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OPINION
PER CURIAM.
Emerson Elder, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey denying a post-judgment motion related to his employment discrimination action. We will affirm.
Elder filed an employment discrimination action against New Jersey Transit Corp. claiming that he was not hired as a result of religious discrimination and in retaliation for his previous legal actions against the company. The District Court granted summary judgment for New Jersey Transit in an order entered March 23, 2004, and we affirmed the District Court’s order.
On October 4, 2005, Elder filed a motion for reconsideration, which the District Court treated as filed pursuant to Federal Rule of Civil Procedure 60(b) and Local Civil Rule 7.1, and denied as untimely and without merit. On March 17, 2008, Elder filed a motion for a new hearing, which the District Court treated as filed pursuant to Rules 59(e) and 60(b), and also denied as untimely and without merit. Elder unsuccessfully sought reconsideration of the denial of his March 17, 2008, motion.
On November 12, 2008, Elder filed yet another post-judgment motion challenging the District Court’s March 23, 2004, order. The District Court treated the motion as filed pursuant to Rules 59(e) or 60(b) and found the motion untimely and without merit. This appeal followed.
The District Court did not abuse its discretion in denying Elder’s post-judgment motion. Elder asserted an alleged conflict of interest between his appointed counsel and New Jersey Transit and its counsel. We agree with the District Court that Elder’s motion was untimely under Rule 59(e) because it was filed more than 10 days after the entry of the order granting summary judgment, see Fed.R.Civ.P. 59(e), and untimely under Rule 60(b) because the motion was not filed within a reasonable time. See Fed.R.Civ.P. 60(c). Moreover, Elder’s motion repeated assertions that he had made in his previous post-judgment motions, which the District Court had denied.1
Accordingly, because this appeal does not present a substantial question, we will summarily affirm the District Court’s order.
. To the extent Elder seeks to appeal the denials of his earlier post-judgment motions, he did not timely appeal the District Court's orders and we lack jurisdiction to review them.
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OPINION
PER CURIAM.
Appellant Raymond Jackson, a federal prisoner incarcerated in Pennsylvania, was indicted in United States District Court for the Southern District of New York, along with eleven co-defendants, in connection with his participation in a drug enterprise that engaged in murder, robbery and extortion. See Jackson v. United States, 2002 WL 1968328, at * 1 (S.D.N.Y. August 26, 2002). After the trial began, Jackson pleaded guilty to one count of conspiring to murder George Ford in aid of the racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(5), and two counts of using and carrying a weapon in relation to the murders of Greg Hawkins and Sheila Berry, respectively, in violation of 18 U.S.C. § 924(c). See id. Jackson’s crimes exposed him to a term of imprisonment of 54 years, but, in exchange for his guilty plea, the government agreed to a term of imprisonment of only 35 years. See id. The agreement also provided that Jackson would give up his right to a direct appeal of the judgment of sentence, and right to challenge his conviction pursuant to a motion to vacate sentence under 28 U.S.C. § 2255. See id. Jackson was sentenced on July 7, 1999 to a term of imprisonment of 420 months.
*731Despite the waiver of appellate rights, Jackson filed a section 2255 motion in the sentencing court at D.C. Civ. No. 01 Civ. 3967, contending that his counsel provided ineffective assistance in negotiating the guilty plea and sentence, and in not challenging the conviction on direct appeal. See id. The sentencing court denied the motion after reviewing the plea agreement and concluding that Jackson’s knowing and voluntary waiver of his right to appeal a stipulated sentence was enforceable. See id. at *2. The court held that Jackson was competent to enter the plea, understood the charges and the penalties that attached to each, and admitted the facts supporting the charges. See id. As to the weapons charges, in particular, Jackson admitted that he had provided the guns to be used to kill Hawkins and Berry, knowing the purpose for which they would be used, and in fact they were used for murder. See id. Jackson appealed the dismissal of his section 2255 motion to the Second Circuit Court of Appeals, C.A. No. 02-1649, and that court dismissed the appeal, agreeing with the sentencing court that the appellate waiver was enforceable. The Second Circuit, on March 7, 2006, denied Jackson’s motion to file a second or successive section 2255 motion grounded on the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On August 30, 2007, Jackson filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in United States District Court for the Middle District of Pennsylvania, see Jackson v. Sniezek, 2008 WL 4748247 (M.D.Pa. October 27, 2008). In this habeas corpus petition, he alleged that his two firearms convictions were invalid under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Jackson’s “Bailey ” argument was that, because the substantive charges against him for the murders of Hawkins and Berry were dismissed as part of his plea agreement, the firearms convictions each lacked a predicate conviction. The district judge dismissed the habeas corpus petition for lack of jurisdiction, concluding that Jackson’s remedy pursuant to 28 U.S.C. § 2255 was not inadequate or ineffective to test the legality of his conviction and sentence. Our decision in In re: Dorsainvil, 119 F.3d 245 (3d Cir.1997) (petitioner who asserted that his conviction was rendered invalid by Bailey may seek relief under 28 U.S.C. § 2241), did not apply because Jackson did not argue that his conduct did not satisfy the “use” prong of section 924(c)(1), as interpreted by the Supreme Court in Bailey. See Jackson, 2008 WL 4748247, at * 3. Jackson did not appeal this decision.
At issue in the instant appeal, Jackson filed another petition for writ of habeas corpus under 28 U.S.C. § 2241, this time in United States District Court for the Western District of Pennsylvania. Relying on the Second Circuit’s interpretation of section 924(c)(l)(A)’s “except” clause in United States v. Whitley, 529 F.3d 150 (2d Cir.2008), Jackson raised a new claim that he was actually innocent of the mandatory consecutive sentences he received under section 924(c).1 Following the filing of a Report and Recommendation by the Magistrate Judge, the District Court, in an order entered on May 8, 2009, denied the habeas coipus petition for lack of jurisdiction, concluding that Jackson’s remedy pursuant to 28 U.S.C. § 2255 was not inadequate or ineffective. Jackson has timely appealed.
Our Clerk advised Jackson that his appeal was subject to summary affirmance *732under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We have reviewed that submission.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no substantial question is presented by the appeal. Our review is plenary. United States v. Thompson, 70 F.3d 279, 280-81 (3d Cir.1995).
We will summarily affirm the order of the District Court because no substantial question is presented by this appeal. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or sentence. Under the explicit terms of 28 U.S.C. § 2255, unless a section 2255 motion would be “inadequate or ineffective,” even a habeas corpus petition cannot be entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). Section 2255 is not inadequate or ineffective simply because Jackson is prevented by the gatekeeping requirements of the statute, see 28 U.S.C. § 2255(h), from litigating his most recent challenge to his conviction and sentence.2 “It is the efficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)). Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, see Dorsainvil, 119 F.3d at 251, and would not apply here because Jackson does not claim that he was convicted for conduct later deemed to be noncriminal by a change in law. See id. at 251.3
*733For the foregoing reasons, we will summarily affirm the order of the District Court dismissing Jackson’s habeas corpus petition for lack of jurisdiction.
