alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
**UN PUBLISHED** 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 13**  **- 1504** 

RONNIE T. SHELTON , Plaintiff

- Appellant ,

v. CAROLYN W. COLVIN, Social Security Administration; COMMONWEALTH OF VIRGINIA, Department of Disability Services; DISABILITY DETERMINATION SERVICES; SHARON L. GOTTOVI, Commonwealth of Virginia, Department of Rehabilitative Services, Disability Determination Services; BARRY LAWLOR, Commonwealth of Virginia, Department of Rehabilitative Services, Disability Determinatio n Services , Defendants

– Appellees,
and PEGGY CARTER, Social Security, Office of Disability Adjudication and Review; WINNIE J. WHITING, Social Security, Office of Disability Adjudication and Review , Defendants

.

Appeal from the United States District Court for the Western District of Virginia , at Harrisonburg

. Michael F. Urbanski , District Judge. ( 5:12

- cv - 00009

- MFU

- JGW )

Submitted : September 27, 2013 Decided: October 4, 2013

Before MOTZ, KING, and FLOYD , Circuit Judges.

Affirmed by un published per curiam opinion

.2 Ronnie T. Shelton, Appellant Pro Se. Kartic Padmanabhan, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia; Erin Laura Barrett, Pamela Brown Beckner, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM:
Ronnie T. Shelton appeals the district court ’ s order adopting the recommendation of the magistrate judge and dismissing Shelton ’s civil complaint in part, and granting the
Commissioner’s motion to remand . We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Shelton v. Astru e , No.
5:12

- cv - 00009

- MFU

- JGW (W.D. Va. filed Feb. 15, 2013; entered
Feb. 19, 2013) . We dispense with oral argument because the facts and legal contentions are adequately presented in the
materials before th is court and argument would not aid the decisional process.

AFFIRMED
96-2248.

#### USAir, Inc. v. Tracy.

Board of Tax Appeals, No. 94-S-276. On request for argument before full court. Request granted.
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</TABLE>
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-13-0096-CV 

________________________

In re Don Smith, Relator 

 

________________________

May 2, 2013 

 

ORIGINAL PROCEEDING 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Pending before this court is the application of Don Smith (relator) for a writ of 

mandamus. He requests that we order the Hon. Douglas Woodburn, district judge of 

the 108th Judicial District Court, to “set the complaint motion for a hearing and there 

after [sic] make a ruling and notify relator of said ruling . . . .” We dismiss the petition 

as moot.

On April 18, 2013, we directed Judge Woodburn to respond to relator’s petition 

for mandamus. On April 30, 2013, Judge Woodburn filed his response wherein he 

granted relator’s motion and ordered the clerk to produce “non-certified copies of all 

documents contained in the Court’s file.” Nothing remains at issue. Accordingly, the 
2

application for writ of mandamus is denied as moot. See In re Duncan, 62 S.W.3d 333, 

334 (Tex. App.–Houston [1st Dist.] 2001, orig. proceeding). 

Per Curiam
#### Mirabel Kien NGUTI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-2025.

United States Court of Appeals, Fourth Circuit.

Submitted: May 26, 2006.

Decided: June 13, 2006.

Ronald D. Richey, Law Office of Ronald D. Richey, Rockville, Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, Eric W. Marsteller, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.

Petition denied by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM:

Mirabel Kien Nguti, a native and citizen of Cameroon, petitions for review of an order of the Board of Immigration Appeals (Board) affirming, without opinion, the immigration judge’s denial of her applications for asylum, withholding of removal, and protection under the Convention Against *396Torture.* Because the Board affirmed under its streamlined process, *see*8 C.F.R. § 1003.1(e)(4) (2006), the immigration judge’s decision is the final agency determination. *See Camara v. Ashcroft,*378 F.3d 361, 366 (4th Cir.2004).

