in processing, steam heat, recirculation, cooling towers, evaporation or any means,” it should attempt to obtain “relief ... in proportion to the amount of water which is consumed in lieu of being discharged into the system” by: (1) getting the City to “accept [that] a certain percentage of water ... is retained in your operation ... based on industry standards or some other estimate”; or (2) installing a temporary or permanent sewer outflow meter. The record clearly shows, however, that Wis-Pak neither accepted nor implement*90ed the foregoing recommendation. At no time did Wis-Pak direct any of its employees to investigate or determine the amount of water being retained inside the Quincy Plant. Indeed, the very idea that Wis-Pak would even consider issuing such a directive is entirely implausible. There is no question that both Wis-Pak and the City were already well aware that the overwhelming majority of the water coming into the Quincy Plant was being retained, as opposed to being discharged into the City’s sewer system, as a result of the plant’s bottling and canning operations (i.e., the water was being used to produce the soft drink product). Long before NUS submitted its Report, Wis-Pak had already installed a deduct meter at the Quincy Plant, the sole purpose of which is to measure the amount of water diverted for the plant’s operations from the incoming water so that the City can accurately calculate the amount of water deposited by the plant into the municipal sewer system. As such, there would not have been, nor was there, any reason for Wis-Pak to inquire into how much water was being retained by the operation of the Quincy Plant for the purpose of achieving a discount on the company’s sewer bill. Wis-Pak and the City had already agreed that the plant’s water bill would be based on, and thus reduced in accordance with, the installed deduct meter. In this respect, we agree with the district court that Wis-Pak “did not implement any of the recommendations [NUS] made in its November 23, 1999 report,” but instead “achieved these savings as a result of investigating the city’s erroneous sewer billings and its failure to deduct from the sewer bills the 80% of incoming water that went into [Wis-Pak’s] product and should have been reflected on the deduct meter.” In arguing that it is entitled to payment under the terms of the Agreement, NUS describes its Report recommendation as follows: “that Wis-Pak investigate the potential billing error identified by NUS (i.e., ... why the [City] was treating 100% of the water delivered to the Quincy Plant as being discharged into the sewer system) and the possibility of obtaining relief.” This characterization of NUS’s recommendation is entirely untenable. First, NUS’s use of the term potential billing error, while perhaps accurate, completely undermines its interpretation of the language contained in the Report recommendation. Although it is true that NUS advised WisPak that “sewer charges applied are based on the presumption that 100% of the water delivered is being discharged into the sewer system,” the Report does not assert that the City’s use of this “presumption,” standing by itself, was necessarily of any great significance. Instead, the Report “suggests]” that Wis-Pak “investigate]” the “possibility” that “there is a significant loss of water due to use in processing, steam heat, recirculation, cooling towers, evaporation or any means.” The Report then advises that “[i f your findings indicate a sizable amount of water remains in your operations as to warrant consideration of this proposal, we believe that additional action would be advisable [i.e., make arrangements with the City to have the plant’s sewer bill based on an estimate obtained by way of “industry standards” or a “sewer outflow meter”].” (Emphasis added.) In other words, NUS’s recommendation that Wis-Pak enter into discussions with the City about achieving savings on its sewer service at the Quincy Plant was conditioned upon the company first determining that a “significant amount of water” was being retained during plant operations. As previously noted, however, Wis-Pak neither accepted nor implemented NUS’s recommendation to inquire into whether a significant amount of the water coning into the Quincy Plant was being *91retained by plant operations because it already knew that to be the case. WisPak’s decision not to conduct such an investigation renders the remainder of NUS’s recommendation, which was conditioned upon such an inquiry being undertaken, meaningless. In short, NUS did nothing more than advise Wis-Pak of something it was already aware of (that some amount of incoming water is retained as a result of plant operations) and recommend a course of action that the company had already taken (make billing arrangements with the City based on an estimate of the amount of water retained during plant operations through the installation of a deduct meter). The record also shows that the City was not billing Wis-Pak based on a presumption that all of the water it delivered to the company was being discharged into the municipal sewer system. As previously noted, the root cause of Wis-Pak being overbilled by the City for sewer service at the Quincy Plant was that the charges assessed to the company were not calculated