. Evidently, Jackson also unsuccessfully sought authorization to raise this claim in the Second Circuit Court of Appeals in December of 2008.
. A second or successive section 2255 motion must be authorized by a court of appeals to contain: "(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Jackson’s claim does not involve newly discovered evidence or a new rule of constitutional law.
. Section 924(c)(1)(A) provides that:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of Law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A) (emphasis added). The applicable sentence must run consecutively to any other term of imprisonment. See id. § 924(c)(l)(D)(ii). The defendant in Whitley was subject to a mandatory minimum of 15 years imprisonment under 18 U.S.C. § 924(e). He also was subject to a mandatory consecutive sentence of 10 years pursuant to section 924(c). 529 F.3d at 152. The Second Circuit held that, read literally, the "except” clause meant that he was subject only to the 15-year mandatory minimum of the Armed Career Criminal Act; the 10-year mandatory consecutive weapons sentence did not apply. See id. at 153. Jackson’s claim, based as it is on Whitley, is not that he was convicted of conduct later deemed to be noncriminal by a change in law, and thus he may not resort to habeas corpus. Furthermore, in United States v. Abbott, 574 F.3d 203 (3d Cir.2009), *733we joined the majority of other circuits which have flatly rejected Whitley's reasoning. Abbott holds that mandatory consecutive sentences for section 924(c) violations do apply to a defendant who receives a longer mandatory minimum under the ACCA. We reasoned that a comparison of the current and prior versions of section 924(c) establish that Congress intextded that an additional sentence be imposed consecutively to any other term of ixnprisonment when a crime of violence or drug trafficking crime involves a fireamx. 574 F.3d at 208. Read in context, section 924(c)'s ''except” clause x-efers only to other minimum sentences that may be imposed for violations of section 924(c), not separate offenses. See id.
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OPINION
PER CURIAM.
Antonio Vazquez appeals from the District Court’s denial of his motion for issuance of a conditional writ of habeas corpus. For the following reasons, we will summarily affirm.
In July 2000, a jury sitting in the Philadelphia Court of Common Pleas found Vazquez guilty of first-degree murder and a judge sentenced him to life in prison. After filing an unsuccessful direct appeal and a post-conviction petition in state court, Vazquez filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court denied the petition. Vazquez appealed and we reversed, directing the District Court to “order that the state authorities free Vazquez from custody unless he is retried in the state courts with the trial to start within a period of time the District Court fixes.” Vazquez v. Wilson, 550 F.3d 270, 284 (3d Cir.2008).
On remand, in an order entered on January 16, 2009, the District Court granted the Commonwealth sixty days to file a petition for writ of certiorari in the United States Supreme Court. If the Commonwealth chose not to seek certiorari, the order allowed the Commonwealth 120 days to re-try Vazquez from the date of its decision not to do so. On February 27, 2009, the Commonwealth chose not to seek a writ of certiorari. On June 12, 2009, the Commonwealth filed a motion to extend the time for state re-trial. In a June 17 order, the District Court granted the Commonwealth an additional 120 days to re-try Vazquez.1 On the same day, Vazquez filed a motion to convert the conditional grant of habeas corpus into an absolute writ requiring his release. The District Court, citing the June 17 order granting the Commonwealth an extension, entered an order denying his motion. Vazquez filed a timely notice of appeal from that order.
We have jurisdiction over Vazquez’s appeal denying his request to make the conditional writ absolute and to release him pursuant to 28 U.S.C. § 1291. See Gibbs v. Frank, 500 F.3d 202, 205 (3d Cir.2007). “We exercise plenary review over whether the District Court correctly interpreted the instructions of our prior opinion.” Id. at 206.
Our decision in Gibbs v. Frank is squarely on point. In that case, also involving a Pennsylvania habeas corpus petitioner challenging the length of time set for re-trial, we held that the original 120-day period the District Court set for retrial was “eminently reasonable.” Id. at 207 (noting that 120 days comports with Pennsylvania’s Rule of Criminal Procedure 600(D)). In addition, we held that a District Court has broad discretion to alter the time period originally set for retrial. Id. at 207-08. That broad discretion includes “the ability to evaluate whether the Commonwealth has provided a legitimate reason for its delay in retrying a defendant subject to a conditional habeas writ.” Id. at 208. In excusing the untimeliness of Gibbs’ re-trial, we noted that the District Court gave careful consideration to comity by looking to a Pennsylvania state court procedural rule which excludes from the 120-day period any continuances granted at the request of the defendant or defendant’s attorney. Id. at 210.
*735Vazquez has not alleged that any of the delays were attributable to the Commonwealth; he argues only that he wishes to be released in order to better prepare for his new trial. The Commonwealth asserted in its motion that it has located its witnesses and is ready to proceed to trial. Indeed, the Court of Common Pleas Docket shows that Vazquez or his counsel is responsible for the delays in commencing the trial.
On March 30, 2009, the Commonwealth and defense attorney Louis Nicholson appeared before the court and the defense requested a continuance. On April 8, 2009, the court ordered a hearing to determine whether Vazquez needed appointed counsel. On May 14, 2009, Vazquez appeared before the trial court with counsel present. At that hearing, the trial court removed defense counsel Norris Gelman and ordered Daniel Rendine to represent Vazquez.2 On May 21, Vazquez officially filed a motion for appointment of counsel. The court listed the case for a hearing on June 9, 2009, to determine Rendine’s status. On June 9, Rendine indicated that he needed additional time for further preparation.3 At the same hearing, the trial court also appointed another attorney, Judy Rubino, as a mitigation specialist to assist Rendine during the penalty phase of the trial.4 The court scheduled the parties to appear again on July 14.
Given that the delay in starting trial is due to the appointment of new defense counsel, we think that the District Court acted "within its broad habeas authority in extending the time period for re-trial for an additional 120 days. Gibbs, 500 F.3d at 210.5
Accordingly, because this appeal presents us with no substantial question, we will summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.
. Thus, the Commonwealth now had 240 days from February 27, 2009, to re-try Vazquez.
. According to the Commonwealth, Vazquez had been in contact with Gelman, who had been negotiating plea agreements with the Commonwealth. The Commonwealth, however, stated that Vazquez refused to cooperate with Gelman in his representation. Vazquez asserted in his motion that while he had preliminary discussions with Gelman, Gelman would not represent him until the two could meet in person.
