Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 08-40755 & 08-40945

Summary Calendar

DANIEL RAY UNGER,

Plaintiff–Appellant,

v.

SHERIFF GREG TAYLOR; DEPUTY SHERIFF JOHN SMITH; DEPUTY

SHERIFF BRYAN CHASON; JAILOR ZAK MONTOYA; JUSTICE OF THE

PEACE CARL DAVIS; ANDERSON COUNTY, TEXAS,

Defendants–Appellees.

Appeals from the United States District Court 

for the Eastern District of Texas

USDC No. 6:06-CV-466 

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Daniel Ray Unger appeals the district court’s judgment on his claims

under 42 U.S.C. § 1983. We affirm.

I

In 2005, as Unger was driving through Anderson County, Texas, with an

out-of-state license plate, he was pulled over by Deputy Sheriff John Smith,

United States Court of Appeals

Fifth Circuit

F I L E D

March 2, 2010

Charles R. Fulbruge III

Clerk

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No. 08-40755 & 08-40945

See TEX. CODE CRIM. PROC. ANN. art. 4.12(a)(1). 1

2

purportedly for defective exhaust equipment. Deputy Smith asked Unger for his

driver’s license and proof of liability insurance, and Unger replied that he had

neither. Deputy Smith then asked Unger for his name and date of birth. Unger

gave the deputy his name and explained that he did not use a birthday since, as

an identifying number, it could be used to obtain a social security number, which

would violate his deeply held religious belief of not being numbered. He also

claimed that he could not be arrested since, as the “direct posterity of the

American people,” he had sovereign immunity.

Deputy Sheriff Bryan Chason arrived at the scene shortly after Deputy

Smith. Deputy Smith frisked and handcuffed Unger, and Deputy Chason then

transported Unger to the Anderson County Jail. Unger was booked on charges

of operating a vehicle without liability insurance, operating a vehicle without a

valid driver’s license, and operating a motor vehicle with defective equipment.

The following afternoon he was arraigned before Justice of the Peace Carl Davis.

Unger refused to enter a plea. He was released the same day after posting

$1,500 in bail.

Unger subsequently filed a petition for writ of habeas corpus against

Sheriff Greg Taylor and Justice Davis in the County Court of Anderson County,

Texas. In a hearing on the petition, the court discovered that the charges

against Unger were erroneously filed in the 2nd Precinct of Anderson County,

rather than the 1st Precinct, where the alleged traffic offenses occurred.

Because under Texas law misdemeanor cases are to be tried in the precinct in

which the offenses occurred, the court ruled that Justice Davis did not have 1

proper venue and dismissed the charges against Unger. Unger’s bail was then

returned to him.

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No. 08-40755 & 08-40945

3

Unger, proceeding pro se, sued Sheriff Taylor, Deputy Smith, Deputy

Chason, Jailor Zak Montoya, Justice Davis, and Anderson County, Texas,

alleging numerous constitutional violations. He also brought state law claims

of intentional infliction of emotional distress, false imprisonment, and malicious

prosecution. Both Unger and the defendants moved for summary judgment.

The district court granted summary judgment in favor of the defendants based

on qualified immunity for Unger’s Fourth Amendment claim in connection with

his arrest and subsequent detention, his Fourth Amendment claim in connection

with the search of his person and the car, his Eighth Amendment claims related

to the continuous illumination in the jail and the jail’s unsanitary conditions, his

First and Eighth Amendment claim that he was denied a diet in accordance with

Biblical dietary laws, his Eighth Amendment claims that he was tortured,

deprived of a blanket, and not allowed to make telephone calls, his claim that he

was denied his constitutional right of access to the courts, his Fourth

Amendment claim that he was not brought promptly before a magistrate, his

Sixth Amendment claim for denial of access to an attorney, and his claim for

violation of the right to travel. The court ruled that the defendants were not

shielded by qualified immunity on Unger’s Fourth Amendment claim against

Deputy Smith for the initial traffic stop and his Eighth Amendment claim that

he was denied bedding. The court further ruled that Justice Davis was entitled

to judicial immunity as to all of Unger’s claims against him, that Unger had

failed to state a claim of municipal liability against Anderson County, and that

the defendants were entitled to summary judgment on all of Unger’s state law

claims. The court denied Unger’s motion for summary judgment in its entirety.

Unger subsequently moved to amend his complaint, and the court denied

the motion. His two remaining claims proceeded to trial, and the jury ruled in

favor of the defendants on both claims.

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No. 08-40755 & 08-40945

Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). 2

 F ED. R. CIV. P. 15(a)(2). 3

See Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). 4

 F ED. R. CIV. P. 16(b)(4). 5

Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (internal 6

quotation marks omitted).

