alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Clarence Edward LANCASTER, Plaintiff-Appellant, v. Mike MCEUEN; et al., Defendants-Appellees.

No. 16-15815

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2017 *

Filed March 20, 2017

Clarence Edward Lancaster, Pro Se

Justin Michael Ackerman, Esquire, Attorney, Michele Molinario, Attorney, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for Defendant-Appellee

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Clarence Edward Lancaster appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging due process violations arising out of his pretrial detention at Graham County Jail in Arizona. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s summary judgment on the basis of failure to exhaust administrative remedies. *Williams v. Paramo,*775 F.3d 1182, 1191 (9th Cir. 2015). We affirm.

The district court properly granted summary judgment on Lancaster’s due process *634claim because Lancaster failed to raise a genuine dispute of material fact as to whether he properly exhausted his administrative remedies or whether administrative remedies were effectively unavailable to him. *See Woodford v. Ngo,*548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“[P]roper exhaustion of administrative remedies ... means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” (emphasis, citation, and internal quotation marks omitted)); *Paramo,*775 F.3d at 1191 (a prisoner who does not exhaust administrative remedies must show that “there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him....”); *see also Sapp v. Kimbrell,*623 F.3d 813, 827 (9th Cir. 2010) (prisoner must have “reasonable good faith belief that administrative remedies were effectively unavailable.... ”).

We reject as without merit Lancaster’s contention that Graver is estopped from asserting non-exhaustion of administrative remedies as a defense.

We do not consider arguments and allegations raised for the first time on appeal. *See Padgett v. Wright,*587 F.3d 983, 985 n.2 (9th Cir. 2009).

We do not consider' documents not filed with the district court. *See United States v. Elias,*921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”).

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
No. 28,704.

#### H. F. McCall, *Appellant,*v. E. W. Bacon, *Appellee.*

(276 Pac. 815.)

Opinion filed May 4, 1929.

*H. W. Stubbs,*of Ulysses, for the appellant.

*O. W. Helsel,*of Wichita, for the appellee.

The opinion of the court was delivered by

Marshall, J.:

The action was one to recover damages for failure to convey real property in accordance with a contract alleged to have been made for such conveyance. Judgment was rendered in favor of the defendant, and the plaintiff appeals.

The case was tried on an agreed statement of facts, from which the court made findings of fact and conclusions of law. The conclusion of the court was that there had been no contract because the minds of the plaintiff and the defendant had not met upon any proposition made by one of the parties and accepted by the other. Whether or not there was a contract must be determined from the correspondence between the plaintiff and the defendant.

The first proposition of the plaintiff to the defendant was by telegram dated August 31,1927, in which the plaintiff said:

> “I will give you twenty-two hundred dollars cash, net to you, for the northwest quarter of section eleven, township twenty-seven, range thirty-seven. Answer.”

The defendant responded to that telegram under date of September 2,1927, in which the defendant said:

> “I have decided to let you have the place at $2,200. . . . You pay the tax which will become due this fall. . . . You will get the rent crop this fall and take the place subject to my bargain with Mr. Rowe for next year’s wheat crop.”

On September 6 the plaintiff wrote the defendant in part as follows:

> *245“. . . I am to give you $2,200 cash net to you. ... I am to stand all expense here at this end and pay all taxes this fall, and I am to receive % of the row crop from the renter, Ed. Rowe.”

On September 5, 1927, the defendant wrote the plaintiff notifying him that the land had been sold to another party. That letter contained the following language:

> “The only difference between you and I on the deal was the taxes and agreeing to take it subject to the lease, which I haven’t heard whether you would do it or not.”

There is nothing in the record to show that one-fourth of the row crop mentioned in the plaintiff’s letter to the defendant corresponded to the rent crop mentioned in the defendant’s letter to the plaintiff. The plaintiff by his letter to the defendant on September 6 did not accept all of the counter proposition made by the defendant to the plaintiff. Consequently, there was no contract; the minds of the plaintiff and of the defendant did not meet.

The judgment is affirmed.
#### John H. THOMPSON; Melanie Salyers Thompson, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 16-72537

United States Court of Appeals, Ninth Circuit.

Submitted August 9, 2017 *

Filed August 14, 2017

John H. Thompson, Pro Se

Melanie Salyers Thompson, Pro Se

Janet A. Bradley, Esquire, Attorney, Teresa Ellen McLaughlin, Attorney, DOJ—U.S. Department of Justice, Tax Division/Appellate Section, Washington, DC, William J. Wilkins, Chief Counsel, Internal Revenue . Service, Washington, DC, for Respondent-Appellee

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM **

John H. Thompson and Melanie Salyers Thompson appeal pro se from the Tax Court’s decision, following a bench trial, upholding the Commissioner of Internal Revenue’s determination of deficiencies. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo the Tax *273Court’s legal conclusions and for clear error its factual determinations. *Kelley v. Comm’r,*45 F.3d 348, 350 (9th Cir. 1995). We affirm.