. Recently, the Supreme Court, interpreting the Sixth Amendment's guarantee of a speedy trial, held that "[a]ssigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.” Vermont v. Brillon, - U.S. -, 129 S.Ct. 1283, 1287, 173 L.Ed.2d 231 (2009).
. The Commonwealth has indicated that it intends to seek the death penalty.
. We recognize that the District Court's order is, in one respect, broader than the order in Gibbs. Here, the District Court granted the Commonwealth an additional 120 days instead of excusing the delay within the original 120 day period. The practical effect of the District Court's order, however, is similar and is not an impermissible alteration of the original period. Gibbs, 500 F.3d at 207. Indeed, in Gibbs, the Court cited approvingly to a Seventh Circuit case in which the state moved for an extension of the re-trial period which the district court granted. Id. at 208 (citing Gilmore v. Bertrand, 301 F.3d 581, 583 (7th Cir.2002) (per curiam)).
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OPINION
PER CURIAM.
Steven Paul Fleming, proceeding pro se, appeals from the District Court’s dismissal of his complaint. For the reasons that follow, we will summarily affirm the judgment of the District Court.
Fleming initiated the instant action in the United States District Court for the Eastern District of Pennsylvania on December 8, 2008. In his complaint, he alleged that he was a pilot who was misdiagnosed by the Veterans Administration Medical Center as having paranoid schizo*737phrenia and, as a result, was prevented from flying. He claimed that in 2006, he finally found a doctor who determined that he was not schizophrenic and never was, but that the Federal Aviation Administration (“FAA”) still refused to provide him with a medical certification. The FAA moved to dismiss the complaint for lack of subject matter jurisdiction, failure to state a claim, and lack of personal jurisdiction over Dr. Michael Berry, Manager, Medical Specialties Division.
In an order dated June 23, 2009, the District Court granted Appellees’ motion to dismiss. As the Court explained, the Aviation Act provides that the courts of appeals have “exclusive jurisdiction to affirm, amend, modify, or set aside” orders of the FAA. See 49 U.S.C. § 46110(a), (c). Pursuant to 49 U.S.C. § 46110(a), which establishes the procedures for an appeal from an order issued by the Administrator of the FAA with respect to aviation duties, any such appeal must be filed in the United States Court of Appeals for the District of Columbia or in the court of appeals for the circuit in which the person resides or has his principal place of business within 60 days of the date of the order. As numerous courts have held, when the resolution of a plaintiffs claims in federal court requires an examination of the underlying FAA proceedings, the district courts lack subject matter jurisdiction over any such claims. See Merritt v. Shuttle, Inc., 187 F.3d 263, 270-71 (2d Cir.1999); Tur v. Federal Aviation Admin., 104 F.3d 290, 292 (9th Cir.1997); Green v. Brantley, 981 F.2d 514, 521 (11th Cir.1993). Because the Aviation Act deprived the District Court of subject matter jurisdiction over Fleming’s claims against the FAA, the District Court properly dismissed those claims. See id. With respect to Dr. Berry, the District Court held that Fleming failed to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). As Fleming failed to allege any wrongdoing by Dr. Berry personally, the District Court properly dismissed Fleming’s complaint with respect to him. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ ”).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because this appeal presents no “substantial question,” we will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
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OPINION
PER CURIAM.
Steven Paul Fleming, proceeding pro se, appeals from the District Court’s dismissal of his complaint. For the reasons that follow, we will summarily affirm the judgment of the District Court.
Fleming filed a complaint in the United States District Court for the Eastern District of Pennsylvania on December 8, 2008 in which he alleged that the Veterans’ Administration (“VA”) misdiagnosed him with paranoid schizophrenia. He alleged that, as a result of this diagnosis, his career as an airline pilot was ruined. He sought damages for personal injury and lost wages. On May 28, 2009, the VA moved to dismiss. At no time did Fleming file a response or any document that could be construed as a response in the District Court. Accordingly, on June 24, 2009, the District Court granted the VA’s motion to dismiss as unopposed pursuant to Local Civil Rule 7.1(c).1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We agree that the District Court acted within its authority to dismiss the complaint as unopposed pursuant to the Local Civil Rules. Additionally, we note that the District Court lacked subject matter jurisdiction over Fleming’s appeal. Through this action, Fleming seeks to challenge the VA’s diagnosis. The Veterans Judicial Review Act sets out a limited procedure for judicial review of decisions made by the Department of Veterans’ Affairs. See 38 U.S.C. § 511(a). First, the veteran must seek review within the agency by filing a notice of disagreement with the Board of Veterans Appeals. See 38 U.S.C. *739§ 7105(a). An appeal from the decision of the Board can only be taken to the Court of Appeals for Veterans Claims, which has exclusive jurisdiction over appeals from decisions of the Board of Veterans’ Appeals. See 38 U.S.C. § 7252(a). Thus, to the extent Fleming sought review of his diagnosis by the VA, the District Court could not have exercised subject matter jurisdiction over his claim. See Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir.1995); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994).
Because this appeal presents no “substantial question,” we will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
. Local Civil Rule 7.1(c) provides, in relevant part: "any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. In the absence of timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed.R.Civ.P. 56(c).”
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OPINION
PER CURIAM.
Jerry Frith appeals pro se from an order of the United States District Court for the District of New Jersey dismissing for lack of jurisdiction his habeas petition filed pursuant to 28 U.S.C. § 2241. For the following reasons, we will summarily affirm.
In 2002, Frith pleaded guilty in the United States District Court for the Southern District of New York to various drug and firearms offenses. He was sentenced to 181 months in prison.1 Frith apparent*740ly did not file a direct appeal, and his motion pursuant to 28 U.S.C. § 2255 was unsuccessful. In March 2009, Frith filed the present § 2241 petition, alleging that the imposition of a consecutive sentence violated the holding of United States v. Whitley, 529 F.3d 150 (2d Cir.2008).2 The District Court dismissed the petition, concluding that Frith failed to demonstrate that § 2255 would be “inadequate or ineffective” to test the legality of his detention. Frith next filed a timely motion for reconsideration, which the District Court denied. Frith appealed.
We have jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court’s dismissal. See Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002). Summary affirmance is proper when “it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” 3d Cir. I.O.P. 10.6.
The presumptive means by which a federal prisoner can challenge the validity of his conviction or sentence is by motion pursuant to 28 U.S.C. § 2255, unless such a motion would be “inadequate or ineffective.” Okereke, 307 F.3d at 120. Lack of success in a previous § 2255 motion, without more, does not render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive § 2255 motions. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002). We agree with the District Court that dismissal on jurisdictional grounds was proper because Frith’s case does not fit within the narrow class of circumstances where a § 2255 motion would be inadequate or ineffective to challenge his conviction. See Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir.2002).
