alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The parties consented to proceed before a magistrate judge. See 28 ** 

U.S.C. § 636(c).

The panel unanimously concludes this case is suitable for decision ***

without oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

RICKY W. JAMES,

 Plaintiff - Appellant,

 v.

J. WILBER, D.D.S.; et al.,

 Defendants - Appellees.

No. 10-17911

D.C. No. 1:08-cv-00351-DLB

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dennis L. Beck, Magistrate Judge, Presiding**

Submitted March 6, 2012*** 

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges. 

Ricky W. James, a California state prisoner, appeals pro se from the district

court’s summary judgment in his 42 U.S.C. §1983 action alleging deliberate

FILED

MAR 15 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 10-17911

indifference to his serious dental needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004). We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment to defendants Wilber

and Johnson because James failed to raise a genuine dispute of material fact as to

whether those defendants were deliberately indifferent to his dental problems and

associated pain. See id. at 1059-60 (mistakes, negligence or malpractice do not rise

to an Eighth Amendment violation, nor does a difference of opinion about the

preferred course of treatment). 

The evidence as to defendant Saenz, however, viewed in the light most

favorable to James, raises a triable dispute as to whether Saenz was deliberately

indifferent to James’s serious dental needs. James repeatedly told Saenz that he

was suffering from severe pain from an abscessed tooth, his dentures had broken

and he could not eat properly, yet Saenz failed to relieve his pain or ensure that he

was promptly seen by qualified medical or dental personnel. See Hunt v. Dental

Dep’t, 865 F.2d 198, 200-01 (9th Cir. 1989) (explaining that dental care is one of

the most important medical needs of inmates, and reversing summary judgment for

officials who were aware of inmate’s “bleeding gums, breaking teeth and his

inability to eat properly, yet failed to take any action to relieve his pain”). 
3 10-17911

Moreover, Saenz admits that she is not qualified to evaluate dental conditions or

perform medical evaluations but nonetheless determined that James was not

entitled to emergency medical attention. Accordingly, we reverse the grant of

summary judgment as to Saenz and remand for further proceedings.

James’s remaining contentions are unpersuasive. 

The parties shall bear their own costs on appeal. 

AFFIRMED in part, REVERSED in part, and REMANDED.
James v. Wilber, No. 10-17911

TASHIMA, Circuit Judge, concurring in part and dissenting in

part:

I would affirm summary judgment as to L.V.N. Saenz. 

FILED

MAR 15 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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###### Department of Energy

###### Federal Energy Regulatory Commission 

          - [Project No. 13053-000] 

On December 9, 2008, the Commission issued notice that Green Wave Energy Solutions, LLC filed an application on October 19, 2007, proposing to study the feasibility of the Green Wave Mendocino Project, to be located on the Pacific Ocean in Mendocino County, California. Pursuant to that notice the deadline for filing comments, motions to intervene, or competing applications is 60 days from December 9, 2008. 

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[FR Doc. E9-2522 Filed 2-5-09; 8:45 am] 

BILLING CODE 6717-01-P
<PAGE>   1


                                                                   Exhibit 23.2



      CONSENT OF BDO SEIDMAN, LLP, INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS



            We consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 33-78752, 33-90162, 333-03426 and 333-34117) of
Odwalla, Inc. of our report dated October 12, 1995, relating to the financial
statements of Odwalla, Inc. appearing in the Company's Annual Report on Form
10-K for the year ended August 31, 1997.


BDO Seidman, LLP

San Francisco, California
November 25, 1997
United States Court of Appeals

for the Fifth Circuit

No. 22-50167

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Antonio Ramirez-Juan, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:21-CR-925-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

Antonio Ramirez-Juan appeals his conviction and sentence for illegal 

reentry after deportation pursuant to 8 U.S.C. § 1326(a) and (b)(1). RamirezJuan asserts that treating a prior felony or aggravated felony conviction that 

increases the statutory maximum sentence under § 1326(b) as a sentencing 

* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2022

Lyle W. Cayce

Clerk

Case: 22-50167 Document: 00516424010 Page: 1 Date Filed: 08/08/2022
No. 22-50167

2

factor, rather than a separate element of the offense, is unconstitutional. He 

has filed an unopposed motion for summary disposition and a letter brief in 

which he acknowledges that his argument is foreclosed and indicates that he 

has raised the issue only to preserve it for further review.

