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OPINION
PER CURIAM.
Khurram Afzal, a citizen of Pakistan, entered the United States as a visitor in October 2003. He overstayed his visa, and the Government charged him with remova-bility. Afzal conceded the charge and filed an application for asylum, withholding, and relief under the Convention Against Torture (CAT).1 He claimed that he suffered persecution at the hands of his father-in-law, a police officer, on the basis of his Ahmadi religion and social group.2
The Immigration Judge (“IJ”) disbelieved Afzal’s account. Based on the testimony at the hearing, the documents in the record, and the lack of evidence from Af-zal’s wife, the IJ concluded that Afzal’s conflict with his father-in-law was unrelated to Ahmadiyya. The IJ was also concerned that there might be open criminal charges against Afzal in Pakistan. The IJ denied Afzal’s applications for relief from removal because without credible testimony, Afzal did not meet his burdens of proof.
Afzal appealed to the Board of Immigration Appeals (“BIA”). The BIA found no clear error in the IJ’s determination that Afzal did not testify credibly in support of his claims, pointing out inconsistencies between Afzal’s application and testimony and other evidence in the record. The BIA also cited the lack of corroboration from Afzal’s wife as support for the decision. The BIA dismissed Afzal’s appeal.
Afzal presents a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA relied on the IJ’s reasoning, we review the decisions of the BIA and the IJ. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, including an adverse credibility finding, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, *837and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223. We afford an adverse credibility finding substantial deference, so long as the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434.
Because the adverse credibility determination in this case was supported by sufficient, cogent reasons, we will deny the petition for review. In his counseled asylum application, Afzal wrote that he is “active member of the Ahmadi sect of Muslim religion.” R. 27. He also stated that he follows Ahmadi beliefs. See id. Elsewhere, he wrote that he is “part of’ the Ahmadi religion. R. 378. All of these statements conflict with his testimony that he is not an Ahmadi. R. 95. Although Afzal said that he has Ahmadi friends, has heard Ahmadi sermons, and has paid dues to the group, he testified that he is not part of the Ahmadi group. Id. at 75, 95-97. He further specified that he did not say his prayers in an Ahmadi mosque. Id. at 96. Also, Afzal has a passport as a Muslim. The Pakistani government requires anyone who receives a passport as a Muslim to denounce the founder of the Ahmadi faith. Id. 349. Afzal has not converted to the Ahmadi faith while he has been in the United States although he said that he plans to convert and explained that he had health problems that interfered with his activities (although he has been able to work when he needed money). Id. at 104-07.
Furthermore, as the IJ and BIA explained, Afzal’s explanation for his arrest in Pakistan (that it was instituted by his father-in-law because of Afzal’s interest in Ahmadiyya) is undermined by other evidence in the record. Afzal himself provided other reasons for his conflict with his father-in-law, including that his father-in-law owed him money and did not want to pay it back. R. 98, 103. As the IJ noted, Afzal’s father’s affidavit, which did not mention Afzal’s interest in Ahmadiyya, is evidence that the dispute and resulting arrest stemmed from Afzal’s father-in-law’s response to demands for repayment. R. 98; 261. An account from someone who passed by the scene of the commotion is similar, noting the conflict over money. R. 283. Other evidence supports another reason Afzal gave, that his father-in-law expected him to go to England with his wife and Afzal refused to go. R. 103. Also in the record is a document that appears to be a police report. R. 285. In that report, Afzal is described as coming with two others, brandishing weapons and threatening harm, to his father-in-law’s house, where his wife was living because of “constrained relations” with Afzal. R. 285. As the IJ noted, it is not clear from the record if the Pakistani criminal case against Afzal was ever resolved.
The inconsistencies in the record provide a sufficient basis for the adverse credibility determination and the rejection of Afzal’s claims for relief. The IJ did not engage in “wholesale nitpicking,” as Afzal argues in his brief (citing the distinguishable case of Cham v. Attorney Gen. of the United States, 445 F.3d 683, 691 (3d Cir.2006)).
The IJ and BIA also noted Afzal’s failure to provide corroboration from his wife.3 To the extent that the IJ and the BIA required corroboration, the require*838ment was reasonable. Although Afzal has resumed communicating with his wife, R. 93, and submitted to the IJ a love note she purportedly sent him, R. 254-56, he did not provide a statement from her to corroborate his account. Under Abdulai v. Ashcroft, the agency must 1) identify the facts for which it is reasonable to expect corroboration; 2) inquire as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, 3) analyze whether the applicant has adequately explained his or her failure to do so. See 239 F.3d 542, 554 (3d Cir.2001). It was reasonable to expect Afzal to provide a statement from his wife, who would know of any history of her father’s displeasure with Afzal’s faith, who was at her parents’ house when the conflict ensued, and who speaks on the phone and corresponds with Afzal. Afzal’s only explanation for the lack of corroboration from his wife is Afzal’s statement that his attorney did not tell him he needed information from her. R. 94.
In short, because substantial evidence supports the determination that Afzal did not provide credible testimony to meet his burden of proof for asylum, withholding, or CAT relief, we will deny his petition for review.
. The Government argues that Afzal does not continue to pursue his claim for withholding under the CAT. However, we do not read his brief on appeal to waive the issue, as it includes specific references to his claim for CAT relief, the standard for an award of CAT relief, and a challenge to the basis for the agency's denial of CAT relief. See, e.g., Appellant's Brief 3 & n. 1, 9, 17-18.
. Ahmadis consider themselves to be Muslim; however, the Government of Pakistan views them as a non-Muslim minority. R. 349.
. The BIA seemed to mention corroboration as an aside. However, although the BIA and IJ discussed the lack of corroboration separately from the inconsistencies in Afzal's account, part of their discussions suggests that they conflated the credibility and corroboration analysis somewhat. Nonetheless, the basis for the BIA's ultimate decision is Afzal's failure to provide credible testimony, R. 2, a basis supported by substantial evidence in the record. Cf. Obale v. Attorney Gen. of the United States, 453 F.3d 151, 163 (3d Cir.2006).
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MEMORANDUM **
Because Antonio Abel and Kenneth Freeman (the “Officers”) were placed on “administrative assignment” without loss of pay or rank, such assignment did not effect a deprivation of property for purposes of a 42 U.S.C. § 1983 due process claim. See Stiesberg v. California, 80 F.3d 353, 355-57 (9th Cir.1996) (citing *315cases). Nor is there a clearly established due process right to a hearing before employees are put on leave with pay. Dias v. Elique, 436 F.3d 1125, 1132 (9th Cir.2006). Moreover, the Officers have not presented evidence that the administrative assignment constituted a removal, suspension, demotion, or discharge under Rev. Wash. Code § 41.12.090; nor have they otherwise developed an argument that Washington law grants them a property interest that would be affected by their administrative assignment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Arguments not coherently developed in briefs on appeal are deemed abandoned. See Fed. R.App. P. 28(a)(9)(A); United States v. Kimble, 107 F.3d 712, 715 n. 2 (9th Cir.1997). Therefore, the district court did not err in granting summary judgment on the Officers’ due process claims for deprivation of a property interest.
The Officers raise several additional issues in their briefs that are not supported by argument, including a claim that the administrative assignment effected a deprivation of their liberty interests in violation of the Due Process Clause and violated their rights to equal protection; these arguments are likewise deemed abandoned. Id.
The Officers additionally argue that the district court erred in striking several declarations submitted in opposition to the motion for summary judgment. The Officers are mistaken; the court did not strike the declarations but “decline[d] to determine the admissibility of each of the statements contained in over 200 pages of declarations provided by Plaintiffs.” Therefore, the motion to strike is not properly before this court for review. See Fenton v. Freedman, 748 F.2d 1358, 1360 (9th Cir.1984).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Daniel Walsh (“Walsh”), Judith Walsh, and Trading Post of Pasco, Inc. (collectively “Appellants”) appeal the district court’s order granting the government’s motion for summary judgment that certain funds are subject to civil forfeiture by the government. We reverse.
“We review the grant of summary judgment de novo.” United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). “We determine, viewing the evidence in the light most favorable to nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law.” Id.
Under 31 U.S.C. § 5324(a), a person may not structure transactions “for the purpose of evading the reporting requirements of [31 U.S.C. § ] 5313(a)” or applicable regulations. By regulation, financial institutions must report all currency transactions involving more than $10,000, subject to certain exceptions which are not applicable here. See 31 C.F.R. § 103.22(b)(1). Pursuant to 18 U.S.C. § 981(a)(1)(A), the federal government may file a civil forfeiture action against funds that were the subject of structured banking transactions. 31 U.S.C. § 5317(c)(2).
In order to prove the elements of an offense under § 5324, “(1) the defendant must, in fact, have engaged in acts of structuring; (2) he must have done so with knowledge that the financial institutions involved were legally obligated to report currency transactions in excess of $10,000; and (3) he must have acted with the intent to evade this reporting requirement.” United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.2005); see also United States v. Pang, 362 F.3d 1187, 1193-94 (9th Cir.2004).
Here, Appellants have raised a genuine issue of material fact at least with respect to Walsh’s intent to evade the federal re*317porting requirement. Walsh came forward with a plausible, innocent explanation for making the suspect deposits that, viewed in the light most favorable to Appellants, raises the question whether Walsh had legitimate business reasons for his banking activities and therefore did not engage in an unlawful financial structuring. Accordingly, we reverse the district court’s ruling that Walsh structured financial transactions for the purpose of evading federal reporting requirements.
Because we reverse summary judgment that Walsh committed a structuring offense, we do not reach the issue whether forfeiture of the allegedly structured funds would violate the Eighth Amendment. We reverse and remand for trial on both issues.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The government argues we have no jurisdiction to hear Seesay’s petition, because the Immigration Judge (“IJ”) found that Seesay had not carried his burden of showing his petition for asylum was timely. Courts generally do not have jurisdiction to review the denial of an untimely asylum petition, 8 U.S.C. § 1158(a)(3), but we do have jurisdiction to review a timeliness determination for questions of law as applied to undisputed facts. 8 U.S.C. § 1252(a)(2)(D). Here, the government alleged Seesay’s entry date in its Notice to Appear, and Seesay admitted the government’s allegation at his hearing before the Immigration Judge (“IJ”). “[T]he allegations are thus considered judicial admissions rendering the arrival date undisputed.” Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009) (internal citations and quotations omitted). See also Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008) (“Allegations in a complaint are considered judicial admissions. In immigration proceedings, the Notice to a Appear serves the same function as a civil complaint.”). *319Therefore, Seesay’s entry date was undisputed, and he established as a matter of law that his asylum application was not time-barred. We therefore do have jurisdiction over Seesay’s petition for review, Cinapian, 567 F.3d at 1073, which we deny on the merits.
First, substantial evidence supports the Immigration Judge’s adverse credibility determination, based on See-say’s vague, inconsistent, and nonspecific testimony of events that went to the heart of his asylum claim. The IJ provided specific, cogent reasons to support his conclusion. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). Second, substantial evidence supports the IJ’s determination that any persecution Seesay might have suffered was not on account of a protected ground. Seesay’s refusal to join the rebel group is insufficient to provide this nexus. See INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir.2000). The evidence likewise does not compel a finding of a well-founded fear of future persecution, because Seesay failed to show it was objectively reasonable that he would be individually subjected to persecution if removed to Sierra Leone. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.2007) (en banc). Therefore, the IJ did not err in denying Seesay’s asylum application, and Seesay necessarily fails to meet the more stringent burden of proving eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006); Pedro-Mateo, 224 F.3d at 1150.
Last, there is substantial evidence to support the IJ’s denial of Convention Against Torture (“CAT”) relief for insufficiency of evidence. The events Seesay described in his testimony do not rise to the level of torture as defined in the CAT implementing regulations. See 8 C.F.R. § 1208.18(a)(1). Furthermore, Seesay does not establish the likelihood of future torture committed by or with the consent or acquiescence of Sierra Leonean government officials. See Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.2009).
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Edward Anderson appeals the district court’s order granting summary judgment in favor of AMR, the parent company of American Airlines, on his claims of age and race discrimination, retaliation, and negligent/intentional infliction of emotional distress under California law. We have jurisdiction, 28 U.S.C. §§ 1291 & 1332, and we affirm.
I
The district court did not abuse its discretion in refusing to consider Anderson’s second untimely filed opposition to summary judgment. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir.2007) (“District courts retain broad discretion to control their dockets....”); N.D. Cal. Local R. 7-3(a). *324Anderson provided no justification for why the opposition was filed late. Given that the district court did accept Anderson’s first late filed opposition, it was well within its discretion to reject the second, so-called “amended” version.
II
The district court did not err in granting summary judgment in favor of AMR on Anderson’s age and race discrimination claims. Anderson provided no evidence to refute AMR’s non-discriminatory explanation for its differential treatment of Anderson — namely, that he was the only non-contract skycap working at the airport and that he needed to work at a specific terminal for tracking purposes. See Guz v. Bechtel Nat’l Inc., 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089, 1114 (2000). When Anderson first began working at the west end of the curbside check-in area, other skycaps who were older and were also African American were stationed at the more desirable east end. Moreover, Anderson testified in his deposition that no supervisor had ever given any indication that any condition of his employment was affected by his age or race. Because Anderson failed to refute AMR’s nondiscriminatory explanation for its treatment of him, summary judgment was appropriate. See id. (“If the employer sustains this burden [of offering a legitimate, nondiscriminatory explanation for its treatment], the presumption of discrimination disappears.”).
III
Anderson’s retaliation claim also fails. Assuming he did engage in protected activity, Anderson was still required to show an adverse employment action. Flait v. N. Am. Watch, Corp., 3 Cal.App.4th 467, 4 Cal.Rptr.2d 522, 528 (1992). Anderson was working the same shift at the same location on the curb well before he complained of the new $2 checked bag fee in 2005. There is also nothing in the record tending to show Anderson’s complaints about his computer terminal first arose after implementation of the checked bag fee. In short, the conditions of Anderson’s employment remained the same after he complained about the new checked bag fee, and thus summary judgment was appropriate because no adverse employment action was shown.
IV
The district court did not err in granting summary judgment on Anderson’s negligent infliction of emotional distress (NIED) claim because the actions he complains of were intentional, not negligent. California law does not allow an NIED claim to proceed in such circumstances. See Semore v. Pool, 217 Cal.App.3d 1087, 266 Cal.Rptr. 280, 291 (1990) (“[A]ny actions by the employer were intentional, not negligent. An employer’s supervisory conduct is inherently intentional.”) (internal quotation marks omitted). “The conduct alleged here does not support a cause of action for negligent infliction of emotional distress.” Id.
V
Finally, there was no error in granting summary judgment in favor of AMR on Anderon’s intentional infliction of emotional distress (IIED) claim. An IIED plaintiff must show, among other things, “[e]xtreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.... ” KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023, 37 Cal.Rptr.2d 431, 433 (1995) (internal quotation marks and citation omitted). “Generally, conduct will be found to be actionable where the recitation of the facts *325to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. (internal quotation marks and citation omitted), Anderson has made no showing that AMR’s conduct was so egregious here.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
ORDER
Upon consideration of Pedro P. Del Rosario’s motion for reconsideration of the court’s order dismissing his appeal for failure to file a brief,
IT IS ORDERED THAT:
(1) The motion is granted. The mandate is recalled, the dismissal order is vacated, and the appeal is reinstated.
(2) The Secretary of Veterans Affairs’ brief is due within 40 days of the date of filing of this order
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MEMORANDUM **
Because Antonio Abel and Kenneth Freeman (the “Officers”) were placed on “administrative assignment” without loss of pay or rank, such assignment did not effect a deprivation of property for purposes of a 42 U.S.C. § 1983 due process claim. See Stiesberg v. California, 80 F.3d 353, 355-57 (9th Cir.1996) (citing *315cases). Nor is there a clearly established due process right to a hearing before employees are put on leave with pay. Dias v. Elique, 436 F.3d 1125, 1132 (9th Cir.2006). Moreover, the Officers have not presented evidence that the administrative assignment constituted a removal, suspension, demotion, or discharge under Rev. Wash. Code § 41.12.090; nor have they otherwise developed an argument that Washington law grants them a property interest that would be affected by their administrative assignment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Arguments not coherently developed in briefs on appeal are deemed abandoned. See Fed. R.App. P. 28(a)(9)(A); United States v. Kimble, 107 F.3d 712, 715 n. 2 (9th Cir.1997). Therefore, the district court did not err in granting summary judgment on the Officers’ due process claims for deprivation of a property interest.
The Officers raise several additional issues in their briefs that are not supported by argument, including a claim that the administrative assignment effected a deprivation of their liberty interests in violation of the Due Process Clause and violated their rights to equal protection; these arguments are likewise deemed abandoned. Id.
The Officers additionally argue that the district court erred in striking several declarations submitted in opposition to the motion for summary judgment. The Officers are mistaken; the court did not strike the declarations but “decline[d] to determine the admissibility of each of the statements contained in over 200 pages of declarations provided by Plaintiffs.” Therefore, the motion to strike is not properly before this court for review. See Fenton v. Freedman, 748 F.2d 1358, 1360 (9th Cir.1984).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Daniel Walsh (“Walsh”), Judith Walsh, and Trading Post of Pasco, Inc. (collectively “Appellants”) appeal the district court’s order granting the government’s motion for summary judgment that certain funds are subject to civil forfeiture by the government. We reverse.
“We review the grant of summary judgment de novo.” United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). “We determine, viewing the evidence in the light most favorable to nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law.” Id.
Under 31 U.S.C. § 5324(a), a person may not structure transactions “for the purpose of evading the reporting requirements of [31 U.S.C. § ] 5313(a)” or applicable regulations. By regulation, financial institutions must report all currency transactions involving more than $10,000, subject to certain exceptions which are not applicable here. See 31 C.F.R. § 103.22(b)(1). Pursuant to 18 U.S.C. § 981(a)(1)(A), the federal government may file a civil forfeiture action against funds that were the subject of structured banking transactions. 31 U.S.C. § 5317(c)(2).
In order to prove the elements of an offense under § 5324, “(1) the defendant must, in fact, have engaged in acts of structuring; (2) he must have done so with knowledge that the financial institutions involved were legally obligated to report currency transactions in excess of $10,000; and (3) he must have acted with the intent to evade this reporting requirement.” United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.2005); see also United States v. Pang, 362 F.3d 1187, 1193-94 (9th Cir.2004).
Here, Appellants have raised a genuine issue of material fact at least with respect to Walsh’s intent to evade the federal re*317porting requirement. Walsh came forward with a plausible, innocent explanation for making the suspect deposits that, viewed in the light most favorable to Appellants, raises the question whether Walsh had legitimate business reasons for his banking activities and therefore did not engage in an unlawful financial structuring. Accordingly, we reverse the district court’s ruling that Walsh structured financial transactions for the purpose of evading federal reporting requirements.
Because we reverse summary judgment that Walsh committed a structuring offense, we do not reach the issue whether forfeiture of the allegedly structured funds would violate the Eighth Amendment. We reverse and remand for trial on both issues.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The government argues we have no jurisdiction to hear Seesay’s petition, because the Immigration Judge (“IJ”) found that Seesay had not carried his burden of showing his petition for asylum was timely. Courts generally do not have jurisdiction to review the denial of an untimely asylum petition, 8 U.S.C. § 1158(a)(3), but we do have jurisdiction to review a timeliness determination for questions of law as applied to undisputed facts. 8 U.S.C. § 1252(a)(2)(D). Here, the government alleged Seesay’s entry date in its Notice to Appear, and Seesay admitted the government’s allegation at his hearing before the Immigration Judge (“IJ”). “[T]he allegations are thus considered judicial admissions rendering the arrival date undisputed.” Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009) (internal citations and quotations omitted). See also Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008) (“Allegations in a complaint are considered judicial admissions. In immigration proceedings, the Notice to a Appear serves the same function as a civil complaint.”). *319Therefore, Seesay’s entry date was undisputed, and he established as a matter of law that his asylum application was not time-barred. We therefore do have jurisdiction over Seesay’s petition for review, Cinapian, 567 F.3d at 1073, which we deny on the merits.
First, substantial evidence supports the Immigration Judge’s adverse credibility determination, based on See-say’s vague, inconsistent, and nonspecific testimony of events that went to the heart of his asylum claim. The IJ provided specific, cogent reasons to support his conclusion. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). Second, substantial evidence supports the IJ’s determination that any persecution Seesay might have suffered was not on account of a protected ground. Seesay’s refusal to join the rebel group is insufficient to provide this nexus. See INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir.2000). The evidence likewise does not compel a finding of a well-founded fear of future persecution, because Seesay failed to show it was objectively reasonable that he would be individually subjected to persecution if removed to Sierra Leone. See Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.2007) (en banc). Therefore, the IJ did not err in denying Seesay’s asylum application, and Seesay necessarily fails to meet the more stringent burden of proving eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006); Pedro-Mateo, 224 F.3d at 1150.
Last, there is substantial evidence to support the IJ’s denial of Convention Against Torture (“CAT”) relief for insufficiency of evidence. The events Seesay described in his testimony do not rise to the level of torture as defined in the CAT implementing regulations. See 8 C.F.R. § 1208.18(a)(1). Furthermore, Seesay does not establish the likelihood of future torture committed by or with the consent or acquiescence of Sierra Leonean government officials. See Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.2009).
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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IKUTA, Circuit Judge,
dissenting:
This court has no jurisdiction to review timeliness findings based on disputed facts. Cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007). Unlike in Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008) and Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009), the alien here testified to dates contrary to that alleged in the government’s Notice to Appear. At his hearing, Seesay made a number of inconsistent statements regarding his date of arrival into the United States, casting the date into dispute. In light of this conflicting evidence, the arrival date cannot be considered judicially admitted, and the majority’s reliance on Hakopian and Cinapian is misplaced. Because this timeliness finding was based on disputed facts, we lack jurisdiction to consider this asylum claim. I would dismiss the asylum claim on this basis. I otherwise concur in the majority’s disposition of Seesay’s withholding and CAT claim.
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MEMORANDUM **
Plaintiff Marchand sued Moses Lake, Grant County, and other defendants. He recovered $7,000 from Moses Lake, “plus reasonable attorney s[sic] fees and costs incurred by the plaintiff for the claims against Moses Lake,” (emphasis added) pursuant to an offer of judgment. He nevertheless sought all of his attorney’s fees from Moses Lake, amounting to $100,203.68. Marchand admits that the *321“lion’s share” of the fees were incurred to prove Grant County’s alleged medical negligence. The district court did not abuse its discretion in assessing $18,500 in attorney’s fees against Defendant City of Moses Lake.
“[A] court abuse[s] its discretion in not apportioning fees ‘when the time expended by the plaintiff in pursuing each defendant [is] grossly unequal.’ ” El-Hakem v. BJY, Inc., 415 F.3d 1068, 1075 (9th Cir.2005) (quoting Corder v. Gates, 947 F.2d 374, 383 (9th Cir.1991)). “Apportionment is mandated in these situations in order to ensure that a defendant is not liable for a fee award greater than the actual fees incurred against that defendant.” Jones v. Espy, 10 F.3d 690, 691 (9th Cir.1993).
The magistrate judge examined each expense to determine whether Marchand’s attorneys had spent their time pursuing Moses Lake or another defendant. He properly awarded only those fees that Marchand incurred to pursue Moses Lake. We therefore affirm the district court’s order.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Edward Anderson appeals the district court’s order granting summary judgment in favor of AMR, the parent company of American Airlines, on his claims of age and race discrimination, retaliation, and negligent/intentional infliction of emotional distress under California law. We have jurisdiction, 28 U.S.C. §§ 1291 & 1332, and we affirm.
I
The district court did not abuse its discretion in refusing to consider Anderson’s second untimely filed opposition to summary judgment. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir.2007) (“District courts retain broad discretion to control their dockets....”); N.D. Cal. Local R. 7-3(a). *324Anderson provided no justification for why the opposition was filed late. Given that the district court did accept Anderson’s first late filed opposition, it was well within its discretion to reject the second, so-called “amended” version.
II
The district court did not err in granting summary judgment in favor of AMR on Anderson’s age and race discrimination claims. Anderson provided no evidence to refute AMR’s non-discriminatory explanation for its differential treatment of Anderson — namely, that he was the only non-contract skycap working at the airport and that he needed to work at a specific terminal for tracking purposes. See Guz v. Bechtel Nat’l Inc., 24 Cal.4th 317, 100 Cal.Rptr.2d 352, 8 P.3d 1089, 1114 (2000). When Anderson first began working at the west end of the curbside check-in area, other skycaps who were older and were also African American were stationed at the more desirable east end. Moreover, Anderson testified in his deposition that no supervisor had ever given any indication that any condition of his employment was affected by his age or race. Because Anderson failed to refute AMR’s nondiscriminatory explanation for its treatment of him, summary judgment was appropriate. See id. (“If the employer sustains this burden [of offering a legitimate, nondiscriminatory explanation for its treatment], the presumption of discrimination disappears.”).
III
Anderson’s retaliation claim also fails. Assuming he did engage in protected activity, Anderson was still required to show an adverse employment action. Flait v. N. Am. Watch, Corp., 3 Cal.App.4th 467, 4 Cal.Rptr.2d 522, 528 (1992). Anderson was working the same shift at the same location on the curb well before he complained of the new $2 checked bag fee in 2005. There is also nothing in the record tending to show Anderson’s complaints about his computer terminal first arose after implementation of the checked bag fee. In short, the conditions of Anderson’s employment remained the same after he complained about the new checked bag fee, and thus summary judgment was appropriate because no adverse employment action was shown.
IV
The district court did not err in granting summary judgment on Anderson’s negligent infliction of emotional distress (NIED) claim because the actions he complains of were intentional, not negligent. California law does not allow an NIED claim to proceed in such circumstances. See Semore v. Pool, 217 Cal.App.3d 1087, 266 Cal.Rptr. 280, 291 (1990) (“[A]ny actions by the employer were intentional, not negligent. An employer’s supervisory conduct is inherently intentional.”) (internal quotation marks omitted). “The conduct alleged here does not support a cause of action for negligent infliction of emotional distress.” Id.
V
Finally, there was no error in granting summary judgment in favor of AMR on Anderon’s intentional infliction of emotional distress (IIED) claim. An IIED plaintiff must show, among other things, “[e]xtreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.... ” KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023, 37 Cal.Rptr.2d 431, 433 (1995) (internal quotation marks and citation omitted). “Generally, conduct will be found to be actionable where the recitation of the facts *325to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. (internal quotation marks and citation omitted), Anderson has made no showing that AMR’s conduct was so egregious here.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
On June 12, 2009, the court issued an order allowing 21 days for Armida G. Chavez to show cause on why his appeal should not be dismissed as untimely. Chavez has not responded within the time allowed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs.
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MEMORANDUM ***
Patrick Brady (Brady) appeals from the district court’s denial of his motion for reconsideration after its grant of summary judgment to Hanger Orthopedic, Inc., et al. (Hanger). We affirm.
Brady contends, for the first time on appeal, that the district court erred under Federal Rule of Civil Procedure 26 (Rule 26) in crediting Hanger’s argument that Brady could not survive summary judgment because he had failed to disclose an expert witness to support his theory of causation. Because Brady did not raise this issue before the district court, it is waived. See Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996).
Brady also asserts that the district court abused its discretion in failing to find “excusable neglect” under Rule 60(b)(1). Brady did not mention Rule 60 or raise the issue of “excusable neglect” under Rule 60(b)(1) in his motion for reconsideration. Thus, the “excusable neglect” issue is waived. Crawford, 96 F.3d at 389 n. 6. In any event, Brady has not demonstrated that the district court abused its discretion under the “excusable neglect” standard. Brady’s motion for reconsideration did not state that he was unaware of Hanger’s motion for summary judgment or unable to request an extension for the entire time period before his response was due. Thus, Brady failed to provide a good reason for his failure to file an opposition, and the district court’s denial of relief was within its discretion. See Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir.2004) (en banc) (noting that “the decision whether to grant or deny an extension of time ... should be entrusted to the discretion of the district court because the district court is in a better position than we are to evaluate factors such as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes, the quality of representation of the lawyers ..., and the likelihood of injustice” if relief were denied).
Brady also raises the “excusable neglect” issue on appeal under Rule 6(b). Here too, Brady failed to raise the “excusable neglect” issue or mention Rule 6 at all before the district court and so waived the issue on appeal. Furthermore, were we to reach the issue, the “excusable neglect” test is the same under Rules 60(b)(1) and 6(b), see Pincay, 389 F.3d at 855; Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir.1996), and, in any event, under Rule 6(b)(2), Rule 60(b) would control as it governs relief from a final judgment or order.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Dr. Philip Denney appeals the district court’s summary judgment in this action alleging violations of his First Amendment free speech and Fifth Amendment equal protection rights. Denney argues that defendants involved him in the investigation of Dixon Herbs, a marijuana dispensary, in retaliation for his support of medical marijuana. We review the order granting summary judgment de novo, Adkins v. Mireles, 526 F.3d 531, 538 (9th Cir.2008), and we affirm.
There is no genuine issue of material fact whether defendants conducted a retaliatory investigation against Denney. Defendants initially tried to investigate Dixon Herbs using confidential informants (CIs) who already possessed doctors’ recommendations for medical marijuana. When no additional CIs were available locally, defendants used CIs who lacked doctors’ recommendations. Dixon Herbs required the buyers to obtain doctors’ recommendations, and referred one Cl to Denney’s office. Defendants’ decision to use Denney in their investigation of Dixon Herbs resulted from this referral, not from then- alleged intent to retaliate against him for his support of medical marijuana. The circumstantial evidence Denney relies upon fails to create a genuine issue. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); cf. Mendocino Envtl. Ctr. v. Mendocino Cotmty, 192 F.3d 1283, 1302-03 (9th Cir.1999).
Because there is no genuine issue of material fact regarding Denney’s retaliation claim, his equal protection claim also fails. Denney relies on the same circumstantial evidence to support his equal protection claim. Just as he fails to show defendants may have investigated him in a retaliatory fashion, he cannot prove that defendants were motivated by a discriminatory purpose. See Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1152 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s affirmance of the bankruptcy court’s summary judgment in trustee David Seror’s action seeking a declaration that the Fearings were not entitled to proceeds from the sale of the Fearings’ former residence. We review de novo the district court’s grant of summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of this case are known to the parties and we do not repeat them here.
*330Contrary to the Fearings’ assertion, the bankruptcy court had subject matter jurisdiction over this dispute.
The bankruptcy court correctly determined that the Fearings are not entitled to any proceeds derived from the sale of their former residence based on California’s homestead exemption.
The Fearings are collaterally estopped from challenging the bankruptcy court’s order authorizing the sale of their former residence. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
We do not consider the Fearings’ argument concerning whether their tax debts should be paid before bankruptcy administrative expenses. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s affirmance of the bankruptcy court’s summary judgment in trustee David Seror’s action seeking a declaration that the Fearings were not entitled to proceeds from a settlement the trustee negotiated with California State University at Northridge. We review do novo the district court’s grant of summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of this case are known to the parties and we do not repeat them here.
The bankruptcy court correctly determined that the Fearings are not entitled to any proceeds derived from the trustee’s settlement with the university. There is no basis for the Fearings’ contention that these proceeds should not be used to pay for bankruptcy administrative expenses.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s dismissal of their appeal from the bankruptcy court’s order denying their motion for “adequate protection.” We have jurisdiction under 28 U.S.C. § 158(d). We dismiss this appeal as moot.
The facts of this case are known to the parties and we do not repeat them here.
In light of our determination in case number 08-56995 that the bankruptcy court correctly determined that the Fear-ings are not entitled to any proceeds derived from the sale of their former residence, this appeal is moot. See Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (stating that federal courts are limited to the adjudication of actual, ongoing controversies). .
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Patrick Brady (Brady) appeals from the district court’s denial of his motion for reconsideration after its grant of summary judgment to Hanger Orthopedic, Inc., et al. (Hanger). We affirm.
Brady contends, for the first time on appeal, that the district court erred under Federal Rule of Civil Procedure 26 (Rule 26) in crediting Hanger’s argument that Brady could not survive summary judgment because he had failed to disclose an expert witness to support his theory of causation. Because Brady did not raise this issue before the district court, it is waived. See Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996).
Brady also asserts that the district court abused its discretion in failing to find “excusable neglect” under Rule 60(b)(1). Brady did not mention Rule 60 or raise the issue of “excusable neglect” under Rule 60(b)(1) in his motion for reconsideration. Thus, the “excusable neglect” issue is waived. Crawford, 96 F.3d at 389 n. 6. In any event, Brady has not demonstrated that the district court abused its discretion under the “excusable neglect” standard. Brady’s motion for reconsideration did not state that he was unaware of Hanger’s motion for summary judgment or unable to request an extension for the entire time period before his response was due. Thus, Brady failed to provide a good reason for his failure to file an opposition, and the district court’s denial of relief was within its discretion. See Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir.2004) (en banc) (noting that “the decision whether to grant or deny an extension of time ... should be entrusted to the discretion of the district court because the district court is in a better position than we are to evaluate factors such as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes, the quality of representation of the lawyers ..., and the likelihood of injustice” if relief were denied).
Brady also raises the “excusable neglect” issue on appeal under Rule 6(b). Here too, Brady failed to raise the “excusable neglect” issue or mention Rule 6 at all before the district court and so waived the issue on appeal. Furthermore, were we to reach the issue, the “excusable neglect” test is the same under Rules 60(b)(1) and 6(b), see Pincay, 389 F.3d at 855; Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir.1996), and, in any event, under Rule 6(b)(2), Rule 60(b) would control as it governs relief from a final judgment or order.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s affirmance of the bankruptcy court’s summary judgment in trustee David Seror’s action seeking a declaration that the Fearings were not entitled to proceeds from the sale of the Fearings’ former residence. We review de novo the district court’s grant of summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of this case are known to the parties and we do not repeat them here.
*330Contrary to the Fearings’ assertion, the bankruptcy court had subject matter jurisdiction over this dispute.
The bankruptcy court correctly determined that the Fearings are not entitled to any proceeds derived from the sale of their former residence based on California’s homestead exemption.
The Fearings are collaterally estopped from challenging the bankruptcy court’s order authorizing the sale of their former residence. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
We do not consider the Fearings’ argument concerning whether their tax debts should be paid before bankruptcy administrative expenses. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8472908/
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s affirmance of the bankruptcy court’s summary judgment in trustee David Seror’s action seeking a declaration that the Fearings were not entitled to proceeds from a settlement the trustee negotiated with California State University at Northridge. We review do novo the district court’s grant of summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of this case are known to the parties and we do not repeat them here.
The bankruptcy court correctly determined that the Fearings are not entitled to any proceeds derived from the trustee’s settlement with the university. There is no basis for the Fearings’ contention that these proceeds should not be used to pay for bankruptcy administrative expenses.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bankruptcy debtors Roger and Christine Fearing (“the Fearings”) appeal pro se from the district court’s dismissal of their appeal from the bankruptcy court’s order denying their motion for “adequate protection.” We have jurisdiction under 28 U.S.C. § 158(d). We dismiss this appeal as moot.
The facts of this case are known to the parties and we do not repeat them here.
In light of our determination in case number 08-56995 that the bankruptcy court correctly determined that the Fear-ings are not entitled to any proceeds derived from the sale of their former residence, this appeal is moot. See Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (stating that federal courts are limited to the adjudication of actual, ongoing controversies). .
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. While the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(b). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
First, although the district court erred in admitting evidence about the FARC that was both prejudicial to Pineda and unrelated to the case against him, the error was harmless. The Government’s case was strong enough that we cannot say the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
Second, the court did not err in admitting the portion of the proof-of-life *592video containing non-hearsay statements from the hostages to their families. Although the Government did not establish that the hostages were detained even in part to prevent them from testifying, see Fed.R.Evid. 804(b)(6), any error from the admission of hearsay statements in the video was harmless because those statements had little, if any, prejudicial effect.
Third, the court correctly refused to allow a defense of “obedience to military orders” because Pineda could not establish the requirements for that defense, which we discussed in United States v. Yunis, 924 F.2d 1086, 1097 (D.C.Cir.1991). Fourth, the court’s lengthy jury instruction about the crime of conspiracy properly informed the jury of the elements of that offense. Fifth, the court correctly declined to instruct the jury about the defense of necessity because there was no evidence Pineda acted to avoid any imminent harm.
Finally, we cannot say the court abused its discretion by giving a “partial verdict” instruction early in the process of deliberation. The jury had deliberated for only a short time, and the court’s instruction merely encouraged it to continue deliberating.
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. Rule 36(b). It is
ORDERED and ADJUDGED that the order of the district court dismissing the complaint for lack of jurisdiction be affirmed.
■ This appeal arises out of an enforcement action by the Federal Energy Regulatory Commission (“FERC”) concerning allegedly manipulative trades of natural gas futures on the New Yoixk Mercantile Exchange (“NYMEX”) by a hedge fund and several employees, including Brian Hunter. On July 26, 2007, FERC also issued an Order to Show Cause (“OTSC”), preliminarily concluding that Hunter and another hedge fund employee sold large quantities of natural gas futures contracts on NYMEX with the intent and effect of driving down the “settlement price” of those contracts. After FERC notified Hunter that it intended to issue an OTSC, he sought declaratory and injunctive relief from the district court to prevent FERC from pursuing an enforcement action against him. He argued that the Commodities Futures Trading Commission (“CFTC”), and not FERC, had exclusive jurisdiction over the allegedly manipulative trades and that FERC lacked authority to bring an enforcement action against a natural person. The district court denied Hunter’s motion for a preliminary injunction and dismissed the complaint for lack of subject matter jurisdiction. Upon de novo review, see Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C.Cir.2007), we affirm.
