alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
Case 3:11-cv-00247-MLC-LHG Document 206-2 Filed 08/22/14 Page 1 of 3 PageID: 3101
Case 3:11-cv-00247-MLC-LHG Document 206-2 Filed 08/22/14 Page 2 of 3 PageID: 3102
Case 3:11-cv-00247-MLC-LHG Document 206-2 Filed 08/22/14 Page 3 of 3 PageID: 3103
1 Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40609

Summary Calendar

JAMES B. BECKNELL, JR.,

Plaintiff-Appellant,

versus

LIEUTENANT WOOD; W.J. ESTELLE; COLONEL MOORE; ROBERT DELONG;

WARDEN E.H. TURNER; ALL DEFENDANTS,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:78-CV-285

- - - - - - - - - -

June 30, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM: 1

James B. Becknell, Jr., Texas prisoner # 274915, appeals the

district court’s denial of his motion to compel the defendants to

comply with the district court’s injunction issued on December 28,

1981. Becknell argues that the defendants required him to perform

job tasks which were inconsistent with his medical restrictions in

violation of his Eighth Amendment rights. Becknell’s current job

assignment to the chow hall which requires him to wipe off the

tables is consistent with his medical restrictions. S ee Jackson v.King , 864 F.2d 1235, 1246 (5th Cir. 1989). Any orders directing

Becknell to perform the additional tasks of wiping off the walls or

serving line were made by officers who were unaware of Becknell’s

medical restrictions and at most amount to mere negligence. S ee

id. The district court did not err in rescinding its prior

injunction based on significant changes in the law wh ich now

protect Becknell’s Eighth Amendment rights. See United States v.

Lawrence County School District

, 799 F.2d 1031, 1046 (5th Cir.

1986); Jackson , 864 F.2d at 1246.

Becknell argues for the first time on appeal that: (1) he was

assigned to work in a textile mill performing duties inconsistent

with his medical restrictions from 1980 to 1988; (2) he was

assigned to numerous other jobs inconsistent with his medical

restrictions; (3) the transportation provided by the prison caused

him pain and suffering; (4) the defendants have a policy of

involuntary servitude; (5) the defendants changed or lied about the

result of an x-ray of his shoulder; and (6) he requests injunctive

relief concerning numerous job requirements and living conditions.

Because these claims involve factual issues which were not

presented to the district court, we will not consider these claims.

See United States v. Rocha

, 1 09 F.3d 225, 229 (5th Cir. 1997);

Robertson v. Plano City of Texas , 70 F.3d 21, 23 (5th Cir. 1995).

Becknell’s motion for mandatory disqualification and recusal

of the district court judge is DENIED. Because the additional

documents Becknell seeks to include in the appellate record are not

n ecessary for the resolution of his appeal, Becknell’s motion to

supplement the appellate record is also DENIED.AFFIRM ED; MOTION FOR RECUSAL DENIED; MOTION TO SUPPLEMENT

RECORD DENIED.
Exhibit 10.74

           Amendment to Stock Option Agreement dated January 29, 2002.

     This  Amendment  dated  August 22,  2003 is by and among  National  Medical
Health Card Systems (the "Company") and Patrick McLaughlin (the "Optionee"). All
defined terms used, but not otherwise defined herein,  shall have their meanings
set forth in the Stock Option  Agreement  between the Company and Optionee dated
January 29, 2002 (the "Option Agreement").

     WHEREAS, the Company executed the Option Agreement in favor of the Optionee
in connection  with granting the Optionee the right to purchase  common stock of
the Company; and

     WHEREAS,  the Company and the Optionee desire to amend the Option Agreement
pursuant to the terms of this amendment and to clarify  certain other matters as
hereinafter set forth.

     NOW,  THEREFORE,  in  consideration  of  the  promises  and  covenants  and
agreements contained herein, the parties agree as follows:

     1. From and after the date  hereof,  the  parties  agree to delete  Section
4b(b) in its  entirety  and insert "." after  "through  such date" at the end of
Section 4b(a).

     2. Except as expressly  provided  herein,  all terms and  conditions of the
Option Agreement shall be unmodified and in full force and effect.

     3.  From and  after the  execution  and  delivery  of this  amendment,  all
references to the Option Agreement contained in other agreements and instruments
executed and delivered  pursuant to or in connection  with the Option  Agreement
shall hereinafter mean and refer to the Option Agreement as amended hereby.