As Ramirez-Juan correctly concedes, the sole issue raised on appeal is 

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See 

United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States 

v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because his position “is clearly 

right as a matter of law so that there can be no substantial question as to the 

outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 

(5th Cir. 1969), summary disposition is proper. 

Therefore, the motion for summary disposition is GRANTED, and 

the judgment of the district court is AFFIRMED.

Case: 22-50167 Document: 00516424010 Page: 2 Date Filed: 08/08/2022
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Center grants also support the development of research resources of value for the larger scientific community. An important objective of the Centers program is to integrate basic (laboratory) research with applied research to develop new approaches to prevention and treatment of disease. 

Some of the activities NIDDK Centers perform can include:
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          - supporting core facilities, which have specialized scientific expertise and equipment to provide technical research services to multiple researchers; 
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<PAGE>

                                                                      Exhibit 23


                       CONSENT OF INDEPENDENT AUDITOR'S


We consent to the incorporation by reference in the Registration Statement (Form
S-1 No. 33-51950) pertaining to the l992 Stock Option and Incentive Plan of
Kankakee Bancorp, Inc. and the Kankakee Federal Amended and Restated 401 (K)
Savings Plan, of our report dated February 2, 2001, with respect to the
consolidated financial statements of Kankakee Bancorp, Inc. incorporated by
reference in the Annual Report (Form 10-K) for the year ended December 31, 2000.

/s/ McGladrey & Pullen, LLP

Champaign, Illinois
March 22, 2001
#### David Donald DUVALL, Plaintiff-Appellant v. ATTORNEY GENERAL OFFICE OF TEXAS; Travis County District Attorney’s Office; Ronald Earle, District Attorney, individual capacity; Travis County; John Doe, Agent—Transact U.S. Mail matters, individual capacity; United States Postal Service; Steven Hernandez, postmaster, John Doe, manager, Northcross Station, Defendants-Appellees.

No. 08-51000

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 28, 2009.

*330David Donald DuVall, pro se.

Kimberly L. Fuchs, Office of the Attorney General Law Enforcement Defense Div, Austin, TX, Jennifer Kraber, Austin, TX, Daniel M. Castillo, U.S. Attorney’s Office Western District of Texas, Austin, TX, for Defendants-Appellees.

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM: *

David Donald DuVall appeals the dismissal of his claims and the imposition of sanctions by the United States District Court for the Western District of Texas. DuVall’s claims emerge from his efforts to bring about the prosecution of his adversaries from a separate civil case that has been dismissed.1 In the instant case, the claims are that various government entities and individuals stymied DuVall by refusing to accept mail from him or to pursue criminal charges.

We review dismissals under Fed. R.Civ.P. 12(b)(1) and 12(b)(6) de novo. However, DuVall provides no meaningful arguments based in fact or in law for any of his alleged points of error, nor has he filed a reply brief in response to the briefs of his opponents. Our review of the judgment of the district court reveals no error. DuVall’s factual offerings are deficient to state a claim as to any of the defendants-appellants, many of whom rightfully claim further immunities that would stand in the way of DuVall’s suit.

Finally, DuVall offers no ground in fact or in law for overturning the imposition of sanctions, and therefore these too must stand.

The judgment of the district court is AFFIRMED.

*

 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.

1

. *See DuVall v. Lowe's Companies, Inc.,*No. 07-cv-690 (W.D.Tex. Dec. 20, 2007), *aff’d*278 Fed.Appx. 399 (5th Cir.2008).
<TABLE> <S> <C>


<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the
consolidataed financial statements and is qualified in its entirety by
reference to such financial statements.
</LEGEND>

       
<S>                             <C>
<PERIOD-TYPE>                   YEAR
<FISCAL-YEAR-END>                         DEC-31-1998
<PERIOD-END>                              DEC-31-1998
<CASH>                                      3,929,800
<SECURITIES>                                        0
<RECEIVABLES>                                  92,300
<ALLOWANCES>                                        0
<INVENTORY>                                   147,300
<CURRENT-ASSETS>                            4,251,200
<PP&E>                                      2,121,800
<DEPRECIATION>                              (347,000)
<TOTAL-ASSETS>                              7,878,200
<CURRENT-LIABILITIES>                       1,295,200
<BONDS>                                             0
<COMMON>                                       15,400
<PREFERRED-MANDATORY>                          13,800
<PREFERRED>                                         0
<OTHER-SE>                                  6,553,800
<TOTAL-LIABILITY-AND-EQUITY>                7,878,200
<SALES>                                        45,000
<TOTAL-REVENUES>                              418,600
<CGS>                                               0
<TOTAL-COSTS>                               7,676,300
<OTHER-EXPENSES>                                    0
<LOSS-PROVISION>                                    0
<INTEREST-EXPENSE>                             27,100
<INCOME-PRETAX>                           (7,284,800)
<INCOME-TAX>                                        0
<INCOME-CONTINUING>                       (7,284,800)
<DISCONTINUED>                                      0
<EXTRAORDINARY>                                     0
<CHANGES>                                           0
<NET-INCOME>                              (7,284,800) 
<EPS-PRIMARY>                                  (0.49)
<EPS-DILUTED>                                  (0.49)
        