On appeal, Hunter attempts to ignore both the limits of the ultra vires doctrine and controlling precedent in contending that the district court had inherent jurisdiction to consider his claim that FERC was acting ultra vires. The inherent ultra vires power speaks only to Hunter’s opportunity for judicial review, not his ability to choose which court shall review his case. Congress has vested exclusive jurisdiction in the courts of appeals to review FERC’s orders, pursuant to section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b) (“NGA § 19(b)”). Accordingly, Hunter’s reliance on Aid Ass’n for Lutherans v. U.S. Postal Servs., 321 F.3d 1166, 1172-73 (D.C.Cir.2003), where the statute foreclosed all judicial review, is misplaced. See also Dart v. United States, 848 F.2d 217, 225 (D.C.Cir.1988). As explained in Ukiah Adventist Hospital v. FTC, 981 F.2d 543, 550 (D.C.Cir.1992), “[Hunter] will be free to mount a challenge to the [FERC’s] jurisdiction on review of any final [ ] order the [agency] might issue, and, therefore, denial of review in a district court will not foreclose all judicial review.”
*594Although Hunter contends that his complaint does not challenge any order issued by FERC, he cannot escape the holding in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 75 (D.C.Cir.1984), that “where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive review of the Court of Appeals.” The fact that Hunter argues his jurisdictional points before the agency in his response to the OTSC, see Appendix at 622-23, demonstrates that the “jurisdictional determination” is related and could be raised on appeal of the final order. Hunter’s reliance on Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C.Cir.2008), cert. granted, - U.S. ——, 129 S.Ct. 2378, 173 L.Ed.2d 1291 (2009), is misplaced because that case involved the type of collateral attack on an enabling statute that the Ulci-ah court carefully distinguished, id. at 668-69, The jurisdictional determination in the administrative proceeding is not collateral but is “a step toward” the decision on the merits. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 246, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41; D.C.Cir. R. 41.
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SUMMARY ORDER
Defendants-cross-claimants-appellants the County of Delaware, Joseph A. Andre-no, and Kurt R. Palmer (collectively, “defendants”) appeal from an April 18, 2008 order of the District Court insofar as it denied part of their motion for summary judgment. We assume the parties’ familiarity with the factual and procedural history of the case, although we revisit key portions of that history here.
The present case comes to us through unusual circumstances. The underlying events occurred on or about April 9, 2002, when plaintiff-appellant Richard B. Moore (“plaintiff’ or “Moore”) and his “on-again, off-again lover[ ],” Ruth Sines, had an argument, in which Moore threatened to kill Sines. Moore v. Andreno, 505 F.3d 203, 205 (2d Cir.2007). Two days later, Sines went to Moore’s home, at a time when she knew Moore would not be there, in order to move out all of her belongings. After receiving a telephone call from an unidentified caller, Sines suddenly became fearful that Moore would return and harm her. Sines called the Delaware County Sheriffs Department, which then dispatched Deputies Andreno and Palmer (the “Deputies”) to the scene. Once the Deputies were at the house, Sines asked them to accompany her while she searched Moore’s private study to see if Moore had hidden any of her belongings there. She explained to the Deputies that she “wasn’t allowed” into the study without Moore, that the door to the study had been locked when she came to the house, and that she had cut the locks off herself. Id. at 205-06. The Deputies agreed to accompany Sines into the study and, while there, Sines and the Deputies discovered drugs and drug paraphernalia. The Deputies seized the drugs. Moore was eventually indicted by a state grand jury on two counts of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the fifth degree; however, the County Court for Delaware County dismissed the indictment in February 2004 after suppressing the evidence taken from the scene.
Moore then filed the present action in February 2005 in the District Court against, principally, Deputies Andreno and Palmer, asserting claims under 42 U.S.C. §§ 1981, 1983, 1985, and state law. In particular, Moore claimed that the search of his study and subsequent seizure of his drugs violated, inter alia, the Fourth and Fourteenth Amendments of the Constitution. Defendants moved for summary judgment on the grounds that Moore’s rights had not been violated, and that even if they had been violated, the Deputies were entitled to qualified immunity. In an order of July 17, 2006, the District Court determined that Sines had no authority to *597allow the Deputies into the study, and that, because there were no exigent circumstances, Moore had “established a color-able claim of a constitutional violation.” Moore v. Andreno, No. 05-cv-00175, 2006 WL 2008712, at *7 (N.D.N.Y. July 17, 2006). The District Court then determined that it was “clearly established” that Sines’s consent would not be valid under such circumstances, and concluded that the Deputies were accordingly not entitled to qualified immunity. Id. at *11. Defendants appealed.
On October 22, 2007, another panel of this Court reversed the District Court’s order, insofar as it denied defendants’ motion for summary judgment. See Moore, 505 F.3d at 216. The opinion stated at the outset that the “gravamen of [Moore’s] complaint is that the Deputies’ entry into his study and seizure of his drugs violated the Fourth Amendment to the United States Constitution.” Id. at 206 (emphasis added). It then went on to hold that although Sines lacked the authority to consent to the Deputies’ entry of Moore’s study, this law “was not clearly established,” and, as such, the Deputies were entitled to qualified immunity. Id. at 216. The opinion concluded by noting that “[t]he case is remanded to the district court so that it may enter summary judgment in defendants’ favor.” Id.
It appears that after the return of the mandate but before acting on the instructions of the Court of Appeals to “enter summary judgment in defendants’ favor,” id., the District Court authorized the filing of a second motion for summary judgment so that it could consider whether any of Moore’s claims survived the grant of defendants’ first motion for summary judgment and, if so, whether any of those claims required a trial. On February 14, 2008, defendants filed a second motion for summary judgment. Specifically, they argued that, to the extent Moore asserted a claim under the Due Process Clause that survived the Court of Appeals decision of October 22, 2007, the claim should be dismissed on the merits or dismissed because Deputies Andreno and Palmer are entitled to qualified immunity.
In an order entered on April 18, 2008, the District Court denied defendants’ motion for summary judgment with respect to plaintiffs Due Process claim.1 Specifically, the District Court determined that although there were no remaining issues with respect to the search of Moore’s study, there was a “problem” with the fact that the Deputies had seized Moore’s property but had given him no notice of this fact. J.A. 320. The District Court first cited a passage from the Supreme Court’s decision in City of West Covina v. Perkins, 525 U.S. 234, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999), in which the Court stated “when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.” J.A. 320 (quoting Perkins, 525 U.S. at 240, 119 S.Ct. 678). The District Court then stated that it could see “no appreciable distinction between a warrantless seizure and a seizure conducted pursuant to a warrant that would excuse the requirement of notice.” J.A. 321-22. Accordingly, the District Court concluded that “defendants were obligated to take reasonable steps to give notice that the property ha[d] been taken so defendant could pursue available remedies for its return.” Id. at 322. As to the *598matter of qualified immunity, the District Court determined that “this rule was enunciated by the Supreme Court in 1999, long before actions at issue here, thereby overcoming any qualified immunity claims. Accordingly, it was well-settled that such notice was required and defendants are not entitled to qualified immunity on this issue.” Id. Defendants filed a timely notice of appeal.
At the outset of our discussion, we recall that the October 22, 2007 opinion of this Court instructed the District Court to “enter summary judgment in defendants’ favor.” Moore, 505 F.3d at 216. However, to the extent that there remains confusion about whether Moore’s due process claim was considered in that decision, we address that claim now. We further note that “[bjecause the denial of a motion for summary judgment is not a final judgment, it is generally not immediately ap-pealable.” Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.2007). However, there is an exception to this general rule “when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a ‘purely legal question.’ ” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). See also O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (observing that “[ujnder the collateral order doctrine ... the denial of a qualified-immunity-based motion for summary judgment is immediately appeal-able to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”). Here, the District Court’s holding that the law governing notice following warrantless searches was clearly established is a conclusion of law, and is thus immediately appealable. Finally, we note that we review de novo an order granting summary judgment. See, e.g., Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). Summary judgment is appropriate only if “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c).
We need not address the issue of whether a police officer’s failure to leave notice of a search violates the Due Process Clause — that is, whether the language in Perkins announced a constitutional rule— because we can readily conclude that no such rule was “clearly established” at the time the events underlying this action took place. Cf. Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).
“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Demoret v. Zegarelli, 451 F.3d 140, 148-49 (2d Cir.2006). The right in question, therefore, must “have been recognized in a particularized rather than a general sense.” Sira v. Morton, 380 F.3d 57, 81 (2d Cir.2004).
There is no authority recognizing the particularized right ostensibly violated here — i.e., the right to notice, at the time of a warrantless search, of that search and *599the items seized. The language in Perkins relied on by the district court — which Justice Thomas characterized as “dicta” in his concurring opinion, Perkins, 525 U.S. at 246, 119 S.Ct. 678 (Thomas, concurring) — applied only to seizures of property “pursuant to a warrant” id. at 240, 119 S.Ct. 678, not to warrantless searches such as the one conducted here. Moreover, the language in Perkins made no reference to when such notice must be provided, a critical factor in a case such as this one where Moore was indisputably notified at some point-ostensibly before his successful suppression motion — of the search and the items seized.
The District Court therefore erred when it stated that it was “well-settled” on the facts of this case “that such notice was required.” J.A. 322. Accordingly, defendants are entitled to judgment as a matter of law, and their motion for summary judgment should be granted.
CONCLUSION
For the foregoing reasons, the April 18, 2008 order of the District Court is REVERSED to the extent that it denied defendants’ motion for summary judgment. Judgment shall enter for defendants.
. The District Court also on April 18, 2008 granted defendants' motion for summary judgment with respect to all of plaintiff’s remaining claims. That portion of the District Court's order is not appealed.
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SUMMARY ORDER
Plaintiff-appellant Kim Carl (“plaintiff’ or “Carl”) appeals from a January 14, 2009 judgment of the District Court, which granted the motion of defendants The City of Yonkers (“the City”) and The City of Yonkers Police Department (“the Department”) for summary judgment, and the motion of seven individual officer-defendants (“the officer defendants”) to dismiss for lack of timely service. Plaintiff filed the underlying action in September 2004, asserting claims against the City, the Department, and the officer defendants for false arrest, the use of excessive force, and retaliation for filing an earlier lawsuit, which arose from plaintiffs arrest on September 6, 2001. We assume the parties’ familiarity with the remaining factual and procedural history of the case.
On appeal, plaintiff primarily argues the following points: (1) that the docket entry for a reply affidavit filed on behalf of the City and the Department misled his counsel into thinking that the officer defendants had made an appearance in the case; (2) that the “court rules” required that he be notified that he had failed to properly serve the officer defendants; and (3) that the District Court erred in not allowing him an extension of time for proper service of his complaint.1 We consider each argument in turn.
With respect to plaintiffs first argument, we note that he did not raise this argument before the District Court. Accordingly, we do not consider it here. See, *601e.g., Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994) (stating that there is a “well-established general rule that an appellate court will not consider an issue raised for the first time on appeal”).
Turning to plaintiffs second argument, we can find no rules that would apply in this case that require that a plaintiff be notified of failure to properly serve defendants. As the District Court stated, “[njothing in the Federal Rules of Civil Procedure ... requires that an order be entered to remind a plaintiff or his attorney that particular defendants have not been served or have not responded to the complaint.” Carl v. City of Yonkers, No. 04-cv-7031, 2008 WL 5272722, at *7 n. 9 (S.D.N.Y. Dec.18, 2008). Accordingly, we find this argument to be without merit.
Finally, we address what appears to be plaintiffs main argument — that the District Court erred in not allowing him an extension of time to properly serve his complaint. Here, we note, as the District Court did, that “the docket for the ease does not reflect the filing of proof of service on any of the individual defendants. Plaintiff provide[d] no affidavit or other evidence that any defendant was properly served.” Id. at *4. Furthermore, as the District Court noted, plaintiff does not “tender any reason for the failure to serve these defendants that could remotely serve as ‘good cause’ for the failure to serve them for nearly three years after the complaint ivas filed,” and plaintiff did not even ask the District Court for an extension of time to serve the defendants. Id. at *5 (emphasis added). Accordingly, we conclude that the District Court properly granted the motion of the individual officer defendants for dismissal for lack of timely service.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
. Plaintiff also purports to argue that the District Court did not “properly consider[] the question of jurisdiction in the proceedings." Appellant's Br. 2. However, plaintiff's elaboration of his argument appears to be a recitation of his other arguments. See id. at 7. Accordingly, we do not address this argument separately.
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SUMMARY ORDER
Plaintiffs-appellants Marge, Stephen, and Kalle Snyder (collectively “plaintiffs” or “the Snyders”), proceeding pro se, appeal from six separate decisions and orders of the District Court in their action alleging violations of, inter alia, the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”). Specifically, plaintiffs appeal from the following orders: (1) the July 2002 order granting in part and denying in part defendants’ motions to dismiss; (2) the August 2004 order granting in part and denying in part defendants’ motions for summary judgment; (3) the September 2004 order denying the Snyders’ motion for revision of the District Court’s July 2002 order; (4) the September 2005 order denying plaintiffs’ motion for reconsideration of the District Court’s August 2004 order; (5) the March 2007 order dismissing the case in its entirety for failure to prosecute and comply with prior orders of the court; and (6) the August 2007 order denying plaintiffs’ motion for reconsideration of the District Court’s March 2007 order.
On appeal, plaintiffs argue as follows: (1) the District Court “abused its discretion” in dismissing their case; (2) the District Court erred in denying their motion for reconsideration; (3) the District Court erred when it dismissed the complaint *603based on claims not addressed in defendants’ motions; (4) the District Court erred in concluding that the Court lacked personal jurisdiction over the individual school district defendants; (5) the defendants’ evidence contradicted their summary judgment motions; (6) the District Court erred in denying plaintiffs’ July 2002 motion to revise; (7) the District Court erred in dismissing the remaining claims for failure to prosecute.2 We assume the parties’ familiarity with the facts and procedural history of this case.
We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). We review an order granting summary judgment de novo, “drawing all factual inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c).
Here, an independent review of the record and relevant case law reveals that the District Court did not err in granting in part the defendants’ motions to dismiss and for summary judgment and denying Snyders’ motions for revision and reconsideration of those orders. Accordingly, we affirm the July 2002, August 2004, September 2004, and September 2005 orders for substantially the same reasons stated by the District Court in its thorough and well-reasoned opinions and orders.
As for the March 2007 order dismissing the complaint with prejudice for failure to prosecute, we conclude that the District Court erred in dismissing the remaining claims against the school district regarding the 1996-1997 school year.3 Rule 41(b) of the Federal Rules of Civil Procedure permits a district court to dismiss an action when a plaintiff fails to prosecute or to comply with a court order. Fed.R.Civ.P. 41(b). We review a district court’s dismissal of a complaint for failure to prosecute for an “abuse of discretion.” See, e.g., Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir.2008); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.*6042008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions .... ” (internal alteration, citations, and quotation marks omitted)). We are mindful, however, that dismissal of a complaint under Rule 41(b) is a “harsh remedy” that should “be utilized only in extreme situations,” especially when the plaintiff is a pro se litigant. Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993).
The propriety of a Rule 41(b) dismissal depends on the balancing of the following factors, none of which is dispositive: (1) the duration of the plaintiffs’ failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court’s interest in managing its docket with the plaintiffs interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004).
After taking all factors into account, we conclude that the District Court dismissed this complaint prematurely. Most importantly, the first factor counsels against dismissal in this case. Here the District Court dismissed the remaining claims against the school district a mere four days after plaintiffs failed to meet a deadline. This is not significant, especially for a pro se litigant. Although plaintiffs were on notice that further delays could result in a dismissal, there is no evidence that the third, fourth, or fifth factors favor dismissal in this case. Therefore we conclude that dismissal for failure to prosecute was inappropriate.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED in part (with respect to the July 2002, August 2004, September 2004, and September 2005 orders), VACATED in part (with respect to the March 2007 order), and the cause is REMANDED to the District Court for further proceedings. In light of our disposition, we DISMISS as moot the Snyders’ appeal from the District Court’s August 2007 denial of their motion for reconsideration.
. We construe plaintiffs' arguments liberally, in light of our duty to read pro se submissions "to raise the strongest arguments they suggest,” Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (internal quotation marks omitted).
. The claims that remained following the District Court’s August 2004 order — and therefore the claims that will return to the District Court on remand — were as follows: (1) plaintiffs' claims against the school district under the IDEA pertaining to the 1996-1997 school year alleging that the school district failed to promptly schedule an impartial hearing upon plaintiffs' request (Am.CompW 175), failed to hold a Committee on Special Education ("CSE”) meeting in a timely manner (Am. ComplJ 174), and denied plaintiffs access to Kalie’s educational records (Am. ComplA210); (2) plaintiffs' claims against the school district pertaining to the 1996-1997 school year under § 504 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. § 794) and the Americans with Disabilities Act (codified at 42 U.S.C. § 12101 et seq.) ("ADA”) alleging that the school district failed to promptly schedule an impartial hearing (Am.Compl.H ¶ 203, 208) and denied plaintiffs access to Kalle’s educational records (Am. Compl.H ¶ 205, 208); and (3) plaintiffs' claims against the school district pertaining to the 1996-1997 school year for damages under 42 U.S.C. § 1983 for violations of § 504 of the Rehabilitation Act of 1973 and the ADA (Am. CompU 222).
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SUMMARY ORDER
Plaintiff-appellant KLA (“plaintiff’), an incompetent adult, by her parents and next friends B.L. and R.A., who are proceeding pro se, appeals the February 20, 2008 judgment of the District Court denying KLA’s motion to reverse the decision of an administrative hearing officer in her action alleging violations of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We assume the parties familiarity with the factual and procedural history of the case.
Although litigants in federal court have a statutory right to act as their own counsel, 28 U.S.C. § 1654, the statute does not permit “unlicensed laymen to repre*606sent anyone other than themselves.” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.2007) (internal quotation marks omitted). That prohibition extends to non-lawyer parents seeking to represent their children, Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284-85 (2d Cir.2005); Cheung v. Youth Orchestra Found, of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990), and the representation of incompetent adults, Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 133-34 (2d Cir.2009).
Although parents have “independent, enforceable rights” under the IDEA, Winkelman ex rel. Winkelman v. Parma City Sch. Dist, 550 U.S. 516, 533, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007), the complaint in this action names KLA as the sole petitioner and asserts no claims on behalf of her parents. Accordingly, without expressing any opinion on the merits of KLA’s claims, we will defer consideration of the appeal for 45 days pending the possible appearance of counsel to represent B.L. and R.A. as next friends of KLA. See Tindall, 414 F.3d at 286 (deferring decision for 45 days pending an appearance of counsel). If counsel appears, the appeal will proceed with briefing and argument before a new panel. If counsel does not so appear, the Clerk is directed to enter an order dismissing the appeal for want of such counsel.
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SUMMARY ORDER
Plaintiff-Appellant Kevin Redd, pro se and incarcerated, appeals from the judgment of the United States District Court for the Northern District of New York (Kahn, J.), dismissing his complaint for failure to effectuate service and denying his motion to compel discovery. We assume the parties’ familiarity with the facts and procedural history.
We review dismissals for failure to prosecute and failure to serve process for abuse of discretion. See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir.2002); Palmieri v. Defaria, 88 F.3d 136, 140 (2d Cir.1996). The record demonstrates that Appellant failed to comply with Rule 4(m)’s 120-day service requirement. The district court’s Order to Show Cause provided Appellant with notice that it was considering dismissal for failure to serve the Appellee. In response, Appellant filed an affidavit asserting that, because he was incarcerated, he had attempted to determine Appellee’s location by contacting Department of Correctional Services (“DOCS”) on a number of occasions. Athough the fact of incarceration entitles a plaintiff to rely on the United States Marshal’s Service to effectuate service, the plaintiff must provide the information necessary for the Marshal to serve the defendant. Cf. Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir.1986). However, Appellant was unable to provide the requisite information for the Marshal’s office to locate Appellee.
Moreover, in support of his assertion that he made repeated efforts to find Appellee’s location, Appellant provided only one letter in which DOCS indicated that it was unable to locate a “Mr. Phillips.” There is no indication that, between July 2005 and February 2007, Appellant made any other effort to locate Appellee. Appellant’s second request to DOCS to locate Appellee came in June 2007. The district court allowed Appellant additional time to effectuate service and did not dismiss the case until six months after Appellant submitted his affidavit and three months after his last request to DOCS. Yet Appellant was still unable to provide an address for Appellee. Mindful of the limits on a district court’s discretion to *608dismiss a complaint under Rule 41(b), see Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir.2004), we find that there was no abuse of discretion in the district court’s dismissal of Appellant’s complaint or denial of Appellant’s motion to compel.
We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Anthony Wright appeals from the decision and order, dated August 21, 2007, of the United States District Court for the Northern District of New York (Hurd, J.), which denied Wright’s petition, brought pursuant to 28 U.S.C. Section 2254, for the issuance of a writ of habeas corpus. Judge Hurd’s decision was based upon the report and recommendation, dated March 16, 2007, of United States Magistrate Judge George H. Lowe, which recom*613mended that Wright’s request for relief be denied. See Wright v. Smith, 2007 WL 2412248 (N.D.N.Y. Aug.21, 2007). The facts are fully set forth in Magistrate Judge Lowe’s comprehensive report and recommendation. We assume the parties’ familiarity with the facts of this case, its procedural history, and the issues presented on appeal.
We review the district court’s denial of habeas relief de novo. Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006).
A. The Conflict Issue. Wright’s briefs are replete with assertions that Martuseello’s prior representation of Hall severely prejudiced him at trial because the prior attorney-client relationship precluded the conduct of an aggressive, or at least an adequate, cross-examination of Hall. Thus, we are told that “Martuscello backed away from attacking his former client,” that Martuscello conducted “a lackluster cross-examination,” even one that “proved to be catastrophic,” presumably because it was “timid, unfocused, and anemic.”
In order to demonstrate that he suffered cognizable injury as a result of Martuscel-lo’s prior representation of Hill, Wright must show that “some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” U.S. v. Schwarz, 283 F.3d 76, 92 (2d Cir.2002) (internal quotation marks omitted). Beyond conclusory speculation, Wright utterly fails to do this. Martuscello conducted an effective, uninhibited cross-examination, which elicited the fact of Hill’s numerous prior convictions and focused on the benefits he hoped to receive from testifying against Wright. Moreover, Harris’s counsel, who was not conflicted, pursued a similar strategy. In sum, the record does not support the contention that counsel failed to represent Wright to the best of his ability because of any prior representation.
B. The Tainted Juror Issue. Wright asserts that his right under the Sixth Amendment to be present during all stages of his trial was violated because he was not present at the trial judge’s examination of Lamb. We find, however, that Magistrate Judge Lowe’s holding that the trial judge’s examination of Lamb was the sort of ancillary proceeding at which Wright’s presence was not constitutionally required is plainly correct. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). Wright makes no serious argument to the contrary, but rather asserts that in this specific instance, because of his presence during Lamb’s second encounter with his co-defendant’s wife, his presence at the examination of Lamb was required because it “would have been particularly useful” if “[h]e could have told his counsel if [Lamb’s] recounting of the incident was untruthful, incomplete, or otherwise inaccurate or misleading.” However, neither in the trial court nor subsequently has Wright made any demonstration that any aspect of Lamb’s recounting of the second encounter with Harris’s wife was in any way untruthful or incomplete. Furthermore, Wright forfeited this federal constitutional claim because in state court he raised only a question of New York statutory law, not a federal constitutional claim.
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SUMMARY ORDER
Reginald Bell appeals from an order of the United States District Court for the Southern District of New York (Berman, J.), which denied Bell’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
“The determination of whether an original sentence was ‘based on a sentencing range that was subsequently lowered by the Sentencing Commission,’ 18 U.S.C. § 3582(c)(2), is a matter of statutory interpretation and is thus reviewed de novo.” *615United States v. Martinez, 572 F.3d 82, 84 (2d Cir.2009) (per curiam) (citing United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009)).
Bell was convicted in 2003, following a plea of guilty to one count of conspiracy to distribute and possess with intent to distribute “crack” cocaine, in violation of 21 U.S.C. § 846. At Bell’s August 13, 2003 sentencing hearing, the district court sentenced Bell as a career offender under § 4B1.1 of the Sentencing Guidelines (the “Guidelines”) and imposed a sentence of 151 months’ imprisonment, the lowest sentence within the applicable Guidelines range.
Effective November 1, 2007, Amendment 706 to the Guidelines reduced offense levels under § 2D1.1 — applicable to crack cocaine offenses — by two levels. In March 2008, Amendment 713 to the Guidelines made this reduction retroactive. On May 14, 2008, Bell moved for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on these amendments. Following written submissions and argument, on July 16, 2008, the district court denied Bell’s motion.
Although Bell was convicted of a violation of 21 U.S.C. § 846, his sentence was based on the career offender guideline (§ 4B1.1), not on the crack cocaine guideline (§ 2D1.1). “[A] defendant convicted of crack cocaine offenses but sentenced as a career offender under U.S.S.G. § 4B1.1 is not eligible to be resentenced under the amendments to the crack cocaine guidelines.” Martinez, 572 F.3d at 85. The district court properly found that Bell is not eligible for a sentence reduction because his sentence under § 4B1.1 was not “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Bell argues that he is entitled to be resentenced pursuant to 18 U.S.C. § 3553(a), without reference to 18 U.S.C. § 3582(c)(2). This argument is without merit. First, the sentencing factors enumerated in § 3553(a) become relevant only after the court determines that a defendant is eligible for resentencing pursuant to 18 U.S.C. § 3582(c)(2), and Bell is not eligible for resentencing pursuant to § 3582(c). Second, the district court did revisit the § 3553(a) sentencing factors at the July 16, 2008 argument and determined that Bell’s sentence “remained appropriate in light of those factors.” App. G at 6.
Bell challenges a 1976 state court conviction. However, a “defendant may not collaterally attack prior state court felony convictions during a federal sentencing hearing unless the defendant was deprived of counsel in the state court proceedings,” United States v. Jones, 27 F.3d 50, 51-52 (2d Cir.1994) (per cmiam), something that Bell does not contend occurred here.
Accordingly, we hereby AFFIRM the order of the district court.
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SUMMARY ORDER
Petition for review of an order of the Board of Immigration Appeals summarily affirming a decision of an Immigration Judge, which denied petitioner’s application for cancellation of removal.
Petitioner Jose Alberto Galan, a native and citizen of the Dominican Republic, seeks review of the decision of the Board of Immigration Appeals (“BIA”) summarily affirming a decision of an Immigration Judge (“IJ”), which denied Galan’s application for cancellation of removal pursuant to section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l).** In re Jose Alberto Galan, No. A75 936 652 *617(B.I.A. Sept. 15, 2008), aff'g No. A75 936 652 (Immig. Ct. Hartford, CT Jan. 31, 2008). We assume the parties’ familiarity with the facts and procedural history of this case, and the issues presented by this petition.
We lack jurisdiction to review the determination of whether “exceptional and extremely unusual hardship” exists for the purpose of cancellation of removal pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). See Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.2008); De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006). The IJ denied Galan’s petition on the grounds that Galan had not demonstrated that his removal would result in the requisite exceptional and extremely unusual hardship to his United States citizen spouse. This is a discretionary decision that we have no jurisdiction to review.
Although section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restores this Court’s jurisdiction for the review of “constitutional claims or questions of law,” Galan fails to raise any such jurisdiction-restoring issues in his petition for review. The thrust of Galan’s argument is that the IJ ignored “the report of Dr. Holmes [and] the credible and compelling testimony presented which document the extreme difficulties [Galan’s] wife has been experiencing in efforts to cope with the loss of her son.” Petitioner’s Br. at 17. In particular, Galan argues that the IJ deprived him of due process of law and a fair hearing because the IJ “failed to consider or ignored relevant and probative evidence” regarding Galan’s wife’s emotional and psychological state following the death of one of her sons in an automobile accident. Id. at 18-19.
However, the IJ described and considered Dr. Holmes’s report and the testimony relating to Galan’s wife’s emotional and psychological state. The IJ took note of the “emotional hardship” claimed by Ga-lan’s wife and “the emotional impacts of the separation” in light of “the horrible tragedy that happened to this family with the death of the child of [Galan’s] wife.” Galan “cannot use the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise what is essentially a quarrel about fact-finding or the exercise of discretion.” Barco-Sandoval, 516 F.3d at 39 (internal quotation marks, citation, and modification omitted).
For the foregoing xuasons, the petition for review of the order of the BIA is hereby DISMISSED.
In order to demonstrate eligibility for cancellation of removal, a petitioner must show that he: "(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title ...; and (D) establishes . that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1). Only the fourth requirement is at issue in this case.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. While the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(b). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
First, although the district court erred in admitting evidence about the FARC that was both prejudicial to Pineda and unrelated to the case against him, the error was harmless. The Government’s case was strong enough that we cannot say the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
Second, the court did not err in admitting the portion of the proof-of-life *592video containing non-hearsay statements from the hostages to their families. Although the Government did not establish that the hostages were detained even in part to prevent them from testifying, see Fed.R.Evid. 804(b)(6), any error from the admission of hearsay statements in the video was harmless because those statements had little, if any, prejudicial effect.
Third, the court correctly refused to allow a defense of “obedience to military orders” because Pineda could not establish the requirements for that defense, which we discussed in United States v. Yunis, 924 F.2d 1086, 1097 (D.C.Cir.1991). Fourth, the court’s lengthy jury instruction about the crime of conspiracy properly informed the jury of the elements of that offense. Fifth, the court correctly declined to instruct the jury about the defense of necessity because there was no evidence Pineda acted to avoid any imminent harm.
Finally, we cannot say the court abused its discretion by giving a “partial verdict” instruction early in the process of deliberation. The jury had deliberated for only a short time, and the court’s instruction merely encouraged it to continue deliberating.
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C.Cir. Rule 36(b). It is
ORDERED and ADJUDGED that the order of the district court dismissing the complaint for lack of jurisdiction be affirmed.
■ This appeal arises out of an enforcement action by the Federal Energy Regulatory Commission (“FERC”) concerning allegedly manipulative trades of natural gas futures on the New Yoixk Mercantile Exchange (“NYMEX”) by a hedge fund and several employees, including Brian Hunter. On July 26, 2007, FERC also issued an Order to Show Cause (“OTSC”), preliminarily concluding that Hunter and another hedge fund employee sold large quantities of natural gas futures contracts on NYMEX with the intent and effect of driving down the “settlement price” of those contracts. After FERC notified Hunter that it intended to issue an OTSC, he sought declaratory and injunctive relief from the district court to prevent FERC from pursuing an enforcement action against him. He argued that the Commodities Futures Trading Commission (“CFTC”), and not FERC, had exclusive jurisdiction over the allegedly manipulative trades and that FERC lacked authority to bring an enforcement action against a natural person. The district court denied Hunter’s motion for a preliminary injunction and dismissed the complaint for lack of subject matter jurisdiction. Upon de novo review, see Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C.Cir.2007), we affirm.
On appeal, Hunter attempts to ignore both the limits of the ultra vires doctrine and controlling precedent in contending that the district court had inherent jurisdiction to consider his claim that FERC was acting ultra vires. The inherent ultra vires power speaks only to Hunter’s opportunity for judicial review, not his ability to choose which court shall review his case. Congress has vested exclusive jurisdiction in the courts of appeals to review FERC’s orders, pursuant to section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b) (“NGA § 19(b)”). Accordingly, Hunter’s reliance on Aid Ass’n for Lutherans v. U.S. Postal Servs., 321 F.3d 1166, 1172-73 (D.C.Cir.2003), where the statute foreclosed all judicial review, is misplaced. See also Dart v. United States, 848 F.2d 217, 225 (D.C.Cir.1988). As explained in Ukiah Adventist Hospital v. FTC, 981 F.2d 543, 550 (D.C.Cir.1992), “[Hunter] will be free to mount a challenge to the [FERC’s] jurisdiction on review of any final [ ] order the [agency] might issue, and, therefore, denial of review in a district court will not foreclose all judicial review.”
*594Although Hunter contends that his complaint does not challenge any order issued by FERC, he cannot escape the holding in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 75 (D.C.Cir.1984), that “where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive review of the Court of Appeals.” The fact that Hunter argues his jurisdictional points before the agency in his response to the OTSC, see Appendix at 622-23, demonstrates that the “jurisdictional determination” is related and could be raised on appeal of the final order. Hunter’s reliance on Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C.Cir.2008), cert. granted, - U.S. ——, 129 S.Ct. 2378, 173 L.Ed.2d 1291 (2009), is misplaced because that case involved the type of collateral attack on an enabling statute that the Ulci-ah court carefully distinguished, id. at 668-69, The jurisdictional determination in the administrative proceeding is not collateral but is “a step toward” the decision on the merits. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 246, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41; D.C.Cir. R. 41.
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SUMMARY ORDER
Defendants-cross-claimants-appellants the County of Delaware, Joseph A. Andre-no, and Kurt R. Palmer (collectively, “defendants”) appeal from an April 18, 2008 order of the District Court insofar as it denied part of their motion for summary judgment. We assume the parties’ familiarity with the factual and procedural history of the case, although we revisit key portions of that history here.
The present case comes to us through unusual circumstances. The underlying events occurred on or about April 9, 2002, when plaintiff-appellant Richard B. Moore (“plaintiff’ or “Moore”) and his “on-again, off-again lover[ ],” Ruth Sines, had an argument, in which Moore threatened to kill Sines. Moore v. Andreno, 505 F.3d 203, 205 (2d Cir.2007). Two days later, Sines went to Moore’s home, at a time when she knew Moore would not be there, in order to move out all of her belongings. After receiving a telephone call from an unidentified caller, Sines suddenly became fearful that Moore would return and harm her. Sines called the Delaware County Sheriffs Department, which then dispatched Deputies Andreno and Palmer (the “Deputies”) to the scene. Once the Deputies were at the house, Sines asked them to accompany her while she searched Moore’s private study to see if Moore had hidden any of her belongings there. She explained to the Deputies that she “wasn’t allowed” into the study without Moore, that the door to the study had been locked when she came to the house, and that she had cut the locks off herself. Id. at 205-06. The Deputies agreed to accompany Sines into the study and, while there, Sines and the Deputies discovered drugs and drug paraphernalia. The Deputies seized the drugs. Moore was eventually indicted by a state grand jury on two counts of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the fifth degree; however, the County Court for Delaware County dismissed the indictment in February 2004 after suppressing the evidence taken from the scene.
Moore then filed the present action in February 2005 in the District Court against, principally, Deputies Andreno and Palmer, asserting claims under 42 U.S.C. §§ 1981, 1983, 1985, and state law. In particular, Moore claimed that the search of his study and subsequent seizure of his drugs violated, inter alia, the Fourth and Fourteenth Amendments of the Constitution. Defendants moved for summary judgment on the grounds that Moore’s rights had not been violated, and that even if they had been violated, the Deputies were entitled to qualified immunity. In an order of July 17, 2006, the District Court determined that Sines had no authority to *597allow the Deputies into the study, and that, because there were no exigent circumstances, Moore had “established a color-able claim of a constitutional violation.” Moore v. Andreno, No. 05-cv-00175, 2006 WL 2008712, at *7 (N.D.N.Y. July 17, 2006). The District Court then determined that it was “clearly established” that Sines’s consent would not be valid under such circumstances, and concluded that the Deputies were accordingly not entitled to qualified immunity. Id. at *11. Defendants appealed.
On October 22, 2007, another panel of this Court reversed the District Court’s order, insofar as it denied defendants’ motion for summary judgment. See Moore, 505 F.3d at 216. The opinion stated at the outset that the “gravamen of [Moore’s] complaint is that the Deputies’ entry into his study and seizure of his drugs violated the Fourth Amendment to the United States Constitution.” Id. at 206 (emphasis added). It then went on to hold that although Sines lacked the authority to consent to the Deputies’ entry of Moore’s study, this law “was not clearly established,” and, as such, the Deputies were entitled to qualified immunity. Id. at 216. The opinion concluded by noting that “[t]he case is remanded to the district court so that it may enter summary judgment in defendants’ favor.” Id.
It appears that after the return of the mandate but before acting on the instructions of the Court of Appeals to “enter summary judgment in defendants’ favor,” id., the District Court authorized the filing of a second motion for summary judgment so that it could consider whether any of Moore’s claims survived the grant of defendants’ first motion for summary judgment and, if so, whether any of those claims required a trial. On February 14, 2008, defendants filed a second motion for summary judgment. Specifically, they argued that, to the extent Moore asserted a claim under the Due Process Clause that survived the Court of Appeals decision of October 22, 2007, the claim should be dismissed on the merits or dismissed because Deputies Andreno and Palmer are entitled to qualified immunity.
In an order entered on April 18, 2008, the District Court denied defendants’ motion for summary judgment with respect to plaintiffs Due Process claim.1 Specifically, the District Court determined that although there were no remaining issues with respect to the search of Moore’s study, there was a “problem” with the fact that the Deputies had seized Moore’s property but had given him no notice of this fact. J.A. 320. The District Court first cited a passage from the Supreme Court’s decision in City of West Covina v. Perkins, 525 U.S. 234, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999), in which the Court stated “when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.” J.A. 320 (quoting Perkins, 525 U.S. at 240, 119 S.Ct. 678). The District Court then stated that it could see “no appreciable distinction between a warrantless seizure and a seizure conducted pursuant to a warrant that would excuse the requirement of notice.” J.A. 321-22. Accordingly, the District Court concluded that “defendants were obligated to take reasonable steps to give notice that the property ha[d] been taken so defendant could pursue available remedies for its return.” Id. at 322. As to the *598matter of qualified immunity, the District Court determined that “this rule was enunciated by the Supreme Court in 1999, long before actions at issue here, thereby overcoming any qualified immunity claims. Accordingly, it was well-settled that such notice was required and defendants are not entitled to qualified immunity on this issue.” Id. Defendants filed a timely notice of appeal.