in accordance with the plant’s deduct meter, as had been agreed to by the parties long before NUS submitted its Report to Wis-Pak. As the district court noted, “[Wis-Pak] approached the city to determine why it was not receiving credit for the amounts measured by the deduct meter, not to propose a discount based on a deduction for minor amounts of water consumed in operations.” Moreover, it is undisputed that the City and Wis-Pak were both operating under the mistaken belief that the other was handling the deduct meter readings. NUS’s Report neither addressed nor recommended a solution for this “error.” Finally, NUS did not recommend that Wis-Pak seek .a refund of prior overcharges. NUS noted in its report that “[i]t has been our experience that some utilities accept a certain percentage of water that is retained in your operation, often based upon industry standards or some other estimate, while others may require the installation (either temporary or permanent) of a sewer outflow meter.” Although this might imply that Wis-Pak could obtain prospective relief, there is nothing in the Report remotely suggesting that Wis-Pak should seek a refund or that it might be entitled to receive one. Additionally, with respect to prospective savings, the recommendation contained in NUS’s Report was of no value to Wis-Pak. As the district court explained, Even if [NUS] were correct in asserting that [Wis-Pak] had implemented [NUS’s]- recommendation when it worked out a flat rate with the city, it would make little difference to the outcome of this case. Once the city recognized the problem in its billing, it had to adjust the past bills it had sent to [WisPak] and develop a reliable method for charging [Wis-Pak] in the future. It could have chosen a meter reading or an average based on the meter readings it took during the investigation stage, or, presumably, simply made some sort of estimate. Nothing in the record indicates that the method of averaging that it chose produced savings for [Wis-Pak] greater than regular or correct readings [of the existing deduct meter] would have produced. Without proof of savings, there is nothing for [NUS] to split with [Wis-Pak]. (Emphasis added.) NUS, however, maintains that “it would be inequitable to deny [it] compensation ... upon the ground that no specific reference was made in the Report to the installed deduct meter” because “NUS had no way of knowing the deduct meter existed because Wis-Pak’s invoices did not include any evidence ... of its existence and Wis*92Pak failed to inform NUS that a deduct meter previously had been installed at the facility.” NUS also seems to suggest that it would also be inequitable to deny it a pro rata share of the credit and “savings” obtained by Wis-Pak as a result of its negotiations with the City because, according to NUS, the Report was the impetus behind Wis-Pak’s investigation into the accuracy of its sewer bills. We find both of these arguments unpersuasive. First, as previously noted, NUS did not develop any arguments with respect to its quantum merit and unjust enrichment claims, and thus has waived these issues on appeal. Gable, 296 F.3d at 538. Second, even in the absence of such a waiver, NUS cannot prevail on either of these claims based on principles of equity. To the contrary, allowing such a recovery would stand equity on its head. Although it is true that Wis-Pak did not advise NUS of the deduct meter, it is hard to fathom how the failure to do so entitles NUS to a recovery of almost one million dollars. Additionally, although NUS is correct in asserting that “[t]he undisputed facts establish that for 16 months no one at WisPak reviewed the sewer bills to determine whether the meter readings from the previously installed deduct meter were being applied,” there is nothing in the record to support its contention that “[a]s a result of Wis-Pak’s investigation of the billing error identified in the Report, it discovered that it had wrongly assumed the City was reading and taking into account the installed deduct meter.” Wis-Pak’s failure to monitor the accuracy of its water/sewer bills for a 16-month period is beside the point. As the district court explained, this criticism is “irrelevant to the determination of [NUS’s] entitlement to a share of [WisPak’s] sewer savings because [NUS] never made [it] the subject of a recommendation.” Furthermore, NUS did not identify “a billing error,” but rather, as NUS notes on several occasions in its briefs, a “potential billing error.” A potential billing error that, if accepted and implemented, would, according to NUS, result in a minimal amount of savings (4% or $2,400). Indeed, the vast disparity between NUS’s estimate of the water retained by Wis-Pak’s operations at the Quincy Plant (4%) and the actual amount of water retained (80%) strongly suggests that the Report was either a modified version of a generic report sent out to all of NUS’s business customers, or that NUS was woefully ignorant of the manner in which a bottling plant operates. In either case, it is clear that NUS is seeking a windfall, not equity. See Dispatch Automation, Inc. v. Richards, 280 F.3d 1116, 1119 (7th Cir.2002) (noting that “[w]hen a contractual interpretation makes no economic sense, that’s an admissible and, in the limit, a compelling