Nguti challenges the immigration judge’s finding that her testimony was not credible, and that she otherwise failed to meet her burden of proof to qualify for asylum. We will reverse this decision only if the evidence “was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.” *Rusu v. INS,*296 F.3d 316, 325 n. 14 (4th Cir.2002) (internal quotations and citations omitted). We uphold credibility determinations of the immigration judge if they are supported by substantial evidence. *See Tewabe v. Gonzales,*446 F.3d 533, 538 (4th Cir.2006).

We have reviewed the administrative record and the immigration judge’s decision and find that substantial evidence supports the immigration judge’s credibility finding, as well as his conclusion that Nguti failed to establish the past persecution or well-founded fear of future persecution necessary to establish eligibility for asylum. *See*8 C.F.R. § 1208.13(a) (2006) (stating that the burden of proof is on the alien to establish eligibility for asylum); *INS v. Elias-Zacarias,*502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (same). Moreover, as Nguti cannot sustain her burden on the asylum claim, she cannot establish her entitlement to withholding of removal. *See Camara,*378 F.3d at 367 (“Because the burden of proof for withholding of removal is higher than for asylum — even though the facts that must be proved are the same — an applicant who is ineligible for asylum is necessarily ineligible for withholding of removal under [8 U.S.C.] § 1231(b)(3).”).

Accordingly, we deny the petition for review. 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.

*PETITION DENIED.*

*

 Nguti withdrew her Convention Against Torture claim before the immigration judge.
#### Christine Newborn Arias, Appellant, v State of New York, Respondent.

[822 NYS2d 727]

In a claim, inter alia, to recover damages for wrongful death, the claimant appeals, among other things, on the ground of inadequacy, from so much of a judgment of the Court of Claims (Mignano, J.), dated April 27, 2005, as after a nonjury trial, and upon a decision of the same court dated March 14, 2005, is in favor of her and against the defendant in the principal sums of $350,000 as damages for conscious pain and suffering and $2,200 for wrongful death.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the claimant’s contention, the evidence adduced at trial did not preponderate in favor of a finding that the decedent was aware of his impending death *(see Cummins v County of Onondaga,*84 NY2d 322 [1994]). Accordingly, the amount awarded by the Court of Claims for conscious pain and suffering did not deviate materially from what would be considered reasonable compensation for this element of damages *(see*CPLR 5501 [c]; *Ramos v Shah,*293 AD2d 459 [2002]; *Rodd v Luxfer USA,*272 AD2d 535, 535-536 [2000]).

The court’s award for wrongful death was also proper. Calculation of such damages is a matter for the trier of fact *(see Parilis v Feinstein,*49 NY2d 984 [1980]). Under all of the facts and circumstances of this case, and especially considering that the claimant offered no direct evidence of pecuniary injury, the court’s wrongful death award was fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the claimant *(see*EPTL 5-4.3 [a]; *Milbrandt v Green Refractories Co.,*79 NY2d 26, 31 [1992]; *DeVito v Amalfitano,*242 AD2d 662*952[1997]; *see also Gonzalez v New York City Hous. Auth.,*77 NY2d 663 [1991]; *Greenspan v East Nassau Med. Group,*204 AD2d 273 [1994]).

The claimant’s remaining contentions are without merit. Miller, *J.P.,*Crane, Santucci and Luciano, JJ., concur. *[See 8*Misc 3d 736 (2005).]
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</TABLE>
COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER ON MOTION FOR REHEARING

Appellate case name: The City of Houston v. Downstream Environmental, L.L.C.

Appellate case number: 01-13-01015-CV

Trial court case number: 2011-29293

Trial court: 295th District Court of Harris County

Date motion filed: November 14, 2014

Party filing motion: Appellee, Downstream Environmental, L.L.C.

It is ordered that the motion for rehearing is  DENIED GRANTED.

Judge’s signature: /s/ Michael Massengale

 Acting individually  Acting for the Court

Panel consists of: Justices Jennings, Bland, and Massengale

Date: November 25, 2014
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.

<TABLE> <S> <C>

<LEGEND> THE SCHEDULE CONTAINS SUMMARY FINANCIAL
INFORMATION EXTRACTED FROM THE CORPORATIONS FINANCIAL
STATEMENTS FOR THE QUARTER ENDED JUNE 30, 1999, AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.