At the outset of our discussion, we recall that the October 22, 2007 opinion of this Court instructed the District Court to “enter summary judgment in defendants’ favor.” Moore, 505 F.3d at 216. However, to the extent that there remains confusion about whether Moore’s due process claim was considered in that decision, we address that claim now. We further note that “[bjecause the denial of a motion for summary judgment is not a final judgment, it is generally not immediately ap-pealable.” Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir.2007). However, there is an exception to this general rule “when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a ‘purely legal question.’ ” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). See also O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003) (observing that “[ujnder the collateral order doctrine ... the denial of a qualified-immunity-based motion for summary judgment is immediately appeal-able to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”). Here, the District Court’s holding that the law governing notice following warrantless searches was clearly established is a conclusion of law, and is thus immediately appealable. Finally, we note that we review de novo an order granting summary judgment. See, e.g., Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). Summary judgment is appropriate only if “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c).
We need not address the issue of whether a police officer’s failure to leave notice of a search violates the Due Process Clause — that is, whether the language in Perkins announced a constitutional rule— because we can readily conclude that no such rule was “clearly established” at the time the events underlying this action took place. Cf. Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).
“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Demoret v. Zegarelli, 451 F.3d 140, 148-49 (2d Cir.2006). The right in question, therefore, must “have been recognized in a particularized rather than a general sense.” Sira v. Morton, 380 F.3d 57, 81 (2d Cir.2004).
There is no authority recognizing the particularized right ostensibly violated here — i.e., the right to notice, at the time of a warrantless search, of that search and *599the items seized. The language in Perkins relied on by the district court — which Justice Thomas characterized as “dicta” in his concurring opinion, Perkins, 525 U.S. at 246, 119 S.Ct. 678 (Thomas, concurring) — applied only to seizures of property “pursuant to a warrant” id. at 240, 119 S.Ct. 678, not to warrantless searches such as the one conducted here. Moreover, the language in Perkins made no reference to when such notice must be provided, a critical factor in a case such as this one where Moore was indisputably notified at some point-ostensibly before his successful suppression motion — of the search and the items seized.
The District Court therefore erred when it stated that it was “well-settled” on the facts of this case “that such notice was required.” J.A. 322. Accordingly, defendants are entitled to judgment as a matter of law, and their motion for summary judgment should be granted.
CONCLUSION
For the foregoing reasons, the April 18, 2008 order of the District Court is REVERSED to the extent that it denied defendants’ motion for summary judgment. Judgment shall enter for defendants.
. The District Court also on April 18, 2008 granted defendants' motion for summary judgment with respect to all of plaintiff’s remaining claims. That portion of the District Court's order is not appealed.
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SUMMARY ORDER
Plaintiff-appellant Kim Carl (“plaintiff’ or “Carl”) appeals from a January 14, 2009 judgment of the District Court, which granted the motion of defendants The City of Yonkers (“the City”) and The City of Yonkers Police Department (“the Department”) for summary judgment, and the motion of seven individual officer-defendants (“the officer defendants”) to dismiss for lack of timely service. Plaintiff filed the underlying action in September 2004, asserting claims against the City, the Department, and the officer defendants for false arrest, the use of excessive force, and retaliation for filing an earlier lawsuit, which arose from plaintiffs arrest on September 6, 2001. We assume the parties’ familiarity with the remaining factual and procedural history of the case.
On appeal, plaintiff primarily argues the following points: (1) that the docket entry for a reply affidavit filed on behalf of the City and the Department misled his counsel into thinking that the officer defendants had made an appearance in the case; (2) that the “court rules” required that he be notified that he had failed to properly serve the officer defendants; and (3) that the District Court erred in not allowing him an extension of time for proper service of his complaint.1 We consider each argument in turn.
With respect to plaintiffs first argument, we note that he did not raise this argument before the District Court. Accordingly, we do not consider it here. See, *601e.g., Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994) (stating that there is a “well-established general rule that an appellate court will not consider an issue raised for the first time on appeal”).
Turning to plaintiffs second argument, we can find no rules that would apply in this case that require that a plaintiff be notified of failure to properly serve defendants. As the District Court stated, “[njothing in the Federal Rules of Civil Procedure ... requires that an order be entered to remind a plaintiff or his attorney that particular defendants have not been served or have not responded to the complaint.” Carl v. City of Yonkers, No. 04-cv-7031, 2008 WL 5272722, at *7 n. 9 (S.D.N.Y. Dec.18, 2008). Accordingly, we find this argument to be without merit.
Finally, we address what appears to be plaintiffs main argument — that the District Court erred in not allowing him an extension of time to properly serve his complaint. Here, we note, as the District Court did, that “the docket for the ease does not reflect the filing of proof of service on any of the individual defendants. Plaintiff provide[d] no affidavit or other evidence that any defendant was properly served.” Id. at *4. Furthermore, as the District Court noted, plaintiff does not “tender any reason for the failure to serve these defendants that could remotely serve as ‘good cause’ for the failure to serve them for nearly three years after the complaint ivas filed,” and plaintiff did not even ask the District Court for an extension of time to serve the defendants. Id. at *5 (emphasis added). Accordingly, we conclude that the District Court properly granted the motion of the individual officer defendants for dismissal for lack of timely service.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
. Plaintiff also purports to argue that the District Court did not “properly consider[] the question of jurisdiction in the proceedings." Appellant's Br. 2. However, plaintiff's elaboration of his argument appears to be a recitation of his other arguments. See id. at 7. Accordingly, we do not address this argument separately.
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SUMMARY ORDER
Plaintiffs-appellants Marge, Stephen, and Kalle Snyder (collectively “plaintiffs” or “the Snyders”), proceeding pro se, appeal from six separate decisions and orders of the District Court in their action alleging violations of, inter alia, the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”). Specifically, plaintiffs appeal from the following orders: (1) the July 2002 order granting in part and denying in part defendants’ motions to dismiss; (2) the August 2004 order granting in part and denying in part defendants’ motions for summary judgment; (3) the September 2004 order denying the Snyders’ motion for revision of the District Court’s July 2002 order; (4) the September 2005 order denying plaintiffs’ motion for reconsideration of the District Court’s August 2004 order; (5) the March 2007 order dismissing the case in its entirety for failure to prosecute and comply with prior orders of the court; and (6) the August 2007 order denying plaintiffs’ motion for reconsideration of the District Court’s March 2007 order.
On appeal, plaintiffs argue as follows: (1) the District Court “abused its discretion” in dismissing their case; (2) the District Court erred in denying their motion for reconsideration; (3) the District Court erred when it dismissed the complaint *603based on claims not addressed in defendants’ motions; (4) the District Court erred in concluding that the Court lacked personal jurisdiction over the individual school district defendants; (5) the defendants’ evidence contradicted their summary judgment motions; (6) the District Court erred in denying plaintiffs’ July 2002 motion to revise; (7) the District Court erred in dismissing the remaining claims for failure to prosecute.2 We assume the parties’ familiarity with the facts and procedural history of this case.
We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). We review an order granting summary judgment de novo, “drawing all factual inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c).
Here, an independent review of the record and relevant case law reveals that the District Court did not err in granting in part the defendants’ motions to dismiss and for summary judgment and denying Snyders’ motions for revision and reconsideration of those orders. Accordingly, we affirm the July 2002, August 2004, September 2004, and September 2005 orders for substantially the same reasons stated by the District Court in its thorough and well-reasoned opinions and orders.
As for the March 2007 order dismissing the complaint with prejudice for failure to prosecute, we conclude that the District Court erred in dismissing the remaining claims against the school district regarding the 1996-1997 school year.3 Rule 41(b) of the Federal Rules of Civil Procedure permits a district court to dismiss an action when a plaintiff fails to prosecute or to comply with a court order. Fed.R.Civ.P. 41(b). We review a district court’s dismissal of a complaint for failure to prosecute for an “abuse of discretion.” See, e.g., Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir.2008); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.*6042008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions .... ” (internal alteration, citations, and quotation marks omitted)). We are mindful, however, that dismissal of a complaint under Rule 41(b) is a “harsh remedy” that should “be utilized only in extreme situations,” especially when the plaintiff is a pro se litigant. Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir.1993).
The propriety of a Rule 41(b) dismissal depends on the balancing of the following factors, none of which is dispositive: (1) the duration of the plaintiffs’ failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court’s interest in managing its docket with the plaintiffs interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004).
After taking all factors into account, we conclude that the District Court dismissed this complaint prematurely. Most importantly, the first factor counsels against dismissal in this case. Here the District Court dismissed the remaining claims against the school district a mere four days after plaintiffs failed to meet a deadline. This is not significant, especially for a pro se litigant. Although plaintiffs were on notice that further delays could result in a dismissal, there is no evidence that the third, fourth, or fifth factors favor dismissal in this case. Therefore we conclude that dismissal for failure to prosecute was inappropriate.
CONCLUSION
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED in part (with respect to the July 2002, August 2004, September 2004, and September 2005 orders), VACATED in part (with respect to the March 2007 order), and the cause is REMANDED to the District Court for further proceedings. In light of our disposition, we DISMISS as moot the Snyders’ appeal from the District Court’s August 2007 denial of their motion for reconsideration.
. We construe plaintiffs' arguments liberally, in light of our duty to read pro se submissions "to raise the strongest arguments they suggest,” Bertin v. United States, 478 F.3d 489, 491 (2d Cir.2007) (internal quotation marks omitted).
. The claims that remained following the District Court’s August 2004 order — and therefore the claims that will return to the District Court on remand — were as follows: (1) plaintiffs' claims against the school district under the IDEA pertaining to the 1996-1997 school year alleging that the school district failed to promptly schedule an impartial hearing upon plaintiffs' request (Am.CompW 175), failed to hold a Committee on Special Education ("CSE”) meeting in a timely manner (Am. ComplJ 174), and denied plaintiffs access to Kalie’s educational records (Am. ComplA210); (2) plaintiffs' claims against the school district pertaining to the 1996-1997 school year under § 504 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. § 794) and the Americans with Disabilities Act (codified at 42 U.S.C. § 12101 et seq.) ("ADA”) alleging that the school district failed to promptly schedule an impartial hearing (Am.Compl.H ¶ 203, 208) and denied plaintiffs access to Kalle’s educational records (Am. Compl.H ¶ 205, 208); and (3) plaintiffs' claims against the school district pertaining to the 1996-1997 school year for damages under 42 U.S.C. § 1983 for violations of § 504 of the Rehabilitation Act of 1973 and the ADA (Am. CompU 222).
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SUMMARY ORDER
Plaintiff-appellant KLA (“plaintiff’), an incompetent adult, by her parents and next friends B.L. and R.A., who are proceeding pro se, appeals the February 20, 2008 judgment of the District Court denying KLA’s motion to reverse the decision of an administrative hearing officer in her action alleging violations of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We assume the parties familiarity with the factual and procedural history of the case.
Although litigants in federal court have a statutory right to act as their own counsel, 28 U.S.C. § 1654, the statute does not permit “unlicensed laymen to repre*606sent anyone other than themselves.” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.2007) (internal quotation marks omitted). That prohibition extends to non-lawyer parents seeking to represent their children, Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284-85 (2d Cir.2005); Cheung v. Youth Orchestra Found, of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990), and the representation of incompetent adults, Berrios v. N.Y. City Hous. Auth., 564 F.3d 130, 133-34 (2d Cir.2009).
Although parents have “independent, enforceable rights” under the IDEA, Winkelman ex rel. Winkelman v. Parma City Sch. Dist, 550 U.S. 516, 533, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007), the complaint in this action names KLA as the sole petitioner and asserts no claims on behalf of her parents. Accordingly, without expressing any opinion on the merits of KLA’s claims, we will defer consideration of the appeal for 45 days pending the possible appearance of counsel to represent B.L. and R.A. as next friends of KLA. See Tindall, 414 F.3d at 286 (deferring decision for 45 days pending an appearance of counsel). If counsel appears, the appeal will proceed with briefing and argument before a new panel. If counsel does not so appear, the Clerk is directed to enter an order dismissing the appeal for want of such counsel.
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SUMMARY ORDER
Plaintiff-Appellant Kevin Redd, pro se and incarcerated, appeals from the judgment of the United States District Court for the Northern District of New York (Kahn, J.), dismissing his complaint for failure to effectuate service and denying his motion to compel discovery. We assume the parties’ familiarity with the facts and procedural history.
We review dismissals for failure to prosecute and failure to serve process for abuse of discretion. See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir.2002); Palmieri v. Defaria, 88 F.3d 136, 140 (2d Cir.1996). The record demonstrates that Appellant failed to comply with Rule 4(m)’s 120-day service requirement. The district court’s Order to Show Cause provided Appellant with notice that it was considering dismissal for failure to serve the Appellee. In response, Appellant filed an affidavit asserting that, because he was incarcerated, he had attempted to determine Appellee’s location by contacting Department of Correctional Services (“DOCS”) on a number of occasions. Athough the fact of incarceration entitles a plaintiff to rely on the United States Marshal’s Service to effectuate service, the plaintiff must provide the information necessary for the Marshal to serve the defendant. Cf. Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir.1986). However, Appellant was unable to provide the requisite information for the Marshal’s office to locate Appellee.
Moreover, in support of his assertion that he made repeated efforts to find Appellee’s location, Appellant provided only one letter in which DOCS indicated that it was unable to locate a “Mr. Phillips.” There is no indication that, between July 2005 and February 2007, Appellant made any other effort to locate Appellee. Appellant’s second request to DOCS to locate Appellee came in June 2007. The district court allowed Appellant additional time to effectuate service and did not dismiss the case until six months after Appellant submitted his affidavit and three months after his last request to DOCS. Yet Appellant was still unable to provide an address for Appellee. Mindful of the limits on a district court’s discretion to *608dismiss a complaint under Rule 41(b), see Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir.2004), we find that there was no abuse of discretion in the district court’s dismissal of Appellant’s complaint or denial of Appellant’s motion to compel.
We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
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*609SUMMARY ORDER
Plaintiff Deiulemar Shipping SPA appeals from the district court’s January 20, 2009 judgment and order vacating the ex parte Process of Maritime Attachment and Garnishment that it obtained on December 29, 2008. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
The district court’s decision to vacate the Process of Maritime Attachment and Garnishment is reviewed for abuse of discretion, and its underlying factual findings are subject to dear-error review. See Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 439 (2d Cir.2006). The legal standards governing whether a maritime defendant may be “found within the district” under Admiralty Rule B are not in dispute. See STX Panocean (UK) Co. v. Glory Wealth Shipping Pte Ltd., 560 F.3d 127, 130-31 (2d Cir.2009) (per curiam).
Applying these standards, the district court found that Defendant conducts its business in the Southern District of New York at a Manhattan office that is jointly maintained with its agent, that the employees who carry out Defendant’s business activities are directors and employees of Defendant’s agent, that these employees can all be found at the office, and that Defendant was amenable to service of process at the office through its agent and its employees. Those findings were supported by the recoi’d and are not clearly erroneous. Based on those factual predicates, the district court did not abuse its discretion in vacating the Process of Maritime Attachment and Garnishment pursuant to Admiralty Rule E(4)(f) and denying further discovery regarding the issue. The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Qiu Fang Jiang, a native and citizen of the People’s Republic of China, seeks review of an October 21, 2008 order of the BIA, affirming the October 16, 2007 decision of Immigration Judge (“IJ”) Noel Anne Ferris, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qiu Fang Jiang, No. A076 506 234 (B.I.A. Oct. 21, 2008), aff'g No. A076 506 234 (Immig. Ct. N.Y. City Oct. 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (per curiam). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The IJ reasonably found that Jiang was unresponsive throughout her testimony. Because this Court affords particular deference to such an assessment of demeanor, we defer to this finding. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). The agency’s adverse credibility determination was further supported by various discrepancies in the record. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006) (per curiam) (stating that an IJ may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence). While Jiang testified that she was forced to undergo an abortion in China, her medical records from 2003 indicate that she told medical personnel in the United States that she had a miscarriage, *611and her medical records from 2004 indicate that she advised a dentist that she had never been pregnant before. See Surinder Singh v. BIA, 438 F.3d 145, 148 (2d Cir.2006) (per curiam) (holding that an omission from corroborating evidence in the record can form the proper basis for an adverse credibility determination). When confronted with the discrepancy, Jiang stated that she told a nurse in 2003 that she was forced to undergo an abortion but that she could not verify what was written in her medical records because she did not read English. As to the 2004 medical records, she claimed that no one asked her whether she had previously been pregnant. Even if plausible, the IJ reasonably declined to credit these explanations. See Majidi, 430 F.3d at 80-81.
Further, although Jiang argues that the IJ erred in not giving more weight to the abortion certificate that she submitted, we have previously concluded that the agency may rely on the submission of a so-called “abortion certificate” — which, according to the country reports, is either a fabricated document or proof of a voluntary abortion — in making an adverse credibility determination. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir.2007); Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006). Ultimately, because the agency’s adverse credibility determination was “based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” we will not disturb See Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir.2007) (per curiam).1
We also find no error in the agency’s analysis of Jiang’s claim regarding her fear of future persecution based on the birth of her two children. While the IJ found that by sending her children to live in China, Jiang undermined the credibility of her purported fear, the BIA does not appear to have adopted that finding. Rather, the BIA concluded that the background evidence submitted by Jiang did not sufficiently demonstrate that her fear of persecution was objectively reasonable.
We have previously reviewed the agency’s consideration of evidence similar to that which Jiang presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008).
Because substantial evidence supports the agency’s adverse credibility determination and because Jiang otherwise failed to meet her burden of proof, the agency properly denied her application for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Accordingly, we need not reach the agency’s discretionary denial of asylum.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. While Jiang asserts that the IJ conducted an unfair and hostile proceeding, we agree with the BIA that the record does not support that argument. Cf. Guo-Le Huang v. Gonzales, 453 F.3d 142, 148 (2d Cir.2006).
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SUMMARY ORDER
Anthony Wright appeals from the decision and order, dated August 21, 2007, of the United States District Court for the Northern District of New York (Hurd, J.), which denied Wright’s petition, brought pursuant to 28 U.S.C. Section 2254, for the issuance of a writ of habeas corpus. Judge Hurd’s decision was based upon the report and recommendation, dated March 16, 2007, of United States Magistrate Judge George H. Lowe, which recom*613mended that Wright’s request for relief be denied. See Wright v. Smith, 2007 WL 2412248 (N.D.N.Y. Aug.21, 2007). The facts are fully set forth in Magistrate Judge Lowe’s comprehensive report and recommendation. We assume the parties’ familiarity with the facts of this case, its procedural history, and the issues presented on appeal.
We review the district court’s denial of habeas relief de novo. Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006).
A. The Conflict Issue. Wright’s briefs are replete with assertions that Martuseello’s prior representation of Hall severely prejudiced him at trial because the prior attorney-client relationship precluded the conduct of an aggressive, or at least an adequate, cross-examination of Hall. Thus, we are told that “Martuscello backed away from attacking his former client,” that Martuscello conducted “a lackluster cross-examination,” even one that “proved to be catastrophic,” presumably because it was “timid, unfocused, and anemic.”
In order to demonstrate that he suffered cognizable injury as a result of Martuscel-lo’s prior representation of Hill, Wright must show that “some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” U.S. v. Schwarz, 283 F.3d 76, 92 (2d Cir.2002) (internal quotation marks omitted). Beyond conclusory speculation, Wright utterly fails to do this. Martuscello conducted an effective, uninhibited cross-examination, which elicited the fact of Hill’s numerous prior convictions and focused on the benefits he hoped to receive from testifying against Wright. Moreover, Harris’s counsel, who was not conflicted, pursued a similar strategy. In sum, the record does not support the contention that counsel failed to represent Wright to the best of his ability because of any prior representation.
B. The Tainted Juror Issue. Wright asserts that his right under the Sixth Amendment to be present during all stages of his trial was violated because he was not present at the trial judge’s examination of Lamb. We find, however, that Magistrate Judge Lowe’s holding that the trial judge’s examination of Lamb was the sort of ancillary proceeding at which Wright’s presence was not constitutionally required is plainly correct. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). Wright makes no serious argument to the contrary, but rather asserts that in this specific instance, because of his presence during Lamb’s second encounter with his co-defendant’s wife, his presence at the examination of Lamb was required because it “would have been particularly useful” if “[h]e could have told his counsel if [Lamb’s] recounting of the incident was untruthful, incomplete, or otherwise inaccurate or misleading.” However, neither in the trial court nor subsequently has Wright made any demonstration that any aspect of Lamb’s recounting of the second encounter with Harris’s wife was in any way untruthful or incomplete. Furthermore, Wright forfeited this federal constitutional claim because in state court he raised only a question of New York statutory law, not a federal constitutional claim.
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SUMMARY ORDER
Reginald Bell appeals from an order of the United States District Court for the Southern District of New York (Berman, J.), which denied Bell’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
“The determination of whether an original sentence was ‘based on a sentencing range that was subsequently lowered by the Sentencing Commission,’ 18 U.S.C. § 3582(c)(2), is a matter of statutory interpretation and is thus reviewed de novo.” *615United States v. Martinez, 572 F.3d 82, 84 (2d Cir.2009) (per curiam) (citing United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009)).
Bell was convicted in 2003, following a plea of guilty to one count of conspiracy to distribute and possess with intent to distribute “crack” cocaine, in violation of 21 U.S.C. § 846. At Bell’s August 13, 2003 sentencing hearing, the district court sentenced Bell as a career offender under § 4B1.1 of the Sentencing Guidelines (the “Guidelines”) and imposed a sentence of 151 months’ imprisonment, the lowest sentence within the applicable Guidelines range.
Effective November 1, 2007, Amendment 706 to the Guidelines reduced offense levels under § 2D1.1 — applicable to crack cocaine offenses — by two levels. In March 2008, Amendment 713 to the Guidelines made this reduction retroactive. On May 14, 2008, Bell moved for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on these amendments. Following written submissions and argument, on July 16, 2008, the district court denied Bell’s motion.
Although Bell was convicted of a violation of 21 U.S.C. § 846, his sentence was based on the career offender guideline (§ 4B1.1), not on the crack cocaine guideline (§ 2D1.1). “[A] defendant convicted of crack cocaine offenses but sentenced as a career offender under U.S.S.G. § 4B1.1 is not eligible to be resentenced under the amendments to the crack cocaine guidelines.” Martinez, 572 F.3d at 85. The district court properly found that Bell is not eligible for a sentence reduction because his sentence under § 4B1.1 was not “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Bell argues that he is entitled to be resentenced pursuant to 18 U.S.C. § 3553(a), without reference to 18 U.S.C. § 3582(c)(2). This argument is without merit. First, the sentencing factors enumerated in § 3553(a) become relevant only after the court determines that a defendant is eligible for resentencing pursuant to 18 U.S.C. § 3582(c)(2), and Bell is not eligible for resentencing pursuant to § 3582(c). Second, the district court did revisit the § 3553(a) sentencing factors at the July 16, 2008 argument and determined that Bell’s sentence “remained appropriate in light of those factors.” App. G at 6.
Bell challenges a 1976 state court conviction. However, a “defendant may not collaterally attack prior state court felony convictions during a federal sentencing hearing unless the defendant was deprived of counsel in the state court proceedings,” United States v. Jones, 27 F.3d 50, 51-52 (2d Cir.1994) (per cmiam), something that Bell does not contend occurred here.
Accordingly, we hereby AFFIRM the order of the district court.
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SUMMARY ORDER
Petition for review of an order of the Board of Immigration Appeals summarily affirming a decision of an Immigration Judge, which denied petitioner’s application for cancellation of removal.
Petitioner Jose Alberto Galan, a native and citizen of the Dominican Republic, seeks review of the decision of the Board of Immigration Appeals (“BIA”) summarily affirming a decision of an Immigration Judge (“IJ”), which denied Galan’s application for cancellation of removal pursuant to section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l).** In re Jose Alberto Galan, No. A75 936 652 *617(B.I.A. Sept. 15, 2008), aff'g No. A75 936 652 (Immig. Ct. Hartford, CT Jan. 31, 2008). We assume the parties’ familiarity with the facts and procedural history of this case, and the issues presented by this petition.
We lack jurisdiction to review the determination of whether “exceptional and extremely unusual hardship” exists for the purpose of cancellation of removal pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). See Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.2008); De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006). The IJ denied Galan’s petition on the grounds that Galan had not demonstrated that his removal would result in the requisite exceptional and extremely unusual hardship to his United States citizen spouse. This is a discretionary decision that we have no jurisdiction to review.
Although section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restores this Court’s jurisdiction for the review of “constitutional claims or questions of law,” Galan fails to raise any such jurisdiction-restoring issues in his petition for review. The thrust of Galan’s argument is that the IJ ignored “the report of Dr. Holmes [and] the credible and compelling testimony presented which document the extreme difficulties [Galan’s] wife has been experiencing in efforts to cope with the loss of her son.” Petitioner’s Br. at 17. In particular, Galan argues that the IJ deprived him of due process of law and a fair hearing because the IJ “failed to consider or ignored relevant and probative evidence” regarding Galan’s wife’s emotional and psychological state following the death of one of her sons in an automobile accident. Id. at 18-19.
However, the IJ described and considered Dr. Holmes’s report and the testimony relating to Galan’s wife’s emotional and psychological state. The IJ took note of the “emotional hardship” claimed by Ga-lan’s wife and “the emotional impacts of the separation” in light of “the horrible tragedy that happened to this family with the death of the child of [Galan’s] wife.” Galan “cannot use the rhetoric of a ‘constitutional claim’ or ‘question of law’ to disguise what is essentially a quarrel about fact-finding or the exercise of discretion.” Barco-Sandoval, 516 F.3d at 39 (internal quotation marks, citation, and modification omitted).
For the foregoing xuasons, the petition for review of the order of the BIA is hereby DISMISSED.
In order to demonstrate eligibility for cancellation of removal, a petitioner must show that he: "(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title ...; and (D) establishes . that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1). Only the fourth requirement is at issue in this case.
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SUMMARY ORDER
Appellant Emil D. Anghel, pro se, appeals the district court’s dismissal of his complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(h)(3), and moves to reject the Defendant-Appel-lee’s brief as improperly filed. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s dismissal of a complaint for lack of subject matter jurisdiction. See Scherer v. Equitable Life Assurance Soc’y, 347 F.3d 394, 397 (2d Cir.2003). However, because An-ghel does not challenge the district court’s dismissal of his case for lack of jurisdiction, he has abandoned the only justiciable issue now before us, warranting the dismissal of his appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding that when a litigant, even if proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned).1
For the foregoing reasons, the appeal is hereby DISMISSED, and Anghel’s motion to reject the Defendanb-Appellee’s brief is DENIED as moot.
. We note that the district court’s dismissal of Anghel's claims for lack of subject matter jurisdiction in no way precludes him from pursuing his claims in state court. This fact should not be construed, however, as any comment by us as to the merits of Anghel's claims.
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SUMMARY ORDER
David Garcia appeals from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, which challenged his New York state murder conviction, see N.Y. Penal Law § 125.25(1), on grounds that, inter alia, he was denied his Sixth Amendment right to effective assistance of counsel. The district court granted Garcia a certificate of appealability on the issue of whether counsel was ineffective in failing to secure a pre-trial suppression hearing as to the probable cause supporting Garcia’s arrest. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Standard of Review
While we review the denial of a habeas corpus petition de novo, see Jones v. West, 555 F.3d 90, 95 (2d Cir.2009), we will not vacate a state conviction unless “the challenged state court decision was either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ ” Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir.2009) (quoting 28 U.S.C. § 2254(d)); see also Waddington v. Sarausad, — U.S. -, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009) (reiterating that “state court’s application of governing federal law ... must be shown to be not only erroneous, but objectively unreasonable” to support § 2254 relief (internal quotation marks omitted)).
The standard for ineffective assistance of counsel is well established: a prisoner must show both (1) that counsel’s performance was objectively unreasonable; and (2) that, but for counsel’s unprofessional errors, the result of the proceedings would *620have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Garcia’s ineffective assistance claim is based on an alleged failure to raise a Fourth Amendment issue, “he must also show ‘that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.’ ” Mosby v. Senkowski, 470 F.3d 515, 519 (2d Cir.2006) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). Because Garcia cannot demonstrate the merits of his Fourth Amendment claim, he necessarily cannot satisfy Strickland.
2. Garcia’s Ineffective Assistance Claim
Ample probable cause supported Garcia’s arrest for the stabbing murder of his wheelchair-bound victim. Specifically, at the time of Garcia’s arrest, police knew that the doorman of the victim’s building had identified Garcia from a photo spread as looking like the man who had accompanied the victim to his apartment shortly before his death. Further, a suspect in an unrelated robbery told police that Garcia had admitted killing (1) a wheelchair-bound man (2) on Horatio Street — details that corresponded precisely to the charged murder. Finally, police knew that, in an unrelated encounter after the murder at issue, Garcia had given a false name to a police officer and run away from him. Another person on the scene identified the fleeing man as David Garcia and observed that he was wanted for murder. Taken together, these facts certainly provided a “reasonable ground” for police to think Garcia had committed the charged murder. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (observing that “substance” of all definitions of probable cause is “a reasonable ground for belief of guilt” (internal quotation marks omitted)).
Garcia’s attacks on the credibility of the inculpating witnesses are unavailing. As the Supreme Court has emphasized, probable cause does not demand “hard certainties” but only a “fair probability.” Illinois v. Gates, 462 U.S. 213, 231, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In assessing probabilities, a judicial officer must look to “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Id. at 231, 103 S.Ct. 2317 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); accord Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007). In this case, the state court expressly rejected Garcia’s argument that the doorman identification was suggested by police misconduct, making it entirely reasonable and prudent for police to rely on the identification. The same conclusion applies to the robbery suspect’s disclosure of Garcia’s confession. This person was no anonymous tipster, but a named individual in police custody. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (observing that known informant, unlike anonymous tipster, “can be held responsible if her allegations turn out to be fabricated”); accord United States v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004). Moreover, the confession attributed to Garcia contained two important corroborating details: the street where the murder occurred and the victim’s reliance on a wheelchair. See Illinois v. Gates, 462 U.S. at 242, 103 S.Ct. 2317 (stating that officer may rely on informant’s tip “so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge” (internal quotation marks omitted)). On this record, Garcia cannot demonstrate that it was unreasonable for *621police to rely on the disclosed confession in making a probable cause determination. Cf. Dunaway v. New York, 442 U.S. 200, 203 & n. 1, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (noting lack of probable cause where jailhouse informant heard second hand that “someone named ‘Irving’ ” was involved in crime at issue).
In sum, because the facts plainly establish probable cause to arrest Garcia for murder,1 petitioner cannot satisfy the prejudice prong of Strickland analysis, and we cannot conclude that the state courts unreasonably applied clearly established federal law in rejecting his Sixth Amendment challenge to his conviction. See Mosby v. Senkowski, 470 F.3d at 519.
3. Conchision
We have considered all of petitioner’s other arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Because we conclude that police had probable cause to arrest Garcia lor murder, we do not decide whether there was probable cause to arrest him for car theft. That police told Garcia they were arresting him for car theft does not affect our analysis. See Devenpeck v. Alford, 543 U.S. 146, 155, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required."); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006) (“Lljt is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.”).
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SUMMARY ORDER
Appellants William M. Greene and Karen M. Greene, pro se, appeal from the district court’s (1) grant of the Government’s motion to dismiss their complaint, “submitted as a qui tom action,” against the Internal Revenue Service (“IRS”), and (2) denial of their amended motion for preliminary injunctive relief, which sought to enjoin the IRS from assessing or collecting their federal income taxes, or otherwise enforcing the provisions of the Internal Revenue Code against them. We assume the parties’ familiarity with the *626underlying facts, the procedural history of the case, and the issues on appeal.
In reviewing a district court’s dismissal of a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court reviews factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. See Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008).
On appeal, the Greenes do not challenge the district court’s determination that it lacked subject matter jurisdiction over the suit based on sovereign immunity; the Anti-Injunction Act; 26 U.S.C. § 7421; and the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201; and, accordingly, this Court deems any such argument waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”); LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995) (noting that the Court “need not manufacture claims of error for an appellant proceeding pro se ”). The district court’s unchallenged determination that it lacked subject matter jurisdiction over the complaint is a sufficient basis upon which to affirm its judgment. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997) (“It is beyond cavil that an appellate court may affirm the judgment of the distinct court on any ground appearing in the record.”).
The Greenes’ primary contention on appeal is that the district court erred in determining that the IRS is a federal agency and that the United States was therefore the proper defendant. Insofar as this determination can be characterized as a “factual finding,” the district court committed no clear error in finding that the IRS is a federal agency. See Morrison, 547 F.3d at 170. The district court properly treated the Greenes’ action seeking to enjoin the IRS from enforcing the provisions of the Internal Revenue Code against them as an action against the United States, given that “[t]he general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (internal quotation marks and citations omitted).
Lastly, to the extent that the Greenes’ brief can be liberally construed as sufficiently challenging the district court’s denial of their amended motion for a preliminary injunction, the court did not abuse its discretion in denying the motion. See S.E.C. v. Dorozhko, 574 F.3d 42, 45 (2d Cir.2009) (“We review the grant or denial of a preliminary injunction for abuse of discretion.”).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
In this ERISA appeal, the parties cross-appeal from two decisions of the district court. Plaintiffs-appellants argue that the district court erred in:
1) concluding that it lacked the authority to provide complete relief for defendants-appellees’ ERISA violations;
2) failing to require prior benefit provisions to be reinstated until proper notice of reductions was provided;
3) failing to require CIGNA to pay comparable benefits to affected participants until proper notice was provided; and
4) ruling that CIGNA did not need to disclose the amendment to the “Rehire Rule.”
Defendants-appellees cross-appeal, arguing that the district court erred by awarding plaintiffs-appellants more pension benefits than they were told they would receive under the pension plan. They also contend that the district court properly denied plaintiffs-appellants’ request for additional annual benefit accruals.
We affirm the judgment of the district court for substantially the reasons stated in Judge Kravitz’s two well-reasoned and scholarly opinions. See Amara v. CIGNA Corp., 559 F.Supp.2d 192 (D.Conn.2008); Amara v. Cigna Corp., 534 F.Supp.2d 288 (D.Conn.2008).
Based on the foregoing reasons, we hereby AFFIRM the judgment of the district court.
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SUMMARY ORDER
Defendants-Appellants New Hampshire Insurance Company, American Home Assurance Company, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania (collectively, “AIG”) appeal from a judgment entered in the Southern District of New York (Jed S. Rakoff, Judge) after a jury trial holding AIG liable for $34,373,170, including $5,750,000 in punitive damages, on claims of fraudulent inducement with respect to two reinsurance facilities, and from the denial of AIG’s post-trial motions for relief under Federal Rules of Civil Procedure 50(b) and 59(e).
AIG argues that (1) the claims brought by Plaintiff-Appellee AXA Versicherung AG (“AXA”) should have been arbitrated; (2) AXA’s claims should have been tried to the bench not the jury; (3) AXA’s claims are barred by the statute of limitations; and (4) punitive damages were improperly assessed and insufficiently supported. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal. For the reasons that follow, we remand this case to the District Court for further proceedings consistent with this order.
With respect to the first issue on appeal, AIG contends that AXA’s claims should have been arbitrated because they sound in contract. In response, AXA, though not disputing that contract claims are subject to arbitration under the parties’ agreements, argues that its claims sound in fraud and thus were properly litigated in the District Court. AXA further argues that, in any event, AIG waived its right to arbitration.
New York law distinguishes between “a claim based on fraudulent inducement of a contract” and a breach of contract claim. Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 184 (2d Cir. 2007). Merely falsely indicating an intent to perform under a contract “is not sufficient to support a claim of fraud under New York law.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir.1996); see also Guilbert v. Gardner, 480 F.3d 140, 148 (2d Cir.2007) (misrepresentations that pension plan was “ ‘taken care of when, in fact, defendants knew this to be false” were merely duplica-tive of contract claim); TVT Records v. Island Def Jam Music Group, 412 F.3d 82, 90 (2d Cir.2005) (“[Ujnder New York law, the failure to disclose an intention to breach is not actionable as a fraudulent concealment.”), cert. derded, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006); Manas v. VMS Assocs., LLC, 53 A.D.3d 451, 453-54, 863 N.Y.S.2d 4, 7 (1st Dep’t 2008). “General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support [a fraud] claim.” N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763, 769 (1995) (holding that allegations of breach of contract “and any covenants implied” do not sound in fraud).
To maintain a claim of fraud in such a situation, a plaintiff must either: (i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages. *630Bridgestone/Firestone, 98 F.3d at 20 (citations omitted); see, e.g., Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 42, 732 N.Y.S.2d 402, 403 (1st Dep’t 2001). While a misrepresentation that is collateral to the contract may support a fraud in the inducement claim distinct from a breach of contract claim, see Wall v. CSX Transp., Inc., 471 F.3d 410, 416-17 (2d Cir.2006), “the non-disclosure of collateral aims,” such as “allegations about defendants’ states of minds used to support the contention that they intended to breach the contract (i.e. the motives for the breach)[,] ... is insufficiently distinct from the breach of contract claim,” TVT Records, 412 F.3d at 91.