</TABLE>
<TABLE> <S> <C>


<ARTICLE>                                              5
<MULTIPLIER>                                       1,000
<CURRENCY>                                  U.S. Dollars

<S>                             <C>
<PERIOD-TYPE>                                      3-MOS
<FISCAL-YEAR-END>                            DEC-31-1999
<PERIOD-START>                                OCT-1-1999
<PERIOD-END>                                 DEC-31-1999
<EXCHANGE-RATE>                                     1.00
<CASH>                                             1,172
<SECURITIES>                                           0
<RECEIVABLES>                                        607
<ALLOWANCES>                                         116
<INVENTORY>                                        1,718
<CURRENT-ASSETS>                                   3,509
<PP&E>                                             8,658
<DEPRECIATION>                                    (6,839)
<TOTAL-ASSETS>                                     5,636
<CURRENT-LIABILITIES>                              6,477
<BONDS>                                            1,195
<PREFERRED-MANDATORY>                                  0
<PREFERRED>                                            1
<COMMON>                                               2
<OTHER-SE>                                        (2,039)
<TOTAL-LIABILITY-AND-EQUITY>                       5,636
<SALES>                                              372
<TOTAL-REVENUES>                                     687
<CGS>                                                169
<TOTAL-COSTS>                                        169
<OTHER-EXPENSES>                                   2,379
<LOSS-PROVISION>                                       0
<INTEREST-EXPENSE>                                (1,167)
<INCOME-PRETAX>                                  (10,088)
<INCOME-TAX>                                           0
<INCOME-CONTINUING>                              (10,088)
<DISCONTINUED>                                         0
<EXTRAORDINARY>                                        0
<CHANGES>                                              0
<NET-INCOME>                                     (10,088)
<EPS-BASIC>                                        (0.32)
<EPS-DILUTED>                                          0




</TABLE>
#### In the Matter of William Kyle et al., Appellants, v Gerald Lebovits, Respondent, et al., Respondent.

[870 NYS2d 360]

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 1, 2007, insofar as it denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 seeking a writ in the nature of mandamus directing respondent judge to disqualify himself, nunc pro tunc to June 4, 2007, from all matters relative to two pending nonpayment proceedings, unanimously affirmed; appeal from the part of the order that imposed sanctions in the amount of $1,000 upon nonparty attorney Robin H. Kyle for engaging in frivolous conduct, unanimously dismissed; all with costs.

The record does not support a finding that Judge Lebovits was “interested” in the proceeding and thus required to recuse himself pursuant to Judiciary Law § 14. Absent a legal disqualification under Judiciary Law § 14, petitioners had no clear right to the remedy of mandamus *(see Matter of Alizia McK.,*25 AD3d 429 [2006]). Moreover, they had and have other adequate remedies at law by which to seek the retroactive disqualification of the judge *(see Matter of Herskowitz v Tompkins,*184 AD2d 402, 402-403 [1992], *appeal dismissed*80 NY2d 1023 [1992]).

The appeal from the part of the order that imposed sanctions against nonparty attorney Kyle must be dismissed because Kyle did not file an appeal from the order within the 30-day period established by CPLR 5513 *(see Steinhardt Group v Citicorp,*303 AD2d 326 [2003], *lv denied*100 NY2d 506 [2003]), and petitioners are not aggrieved by that part of the order *(see Scopelliti v Town of New Castle,*92 NY2d 944 [1998]). Were we to consider the issue, we would perceive no basis for disturbing the court’s exercise of discretion in sanctioning Kyle.

We have considered petitioners’ remaining arguments and find them unavailing.

Motion seeking leave for judicial notice denied.

Concur—Mazzarelli, J.P., Friedman, Buckley, Acosta and Freedman, JJ. *[See*17 Misc 3d 1124(A), 2007 NY Slip Op 52132(U).]