reason for rejecting it”). Lastly, the record does not support NUS’s assertion that its Report was the catalyst behind Wis-Pak’s decision to inquire into the accuracy of its water/sewer bills.4 Instead, the record shows that Wis-Pak decided to conduct this inquiry in May 2000, more than five months after receiving NUS’s Report, when Zeman, upon examining the most recent water/sewer bill for the Quincy Plant, concluded that the charges assessed were so excessive that the City could not possibly be billing the company in accordance with the plant’s deduct meter. Moreover, NUS does not point to any evidence that would rebut Wis-Pak’s assertion that Zeman, the company official responsible for initiating a *93dialog between Wis-Pak and the City, had no knowledge of NUS’s consulting role with the company or of the existence of the Report. Given the foregoing, we conclude that there is simply no basis for NUS’s assertion that Wis-Pak unjustly benefitted from any “advice” contained in the Report. III. For the reasons expressed in this opinion, we AFFIRM the district court’s decision granting Wis-Pak’s motion for summary judgment. . Specifically, NUS seeks fifty percent of the credit that Wis-Pak received from the City ($120,881.58), and fifty percent of the monthly "savings” the company received from its arrangement with the City-i.e., billing outgoing sewer at 20% of the amount of water coming into the plant-over a 60-month period ($864,104.54). . NUS does not challenge the district court’s decision to grant Wis-Pak summary judgment on its quantum merit, unjust enrichment, and specific performance claims, and thus any issues relating to these claims have been waived. Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir.2002). . As the district court properly noted: [NUS] fails to acknowledge that it did not recommend that [Wis-Pak] obtain "a determination from the City of Quincy of the amount of water delivered to the facility that was not returned to the sewer system,” which would have required the city to examine its procedures, directives, oversight and meter reading capabilities; rather, [NUS] recommended that [Wis-Pak’s ] employees identify amounts of water that might be consumed during operations and not going into the sewer. [NUS] never suggested that [Wis-Pak] ask the city to determine why the city’s records did not take the deduct meter readings into account. . This argument is also inconsistent with NUS's repeated contention that it is not required "to prove a causal connection between the recommendation made and the savings achieved,” an issue we need not address.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218206/

ORDER Tony Driver pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and brandishing a firearm during a crime of violence, id. § 924(c)(l)(A)(ii). The district court sentenced him to consecutive terms of 57 and 84 months’ imprisonment and concurrent terms of five years’ and three years’ supervised release. Driver filed a notice of appeal, but his counsel seeks to withdraw because he is unable to identify a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Driver filed objections. See Cir. R. 51(b). We limit our review of the record to the potential issues identified in counsel’s facially adequate brief and in Driver’s objections. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). Counsel addresses whether Driver could make a nonfrivolous sentencing challenge. In the district court Driver raised two objections at sentencing: the amount of the bank’s loss was overstated, and the probation officer erroneously included in the presentence investigation report (PSR) information about a prior conviction. The government substantiated the loss at over $50,000, and the court granted a reduction in Driver’s criminal history category based on the inaccuracy in the PSR. Because Driver stated that he had no further objections at that time, any other objections, including the two that counsel identifies in his brief, would be waived on appeal. See United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). Thus, we agree that pursuing a challenge to Driver’s sentences would be frivolous. Driver’s objections do not address any sentencing issues. Rather, he asserts, for what appears to be the first time, that his guilty pleas were “involuntary, unintelligent, not understanding, not knowing, not willing and the result of integral mis rep*94resentations [sic] of counsel.” He further asserts that his counsel was ineffective, that “[h]e never received the discovery,” and that consequently he “did not make an informed plea.” Finally, he states that he wishes “to attack the plea on direct appeal.” Driver, however, did not ask the district court to allow him to withdraw his pleas; therefore, only plain error in complying with Federal Rule of Criminal Procedure 11 at the change-of-plea colloquy could justify relief. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). At Driver’s colloquy, the magistrate judge, whose recommendation to accept Driver’s guilty pleas was accepted by the district judge, first determined that Driver was competent to plead guilty and informed him that his sworn testimony at the colloquy could be used against him in a future perjury prosecution. The magistrate judge explained the nature of the charges, the rights that Driver would waive by pleading guilty, and the possible penalties, including the effect of supervised release. The magistrate judge further explained that the district court would impose sentence based on the sentencing guidelines and that the district court had the power to depart from those guidelines. Driver admitted that he was not forced to plead guilty and confirmed the factual basis for the pleas. Because the magistrate judge substantially complied with Rule 11, any potential challenge to Driver’s guilty pleas would indeed be frivolous. Furthermore, Driver’s claim that he did not receive discovery materials does not render his pleas involuntary or uninformed. See United States v. Underwood, 174 F.3d 850, 853-54 (7th Cir.1999) (explaining that, even if defendant does not see discovery materials ahead of time, guilty plea still considered voluntary if followed disclosure of adequate factual basis); see also United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (holding that Constitution does not require pre-plea disclosure of exculpatory impeachment information). And although Driver’s objections could be construed as asserting an ineffective assistance claim, we have repeatedly observed that a collateral proceeding, rather than direct appeal, is the appropriate vehicle for such a claim that depends, as this one would, on matters outside the record. See United States v. Hamzat, 217 F.3d 494, 501 (7th Cir.2000); see also Massaro v. United States, — U.S. —, —, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003) (“[I]n most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance.”). Therefore, because the potential issues that counsel and Driver identified are frivolous, counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218208/

ORDER Indiana inmate Eddie Townsend filed this suit under 42 U.S.C. § 1988, alleging that three courtroom security officers used excessive force while transporting him to his cell after his sentencing hearing. A jury found in favor of the officers, and Townsend appeals. We affirm. Following his trial on charges of battery and resisting arrest, Townsend appeared in Allen County (Indiana) Superior Court for sentencing. At the close of the sentencing hearing, Officers James Gasvoda, Joseph Cox, and Scott Stoddard escorted Townsend from the courtroom to the adjacent lock up. The officers maintain that Townsend resisted them and became violent; Townsend denies this. Everyone involved, however, agrees that the officers shocked him with a stun gun and kicked him in the abdomen before they succeeded in confining him to his cell. Townsend’s § 1983 suit against the officers was tried before a magistrate judge by consent. Townsend testified that Officers Gasvoda, Cox, and Stoddard forcibly removed him from the courtroom while he was trying to speak with his attorney and then repeatedly shocked, punched, and kicked him without provocation. The officers, on the other hand, testified that Townsend struggled with them so fiercely that they were forced to use the stun gun to subdue him. According to the officers, Townsend was still struggling when they reached the lock up, and they could not close the cell door until Officer Stoddard pushed Townsend back with a kick. Allen County Magistrate Robert Schmoll also testified, via videotape, that, while walking down the hall, he heard Townsend tell the officers that the stun gun shocks felt like mosquito bites. On appeal Townsend argues that the magistrate judge erred by allowing Officer Stoddard to testify that he had received a note from one of his superiors warning that Townsend had threatened to “take a guard out” after his sentencing. Townsend submits that the note was inadmissible as hearsay because, in his view, it was an out-of-court statement offered to establish that he had threatened the officers prior to the hearing. See Fed.R.Evid. 801(c). Whether an out-of-court statement is hearsay depends primarily on how the statement is used. United States v. Linwood, 142 F.3d 418, 425 (7th Cir.1998). An out-of-court statement is hearsay only if it is offered for the truth of the matter it asserts. Id. There was a risk that Officer Stoddard’s testimony could have been construed to mean that the content of the note was true-that Townsend had actually threatened to harm a guard after sentencing. See id. But the possibility of a hearsay use did not bar the court from admitting the note for a different, permissible purpose as long as it gave a corresponding limiting instruction to the jury. See id. at 425 (“[N]ot every potentially hearsay statement is inadmissible, for there will often be a non-hearsay use for it.”). Here the court specifically admonished the jury to consider the note only as evidence that Officer Stoddard had received notice that his superior thought Townsend could become violent. See id. at 425-26; Cook v. Navistar Int’l Trans. Corp., 940 F.2d 207, 213 (7th Cir.1991) (a potentially hearsay statement may be admissible to show actual or constructive knowledge or notice). Thus the testimony about the note was admissible because it established Officer Stoddard’s state of mind and his aware*97ness of the note’s contents. See United States v. Hanson, 994 F.2d 408, 406 (7th Cir.1993); Martinez v. McCaughtry, 951 F.2d 130,133 (7th Cir.1991). Townsend argues that the court’s limiting instruction only drew the jury’s attention to the testimony about the threatening note, making it even more likely that it would accept the note as truth. But the court’s instruction was clear, and we presume that juries can and do follow the limiting instructions issued to them. Linwood, 142 F.3d at 426. Townsend offers no basis for overcoming the presumption that the jury in this case obeyed the court. Townsend also challenges the admissibility of Magistrate Schmoll’s videotaped testimony because it contained inaccuracies. Specifically, Magistrate Schmoll stated that he had sentenced Townsend for two Class B felonies, but Townsend asserts that the magistrate actually sentenced him for a Class A misdemeanor and a Class D felony. Townsend was sentenced for two additional counts before a different judge on the same day as his sentencing hearing before Magistrate Schmoll. But the record does not clarify which judge sentenced Townsend for the two Class B felonies. Ultimately, whether Magistrate Schmoll sentenced Townsend for a Class A misdemeanor and a Class D felony rather than two Class B felonies is immaterial. Townsend did not object to this testimony at any time before or during trial, and thus he has waived his right to appeal the admissibility of the videotape. See United States v. Boyles, 57 F.3d 535, 545 (7th Cir.1995). Moreover, the portion of the testimony Townsend objects to-the judge’s misidentification of the counts Townsend was sentenced for - is not relevant to any issue in this case and thus could not have prejudiced him. AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218210/

MEMORANDUM ** Michael Blackhurst, a state prisoner, appeals the district court’s denial as time-barred of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.1 Blackhurst is not entitled to equitable tolling of the statute of limitations because he has failed to show that his failure to file a timely petition was due to anything other than his own neglect.2 See Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir.1998) (stating that equitable tolling focuses on the plaintiffs excusable ignorance of the limitations period and is “not available to avoid the consequences of one’s own negligence”). Blackhurst has submitted no evidence and made no allegation that his ignorance of the AEDPA filing deadline was “caused by circumstances beyond [his] control.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc); cf. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.2000) (stating that “it is well established that ‘ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing’ ” of a habeas petition) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124, 148 L.Ed.2d 991 (2001)), cert. denied, 531 U.S. 1194, 121 S.Ct. 1195, 149 L.Ed.2d 110 (2001). Although Blackhurst has submitted evidence that he suffered from mental illness, he has submitted no evidence indicating his mental state during the relevant time period.3 Besides the lack of medical records during the relevant *105period, Blackhurst’s position is further weakened by the fact that he filed his first habeas petition in 1988 and appealed it in 1989, the period during which he allegedly was suffering from the most acute psychotic episodes. The record therefore does not support a finding that Blackhurst was so mentally incompetent that it was impossible for him to file his petition on time. See Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir.2002) (stating that the AED-PA’s statute of limitations may be subject to equitable tolling if “ ‘extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time” ’) (quoting Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir.2002)). The judgment of the district court, dismissing the petition as time-barred, is accordingly AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Because the parties are familiar with the facts, we do not recite them here except as necessary to aid in understanding this disposition. . 28 U.S.C. § 2244(d)(1) requires that a petition for a writ of habeas corpus be filed within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Because Blackhurst’s conviction became final prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") on April 24, 1996, he had until April 24, 1997, to file his petition. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.2001). After we affirmed the dismissal of his first habeas petition for failure to exhaust available state remedies in 1989, Blackhurst did not file the instant petition until 2000, eleven years later. . Unlike the concurring opinion, we do not rely on the district court’s "finding” that "petitioner suffered from an antisocial and/or mixed personality disorder,” in light of the district court's adoption of the magistrate judge’s finding, based on the evidence, that “[t]here is no evidence indicating that Mr. Blackhurst was mentally ill in 1996, 1997 or today. Mr. Blackhurst offered no evidence regarding what he was doing during the relevant time frame.” Even while stating that "[w]e are not at liberty to pick and choose which finding we shall review,” the concurring opinion does just that.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218211/