4

Unger now presents five issues on appeal. First, he asserts that the

district court abused its discretion when it denied his motion to amend his

complaint. Second, he claims that the district court erred in denying his motion

for summary judgment. Third, he contends that the district court erred in

partially granting the defendants’ motion for summary judgment. Fourth, he

avers that the district court abused its discretion in denying his motion to

compel. And finally, he argues that the district court abused its discretion when

it proceeded to hear the case after Unger filed an affidavit alleging judicial bias.

II

We review the district court’s denial of a motion to amend the complaint

for abuse of discretion. Federal Rule of Civil Procedure 15(a)(2) provides that 2

leave to amend the complaint should be given “freely . . . when justice so

requires.” But because Unger filed his motion to amend the complaint nearly 3

eleven months after the deadline for amendments in the scheduling order, his

motion to amend is governed by Rule 16(b). Under Rule 16(b), a scheduling 4

order may be modified only “for good cause.” We consider four factors in 5

determining good cause: “(1) the explanation for the failure to timely move for

leave to amend; (2) the importance of the amendment; (3) potential prejudice in

allowing the amendment; and (4) the availability of a continuance to cure such

prejudice.”6

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No. 08-40755 & 08-40945

Black v. J.I. Case Co., Inc., 22 F.3d 568, 570 (5th Cir. 1994); see also Becker v.

7

Tidewater, Inc., 586 F.3d 358, 365 n.4 (5th Cir. 2009) (noting that we normally decline to

review a district court’s denial of summary judgment after full trial on the merits).

Black, 22 F.3d at 571. 8

Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). 9

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). 10

5

Unger argued that the district court should allow amendment since he was

pro se and had “inartfully pled” his claims. As reasons for the denial of Unger’s

motion, the district court cited the tardiness of the motion, the imminence of

trial, and the defendants’ failure to consent to the amendment. Under these

circumstances, and considering Unger’s failure to explain the untimeliness of his

motion, the district court acted within its discretion in denying Unger leave to

amend.

III

Unger next contends that the district court erred in denying his motion for

summary judgment. But “an interlocutory order denying summary judgment is

not to be reviewed where final judgment adverse to the movant is rendered on

the basis of a subsequent full trial on the merits.” Once trial begins, “the 7

summary judgment motion[] effectively [becomes] moot.” Because Unger 8

received an adverse final judgment after a jury trial on the merits of his case, we

will not consider his appeal from the denial of his motion for summary judgment.

IV

Unger also appeals from the district court’s grant of partial summary

judgment in favor of the defendants. We review the grant of a motion for

summary judgment de novo, applying the same standard as the district court.9

Summary judgment is appropriate when the competent summary judgment

evidence demonstrates that there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law.

10

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No. 08-40755 & 08-40945

Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009) (quoting Harlow v. Fitzgerald,

11

457 U.S. 800, 818 (1982)) (internal quotation marks omitted). 

Id. 

12

Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). 

13

Id. at 816. 14

Id. at 818. 15

6

Unger challenges seven of the rulings in the district court’s order granting

partial summary judgment. He challenges the district court’s grant of summary

judgment based on qualified immunity for (1) his Fourth Amendment claim in

connection with his arrest and subsequent detention, (2) his Fourth Amendment

claim in connection with the search of his car and his person, (3) his Fourth

Amendment claim for failure to bring him promptly before a magistrate, (4) his

claim for violation of the right to travel, and (5) his claims related to his

punishment as a pretrial detainee. Unger also challenges: (6) the district court’s

ruling that Justice Davis was entitled to judicial immunity and (7) its dismissal

of his claims for municipal liability against Anderson County.

A

Qualified immunity protects government employees against civil liability

“insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” The 11

Supreme Court has articulated a two-prong inquiry into resolving government

officials’ qualified immunity claims. Under the first prong, the court must 12

decide whether the facts the plaintiff has shown make out a violation of a

constitutional right. The second prong requires the court to consider “whether 13

the right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” The court may consider these prongs in any sequence. 14 15

As to the second inquiry, a right is “clearly established” when “the

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No. 08-40755 & 08-40945

Wernecke, 591 F.3d at 392 (internal quotation marks and citation omitted). 16

Id. at 393. 17

See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009). 

18

Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (quoting United States v.

19

Levine, 80 F.3d 129, 132 (5th Cir. 1996)) (internal quotation marks omitted).

 A law enforcement officer may request the driver’s license and vehicle registration 20

in connection with a traffic stop. See United States v. Brigham, 382 F.3d 500, 507-08 (5th Cir.