      <MULTIPLIER> 1

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Fourth Court of Appeals

San Antonio, Texas

December 18, 2013

No. 04-13-00689-CV

IN THE INT OF GM, AM AND NM,

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2011-PA-02693

John D. Gabriel Jr., Judge Presiding

ORDER

The Appellant Maggie Barrientes’ Motion for Extension of Time to File Brief is 

GRANTED. The appellant’s brief is due on January 6, 2014. No further extensions of time will 

be granted.

_________________________________

Sandee Bryan Marion, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 18th day of December, 2013.

___________________________________

Keith E. Hottle

Clerk of Court
[969 NE2d 209, 946 NYS2d 93]

#### Frederick Bready et al., Appellants, v CSX Transportation, Inc., Respondent, et al., Defendant. Brandon Harris et al., Appellants, v CSX Transportation, Inc., Respondent, et al., Defendant.

Decided May 3, 2012

*836APPEARANCES OF COUNSEL

*Magavern Magavern Grimm LLP,*Buffalo *(Edward J. Markarian*of counsel), and *Collins, Collins & Donoghue, PC. (Patrick J. Donoghue*of counsel), for appellants in the first and second above-entitled actions.

*Mayer Brown LLP,*Washington, D.C. *(Dan Himmelfarb*of counsel), and *Goldberg Segalla LLP,*Buffalo *(John J. Jablonski*of counsel), for respondent in the first and second above-entitled actions.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed, with costs. Assuming without deciding that defendant CSX Transportation, Inc. owed plaintiffs a higher duty of care under the Federal Employers’ Liability Act than under the common law, defendant made a prima facie showing that it did not breach that duty of care. Plaintiffs, in response, failed to establish that a triable issue of fact existed on the issue of breach of the duty of care. Accordingly, the Appellate Division properly granted defendant’s motion for summary judgment dismissing the complaint in each case.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.
#### United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.

Submitted December 3, 2012;

decided December 11, 2012

Motion by Complex Insurance Claims Litigation Association et al. for leave to file a brief amici curiae on the appeal herein denied.

Chief Judge Lippman taking no part.
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</TABLE>
#### Old World Custom Homes, Inc., Appellant, v Lucille Crane, Respondent, et al., Defendants.

[822 NYS2d 155]

In an action, inter alia, to foreclose a mechanic’s lien, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 20, 2005, as granted that branch of the motion of the defendant Lucille Crane which was for leave to amend the answer to assert a counterclaim for the imposition of a constructive trust and granted her leave to file a new notice of pendency on the subject property.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant Lucille Crane leave to file a new notice of pendency on the subject property; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in permitting the defendant Lucille Crane (hereinafter the defendant) to amend her answer to assert a counterclaim for the imposition of a constructive trust. Leave to amend a pleading should be freely granted where, as here, the proposed amendment is not palpably insufficient or patently devoid of merit and will not result in surprise or prejudice to the opposing party *(see*CPLR 3025 [b]; *Surgical Design Corp. v Correa,*31 AD3d 744 [2006]; *see also F & K Supply v Willowbrook Dev. Co.,*288 AD2d 713, 716 [2001]).

The Supreme Court erred, however, in determining that the defendant, upon asserting her new counterclaim, would also be entitled to file a new notice of pendency on the subject property. A notice of pendency is an “extraordinary privilege” which demands “strict compliance” with applicable statutory requirements (Is*raelson v Bradley,*308 NY 511, 516 [1955]; *see Matter of Sakow,*97 NY2d 436 [2002]). Here, the defendant’s original *601notice of pendency was cancelled by order of the Supreme Court, Suffolk County, dated March 31, 2005, due solely to her own failure to assert any claim affecting title to, or the possession, use, or enjoyment of, the subject property *(see*CPLR 6501). The defendant should not be afforded a second chance to file a new notice of pendency upon correcting the very pleading defect that led to the cancellation of the original notice *(cf*CPLR 6516 [c]). Florio, J.P, Goldstein, Mastro and Fisher, JJ., concur.