AIG argues that AXA’s fraudulent inducement claims sound in contract at least insofar as they rely on allegations that: (a) AIG promised that the reinsurance facilities would be operated on a facultative obligatory basis, but treated them as purely facultative; (b) AIG selected certain policies to cede to the facilities instead of a cross-section of risks; and (c) AIG increased AXA’s share of risk beyond AXA’s original understanding. AIG contends that to the extent AXA claims AIG secretly intended to treat the facilities as faculta-tive rather than facultative obligatory, this simply reflects an undisclosed intention to breach, not a collateral misrepresentation. It makes the same argument with regard to AXA’s assertions that AIG intended to choose an improper selection of risks to cede to the facilities and to manipulate AXA’s percentage stake in the ceded risks. AIG further argues that whether it did such things in order to offload unprofitable business and eliminate its own exposure only suggests a motive for breaching the parties’ reinsurance agreements. On the other hand, AXA argues that AIG’s misrepresentations were collateral to the parties’ agreements and thus sufficiently distinct to support its claims of fraudulent inducement.
It is not clear, on the record before us, whether the District Court gave these arguments sufficient consideration. The basis for the stay of the arbitration commenced by AIG entered in March 2006 by then-Judge Mukasey is not entirely clear. Although the District Court denied AIG’s in limine motion in January 2008 on the ground that this issue had already been decided, the District Court’s denial of summary judgment in July 2007 did not clearly address the parties’ arguments on this issue. See AXA Versicherung AG v. N.H. Ins. Co., No. 05 Civ. 10180, 2007 WL 2142302, 2007 U.S. Dist. LEXIS 54295 (S.D.N.Y. July 23, 2007). The District Court referred to the distinction between fraud and contract claims in analyzing AIG’s punitive damages arguments, both at summary judgment and post-trial, but the Court did not explain why AXA’s claims “did not involve a breach of contract.” See id., 2007 WL 2142302, at *2, 2007 U.S. Dist. LEXIS 54295, at *7-8; AXA Versicherung AG v. N.H. Ins. Co., No. 05 Civ. 10180, 2008 WL 1849312, at *2 & n. 1, 2008 U.S. Dist. LEXIS 33950, at *4-6 & n. 1 (S.D.N.Y. Apr. 22, 2008). Rather, the portions of the trial transcript it relied upon during the course of this discussion explain only that a rescission claim should be litigated before any arbitration of a contract counter-claim by AIG because if AXA were to win rescission, there would be nothing left to arbitrate. See Trial Tr. at 1472-75. Nor does the rest of the record, including the portions cited in AXA’s post-argument submission to us, establish why the District Court apparently rejected AIG’s argument that at least some of AXA’s claims were subject to arbitration.
We believe a remand is appropriate to allow the District Court, which is intimately familiar with the full scope of AXA’s evidence after presiding over the jury trial and issuing several rulings in this case, the *631opportunity to address in the first instance the extent to which AXA’s allegations sound in contract as opposed to fraud. Our consideration of AIG’s first argument on appeal will greatly benefit from a determination of this question.
Such a remand would be unnecessary if, as AXA contends, AIG waived its right to arbitration. “[A] party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party.... There is no bright-line rule, however, for determining when a party has waived its right to arbitration: the determination of waiver depends on the particular facts of each case.” In re Crysen/Montenay Energy Co., 226 F.3d 160, 162-63 (2d Cir.2000) (internal quotation marks omitted), cert. denied, 532 U.S. 920, 121 S.Ct. 1356, 149 L.Ed.2d 286 (2001). We have suggested several factors for con sideration, such “as (1) the time elapsed from commencement of litigation to the request for arbitration, (2) the amount of litigation (including any substantive motions and discovery), and (3) proof of prejudice.” Id. at 163 (internal quotation marks omitted). “The key to a waiver analysis is prejudice.” Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 105 (2d Cir.2002) (per curiam), cert. denied, 538 U.S. 922, 123 S.Ct. 1573, 155 L.Ed.2d 312 (2003). “We review de novo a district court’s decision regarding waiver of a party’s right to arbitrate, but we review the factual findings on which the district court relied for clear error.” Id. at 104.
In this case, AXA raised the possibility of waiver at summary judgment in response to AIG’s arbitration argument, but the District Court did not opine on it. In our view, the current record leaves unanswered several questions that may be critically relevant to a determination of whether AIG waived its right to arbitration. Thus, we also remand the case to the District Court for creation of a record and resolution of AXA’s waiver argument in the first instance.
A few factual clarifications in particular would facilitate consideration of the first and critical third waiver factors, the time elapsed and prejudice. For example, it would be helpful to learn whether AIG pressed its contract/fraud distinction when opposing Judge Mukasey’s stay of arbitration and whether the basis for the stay encompassed this issue. The answers to these questions would also affect AXA’s argument that AIG sat on its rights by failing to take an interlocutory appeal from that stay. In addition, the prejudice to AXA depends in part on the extent to which AIG obtained benefits here that would not have been available in arbitration, an inquiry that itself turns on the extent to which AXA’s claims are arbitra-ble and non-arbitrable. See, e.g., S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83-84 (2d Cir.1998), cert. dismissed, 528 U.S. 1058, 120 S.Ct. 629, 145 L.Ed.2d 506 (1999).
Finally, we note that resolution of these issues may very well affect consideration of the remainder of AIG’s arguments on appeal. Even if AIG is found to have waived its right to arbitration, a determination that AXA’s claims sound in contract to any extent would affect the analysis of whether they should have been tried to the bench instead of the jury, whether they are barred by the statute of limitations, and the propriety of punitive damages. At this point, however, we need not pursue these matters further.
Accordingly, we REMAND the case to the District Court for further proceedings consistent with this order. Under the procedure set forth in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), we direct that the mandate shall issue forthwith and that, after the district court’s *632decision, jurisdiction shall be returned to this Court upon a letter request from any party filed within 30 days of that decision. Upon such a restoration of jurisdiction, the matter is to be sent to this panel.
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SUMMARY ORDER
Defendant-appellant Daniel B. Karron was convicted of intentionally and knowingly misapplying funds under the care of *633a company receiving federal funds in violation of 18 U.S.C. § 666, after a jury trial ending on June 11, 2008. Defendant was sentenced principally to a custodial sentence of fifteen months, followed by three years of supervised release, and $125,000 in restitution. On October 27, 2008, Judge Patterson amended the judgement directing defendant to serve the sentence as follows: seven-and-a-half-months’ imprisonment, followed by seven-and-a-half months of home confinement. Defendant appeals that conviction. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Defendant argues that (1) the jury instructions were erroneous because they omitted an element of the crime — specifically, the jury was instructed to find that defendant “intentionally misapplied” funds but should have been instructed that an “intent to defraud” is an element of “misapplication” of funds, and (2) 18 U.S.C. § 666 is void for vagueness.
We review a claim of error in jury instructions de novo, see, e.g., United States v. Quattrone, 441 F.3d 153, 177 (2d Cir.2006), but reversal is only appropriate when the charge, viewed as a whole, “either failed to inform the jury adequately of the law or misled the jury about the correct legal rule,” United States v. Ford, 435 F.3d 204, 209-10 (2d Cir.2006). “To secure reversal based on a flawed jury instruction, a defendant must demonstrate both error and ensuing prejudice.” United States v. Quinones, 511 F.3d 289, 313 (2d Cir.2007). Defendant argues that the District Court erred by failing to instruct the jury that it needed to find that defendant acted with the specific intent to defraud or injure the government. Defendant further contends that the instructions given by the District Court prejudiced defendant because they precluded the argument that defendant’s misapplication of funds was intended to benefit the grant-recipient organization, a legitimate purpose.
In United States v. Urlacher, we defined the term “intentional misapplication” to include misuse of federal funds for “otherwise legitimate purposes.” 979 F.2d 935, 938 (2d Cir.1992). Urlacher’s holding has been followed uniformly by other courts that have considered the issue, including the First, Sixth, Seventh, and Tenth Circuits. See, e.g., United States v. Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir.2004); United States v. Frazier, 53 F.3d 1105, 1110-11 (10th Cir.1995). We are bound by Urlacher to conclude that the jury instructions were not erroneous. Nor was defendant prejudiced by the instructions because trial counsel was not precluded from presenting evidence or cross-examination showing that defendant did not intend to defraud the government or undermine the grant program, or that defendant acted with the purpose of benefiting the grant recipient.
Defendant asserts the void-for-vagueness argument for the first time on appeal. The issue is therefore waived, and reviewed only for plain error. Fed. R.Crim.P. 51, 52. In order to show plain error defendant must establish an error occurred that is “clear or obvious under current law” and that the error affected defendant’s “substantial rights.” United States v. Gonzalez, 110 F.3d 936, 945-46 (2d Cir.1997). We find no error under the clear law set forth in Urlacher.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
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SUMMARY ORDER
Appellant Frank Schwamborn, pro se and incarcerated, appeals the district court’s grant of the Defendants’ motions to dismiss his 42 U.S.C. §§ 1983 and 1985 complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim. Schwamborn also appeals the district court’s denial of his motion to amend his complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
*635We review de novo the district court’s dismissal of a complaint for lack of subject matter jurisdiction. Scherer v. Equitable Life Assurance Soc’y, 347 F.3d 394, 397 (2d Cir.2003). Similarly, we review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Finally, we review the denial of a motion for leave to amend a complaint for abuse of discretion. See Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.2008) (per curiam).
As to the district court’s subject matter jurisdiction rulings in favor of the federal defendants, we find no error and affirm substantially for the reasons set forth in the district court’s opinion. As to the federal and state defendants’ motions to dismiss for failure to state a claim, our review of Schwamborn’s complaint indicates that, even if read generously, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (noting that pro se complaints should be liberally construed), he has failed to plead the factual support required to sustain any of his claims. A complaint must contain sufficient factual content to allow the district court “to draw the reasonable inference that the defendant[s] [were] liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (a complaint must plead “enough facts to state a claim to relief that is plausible on its face”). Accordingly, the district court properly determined that Schwamborn failed to state a claim upon which relief could be granted, and we affirm the district court’s judgment on that basis.
Schwamborn’s argument that the district court erred by denying his motion to amend his complaint is unavailing, because he fails to present any evidence that this decision was an abuse of discretion. Although leave to amend a complaint, particularly one of a pro se litigant, should be liberally granted, see Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003), “where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.1999). Schwamborn’s proposed amended complaint merely restates the claims in his earlier complaint, without remedying its prior jurisdictional and factual inadequacies, and adds equally unsupported claims against new defendants. “Where ... there is no merit in the proposed amendments, leave to amend should be denied.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002) (quoting Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990)) (internal quotation marks and alterations omitted).
We have considered all of Schwamborn’s remaining claims of error and determined them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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*641SUMMARY ORDER
Plaintiff Joyce Garland-Sash, proceeding pro se, appealed from an October 22, 2007 judgment entered on consent against defendant David Lewis in the amount of $50 after the dismissal of the balance of her claims against Lewis and the remaining defendants. Following appointment of pro bono counsel by this court, Garland-Sash challenges the district court’s (1) limitation of the damages available against Lewis on plaintiffs Computer Fraud and Abuse Act (CFAA) claim, see 18 U.S.C. § 1030; and (2) jurisdictional dismissal of her potential Federal Tort Claims Act (FTCA) claim, see 28 U.S.C. § 2671 et seq. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Limitation of Damages Under 18 U.S.C. § 1030(g)
Garland-Sash, who is the wife of a prisoner at the Metropolitan Correctional Center (“MCC”), brought this action against Lewis, an employee of the MCC, under the CFAA, seeking compensatory and punitive damages for Lewis’s alleged intentional deletion of Garland-Sash’s name from a Bureau of Prisons computer file containing her husband’s authorized visitor record, with the consequence that she was not admitted when she came to visit her husband. The district court ruled that 18 U.S.C. § 1030(g) limits a plaintiff’s compensatory recovery to economic loss and precludes an award for her emotional injury and punitive damages. Garland-Sash’s claim of economic loss was limited to $50. Rather than contest her claim, Lewis consented to judgment in the amount of $50. Gariand-Sash then brought this appeal contending, in part, that the district court erred in ruling that only economic loss is compensable under § 1030(g). She asserts that the district court, in ruling that § 1030(g) allowed only economic damages, relied on decisional authority construing a superseded version of the statute.
Lewis, who is no longer employed by the Bureau of Prisons and whose whereabouts are unknown, has not appeared to defend the appeal. Because the appellee has defaulted in defending an appeal wherein it appears the appellant’s contentions have likely merit, we remand to the district court to reconsider whether the judgment should be vacated.
In ruling that the CFAA allows for compensation of only economic loss, the district court relied on opinions which construed an earlier version of § 1030(g), which indeed limited recovery to economic damages in most instances. See 18 U.S.C. § 1030(g) (1996) (“Damages for violations of any subsection other than subsection (a)(5)(A)(ii)(II)(bb) or (a)(5)(B)(ii)(II)(bb) [claims relating to medical records] are limited to economic damages.”); Letscher v. Swiss Bank Corp., No. 94 Civ. 8277, 1996 WL 183019, at *3 (S.D.N.Y. Apr.16, 1996) (construing the no-longer effective version of § 1030(g) and concluding that it “does not provide recovery for emotional distress”); see also In re DonbleClick Inc. Privacy Litig., 154 F.Supp.2d 497, 525 n. 33 (S.D.N.Y.2001) (citing Letscher in support of the proposition that “only economic losses are recoverable under § 1030(g)”). Prior to accrual of Garland-Sash’s claim, however, the statute was amended. The new version applicable to Garland-Sash’s claim provides for a civil action to obtain “compensatory damages.”1 18 U.S.C. *642§ 1030(g); see also Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. No. 107-56, § 814, 115 Stat. 272, 382-84 (amending 18 U.S.C. § 1030). The law generally construes the phrase “compensatory damages” to include damages for pain, suffering, and other emotional harms. See, e.g., Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n. 11, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (observing that pain and suffering are generally available as species of compensatory damages); Fort v. White, 530 F.2d 1113, 1116 (2d Cir.1976) (same); 1 JEROME H. NATES ET AL., DAMAGES IN TORT ACTIONS § 3.01 (2009) (“[Compensatory damages include economic injuries, such as medical expenses and lost wages, as well as noneconomic injuries, such as pain and suffering”).
Because it appears the district court’s ruling was based on case law construing the earlier, superseded version of the statute, and that the court might well reach a different result construing the amended statute, and because Lewis has defaulted on this appeal, we remand for the district court to consider whether it should vacate its judgment and reinstitute Garland-Sash’s claim for noneconomic, as well as for economic, loss.2
2. FTCA Exhaustion
Garland-Sash’s challenge to the district court’s dismissal of her potential FTCA claims3 invites us to reconsider established case law holding that the FTCA’s exhaustion requirement, see 28 U.S.C. § 2675(a), is “jurisdictional.” See, e.g., Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.2005); Keene Coup, v. United States, 700 F.2d 836, 841 (2d Cir.1983). We decline to do so here. While we recognize our authority to “reconsider a prior panel’s holding if, inter alia, an intervening Supreme Court decision ... casts doubt on our controlling precedent,” Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 145 (2d Cir.2006), no such doubt is present here. See, e.g., Rasul v. Myers, 563 F.3d 527, 528 n. 1 (D.C.Cir.2009) (stating that FTCA exhaustion requirement is jurisdictional); Lightfoot v. United States, 564 F.3d 625, 626-27 (3d Cir.2009) (same); Unus v. Kane, 565 F.3d 103, 114 n. 16 (4th Cir.2009) (same); In re Katrina Canal Breaches Litig., 345 Fed.Appx. 1, 4-5, 2009 WL 1868980, at *3 (5th Cir.2009) (same); Marley v. United States, 567 F.3d 1030, 1035-36 (9th Cir.2009) (same); Dolan v. United States, 514 F.3d 587, 593 (6th Cir.2008) (same); Turner ex rel Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.2008) (same); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1347 (Fed.Cir.2008) (same); see also Ryan v. United States, 534 F.3d 828, 831 (8th Cir. 2008) (holding that compliance with FTCA statute of limitations is jurisdictional requirement). In Parrott v. United States, *643the Seventh Circuit ruled that the FTCA exceptions found in 28 U.S.C. § 2680 are not “jurisdictional,” construing McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), as holding that FTCA rules are “prerequisites to suit, not jurisdictional barriers,” 536 F.3d 629, 634-35 (7th Cir.2008). This case does not help Garland-Sash, however, because this court has construed McNeil as imposing a jurisdictional requirement, see Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d at 82, and held that the limitations imposed by 28 U.S.C. § 2680 are jurisdictional in nature, see Diaz v. United States, 517 F.3d 608, 613-14 (2d Cir.2008).
Finally, even assuming that Garland-Sash could benefit from the common-law “mailbox rule” to salvage her FTCA claim, but see Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1252 (9th Cir.2006) (“[V]ir-tually every circuit to have ruled on the issue has held that the mailbox rule does not apply to [FTCA] claims, regardless of whether it might apply to other federal common law claims.”), she has neither alleged nor provided any evidence indicating that an FTCA claim was, in fact, “mailed.” See Letter from Joyce Garland-Sash to Hon. William H. Pauley III at 1 (Mar. 31, 2006) (asserting that plaintiff “did in fact file a Federal Tort Claim with the B.O.P.” (emphasis added)); see generally Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932) (“The rule is well settled that proof that a letter properly directed was placed in a post office creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed.” (emphasis added)). We also note that the form Garland-Sash claims to have submitted — which itself contains no indication that it was sent via mail — specifically warns that “[a] claim is deemed presented when it is received by the appropriate agency, not when it is mailed.” See also 28 C.F.R. § 14.2(a) (providing that claim is “presented” for FTCA purposes when “reeeive[d]”). Application of the “mailbox rule” is therefore not appropriate here.
3. Conclusion
We have considered plaintiffs additional arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings consistent with this order.
. The new version of 18 U.S.C. § 1030(g) provides in relevant part:
Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and in-junctive relief or other equitable relief.
. Because it seems clear that Lewis’s consent to judgment was premised on the district court's ruling limiting damages to $50, we assume the court will not take that consent as a binding admission of liability in the event the court rules that the statute allows for award of noneconomic damages.
. The complaint does not expressly reference the FTCA, but invokes the CFAA and "any other statute, law, regulation, rule or ordinance that lite Honorable Court deems to apply.” Complaint ¶ 3. Liberally construing Garland-Sash's pro se complaint, the district court considered whether she might pursue an FTCA claim. Because we agree with the district court that Garland-Sash cannot sue under the FTCA, we need not decide whether leave to amend would properly be granted for her to name the United States as a party to such an action. See 28 U.S.C. §§ 1346(b), 2679(b)(1); see also Jackson v. Kotter, 541 F.3d 688, 696-97 (7th Cir.2008) (addressing potential for amendment where plaintiff fails to name United States as party to FTCA action).
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*645
SUMMARY ORDER
Plaintiff-Appellant Carletta Thompson, ■pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Rakoff, J.), dismissing Appellant’s claims pursuant to the Americans with Disabilities Act (“ADA”). We assume the parties’ familiarity with the facts and procedural history.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 44 (2003). We analyze ADA claims under the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reg’l Econ. Comm. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.2002). A plaintiff alleging disability discrimination carries the initial burden of establishing a prima facie case. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir.1998). In order to establish a prima facie ease, the plaintiff must show that: (1) the employer is subject to the ADA; (2) the plaintiff suffers from a disability as defined in the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she suffered an adverse employment action due to the disability. Id. at 869-70. Once the plaintiff makes out a prima facie case, the burden of production shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. Reg’l Econ. Comm. Action Program, 294 F.3d at 49. If the employer meets that burden, the plaintiff must then prove that the employer’s proffered reason was false and a pretext for discrimination. Id.
The ADA and the courts have not defined a precise test of a reasonable accommodation, but it is clearly a “fact-specific, case-by-case inquiry that considers ... the disability in question and the cost to the organization.... ” Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.1995). A reasonable accommodation may include reassignment to a vacant position. 42 U.S.C. § 12111(9). However, the employer need not find or create a position for the employee. Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172, 116 S.Ct. 1263, 134 L.Ed.2d 211 (1996). An ADA plaintiff seeking accommodation in the form of a transfer bears the burden of proving that a vacancy existed into which he or she might have been transferred. Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531 U.S. 931, 121 S.Ct. 314, 148 L.Ed.2d 251 (2000). The ADA “envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” Id. (internal quotations omitted). The plaintiff bears the initial burden of proving that an accommodation exists that would permit her to perform the essential job functions, and the burden of persuasion as to whether the accommodation is reasonable lies with the employer. Id.
Here, the evidence demonstrated that Appellee engaged in an interactive process to reasonably accommodate Appellant, including transfer to a new position, provision of a dictaphone, tape recorder, and ergonomic equipment, and assignment of a lighter caseload. In addition, Appellant provided no evidence to indicate that positions involving less wilting were available prior to January 2000 or that Appel-lee refused to provide equipment necessary to accommodate her. Thus, she *646failed to establish a prima facie claim of failure to reasonably accommodate.
Appellant also failed to establish a hostile work environment claim, inasmuch as she acknowledged that the name-calling by coworkers and telephone harassment were unrelated to her disability and, in any case, did not allege facts that, if proven, would establish such pervasive abuse or hostility that would create a hostile work environment. See Hayut v. State Univ. of New York, 352 F.3d 733, 745 (2d Cir.2003). Finally, the district court appropriately granted summary judgment as to Appellant’s retaliation claims because she failed to establish a causal connection between the allegedly retaliatory actions and her engagement in a protected activity. See Mack v. Otis Elevator Co., 326 F.3d 116, 129-30 (2d Cir.), cert. denied, 540 U.S. 1016, 124 S.Ct. 562, 157 L.Ed.2d 428 (2003). Rather, the undisputed evidence established that (1) Appellant was transferred to the Investigation Unit of the Manhattan Family Intake Court Investigation Unit, as that was the only position available; (2) she was denied use of sick leave based on her failure to comply with the department’s leave policy; and (3) workers’ compensation benefits initially were denied because the Workers’ Compensation Division did not consider her condition to be a work-related accident or injury. Appellant, on the other hand, failed to provide any evidence that these reasons were a pretext for retaliatory intent. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817.
We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Laurie Leigh Hill petitions for review of a November 12, 2008 decision of the BIA dismissing as moot his appeal from the May 18, 2007 decision of Immigration Judge (“IJ”) Philip Montante, Jr. The IJ found Hill inadmissible but permitted him to withdraw his application for admission. While acknowledging that his application is no longer pending, Hill now seeks to challenge the inadmissibility finding. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our ruling.
This court has jurisdiction to review “final orders of removal” pursuant to 8 U.S.C. § 1252(a)(1). The government argues that no such order exists. Hill responds that an IJ’s finding of inadmissibility, without more, constitutes an order of *655removal. See 8 U.S.C. § 1101(a)(47)(A); Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir.2006). Such an order becomes final upon the earlier of (1) “a determination by the [BIA] affirming such order” or (2) “the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].” 8 U.S.C. § 1101(a)(47)(B).
Neither of these two events occurred in this case. Upon finding Hill inadmissible, the IJ granted him permission to withdraw his application for admission pursuant to 8 U.S.C. § 1225(a)(4). Such a withdrawal is permitted only “in the interest of justice,” 8 C.F.R. § 1240.1(d), see also In re Gutierrez, 19 I. & N. Dec. 562, 564-65 (BIA 1988), terminates the IJ’s jurisdiction, see In re Vargas-Molina, 13 I. & N. Dec. 651, 652 (BIA 1971), and permits an alien to depart without incurring an express order of removal, see In re Gutierrez, 19 I. & N. Dec. at 564. On this basis, the BIA dismissed Hill’s appeal from the IJ’s ruling as moot.
Hill now claims this was error. Insisting that the inadmissibility finding survives, he contends that it will require him to seek an additional waiver, should he attempt to reenter the United States, see 8 U.S.C. § 1182(d)(3), and might subject him to expedited removal, see id. § 1225(b), or even detention, see id. § 1226(c). He claims further that the finding will bind future agency adjudicators. See Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 120 (2d Cir.2007), abrogated on other grounds as noted in Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009).
Although the BIA is not bound by traditional mootness doctrine, see In re Luis-Rodriguez, 22 I. & N. Dec. 747, 752-53 (BIA 1999), principles underlying the doctrine supported the challenged dismissal. A case is moot when no live case or controversy exists. See Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir.2004). To avoid mootness, “petitioner must have suffered, or be threatened with, an actual injury traceable to [respondent] and likely to be redressed by a favorable judicial decision.” Id. at 160 (internal quotation marks omitted).
Hill has suffered no actual injury; nor is he threatened with one. As the BIA explained, the withdrawal of his application rendered the IJ’s finding of inadmissibility “inoperative.” In re Hill, No. A074 720 667, at 2 (BIA Nov. 12, 2008). We interpret this to mean that the IJ’s grant of permission to withdraw had the effect of vacating his prior rulings, rendering the inadmissibility finding a legal nullity. Cf. United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (“The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot ... is to reverse or vacate the judgment below and remand with a direction to dismiss.... That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.”). At oral argument, counsel for the government represented that the IJ’s finding would, at most, be a reason — along with Hill’s record of conviction — for authorities to stop him if he attempted to reenter the United States. Hill would thereafter be entitled to a de novo consideration of his admissibility. We accept this representation and conclude that because the challenged IJ finding has no preclusive effect in any future proceeding against Hill, he is not threatened with any injury a judicial decision could redress. Thus, this appeal is moot.
*656Accordingly, the petition for review is DISMISSED.
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SUMMARY ORDER
Petitioners, Edwin Orlando Salto-Moli-na (“Edwin”), Flanclin Bladimir Salto-Molina (“Flanclin”), Jhonny Omar Guerrero-Salto (“Jhonny”) and Wilson Genaro Pilleo-Salto (“Wilson”), natives and citizens of Ecuador, seek review of final orders of the Board of Immigration Appeals (“BIA”) entered, as to Wilson, on June 10, 2008, and, as to the other three petitioners, on June 19, 2008, affirming the decision of an Immigration Judge (“IJ”) denying petitioners’ motions to suppress evidence and ordering their removal. We assume the parties’ familiarity with the factual and procedural history of the case.
On appeal, petitioners argue that the proceedings before the IJ were fundamentally unfair and denied them due process of law because an evidentiary hearing was not conducted to further “develop the record.” Pet’rs Br. 15. Petitioners never requested an evidentiary hearing before the IJ, however, and never suggested the lack of such a hearing as a ground for error in their brief to the BIA. Accordingly, because petitioners failed to exhaust their administrative remedies with respect to that claim, we lack jurisdiction to consider it in the first instance. See 8 U.S.C. § 1252(d)(1); Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 77-78 (2d Cir.2008) (dismissing claim where petitioner’s BIA brief was not adequate to put the agency on notice of a particular argument).
The IJ’s failure to hold an eviden-tiary hearing is the only issue adequately raised in petitioners’ opening brief and we therefore consider all other arguments waived. See Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005).
CONCLUSION
We have considered all of the petitioners’ arguments and find them to be without merit. For the foregoing reasons the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED.
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SUMMARY ORDER
Appellant Emil D. Anghel, pro se, appeals the district court’s dismissal of his complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(h)(3), and moves to reject the Defendant-Appel-lee’s brief as improperly filed. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s dismissal of a complaint for lack of subject matter jurisdiction. See Scherer v. Equitable Life Assurance Soc’y, 347 F.3d 394, 397 (2d Cir.2003). However, because An-ghel does not challenge the district court’s dismissal of his case for lack of jurisdiction, he has abandoned the only justiciable issue now before us, warranting the dismissal of his appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding that when a litigant, even if proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned).1
For the foregoing reasons, the appeal is hereby DISMISSED, and Anghel’s motion to reject the Defendanb-Appellee’s brief is DENIED as moot.
. We note that the district court’s dismissal of Anghel's claims for lack of subject matter jurisdiction in no way precludes him from pursuing his claims in state court. This fact should not be construed, however, as any comment by us as to the merits of Anghel's claims.
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SUMMARY ORDER
David Garcia appeals from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, which challenged his New York state murder conviction, see N.Y. Penal Law § 125.25(1), on grounds that, inter alia, he was denied his Sixth Amendment right to effective assistance of counsel. The district court granted Garcia a certificate of appealability on the issue of whether counsel was ineffective in failing to secure a pre-trial suppression hearing as to the probable cause supporting Garcia’s arrest. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Standard of Review
While we review the denial of a habeas corpus petition de novo, see Jones v. West, 555 F.3d 90, 95 (2d Cir.2009), we will not vacate a state conviction unless “the challenged state court decision was either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ ” Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir.2009) (quoting 28 U.S.C. § 2254(d)); see also Waddington v. Sarausad, — U.S. -, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009) (reiterating that “state court’s application of governing federal law ... must be shown to be not only erroneous, but objectively unreasonable” to support § 2254 relief (internal quotation marks omitted)).
The standard for ineffective assistance of counsel is well established: a prisoner must show both (1) that counsel’s performance was objectively unreasonable; and (2) that, but for counsel’s unprofessional errors, the result of the proceedings would *620have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Garcia’s ineffective assistance claim is based on an alleged failure to raise a Fourth Amendment issue, “he must also show ‘that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.’ ” Mosby v. Senkowski, 470 F.3d 515, 519 (2d Cir.2006) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). Because Garcia cannot demonstrate the merits of his Fourth Amendment claim, he necessarily cannot satisfy Strickland.
2. Garcia’s Ineffective Assistance Claim
Ample probable cause supported Garcia’s arrest for the stabbing murder of his wheelchair-bound victim. Specifically, at the time of Garcia’s arrest, police knew that the doorman of the victim’s building had identified Garcia from a photo spread as looking like the man who had accompanied the victim to his apartment shortly before his death. Further, a suspect in an unrelated robbery told police that Garcia had admitted killing (1) a wheelchair-bound man (2) on Horatio Street — details that corresponded precisely to the charged murder. Finally, police knew that, in an unrelated encounter after the murder at issue, Garcia had given a false name to a police officer and run away from him. Another person on the scene identified the fleeing man as David Garcia and observed that he was wanted for murder. Taken together, these facts certainly provided a “reasonable ground” for police to think Garcia had committed the charged murder. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (observing that “substance” of all definitions of probable cause is “a reasonable ground for belief of guilt” (internal quotation marks omitted)).
Garcia’s attacks on the credibility of the inculpating witnesses are unavailing. As the Supreme Court has emphasized, probable cause does not demand “hard certainties” but only a “fair probability.” Illinois v. Gates, 462 U.S. 213, 231, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In assessing probabilities, a judicial officer must look to “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Id. at 231, 103 S.Ct. 2317 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); accord Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007). In this case, the state court expressly rejected Garcia’s argument that the doorman identification was suggested by police misconduct, making it entirely reasonable and prudent for police to rely on the identification. The same conclusion applies to the robbery suspect’s disclosure of Garcia’s confession. This person was no anonymous tipster, but a named individual in police custody. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (observing that known informant, unlike anonymous tipster, “can be held responsible if her allegations turn out to be fabricated”); accord United States v. Gagnon, 373 F.3d 230, 236 (2d Cir.2004). Moreover, the confession attributed to Garcia contained two important corroborating details: the street where the murder occurred and the victim’s reliance on a wheelchair. See Illinois v. Gates, 462 U.S. at 242, 103 S.Ct. 2317 (stating that officer may rely on informant’s tip “so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge” (internal quotation marks omitted)). On this record, Garcia cannot demonstrate that it was unreasonable for *621police to rely on the disclosed confession in making a probable cause determination. Cf. Dunaway v. New York, 442 U.S. 200, 203 & n. 1, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (noting lack of probable cause where jailhouse informant heard second hand that “someone named ‘Irving’ ” was involved in crime at issue).
In sum, because the facts plainly establish probable cause to arrest Garcia for murder,1 petitioner cannot satisfy the prejudice prong of Strickland analysis, and we cannot conclude that the state courts unreasonably applied clearly established federal law in rejecting his Sixth Amendment challenge to his conviction. See Mosby v. Senkowski, 470 F.3d at 519.
3. Conchision
We have considered all of petitioner’s other arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Because we conclude that police had probable cause to arrest Garcia lor murder, we do not decide whether there was probable cause to arrest him for car theft. That police told Garcia they were arresting him for car theft does not affect our analysis. See Devenpeck v. Alford, 543 U.S. 146, 155, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required."); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006) (“Lljt is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.”).
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SUMMARY ORDER
Petitioner Ming Hua Chen, a native and citizen of China, seeks review of the October 31, 2008 order of the BIA affirming the February 10, 2000 decision of Immigration Judge (“IJ”) Robert D. Weisel denying his application for asylum and withholding of removal. In re Ming Hua Chen, No. A 076 280 025 (B.I.A. Oct. 31, 2008), aff'g No. A 076 280 025 (Immig. Ct. N.Y. City Feb. 10, 2000). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an independent decision on remand from this Court, we review the BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir.2007). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Where an asylum applicant bases his claim on persecution suffered or feared pursuant to China’s coercive population control program, but has not himself undergone a forced sterilization procedure, the agency examines whether the applicant: (i) “resisted” China’s coercive population control program, (ii) suffered or has a well-founded fear that he will suffer persecution at the hands of the Chinese Government, and (iii) can show that such persecution was or will be inflicted “on account of’ his resistance to the coercive population control program. See Matter of J-S-, 24 I. & N. Dec. 520, 542 (B.I.A. 2008); see also Shi Liang Lin v. Gonzales, 494 F.3d 296, 312-13 (2d Cir.2007). Having reviewed Chen’s claim on remand, *624the BIA concluded that “the facts presented here do not support the conclusion that [Chen’s] involvement in the altercation at his mother-in-law’s [house] was motivated by his resistance to China’s family planning policfy].” The BIA further explained that Chen’s act of “merely coming to the defense of his mother-in-law in an effort to thwart her attackers and stop the theft of her possessions does not constitute an act of resistance under the family planning laws.”
The BIA has found that “the term ‘resistance’ covers a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law.” Matter of S-L-L- 24 I. & N. Dec. 1, 10 (BIA 2006), overruled in part on other grounds by Matter of J-S-, 24 I. & N. Dec. 520 (A.G.2008). In his brief before this Court, Chen argues that the BIA “erred in overlooking” that he had a “mixed motive” to: (1) protect his mother-in-law from being harassed; and (2) interfere with family planning officials’ enforcement of their policy. This argument is unavailing. As the BIA noted, Chen testified that after he saw his mother-in-law fighting with someone who he “thought maybe” was a family planning official, he became angry and intervened by pushing the individual and, as a result, was beaten by several officials. Even if a reasonable factfinder could conclude that Chen had various motives for becoming involved in the altercation, we are unable to find that the BIA erred in concluding that Chen’s was not an act of resistance. See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d 289, 294 (2d Cir.2006) (“our review does not permit us to engage in an independent evaluation of the cold record or ask ourselves whether, if we were sitting as fact finders, we would credit or discredit an applicant’s testimony”).
Chen also argues that even assuming he was not motivated to resist the family planning policy, a plain reading of the language in Matter of J-S-, 24 I. & N. Dec. at 520, indicates that an applicant is not required to show his own motivation, but is only required to show “persecution for ‘other resistance.’ ” However, this argument ignores the requirement that an applicant show both an act of resistance and persecution (or a well-founded fear of persecution) on account of that act. See Matter of J-S-, 24 I. & N. Dec. at 542.
Because the BIA reasonably found that Chen had not suffered past persecution and did not have a well-founded fear of future persecution, it properly denied his application for asylum and withholding of removal. See Shi Liang Lin, 494 F.3d at 312-13 (citing 8 U.S.C. § 1101(a)(42)).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Appellants William M. Greene and Karen M. Greene, pro se, appeal from the district court’s (1) grant of the Government’s motion to dismiss their complaint, “submitted as a qui tom action,” against the Internal Revenue Service (“IRS”), and (2) denial of their amended motion for preliminary injunctive relief, which sought to enjoin the IRS from assessing or collecting their federal income taxes, or otherwise enforcing the provisions of the Internal Revenue Code against them. We assume the parties’ familiarity with the *626underlying facts, the procedural history of the case, and the issues on appeal.
In reviewing a district court’s dismissal of a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, this Court reviews factual findings for clear error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiffs favor. See Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008).
On appeal, the Greenes do not challenge the district court’s determination that it lacked subject matter jurisdiction over the suit based on sovereign immunity; the Anti-Injunction Act; 26 U.S.C. § 7421; and the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201; and, accordingly, this Court deems any such argument waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”); LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.1995) (noting that the Court “need not manufacture claims of error for an appellant proceeding pro se ”). The district court’s unchallenged determination that it lacked subject matter jurisdiction over the complaint is a sufficient basis upon which to affirm its judgment. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997) (“It is beyond cavil that an appellate court may affirm the judgment of the distinct court on any ground appearing in the record.”).
The Greenes’ primary contention on appeal is that the district court erred in determining that the IRS is a federal agency and that the United States was therefore the proper defendant. Insofar as this determination can be characterized as a “factual finding,” the district court committed no clear error in finding that the IRS is a federal agency. See Morrison, 547 F.3d at 170. The district court properly treated the Greenes’ action seeking to enjoin the IRS from enforcing the provisions of the Internal Revenue Code against them as an action against the United States, given that “[t]he general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (internal quotation marks and citations omitted).
Lastly, to the extent that the Greenes’ brief can be liberally construed as sufficiently challenging the district court’s denial of their amended motion for a preliminary injunction, the court did not abuse its discretion in denying the motion. See S.E.C. v. Dorozhko, 574 F.3d 42, 45 (2d Cir.2009) (“We review the grant or denial of a preliminary injunction for abuse of discretion.”).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendants-Appellants New Hampshire Insurance Company, American Home Assurance Company, and National Union Fire Insurance Company of Pittsburgh, Pennsylvania (collectively, “AIG”) appeal from a judgment entered in the Southern District of New York (Jed S. Rakoff, Judge) after a jury trial holding AIG liable for $34,373,170, including $5,750,000 in punitive damages, on claims of fraudulent inducement with respect to two reinsurance facilities, and from the denial of AIG’s post-trial motions for relief under Federal Rules of Civil Procedure 50(b) and 59(e).