     4. This amendment may be executed in  counterparts  by the parties  hereto,
all of  which  shall  constitute  one  and  the  same  instrument.  A  facsimile
transmission of this signed  amendment  bearing a signature on behalf of a party
hereto shall be binding on such party.


     IN WITNESS WHEREOF,  the parties have executed this Agreement as of the day
and year first above written.

                                                     NATIONAL MEDICAL HEALTH
                                                     CARD SYSTEMS, INC.
                                                     By:

                                                     --------------------------
                                                     James Bigl, CEO

                                                     -------------------------
                                                     Signature of Optionee

                                                     -------------------------
                                                     Name of Optionee
[896 NYS2d 563]

#### St. Louis West, Inc., Respondent, v Todd S. Pickard, Esq., Appellant, et al., Defendant.

Supreme Court, Appellate Term, First Department,

February 9, 2010

*78APPEARANCES OF COUNSEL

*Krol & O’Connor,*New York City, for appellant. *Lewis H. Fishlin,*New York City, for respondent.

OPINION OF THE COURT

Per Curiam.

Judgment, entered November 28, 2008, reversed, without costs, and judgment directed in favor of defendant Todd S. Pickard dismissing the complaint as against him. The Clerk is directed to enter judgment accordingly. Appeal from order, dated September 8, 2008, dismissed, without costs, as subsumed in the appeal from the aforesaid judgment. Plaintiff, an appellate printer, commenced this action against defendant-appellant Todd S. Pickard (appellant) and defendant Chahee Pickard seeking to recover damages for services plaintiff rendered in connection with defendants’ joint appeal from a judgment and orders issued in their prior matrimonial action. The record is clear that plaintiff was retained solely by Chahee’s attorney in the matrimonial action, and that plaintiff sent the attorney the invoice for the printing services. Upon settling its claims against Chahee, plaintiff successfully moved for summary judgment against appellant for his putative “share” of the costs of the printing services.

We reverse, and grant appellant summary judgment dismissal, since no basis exists for imposing liability against him. As indicated, appellant was not a party to the contract between plaintiff and Chahee. Given the absence of privity of contract between plaintiff and appellant, appellant may not properly be held liable under a breach of contract theory *(see LaBarte v Seneca Resources Corp.,*285 AD2d 974 [2001]; *see also Seaver v Ransom,*224 NY 233 [1918]). Nor may appellant be cast in damages on a quantum meruit theory, since the services were performed for and at the behest of Chahee *(see Kagan v K-Tel Entertainment,*172 AD2d 375, 376 [1991]; *see also General Sec. Prop. & Cas. Co. v American Fleet Mgt., Inc.,*37 AD3d 345 [2007]), and this despite any benefit that appellant may have derived from plaintiffs services *(see Kagan,*172 AD2d at 376). Plaintiffs contention that appellant is liable for his “share” of the costs of the services under 22 NYCRR 600.11 (d) is without merit. The cited rule, which provides that the costs of a joint record (or joint appendix) should “be borne equally among the *79parties” (22 NYCRR 600.11 [d] [1]), serves only to establish the respective rights and obligations of the parties to an appeal inter se *(see Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin A.C. Corp.,*221 AD2d 243 [1995]; *Greenwald v Trimfoot Co.,*221 AD2d 245 [1995]), and does not create an independent right of recovery in favor of a third party such as plaintiff herein.

McKeon, EJ., and Schoenfeld, J., concur.
#### Charles R. Modica et al., Appellants, v Incorporated Village of Saltaire et al., Respondents.

[609 NYS2d 597]

Judgment, Supreme Court, Suffolk County (Lester Gerard, J.), entered December 18, 1991, in a proceeding pursuant to RPAPL article 15, which denied plaintiffs’ motion for summary judgment and granted defendant The Incorporated Village of Saltaire’s cross motion for summary judgment, unanimously affirmed, without costs.

We agree with the IAS Court that the language in the deed is clear and unambiguous and that there is no need to look outside the instrument to ascertain the intention of the parties *(see, Loch Sheldrake Assocs. v Evans,*306 NY 297, 305). The deed states that "the party of the second part”, defendant Saltaire, is to use Parcel 2 "as a means of ingress and egress” from Maple Avenue to Parcel 1, there being no provision for ingress to or egress from any other parcel or use by any other party.