Because this appeal does not present a substantial question, we will summarily affirm the District Court’s order dismissing Frith’s § 2241 petition.3 See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
. Frith was sentenced to 60 months in prison for using a firearm during the commission of a drug trafficking offense, see 18 U.S.C. § 924(c)(1). That sentence ran consecutively to concurrent sentences for conspiracy to distribute a controlled substance (121 months in *740prison), 18 U.S.C. §§ 841(b)(1)(A) & 846, and possession of a firearm by a convicted felon (120 months in prison), see 18 U.S.C. § 922(g)(1).
. In Whitley, the Second Circuit found that a consecutive ten-year minimum sentence for discharge of a firearm pursuant to 18 U.S.C. § 924(c)(l)(A)(iii), did not apply to a defendant who was also subject to a fifteen-year minimum sentence provided by the Armed Career Criminal Act's "three strikes" rule under §§ 922(g)(1) and 924(e). See 529 F.3d at 158. We recently rejected this approach. See United States v. Abbott, 574 F.3d 203, 206-11 (3d Cir.2009).
. A certificate of appealability is denied, as one is not required to appeal from the denial of Frith’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009).
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OPINION OF THE COURT
FISHER, Circuit Judge.
Jean Wargo, as Administratrix of the estate of her grandson, Tristan Wargo (“Estate”), appeals from the District Court’s order granting summary judgment to Appellees Schuylkill County, Schuylkill County Prison Warden Gene Berdanier, Schuylkill County District Attorney Frank Cori, President Judge William Baldwin, and prison employees Michael Kryjakp, Lt. M. Flannery, and Lt. Scott Rizzardi. See Wargo v. Schuylkill County, et. al., No. 3:06cv2156, 2008 WL 4922471 (M.D.Pa. November 14, 2008). On appeal, the Estate argues that there were disputed genuine issues of material fact that made summary judgment inappropriate and that the District Court applied an incorrect legal standard to the Estate’s claim that the prison had deficient suicide related practices or procedures which led to Wargo’s death. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Tristan Wargo was prescribed the pain medication Oxycontin after suffering a back injury in 2003 and subsequently became addicted to the medication. On October 28, 2004, after being taken off the medication by his physicians, Wargo took a shotgun to the pharmacy that had previously filled his prescriptions and stole $6,800 worth of Oxycontin. That same day Wargo was arrested and taken to the Schuylkill County Prison. The Prison’s receiving screening officer noted that War-go exhibited visible signs of Alcohol/Drug withdrawal symptoms. Wargo was then seen by the Prison’s physician. Wargo told the physician of his addiction to Oxycontin and also informed the physician of his allergy to the anti-depressant drug Wellbutrin.
Wargo was placed in a holding cell and officers were instracted to check him on an hourly basis because of his withdrawal symptoms. On October 30, 2004, Wargo informed corrections officers that he ingested ten to twelve Oxycontin pills which *758he had brought into the prison. This report could not be verified because after a conversation with Lt. Flannery, Wargo did not exhibit any behavior consistent with drug use. Nonetheless, Lt. Flannery ordered that Wargo be placed on close observation, be given a suicide proof paper gown to wear in place of his standard prison jumpsuit, and that all items which Wargo could use to harm himself be taken from his cell. Additionally, Wargo was prohibited access to any sharp utensils with his meals. The next day Wargo reported to a corrections officer that he had a problem with his eye. Lt. Flannery attended to Wargo and found a staple hanging above Wargo’s eye.1 Flannery removed the staple and Wargo received no further medical treatment with regard to this incident. Further, Wargo cut open a mattress, prompting prison officials to remove the mattress from his cell.
On November 1, 2004, Michael Kryjak, a prison counselor, determined that Wargo should be kept on close observation. While Kryjak was not a psychologist, he made this decision in his capacity as a prison counselor in accordance with prison procedures and in an abundance of caution. Over the next few days, Wargo’s privileges were gradually restored — he was given back his regular prison uniform, his mattress, and his regular meals. During this time, Wargo spoke on several occasions by telephone with his grandmother and met in person with his father and a family friend. Finally, on November 5, 2004, Kryjak determined that Wargo could be removed from enhanced correctional watch. Due to overcrowding at the prison, Wargo was moved to the E-block. This section of the prison was most often used for inmates on solitary confinement. War-go agreed to the assignment. We note that the last suicide at Schuylkill County Prison occurred nine years earlier on the E-block.
The day after Wargo was moved to E-block he was found dead, hanging by his bed sheet from an air vent located on the ceiling of his cell. In a note left in the cell, Wargo indicated that he had wanted to commit suicide since he arrived in prison and that he finally had the materials he needed to do so.
Wargo’s grandmother, as administratrix of his estate, filed this suit alleging a violation of Wargo’s civil rights pursuant to 42 U.S.C. § 1983 and the Fourth, Eighth and Fourteenth Amendments of the United States Constitution for deliberate indifference to Wargo’s medical needs and for maintaining deficient suicide prevention practices or policies which led to Wargo’s death. The Estate also brought state law claims under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act. The District Court granted summary judgment to the defendants on Wargo’s claims under § 1983 and then dismissed the State law claims for lack of jurisdiction.
II.
The District Court had subject matter jurisdiction over Wargo’s § 1983 claims *759pursuant to 28 U.S.C. § 1331 and exercised supplemental jurisdiction under 28 U.S.C. § 1367 over the related state law claims. We have appellate jurisdiction under 28 U.S.C. § 1291. When reviewing a District Court’s order granting a motion for summary judgment we exercise plenary review, applying the same standard utilized by the District Court to determine whether the moving party has demonstrated that there is no genuine issue of material fact. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1020 (3d Cir.1991) (“Col-burn II ”).
III.
A.
On appeal the Estate argues that the District Court erred in granting the Appel-lees’ motion for summary judgment because there remained disputed issues of material fact and because the District Court applied an incorrect legal standard to the Estate’s deficient policies or practices claim.
B.
This Court established the standard for liability in prison suicide cases in Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir.1988) (“Colburn I ”). In that case we held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” Id. at 669. The plaintiff therefore has the burden to establish three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn II, 946 F.2d at 1023.
We have stated that “a prison custodian is not a guarantor of a prisoner’s safety,” and therefore the fact that a suicide took place is not enough on its own to establish that prison officials were recklessly indifferent in failing to take reasonable precautions to protect prisoners entrusted to their care. Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir.1988).