AIG argues that (1) the claims brought by Plaintiff-Appellee AXA Versicherung AG (“AXA”) should have been arbitrated; (2) AXA’s claims should have been tried to the bench not the jury; (3) AXA’s claims are barred by the statute of limitations; and (4) punitive damages were improperly assessed and insufficiently supported. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal. For the reasons that follow, we remand this case to the District Court for further proceedings consistent with this order.
With respect to the first issue on appeal, AIG contends that AXA’s claims should have been arbitrated because they sound in contract. In response, AXA, though not disputing that contract claims are subject to arbitration under the parties’ agreements, argues that its claims sound in fraud and thus were properly litigated in the District Court. AXA further argues that, in any event, AIG waived its right to arbitration.
New York law distinguishes between “a claim based on fraudulent inducement of a contract” and a breach of contract claim. Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 184 (2d Cir. 2007). Merely falsely indicating an intent to perform under a contract “is not sufficient to support a claim of fraud under New York law.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir.1996); see also Guilbert v. Gardner, 480 F.3d 140, 148 (2d Cir.2007) (misrepresentations that pension plan was “ ‘taken care of when, in fact, defendants knew this to be false” were merely duplica-tive of contract claim); TVT Records v. Island Def Jam Music Group, 412 F.3d 82, 90 (2d Cir.2005) (“[Ujnder New York law, the failure to disclose an intention to breach is not actionable as a fraudulent concealment.”), cert. derded, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006); Manas v. VMS Assocs., LLC, 53 A.D.3d 451, 453-54, 863 N.Y.S.2d 4, 7 (1st Dep’t 2008). “General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support [a fraud] claim.” N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763, 769 (1995) (holding that allegations of breach of contract “and any covenants implied” do not sound in fraud).
To maintain a claim of fraud in such a situation, a plaintiff must either: (i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages. *630Bridgestone/Firestone, 98 F.3d at 20 (citations omitted); see, e.g., Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 42, 732 N.Y.S.2d 402, 403 (1st Dep’t 2001). While a misrepresentation that is collateral to the contract may support a fraud in the inducement claim distinct from a breach of contract claim, see Wall v. CSX Transp., Inc., 471 F.3d 410, 416-17 (2d Cir.2006), “the non-disclosure of collateral aims,” such as “allegations about defendants’ states of minds used to support the contention that they intended to breach the contract (i.e. the motives for the breach)[,] ... is insufficiently distinct from the breach of contract claim,” TVT Records, 412 F.3d at 91.
AIG argues that AXA’s fraudulent inducement claims sound in contract at least insofar as they rely on allegations that: (a) AIG promised that the reinsurance facilities would be operated on a facultative obligatory basis, but treated them as purely facultative; (b) AIG selected certain policies to cede to the facilities instead of a cross-section of risks; and (c) AIG increased AXA’s share of risk beyond AXA’s original understanding. AIG contends that to the extent AXA claims AIG secretly intended to treat the facilities as faculta-tive rather than facultative obligatory, this simply reflects an undisclosed intention to breach, not a collateral misrepresentation. It makes the same argument with regard to AXA’s assertions that AIG intended to choose an improper selection of risks to cede to the facilities and to manipulate AXA’s percentage stake in the ceded risks. AIG further argues that whether it did such things in order to offload unprofitable business and eliminate its own exposure only suggests a motive for breaching the parties’ reinsurance agreements. On the other hand, AXA argues that AIG’s misrepresentations were collateral to the parties’ agreements and thus sufficiently distinct to support its claims of fraudulent inducement.
It is not clear, on the record before us, whether the District Court gave these arguments sufficient consideration. The basis for the stay of the arbitration commenced by AIG entered in March 2006 by then-Judge Mukasey is not entirely clear. Although the District Court denied AIG’s in limine motion in January 2008 on the ground that this issue had already been decided, the District Court’s denial of summary judgment in July 2007 did not clearly address the parties’ arguments on this issue. See AXA Versicherung AG v. N.H. Ins. Co., No. 05 Civ. 10180, 2007 WL 2142302, 2007 U.S. Dist. LEXIS 54295 (S.D.N.Y. July 23, 2007). The District Court referred to the distinction between fraud and contract claims in analyzing AIG’s punitive damages arguments, both at summary judgment and post-trial, but the Court did not explain why AXA’s claims “did not involve a breach of contract.” See id., 2007 WL 2142302, at *2, 2007 U.S. Dist. LEXIS 54295, at *7-8; AXA Versicherung AG v. N.H. Ins. Co., No. 05 Civ. 10180, 2008 WL 1849312, at *2 & n. 1, 2008 U.S. Dist. LEXIS 33950, at *4-6 & n. 1 (S.D.N.Y. Apr. 22, 2008). Rather, the portions of the trial transcript it relied upon during the course of this discussion explain only that a rescission claim should be litigated before any arbitration of a contract counter-claim by AIG because if AXA were to win rescission, there would be nothing left to arbitrate. See Trial Tr. at 1472-75. Nor does the rest of the record, including the portions cited in AXA’s post-argument submission to us, establish why the District Court apparently rejected AIG’s argument that at least some of AXA’s claims were subject to arbitration.
We believe a remand is appropriate to allow the District Court, which is intimately familiar with the full scope of AXA’s evidence after presiding over the jury trial and issuing several rulings in this case, the *631opportunity to address in the first instance the extent to which AXA’s allegations sound in contract as opposed to fraud. Our consideration of AIG’s first argument on appeal will greatly benefit from a determination of this question.
Such a remand would be unnecessary if, as AXA contends, AIG waived its right to arbitration. “[A] party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party.... There is no bright-line rule, however, for determining when a party has waived its right to arbitration: the determination of waiver depends on the particular facts of each case.” In re Crysen/Montenay Energy Co., 226 F.3d 160, 162-63 (2d Cir.2000) (internal quotation marks omitted), cert. denied, 532 U.S. 920, 121 S.Ct. 1356, 149 L.Ed.2d 286 (2001). We have suggested several factors for con sideration, such “as (1) the time elapsed from commencement of litigation to the request for arbitration, (2) the amount of litigation (including any substantive motions and discovery), and (3) proof of prejudice.” Id. at 163 (internal quotation marks omitted). “The key to a waiver analysis is prejudice.” Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 105 (2d Cir.2002) (per curiam), cert. denied, 538 U.S. 922, 123 S.Ct. 1573, 155 L.Ed.2d 312 (2003). “We review de novo a district court’s decision regarding waiver of a party’s right to arbitrate, but we review the factual findings on which the district court relied for clear error.” Id. at 104.
In this case, AXA raised the possibility of waiver at summary judgment in response to AIG’s arbitration argument, but the District Court did not opine on it. In our view, the current record leaves unanswered several questions that may be critically relevant to a determination of whether AIG waived its right to arbitration. Thus, we also remand the case to the District Court for creation of a record and resolution of AXA’s waiver argument in the first instance.
A few factual clarifications in particular would facilitate consideration of the first and critical third waiver factors, the time elapsed and prejudice. For example, it would be helpful to learn whether AIG pressed its contract/fraud distinction when opposing Judge Mukasey’s stay of arbitration and whether the basis for the stay encompassed this issue. The answers to these questions would also affect AXA’s argument that AIG sat on its rights by failing to take an interlocutory appeal from that stay. In addition, the prejudice to AXA depends in part on the extent to which AIG obtained benefits here that would not have been available in arbitration, an inquiry that itself turns on the extent to which AXA’s claims are arbitra-ble and non-arbitrable. See, e.g., S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83-84 (2d Cir.1998), cert. dismissed, 528 U.S. 1058, 120 S.Ct. 629, 145 L.Ed.2d 506 (1999).
Finally, we note that resolution of these issues may very well affect consideration of the remainder of AIG’s arguments on appeal. Even if AIG is found to have waived its right to arbitration, a determination that AXA’s claims sound in contract to any extent would affect the analysis of whether they should have been tried to the bench instead of the jury, whether they are barred by the statute of limitations, and the propriety of punitive damages. At this point, however, we need not pursue these matters further.
Accordingly, we REMAND the case to the District Court for further proceedings consistent with this order. Under the procedure set forth in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994), we direct that the mandate shall issue forthwith and that, after the district court’s *632decision, jurisdiction shall be returned to this Court upon a letter request from any party filed within 30 days of that decision. Upon such a restoration of jurisdiction, the matter is to be sent to this panel.
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SUMMARY ORDER
Defendant-appellant Daniel B. Karron was convicted of intentionally and knowingly misapplying funds under the care of *633a company receiving federal funds in violation of 18 U.S.C. § 666, after a jury trial ending on June 11, 2008. Defendant was sentenced principally to a custodial sentence of fifteen months, followed by three years of supervised release, and $125,000 in restitution. On October 27, 2008, Judge Patterson amended the judgement directing defendant to serve the sentence as follows: seven-and-a-half-months’ imprisonment, followed by seven-and-a-half months of home confinement. Defendant appeals that conviction. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Defendant argues that (1) the jury instructions were erroneous because they omitted an element of the crime — specifically, the jury was instructed to find that defendant “intentionally misapplied” funds but should have been instructed that an “intent to defraud” is an element of “misapplication” of funds, and (2) 18 U.S.C. § 666 is void for vagueness.
We review a claim of error in jury instructions de novo, see, e.g., United States v. Quattrone, 441 F.3d 153, 177 (2d Cir.2006), but reversal is only appropriate when the charge, viewed as a whole, “either failed to inform the jury adequately of the law or misled the jury about the correct legal rule,” United States v. Ford, 435 F.3d 204, 209-10 (2d Cir.2006). “To secure reversal based on a flawed jury instruction, a defendant must demonstrate both error and ensuing prejudice.” United States v. Quinones, 511 F.3d 289, 313 (2d Cir.2007). Defendant argues that the District Court erred by failing to instruct the jury that it needed to find that defendant acted with the specific intent to defraud or injure the government. Defendant further contends that the instructions given by the District Court prejudiced defendant because they precluded the argument that defendant’s misapplication of funds was intended to benefit the grant-recipient organization, a legitimate purpose.
In United States v. Urlacher, we defined the term “intentional misapplication” to include misuse of federal funds for “otherwise legitimate purposes.” 979 F.2d 935, 938 (2d Cir.1992). Urlacher’s holding has been followed uniformly by other courts that have considered the issue, including the First, Sixth, Seventh, and Tenth Circuits. See, e.g., United States v. Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir.2004); United States v. Frazier, 53 F.3d 1105, 1110-11 (10th Cir.1995). We are bound by Urlacher to conclude that the jury instructions were not erroneous. Nor was defendant prejudiced by the instructions because trial counsel was not precluded from presenting evidence or cross-examination showing that defendant did not intend to defraud the government or undermine the grant program, or that defendant acted with the purpose of benefiting the grant recipient.
Defendant asserts the void-for-vagueness argument for the first time on appeal. The issue is therefore waived, and reviewed only for plain error. Fed. R.Crim.P. 51, 52. In order to show plain error defendant must establish an error occurred that is “clear or obvious under current law” and that the error affected defendant’s “substantial rights.” United States v. Gonzalez, 110 F.3d 936, 945-46 (2d Cir.1997). We find no error under the clear law set forth in Urlacher.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
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SUMMARY ORDER
Appellant Frank Schwamborn, pro se and incarcerated, appeals the district court’s grant of the Defendants’ motions to dismiss his 42 U.S.C. §§ 1983 and 1985 complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim. Schwamborn also appeals the district court’s denial of his motion to amend his complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
*635We review de novo the district court’s dismissal of a complaint for lack of subject matter jurisdiction. Scherer v. Equitable Life Assurance Soc’y, 347 F.3d 394, 397 (2d Cir.2003). Similarly, we review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Finally, we review the denial of a motion for leave to amend a complaint for abuse of discretion. See Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.2008) (per curiam).
As to the district court’s subject matter jurisdiction rulings in favor of the federal defendants, we find no error and affirm substantially for the reasons set forth in the district court’s opinion. As to the federal and state defendants’ motions to dismiss for failure to state a claim, our review of Schwamborn’s complaint indicates that, even if read generously, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (noting that pro se complaints should be liberally construed), he has failed to plead the factual support required to sustain any of his claims. A complaint must contain sufficient factual content to allow the district court “to draw the reasonable inference that the defendant[s] [were] liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (a complaint must plead “enough facts to state a claim to relief that is plausible on its face”). Accordingly, the district court properly determined that Schwamborn failed to state a claim upon which relief could be granted, and we affirm the district court’s judgment on that basis.
Schwamborn’s argument that the district court erred by denying his motion to amend his complaint is unavailing, because he fails to present any evidence that this decision was an abuse of discretion. Although leave to amend a complaint, particularly one of a pro se litigant, should be liberally granted, see Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003), “where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir.1999). Schwamborn’s proposed amended complaint merely restates the claims in his earlier complaint, without remedying its prior jurisdictional and factual inadequacies, and adds equally unsupported claims against new defendants. “Where ... there is no merit in the proposed amendments, leave to amend should be denied.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002) (quoting Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990)) (internal quotation marks and alterations omitted).
We have considered all of Schwamborn’s remaining claims of error and determined them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendant-appellant Cyril Smith appeals from a judgment of the district court convicting him, after a jury trial, of eight counts: one count of conspiracy to distribute crack cocaine, heroin, and cocaine from 1998 to 2002, two counts of intentionally killing someone while engaged in a drug trafficking crime (to wit, the 1998-2002 conspiracy), three counts of causing the death of someone through the use of a firearm during and in relation to a drug trafficking crime (to wit, the 1998-2002 conspiracy), one count of conspiracy to distribute crack cocaine in August 2005, and one count of distribution of crack cocaine in August of 2005. The jury acquitted Smith on a ninth count in the indictment, which charged Smith with a third count of intentionally killing someone while engaged in a drug trafficking crime. We assume the parties’ familiarity with the facts and procedural history of the case.
On appeal, Smith argues that the district court erred by concluding that Smith was competent without first obtaining his psychological evaluation. Under 18 U.S.C. § 4241, “[t]he court shall grant the motion [for a hearing to determine the mental competency of the defendant], or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be ... incompetent....” 18 U.S.C. § 4241(a). “Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court....” Id. at § 4241(b) (emphasis added). Thus, it is clear that the law does not require the district court, in every instance, to obtain a psychological evaluation before deciding whether there is reasonable cause to believe that the defendant is incompetent. See, e.g., United States v. *638Vamos, 797 F.2d 1146, 1150-51 (2d Cir.1986) (concluding that the district court was not “compelled to conduct a full inquiry into [the defendant’s] competence” and did not abuse its discretion in concluding that the defendant was competent); United, States v. Oliver, 626 F.2d 254, 258-59 (2d Cir.1980) (upholding the district court’s decision not to order a psychiatric examination and subsequent hearing based on the judge’s direct observation and questioning of the defendant). We review the district court’s determination that there was no reasonable cause to believe that the defendant may be incompetent for abuse of discretion, see United States v. Quintieri, 306 F.3d 1217, 1232-33 (2d Cir.2002), and with “deference ... to the district court’s determinations based on observation of the defendant during the proceedings,” Vamos, 797 F.2d at 1150. In light of the district court’s own observations of Smith during pre-trial and trial proceedings and given the opinions of Smith’s attorneys that he was competent, we find no abuse of discretion in the district court’s conclusion that Smith was competent.
Smith challenges also the joinder of the August 2005 conspiracy and distribution counts in a single indictment and trial with the remaining counts. We review the district court’s denial of a Rule 8(a) motion to sever counts de novo, see United States v. Lee, 549 F.3d 84, 94 (2d Cir.2008), and according to a “twofold inquiry: whether joinder of the counts was proper, and if not, whether misjoinder was prejudicial to the defendant,” United States v. Rivera, 546 F.3d 245, 253 (2d Cir.2008) (quotation marks omitted). We find Smith’s argument to be meritless. The August 2005 conspiracy and distribution counts are “of the same or similar character” as the conspiracy count relating to Smith’s 1998-2002 conduct and thus were properly joined with the other counts of the indictment. See Fed.R.Crim.P. 8(a) (permitting joinder of offenses against a single defendant, among other circumstances, when the offenses are “of the same or similar character”); United States v. Werner, 620 F.2d 922, 924-26 (2d Cir.1980) (upholding joinder of two sets of counts arising from two distinct episodes in which the defendant committed similar crimes). We review the district court’s determination that severance was not necessary under Fed.R.Crim.P. 14(a) for abuse of discretion. See United States v. Stewart, 433 F.3d 273, 314-15 (2d Cir.2006) (noting that the district court’s determination that severance is not necessary “is entitled to considerable deference that is virtually unreviewable and may be overcome only by demonstrating substantial prejudice so severe that his conviction constituted a miscarriage of justice and that the denial of his motion constituted an abuse of discretion” (internal quotation marks omitted)). In this case, the jury was instructed to consider the charges separately, and the evidence was such that the jury could easily do so. Thus, we conclude that the district court did not abuse its discretion by denying Smith’s motion for severance. See Werner, 620 F.2d at 929 (upholding district courts refusal to grant separate trials where there is no risk that the jury would be confused about the evidence and a sufficient instruction was given).
Finally, Smith argues that the district court abused its discretion in admitting a photograph of Smith’s tattoo, which depicts the skull, arms, and ribcage of a skeleton firing a weapon, with shell casings being ejected from the gun, flame coming out of the barrel, and the words “D’EVILS WITHIN” printed above it.
We agree that the district court erred by admitting a photograph of Smith’s tattoo. The district court concluded that Smith’s tattoo was probative be*639cause “the defendant has chosen to display on his own body, affirmations of this kind of conduct [gun violence].” On appeal, the government makes a similar argument, claiming that “it was probative of [Smith’s] intent that he chose to adorn his body with a tattoo of a skeleton firing a weapon.” The probative value identified by the district court and by the government implicitly rely on an impermissible propensity inference. See United States v. Newsom, 452 F.3d 593, 603-04 (6th Cir.2006) (concluding that evidence of defendant’s gun tattoo was not relevant to the question of whether he possessed the gun charged in the indictment and that the “tattoo evidence was unfairly prejudicial because it suggested to the jury that [the defendant] had a hostile, criminal disposition”); United States v. Thomas, 321 F.3d 627, 632 (7th Cir.2003) (rejecting government’s argument that defendant’s gun tattoo was relevant because it showed that the defendant had “a high opinion of guns,” finding that this evidence “only goes to propensity”). The government has not articulated a way in whieh this evidence is relevant that does not rely on an impermissible propensity inference; thus, the evidence should not have been admitted. Fed. R.Evid. 401, 402. This evidentiary error, however, does not affect “substantial rights,” and thus does not require the conviction to be reversed. See Fed.R.Crim.P. 52(a). Given the other evidence of Smith’s guilt and that the jury’s attention was never drawn to the impermissible evidence, we conclude that the evidence of Smith’s tattoo was unimportant in relation to everything the jury considered as evidence of Smith’s guilt. See United States v. Kaplan, 490 F.3d 110, 124 n. 5 (2d Cir.2007) (finding evidentiary error harmless because there was “substantial independent evidence” of the defendant’s guilt and the government “did not emphasize the testimony in issue in urging the jury to convict [the defendant]”).
We have considered Smith’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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*645
SUMMARY ORDER
Plaintiff-Appellant Carletta Thompson, ■pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Rakoff, J.), dismissing Appellant’s claims pursuant to the Americans with Disabilities Act (“ADA”). We assume the parties’ familiarity with the facts and procedural history.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 44 (2003). We analyze ADA claims under the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reg’l Econ. Comm. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.2002). A plaintiff alleging disability discrimination carries the initial burden of establishing a prima facie case. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir.1998). In order to establish a prima facie ease, the plaintiff must show that: (1) the employer is subject to the ADA; (2) the plaintiff suffers from a disability as defined in the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she suffered an adverse employment action due to the disability. Id. at 869-70. Once the plaintiff makes out a prima facie case, the burden of production shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. Reg’l Econ. Comm. Action Program, 294 F.3d at 49. If the employer meets that burden, the plaintiff must then prove that the employer’s proffered reason was false and a pretext for discrimination. Id.
The ADA and the courts have not defined a precise test of a reasonable accommodation, but it is clearly a “fact-specific, case-by-case inquiry that considers ... the disability in question and the cost to the organization.... ” Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.1995). A reasonable accommodation may include reassignment to a vacant position. 42 U.S.C. § 12111(9). However, the employer need not find or create a position for the employee. Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172, 116 S.Ct. 1263, 134 L.Ed.2d 211 (1996). An ADA plaintiff seeking accommodation in the form of a transfer bears the burden of proving that a vacancy existed into which he or she might have been transferred. Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531 U.S. 931, 121 S.Ct. 314, 148 L.Ed.2d 251 (2000). The ADA “envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” Id. (internal quotations omitted). The plaintiff bears the initial burden of proving that an accommodation exists that would permit her to perform the essential job functions, and the burden of persuasion as to whether the accommodation is reasonable lies with the employer. Id.
Here, the evidence demonstrated that Appellee engaged in an interactive process to reasonably accommodate Appellant, including transfer to a new position, provision of a dictaphone, tape recorder, and ergonomic equipment, and assignment of a lighter caseload. In addition, Appellant provided no evidence to indicate that positions involving less wilting were available prior to January 2000 or that Appel-lee refused to provide equipment necessary to accommodate her. Thus, she *646failed to establish a prima facie claim of failure to reasonably accommodate.
Appellant also failed to establish a hostile work environment claim, inasmuch as she acknowledged that the name-calling by coworkers and telephone harassment were unrelated to her disability and, in any case, did not allege facts that, if proven, would establish such pervasive abuse or hostility that would create a hostile work environment. See Hayut v. State Univ. of New York, 352 F.3d 733, 745 (2d Cir.2003). Finally, the district court appropriately granted summary judgment as to Appellant’s retaliation claims because she failed to establish a causal connection between the allegedly retaliatory actions and her engagement in a protected activity. See Mack v. Otis Elevator Co., 326 F.3d 116, 129-30 (2d Cir.), cert. denied, 540 U.S. 1016, 124 S.Ct. 562, 157 L.Ed.2d 428 (2003). Rather, the undisputed evidence established that (1) Appellant was transferred to the Investigation Unit of the Manhattan Family Intake Court Investigation Unit, as that was the only position available; (2) she was denied use of sick leave based on her failure to comply with the department’s leave policy; and (3) workers’ compensation benefits initially were denied because the Workers’ Compensation Division did not consider her condition to be a work-related accident or injury. Appellant, on the other hand, failed to provide any evidence that these reasons were a pretext for retaliatory intent. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817.
We have reviewed Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Lorie A. Burgin appeals from the January 11, 2008 decision and order of the district court affirming the Commissioner of Social Security’s denial of her applications for disability and supplemental security income (“SSI”) benefits under the Social Security Act. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
We review the administrative record de novo to determine whether there is substantial evidence to support the Commissioner’s denial of Social Security benefits and whether the Commissioner applied the correct legal standard. See Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Burgin’s case must be remanded for further administrative proceedings, because the Commissioner, when determining Bur-gin’s residual functional capacity (“RFC”) to engage in any substantial gainful activity, (1) failed to account for her major depression and (2) failed to appropriately consider the opinion of her treating physician.
The Commissioner is required to “consider the combined effect of all of [the claimant’s] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity” to establish eligibility for Social Security benefits. 20 C.F.R. § 404.1523. And, if the Commissioner “do[es] find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process.” Id.; see also 20 C.F.R. § 416.945(a)(2). Our case law is plain that “the combined effect of a claimant’s impairments must be considered in determining disability; the [Commissioner] must evaluate their combined impact on a claimant’s ability to work, regardless of whether every impairment is severe.” Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir.1995); see also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.2002) (“A hypothetical question posed to a vocational expert must reflect all of a claimant’s impairments.... Where there exists in the record medically undisputed evi*648dence of specific impairments not included in a hypothetical question ..., the expert’s response is not considered substantial evidence.” (internal citations and quotation marks omitted)).
Here, the administrative law judge (“ALJ”) noted that Burgin suffers from major depression and bipolar disorder, but listed only bipolar disorder in Burgin’s combined list of impairments when determining her RFC. We are unpersuaded by the Commissioner’s argument that the ALJ’s consideration of Burgin’s bipolar disorder encompassed her depression-related symptoms, because the medical evidence in the administrative record shows that Burgin’s major depression and bipolar disorder were considered professionally as separate diagnoses, and because the ALJ’s decision includes no such finding. Thus, we conclude that the ALJ failed to include Burgin’s major depression among her combination of impairments and did not meaningfully consider how her combined mental disorders affected her social functioning, concentration, persistence, or pace, all of which were important factors in determining whether Burgin could engage in substantial gainful activity. See Assessing Residual Functional Capacity in Initial Claims, S.S.R. 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (“The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.”).
The ALJ also failed to discuss the opinion of Dr. Donovan Holder, an anesthesiologist and Burgin’s pain management specialist, when determining Burgin’s RFC. Under the relevant regulations, a treating physician’s opinion is given controlling weight when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial [record] evidence.” 20 C.F.R. § 404.1527(d)(2); see also Sehisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). The regulations require that the Commissioner “give good reasons in [the] notice of determination or decision” for the weight assigned to the treating source’s opinion. 20 C.F.R. § 404.1527(d)(2). The failure to provide “good reasons” for not crediting a treating source’s opinion is a ground for remand. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004) (per curiam) (“We do not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given to a treating physician[’]s opinion and we will continue remanding when we encounter opinions from ALJ[s] that do not comprehensively set forth reasons for the weight assigned to a treating physician’s opinion.”); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999).
In determining that Burgin had the RFC to perform work at the sedentary exertional level with a “sit/stand option” and “low stress work environment,” the ALJ gave “greater weight” to the opinion of the state agency medical expert, who determined that Burgin could walk for about six hours in an eight-hour workday and sit for about six hours in an eight-hour workday. However, Burgin’s treating physician, Dr. Holder, indicated that Bur-gin could only stand or walk less than two hours per eight-hour workday and sit for less than six hours in an eight-hour workday, both of which were limitations representing the most restrictive categories that Dr. Holder could indicate on the medical report form. In response to a request for further information on Burgin’s limitations, Dr. Holder responded that “[patients] with a [history] of chronic [lower *649back pain] and radiculopathy are unable to sit, stand or walk for long periods of times causing an [increase] in their pain [and] symptoms.” The orthopedic examination of Burgin by Dr. Berton Shayevitz similarly stated that Burgin “is markedly limited in ability to stand, walk, lift, carry, bend, twist, squat, jump, and climb by her back problem.”
In relying on the state agency medical expert’s opinion to determine Burgin’s RFC without even discussing Dr. Holder’s opinion, the ALJ did not address the inconsistency between those two opinions and therefore failed to give good reasons for according Dr. Holder’s opinion lesser weight. While the Commissioner argues that the ALJ’s consideration of Dr. Holder’s opinion can be “gleamed from the record,” and that the ALJ “implicitly accepted the findings and conclusions of Dr. Holder when assessing Burgin’s [RFC],” it is precisely this exercise that the rules do not require us to undertake. The ALJ’s consideration must be explicit in the record. Thus, we do not hesitate to conclude that the ALJ erred in failing to explain and “give good reasons” for the weight accorded Dr. Holder’s opinion.
On remand, therefore, the ALJ must expressly consider Burgin’s combined impairments, including her major depression, must fully account for the opinion of Dr. Holder, and must provide good reasons for giving that opinion more or less weight than the other medical evidence.
For the foregoing reasons, the judgment of the district court is VACATED and the case REMANDED to the district court with instructions to remand to the Commissioner for further proceedings consistent with this order.
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SUMMARY ORDER
Tamara Jdankova, native of the former Union of Soviet Socialist Republics, specifically, Russia, and a citizen of Uzbekistan, seeks review of an August 8, 2008 order of the BIA dismissing an appeal from the January 26, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied Jdankova’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Tamara Jdankova, No. A79 316 934 (B.I.A. Aug. 8, 2008); In re Tamara Jdankova, No. A79 316 934 (Immig. Ct. N.Y. City Jan. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA issues a brief opinion that does not expressly adopt but otherwise closely tracks the IJ’s reasoning, we may review both decisions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (internal quotation marks omitted). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Jdankova contends that the agency’s adverse credibility determination is not supported by substantial evidence. We are not persuaded. The agency based its determination primarily on the following observed inconsistency: While Jdankova stated in her affidavit that she did not visit a doctor after her alleged rape, she testified before the IJ that she did, in fact, seek medical treatment after the event. This record-supported finding — which went to the heart of Jdankova’s pre-REAL ID Act asylum application — furnished substantial evidence for the agency’s adverse credibility determination. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003).
*651Jdankova now tries to reconcile that inconsistency, but it is not our task to “justify ... contradictions.” See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (alteration omitted). Jdankova had such an opportunity before the IJ. She also had the chance to substantiate her testimony, namely by submitting a medical report documenting the physical effects of the assault. The government, however, submitted a report of its own — a memorandum from the U.S. Embassy in Tashkent — stating, inter alia, that (1) the bureau from which Jdankova’s medical report purportedly emanated did not exist at the time the medical examination was stated to have been conducted and (2) the only such bureau existing at the time of the alleged examination had no record of employing the doctor who conducted the examination. In light of this report, it was not unreasonable for the agency to attribute little weight to Jdankova’s medical documentation. See id.
Because Jdankova’s withholding of removal and CAT claims were based on the same factual predicates as her asylum claim, the agency’s rejection of the latter necessarily foreclosed the availability of the former. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED.
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SUMMARY ORDER
Plaintiff-Appellant Paulina DeMarco appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) granting summary judgment to Defendants-Appel-lees and dismissing DeMarco’s claims. DeMarco alleged that defendants discriminated against her on the basis of her sex and pregnancy when Defendant Stony Brook Clinical Practice and Management Plan (“CPMP”) decided not to hire her. She alleged also that defendants failed to hire her in retaliation for engaging in the protected activity of filing an employment discrimination lawsuit against her former employer. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.
Both DeMarco’s discrimination and retaliation claims are analyzed using the burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996) (retaliation claims); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995) (pregnancy discrimination claims).
*653With regard to plaintiffs pregnancy discrimination claim, the district court concluded that DeMarco was not qualified for the data analyst position because she had intentionally deceived CPMP regarding her recent employment history; the district court concluded therefore that De-Marco failed to make out a prima facie case of discrimination. We find sufficient evidence in the record for the question of DeMarco’s qualification to be submitted to a jury. Even if the undisputed facts indicate that DeMarco intentionally deceived CPMP, it does not necessarily follow that she is not qualified for the position, see Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 172 (2d Cir.2006) (noting that even if an employer could legitimately determine that the employee’s conduct was unacceptable, “these considerations go to the employer’s ability to rebut a prima facie case ..., not to the showing of the prima facie case itself.”); DeMarco might nonetheless “possess[] the basic skills necessary for performance of the job.” Id. at 171. Summary judgment on this ground was therefore inappropriate.
Because the evidence in the record could support a jury’s finding that DeMarco had established a prima facie case of discrimination, and the district court properly determined that DeMarco made out a prima facie case of retaliation, the burden shifts to CPMP to provide a lawful reason for its decision not to hire DeMarco. CPMP has discharged this burden by asserting that it did not hire DeMarco based on her conduct during the application process. Thus, to avoid summary judgment, DeMarco must adduce evidence that could support a jury’s finding that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext.” Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Accord Holcomb v. Iona Coll, 521 F.3d 130, 141 (2d Cir.2008) (discrimination); Reed, 95 F.3d at 1181 (retaliation).
Drawing all reasonable inferences in DeMarco’s favor, the evidence could support a jury’s conclusion that CPMP decided not to hire her either because of her pregnancy or because of her lawsuit. Specifically, this conclusion could be based on the evidence (1) that Research Foundation’s Assistant Vice President for Human Resources suggested that CPMP could employ DeMarco as a data analyst briefly, despite knowing of her alleged dishonesty; (2) that Darren Mikalsen, one of the supervisors for the data analyst position, upon learning of DeMarco’s prior employment, told DeMarco that it would not be a problem; and (3) that CPMP back-dated documents indicating that DeMarco had poor references. Thus, summary judgment was not appropriate.
Accordingly, for the foregoing reasons, the judgment of the district court is VACATED and the case is REMANDED.
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SUMMARY ORDER
Laurie Leigh Hill petitions for review of a November 12, 2008 decision of the BIA dismissing as moot his appeal from the May 18, 2007 decision of Immigration Judge (“IJ”) Philip Montante, Jr. The IJ found Hill inadmissible but permitted him to withdraw his application for admission. While acknowledging that his application is no longer pending, Hill now seeks to challenge the inadmissibility finding. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our ruling.
This court has jurisdiction to review “final orders of removal” pursuant to 8 U.S.C. § 1252(a)(1). The government argues that no such order exists. Hill responds that an IJ’s finding of inadmissibility, without more, constitutes an order of *655removal. See 8 U.S.C. § 1101(a)(47)(A); Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir.2006). Such an order becomes final upon the earlier of (1) “a determination by the [BIA] affirming such order” or (2) “the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].” 8 U.S.C. § 1101(a)(47)(B).
Neither of these two events occurred in this case. Upon finding Hill inadmissible, the IJ granted him permission to withdraw his application for admission pursuant to 8 U.S.C. § 1225(a)(4). Such a withdrawal is permitted only “in the interest of justice,” 8 C.F.R. § 1240.1(d), see also In re Gutierrez, 19 I. & N. Dec. 562, 564-65 (BIA 1988), terminates the IJ’s jurisdiction, see In re Vargas-Molina, 13 I. & N. Dec. 651, 652 (BIA 1971), and permits an alien to depart without incurring an express order of removal, see In re Gutierrez, 19 I. & N. Dec. at 564. On this basis, the BIA dismissed Hill’s appeal from the IJ’s ruling as moot.
Hill now claims this was error. Insisting that the inadmissibility finding survives, he contends that it will require him to seek an additional waiver, should he attempt to reenter the United States, see 8 U.S.C. § 1182(d)(3), and might subject him to expedited removal, see id. § 1225(b), or even detention, see id. § 1226(c). He claims further that the finding will bind future agency adjudicators. See Dulal-Whiteway v. U.S. Dep’t of Homeland Sec., 501 F.3d 116, 120 (2d Cir.2007), abrogated on other grounds as noted in Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009).
Although the BIA is not bound by traditional mootness doctrine, see In re Luis-Rodriguez, 22 I. & N. Dec. 747, 752-53 (BIA 1999), principles underlying the doctrine supported the challenged dismissal. A case is moot when no live case or controversy exists. See Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir.2004). To avoid mootness, “petitioner must have suffered, or be threatened with, an actual injury traceable to [respondent] and likely to be redressed by a favorable judicial decision.” Id. at 160 (internal quotation marks omitted).
Hill has suffered no actual injury; nor is he threatened with one. As the BIA explained, the withdrawal of his application rendered the IJ’s finding of inadmissibility “inoperative.” In re Hill, No. A074 720 667, at 2 (BIA Nov. 12, 2008). We interpret this to mean that the IJ’s grant of permission to withdraw had the effect of vacating his prior rulings, rendering the inadmissibility finding a legal nullity. Cf. United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (“The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot ... is to reverse or vacate the judgment below and remand with a direction to dismiss.... That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.”). At oral argument, counsel for the government represented that the IJ’s finding would, at most, be a reason — along with Hill’s record of conviction — for authorities to stop him if he attempted to reenter the United States. Hill would thereafter be entitled to a de novo consideration of his admissibility. We accept this representation and conclude that because the challenged IJ finding has no preclusive effect in any future proceeding against Hill, he is not threatened with any injury a judicial decision could redress. Thus, this appeal is moot.
*656Accordingly, the petition for review is DISMISSED.
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SUMMARY ORDER
Petitioners, Edwin Orlando Salto-Moli-na (“Edwin”), Flanclin Bladimir Salto-Molina (“Flanclin”), Jhonny Omar Guerrero-Salto (“Jhonny”) and Wilson Genaro Pilleo-Salto (“Wilson”), natives and citizens of Ecuador, seek review of final orders of the Board of Immigration Appeals (“BIA”) entered, as to Wilson, on June 10, 2008, and, as to the other three petitioners, on June 19, 2008, affirming the decision of an Immigration Judge (“IJ”) denying petitioners’ motions to suppress evidence and ordering their removal. We assume the parties’ familiarity with the factual and procedural history of the case.
On appeal, petitioners argue that the proceedings before the IJ were fundamentally unfair and denied them due process of law because an evidentiary hearing was not conducted to further “develop the record.” Pet’rs Br. 15. Petitioners never requested an evidentiary hearing before the IJ, however, and never suggested the lack of such a hearing as a ground for error in their brief to the BIA. Accordingly, because petitioners failed to exhaust their administrative remedies with respect to that claim, we lack jurisdiction to consider it in the first instance. See 8 U.S.C. § 1252(d)(1); Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 77-78 (2d Cir.2008) (dismissing claim where petitioner’s BIA brief was not adequate to put the agency on notice of a particular argument).
The IJ’s failure to hold an eviden-tiary hearing is the only issue adequately raised in petitioners’ opening brief and we therefore consider all other arguments waived. See Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir.2005).
CONCLUSION
We have considered all of the petitioners’ arguments and find them to be without merit. For the foregoing reasons the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED.
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SUMMARY ORDER
Appellant Richard E. Stone, pro se, appeals from the order of the United States District Court for the Southern District of New York (Cote, J.), granting summary judgment in favor of Appellee New York Public Library in Appellant’s racial discrimination action brought under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, determining whether there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Having conducted an independent examination of the record, we conclude, for substantially the reasons stated by the district court, that Appellant failed to meet his burden of demonstrating that he was denied services based upon his race. See Lizardo v. Denny’s, Inc., 270 F.3d 94, 106 (2d Cir.2001).