WALLACE, Senior Circuit Judge, concurring. I concur in the result of the majority disposition. I part from the majority because it holds that Blackhurst has failed to demonstrate that he was mentally ill during the relevant time period. To the contrary, the district court held, “The court does not doubt that petitioner suffered from an antisocial and/or mixed personality disorder during the relevant time period (1996 and 1997).” The district court did not clearly err, and so its finding of fact cannot be reversed. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Surprisingly, the majority determines that the district court itself found that Blackhurst was not mentally ill. Because I am bound by the district court’s explicit findings to the contrary, I cannot join. In footnote 3, the majority points out that the district court stated that it accepted the magistrate judge’s factual findings. But what do we do with this general statement when the district court makes its own specific finding that plainly contradicts the magistrate judge’s finding? We are not at liberty to pick and choose which finding we shall review.1 Are we to assume that the district court did not mean what it stated? I suggest we must pay heed to the district court’s own words, rather than the contrary words of the magistrate judge’s it incorporated by nonspecific reference. The district court held that Blackhurst “has failed to bear his burden of proving that mental illness interfered with his ability to appreciate his position and make rational choices with regard to the same.” The district court thus held that Blackhurst failed to demonstrate causation. See Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir.2002) (holding that equitable tolling “is appropriate only during the delay caused by the extraordinary circumstances”). I would affirm the district court on the issue of causation. Blackhurst was able to file a habeas petition in 1988, when he was suffering from the most acute psychotic episodes. A fortiori, he was able to file a habeas petition when his illness was less serious. The district court did not clearly err in determining that Blackhurst failed to show that his mental illness caused his late filing. . Contrary to the majority's insinuation, the district court, not I, picked the finding we are to review; it made the specific finding that Blackhurst was mentally ill.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218212/

MEMORANDUM * Appellant Cook argues that his indeterminate life sentence with a mandatory minimum of 25 years, imposed under California’s Three Strikes Law after Cook was convicted of possessing .16 grams of methamphetamine, is grossly disproportionate to his crime in violation of the Eighth Amendment.1 In light of the Supreme *107Court’s recent decisions in Lockyer v. Andrade, — U.S. —, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), and Ewing v. California, — U.S. —, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), we must AFFIRM the district court’s denial of Cook’s petition for habeas corpus. I. We must determine under 28 U.S.C. § 2254(d)(1) whether the California Court of Appeal’s decision affirming Cook’s sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” See Andrade, 123 S.Ct. at 1172 (disapproving this circuit’s requirement that federal habeas courts review state court decisions de novo before applying AEDPA’s deferential standard of review). “[I]n this case, the only relevant clearly established law amenable to the ‘contrary to’ or ‘unreasonable application of framework is the gross dis-proportionality principle, the precise contours of which are unclear, applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Id. at 1173 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). Thus, the more specific question is whether the California Court of Appeal’s decision affirming Cook’s sentence was contrary to, or involved an unreasonable application of, the gross disproportionality principle. We hold that it did not, despite the obvious harshness of Cook’s sentence. A state court decision is contrary to clearly established federal law only “ ‘if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The state court did not contradict governing law, having relied properly on Rummel v. Estelle, 445 U.S. 2263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), as well as Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Harmelin in deciding that Cook’s sentence was not grossly disproportionate to his crime. See Andrade, 123 S.Ct. at 1173-74 (holding that it was not contrary to clearly established law for the state court to rely on Rummel). The facts of Cook’s case also are not “materially indistinguishable” from Solem, in which the Supreme Court overturned a life sentence without possibility of parole imposed under South Dakota’s recidivist statute. 