In order to show a detainee had a particular vulnerability to suicide, the plaintiff must show that there was “a strong likelihood, rather than a mere possibility, that self-inflicted harm [would] occur.” Woloszyn v. County of Lawrence, 396 F.3d 314, 320 (3d Cir.2005) (citations omitted). It is not enough to show that the detainee fits within a category of persons who may be more likely to commit suicide. Instead, in this case, the Estate has the burden of demonstrating that Wargo himself had a particular vulnerability to suicide.
The Estate offers expert testimony to show that Wargo had a number of risk factors for suicide, including his age, the severity of the crime he committed, and his withdrawal symptoms. This evidence does not demonstrate Wargo’s particularized vulnerability to suicide. Many prison inmates are young men, many are in prison for serious offenses, and many suffer symptoms related to past drug abuse. Certainly it cannot be said that all of these individual inmates have a particularized vulnerability to committing suicide. It is the individual factors, not group characteristics, which are important in considering whether the person had a particular vulnerability to suicide.
In addition to evidence that Wargo fell into categories of persons more likely to commit suicide, the Estate offers evidence that Wargo’s behavior in the week leading up to his suicide should have alerted prison officials to his vulnerability to committing suicide. Fh’st, Wargo claimed to have taken ten to twelve Oxycontin pills that he smuggled into the prison. As a result of *760this action, prison officials placed Wargo on watch, but they did not interpret this action as an attempt to commit suicide, considering Wargo’s addiction to the drug. In fact, given Wargo’s lack of a reaction to the drug, prison officials could not confirm that consumption in fact took place. Prison officials also did not consider the fact that Wargo cut open his mattress or the fact that a staple was pulled from his eye to be signs that Wargo was an enhanced risk of suicide.
Even drawing all reasonable inferences from the events surrounding Wargo’s time in prison in the plaintiff’s favor we cannot find that a prisoner consuming drugs he smuggled into a prison, cutting open a mattress, or putting a staple into or near his eye demonstrates his particular vulnerability to suicide. Wargo’s drug consumption would be typical of a drug addict who was able to obtain drugs in prison. Prison officials say that cutting open mattresses is a common way for inmates to stay warm and that putting a staple near one’s eye is a typical way for inmates to keep open a piercing. As the District Coux-t noted, placing a staple in or near one’s eye would be an odd way to attempt suicide. Given that these events are occur from time to time at the prison, it cannot be said that they establish a strong likelihood that the inmate will commit suicide.
Finally, those closest to Wargo did not recognize any change in his behavior that made him appear more likely to commit suicide. While incarcerated, Wargo had multiple telephone conversations with his grandmother and was visited by Joe Kraw-czyk, who was close enough with Wargo to consider himself Wax-go’s uncle. Neither repox-ted to prison officials any concern that Wax-go may tx-y to hax-nx himself. The fact that family members and close fi-iends wex-e unable to recognize that Wargo was at risk of harming himself weighs heavily against a finding that Wax-go was pax*ticu-larly vulnex-able to committing suicide.
We therefore find that the Distx-iet Coux-t did not err in granting summax*y judgment on the Estate’s deliberate indifference claim.
C.
The Estate next claims that the District Coux-t incox-x-ectly interpx-eted the Estate’s claim that the px-ison maintained deficient suicide prevention policies or practices which led to Wax-go’s death as one for failux-e to train employees. According to the Estate, this led the Distx-ict Court to apply an incorrect legal standard to the deficient policies and practices claim.
A local government entity may be held liable under § 1983 only when the plaintiff demonstx-ates that the government entity itself caused the plaintiff’s injuxy thx-ough the implementation of a policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We have said that a policy is an official proclamation or edict of a municipality while a custom is a practice that is so permanent and well settled as to virtually constitute law. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citations omitted). The plaintiff must also show that “there is a dix*eet causal link between [the] municipal policy or custom and the alleged constitutional deprivation.” Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir.2001) (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). It must be the policymaker’s actions that “directly caused constitutional harm.” Gottlieb ex. rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 (3d Cir.2001).
The Estate alleges that five deficient policies or practices led to Wax-go’s death: (1) not requix-ing intake staff to ask questions necessary to do a risk assessment; *761(2) permitting an unqualified individual to be solely responsible for assessing and determining inmates mental health needs; (3) permitting an unqualified individual to remove inmates from watch precautions without consulting a psychiatrist; (4) permitting individuals who have just been taken off suicide or enhanced watch to be housed on E-Block with the means and opportunity to commit suicide; and (5) the written suicide policies were incomplete and inadequately written to protect the safety of potentially suicidal inmates.
The District Court’s opinion includes a discussion of the prison’s admissions procedures, medical and health screening policy, and a memorandum establishing prison policy for dealing with suicide threats. See Wargo, 2008 WL 4922471, at NO-12. We need not repeat that lengthy factual discussion.
As the District Court recognized, the Estate’s first two claims that the prison’s policies are deficient center around the idea that the prison should have collected more information from inmates and put that information in the hands of a more highly trained individual, and that the failure to do so led to Wargo’s death. This theory runs counter to our holding in Col-bum I that the detainee must have a “particular vulnerability” to suicide. 838 F.2d at 669. More information of the type the Estate says should have been collected from Wargo may have placed him in a category of persons more likely to commit suicide, but that is not enough to establish an individual risk. The Estate’s first two problems with the prison’s policy, therefore, do not establish that Wargo’s death came as the result of a policy or practice of the prison.
It was not the policy or practice of the prison to allow an inmate placed on suicide watch to be taken off by anyone other than a psychiatrist. The prison’s written policy required that any inmate placed on suicide watch be taken off only by a psychiatrist. In the instant case, Wargo was placed merely on observation status. There is no evidence that Wargo was ever placed on suicide watch, thus there is no evidence that he was improperly taken off suicide watch status by Kryjak. Further, the Estate offered no evidence to show that it was an established practice on the part of the prison to have a non-expert remove an inmate from close observation.
Even if Kryjak did violate prison policies by taking Wargo off of enhanced watch without consulting a psychiatrist, Wargo’s death occurred because of a violation of prison policy not because of a deficient policy or practice. Therefore, the Estate’s third item does not establish that Wargo’s death came as a result of a deficient policy or practice. Further, in addressing the Estate’s fourth argument, nothing in evidence suggests the Prison had a policy or practice of .placing individuals taken off enhanced watch or suicide watch in the E-Block.
Finally, the Estate argues that the written suicide policy itself constitutes deliberate indifference to inmate safety. The prison had a suicide policy in place in October and November 2004 requiring that inmates be screened on intake for suicidal tendencies or a history of past suicide attempts. If such a history is found then a suicide prevention and intervention program is triggered. Prison guards were given training under this policy to recognize risk factors for suicide or other serious mental health issues. Additional training was provided for front line officers, including Lieutenants Rizzardi and Flannery. No suicides took place at the prison for nine years prior to Wargo’s death.