We additionally find Appellant’s claim of error regarding the district court’s management of discovery to be unavailing. The record demonstrates that the magistrate judge was well within his discretion to limit discovery in light of the length of time that the action had been pending and the granting of two previous extensions. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990) (“[A]n appellate court ordinarily will not disturb a district court’s ruling on a discovery request absent an abuse of discretion.”). Furthermore, the record does not support Appellant’s claims of discovery abuses and bad faith by counsel for Appel-lee. Even were it to support those claims, Appellant cannot move for Rule 11 sanctions in this Court, and he did not file such a motion in the court below. See Barr Labs., Inc. v. Abbott Labs., 867 F.2d 743, 748 (2d Cir.1989), overruled on other grounds by Cooter & Gell v. Hartmarx, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Finally, the district court was not required to hold a hearing on the summary judgment motion and did not abuse its discretion in choosing not to do so. See Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir.1998).
We have carefully considered Appellant’s remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Archie V. Jackson, appearing pro se, appeals the district court’s judgment dismissing his claim for breach of the duty of fair representation against Local 100 of the Transport Workers Union (“Local 100”), and granting summary judgment dismissing his claims of age, disability, and race discrimination, as well as his claim of unlawful retaliation against Local 100 and the New York City Transit Authority (“NYCTA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Duty of Fair Representation Claim
We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Our review of the record reveals that the district court properly granted Local 100’s motion to dismiss Jackson’s duty of fair representation claim as barred by the applicable four-month statute of limitations. See N.Y. C.P.L.R. § 217(2)(a).
II. Discrimination Claims
We review an order granting summary judgment de novo, and consider whether the district court properly concluded that there were no genuine issues of material fact, and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
A. Age and Disability Claims
Jackson does not make any argument concerning the grant of summary judgment as to his age or disability discrimination claims, and, as a result, he has waived them. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (noting pro se appellant abandoned claim by not raising it in his appellate brief).
B. Race Claims
In order to make out a prima facie case of discrimination in violation of Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he performed the job satisfactorily; (3) an adverse employment action took place; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff has properly alleged a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the adverse employment decision. See Shumway v. United Parcel Serv., 118 F.3d 60, 63 (2d Cir.1997); see also McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. The burden then shifts back to the plaintiff to present evidence that the employer’s proffered reason is a pretext for an impermissible motivation. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. “Thus, once the employer has proffered its nondiscriminatory reason, the employer *669will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir.2000) (citations omitted).
Our review of the record reveals that the district court properly granted Local 100’s and the NYCTA’s motions for summary judgment with regard to Jackson’s race discrimination claims because Jackson did not put forth any evidence from which a reasonable juror could conclude that the actions of either defendant was motivated by discriminatory animus. Indeed, the list of those promoted showed that there were many black employees who were promoted, as well as white employees who were not promoted at first, and that the only other person from the long list of eligible candidates who did not eventually receive a promotion was white. Accordingly, the district court properly granted the defendants’ motions for summary judgment with respect to Jackson’s race discrimination claim.
C. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff is required to show by a preponderance of the evidence that: (1) he participated in a protected activity, (2) the defendant knew of the protected activity; (3) he experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001). The McDonnell Douglas burden shifting analysis applies to retaliation claims brought pursuant to Title VII. See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003). Accordingly, if a plaintiff properly alleges a •prima facie case of retaliation, and the employer proffers a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer’s explanation is merely a pretext for impermissible retaliation. See Cifra, 252 F.3d at 216 (citations omitted).
Here, the district court properly found that Jackson failed to rebut the NYCTA’s legitimate, non-retaliatory reason for his non-promotion — his attendance record and his two disciplinary suspensions. Jackson offered no evidence that would permit a reasonable fact-finder to infer that the NYCTA’s stated reason was pretextual. Accordingly, the district court properly granted the defendants’ summary judgment on this claim. To the extent Jackson alleged that he had a long-term illness that should have excused his absences, his own evidence contradicted that claim. He did not claim that he was absent in 1997, 1998, or 1999 as a result of his back problem. Moreover, he was the only candidate for promotion whose disciplinary record included a suspension.
III. Appointment of Counsel
The district court did not abuse its discretion in denying Jackson’s motion for appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986).
We have carefully reviewed the Appellant’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Anzou Kone, a native and citizen of Cote d’Ivoire, seeks review of a March 31, 2008 order of the BIA, affirming the December 7, 2006 decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Anzou Kone, No. A098 647 863 (B.I.A. Mar. 31, 2008), aff'g No. A098 647 863 (Immig. Ct. N.Y. City Dec. 7, 2006). We assume the *671parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The agency reasonably relied on material discrepancies between Kone’s testimony and his documentary evidence. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003). Specifically: (1) Kone testified that his father was killed on September 10, 2002, while the death certificate indicated that his father died on October 17, 2002; (2) Kone testified that the doctor evaluated his injuries using only a stethoscope, while Kone’s medical certificate referred to a CAT scan; (3) Kone testified that his arm had been burned, while the medical certificate stated that his arm had been fractured; and (4) when confronted with the certificate, Kone testified that his right arm had been broken, while the certificate referred to his left arm.
While minor discrepancies in dates may be insufficient to support an adverse credibility finding, see Moussa Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000), the timing of Kone’s detention and his father’s death went to the heart of his claim for asylum. The agency therefore reasonably relied (in part) on the date inconsistency to question Kone’s credibility, see Secaida-Rosales, 331 F.3d at 308-09; see also Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). The IJ also reasonably relied on inconsistencies relating to Kone’s alleged injuries because these inconsistencies were substantial insofar as they concerned his allegation of past harm. See Secaida-Rosales, 331 F.3d at 308. Kone’s explanations for these discrepancies were not such as to compel a reasonable fact-finder to credit his testimony. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Because the agency’s adverse credibility determination was supported by substantial evidence, it reasonably denied Kone’s applications for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Kone abandons any challenge to the agency’s denial of his application for CAT relief by failing to raise such a challenge in his brief to this Court.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-appellant Rickey A. Lynch appeals from a July 31, 2007 judgment of the District Court entered after the District Court dismissed plaintiffs amended complaint in a July 30, 2007 Memorandum Decision and Order of Dismissal. We assume the parties’ familiarity with the underlying facts, procedural history, and issues raised on appeal.
Plaintiff brought this action under 42 U.S.C. § 1983 claiming that his car and other property were unconstitutionally seized and subsequently used to secure his conviction, and nine-year imprisonment, on forty-two felony counts of forgery and grand larceny. Plaintiff also asserted claims under § 1983 for false arrest, false imprisonment, and malicious prosecution in connection with his arrest and trial on the forgery and grand larceny charges, as well as in connection with several misde*674meanor charges that were brought against him but later dismissed “in the interest of justice” under New York Criminal Procedure Law § 170.40. Lastly, plaintiff brought claims of malicious prosecution and false imprisonment under New York common law.
The District Court dismissed plaintiffs amended complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). We review the District Court’s dismissal de novo. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). For each of plaintiffs claims pursuant to § 1983, and for plaintiffs common law claims of malicious prosecution, we affirm the District Court’s dismissal substantially for the reasons set forth in the District Court’s decision. For plaintiffs common law claim of false imprisonment, we conclude that dismissal was inappropriate. Nevertheless, because it would be an abuse of discretion for the District Court to exercise supplemental jurisdiction over plaintiffs common law claim of false imprisonment, we remand the cause to the District Court with instructions to enter judgment for defendants-appellees.
I. Section 1983 Claims
We affirm the District Court’s dismissal of each of plaintiffs § 1983 claims. First, the doctrine articulated by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars plaintiffs claims for malicious prosecution in connection with his felony convictions. Plaintiff seeks to “recover damages for [an] allegedly unconstitutional conviction or imprisonment,” id. at 486, 114 S.Ct. 2364, but plaintiff concedes, J.A. 270 (Comply 60), that his felony convictions have never been “invalidated” by a court or other proper authority, Heck, 512 U.S. at 487, 114 S.Ct. 2364; see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006). In any event, a plaintiff “alleging the constitutional tort of malicious prosecution in an action pursuant to § 1983 must establish termination of the prosecution in his favor in accordance with applicable state law.” Hygh v. Jacobs, 961 F.2d 359, 367-68 (2d Cir.1992). The felony prosecution of plaintiff was not terminated in his favor; plaintiff was convicted.
Second, plaintiff cannot state a § 1983 claim for malicious prosecution in connection with the misdemeanor charges because the charges were dismissed “in the interest of justice” under New York Criminal Procedure Law § 170.40. A dismissal “in the interest of justice” under New York Criminal Procedure Law § 170.40 “cannot provide the favorable termination required as the basis for a claim of malicious prosecution.” Hygh, 961 F.2d at 368 (citing Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487, 493 (1984)).
Third, plaintiffs § 1983 claim challenging the seizure of his car and other effects is time-barred. The statute of limitations for a § 1983 action arising in New York is three years, Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994), and, in most cases, a cause of action under § 1983 accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his action,” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002) (internal quotation marks omitted). Plaintiff claims that he did not learn of the unconstitutionality of the seizure of his car and other effects until he received an Internal Affairs Bureau report in 2003. That report, however, described only how the seized evidence was allegedly used by investigators and prosecutors to convict plaintiff. Under Heck, plaintiff cannot recover damages for his conviction; he can recover only the damages he allegedly sustained as a result of the seizure itself. 512 U.S. at 486-87 & n. 7, 114 S.Ct. 2364. *675Plaintiff was aware that his property was seized — and thus knew “of the injury which is the basis of his action” — on February 1,1997, and the statute of limitations began to run on plaintiffs claim at that time. Pearl, 296 F.3d at 80. Plaintiff did not commence this action until March 31, 2005, well after the three-year statute of limitations had elapsed. We agree with the District Court that equitable tolling is not appropriate, and thus plaintiffs § 1983 claim relating to the seizure of his car and other effects is time-barred.
Fourth, plaintiffs § 1983 claims for false imprisonment and false arrest are also time-barred. For a § 1983 claim of false imprisonment — and for a claim of false arrest, which is a “species” of false imprisonment — the statute of limitations begins to run “when the alleged false imprisonment ends.” Wallace v. Kato, 549 U.S. 384, 388-89, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). An alleged false imprisonment ends when “the victim becomes held pursuant to [legal] process — when, for example, he is bound over by a magistrate or arraigned on charges.” Id. (emphasis omitted). Here, plaintiff was arraigned shortly after his allegedly false arrest and imprisonment in 1997. The statute of limitations, therefore, began to run at that time, and plaintiffs claims for false arrest and false imprisonment — brought in 2005 — are barred by the three-year statute of limitations.
Fifth, plaintiffs claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), is essentially derivative of his other § 1983 claims and fails for the same reasons that those claims fail. In order to prevail on a claim against a municipality under Monell, a plaintiff must allege, among other things, that a “municipal policy of some nature caused a constitutional tort.” Id. at 691, 98 S.Ct. 2018; accord Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008). Insofar as plaintiff alleges that a municipal policy caused prosecutorial misconduct in the trial that led to his felony convictions, plaintiffs claim seeks to “recover damages for [an] allegedly unconstitutional conviction or imprisonment” and is barred by Heck, 512 U.S. at 486, 114 S.Ct. 2364. Insofar as plaintiff alleges that a municipal policy caused malicious prosecution in connection with the dismissed misdemeanor charges, plaintiff cannot show malicious prosecution because the charges were not terminated in his favor. Hygh, 961 F.2d at 367-68 (citing Ryan, 478 N.Y.S.2d 823, 467 N.E.2d at 493). Insofar as plaintiff alleges that a municipal policy caused the unconstitutional seizure of his car and effects and caused his unlawful arrest and imprisonment, the statute of limitations on those claims has long since elapsed. Pearl, 296 F.3d at 80.
II. New York Common Law Claims
We affirm the District Court’s dismissal of plaintiffs common law claims of malicious prosecution. Those claims fail for the same reason that his § 1983 claims of malicious prosecution fail: neither the felony charges nor the misdemeanor charges were dismissed in plaintiffs’ favor. Hygh, 961 F.2d at 367-68 (citing Ryan, 478 N.Y.S.2d 823, 467 N.E.2d at 493).
The District Court erred, however, in concluding that plaintiffs common law false imprisonment claim was barred by the statute of limitations. “[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (emphasis omitted); accord Pearl, 296 F.3d at 80. Thus, under federal law, plaintiffs claim of false imprisonment under § 1983 accrued when plaintiff was arraigned in 1997. See Wallace, 549 U.S. at 388-89, 127 S.Ct. 1091. By contrast, the accrual date of a state com*676mon law cause of action is a question of state law, and under New York law, a “cause of action for the tort of false imprisonment accrues” not on the date of arraignment but on “the date of the prisoner’s release from confinement.” Jackson v. Police Dep’t of the City of N.Y., 119 A.D.2d 551, 552, 500 N.Y.S.2d 553 (N.Y.App.Div., 2d Dep’t, 1986); accord Santiago v. City of Rochester, 19 A.D.3d 1061, 1061-62, 796 N.Y.S.2d 811 (N.Y.App. Div., 4th Dep’t, 2005). Plaintiff filed this action prior to his release from confinement, and thus plaintiffs common law false imprisonment claim was timely. Accordingly, we vacate the District Court’s judgment insofar as the District Court dismissed plaintiffs common law false imprisonment claim.
III. Leave to Amend
Finally, we uphold the District Court’s denial of plaintiffs request for leave to amend his complaint. We review the denial of leave to amend for “abuse of discretion.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citation, alterations, and quotation marks omitted). “Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend ‘shall be freely given when justice so requires,’ it is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy, 482 F.3d at 201. Here, the District Court denied leave to amend because it found that amendment would have been futile and because, in any event, plaintiff had offered “no indication of what a second amended complaint would contain.” That denial was well within the range of permissible decisions available to the District Court.
IV. Supplemental Jurisdiction
As set forth above, we vacate the District Court’s judgment insofar as the District Court dismissed plaintiffs common law false imprisonment claim. Nevertheless, it would be an abuse of disci-etion for the District Court to exercise supplemental jurisdiction over that claim pursuant to 28 U.S.C. § 1367. See Valencia v. Lee, 316 F.3d 299, 304-08 (2d Cir.2003). Because the District Court correctly dismissed each of plaintiffs § 1983 claims, and because we affirm the District Court’s denial of leave to amend, “all federal-law claims” have been “eliminated before trial” and all of the relevant factors— “judicial economy, convenience, fairness, and comity” — “point toward declining to exercise jurisdiction over the remaining state-law claims.” Id. at 305 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349-50, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)) (internal quotation marks omitted). Accordingly, on remand, the District Court is instructed to enter judgment for defendants-appellees.
CONCLUSION
For the reasons stated above, the July 31, 2007 judgment of the District Court is AFFIRMED insofar as the District Court dismissed plaintiffs § 1983 claims and plaintiffs common law malicious prosecution claims. The judgment of the District Court is VACATED insofar as the District Court dismissed plaintiffs common law false imprisonment claim as barred by the statute of limitations. The cause is REMANDED to the District Court with instructions to enter judgment for defendants-appellees.
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https://www.courtlistener.com/api/rest/v3/opinions/8472995/
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SUMMARY ORDER
Defendants-appellants Everdry Marketing and Management, Inc. (“EMM”) and Everdry Management Services, Inc. (“EMS”) appeal from an order denying their motions for judgment as a matter of law following a jury verdict in favor of plaintiff-appellee the Equal Employment Opportunity Commission (“EEOC”), in plaintiffs action on behalf of multiple EMS employees subjected to sexual harassment in the workplace. The District Court denied defendants’ motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, and entered final judgment for plaintiff on November 7, 2006. Pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure, both defendants and plaintiff moved to amend or correct the judgment. Plaintiff also sought an order for injunctive relief against defendants. On July 2, 2008, the District Court issued an amended judgment to reduce the compensatory damage award and to include, in part, prejudgment interest. The District Court denied plaintiffs motion for injunctive relief. Defendants appeal the final judgment against them. Plaintiff counter-appeals the District Court’s denial of injunctive relief. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
On appeal, defendants argue that the District Court erred in (1) denying their motion for judgment as a matter of law due to insufficient evidence establishing that EMM and EMS are an integrated enterprise, (2) failing to remit the damages award to reflect that if EMM and EMS were an integrated enterprise, that integration was limited to a window of months in which an EMM employee fulfilled management duties at EMS, (3) failing to instruct the jury on punitive damages, and (4) declining to remit the punitive damages award against EMM because it is allegedly so high as to shock the conscience. Plaintiff defends the District Court’s judgment and damages award, but contends that the District Court “abused its discretion” in denying its motion for injunctive relief against both defendants.
Judgment as a Matter of Law
We review de novo a district court’s order denying a motion for judgment as a matter of law under Rule 50. See, e.g., Broadnax v. City of New Haven, 415 F.3d 265, 267 (2d Cir.2005). A court should grant a motion for judgment as a matter of law after the jury has returned a verdict only when there is “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992). In determining whether judgment as a matter of law is appropriate, the court should “review all of the evidence in the record. In doing so ... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.... [T]he court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 15O-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations *679omitted). Although defendants contend that evidence of the interrelation of operations and control of labor relations, see Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995), between EMM and EMS was insufficient to support the jury’s finding that the two companies constitute a single, integrated enterprise, we agree with the District Court that there is no reason to overturn the jury’s finding. Based on the record of the entire proceeding, we cannot say that there was “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture.” Song, 957 F.2d at 1046.
Damages Award
“The standard for appellate review of damages awards, whether compensatory or punitive, ‘is whether the award is so high as to shock the judicial conscience and constitute a denial of justice.’ ” O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir.1978)). In reviewing a claim of excessive damages, “an appellate court must accord substantial deference to the jury’s determination of factual issues. In examining a lower court’s discretionary refusal to set aside a verdict, an appellate court must view the evidence and draw all factual inferences in favor of the appellee.” Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir.1982) (citations omitted). Because defendants’ challenge to punitive damages was not made below, the award can only be overturned to “prevent a manifest injustice” if the jury’s verdict is “wholly without legal support.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004) (internal quotation marks omitted). On appeal, defendants also challenge the jury instructions on punitive damages. Our review, however, shows that the punitive damages awards have legal support, and we find no error in the court’s instructions.
Injunctive Relief
We review a district court’s denial of a motion for injunctive relief for “abuse of discretion.” See Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir.1997); Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1329-30 (2d Cir.1987). The discretion whether to order injunctive relief must be “guided by sound legal principles.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In seeking an injunction, “[t]he moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
As the District Court noted in its careful opinion denying injunctive relief, an “exercise of discretion [to issue an injunction] is inappropriate [here] because the post-trial record demonstrates that EMS is no longer a viable operating entity.” EEOC v. Everdry Marketing & Mgmt., Inc., 556 F.Supp.2d 213, 225 (W.D.N.Y.2008). Even if EMM allowed the alleged harassment to occur at EMS, the harassment itself never took place at EMM. We therefore agree with the District Court that the finding that EMM and EMS are a single, integrated enterprise does not, standing alone, present a “cognizable danger of recurrent violation ... which serves to keep the case alive.” W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. 894. Going forward — EMS no longer exists. All of the claims related to Rochester, which is now cut off. Accordingly, we find, in the circumstances presented here, that the District Court did not “abuse its discretion” in denying plaintiffs motion for injunctive relief.
*680We have considered all of plaintiffs’ remaining contentions and find them to be without merit.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED and costs are GRANTED to the EEOC.
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https://www.courtlistener.com/api/rest/v3/opinions/8472999/
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SUMMARY ORDER
Petitioner Shi Ji Lin, a native and citizen of the People’s Republic of China, seeks review of the December 9, 2008 order of the BIA denying his motion to reopen removal proceedings. In re Shi Ji Lin, No. A072 485 434 (B.I.A. Dec. 9, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); see also Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).
“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.” Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Lin has failed to challenge the BIA’s denial of his motion to reopen based on his illegal departure. Indeed, Lin mentions the BIA’s denial on this ground once in a single sentence in a section of his brief titled “Statement of My Case,” but does not explain why the BIA’s denial was in error. While this Court liberally construes Lin’s pro se submission, see Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir.2003), his failure to argue error results in a waiver of any challenge to the BIA’s denial of his motion to reopen on this ground. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
In addition, the BIA reasonably rejected Lin’s claim for adjustment of status based on his failure to submit any of the allegedly approved applications that would entitle him to such relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). For the first time, before this Court, Lin contends that his wife’s 1-130 petition was approved on May 10, 2008, and provides a receipt number for this petition. Because Lin failed to raise this argument (or include such information as part of the record) before the BIA, we conclude that Lin failed to exhaust this argument before the agency and therefore decline to review it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). Nor will we remand for the BIA consider this extra-record material. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007).
Lin spends the majority of his brief arguing that he is entitled to reopening because the birth of his three U.S. — citizen children would place him in violation of the family planning policy in China. This Court lacks jurisdiction to consider these arguments because they were not raised before the BIA in the motion to reopen that is the subject of Lin’s petition for review. They were, instead, raised in a previous motion to reopen, from which Lin did not file a petition for review. On a *684motion to reopen, we lack jurisdiction to review underlying agency decisions that are not the subject of the petition for review. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005). We therefore dismiss the petition for review to the extent Lin challenges the BIA’s March 2006 decision.
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part.
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https://www.courtlistener.com/api/rest/v3/opinions/8473001/
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SUMMARY ORDER
Plaintiff-Appellant Paul Berube (“Be-rube”) appeals from a judgment of the United States District Court for the District of Connecticut (Bryant, J.), entered February 26, 2008, granting summary judgment to Defendant-Appellee Great Atlantic & Pacific Tea Company, Inc. (“A & P”) on his claims of discrimination under the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., and declining to exercise supplemental jurisdiction over his state law claims. Berube appeals only the ADEA and ERISA claims.1 We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Berube was formerly employed by A & P as a liquor store manager, a position that included bookkeeping responsibilities. At the time he was offered the position, he was promised by A & P that he would receive progressive discipline before termination of his employment. A & P’s general, although not universal, practice was to provide a four-step disciplinary process for continuing violations: a verbal warning, a written warning, a suspension, and finally termination. In 2003, A & P changed its invoicing procedures. Berube initially failed to comply with the new procedures and ultimately was transferred to a different store.2 After an audit at the new store revealed that Berube was still using the old inventory method, A & P verbally ordered him to use the new method. It is undisputed that plaintiff complied with this instruction; nevertheless, A & P suspended Berube approximately two weeks later and terminated his employment shortly thereafter. Although, before he was terminated, Berube was shown a document regarding his alleged mismanagement of invoices at his old store in Bristol and was suspended at that time, neither the document nor the suspension cited Berube’s conduct after he was specifically told to use the new inventory method. Moreover, Berube was not given the opportunity to return to work after being shown the document and being placed on suspension, and A & P does not rely on the document or the suspension to argue that Berube received progressive discipline. See Defendant’s Br. 35.
We review de novo a grant of summary judgment, which may be given where the *686record, viewed in the light most favorable to the non-moving party, shows no genuine issue of material fact. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On summary judgment, plaintiffs ADEA claim is analyzed under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff bears the initial burden to establish a prima facie case of age discrimination by showing that “(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Roge v. NYP Holdings, 257 F.3d 164, 168 (2d Cir.2001). We have characterized plaintiffs prima facie burden as “minimal” and “de minim-is.” Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) (internal quotation marks omitted). The burden of production then shifts to the employer to demonstrate a legitimate, non-diseriminatory reason for the adverse employment decision, and finally back to the plaintiff to show that the proffered nondiscriminatory reason is pretextual. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817.
Berube seeks to raise the inference of discrimination required for his prima facie case by showing, inter alia, that A & P treated younger, similarly-situated employees more favorably than he. Employees used as comparators in such an analysis need not be identically situated, but only must be similarly situated in all material respects. See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001). “What constitutes ‘all material respects’ ... varies somewhat from case to case and, as we recognized in Norville, must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000) (citing Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.1999)). “Ordinarily, the question whether two employees are similarly situated is a question of fact for the jury.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003).
We find that plaintiff has proffered sufficient evidence to make out a prima facie claim of discriminatory intent by demonstrating that younger, similarly-situated employees received progressive discipline for transgressions of comparable seriousness while he did not. Berube identifies at least four comparators, Brian Badlowski, Ryan Fleet, Sid Prasad, and Frank Sen-gotta, who were liquor store managers younger than he and who were cited for violating A & P’s workplace rules around the same time plaintiff was fired. Each of the comparators received written warnings as a disciplinary method, and none were terminated for disciplinary violations. Under the standard set forth in Graham, the fact that Berube had a different supervisor from the employees he cites as comparators does not appear sufficient in itself to preclude Berube from showing that he was subject to the same workplace standards and disciplinary procedures. See id.; Norville, 196 F.3d at 97. Although Be-rube’s district manager may not have given written warnings to employees as a general practice, Berube has produced substantial evidence that progressive discipline was a general practice at A & P and that managers expected to receive such discipline. We cannot say as a matter of law that the employees Berube cites were not similarly situated in terms of work*687place standards and disciplinary procedures.
Nor is it sufficient simply to point out, as A & P does, that the comparators were disciplined for issues “not related to a failure to comply with the new recordkeep-ing procedures.” Appellee’s Br. 87. Rather, Berube need only demonstrate that the conduct for which the comparators were disciplined was of “comparable seriousness” to his recordkeeping transgressions. Graham, 230 F.3d at 40. There are certainly differences between the evinced conduct and that of Berube: Badlowski had a smaller invoice discrepancy and Fleet and Prasad were mostly cited for being “sloppy,” while Sengotta’s larger inventory discrepancy may have been partially due to the conduct of eoworkers. Yet these differences are not so significant that a reasonable juror would be precluded from deciding that these employees engaged in conduct of comparable seriousness. Fleet and Prasad’s messiness resulted in the loss of “Rip logs” used to track the store’s performance, much like Berube’s invoices. To determine relative severity of conduct between Berube and Badlowski, it is difficult to tell whether the $2,300 discrepancy in a single week of Badlowski’s invoices should be compared to the $15,000 swing in Berube’s “inventory,” or rather to the $1,395.97 discrepancy reflected in random invoices selected from a month of Berube’s records. As for Sen-gotta, even if other co-managers were partially responsible he was still the only store manager at a store with a $95,000 short inventory, making his conduct facially similar to if not more serious than Be-rube’s. This is a sufficient showing to meet the minimal burden imposed by McDonnell Douglas’s first step. We express no view as to steps two and three, which the district court did not reach.
We agree with the district court’s grant of summary judgment on plaintiffs ERISA claim. Section 510 of ERISA makes it “unlawful for any person to discharge ... or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan.” 29 U.S.C. § 1140. To succeed on a Section 510 claim, a plaintiff must demonstrate the employer specifically intended to interfere with benefits. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140, 111 S.Ct. 478,112 L.Ed.2d 474 (1990). Moreover, to defeat summary judgment a plaintiff must adduce some evidence from which a reasonable jury could conclude that an employer intended to reduce benefits under ERISA. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997); see also Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988) (“An essential element of plaintiffs proof under the statute is to show that an employer was at least in part motivated by the specific intent to engage in activity prohibited by § 510.”). Plaintiff has failed to meet this burden, merely speculating that the cost of his skin cancer treatments was the cause of his termination. No reasonable jury could conclude based on the record before us that A & P intended to deprive Berube of his medical benefits.
All arguments not otherwise discussed in this summary order are found to be moot or without merit.
For the foregoing reasons, the judgment of the district court granting summary judgment on the ERISA claim is hereby affirmed. The judgment is reversed as to the district court’s finding that plaintiff has not made a prima facie case of discrimination and remanded for further proceedings consistent with this opinion, including further analysis under McDonnell Douglas.
. Berube did not contest summary judgment on the ADA claim below, which was therefore properly granted. The district court's observations with respect to the merits of his ADA claim should not, however, be taken to have any collateral estoppel effect with respect to any future claim under the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen.Stat. § 46a-51 et seq., that he might bring.
. The parties dispute the reason for the transfer. A & P asserts that an audit of Berube's store indicated that he was adhering to the old guidelines, and it transferred him as a result. Berube identifies at least some documentary evidence that the audit occurred after his transfer, and thus could not have supplied the motivation.
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https://www.courtlistener.com/api/rest/v3/opinions/8473003/
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SUMMARY ORDER
Plaintiff, Mellard Jennings, appeals from a May 13, 2008 judgment entered in the United States District Court for the Southern District of New York (Brieant, J.). On defendants’ motion, the district court granted summary judgment for Wyeth Pharmaceuticals and Charles Guinosso. We assume the parties’ familiarity with the underlying facts and the procedural history.
On appeal, Jennings argues that the district court erred by finding there to be no genuine issue of material fact with respect to (1) his hostile work environment claim, (2) his retaliation claim, and (3) his “failure to promote” claim.
We have considered Jennings’ arguments, and they are without merit. With respect to the first two claims, we affirm for substantially the treasons stated by the district court in its summary judgment *689opinion and order. And we decline to consider Jennings’ arguments with respect to the third, as no “failure to promote” claim was ever made in the district court. See Kraebel v. N.Y. City Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 401 (2d Cir.1992).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendant Srinivas Kasi appeals from a judgment of conviction entered on June 18, 2008, in the United States District Court for the Southern District of New York. After a plea of not guilty, a jury convicted *691defendant of one count of conspiracy to commit food stamp fraud in violation of 18 U.S.C. § 371; one count of food stamp fraud in violation of 7 U.S.C. §§ 2024(b)(1), 2016 and 7 C.F.R. § 278.2; and one count of theft of food stamp benefits in violation of 18 U.S.C. § 641. The District Court sentenced defendant primarily to 57 months’ imprisonment. On appeal, defendant argues as follows: (1) the evidence introduced at trial was insufficient to establish that the food stamp funds were money of the United States; (2) the District Court erred in denying defendant’s motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure; (3) the District Court erred in using an unreasonable estimate of the loss that caused by defendant for the purposes of sentencing; (4) the District Court erred in failing to consider disparities in sentencing among co-defendants; and (5) the District Court erred in applying a two-level abuse-of-trust enhancement for the purpose of calculating defendant’s sentence under the United States Sentencing Guidelines (the “Guidelines”). We assume the parties’ familiarity with the facts and procedural history of this case.
First, defendant argues that the evidence presented at trial was insufficient to establish that the food stamp funds were money of the United States within the meaning of 18 U.S.C. § 6411 Because “the task of choosing among competing, permissible inferences is for the ¡jury and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001), we are required to review the evidence “in the light most favorable to the government,” United States v. Gas-kin, 364 F.3d 438, 459 (2d Cir.2004), and “resolve all issues of credibility in favor of the jury’s verdict.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (quotation marks omitted). See generally Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under our precedent, it is well established that federal grant money or property “remains money ‘of the United States’ within the meaning of § 641, notwithstanding prior transfer to a local administrator, so long as the government exercises supervision and control over the funds and their ultimate use.” United States v. McKay, 274 F.3d 755, 758 (2d Cir.2001) (quotation marks omitted). To satisfy the “supervision and control” requirement, the government need not show “more than federal regulations governing the handling of the money.” Id. Whether the federal government retains the necessary supervision and control over funds for them to remain money of the United States is a question of fact for the jury. See Hayle v. United States, 815 F.2d 879, 882 (2d Cir.1987).
At trial, the prosecution presented sufficient evidence for a jury to conclude that the food stamp funds were property of the United States. Witnesses included a United States Department of Agriculture (“USDA”) official who explained that the food stamp program is a partnership between the federal government and state and local agencies in which the federal government provides funds to state and local agencies to distribute through the food stamp program. This witness further testified that state and local agencies must comply with federal regulations governing eligibility for and use of food stamps. Fi*692nally, the witness testified that stores must comply with numerous federal requirements and apply for authorization with the USDA to participate in the food stamp program. Taken together, we conclude that this evidence is more than sufficient for a jury to conclude that the food stamp funds were money of the United States for the purposes of § 641.
Next, defendant argues that the District Court erred in denying his motion for a new trial based on the government’s rebuttal summation. The Federal Rules of Criminal Procedure allow courts to “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed. R.Crim.P. 33(a), but “motions for a new trial are disfavored in this Circuit,” United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). Accordingly, district courts should only grant motions for new trials if there is “a real concern that an innocent person may have been convicted.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (quotation marks omitted). We review this decision only for “abuse of discretion.” United States v. Guang, 511 F.3d 110, 119 (2d Cir.2007); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alteration, and quotation marks omitted)). We agree with the District Court that the government’s argument in the rebuttal summation-that defendant’s $46,000 wire transfer to his wife the day after his business partners were arrested was evidence of guilt-was a reasonable inference from the evidence presented at trial. Furthermore, there was abundant evidence of defendant’s guilt, so any erroneous inference drawn would be harmless error, as it would not have changed the outcome of the trial. Accordingly, we conclude that the District Court did not err in denying defendant’s motion for a new trial.
Third, defendant argues that the District Coui't erred in using an unreasonable estimate of loss that defendant’s offenses caused for the purposes of sentencing. We review a sentence for procedural and substantive reasonableness, which is akin to review under an “abuse-of-discretion” standard. See, e.g., United States v. Sanchez, 517 F.3d 651, 660 (2d Cir.2008); see also Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). It is well established that a district court “need not establish the loss with precision but rather need only make a reasonable estimate of the loss, given the available information.” United States v. Uddin, 551 F.3d 176, 180 (2d Cir.2009) (quotation marks omitted). Because other reasonable estimates of the loss amount were as much as twice the size of the District Court’s calculation, we conclude that the $422,352 loss estimate used by the District Court was reasonable.
Fourth, defendant argues that the District Court ei*red in failing to consider disparities in sentencing among co-defendants. Under 18 U.S.C. § 3553(a)(6), a sentencing court must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Here, the District Court determined that Kasi and his co-defendants were not similarly situated. Kasi was the only defendant to plead not guilty and proceed to trial. Furthermore, the District Court found that Kasi was more culpable than his co-defendants because he was the organizer and manager of the fraud scheme. For these reasons, we conclude that the District Court did not err by sentencing Kasi to a longer term of imprisonment than his co-defendants.
*693Finally, Kasi argues that the District Court erred in applying a two-level abuse-of-trust enhancement pursuant to U.S.S.G. § 3B1.3 for the purpose of calculating defendant’s sentence under the Guidelines. That section provides for a two-level enhancement of a defendant’s offense level “[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. Whether someone occupies a position of trust “turns on the extent to which the position provides the freedom to commit a diffieult-to-detect wrong.” United States v. Allen, 201 F.3d 163, 166 (2d Cir.2000) (quotation marks omitted). We agree with the District Court that the case for the abuse-of trust enhancement was “open and shut.” J.A. 228. Kasi, but not his co-defendants, was the person who received authorization from the USDA to participate in the food stamp program and was trained to ensure compliance with the program’s requirements. Furthermore, Kasi was entrusted by the USDA with the primary responsibility to help prevent fraud and abuse. For these reasons, we conclude that it was not an error for the District Court to apply the abuse-of-trust enhancement.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
. This statute establishes fines and terms of imprisonment for
[wjhoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof____
18 U.S.C. § 641.
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SUMMARY ORDER
Defendant-Appellant John McCallum Jr. appeals from a judgment of the District Court (Robinson, J.) entered after a jury trial convicting him of one count of conspiracy involving more than 50 grams of crack cocaine in violation of 21 U.S.C. § 846; one count of distributing and possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(C); and one count of distributing crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). The District Court sentenced him to 240 months’ incarceration, to be followed by ten years’ supervised release. We assume the parties’ familiarity with the facts, procedural history, and issues presented on appeal, as well as the opinion in this case filed separately today.
McCallum first argues that the District Court erred in admitting evidence of (1) McCallum’s uncharged narcotics activity in concert with Defendant Darryl Wright, and (2) identification testimony of a Ramapo police officer relating to the officer’s prior traffic stop of McCallum. We review a district court’s admission of prior bad acts evidence under Federal Rule of Evidence 404(b) for abuse of discretion. See United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir.2007).
We conclude that the District Court did not abuse its discretion in admitting either the uncharged narcotics activity evidence or the officer’s testimony. The former constituted “crucial background evidence that gave coherence to the basic sequence of events” leading up to and comprising the charged conspiracy. United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir.1997). The latter was probative of the basis for the police officer’s familiarity with McCal-lum, and despite the officer’s use of the word “arrest” in connection with McCal-lum’s prior traffic offense — which technically violated the District Court’s order to use the term “traffic stop” rather than “arrest” when referring to that event— McCallum was not prejudiced by this testimony. Even assuming prejudice arguen-do, we conclude that the District Court’s admission of this evidence was harmless error, primarily in light of the strength of the government’s case against McCallum. See United States v. Reifler, 446 F.3d 65, 87 (2d Cir.2006).
McCallum next contends that his rights under the Confrontation Clause of the Sixth Amendment were violated when the District Court allowed the government to elicit testimony regarding a meeting between a deceased informant and police officers as background for the police department’s investigation of McCallum. We have held that “violations of the Confrontation Clause ... are subject to harmless error review.” United States v. *696McClain, 377 F.3d 219, 222 (2d Cir.2004). We therefore will affirm as long as “the government can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. (internal quotation marks omitted).
In Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” See also United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir.2007). And as we noted recently in United States v. Paulino, hearsay “not offered for its truth may appropriately be received as relevant background ... to clarify noncontroversial matters without causing unfair prejudice on significant disputed matters.” 445 F.3d 211, 217-18 (2d Cir.2006) (internal quotation marks omitted).