463 U.S. at 281, 303. The prisoner in Solem had been convicted of six prior serious but nonviolent felonies, including several burglaries and one conviction for grand larceny, and his final conviction was for uttering a no-account check in the amount of $100. Id. at 279-81. Unlike the prisoner in Solem, Cook retains the possibility of parole once he has served his 25 year mandatory minimum sentence. The two cases are therefore distinguishable. Cook’s case bears a closer resemblance to Andrade and Ewing, in which the Supreme Court upheld indeterminate life sentences with mandatory mínimums of 25 years imposed under California’s Three Strikes Law. See Andrade, 123 S.Ct. at 1167 (upholding petitioner’s two consecutive terms of 25 years to life for stealing videotapes worth $150); Ewing, 123 S.Ct. *108at 1189-90 (upholding defendant’s sentence of 25 years to life for shoplifting three golf clubs worth nearly $1,200). A state court decision involves an unreasonable application of clearly established law only “ ‘if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” ’ Andrade, 123 S.Ct. at 1174 (quoting Williams, 529 U.S. at 413). The state court’s application of the principle must be “objectively unreasonable.” Id. Because the precise contours of the gross disproportionality principle are unclear, legislatures have “broad discretion to fashion a sentence that fits within the scope of the [ ] principle.” Id. at 1175. It was not objectively unreasonable for the California Court of Appeal to affirm Cook’s sentence. See id. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Cook otherwise qualified for three strikes enhancement because he had been convicted 10 years earlier, in February 1988, of seven counts of robbery and attempted robbery, in violation of California Penal Code §§211 and 664. The record contains no details of these crimes. Cook’s February 1988 robbery and attempted robbery convictions were the only prior offenses charged as strikes and, therefore, were the only prior offenses that subjected him to a sentence of 25 years to life. Cook's other past offenses were not treated as prior strikes. Cook was convicted of misdemeanor batteiy in 1981, when he was 19 years old, and misdemearior batteiy in 1982. He was convicted of first degree burglary in 1983 and again in 1984, and was sentenced to four years in prison following the latter conviction. He was released on parole in 1986 and was returned to prison in 1987 for violating his parole. In 1994, Cook was convicted of possession of a controlled substance, and sentenced to state prison for four years. He was released on parole and returned to prison for *107violation of parole twice, first in 1996 and again in 1997. In 1996, Cook was convicted of misdemeanor battery.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218216/

MEMORANDUM ** Diana Beard-Williams appeals pro se the district court’s Rule 41(b) dismissal of her employment discrimination action for failure to prosecute. The Palmdale School District (“the District”) appeals the district court’s denial of attorney’s fees under 42 U.S.C. § 2000e-5(k). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review the district court’s dismissal for failure to prosecute for abuse of discretion. Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996). The district court’s dismissal of this action based on a determination that Beard-Williams willfully failed to appear for the sixth day of her jury trial, without a valid excuse, was not an abuse of discretion. See id. at 1385 (“Failure to appear for trial, without excuse, prejudices an adversary and interferes with the court’s docket about as much as any procedural default can.”). Although Beard-Williams sent a doctor’s note on the third day of her absence, the court was not required to credit this letter, which was not written under penally of perjury. Because dismissal was proper, we do not review Beard-Williams’s other claims of error. See id. at 1386. We review the district court’s denial of attorney’s fees for abuse of discretion. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir.1987). The district court’s determination that Beard-Williams’s action was not frivolous was supported by the record. See Jensen v. Stangel, 762 F.2d 815, 818 (9th Cir.1985) *116(per curiam) (holding that the district court’s denial of defendants’ motions to dismiss and for summary judgment suggested that plaintiffs claims were not without merit). Having determined that Beard-Williams’s action was not frivolous, the district court properly denied the District’s motion for an award of attorney’s fees. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218217/

MEMORANDUM * Appellant Carlos Rabago-Hemandez appeals Ms 12-month sentence for violation of supervised release to be served consecutively to a 21-month sentence for Ms illegal reentry conviction. Rabago argues that the government breached the plea agreement, and that the district court erred by not referring to the transcript from the prior sentencing hearmg. Because the parties are familiar with the facts, we do not recite them unless necessary. We affirm. Rabago unsuccessfully relies on United States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir.2001), to argue that the government breached its plea agreement. There, the government promised to recommend a four-level downward departure and then at the sentencing hearing orally endorsed a two-level departure. We held tMs change of heart amounted to a breach. Id. at 1027. Here, no change in position occurred. The government recommended concurrent sentencmg through the written plea agreement and did not alter that position. The record demonstrates that the district court was aware of the recommendation. Rabago also argues that the government breached the plea agreement by not submitting a sentencing