7

contours of the right [are] sufficiently clear [such] that a reasonable official

would understand that what he is doing violates that right.” The focus is on 16

“fair warning” and whether the official would be “on notice” that his actions

violated constitutional rights. 

17

1

Unger first contends that the district court erred in granting summary

judgment on his claim that Deputy Smith and Deputy Chason violated his

Fourth Amendment rights by unlawfully arresting and detaining him. The

district court ruled that the officers were entitled to qualified immunity since

Unger had failed to show that they had violated a constitutional right. 

To succeed on a constitutional claim for unlawful arrest, the plaintiff must

show that the arrest was not supported by probable cause. “Probable cause 18

exists when the totality of facts and circumstances within a police officer’s

knowledge at the moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an offense.”19

Deputy Smith asserts that he had probable cause to arrest Unger on three

grounds: (1) driving without a license in violation of Texas Transportation Code

§ 521.021, (2) driving without liability insurance in violation of § 601.051, and

(3) operating a vehicle with defective equipment in violation of § 547.605. It is

undisputed that Deputy Smith asked Unger for his license and proof of

insurance and that Unger responded that he had neither. At that point, 20

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No. 08-40755 & 08-40945

2004).

See Atwater v. City of Lago Vista, 532 U.S. 318, 353 (2001) (holding that “[i]f an

21

officer has probable cause to believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the

offender”). 

Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008). 

22

Id.

23

8

Deputy Smith had probable cause to arrest Unger for violation of § 521.021 and

§ 547.605. Accordingly, Unger has not shown that there are triable factual 21

issues as to whether the arrest violated his constitutional rights. The district

court correctly granted summary judgment on this claim. 

2

Unger next argues that the district court erred in granting summary

judgment based on qualified immunity on his claim that Deputy Smith and

Deputy Chason unlawfully searched his car and his person. Unger contends

that the searches were unlawful since they were not incident to a lawful arrest.

He does not contest the scope of the searches. 

Law enforcement officers “may perform searches incident to

constitutionally permissible arrests in order to ensure their safety and safeguard

evidence.” Such warrantless searches may be performed in connection with 22

any arrest based on probable cause. Here, after Unger’s arrest, Deputy Smith 23

and Deputy Chason performed a limited search of Unger’s car, as well as his

person and wallet, in an effort to find proof of insurance and vehicle registration.

Because the arrest at issue was based on probable cause and thus lawful, the

subsequent searches of Unger’s car and person were also lawful. As such, the

district court correctly granted summary judgment on this claim. 

3

Unger next asserts that the district court erred in ruling that the officers

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No. 08-40755 & 08-40945

County of Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (citing Gerstein v. Pugh,

24

420 U.S. 103, 114 (1975)).

Id. at 56.

25

Id.

26

White v. Taylor, 959 F.2d 539, 546 (5th Cir. 1992). 

27

9

were entitled to qualified immunity in connection with his claim that they

violated his Fourth Amendment rights by failing to take him promptly before a

magistrate. 

The Supreme Court has held that persons arrested without a warrant

“must promptly be brought before a neutral magistrate for a judicial

determination of probable cause.” The Court has further explained that 24

determinations of probable cause within 48 hours of arrest will generally be

considered prompt. Still, a probable cause determination within 48 hours may 25

not pass constitutional muster if the arrested person can show that the

determination was “delayed unreasonably.” Examples of unreasonable delay 26

might include “delay incurred for the purpose of gathering additional evidence

to justify the arrest, delay motivated by ill will against the arrested individual,

or delay for delay’s sake.”27

Here, it is undisputed that Unger was arrested on October 27, 2005,

booked into the jail at 11:23 a.m. that same day, and taken before Justice Davis

for arraignment the following day at 1:47 p.m. Thus Unger’s appearance before

the magistrate occurred within the 48-hour time frame required by McLaughlin.

However, the probable cause determination could still be unconstitutional if it

was “delayed unreasonably.” 

Defendants provided evidence that on October 28, 2005, Justice Davis

completed his arraignments prior to the booking of Unger and held no other

arraignments until the following day. Unger did not refute this evidence. Nor

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No. 08-40755 & 08-40945

Jones v. Helms, 452 U.S. 412, 419 (1981). 

28

Id.

29

10

did he provide any evidence of unreasonable delay. Accordingly, Unger has not

shown that there are issues of material fact concerning whether the less than 48-

hour delay violated his constitutional rights. 