Even though the informant in this case was deceased and therefore could not testify, we conclude that the District Court’s admission of testimony describing the informant’s meetings with the police officers did not implicate the Confrontation Clause, and that even if it did, any error committed was harmless. The evidence was not admitted for the truth of any implicit statement by DeFreese, but was offered to “clarify [the] noneontroversial matter[ ]” of how the officers had come to focus their investigation on MeCallum and Wright, id. at 217, in order to dispel any suggestion that they had done so arbitrarily. Even if such implicit “statements” by DeFreese, as related by the officers, were offered for their truth, their admission was harmless. The testimony was limited in nature, the District Court instructed the jury not to speculate on the contents of any conversation between DeFreese and the officers, and the government presented voluminous other evidence of DeFreese’s controlled purchases from MeCallum.
Lastly, MeCallum contends that the District Court exhibited judicial bias in making certain statements during summation, which effectively deprived MeCallum of a fair trial. We reverse for “judicial bias ... only where an examination of the entire record demonstrates that the jurors have been impressed with the trial judge’s partiality to one side to the point that this became a factor in the determination of the jury.” United States v. Salameh, 152 F.3d 88, 128 (2d Cir.1998). In addition, a trial court is free to ask questions for purposes of “clarifying ambiguities,” and “may actively participate and give its own impressions of the evidence ..., as an aid to the jury, so long as it does not step across the line and become an advocate for one side.” United States v. Filani, 74 F.3d 378, 385-86 (2d Cir.1996) (internal quotation marks omitted). We conclude that the statements MeCallum found objectionable were chiefly made in order to aid the jury in its duty as factfinder, and that they did not amount to advocacy for the government. None of these statements warrants reversal.
We have considered McCallum’s remaining contentions and conclude that they are without merit.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff D.T, individually and on behalf of her son J.L, appeals an award of summary judgment in favor of defendants (collectively, the “school district”) on plaintiffs race discrimination claim under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.,1 and from the denial of her motion for reconsideration. We review an award of summary judgment de *699novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ollman v. Special Bd. of Adjustment No. 1063, 527 F.Sd 239, 245 (2d Cir.2008). We review a district court’s denial of a motion for reconsideration for abuse of discretion. See Harris v. Kuhlmann, 346 F.3d 330, 348 (2d Cir.2003). We assume the parties’ familiarity -with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
Title VI prohibits intentional discrimination based on race in any program that receives federal funding. See 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 282-83, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir.2001). Under Title VI, a plaintiff may sue a school district for money damages based on alleged student-on-student harassment only if the school district “acts with deliberate indifference to known acts of harassment.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (emphasis added);2 Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir.2003) (holding that deliberate indifference claim requires proof that defendants (a) had actual notice of the harassment, and (b) failed to respond adequately).
1. Weiler Affidavit Alleging Discrimination of Another Student
To demonstrate that defendants had actual notice of students’ racial harassment of J.L., plaintiff produces (a) an affidavit by psychologist Marc Weiler, and (b) an email from the father of another biracial child to, inter alia, the superintendent of the Somers schools, both of which reference student-on-student racial harassment. Plaintiff relies on our Title VII employment discrimination cases to argue that this evidence supports an “inference of discrimination.” Appellant’s Br. at 15. In the context of Title VII, where Congress has expressly provided a private right of action, 42 U.S.C. § 2000e-5(f), and authorized suits for money damages, id. § 1981a(b), an employer is deemed to have notice of discrimination when he “knew or should have known of the [discriminatory] conduct.” Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995) (emphasis in original) (internal quotation marks omitted). In the context of the implied right of action under Title IX, however, the Supreme Court has rejected Title VII’s constructive notice standard and required evidence of actual knowledge of discrimination to hold a defendant liable for money damages. See Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 283-85, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Because the scope of the implied remedy under Title VI is “parallel” to that under Title IX, see id. at 286, 118 S.Ct. 1989, a Title VI claim cannot be premised merely on constructive notice. Moreover, even if complaints about discrimination against other students could provide actual notice to the school district, this case does not support such an inference because the proffered email concerns discrimination not only against a different *700student, but at a different school in the district.
Like the district court, we conclude plaintiff has failed to adduce sufficient evidence of defendants’ actual notice of the discrimination at issue here.
2. Social Studies Incident
Although plaintiff acknowledges that the teacher with actual knowledge of an incident of racial harassment in J.L.’s social studies class failed to report that incident to his superiors as provided in the district’s protocol, plaintiff urges us to impute the teacher’s knowledge to the school district based on “agency principles.” See Appellant’s Br. at 19. The district court correctly pointed out that the Supreme Court has rejected the use of agency principles to impute liability in the student-on-student harassment context. Davis v. Monroe County Bd. of Educ., 526 U.S. at 643, 119 S.Ct. 1661 (noting express rejection of “agency principles in the Title IX context”) (citing Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. at 283, 118 S.Ct. 1989). It is not clear whether this precludes imputing knowledge. See Gebser v. Logo Vista Ind. Sch. Dist., 524 U.S. at 285, 118 S.Ct. 1989 (concluding that “it would ‘frustrate the purposes’ of Title IX to permit a damages recovery against a school district for a teacher’s sexual harassment of a student based on principles of respondeat superior ”).
Even if we were to conclude that the agency point should be resolved in plaintiffs favor, however, we would conclude that plaintiffs claim fails as a matter of law. Defendants may only be held liable for a Title VI claim of student-on-student racial discrimination when the school’s response is “clearly unreasonable in light of the known circumstances.” Davis v. Monroe County Bd. of Educ., 526 U.S. at 648, 119 S.Ct. 1661. Clearly unreasonable is not a mere “reasonableness” standard, and there is “no reason why courts on a motion ... for summary judgment ... could not identify a response as not clearly unreasonable as a matter of law.” Id. at 649, 119 S.Ct. 1661. Furthermore, the deliberate indifference must subject a student to harassment, “that is, the indifference must, at a minimum, cause students to undergo harassment or make them liable to or vulnerable to it.” Id. at 645, 119 S.Ct. 1661 (internal citations omitted). The record indicates that J.L.’s teacher reprimanded the alleged harasser for her actions in class and may have sent one of the two students out into the hall. Such actions preclude a finding of a clearly unreasonable response. As for future harassment, the teacher did not recall any further incidents that developed between J.L. and his harasser after the reprimand. The teacher testified that J.L. and his harasser had “unpleasant comments” but could not recollect the content of the comments. See Dono Dep. at 9. This testimony, if credited at trial, could well defeat the actual knowledge element. In reviewing a decision on a motion for summary judgment, however, we must assume that the teacher heard the racial epithet.
Even with this assumption, plaintiffs claim fails because there are no facts to support the conclusion that the teacher’s actions in responding to conduct in his classroom “effectively caused” the subsequent harassment in the cafeteria as is required for a claim under Title VI. Id. at 642-43, 119 S.Ct. 1661. We therefore conclude that defendants were not deliberately indifferent to the social studies classroom incident.
3. Cafeteria Incident
Plaintiff alleges that defendants’ “dismiss[al]” of the cafeteria incident, Appellant’s Br. at 25, manifests deliberate indifference to race discrimination suffered by J.L. See Hayut v. State Univ. of N.Y., *701352 F.3d at 751. The record does not support such an inference. Plaintiff spoke with assistant principal Irene Perrella and met with principal Linda Horisk. Perrella also questioned the teacher who was supervising the cafeteria at the time, and he advised her that “a group of kids who regularly sit together at the same lunch table [were] fooling ai’ound and that in the course of fooling around one boy ... was tapping the other student [ie., J.L.] on the head.” See Perrella Dep. at 33. The teacher “didn’t feel that there was any malicious intent.” Id. Perrella herself “kept an informal eye on J.L.” for the rest of the school year, id. at 36, during which time she saw J.L. continue to eat lunch with the students allegedly involved in the cafeteria incident, apparently without further problem. Because plaintiff has not adduced any evidence that Perrella’s investigation revealed otherwise, the eonclusory complaint that Perrella deliberately refused to view the charged harassment as a racial incident is insufficient to support a finding of deliberate indifference. Nor is a question of deliberate indifference raised by the School District’s failure to discipline any student involved in the incident given plaintiff’s own decision not to file a complaint about it, even after being advised of her right to do so.
In sum, even viewing the facts in the light most favorable to plaintiff, a reasonable jury could not conclude that the school’s investigation was “clearly unreasonable in light of known circumstances,” the standard necessary to establish deliberate indifference. Hayut v. State Univ. of N.Y., 352 F.3d at 751. We therefore conclude that defendants were not deliberately indifferent to the cafeteria incident.
4. J.L. ’s Suspension
Plaintiff submits that the circumstances surrounding J.L.’s 2005 suspension support an inference of deliberate indifference to race discrimination. We disagree. J.L. received two hearings and an appeal to the New York State Commissioner of Education (the “Commissioner”) in connection with the school’s decision to suspend him for theft. The Commissioner’s decision notes that J.L. introduced evidence of “anger and frustration over the 2004 [cafeteria] assault and [the school’s alleged] failure to adequately address the situation,” Appeal of D.T. at 2, but ultimately concludes that these circumstances “would not have justified J.L.’s participation in the 2005 theft,” id. at 3. Like the district court, we conclude that defendants’ imposition of the 2005 suspension would not support a finding of deliberate indifference to student harassment.
Because we conclude that the district court properly entered summary judgment in favor of defendants on plaintiffs Title VI claims, we also identify no abuse of discretion in the denial of plaintiffs motion for reconsideration. We have considered plaintiffs other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgments of the district court.
. The district court also entered summary judgment in favor of defendants on plaintiff's discrimination claims under 42 U.S.C. § 1983 and New York state law. Because plaintiff does not specifically raise these claims on appeal, we deem any such challenges waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). We therefore have no occasion here to decide whether Congress intended to allow for parallel and concurrent claims under Title VI and § 1983. Cf. Fitzgerald v. Barnstable Sch. Comm., - U.S. -, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) (allowing parallel and concurrent § 1983 claim when plaintiff sued under Title IX), abrogating Bruneau ex rel. Schofield v. S. Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir.1998).
. Davis involved claimed sexual harassment in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Because Title VI and Title IX use parallel language, we construe them similarly. See Barnes v. Gorman, 536 U.S. 181, 185, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002); accord Curto v. Edmundson, 392 F.3d 502, 504 n. 3 (2d Cir.2004). Indeed, plaintiff does not dispute that the principles announced in Title IX cases, including Davis and Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), govern here.
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OPINION
PER CURIAM.
Henry M. Greer appeals from the order of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint filed pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will summarily affirm the District Court’s judgment.
Because the parties are familiar with the background of the case, we will not recount it in great detail. Briefly, Greer, an inmate of the State Correctional Institution at Graterford, Pennsylvania, filed his civil rights complaint against several current and former prison officials in their official and individual capacities. Greer alleged that the defendants violated his Fourth Amendment right to be free from unreasonable seizures by deducting funds from his prison account for payment of court costs associated with his York County criminal convictions in two separate *703matters. According to the complaint, in August 1980, Judge Joseph Erb sentenced Greer to fifteen to thirty years incarceration for a rape and robbery conviction (York County No. 1009 Criminal Action 1979, or “CP 1009/1979”; OTN A382942-0). The Court Commitment stated that Greer was to pay $446.85 in court costs. On the same day, Judge Emanuel Cassi-matis sentenced Greer to a consecutive fifteen to thirty year term for a rape, burglary, and aggravated assault conviction (York County No. 1060 Criminal Action 1979, or “CP 1060/1979”; OTN A382939-4). The Court Commitment stated that Greer was to pay $470.84 in court costs. Both sentences were later vacated to permit Greer to preserve his appellate rights. Judge Cassimatis reimposed his original sentence in October 1980. Judge Erb reimposed his original sentence in March 1988, but according to Greer, Judge Erb’s reimposition of sentence did not include court costs.
On September 2, 2002, Greer received his prison account statement and learned that the Department of Corrections (“DOC”) had begun to deduct funds from his account to satisfy the court costs incurred in both criminal cases; the deductions were made pursuant to “Act 84,” 42 Pa.C.S.A. § 9728(b)(3) and (5). Greer immediately sent an inmate request slip to the inmate accounting office to contest the deductions. The request was denied, and the deductions continued. Greer pursued relief via various petitions in state court in addition to pursuing administrative relief. Then, notably, in November 2006, Greer filed a prison grievance concerning the deductions, questioning why his prison account was being subjected to deductions when he had already paid the $470.84 that he had owed in court costs in CP 1060/1979. Greer received a response that noted that, indeed, he already had satisfied the costs incurred in OTN A382939-4 (CP 1060/1979), and that $6.01 remained of the costs originally imposed in OTN A382942-0 (CP1009/1979). However, the response acknowledged that it appeared that Greer was resentenced in OTN A382942-0 without mention of court costs. Noting that a refund inquiry was made on Greer’s behalf to York County Adult Probation and Parole, and that Greer’s own pursuit of relief was pending before the Pennsylvania Supreme Court, the response stated that no further deductions would be made pending the outcome of Greer’s state court proceedings. Greer unsuccessfully pursued administrative appeals of this grievance; the final administrative decision was issued on February 9, 2007.
In March 2008, Greer filed his section 1983 complaint, with exhibits, and he sought damages relief. The defendants filed a motion to dismiss and raised a number of defenses, including that the complaint was filed beyond the applicable statute of limitations ,1 Greer filed a response. The District Court granted the motion to dismiss on the statute of limitations basis. This appeal followed.
We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting the motion to dismiss the complaint as barred by the statute of limitations. Algrant v. Evergreen Valley Nurseries Ltd. Partnership, 126 F.3d 178, 181 (3d Cir.1997).
Upon review of the record, we will affirm for substantially the same reasons given by the District Court. The District *704Court correctly applied Pennsylvania’s two-year personal injury statute of limitations, given that section 1983 claims are subject to the state’s statute of limitations governing personal injury actions. See Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir.2003) (citing 42 Pa.C.SA § 5524). According to Greer’s complaint, he became aware on September 2, 2002, of the DOC’s deductions from his prison account to satisfy court costs relating to both criminal cases. Greer had two years to file his civil rights complaint. Because Greer did not submit his complaint to the District Court until March 2008, his claims are barred by the statute of limitations.
In addition, we agree with the District Court’s conclusion that the continuing violations doctrine does not apply to Greer’s case. Greer alleged in the complaint that the matter had been ongoing from September 2, 2002 through December 2006, but the DOC’s first deduction from his prison account constituted a discrete and independently actionable act, thereby immediately triggering the limitations period. See, e.g., O’Connor v. City of Newark, 440 F.3d 125, 129 (3d Cir.2006) (“If the allegations in [plaintiffs] complaint ai'e discrete, then each gave rise to a cause of action at the time it occurred. That cause of action persisted for two years and then lapsed.”). Moreover, any alleged ongoing failure of prison officials to correct its course following the initial decision to deduct from Greer’s prison account does not constitute a continuing violation. See Cowell v. Palmer Township, 263 F.3d 286, 292-93 (3d Cir.2001).
Because this appeal presents no “substantial question,” we will summarily affirm the District Court’s decision. See Third Circuit LAR 27.4 and I.O.P. 10.6.
. The defendants also argued, among other things, that the Eleventh Amendment bars damages claims against Commonwealth defendants in their official capacities, and to the extent that the defendants were sued in their individual capacities, the complaint fails to state a claim of a constitutional violation relating to the account deductions.
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OPINION
PER CURIAM.
David Kissi, a federal prisoner proceeding pro se, filed a complaint in the District Court seeking $100 million from Coldwell Banker and Jim Gillespie, listed in the complaint as Coldwell’s CEO. The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2), and Kissi filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Kissi is proceeding in forma pauperis, we must dismiss the appeal if it “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see 28 U.S.C. § 1915(e)(2).
As the District Court noted, Kissi’s complaint relates to the sale of several properties in Maryland. Those properties, and unrepaid loans that Kissi and his wife obtained to procure them, were the subject of a collection action in the District of Maryland. Because of his dilatory and vexatious conduct in that case and related cases — which included the filing of related claims in various state and federal courts — the District of Maryland issued a broad injunction prohibiting Kissi from filing any further actions or documents relating to the subject matter of the litigation in any other court. See Pramco II v. Kissi, 03-CV-2241 (D.Md. October 10, 2003) (Doc. No. 53).
In dismissing his complaint under § 1915(e)(2), the District Court reasoned that Kissi was subject to the District of Maryland injunction.1 When Kissi filed his District of New Jersey complaint in July 2008, the District of Maryland’s injunction clearly remained in effect. See D. Md. Civ. No. 02-42 (Doc. No. 215) (memorandum opinion entered June 20, 2008) (“For the foreseeable future, the Court expressly declines to dissolve the preliminary injunction in this case ... ”). As such, we agree with the District Court that the injunction barred Kissi’s complaint.
The District Court further reasoned that, even without regard for the District of Maryland injunction, he could not proceed with his claim. A plaintiff invoking a federal court’s diversity jurisdiction bears the burden of stating “all parties’ citizenships such that the existence of complete diversity can be confirmed.” *706Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n. 13 (3d Cir.1999). Kissi, who was incarcerated in Ohio when he filed the complaint, attempted to invoke the District Court’s diversity jurisdiction, alleging that Ohio is his place of domicile. As the District Court reasoned, however, a prisoner’s pri- or state of residence, not his state of imprisonment, is his domicile unless, upon release, he intends to remain in the state where he was imprisoned. See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir.2002); Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993). The District Court reasoned that because Kissi failed to demonstrate an intent to make Ohio his domicile upon release, he had not sufficiently alleged the existence of diversity jurisdiction. We agree and note that although a court should ordinarily allow a party to amend his complaint to properly allege the parties’ citizenships, see 28 U.S.C. § 1653; Chem. Leaman, 177 F.3d at 222 n. 13, the District Court did not err by neglecting to grant Kissi leave to amend. Doing so would have been futile, given the injunction against him.
Kissi has submitted a memorandum in support of his appeal, which consists of more than 70 pages of documents, all but one page of which are irrelevant to the instant appeal. The single relevant page — handwritten and barely legible— contains little more than the assertion that the District Court erred in dismissing his case. In light of the foregoing analysis, we disagree with that contention. Kissi has also submitted an informal brief, in which he raises only one argument pertinent to his appeal. That is, he suggests that the injunction entered by the District of Maryland was dissolved on April 5, 2004. However, the only order entered on that day in the District of Maryland cases does not address the injunction, let alone dissolve it, a point further reinforced by that Court’s express refusal to dissolve the injunction as recently as June 2008.
Accordingly, Kissi’s appeal “lacks an arguable basis either in law or fact,” Neitzke, 490 U.S. at 325, 109 S.Ct. 1827, and we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)®.
. The District Court also noted that Kissi filed a nearly identical complaint in the Northern District of Ohio. That Court, noting the existence of the injunction, ordered the case to be transferred to the District of Maryland because of improper venue and because the District of Maryland invited the transfer. Kissi v. Coldwell Banker, 08-cv-00894 (N.D. Ohio June 5, 2008) (Doc. No. 7).
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OPINION
PER CURIAM.
Aaron Graham filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking credit against his federal sentence for time he served in state prison. Specifically, he argued that he should receive credit for time served from November 14, 2003, through June 25, 2004. Graham made this argument previously, albeit within his request in an earlier petition pursuant to 28 U.S.C. § 2241 for credit for time served between August 27, 2003, and May 2, 2005. The District Court rejected Graham’s argument previously and denied his earlier petition. We affirmed the District Court’s decision. See Graham v. Hogston, 268 Fed.Appx. 192 (3d Cir.2008) (per curiam). This time, relying on 28 U.S.C. § 2244(a), the District Court dismissed Graham’s petition. Graham appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the District Court’s order dismissing Graham’s petition. Upon review, we conclude that Graham’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The District Court properly dismissed Graham’s petition pursuant to 28 U.S.C. § 2244(a) as a second or successive petition. No circuit or district judge need evaluate the legality of a detention where the legality has previously been determined by a federal judge or a federal court. 28 U.S.C. § 2244(a). Section 2244(a) bars second or successive challenges to the legality of a detention pursuant to 28 U.S.C. § 2241, including those § 2241 petitions which challenge the execution of a federal sentence. See Queen v. Miner, 530 F.3d 253, 255 (3d Cir.2008). Graham previously requested credit for time served between November 2003 and June 2004. We and the District Court considered and rejected his request. Neither we nor the District Court need to consider the same request again.
In short, the District Court properly dismissed Graham’s § 2241 petition as second or successive under 28 U.S.C. § 2244(a), and we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Germaine Johnson, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Johnson v. Pettiford, No. 0:07-cv-03236-CWH (D.S.C. filed Dec. 12, 2008, and entered Dec. 15, 2008). 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.
AFFIRMED.
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ORDER
On June 12, 2009, the court issued an order allowing 21 days for Armida G. Chavez to show cause on why his appeal should not be dismissed as untimely. Chavez has not responded within the time allowed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs.
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SUMMARY ORDER
Appellant Archie V. Jackson, appearing pro se, appeals the district court’s judgment dismissing his claim for breach of the duty of fair representation against Local 100 of the Transport Workers Union (“Local 100”), and granting summary judgment dismissing his claims of age, disability, and race discrimination, as well as his claim of unlawful retaliation against Local 100 and the New York City Transit Authority (“NYCTA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Duty of Fair Representation Claim
We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Our review of the record reveals that the district court properly granted Local 100’s motion to dismiss Jackson’s duty of fair representation claim as barred by the applicable four-month statute of limitations. See N.Y. C.P.L.R. § 217(2)(a).
II. Discrimination Claims
We review an order granting summary judgment de novo, and consider whether the district court properly concluded that there were no genuine issues of material fact, and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
A. Age and Disability Claims
Jackson does not make any argument concerning the grant of summary judgment as to his age or disability discrimination claims, and, as a result, he has waived them. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (noting pro se appellant abandoned claim by not raising it in his appellate brief).
B. Race Claims
In order to make out a prima facie case of discrimination in violation of Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he performed the job satisfactorily; (3) an adverse employment action took place; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a plaintiff has properly alleged a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the adverse employment decision. See Shumway v. United Parcel Serv., 118 F.3d 60, 63 (2d Cir.1997); see also McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. The burden then shifts back to the plaintiff to present evidence that the employer’s proffered reason is a pretext for an impermissible motivation. See McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. “Thus, once the employer has proffered its nondiscriminatory reason, the employer *669will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir.2000) (citations omitted).
Our review of the record reveals that the district court properly granted Local 100’s and the NYCTA’s motions for summary judgment with regard to Jackson’s race discrimination claims because Jackson did not put forth any evidence from which a reasonable juror could conclude that the actions of either defendant was motivated by discriminatory animus. Indeed, the list of those promoted showed that there were many black employees who were promoted, as well as white employees who were not promoted at first, and that the only other person from the long list of eligible candidates who did not eventually receive a promotion was white. Accordingly, the district court properly granted the defendants’ motions for summary judgment with respect to Jackson’s race discrimination claim.
C. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff is required to show by a preponderance of the evidence that: (1) he participated in a protected activity, (2) the defendant knew of the protected activity; (3) he experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001). The McDonnell Douglas burden shifting analysis applies to retaliation claims brought pursuant to Title VII. See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003). Accordingly, if a plaintiff properly alleges a •prima facie case of retaliation, and the employer proffers a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence that would be sufficient to permit a rational jury to conclude that the employer’s explanation is merely a pretext for impermissible retaliation. See Cifra, 252 F.3d at 216 (citations omitted).
Here, the district court properly found that Jackson failed to rebut the NYCTA’s legitimate, non-retaliatory reason for his non-promotion — his attendance record and his two disciplinary suspensions. Jackson offered no evidence that would permit a reasonable fact-finder to infer that the NYCTA’s stated reason was pretextual. Accordingly, the district court properly granted the defendants’ summary judgment on this claim. To the extent Jackson alleged that he had a long-term illness that should have excused his absences, his own evidence contradicted that claim. He did not claim that he was absent in 1997, 1998, or 1999 as a result of his back problem. Moreover, he was the only candidate for promotion whose disciplinary record included a suspension.
III. Appointment of Counsel
The district court did not abuse its discretion in denying Jackson’s motion for appointment of counsel. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986).
We have carefully reviewed the Appellant’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Anzou Kone, a native and citizen of Cote d’Ivoire, seeks review of a March 31, 2008 order of the BIA, affirming the December 7, 2006 decision of Immigration Judge (“IJ”) Jeffrey S. Chase, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Anzou Kone, No. A098 647 863 (B.I.A. Mar. 31, 2008), aff'g No. A098 647 863 (Immig. Ct. N.Y. City Dec. 7, 2006). We assume the *671parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The agency reasonably relied on material discrepancies between Kone’s testimony and his documentary evidence. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003). Specifically: (1) Kone testified that his father was killed on September 10, 2002, while the death certificate indicated that his father died on October 17, 2002; (2) Kone testified that the doctor evaluated his injuries using only a stethoscope, while Kone’s medical certificate referred to a CAT scan; (3) Kone testified that his arm had been burned, while the medical certificate stated that his arm had been fractured; and (4) when confronted with the certificate, Kone testified that his right arm had been broken, while the certificate referred to his left arm.
While minor discrepancies in dates may be insufficient to support an adverse credibility finding, see Moussa Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000), the timing of Kone’s detention and his father’s death went to the heart of his claim for asylum. The agency therefore reasonably relied (in part) on the date inconsistency to question Kone’s credibility, see Secaida-Rosales, 331 F.3d at 308-09; see also Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). The IJ also reasonably relied on inconsistencies relating to Kone’s alleged injuries because these inconsistencies were substantial insofar as they concerned his allegation of past harm. See Secaida-Rosales, 331 F.3d at 308. Kone’s explanations for these discrepancies were not such as to compel a reasonable fact-finder to credit his testimony. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Because the agency’s adverse credibility determination was supported by substantial evidence, it reasonably denied Kone’s applications for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Kone abandons any challenge to the agency’s denial of his application for CAT relief by failing to raise such a challenge in his brief to this Court.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Defendants-appellants Everdry Marketing and Management, Inc. (“EMM”) and Everdry Management Services, Inc. (“EMS”) appeal from an order denying their motions for judgment as a matter of law following a jury verdict in favor of plaintiff-appellee the Equal Employment Opportunity Commission (“EEOC”), in plaintiffs action on behalf of multiple EMS employees subjected to sexual harassment in the workplace. The District Court denied defendants’ motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, and entered final judgment for plaintiff on November 7, 2006. Pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure, both defendants and plaintiff moved to amend or correct the judgment. Plaintiff also sought an order for injunctive relief against defendants. On July 2, 2008, the District Court issued an amended judgment to reduce the compensatory damage award and to include, in part, prejudgment interest. The District Court denied plaintiffs motion for injunctive relief. Defendants appeal the final judgment against them. Plaintiff counter-appeals the District Court’s denial of injunctive relief. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
On appeal, defendants argue that the District Court erred in (1) denying their motion for judgment as a matter of law due to insufficient evidence establishing that EMM and EMS are an integrated enterprise, (2) failing to remit the damages award to reflect that if EMM and EMS were an integrated enterprise, that integration was limited to a window of months in which an EMM employee fulfilled management duties at EMS, (3) failing to instruct the jury on punitive damages, and (4) declining to remit the punitive damages award against EMM because it is allegedly so high as to shock the conscience. Plaintiff defends the District Court’s judgment and damages award, but contends that the District Court “abused its discretion” in denying its motion for injunctive relief against both defendants.
Judgment as a Matter of Law
We review de novo a district court’s order denying a motion for judgment as a matter of law under Rule 50. See, e.g., Broadnax v. City of New Haven, 415 F.3d 265, 267 (2d Cir.2005). A court should grant a motion for judgment as a matter of law after the jury has returned a verdict only when there is “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992). In determining whether judgment as a matter of law is appropriate, the court should “review all of the evidence in the record. In doing so ... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.... [T]he court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 15O-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations *679omitted). Although defendants contend that evidence of the interrelation of operations and control of labor relations, see Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir.1995), between EMM and EMS was insufficient to support the jury’s finding that the two companies constitute a single, integrated enterprise, we agree with the District Court that there is no reason to overturn the jury’s finding. Based on the record of the entire proceeding, we cannot say that there was “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture.” Song, 957 F.2d at 1046.
Damages Award
“The standard for appellate review of damages awards, whether compensatory or punitive, ‘is whether the award is so high as to shock the judicial conscience and constitute a denial of justice.’ ” O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.1988) (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir.1978)). In reviewing a claim of excessive damages, “an appellate court must accord substantial deference to the jury’s determination of factual issues. In examining a lower court’s discretionary refusal to set aside a verdict, an appellate court must view the evidence and draw all factual inferences in favor of the appellee.” Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir.1982) (citations omitted). Because defendants’ challenge to punitive damages was not made below, the award can only be overturned to “prevent a manifest injustice” if the jury’s verdict is “wholly without legal support.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir.2004) (internal quotation marks omitted). On appeal, defendants also challenge the jury instructions on punitive damages. Our review, however, shows that the punitive damages awards have legal support, and we find no error in the court’s instructions.
Injunctive Relief
We review a district court’s denial of a motion for injunctive relief for “abuse of discretion.” See Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir.1997); Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1329-30 (2d Cir.1987). The discretion whether to order injunctive relief must be “guided by sound legal principles.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In seeking an injunction, “[t]he moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
As the District Court noted in its careful opinion denying injunctive relief, an “exercise of discretion [to issue an injunction] is inappropriate [here] because the post-trial record demonstrates that EMS is no longer a viable operating entity.” EEOC v. Everdry Marketing & Mgmt., Inc., 556 F.Supp.2d 213, 225 (W.D.N.Y.2008). Even if EMM allowed the alleged harassment to occur at EMS, the harassment itself never took place at EMM. We therefore agree with the District Court that the finding that EMM and EMS are a single, integrated enterprise does not, standing alone, present a “cognizable danger of recurrent violation ... which serves to keep the case alive.” W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. 894. Going forward — EMS no longer exists. All of the claims related to Rochester, which is now cut off. Accordingly, we find, in the circumstances presented here, that the District Court did not “abuse its discretion” in denying plaintiffs motion for injunctive relief.
*680We have considered all of plaintiffs’ remaining contentions and find them to be without merit.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED and costs are GRANTED to the EEOC.
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SUMMARY ORDER
Plaintiff-Appellant Paul Berube (“Be-rube”) appeals from a judgment of the United States District Court for the District of Connecticut (Bryant, J.), entered February 26, 2008, granting summary judgment to Defendant-Appellee Great Atlantic & Pacific Tea Company, Inc. (“A & P”) on his claims of discrimination under the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., and declining to exercise supplemental jurisdiction over his state law claims. Berube appeals only the ADEA and ERISA claims.1 We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Berube was formerly employed by A & P as a liquor store manager, a position that included bookkeeping responsibilities. At the time he was offered the position, he was promised by A & P that he would receive progressive discipline before termination of his employment. A & P’s general, although not universal, practice was to provide a four-step disciplinary process for continuing violations: a verbal warning, a written warning, a suspension, and finally termination. In 2003, A & P changed its invoicing procedures. Berube initially failed to comply with the new procedures and ultimately was transferred to a different store.2 After an audit at the new store revealed that Berube was still using the old inventory method, A & P verbally ordered him to use the new method. It is undisputed that plaintiff complied with this instruction; nevertheless, A & P suspended Berube approximately two weeks later and terminated his employment shortly thereafter. Although, before he was terminated, Berube was shown a document regarding his alleged mismanagement of invoices at his old store in Bristol and was suspended at that time, neither the document nor the suspension cited Berube’s conduct after he was specifically told to use the new inventory method. Moreover, Berube was not given the opportunity to return to work after being shown the document and being placed on suspension, and A & P does not rely on the document or the suspension to argue that Berube received progressive discipline. See Defendant’s Br. 35.
We review de novo a grant of summary judgment, which may be given where the *686record, viewed in the light most favorable to the non-moving party, shows no genuine issue of material fact. Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On summary judgment, plaintiffs ADEA claim is analyzed under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff bears the initial burden to establish a prima facie case of age discrimination by showing that “(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Roge v. NYP Holdings, 257 F.3d 164, 168 (2d Cir.2001). We have characterized plaintiffs prima facie burden as “minimal” and “de minim-is.” Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) (internal quotation marks omitted). The burden of production then shifts to the employer to demonstrate a legitimate, non-diseriminatory reason for the adverse employment decision, and finally back to the plaintiff to show that the proffered nondiscriminatory reason is pretextual. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817.
Berube seeks to raise the inference of discrimination required for his prima facie case by showing, inter alia, that A & P treated younger, similarly-situated employees more favorably than he. Employees used as comparators in such an analysis need not be identically situated, but only must be similarly situated in all material respects. See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001). “What constitutes ‘all material respects’ ... varies somewhat from case to case and, as we recognized in Norville, must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000) (citing Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.1999)). “Ordinarily, the question whether two employees are similarly situated is a question of fact for the jury.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003).
We find that plaintiff has proffered sufficient evidence to make out a prima facie claim of discriminatory intent by demonstrating that younger, similarly-situated employees received progressive discipline for transgressions of comparable seriousness while he did not. Berube identifies at least four comparators, Brian Badlowski, Ryan Fleet, Sid Prasad, and Frank Sen-gotta, who were liquor store managers younger than he and who were cited for violating A & P’s workplace rules around the same time plaintiff was fired. Each of the comparators received written warnings as a disciplinary method, and none were terminated for disciplinary violations. Under the standard set forth in Graham, the fact that Berube had a different supervisor from the employees he cites as comparators does not appear sufficient in itself to preclude Berube from showing that he was subject to the same workplace standards and disciplinary procedures. See id.; Norville, 196 F.3d at 97. Although Be-rube’s district manager may not have given written warnings to employees as a general practice, Berube has produced substantial evidence that progressive discipline was a general practice at A & P and that managers expected to receive such discipline. We cannot say as a matter of law that the employees Berube cites were not similarly situated in terms of work*687place standards and disciplinary procedures.
Nor is it sufficient simply to point out, as A & P does, that the comparators were disciplined for issues “not related to a failure to comply with the new recordkeep-ing procedures.” Appellee’s Br. 87. Rather, Berube need only demonstrate that the conduct for which the comparators were disciplined was of “comparable seriousness” to his recordkeeping transgressions. Graham, 230 F.3d at 40. There are certainly differences between the evinced conduct and that of Berube: Badlowski had a smaller invoice discrepancy and Fleet and Prasad were mostly cited for being “sloppy,” while Sengotta’s larger inventory discrepancy may have been partially due to the conduct of eoworkers. Yet these differences are not so significant that a reasonable juror would be precluded from deciding that these employees engaged in conduct of comparable seriousness. Fleet and Prasad’s messiness resulted in the loss of “Rip logs” used to track the store’s performance, much like Berube’s invoices. To determine relative severity of conduct between Berube and Badlowski, it is difficult to tell whether the $2,300 discrepancy in a single week of Badlowski’s invoices should be compared to the $15,000 swing in Berube’s “inventory,” or rather to the $1,395.97 discrepancy reflected in random invoices selected from a month of Berube’s records. As for Sen-gotta, even if other co-managers were partially responsible he was still the only store manager at a store with a $95,000 short inventory, making his conduct facially similar to if not more serious than Be-rube’s. This is a sufficient showing to meet the minimal burden imposed by McDonnell Douglas’s first step. We express no view as to steps two and three, which the district court did not reach.
We agree with the district court’s grant of summary judgment on plaintiffs ERISA claim. Section 510 of ERISA makes it “unlawful for any person to discharge ... or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan.” 29 U.S.C. § 1140. To succeed on a Section 510 claim, a plaintiff must demonstrate the employer specifically intended to interfere with benefits. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140, 111 S.Ct. 478,112 L.Ed.2d 474 (1990). Moreover, to defeat summary judgment a plaintiff must adduce some evidence from which a reasonable jury could conclude that an employer intended to reduce benefits under ERISA. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir.1997); see also Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1111 (2d Cir.1988) (“An essential element of plaintiffs proof under the statute is to show that an employer was at least in part motivated by the specific intent to engage in activity prohibited by § 510.”). Plaintiff has failed to meet this burden, merely speculating that the cost of his skin cancer treatments was the cause of his termination. No reasonable jury could conclude based on the record before us that A & P intended to deprive Berube of his medical benefits.
All arguments not otherwise discussed in this summary order are found to be moot or without merit.
For the foregoing reasons, the judgment of the district court granting summary judgment on the ERISA claim is hereby affirmed. The judgment is reversed as to the district court’s finding that plaintiff has not made a prima facie case of discrimination and remanded for further proceedings consistent with this opinion, including further analysis under McDonnell Douglas.
. Berube did not contest summary judgment on the ADA claim below, which was therefore properly granted. The district court's observations with respect to the merits of his ADA claim should not, however, be taken to have any collateral estoppel effect with respect to any future claim under the Connecticut Fair Employment Practices Act (CFEPA), Conn. Gen.Stat. § 46a-51 et seq., that he might bring.
. The parties dispute the reason for the transfer. A & P asserts that an audit of Berube's store indicated that he was adhering to the old guidelines, and it transferred him as a result. Berube identifies at least some documentary evidence that the audit occurred after his transfer, and thus could not have supplied the motivation.
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SUMMARY ORDER
Plaintiff, Mellard Jennings, appeals from a May 13, 2008 judgment entered in the United States District Court for the Southern District of New York (Brieant, J.). On defendants’ motion, the district court granted summary judgment for Wyeth Pharmaceuticals and Charles Guinosso. We assume the parties’ familiarity with the underlying facts and the procedural history.
On appeal, Jennings argues that the district court erred by finding there to be no genuine issue of material fact with respect to (1) his hostile work environment claim, (2) his retaliation claim, and (3) his “failure to promote” claim.