While the Estate and its experts may raise items that could improve the prison’s suicide policies, we have held that deliber*762ate indifference is not established simply because a better policy could have been enacted. See Colburn II, 946 F.2d at 1029-30.
We therefore hold that the Estate has not put forth any evidence of a causal link between Wargo’s death and a policy or practice of the prison.
IV.
For the aforementioned reasons, we will affirm the District Court’s order granting summary judgment to the appellees.
. There is a factual dispute as to whether the staple was actually in Wargo’s eye or whether it was above the eye. The incident report states that the staple was in Wargo's eye, but Lt. Flannery's deposition testimony states that it was actually above the eye. The resolution of this dispute is not necessary to our analysis. The Estate argues on appeal that a jury should resolve this factual dispute and that summary judgment was therefore inappropriate. Summary judgment does not require that there be no disputed facts. Instead, to grant summary judgment there must be no genuine issue of material fact, the resolution of which could allow a reasonable jury to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473056/
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OPINION
WEIS, Circuit Judge.
Plaintiff was injured in a sudden, unexpected, and unprovoked attack by Robert Johnson, a fellow inmate at the Delaware Correction Center on July 10, 2004. About one hour earlier, Johnson had directed an emotional outburst at a correctional officer and was taken to the prison infirmary. After examining him, the nurse referred Johnson to the mental health staff for an appointment two days later and released him.
Johnson then went to the recreation yard and assaulted plaintiff, fracturing his facial bones and injuring his eye, nose and teeth. Plaintiff was treated at the emergency room of a nearby hospital and then returned to the prison infirmary that same day. He received dental care and treatment for his other injuries during his incarceration and was released from prison on January 3, 2007.
While still an inmate, plaintiff filed suit under 42 U.S.C. § 1983, naming various correctional officers, medical personnel and the State of Delaware Department of *768Corrections as defendants. Among other things, plaintiff alleged violations of the First Amendment for retaliation and of the Eighth Amendment for inadequate medical care, failure to protect, and wrongful policies and procedures.
In March 2006, the District Court dismissed several of the plaintiffs claims, including all those against the Department of Corrections and the individual defendants in their official capacities. Only the Eighth and First Amendment claims remained. The March 2006 order was not appealed. After discovery, the District Court granted summary judgment in favor of the remaining defendants, concluding that plaintiff had failed to establish the claimed violations of the First and Eighth Amendments. There is no need to reiterate the court’s comprehensive review.
Plaintiff has appealed the order granting summary judgment and presents multiple arguments for reversal. We will affirm.
Initially, plaintiff contends that genuine issues of material fact existed regarding whether defendants Salas and Harvey, both lieutenants at the DDC, were deliberately indifferent to the dangers posed by inmate Johnson and, thus, responsible for his attack. Our review of the record convinces us that the District Court properly found that plaintiff had failed to raise a reasonable inference that Lt. Salas knew of an excessive risk to the plaintiffs safety, and that Lt. Harvey acted reasonably in sending Johnson to the infirmary for observation after his earlier outburst. We further agree that plaintiff failed to raise a genuine issue of fact as to the unreasonableness of Lt. Harvey’s actions following Johnson’s discharge. As the District Court found, Johnson did not appear dangerous or aggressive upon his release from the infirmary, and he had no history of violence against other inmates generally, or plaintiff in particular, such that Lt. Harvey could or should have predicted the attack. Therefore, the Court correctly concluded that neither defendant could be found liable for deliberate indifference under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 837, 844-45, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison official not liable under Eighth Amendment unless official knew of and disregarded an excessive risk to inmate safety; “prison official ] who act[ed] reasonably cannot be found liable under the Cruel and Unusual Punishments Clause”).
We also reject the plaintiffs second argument that the District Court erred when it granted summary judgment to Lts. Salas and Harvey, as well as “supervisory defendants” Taylor, Howard and Carroll, on the plaintiffs claim of deliberate indifference because of under-staffing and inadequate prison policies and procedures. The Court correctly found that there could be no liability because plaintiff did not challenge any specific policies. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989) (“judgment [cannot] properly be entered against [a defendant] ... based on supervisory liability absent[, among other things,] an identification by [the plaintiff] of a specific supervisory practice or procedure that [the defendant] failed to employ”). Plaintiff also failed to show actual knowledge on the defendants’ part. See Farmer, 511 U.S. at 842-43, 114 S.Ct. 1970.
Plaintiff further contends on appeal that summary judgment was inappropriate because there were genuine issues of material fact concerning the supervisory defendants’ responsibility for his allegedly inadequate medical care. However, plaintiff failed to establish that these defendants had denied any reasonable requests for treatment or had any personal involvement in his medical care. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (ex*769plaining that a plaintiff can satisfy the standard for deliberate indifference by demonstrating, among other things, that “prison authorities den[ied] reasonable requests for medical treatment” (quoting Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987))). The District Court also correctly pointed out that respondeat superior liability does not exist in the § 1983 context. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (in a successful civil rights suit, a defendant “must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior ”).
Finally, plaintiff asserts that after he complained directly to the governor and news media and filed the instant § 1983 action, the supervisory defendants placed him in the infirmary for a period and later, after an altercation with another inmate, in isolation. Despite the plaintiffs argument to the contrary, we believe that the District Court properly rejected this retaliation claim at summary judgment because plaintiff failed to provide evidence that any of the supervisory defendants were involved in either transfer decision. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (prisoner-plaintiff must prove causal link between protected activity and decision to discipline him).
We have, therefore, carefully reviewed the plaintiffs arguments, the record, and the District Court’s disposition of this case and find no reversible error. Accordingly, the order of the District Court granting summary judgment will be affirmed.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473058/
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OPINION
PER CURIAM.
Jamal Barr, an inmate at the Pennsylvania State Correctional Institution (“SCI”) at Graterford, Pennsylvania, appeals the order of the District Court (1) denying his motion for a temporary restraining order and preliminary injunction and (2) granting Appellees’ motion for judgment on the pleadings. For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceedings.
I.
Because this appeal challenges the District Court’s grant of a motion for judgment on the pleadings, “we accept as true all of the allegations in the complaint and draw all reasonable inferences therefrom in favor of [the nonmovant].” Consol. Rail Corp. v. Portlight, Inc., 188 F.3d 93, 94 (3d Cir.1999).