memorandum with the reasons for requesting a concurrent sentence, again directing us to Camarillo-Tello. But the government made no such promise here. The written recommendation without more complies with the plea agreement. United States v. Benchimol, 471 U.S. 453, 455, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985) (if the plea agreement does not require the government to be “enthusiastic” or to explain the reason(s) behind its recommendation, as is the case here, failure to do so is not a breach). Rabago also points to some remarks by the prosecutor that supposedly negated the recommendation for concurrent sentencing. But those remarks were unrelated to the recommendation for concurrent sentencing. We also reject Rabago’s due process and abuse of discretion challenge to the failure of Judge Thompson to obtain the transcript of the prior sentencmg hearing to verify whether he apprised Rabago at that time when the supervised release period began. Rabago did not ask for any such review at the time of sentencmg for violation of supervised release. Moreover, the transcript of the prior hearmg makes clear that Judge Thompson explained at that time that the supervised release period began whenever Rabago was released from prison for the previous conviction. See RT 5/19/00 at 13-14. Rabago unlawfully re-entered the Urnted States during that one-year supervised release period. He violated a condition of Ms release, and it was appropriate to sentence him for that violation. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7218220/

MEMORANDUM * Plaintiff-Appellant Barry J. Sussman, M.D., brought this diversity action against Defendant-Appellee Provident Life and Accident Insurance Co. for failure to pay benefits under his disability insurance policy. On appeal, he challenges the “total disability” jury instruction, two evidentiary rulings, and the denial of his motion for a new trial. Because the parties are familiar with the facts, we do not recite them unless necessary. We affirm. The challenged instruction was not inconsistent with California law. Sussman *124contends that the entire excerpt from Erreca v. Western States Life Ins. Co., 19 Cal.2d 388, 396, 121 P.2d 689 (1942), has never been used in a jury instruction on total disability, noting that subsequent case law defines “total disability” without reference to the “substantial portion” sentence. But the cases he directs us to only omitted the third sentence, never specifically overruling its use or even discussing it, and other cases have continued to recite the “substantial portion” sentence in defining total disability. Moreover, because Sussman failed to present a proper and clear objection to this jury instruction below, this argument is waived on appeal. This court has long enjoyed the “reputation as the strictest enforcer of Rule 51,” as we have consistently declared that there is no “plain error” exception in civil cases in this circuit. Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001) (quoting Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.1991) (en banc)). A proper objection to the instruction as given would not have amounted to a “pointless formality,” under Voohries, 241 F.3d at 714-15. We also reject Sussman’s argument that the district court abused its discretion by excluding the Social Security Administration’s (“SSA”) finding that Sussman was disabled. We agree with the district court that this finding — based on an entirely different standard for “disability” — was not relevant in a private disability suit. Moreover, any slight probative value it might have had could properly be found to be outweighed by the risks of confusing the issues and creating undue delay (with a mini-trial on SSA’s methodology and findings). Allowing Provident to argue and submit evidence that the policy benefits would be tax-free to Sussman was also not erroneous. The tax-free character of disability benefits was relevant to Provident’s argument regarding Sussman’s financial motivation to file a disability claim rather than continue with an allegedly deteriorating practice. Moreover, the reason for ordinarily excluding tax treatment does not apply here — the jury was not going to calculate damages even if Sussman won. The district couft properly denied Sussman’s argument that the jurors’ discussions about their experiences with nonsurgical ophthalmologists constituted “prejudicial extraneous information” within the meaning of Fed.R.Evid. 606(b), thereby requiring a new trial. We have long held “that in their deliberations jurors more or less generally recall experiences in their own lives, and if new trials were commonly granted for such a reason there would be no end to litigation.” Casey v. United States, 20 F.2d 752, 754 (9th Cir.1927). Because the jurors’ prior experiences with non-surgical ophthalmologists were non-extraneous background experiences, they are “within the rule rather than the exception of 606(b).” United States v. Krall, 835 F.2d 711, 716 (8th Cir.1987); accord Morgan v. Woessner, 997 F.2d 1244, 1261 (9th Cir.1993). Finally, we affirm summary judgment to Provident on bad faith. The jury found that Provident did not breach the contract, so it could not have found bad faith termination. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022