We have considered Jennings’ arguments, and they are without merit. With respect to the first two claims, we affirm for substantially the treasons stated by the district court in its summary judgment *689opinion and order. And we decline to consider Jennings’ arguments with respect to the third, as no “failure to promote” claim was ever made in the district court. See Kraebel v. N.Y. City Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 401 (2d Cir.1992).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendant Srinivas Kasi appeals from a judgment of conviction entered on June 18, 2008, in the United States District Court for the Southern District of New York. After a plea of not guilty, a jury convicted *691defendant of one count of conspiracy to commit food stamp fraud in violation of 18 U.S.C. § 371; one count of food stamp fraud in violation of 7 U.S.C. §§ 2024(b)(1), 2016 and 7 C.F.R. § 278.2; and one count of theft of food stamp benefits in violation of 18 U.S.C. § 641. The District Court sentenced defendant primarily to 57 months’ imprisonment. On appeal, defendant argues as follows: (1) the evidence introduced at trial was insufficient to establish that the food stamp funds were money of the United States; (2) the District Court erred in denying defendant’s motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure; (3) the District Court erred in using an unreasonable estimate of the loss that caused by defendant for the purposes of sentencing; (4) the District Court erred in failing to consider disparities in sentencing among co-defendants; and (5) the District Court erred in applying a two-level abuse-of-trust enhancement for the purpose of calculating defendant’s sentence under the United States Sentencing Guidelines (the “Guidelines”). We assume the parties’ familiarity with the facts and procedural history of this case.
First, defendant argues that the evidence presented at trial was insufficient to establish that the food stamp funds were money of the United States within the meaning of 18 U.S.C. § 6411 Because “the task of choosing among competing, permissible inferences is for the ¡jury and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001), we are required to review the evidence “in the light most favorable to the government,” United States v. Gas-kin, 364 F.3d 438, 459 (2d Cir.2004), and “resolve all issues of credibility in favor of the jury’s verdict.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (quotation marks omitted). See generally Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under our precedent, it is well established that federal grant money or property “remains money ‘of the United States’ within the meaning of § 641, notwithstanding prior transfer to a local administrator, so long as the government exercises supervision and control over the funds and their ultimate use.” United States v. McKay, 274 F.3d 755, 758 (2d Cir.2001) (quotation marks omitted). To satisfy the “supervision and control” requirement, the government need not show “more than federal regulations governing the handling of the money.” Id. Whether the federal government retains the necessary supervision and control over funds for them to remain money of the United States is a question of fact for the jury. See Hayle v. United States, 815 F.2d 879, 882 (2d Cir.1987).
At trial, the prosecution presented sufficient evidence for a jury to conclude that the food stamp funds were property of the United States. Witnesses included a United States Department of Agriculture (“USDA”) official who explained that the food stamp program is a partnership between the federal government and state and local agencies in which the federal government provides funds to state and local agencies to distribute through the food stamp program. This witness further testified that state and local agencies must comply with federal regulations governing eligibility for and use of food stamps. Fi*692nally, the witness testified that stores must comply with numerous federal requirements and apply for authorization with the USDA to participate in the food stamp program. Taken together, we conclude that this evidence is more than sufficient for a jury to conclude that the food stamp funds were money of the United States for the purposes of § 641.
Next, defendant argues that the District Court erred in denying his motion for a new trial based on the government’s rebuttal summation. The Federal Rules of Criminal Procedure allow courts to “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed. R.Crim.P. 33(a), but “motions for a new trial are disfavored in this Circuit,” United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). Accordingly, district courts should only grant motions for new trials if there is “a real concern that an innocent person may have been convicted.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (quotation marks omitted). We review this decision only for “abuse of discretion.” United States v. Guang, 511 F.3d 110, 119 (2d Cir.2007); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alteration, and quotation marks omitted)). We agree with the District Court that the government’s argument in the rebuttal summation-that defendant’s $46,000 wire transfer to his wife the day after his business partners were arrested was evidence of guilt-was a reasonable inference from the evidence presented at trial. Furthermore, there was abundant evidence of defendant’s guilt, so any erroneous inference drawn would be harmless error, as it would not have changed the outcome of the trial. Accordingly, we conclude that the District Court did not err in denying defendant’s motion for a new trial.
Third, defendant argues that the District Coui't erred in using an unreasonable estimate of loss that defendant’s offenses caused for the purposes of sentencing. We review a sentence for procedural and substantive reasonableness, which is akin to review under an “abuse-of-discretion” standard. See, e.g., United States v. Sanchez, 517 F.3d 651, 660 (2d Cir.2008); see also Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). It is well established that a district court “need not establish the loss with precision but rather need only make a reasonable estimate of the loss, given the available information.” United States v. Uddin, 551 F.3d 176, 180 (2d Cir.2009) (quotation marks omitted). Because other reasonable estimates of the loss amount were as much as twice the size of the District Court’s calculation, we conclude that the $422,352 loss estimate used by the District Court was reasonable.
Fourth, defendant argues that the District Court ei*red in failing to consider disparities in sentencing among co-defendants. Under 18 U.S.C. § 3553(a)(6), a sentencing court must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Here, the District Court determined that Kasi and his co-defendants were not similarly situated. Kasi was the only defendant to plead not guilty and proceed to trial. Furthermore, the District Court found that Kasi was more culpable than his co-defendants because he was the organizer and manager of the fraud scheme. For these reasons, we conclude that the District Court did not err by sentencing Kasi to a longer term of imprisonment than his co-defendants.
*693Finally, Kasi argues that the District Court erred in applying a two-level abuse-of-trust enhancement pursuant to U.S.S.G. § 3B1.3 for the purpose of calculating defendant’s sentence under the Guidelines. That section provides for a two-level enhancement of a defendant’s offense level “[i]f the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. Whether someone occupies a position of trust “turns on the extent to which the position provides the freedom to commit a diffieult-to-detect wrong.” United States v. Allen, 201 F.3d 163, 166 (2d Cir.2000) (quotation marks omitted). We agree with the District Court that the case for the abuse-of trust enhancement was “open and shut.” J.A. 228. Kasi, but not his co-defendants, was the person who received authorization from the USDA to participate in the food stamp program and was trained to ensure compliance with the program’s requirements. Furthermore, Kasi was entrusted by the USDA with the primary responsibility to help prevent fraud and abuse. For these reasons, we conclude that it was not an error for the District Court to apply the abuse-of-trust enhancement.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
. This statute establishes fines and terms of imprisonment for
[wjhoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof____
18 U.S.C. § 641.
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OPINION
PER CURIAM.
David Kissi, a federal prisoner proceeding pro se, filed a complaint in the District Court seeking $100 million from Coldwell Banker and Jim Gillespie, listed in the complaint as Coldwell’s CEO. The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2), and Kissi filed a timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Kissi is proceeding in forma pauperis, we must dismiss the appeal if it “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see 28 U.S.C. § 1915(e)(2).
As the District Court noted, Kissi’s complaint relates to the sale of several properties in Maryland. Those properties, and unrepaid loans that Kissi and his wife obtained to procure them, were the subject of a collection action in the District of Maryland. Because of his dilatory and vexatious conduct in that case and related cases — which included the filing of related claims in various state and federal courts — the District of Maryland issued a broad injunction prohibiting Kissi from filing any further actions or documents relating to the subject matter of the litigation in any other court. See Pramco II v. Kissi, 03-CV-2241 (D.Md. October 10, 2003) (Doc. No. 53).
In dismissing his complaint under § 1915(e)(2), the District Court reasoned that Kissi was subject to the District of Maryland injunction.1 When Kissi filed his District of New Jersey complaint in July 2008, the District of Maryland’s injunction clearly remained in effect. See D. Md. Civ. No. 02-42 (Doc. No. 215) (memorandum opinion entered June 20, 2008) (“For the foreseeable future, the Court expressly declines to dissolve the preliminary injunction in this case ... ”). As such, we agree with the District Court that the injunction barred Kissi’s complaint.
The District Court further reasoned that, even without regard for the District of Maryland injunction, he could not proceed with his claim. A plaintiff invoking a federal court’s diversity jurisdiction bears the burden of stating “all parties’ citizenships such that the existence of complete diversity can be confirmed.” *706Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n. 13 (3d Cir.1999). Kissi, who was incarcerated in Ohio when he filed the complaint, attempted to invoke the District Court’s diversity jurisdiction, alleging that Ohio is his place of domicile. As the District Court reasoned, however, a prisoner’s pri- or state of residence, not his state of imprisonment, is his domicile unless, upon release, he intends to remain in the state where he was imprisoned. See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir.2002); Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993). The District Court reasoned that because Kissi failed to demonstrate an intent to make Ohio his domicile upon release, he had not sufficiently alleged the existence of diversity jurisdiction. We agree and note that although a court should ordinarily allow a party to amend his complaint to properly allege the parties’ citizenships, see 28 U.S.C. § 1653; Chem. Leaman, 177 F.3d at 222 n. 13, the District Court did not err by neglecting to grant Kissi leave to amend. Doing so would have been futile, given the injunction against him.
Kissi has submitted a memorandum in support of his appeal, which consists of more than 70 pages of documents, all but one page of which are irrelevant to the instant appeal. The single relevant page — handwritten and barely legible— contains little more than the assertion that the District Court erred in dismissing his case. In light of the foregoing analysis, we disagree with that contention. Kissi has also submitted an informal brief, in which he raises only one argument pertinent to his appeal. That is, he suggests that the injunction entered by the District of Maryland was dissolved on April 5, 2004. However, the only order entered on that day in the District of Maryland cases does not address the injunction, let alone dissolve it, a point further reinforced by that Court’s express refusal to dissolve the injunction as recently as June 2008.
Accordingly, Kissi’s appeal “lacks an arguable basis either in law or fact,” Neitzke, 490 U.S. at 325, 109 S.Ct. 1827, and we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)®.
. The District Court also noted that Kissi filed a nearly identical complaint in the Northern District of Ohio. That Court, noting the existence of the injunction, ordered the case to be transferred to the District of Maryland because of improper venue and because the District of Maryland invited the transfer. Kissi v. Coldwell Banker, 08-cv-00894 (N.D. Ohio June 5, 2008) (Doc. No. 7).
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OPINION
PER CURIAM.
Aaron Graham filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking credit against his federal sentence for time he served in state prison. Specifically, he argued that he should receive credit for time served from November 14, 2003, through June 25, 2004. Graham made this argument previously, albeit within his request in an earlier petition pursuant to 28 U.S.C. § 2241 for credit for time served between August 27, 2003, and May 2, 2005. The District Court rejected Graham’s argument previously and denied his earlier petition. We affirmed the District Court’s decision. See Graham v. Hogston, 268 Fed.Appx. 192 (3d Cir.2008) (per curiam). This time, relying on 28 U.S.C. § 2244(a), the District Court dismissed Graham’s petition. Graham appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the District Court’s order dismissing Graham’s petition. Upon review, we conclude that Graham’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The District Court properly dismissed Graham’s petition pursuant to 28 U.S.C. § 2244(a) as a second or successive petition. No circuit or district judge need evaluate the legality of a detention where the legality has previously been determined by a federal judge or a federal court. 28 U.S.C. § 2244(a). Section 2244(a) bars second or successive challenges to the legality of a detention pursuant to 28 U.S.C. § 2241, including those § 2241 petitions which challenge the execution of a federal sentence. See Queen v. Miner, 530 F.3d 253, 255 (3d Cir.2008). Graham previously requested credit for time served between November 2003 and June 2004. We and the District Court considered and rejected his request. Neither we nor the District Court need to consider the same request again.
In short, the District Court properly dismissed Graham’s § 2241 petition as second or successive under 28 U.S.C. § 2244(a), and we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
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OPINION
PER CURIAM.
George Vasilopoulos appeals pro se from the District Court’s order dismissing his complaint. Because we conclude that this appeal lacks arguable merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
Vasilopoulos filed an application to proceed in forma pauperis and a complaint1 against Krovatin Klingman, LLC and Anna Cominsky, an attorney with that law firm (“appellees”). He alleges that appel-lees placed “a notice in the complaint of a different accusation,” stating that Vasilo-poulos was “obsess[ed] with” certain children and that he is gay. Vasilopoulos alleges that appellees’ actions led to his prosecution for child abuse. The sole relief he seeks is monetary damages in the amount of $5,000,000.
The District Court granted Vasilopoulos leave to proceed in forma pauperis, then dismissed his complaint and his first amended complaint without prejudice for lack of subject matter jurisdiction. Reading the complaints broadly in accordance with Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the District Court determined that Vasilopou-los intended to bring a civil action for slander and defamation. The District Court concluded that it lacked subject matter jurisdiction, given that Vasilopoulos alleged no violation of a federal statute, and there was no diversity of citizenship. *709The District Court also reviewed Vasilo-poulos’ second amended complaint to determine whether he could state a claim pursuant to 42 U.S.C. § 1983, but concluded that Vasilopoulos had failed to state a claim upon which relief could be granted. The District Court later denied Vasilopou-los’ motion for reconsideration.
Vasilopoulos appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We granted Vasilopoulos informa pauper-is status, and we now review this appeal to determine whether it should be dismissed pursuant to § 1915(e)(2)(B).2 An appeal is frivolous if it “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
We agree that the initial complaint and the first amended complaint fail to show a basis for subject matter jurisdiction. We also agree that the second amended complaint fails to state a claim for relief under § 1983. To establish a cause of action under section 1983, a litigant must show “the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Nothing in the second amended complaint would allow an inference that appellees acted under color of state law. See Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Our independent review reveals that there is no arguable basis to challenge the District Court’s ruling on appeal. Accordingly, this appeal will be dismissed.
. Vasilopoulos also filed two separate amended complaints on January 12, 2009 and January 14, 2009, respectively.
. Vasilopoulos did not file an amended notice of appeal and we thus review only the order that dismissed his complaints.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Germaine Johnson, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Johnson v. Pettiford, No. 0:07-cv-03236-CWH (D.S.C. filed Dec. 12, 2008, and entered Dec. 15, 2008). 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.
AFFIRMED.
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OPINION
PER CURIAM.
Appellant Derrick McKinney appeals from an order of the District Court denying his motion for costs and expenses at the conclusion of his civil rights trial. For the reasons that follow, we will summarily affirm the District Court’s order.
I.
As we write solely for the benefit of the parties, we will set forth briefly only those facts necessary to our analysis. In January 2005, McKinney, a prisoner now incarcerated at S.C.I. Graterford, sued three correctional officers, the unit manager, and the superintendent of S.C.I. Camp Hill, where he was incarcerated at the initiation of his case. In his suit, McKinney alleged that he was assaulted by the correctional *712officers, in violation of the Eight Amendment, in an attempt to coerce him into dropping an unrelated civil rights lawsuit against other prison officials.
After initiating the lawsuit pro se, McKinney was appointed counsel just pri- or to trial. Before trial, one of the correctional officers passed away and was dismissed from the case. After trial, the jury granted judgment in favor of the unit manager and superintendent of the prison as to all claims, granted judgment on the First Amendment claims in favor of the surviving correctional officers, but granted judgment in McKinney’s favor against the surviving correctional officers on his Eighth Amendment claim. Despite concluding that the correctional officers had violated McKinney’s Eighth Amendment rights, the jury decided that he was not entitled to any compensatory or punitive damages at all. The jury was not asked whether to award nominal damages.
Soon thereafter, McKinney, claiming that he was a prevailing party, filed a motion for expenses and costs. The parties briefed the issue, and the District Court denied the motion “[f]or all the reasons set forth in the defendants’ brief....” McKinney appealed, and his motion to proceed in forma pauperis was granted.1
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Typically, to appeal a judgment, the notice of appeal must be filed within 30 days of its entry. Rule 4(a)(4) of the Federal Rules of Appellate Procedure lists six types of motions which delay the start of the time for filing a notice of appeal until after an order disposing of said motion is entered. Rule 4(a)(4)’s list does not include motions like McKinney’s, seeking court costs. McKinney filed his notice of appeal after the expiry of the deadline to appeal the judgment itself, so pursuant to Fed. R.App. P. 4(a)(4), his appeal is timely only as to whether the District Court properly denied him court costs. Accordingly, our review is limited to that discreet issue. We may summarily affirm the District Court’s order if the appeal presents no substantial issue. See 3rd Cir. LAR 27.U and IOP 10.6.
III.
McKinney claims that he is a prevailing party entitled to costs and expenses pursuant to Fed.R.Civ.P. 54(d)(1), 28 U.S.C. § 1915, and 28 U.S.C. § 2412(a) because the jury concluded that two of the defendants violated his Eighth Amendment rights. At the onset we note that 28 U.S.C. § 2412(a) is inapplicable here because it applies only to civil actions “brought by or against the United States or any agency or official of the United States.”
Under Rule 54(d)(1), “[ujnless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney’s fees — should be allowed to the prevailing party.” Subsection (f)(1) of 28 U.S.C. § 1915 permits awards of costs at the conclusion of a suit advanced by an indigent prisoner “as in other proceedings.” While these sources establish that McKinney was eligible to be compensated for expenses and costs, they do not address the relevant question here, i.e. whether McKinney qualifies as a prevailing party.
The United States Supreme Court addressed the question of what constitutes a “prevailing party” in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 *713(1992). In that case the plaintiffs brought a civil rights suit seeking $17 million in damages, but were awarded only $1 because they failed to prove that a due process violation was the proximate cause of any injury. The Supreme Court held that a plaintiff prevails when he receives an enforceable money judgment of any size or “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-112, 113 S.Ct. 566. The Court emphasized that “a judicial pronouncement that the defendant has violated the Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a prevailing party.” Id. at 112, 113 S.Ct. 566.
Unfortunately for McKinney, he was awarded no damages at all, not even nominal damages, and the judgment cannot be said to have altered his relationship with the defendants, if for no other reason than the fact that he is no longer incarcerated at the prison where they work, and therefore has no relationship with the defendants at all anymore. See Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam) (reversing an award of attorneys fees where one of the plaintiffs passed away and the other plaintiff was released from prison before the litigation resulted in the change in prison policy the plaintiffs sought because the change in policy did not benefit either plaintiff directly). Accordingly, he is not a prevailing party within the meaning of Farrar, and he cannot prevail on his claim.
IV.
For the reasons given, we will summarily affirm the District Court’s order pursuant to 3rd Cir. LAR 27.4 and Chapter 10.6 of the Court’s Internal Operating Procedures.
. After he appealed, McKinney filed a motion for reconsideration with the District Court, but the District Court issued a notice informing him that it no longer had jurisdiction over the case once an appeal was pending.
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OPINION
PER CURIAM.
Christopher Williams, a federal prisoner, appeals from the order of the United States District Court for the Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241. For the reasons stated below, we will affirm.
Because the background of this case is provided in the District Court’s memorandum and is familiar to the parties, we will revisit the facts only briefly. In October 1993, Williams pleaded guilty in the United States District Court for the Eastern District of New York to RICO conspiracy and conspiracy to distribute and possess with intent to distribute drugs. He is serving a twenty-five year sentence for the offenses, consecutive to sentences he already had been serving in New York and Maryland. Williams entered federal custody in May 1999.
Williams’s federal offenses occurred before November 1, 1987, the effective date of the Sentencing Reform Act of 1984, so he is still subject to the United States Parole Commission’s jurisdiction to grant or deny parole. In April 2000, the Commission held an initial parole hearing for Williams and computed his guideline range as 180+ months to be served before release on parole; the panel rated the severity of Williams’s offenses as Category Eight, for which no upper limits are specified, with a salient factor score of three. Also, the Commission credited Williams with 115 months spent in state custody towards satisfaction of the guideline range. In May 2000, the Commission issued a notice of action denying parole and ordering Williams to continue to a fifteen-year reconsideration hearing in April 2015 or to serve to the expiration of his sentence, whichever comes first. Further, the Commission stated reasons for its decision exceeding the lower limit of the guideline by more than forty-eight months based on certain aggravating factors. Williams did not file an administrative appeal of the decision.
In February 2008, the Commission held a statutory interim parole hearing. The hearing summary noted Williams’s sentence parameters as having a full term date of May 20, 2024 and a mandatory release date of March 1, 2014.1 After reviewing Williams’s conduct and program achievement, the Commission made no *715change in the prior decision to have a fifteen-year reconsideration hearing or continue to expiration, whichever came first, acknowledging that the mandatory release date was scheduled to occur before his reconsideration hearing. The Commission issued a notice of action to that effect. In July 2008, on Williams’s administrative appeal, the National Appeals Board affirmed the decision.
Williams filed his section 2241 petition in September 2008, naming the Commission as respondent. As he argued in his administrative appeal, Williams contended that the Commission failed to credit him with the time he spent in state custody. He sought immediate release, contending that his time served in both state and federal custody satisfied the guidelines calculated in his case. The Commission filed a response to the habeas petition. Williams filed a reply, asserting that it was mathematically impossible for him to have been credited towards his parole guideline date and yet have a projected release date on parole of March 2014. On July 8, 2009, 2009 WL 2043433, the District Court denied the habeas petition. The District Court noted that Williams’s position was based on the erroneous premise that his calculated parole guideline range actually established a period of incarceration of 228 months (the 180+ month guideline plus the need to serve an additional forty-eight months above the lower limit). The District Court also found that Williams had confused credits applied to his parole eligibility as credits to be applied against the mandatory release date concerning his sentence. Williams appeals and has filed a document containing argument in support of the appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review in this matter is limited to whether there is a rational basis in the record for the Commission’s statement of reasons for denial of parole. See Furnari v. Warden, Allenwood Fed. Correctional Inst., 218 F.3d 250, 254 (3d Cir.2000). Upon review of the record, and for substantially the same reasons given by the District Court, we will affirm. Williams states in his submission to this Court that he does not contend that the time spent in state custody reduces the expiration date of his federal sentence. Rather, he argues that his state time credits should be applied towards the satisfaction of the 180+ month guideline range set by the Commission, and with the credits applied, he now is unjustly incarcerated beyond that time period. Williams’s position appears to be based on his mistaken belief that the guideline range established by the Commission for purposes of parole eligibility is equivalent to the period of incarceration. Parole eligibility is not a promise of release; even if the Commission were to determine that a prisoner were eligible for parole after serving a certain guideline range, it does not necessarily follow that the prisoner would be paroled at that time. As stated by the District Court, the decision to grant parole to an eligible prisoner is committed to the Commission’s discretion. See 28 C.F.R. § 2.18. Williams does not contest the rating of his offenses as Category Eight with a salient factor score of three, and he does not contest the resulting guideline range. We conclude that a rational basis exists for the denial of parole and that Williams is not entitled to immediate release.
We have considered Williams’s arguments in support of the appeal and find them to be without merit. Because this appeal presents no “substantial question,” we will summarily affirm the District Court’s decision. See Third Circuit LAR 27.4 and I.O.P. 10.6.
. The record contains a sentence monitoring computation report as of January 29, 2008, that reflects, among other things, Williams's parole eligibility date of September 20, 2007, statutory good time rate and projected sentence satisfaction date of March 1, 2014 via mandatory release, a statutory release date of March 3, 2016, and a full term date of May 20, 2024. (Gov't Response to Habeas Petition, Exh. 1.)
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OPINION
PER CURIAM.
Arthur Hairston, a federal prisoner proceeding pro se, appeals the District Court’s order denying his motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and administratively terminating his civil action. We have jurisdiction under 28 U.S.C. § 1291, and review *717the District Court’s order for an abuse of discretion. See Redmond v. Gill, 352 F.3d 801, 803 (3d Cir.2003). We will affirm.
On March 17, 2008, Hairston filed a complaint (which, we note, is properly considered as one brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)) in the United States District Court for the District of New Jersey, alleging that prison officials were deliberately indifferent to his medical needs. The District Court issued a Memorandum Order on April 10, 2008, directing that the case be administratively terminated without the complaint being filed or the filing fee assessed. The Clerk was instructed to send Hairston a form in forma pauperis application. Hairston was instructed that if he wished to reopen the case, he was to notify the court in writing within thirty days and to include either a completed in forma pauperis application or the appropriate filing fee. Hairston responded in a timely manner with the filing of an in forma paupens affidavit. Hairston, however, refused to sign the affidavit and the accompanying account certification form, instead noting that he “will never enter into another extortion contract with the B.O.P. and the federal government.”
The District Court entered an order on April 30, 2008, denying Hairston’s in for-ma paupens motion and instructing him, for a second time, to notify the court and submit a completed application or the filing fees within thirty days if he wished to reopen the proceedings. The court specifically directed Hairston to file a signed affidavit and to provide a six month account statement should he wish to proceed in forma pauperis. While Hairston submitted a timely in forma paupens motion, he once again refused to provide authorization for the withdrawal of funds or to provide an updated account statement. Given Hairston’s continued refusal to comply with the District Court’s directive, a third order was issued on September 10, 2008, denying Hairston’s latest in forma pauperis application and ordering that the case remain closed. A timely appeal to this Court followed.
As directed by the case opening letter from this Court’s Clerk’s Office, Hairston sought leave to proceed informa pauperis on appeal. However, as in the District Court, Hairston failed to provide the specific financial information requested on the form and refused to authorize the withdrawal of funds from his prison account. In a Clerk’s Order issued on October 23, 2008, Hairston was advised, inter alia, that his in forma pauperis motion would be held in abeyance pending submission of additional documents. Much like his actions in the District Court, Hairston submitted the requested documents but refused to include the financial information requested, refused to sign the addendum and refused to authorize the withdrawal of funds from his prison account to pay the appellate fees which would be assessed against him. Accordingly, the Clerk issued an order on December 1, 2008, construing Hairston’s statements as a challenge to the assessment of the filing fee and referring his in forma pauperis motion to a panel of the Court.
We issued an order on March 5, 2009, denying Hairston’s challenge to the assessment of the appellate filing and docketing fees. In that order, we noted that a prisoner’s legal obligation to pay such fees is incurred by the filing of the notice of appeal in forma pauperis. See 28 U.S.C. § 1915(b)(1); see also Hall v. Stone, 170 F.3d 706, 707 (7th Cir.1999), quoting Newlin v. Helman, 123 F.3d 429, 436 (7th Cir.1997) (“Whether [the prisoner] authorized the prison to disburse the money is neither here nor there. How much a prisoner owes, and how it will be collected, is *718determined entirely by the statute and is outside the prisoner’s (and the prison’s) control once the prisoner files the complaint or notice of appeal.”). Accordingly, we held Hairston’s in forma pauperis motion in abeyance, afforded him an opportunity to withdraw the appeal, and warned him that, if a motion to withdraw the appeal were not filed, the Clerk would be directed to enter an appropriate order regarding assessment of the fees and the merits of the appeal would be considered. Hairston has not sought to withdraw the appeal, the appropriate assessments have been made, and this appeal is now ripe for disposition.
Upon careful review of the record, we conclude that the District Court did not abuse its discretion in administratively terminating Hairston’s civil action and ordering that the case remain closed. Arguably, the documents submitted by Hairston were sufficient to allow the District Court to evaluate his indigency status, and Hair-ston’s legal obligation to pay the filing fee was incurred by the initiation of the action itself. See Hall v. Stone, 170 F.3d at 707. However, we do not hesitate to conclude that Hairston’s conduct amounts to a willful failure to respond to the order issued by the District Court on two separate occasions, and “evidences an intent to flout the District Court’s instructions” on proper compliance with the provisions of 28 U.S.C. § 1915. Redmond v. Gill, 352 F.3d at 803.
Accordingly, we will summarily affirm the judgment of the District Court as no substantial question is presented by this appeal. See Third Circuit LAR 27.4 and I.O.P. 10.6.
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OPINION
PER CURIAM.
Andrew J. McGill, Jr., appeals pro se from the District Court’s order denying his petition for a writ of habeas corpus, which he filed under 28 U.S.C. § 2241. Because this appeal presents no substantial question, we will summarily affirm. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
McGill is a federal prisoner. On July 19, 2007, while he was incarcerated at FPC-Schuylkill, correctional staff conducted an institution-wide search for contraband. During the search, an officer discovered a cellular phone and a cellular phone charger in McGill’s “assigned living area,” which at that institution is described as a “cubicle” rather than a traditional cell. The officer issued an incident report charging McGill with a Code 108 violation.1 Authorities transferred him to LSCI-Allenwood the next day. On July 24, 2007, the Unit Disciplinary Committee held a hearing, at which McGill denied that the phone was his and claimed that another inmate had thrown it into his cubicle during the mass search. The Committee determined that the offense, if proven, *720warranted greater sanctions than it was authorized to impose, and transferred the matter to a Disciplinary Hearing Officer (“DHO”).
The DHO conducted a hearing on July 31, 2007. According to the DHO’s report, McGill stated at the hearing: “When they came in the Unit, the lights were out. I don’t use a cell phone. I have seen inmate John McCullough in the cube next to me, and I have seen him use a cell phone numerous times. I believe he put it in my cube when we were handcuffed in the bathroom.” McGill did not present any witnesses or other evidence.
The DHO found that McGill had committed the offense. The DHO based this conclusion on: (1) the incident report describing the officer’s discovery of the items in McGill’s cubicle; (2) the officer’s photograph of those items in McGill’s cubicle; and (3) the memorandum described in footnote one, above. The DHO also explained that McGill had presented no witnesses or other evidence in support of his claim. Among other sanctions, the DHO revoked a combined 229 days of McGill’s good time credit. McGill exhausted his administrative remedies, then filed the § 2241 habeas petition at issue here. The District Court denied the petition by memorandum and order entered March 2, 2009. McGill appeals.2
II.
Federal prisoners have a liberty interest in statutory good time credits. See Vega, 493 F.3d at 317 n. 4 (citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and 18 U.S.C. § 3624(b)(1)). Thus, “[wjhere a prison disciplinary hearing may result in the loss of good time credits, ... an inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity ... to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (citing Wolff 418 U.S. at 563-67, 94 S.Ct. 2963). In addition, the disciplinary decision must be supported by “some evidence” — i.e., “any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-46, 105 S.Ct. 2768.
McGill raises four challenges to his disciplinary proceeding. Each lacks merit, substantially for the reasons explained by the District Court. First, McGill argues that he received inadequate notice of the charge because the incident report states only that the cellular phone and charger were found in his “assigned living area” without specifying where. The notice, however, had only to “inform him of the charges and enable him to marshal the facts and prepare a defense.” Wolff 418 U.S. at 564, 94 S.Ct. 2963. The incident report did that by specifying the date and time at which the officer discovered the contraband and its nature. Those details allowed McGill to deny that the phone was his and claim that a particular inmate must have thrown it into his cubicle at a particular time. Indeed, McGill does not claim that he was actually unaware of where the officer found the cellular phone, and does *721not claim that he could or would have presented any other defense if the incident report had specified where in his cubicle the officer found it.
Second, McGill argues that the absence of such specification means that the record contained insufficient evidence to find him guilty of the charge. The DHO, however, relied on the officer’s statement in the disciplinary report that he had found the cellular phone in McGill’s “assigned living area” and the photograph that the officer took of the phone in that area. Thus, his decision clearly was based on “some evidence.” The District Court, though ultimately reaching that conclusion, was properly troubled by the lack of detail because the precise location of the items in McGill’s cubicle might have had some bearing on the plausibility of his explanation. We agree that a more detailed description would have been preferable. “The Federal Constitution,” however, “does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board.” Hill, 472 U.S. at 457, 105 S.Ct. 2768. Instead, the decision had only to be supported by “some evidence,” and it was so supported here.3
Third, McGill argues that Code 108 does not prohibit possession of a cellular phone and that the warden’s interpretation thus constituted a “revision” of Code 108 that required a formal amendment. “An agency’s interpretation of its own regulation,” however, “is ‘controlling ... unless it is plainly erroneous or inconsistent with the regulation.’ ” Chong v. Dist. Dir., INS, 264 F.3d 378, 389 (3d Cir.2001). As explained above, the warden interpreted Code 108 to include possession of a cellular phone because he determined that such possession “poses a serious impact on institution security.” That interpretation is perfectly consistent with Code 108’s prohibition of items “hazardous to institutional security.”
Finally, McGill argues that the record contains no evidence that he personally was provided with the warden’s memorandum, which was issued before he arrived at the facility. McGill, however, does not claim that he was unaware that the possession of cellular phones is prohibited in general, or even that such possession is treated as a Code 108 violation in particular. To the contrary, he claims only that the cellular phone did not belong to him, not that he would not have had one had he known it was prohibited. Thus, even if McGill did not receive a copy of the memorandum, he suffered no conceivable prejudice.
Accordingly, we will affirm the judgment of the District Court.
. Code 108 of the Prohibited Acts Code prohibits "[pjossession, manufacture, or introduction of a hazardous tool (Tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g., hack-saw blade).” 28 C.F.R. § 541.13, Table 3. Prior to McGill's arrival at FPC-Schuylkill, the warden issued a memorandum to the prisoners explaining that possession of a cellular phone would be treated as a Code 108 violation because it "poses a serious impact on institution security.” The memorandum also reminded prisoners of their responsibility to keep their areas free of contraband and concluded by stating that "you will be charged with a violation of Code 108 if a cellular telephone is found in your personal area."
. Challenges to the loss of good time credits are properly brought under § 2241, see Queen v. Miner, 530 F.3d 253, 254 n. 2 (3d Cir.2008), and a certificate of appealability is not required to appeal the denial of a § 2241 petition, see Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). “This Court reviews a District Court's denial of habeas corpus relief de novo," but reviews any factual findings for clear error. Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
. McGill further argues that there was no evidence that he possessed the cellular phone because the incident report did not rule out the possibility that it was possessed by his cubicle mate, who was charged with the same offense (he does not allege what became of the charge). The District Court did not address that aspect of the argument, but it too lacks merit. As explained above, there is no requirement that the evidence rule out all other possibilities, and the fact that it implicated both McGill and his cubicle mate does not render it insufficient to find against McGill. See Hill, 472 U.S. at 457, 105 S.Ct. 2768 (upholding disciplinary charges against three inmates and explaining that ”[a]lthough the evidence in this case might be characterized as meager, and there was no direct evidence identifying any one of the three inmates as the assailant, the record is not so devoid of evidence that the findings by the disciplinary board were without support or otherwise arbitrary”).
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OPINION
PER CURIAM.
Lee Chong Moua appeals from an order of the United States District Court for the Eastern District of Pennsylvania granting Defendants’ motions to dismiss Moua’s *727complaint for failure to state a claim. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
In January 2008, Moua, an inmate at SCI-Mahanoy, filed an action pursuant to 42 U.S.C. § 1983 against his court-appointed attorney, two judges of the Court of Common Pleas of Lancaster County, Pennsylvania, and a legal intern with the Administrative Office of Pennsylvania Courts. He alleged that the Defendants violated his Sixth Amendment rights by not fulfilling his request to purchase the “jury charge transcript” of his criminal trial. The judges and legal intern (“Judicial Defendants”) moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Moua’s claim that his attorney told him the “record has inexplicably become unavailable” was insufficient to allege a denial of access to the courts and actual injury by the Judicial Defendants. The District Court granted the motion and dismissed the complaint as to the Judicial Defendants. Moua filed a timely motion for reconsideration, which the District Court denied. He thereafter filed a timely appeal with this Court. However, Moua’s appeal was dismissed for failure to pay the filing fee pursuant to Third Circuit LAR 3.3 and MISC. 107.2(a).
Meanwhile, in the District Court, the remaining defendant in the case, Attorney Daniel Taylor (“Taylor”) filed a separate motion to dismiss Moua’s complaint. Upon consideration of the parties’ submissions, the District Court granted Taylor’s motion and dismissed Moua’s complaint. Moua appeals the ruling.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim is plenary. Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir.1999). When considering a district court’s grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Upon review of the record, we agree that the District Court properly dismissed Moua’s complaint as to all of the defendants in the case. Even under the liberal pleading standard for pro se complaints, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Moua’s complaint did not establish a cause of action under 42 U.S.C. § 1983.
To establish a cause of action under section 1983, a plaintiff must allege “the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
As previously mentioned, Moua alleged that the Defendants refused to provide him with a copy of the transcript of his 1990 state court criminal trial. As relief, Moua requested a mandatory injunction ordering the Defendants to provide him with a copy of the transcript and a declaratory judgment that the Defendants’ conduct in refusing to give him the transcript was “intentionally wrong and directly caused the injury complained of.” The District Court construed Moua’s complaint *728as a claim for denial of access to the courts.1
In order to prevail on a denial of right of access to the courts claim, it is necessary that a plaintiff allege an actual injury, i.e., an instance in which he was actually denied access to the courts. Lewis v. Casey, 518 U.S. 343, 350-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Peterkin v. Jeffes, 855 F.2d 1021, 1039-40 (3d Cir.1988).
In Moua’s complaint, he did not set forth any facts describing how he has been injured as a result of not having his transcript. Moua’s responses to Defendants’ motions to dismiss are likewise silent regarding his alleged injury. In his response to Taylor’s motion to dismiss, Moua merely stated that based upon his review of the transcript, his new attorney has drafted an amended petition for post-conviction relief in his criminal trial alleging that Taylor was ineffective for failing to object to an erroneous jury instruction. Because the state court has yet to rule on the amended petition, Moua cannot assert that he has been foreclosed from any post-conviction remedy or relief by not having obtained the transcript until June 2008. Thus, because Moua has not set forth any basis, either factual or legal, to support a claim against the Defendants for denial of access to the courts, we conclude that the District Court’s decision to dismiss his complaint was appropriate.
As there is no substantial question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6.
. Prior to the District Court's ruling on Taylor's motion to dismiss, Moua withdrew his request for injunctive relief. Apparently, in June 2008, Moua obtained a copy of the trial transcript. However, he still sought entry of a declaratory judgment that the Defendants violated his constitutional rights.
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