In 2005, Barr and the Pennsylvania Department of Corrections (“DOC”) entered into a settlement agreement in an unrelated case in the Middle District of Pennsylvania. Pursuant to the agreement, which was to remain confidential, the DOC transferred Barr from SCI Greene to SCI Gra-terford and placed him in a private cell. The day after his arrival at Graterford, Lieutenant Oplaka, Unit Manager Baker, and Corrections Officer (“C.O.”) Wop threatened to place Barr in “the hole” if he did not accept a cellmate. Although Barr ultimately remained in a private cell, prison officials began searching his cell at least once a week “for no apparent reason.” After a few months of these searches, Barr informed Lieutenant Owens of the situation but the searches continued.
In December 2005, Barr witnessed two prison guards engaging in “inappropriate sexual misconduct.” One of the two guards questioned Barr about what he saw, to which Barr replied, “I’ll take that to the grave with me.” Three days later, Baker placed Barr in the Restricted Housing Unit (“RHU”) and Barr received a report stating that he was a threat to himself and others, and that he had a “fixation” for the above-noted guard. After about a week in the RHU, Barr returned to the general prison population and was placed in a private cell. The following day, Sergeant Isamoyer told Barr that he did not like stalkers and that he had the power to prevent Barr from ever obtaining parole. Isamoyer and Unit Manager Pasquale threatened to return Barr to the RHU if Barr did not accept a cellmate, and Barr was ultimately placed in a cell with a cellmate.
Barr contacted several prison officials in an attempt to return to a private cell. After these efforts failed, Barr’s family contacted Attorney McGovern and DOC Deputy Secretary Vaughn, both of whom had been involved with the settlement. McGovern and Vaughn contacted David DiGuglielmo, Graterford’s Superintendent, who then referred the matter to Lieutenant Owens. Owens instructed Pasquale to return Barr to a private cell. After a short delay, Barr was returned to a private cell.
At some point thereafter, McGovern forwarded a copy of the settlement agreement to Graterford for placement in Barr’s file. In light of this “disclosure” and the earlier incident with the guard, “many guards continued to spread the nature of [Barr’s] crime and falsified rumors throughout the institution.” C.O. Wise “began to verbally express her displeasure towards [Barr] during her nightly rounds.” *772In October 2006, she issued Barr a “fabricated” misconduct citation. At the misconduct hearing later that day, Mary Canino, the hearing examiner, told Barr that if he did not waive his “24 hour hearing rights” she would give him 180 days in the RHU. In response to this threat, Barr waived his hearing rights and pled guilty to the misconduct charge. Canino ordered him to serve sixty days in the RHU, a sanction later reduced to forty-five days.
Before prison officials placed Barr in the RHU, he was strip-searched and his new sneakers were confiscated and never returned to him. Although Barr later grieved the matter and prison officials ultimately determined that he was to be reimbursed for the sneakers, he never received the reimbursement. After his release from the RHU in November 2006, Barr was placed in “the special needs unit” on Graterford’s “new side” because the “old side,” where he had resided previously, did not have any available private cells.
Barr contacted several prison officials in an attempt to be moved back to the old side. DiGuglielmo told him that once the old side’s “E-block” reopened, he would be moved back to the old side. When E-block reopened in January 2007, Barr contacted DiGuglielmo and requested to be moved. DiGuglielmo referred the issue to Major Feild, who refused to move Barr. Barr filed a grievance, which was assigned to and ultimately denied by Feild. Feild noted that, although Unit Manager Rodriquez could move Barr if she wanted to, he personally believed that Barr’s crime and recent misconduct justified keeping him on the new side. When Barr showed Feild’s decision to Rodriquez she told Barr to “leave her alone about being moved.”
Feild told Barr that the unit team would monitor Barr, and that Barr could renew his request to be moved once every thirty days. C.O. Young later informed Barr that Feild was “pissed-off’ about Barr’s grievance, and that Young had convinced Feild to move Barr to the old side in six months if Barr “promised not to file any more grievances or approach [Feild] in the hallway.” Barr sent letters to DiGugliel-mo and Deputy Lorenzo informing them of this “unwritten agreement” but the letters were ultimately referred back to Feild, who responded by stating that “ ‘staff has reason to believe that [Barr has] a history of behavioral issues.”
After receiving Barr’s letters, Feild instructed Rodriquez to place Barr in a tracking program, which is “designed to place scrutiny on an inmate in [the] general [prison] population.” Feild told Barr that if he did not agree to the program, Feild would place him in the RHU “for no reason.” After Barr entered the tracking program, Rodriquez instructed corrections officers to “write [Barr] up for anything.” Some of the officers “went out [of] there [sic] way to harass [Barr],” and “spread false rumors” about him. Barr filed two grievances in response to officers’ conduct but they were denied.
Prison officials also resumed searching Barr’s cell on a weekly basis. During one of these searches, they confiscated his “Jensen antennae,” which they never returned to him. He attempted to file a grievance but prison official Moyer refused to consider it.
Rodriquez then instructed the prison’s program managers to prohibit Barr from attending any religious, educational, or vocational activities. Barr filed a grievance, which was handled by Deputy Murray, who concluded that Barr could participate in the following activities on the old side: “chapel, Fieldhouse, [m]usic and [a]rt.” When Rodriquez learned of Murray’s decision, she stated that “she didn’t care what Deputy Murray said on paper.” To make sure Barr “wasn’t allowed on the old side for anything,” Rodriquez elevated his custody level. Barr grieved the matter but to *773no avail. According to Barr, he is, to his knowledge, the “only inmate removed from all activities and school programs at S.C.I. Graterford while in [the] general [prison] population.”
In August 2007, Barr filed a complaint pursuant to 42 U.S.C. § 1983 in the Eastern District of Pennsylvania, setting forth the above allegations. He also moved for appointment of counsel. Barr’s complaint claimed that Appellees — forty-two current or former DOC administrators and officers — breached the terms of his settlement agreement and violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. After answering Barr’s complaint, Appellees moved for judgment on the pleadings. While this motion was pending, Barr filed a motion for a temporary restraining order and preliminary injunction, requesting that the Court require Appellees to (1) forego transferring him to another prison and to continue to honor the settlement agreement; (2) reinstate him in Graterford’s program for sex offenders; and (3) allow him access to the law library located on Graterford’s old side.
In January 2008, the District Court denied Barr’s motion for appointment of counsel without prejudice. A few months later, the District Court granted Appellees’ motion for judgment on the pleadings and denied Barr’s motion for injunctive relief as moot. In granting Appellees’ motion, the Court concluded that it lacked jurisdiction to consider Barr’s claims relating to the settlement agreement, and that Barr’s constitutional claims lacked merit. Barr now appeals the District Court’s grant of judgment on the pleadings, as well as the Court’s denial of his motion for appointment of counsel and motion for a temporary restraining order and preliminary injunction.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we may affirm on any basis supported by the record. Fairview Twp. v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985). We exercise plenary review over a district court’s order granting a motion for judgment on the pleadings, Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005), and we will affirm such an order only if “the mov-ant clearly establishes there are no material issues of fact, and he is entitled to judgment as a matter of law.” Id. at 220. “We review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004) (internal quotations omitted). Finally, we review a district court’s decision declining to appoint counsel for abuse of discretion. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.2002).