4

Unger next argues that the district court erred in dismissing his claim for

violation of his constitutional right to travel. Although there is a fundamental

right to travel, the Supreme Court has recognized that there are “situations in

which a State may prevent a citizen from leaving,” such as when “a person has

been convicted of a crime within a State.” The Court has further explained 28

that “even before trial or conviction, probable cause may justify an arrest and

subsequent temporary detention” such that the person is “temporarily deprived

of his freedom to travel elsewhere within or without the State.” Here, as 29

discussed supra, Deputy Smith had probable cause to arrest Unger for driving

without a license or liability insurance. Accordingly, Unger’s brief detention did

not violate his right to travel, and the district court properly granted summary

judgment on this claim.

5

Unger’s brief also states that “the gravamen of his claim of punishment as

a pretrial detainee is as follows” and then lists five problems he had with his

pretrial detention, including his placement in a holding tank, his lack of access

to a phone, his lack of access to pencil and paper, his lack of bedding, and his

lack of visitation. His brief does not present any arguments with regard to these

issues and does not address the district court’s reasons for dismissing his claims.

Although pro se briefs are liberally construed, “such litigants must still brief

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No. 08-40755 & 08-40945

Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007). 30

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 31

Davis v. Tarrant County, Tex., 565 F.3d 214, 221 (5th Cir. 2009) (citing Mireles v. 32

Waco, 502 U.S. 9, 9-10 (1991)), cert. denied, 130 S. Ct. 624 (2009). 

Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir. 1982). 

33

Mireles, 502 U.S. at 11-12. 34

Stump v. Sparkman, 435 U.S. 349, 356 (1978). 35

Id. 

36

11

contentions in order to preserve them.” Claims not adequately argued in a 30

brief are deemed abandoned on appeal. Accordingly, Unger has waived these 31

issues.

B

Unger also challenges the district court’s summary judgment ruling that

Justice Davis is entitled to judicial immunity. Unger contends that Justice

Davis “falsely acted in the capacity of a judicial officer in a case in which he was

wholly lacking in jurisdiction.” 

A judge generally has absolute immunity from suits for damages. This 32

immunity extends to justices of the peace. Judges do not, however, have 33

immunity for “actions not taken in the judge’s judicial capacity” or for “actions,

though judicial in nature, taken in the complete absence of all jurisdiction.” In 34

considering whether a judge’s action was in the complete absence of jurisdiction,

“the scope of the judge’s jurisdiction must be construed broadly.” A judge will 35

not be deprived of immunity merely because his action “was in error, was done

maliciously, or was in excess of his authority.”36

Unger’s contention that Davis’s actions in arraigning him were “wholly

lacking in jurisdiction” has no merit. All of the actions of which Unger

complains—denying him the right to make a phone call in court, failing to make

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No. 08-40755 & 08-40945

See id. 

37

City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell v. New York

38

City Dep’t of Soc. Servs., 436 U.S. 658, 680 (1978)).

Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009), pet. for cert. 39

filed, No. 09-983 (Feb. 16, 2010). 

12

a finding of probable cause, denying his request for paper and pencil in court,

and asking him to enter a plea to the charges—are judicial in nature. And while

Justice Davis’s actions may have been in error since Unger was taken to the

wrong precinct, that does not render them performed “in the complete absence

of jurisdiction.” The district court correctly ruled that Justice Davis was 37

entitled to absolute immunity.

C

Unger’s next challenge to the district court’s summary judgment ruling

concerns its dismissal of his claim against Anderson County. Unger contends

that Anderson County intentionally violated his right to due process of law, right

of access to courts, right to counsel, right not to be punished as a pre-trial

detainee, and right to liberty.

A local government entity may be sued “if it is alleged to have caused a

constitutional tort through ‘a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.’” To establish 38

municipal liability under § 1983, the plaintiff must show that “(1) an official

policy (2) promulgated by the municipal policymaker (3) was the moving force

behind the violation of a constitutional right.”39

Unger has not shown that there are issues of material fact as to whether

Anderson County had an official policy resulting in constitutional torts. The

official policy requirement can be met in at least three different ways: (1) when

an “officer or entity promulgates a generally applicable statement of policy and

the subsequent act complained of is simply an implementation of the policy”; (2)

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No. 08-40755 & 08-40945

Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). 40

See FED. R. CIV. P. 56(e)(1). 41

13

when there is no official policy announced, “but the action of the policymaker

itself violated a constitutional right”; or (3) when the policymaker fails to act

affirmatively when the need to take action “is so obvious” that the policymaker’s

inaction renders it “deliberately indifferent to the need.” Unger’s convoluted 40

allegations appear to allege that Anderson County had policies or customs of

incarcerating individuals “without authority of sworn complaints,” punishing

pre-trial detainees for their religious beliefs, and violating the constitutional

rights of pre-trial detainees. But Unger has provided no competent summary

judgment evidence to support his assertion that Anderson County had such a

policy. His only piece of evidence—a statement in his affidavit that he spoke

with a man named Howard Gambrell who was also “denied his rights as

punishment for the exercise of his religious beliefs, placed in the holding tank

of the Anderson County jail, and denied the right to use the phone to call

counsel”—is not based on personal knowledge, and thus is not competent

summary judgment evidence.41

Accordingly, Unger has not shown that there are triable issues of fact on

the issue of municipal liability. 