The Tax Court properly concluded that appellants did not meet their burden of proving they were entitled to a foreign earned income exclusion. *See*26 U.S.C. § 911(d)(1) (definition of "qualified individual”); *id.*§ 911(d)(4) (requirements for waiver of period of stay in a foreign country). Contrary to appellants’ contentions, any prior allowance of the exclusion or failure to provide a clear explanation as to any change in position regarding the exclusion does not provide a basis for relief. *See Dixon v. United States,*381 U.S. 68, 72-73, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965) (“[T]he Commissioner is empowered retroactively to correct mistakes of law in the application of the tax laws to particular transactions ... even where a taxpayer may have reliéd 'to his detriment on the Commissioner’s mistake.”).

The Tax Court did not abuse its discretion by denying appellants’ motion for reconsideration and motion to vacate because the motions provided no basis to conclude that the Tax Court’s prior decisions were in error. *See Thomas v. Lewis,*945 F.2d 1119, 1123 (9th Cir. 1991) (standard of review for motion to *vacate); Parkinson v. Comm’r,*647 F.2d 875, 876 (9th Cir. 1981) (standard of review for motion for reconsideration).

To the extent appellants challenge the denial of the motion to dismiss, we reject the challenge as meritless.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[Federal Register Volume 87, Number 37 (Thursday, February 24, 2022)]
[Notices]
[Pages 10366-10367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03871]


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[[Page 10367]]

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[FR Doc. 2022-03871 Filed 2-23-22; 8:45 am]
BILLING CODE 4163-18-P


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14285

#### SPARTANBURG COUNTY v. ARTHUR *ET AL.*

(185 S. E., 486)

*82July, 1935.

*91
      *Messrs. Sawyer & Sawyer*and *R. W. Wade,*for appellants,

*Messrs. Sam J. Nicholls, Donald Russell*and *P. D. Barron,*for respondent,

*92April 28, 1936.

The opinion of the Court was delivered by

Mr. Justice Bonham.

The Bank of Union, a State bank, was situate at Union, S. C. It became insolvent and was closed September 23, 1931. J. D. Arthur and Luke J. Wilburn are the duly appointed and qualified receivers thereof, and are still engaged in the discharge of their duties as such receivers. Prior to the insolvency of the bank, the County of Spartanburg had begun an action against it to recover of it certain moneys received by it from a former treasurer of Spartanburg County, taken by him from the county’s funds, in the payment of his individual obligations. Before the case was tried, the bank failed; thereupon the receivers were substituted as defendants in the stead of the bank, and judgment was recovered against them. A proceeding against the same parties was brought by Spartanburg County to have the judgment thus obtained by it declared to be a preferred claim in the distribution of the assets of the'insolvent bank, which proceeding resulted in a decree of the Court allowing the claim. See 169 S. C., 456, 169 S. E., 235.

Upon the application of the receivers, an *ex parte*order of the Court was granted which allowed them to pay to themselves certain commissions from the funds in their hands. Thereupon, on the petition of Spartanburg County, an order was passed vacating the *ex parte*order which allowed these commissions to the receivers, and referring it to W. S. Hall, Esquire, to take the testimony and report to the Court the commissions to which the receivers were entitled .up to the date of the order.

The Special Referee reported that the receivers were entitled only to the commissions of two per cent, on all moneys received by them and a like amount on all moneys paid out by them up to $50,000.00, and 2J4 per cent, on all sums received and paid out above that sum, as fixed by Section 7855, Code of Laws 1932.

*93To this report the receivers filed exceptions, which were heard by his Honor, Judge Mann, whose decree disposing of them is so complete, clear, and thorough as to make it unnecessary for this Court to add anything to it. L,et it be reported.

Judgment affirmed.

Mr. Chief Justice Stabler and Messrs. Justices Carter, Baker and Fishburne concur.
### IN THE SUPREME COURT OF THE STATE OF MONTANA DA 23 - 0138

_________________ IN RE THE MARRIAGE OF JACQUELINE STEINMANN,

Petitioner and Appellee, and BRETT STEINMANN,

Respondent and Appellant. O R D E R

_________________ Pursuant to the Internal Operating Rules of this Court, this cause is classified for submission on briefs to a five - justice panel of this Court. The Clerk is directed to provide a copy hereof to all counsel of r ecord and to the Honorable Peter B. Ohman , District Judge . For the Court,

Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court

October 25 2023

10/25/2023
Case Number: DA 23-0138
#### The People of the State of New York, Respondent, v Curly Hernandez, Appellant.