Accordingly, plaintiffs do not have a right of access to their parcel by way of Parcel 2. Concur — Sullivan, J. P., Wallach, Rubin and Nardelli, JJ.
#### In the Matter of Andrew B., a Child Alleged to be Abused and Neglected. Suffolk County Department of Social Services, Respondent; Gregory B. et al., Appellants. (Proceeding No. 1.) In the Matter of Lauren B., a Child Alleged to be Neglected. Suffolk County Department of Social Services, Respondent; Gregory B. et al., Appellants. (Proceeding No. 2.)

[854 NYS2d 157]

*639The Family Court’s determination that the mother abused Andrew B. by repeatedly subjecting him to unnecessary medical treatment, either as a result of Munchausen Syndrome by Proxy or otherwise, and derivatively neglected his sibling Lauren B., is supported by legally sufficient evidence and the preponderance of the credible evidence *(see Matter of Patrick GG.,*286 AD2d 540 [2001]; *Matter of Suffolk County Dept, of Social Servs. [Ellen*S.], 215 AD2d 395, 396 [1995]). The evidence established a history of repeated fabrication as to Andrew’s medical conditions, including her assertions for approximately one year that Andrew *640B. suffered from recurring fevers, which required his withdrawal from school for the 2005-2006 academic year. Her conduct demonstrated fundamental flaws in her understanding of the duties of parenthood, warranting a finding of derivative neglect with respect to Lauren B. *(see Matter of Amber C.,*38 AD3d 538 [2007]).

Further, the father’s failure to question his wife’s judgment, although he was present in the household and accompanied the mother and Andrew B. on some visits to medical professionals, justified a finding of neglect with respect to him.

The parents’ remaining contentions are without merit. Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.
United States Court of Appeals

for the Fifth Circuit

No. 21-30553

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Steven Charles Montgomery, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:20-CR-159-1

Before Clement, Ho, and Oldham, Circuit Judges.

Per Curiam:*

Steven Charles Montgomery appeals his 292-month within-guidelines 

sentence of imprisonment following his guilty plea conviction of conspiracy 

to distribute methamphetamine. He argues that his sentence is substantively 

* 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

March 17, 2022

Lyle W. Cayce

Clerk

Case: 21-30553 Document: 00516243679 Page: 1 Date Filed: 03/17/2022
No. 21-30553

2

unreasonable because the district court failed to give proper weight to his 

cooperation, his health, and his circumstances.

Our review is for an abuse of discretion. See United States v. Burney, 

992 F.3d 398, 399-400 (5th Cir. 2021). Sentences within the properly 

calculated advisory guidelines range, as here, are presumed to be 

substantively reasonable, and we will infer from such a sentence that “the 

district court has considered all the factors for a fair sentence set forth in the 

Guidelines.” United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006) 

(internal quotation marks and citation omitted). Montgomery’s arguments 

regarding the district court’s balancing of the sentencing factors and its 

refusal to grant him a downward variance fail to rebut the presumption of 

reasonableness. See United States v. Koss, 812 F.3d 460, 472 (5th Cir. 2016). 

He fails to show that the district court failed to account for a factor that 

should have received significant weight, gave significant weight to an 

irrelevant or improper factor, or committed a clear error of judgment in 

balancing the 18 U.S.C. § 3553(a) factors. See United States v. Hernandez, 

876 F.3d 161, 166 (5th Cir. 2017). 

AFFIRMED.

Case: 21-30553 Document: 00516243679 Page: 2 Date Filed: 03/17/2022
‘ifs;omu~~ GENERAL TEXAS

Mr. L. L. Roberts County Auditor Hutchinson Cotintg Stinnett, Texas
Dear Sir: OpinionNo. O-3537’ Re: Authority of county to expend moneys derived from the Lateral.RoadAC-~ count providedby H. B. 688; in the repairing and improvingof bridges constitutinga part of the Lateral Road System of a county.
In reply to your letter requesting our opinion on the following question:

"MayHutchinson County le ally expendmoneys derived through saidH. B. 68 8 now held in its Lateral Road Fund for (a) remo;ing the old floor of a bridge, purchasingmaterials for a new floor, and constructinga new floor in this bridpe; and (b) for materials and labor irmaking repairs to such bridge in addition to a new floor?"

we advise as follows:

In the early case of Aransas Countyv. Coleman-Fulton Pasture Company, 191 9. W. 553, itwas held that the Constitutlon,Article 3. Section 52, as amended in 1903, authorizing counties to issuebonds for road constructionpurposes, empowered such counties to build necessarybridges as a part of such road, and it has become settled law that bridges are an essential part of any road. Therefore, it is our opinion that the funds allocated to the county through the Lateral Road Account of the Board of County and District Road Indebtedness are available for the purpose enumerated inyour question.