V

In addition to his specific challenges to the district court’s summary

judgment ruling, Unger argues that the ruling was improper since the

defendants’ summary judgment motion and reply should have been struck for

noncompliance with the local rules. Specifically, Unger asserts that the

defendants’ motion for summary judgment failed to include a statement of

undisputed material facts and failed to include appropriate citations to proper

summary judgment evidence as required by Local Rule CV-56. Unger further

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No. 08-40755 & 08-40945

United States v. Rios-Espinoza, 591 F.3d 758, 760 (5th Cir. 2009). 42

Burns v. Exxon Corp., 158 F.3d 336, 342 (5th Cir. 1998). 

43

O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499 (5th Cir. 1985) (internal 44

quotation marks omitted). 

14

argues that the magistrate judge should not have given consideration to the

defendants’ reply brief since it exceeded the page limitation in Local Rule CV-7

and was untimely.

We review a district court’s enforcement of the local rules for abuse of

discretion. Here, the district court was within its discretion in refusing to 42

strike the defendants’ summary judgment motion and reply brief. Contrary to

Unger’s allegations, the summary judgment motion contained a section of

undisputed material facts and citations to the defendants’ summary judgment

evidence. And while the reply brief did exceed the page limitation, Local Rule

CV-7(l) gives the district court discretion to allow motions in excess of the page

limitation. Similarly, Local Rule CV-7(e) gives the court discretion to allow reply

briefs beyond the typical five-day deadline. Under these circumstances, we find

no abuse of discretion in the district court’s refusal to strike the reply brief.

VI

Unger next argues that the district court abused its discretion in denying

his motion to compel production of certain personnel files. In his motion, Unger

complained that the 1,000-page personnel file already produced by the

defendants was illegible in parts. Defendants responded that the plaintiff could

come by the sheriff’s office to review the file personally. 

We review the district court’s denial of a motion to compel for abuse of

discretion. A trial court’s decision pertaining to discovery should be reversed 43

“only in an unusual and exceptional case.” Here, the district court acted within 44

its discretion in denying the motion to compel since the defendants had already

Case: 08-40755 Document: 00511039898 Page: 14 Date Filed: 03/02/2010
No. 08-40755 & 08-40945

Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999). 

45

Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990). 46

Id.

47

 28 U.S.C. § 455(a). 48

Matassarin, 174 F.3d at 571. 49

15

produced the personnel file and had also given Unger the opportunity to review

the file in person. 

VII

Lastly, Unger contests the district court judge’s refusal to recuse himself

after Unger filed an affidavit alleging bias and moving for the judge’s recusal

under 28 U.S.C. § 144 and § 455. We review the denial of a motion to recuse for

abuse of discretion. Section 144 relates to charges of “actual bias.” To 45 46

proceed under § 144, the movant must present an affidavit that meets the

following requirements: “(1) the facts must be material and stated with

particularity; (2) the facts must be such that if true they would convince a

reasonable man that a bias exists; and (3) the facts must show the bias is

personal, as opposed to judicial, in nature.” Under § 455, a judge must recuse 47

himself “in any proceeding in which his impartiality might reasonably be

questioned.” The standard is “whether a reasonable person, with full 48

knowledge of all of the circumstances, would harbor doubts about the judge’s

impartiality.”49

Unger’s affidavit essentially alleges that the district court judge was

biased because of his unfavorable rulings on Unger’s numerous nonmeritorious

motions, objections, and complaints. Because the alleged bias is “judicial,”

rather than “personal” in nature, the facts alleged do not meet the requirements

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No. 08-40755 & 08-40945

See Davis v. Bd. of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 50

1975) (explaining that the alleged bias was not extra-judicial, but “very much judicial,” since

the movants were complaining of language in an order and an opinion). 

16

for a § 144 affidavit. Neither do the allegations show that a reasonable person 50

would doubt the district court judge’s impartiality. As such, the district court

did not abuse its discretion in denying Unger’s motion. 

* * *

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

Case: 08-40755 Document: 00511039898 Page: 16 Date Filed: 03/02/2010