[770 NYS2d 316]

Judgment, Supreme Court, New York County (Thomas Galligan, J.), rendered October 19, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record *(see People v Prochilo,*41 NY2d 759, 761 [1977]). In a drug-prone neighborhood, defendant exhibited nervous behavior upon the arrival of a marked police car. He repeatedly looked over his shoulder at the officer, making eye contact several times. Defendant, who was wearing a bulky jacket, walked stiffly and braced his arm against his waist, in a manner that suggested that he was concealing an object under his jacket. He quickly entered and left a restaurant known to the officer for drug activity. The totality of these observations gave rise to a founded suspicion that criminal activity was afoot that justified a common-law right to inquire *(see People v Pines,*281 AD2d 311 [2001], *affd*99 NY2d 525 [2002]). Defendant’s immediate flight, before the police could even approach him to make an inquiry, established reasonable suspicion and justified the police pursuit *(id.).*The police properly recovered the package of cocaine discarded by defendant during his flight.

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur—Mazzarelli, J.P., Andrias, Saxe, Williams and Friedman, JJ.
#### Erick SEALEY, a/k/a Wasim Ata Bey, Petitioner-Appellant, v. Harold W. CLARKE, Director of the Virginia Department of Corrections, Respondent-Appellee.

No. 17-6208

United States Court of Appeals, Fourth Circuit.

Submitted: April 25, 2017

Decided: April 28, 2017

Erick Sealey, Appellant Pro Se.

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

*293Dismissed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM;

Erick Sealey seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. *See*28 U.S.C. § 2258(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. *Slack v. McDaniel,*529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); *see Miller-El v. Cockrell,*537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. *Slack,*529 U.S. at 484-85, 120 S.Ct, 1595.

We have independently reviewed the record and conclude that Sealey has not made the requisite showing. 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 this court and argument would not aid the decisional process.

*DISMISSED*
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#### James R. STEIN; Carol A. Stein, Plaintiffs-Appellants, v. CREEKSIDE SENIORS L.P., Defendant-Appellee.

No. 16-35249

United States Court of Appeals, Ninth Circuit.

Submitted September 26, 2017 *

October 4, 2017

James R. Stein, Moscow, ID, pro se.

Carol A. Stein, Moscow, ID, pro se.

Mark A. Ellingsen, Witherspoon Kelley Davenport Toole LLP, Coeur D’Alene, ID, Theresa L, Kitay, Kitay Law Offices, Marina Del Rey, CA, for Defendant-Appellee.

Before: SILVERMAN, TALLMAN, and N.R. .SMITH, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM ***

James R. Stein and Carol A. Stein appeal pro se from the district court’s summary judgment in their action alleging claims under the Fair Housing Act (“FHA”) and Rehabilitation Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. *DuBois v. Ass’n of Apartment Owners of 2987 Kalakaua,*453 F.3d 1175, 1178 (9th Cir. 2006). We may affirm on any basis supported by the record, *445*Thompson v. Paul,*547 F.3d 1055, 1057-59 (9th Cir. 2008), and we affirm.

Summary judgment was proper on the Steins’ claim that defendant failed to accommodate Mr. Stein’s disability in relation to the secondary exit' because the Steins failed to raise a genuine dispute of material fact as to whether the secondary exit was related to Mr. Stem’s disability. *See Dubois,*453 F.3d at 1179 (elements of failure-to-aceommodate claim).

The district court properly granted summary judgment on the Steins’ claims that defendant otherwise failed to accommodate Mr. Stein’s disability in relation to the no-smoking policy, written assignment of a parking space, and installation of HUD compliant reinforcements on a shower grab bar because the Steins failed to raise a genuine dispute of material fact as to whether their requests were reasonable or necessary. *See Giebeler v. M & B Assocs.,*343 F.3d 1143, 1155-57 (9th Cir. 2003) (discussing causation and reasonableness in an FHA request for accommodation).

The district court properly granted summary judgment on the Steins’ retaliation claim under the FHA because the Steins failed to raise a genuine dispute of material fact as to whether defendant subjected them to an adverse action. *See Walker v. City of Lakewood,*272 F.3d 1114, 1128 (9th Cir. 2001) (setting forth elements of a retaliation claim under the FHA).

The district court did not abuse its discretion in denying the Steins’ motion to compel discovery because the Steins failed to establish that the denial resulted in actual and substantial prejudice. *See Hallett v. Morgan,*296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review and explaining district court’s broad discretion to deny discovery).

We reject as without merit the Steins’ contention that the district court was biased.

The Steins “motion to transmit several physical exhibits” (Docket Entry No. 14) is denied.

AFFIRMED.

***

 This Disposition Is Not Appropriate for Publication and Is Not Precedent Except as Provided By Ninth Circuit Rule 36-3,
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