Following the same line of reasoning,we think the countywould be fully authorized to use suchmoneys fnr the purpose of acquiring right-of-wag to roads formIng a part of the County Lateral Road System.

Trusting that the foregoing satisfactorilyanswers your inquiry,we areMr. L. L. Roberts, page 2 o-3537

Very truly yours ATTORNM GENERAL OF TEXAS

By s/ClarenceE. Crowe Clarence E. Crowe

Assistant
CEC-S-WC

APPROVX3 JUNE 6, 1941 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion CommitteeBy s/BWB Chairmen
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                                                                   EXHIBIT 99.1

Report of Independent Registered Public Accounting Firm

To the directors and shareholders of Wellman International Limited and
Subsidiaries

We have audited the accompanying consolidated balance sheets of Wellman
International Limited and Subsidiaries (the Company) as of 31 December 2004 and
2003 and the related consolidated statements of operations, stockholders' equity
and other comprehensive income/(loss), and cash flows for each of the years in
the three year period ended 31 December 2004. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above, present
fairly, in all material respects, the financial position of Wellman
International Limited and Subsidiaries as of 31 December 2004 and 2003, and the
results of their operations and their cash flows for each of the years in the
three year period ended 31 December 2004 in conformity with accounting
principles generally accepted in the United States of America.

We have also audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), the effectiveness of Wellman
International Limited's internal control over financial reporting as of 31
December 2004, based on criteria established in "Internal Control - Integrated
Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO) and our report dated 11 March 2005 expressed an unqualified
opinion on management's assessment of, and the effective operation of, internal
control over financial reporting.

/s/ KPMG

Chartered Accountants
Dublin, Ireland
11 March 2005
#### The People of the State of New York, Respondent, v Eric Kidd, Appellant.

[855 NYS2d 167]

The defendant argues that he was deprived of the effective assistance of counsel at sentencing because his attorney failed to join in his pro se motion to vacate his plea of guilty. However, “[a]n attorney assigned to represent a defendant in a criminal case has no duty to participate in a baseless *pro se*motion to withdraw a plea of guilty which was voluntarily, knowingly, and *559intelligently made” *(People v Ford,*44 AD3d 1070, 1071 [2007]). Contrary to the defendant’s contention, defense counsel did not impliedly become a witness against him or take a position adverse to his at the sentencing. Spolzino, J.P., Santucci, Angiolillo and Garni, JJ., concur.
911 A.2d 46

#### IN THE MATTER OF RICK A. GARCIA, AN ATTORNEY AT LAW.

November 30, 2006.

ORDER

RICK A. GARCIA of CLIFTON, who was admitted to the bar of this State in 1986, and who has been temporarily suspended from the practice of law since March 10, 2005, having tendered his consent to disbarment as an attorney at law of the State of New Jersey, and good cause appearing;

It is ORDERED that RICK A. GARCIA is disbarred by consent, effective immediately; and it is further

ORDERED that respondent’s name be stricken from the roll of attorneys and that he be permanently restrained and enjoined from practicing law; and it is further

ORDERED that all funds, if any, currently existing in any New Jersey financial institution maintained by RICK A. GARCIA *542pursuant to *Rule*1:21-6, which were restrained from disbursement by Order of the Court filed on March 10, 2005, shall be transferred by the financial institution to the Clerk of the Superior Court, who is directed to deposit the funds in the Superior Court Trust Fund pending further Order of this Court; and it is further

ORDERED that respondent comply with *Rule*1:20-20 dealing with disbarred attorneys; and it is further

ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of this matter.
911 A.2d 46

#### IN THE MATTER OF DAVID S. SILVERMAN, AN ATTORNEY AT LAW.

November 27, 2006.

ORDER

This matter having been duly presented to the Court, it is ORDERED that DAVID S. SILVERMAN of CLIFTON, who was admitted to the bar of this State in 1971, and who was suspended from the practice of law for a period of one year effective October 21, 2005, by Order of this Court filed on September 21, 2005, be restored to the practice of law, effective immediately.