A. Breach of Settlement Claim
Barr alleges that Appellees violated the confidentiality provision of the settlement agreement from his earlier lawsuit by “inserting that agreement in all his files.”1 *774The District Court declined to exercise supplemental jurisdiction over this state law claim. We review that decision for abuse of discretion. Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.1999).
“[A] district court may exercise supplemental jurisdiction where state-law claims share a ‘common nucleus of operative fact’ with the claims that supported the district court’s original jurisdiction.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir.2003) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)); see 28 U.S.C. § 1367(a). A “mere tangential overlap of facts,” however, is insufficient to confer supplemental jurisdiction. Nanavati v. Burdette Tomlin Mem’l Hosp., 857 F.2d 96, 105 (3d Cir.1988). The District Court concluded that Barr’s claim relating to the settlement agreement was only tangentially related to his constitutional claims. Indeed, the fact underlying Barr’s breach of settlement claim — the placement of the confidential settlement agreement in his prison files— does not undergird any of his other claims. Accordingly, the District Court did not abuse its discretion in declining to exercise supplemental jurisdiction over his breach of settlement claim.
B. Retaliation Claim
Barr next claims that Appellees violated his First Amendment right to freedom of speech.2 The District Court construed this claim as a retaliation claim, and we agree with that treatment. A prisoner asserting a retaliation claim must show that (1) “the conduct which led to the alleged retaliation [is] constitutionally protected”; (2) “he suffered some adverse action at the hands of the prison officials ... sufficient to deter a person of ordinary firmness from exercising his constitutional rights”; and (3) there is a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (internal quotations and citation omitted). Even if the prisoner makes this showing, “prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.” Id. at 334.
The District Court construed Barr’s complaint as alleging that Appellees retaliated against him for, inter alia, filing grievances,3 which it correctly deemed constitutionally protected conduct. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003). Yet the Court ultimately rejected Barr’s retaliation claim, concluding that Appellees’ retaliatory conduct was not “sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” We disagree with this conclusion. After Barr filed a grievance against Major Feild and reported Feild’s proposed “unwritten agreement” to Superintendent DiGuglielmo and Deputy Lorenzo, Barr was placed in a tracking program, where he was prohibited from participating in any prison activities (including religious activities, a point the District Court did not mention), subjected to weekly cell searches, and otherwise targeted by corrections officers. We believe such treatment may be sufficient to deter an individ*775ual of ordinary firmness from exercising his constitutional rights. See Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.2002) (stating that “unless the claimed retaliatory action is truly inconsequential, the plaintiffs claim should go to the jury” (internal quotations omitted)).
We also find that Barr sufficiently pleaded the third prong of the retaliation test, as his allegations suggest a causal link between his use of the grievance process and the adverse action taken against him. The complaint alleged that Major Feild stated that he was “pissed-off’ that Barr filed a grievance against him, and was willing to move Barr to Graterford’s old side if Barr stopped filing grievances. Although the complaint does not provide precise dates, it suggests that Feild placed Barr in the tracking program shortly after Barr filed the grievance against Feild and informed DiGuglielmo and Lorenzo of Feild’s proposed “unwritten agreement.”
In light of the above, we conclude that Barr sufficiently pleaded his retaliation claim. Although Appellees might ultimately show that they would have taken the same actions against Barr absent his use of the grievance process, those facts are not part of the record at this stage. Accordingly, the District Court erred in granting judgment on the pleadings as to Barr’s retaliation claim.
C. Equal Protection Claim
Barr also alleges that Appellees violated the Equal Protection Clause. In rejecting this claim, the District Court concluded that Barr “has not even alleged in his complaint that he has been treated differently from other, similarly situated, persons.” Yet Barr’s complaint indeed alleges that, to his knowledge, he is “the only inmate removed from all activities and school programs at S.C.I. Graterford while in [the] general [prison] population.” This allegation seemingly attempts to raise a “class of one” equal protection claim. To state a claim under this theory, “a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.” Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008). Although Barr alleged that Appellees treated him differently from other inmates in the general prison population, he did not allege that Appellees intended to treat him differently from these other inmates or that Appellees lacked a rational basis for doing so. Accordingly, the District Court did not err in denying this claim.4
D. Barr’s Remaining Claims and Motions
Barr’s complaint also raises claims under the Fourth Amendment, Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment. For the reasons given by the District Court, we will affirm the Court’s denial of these claims.
Barr also challenges the District Court’s denial of his motion for a temporary restraining order and a preliminary injunction. In light of this case’s remand to the District Court, this motion may no longer be moot. Because the District Court did not reach the motion’s merits, we decline to do so in the first instance. On remand, the District Court should consider whether this motion warrants relief.
Finally, Barr challenges the District Court’s denial of his motion seeking appointment of counsel and requests that we appoint him counsel on appeal. Because a *776district court has broad discretion in determining whether to appoint counsel, we “should reverse that exercise of discretion only where the party seeking appointment has shown that the district court’s decision not to appoint counsel was clearly an abuse of discretion.” Tabron v. Grace, 6 F.3d 147, 155 n. 4 (3d Cir.1993). Barr has failed to make this showing, and we deny his request for appointment of counsel here. On remand, however, the District Court may wish to consider whether it should appoint counsel going forward, as it seems that Barr’s retaliation claim might require considerable discovery and might turn on credibility determinations. See id. at 156 (noting that these are factors that may warrant appointment of counsel).
III.
In light of the above, we will vacate the District Court’s order granting Appellees’ motion for judgment on the pleadings to the extent the order dismisses Barr’s retaliation claim, and we will remand that claim for further proceedings. On remand, the District Court should consider the merits of Barr’s motion for a preliminary injunction and may wish to appoint Barr counsel going forward. We will affirm the District Court’s order granting judgment on the pleadings as to Barr’s remaining claims.
. The order of dismissal in that earlier case did not include the terms of the settlement or state that the District Court intended to retain jurisdiction over the settlement after the case's dismissal. As such, to the extent Barr seeks the District Court here to enforce the settlement agreement, the Court lacks jurisdiction to do so. See Sawka v. Healtheast, Inc., 989 F.2d 138, 141 (3d Cir.1993) (holding that a district court does not have the authority to enforce a settlement agreement that “is the basis of, but not incorporated into, an order or judgment of the court''); see also In re Phar-Mor, Inc. Sec. Litig., 172 F.3d 270, 274 (3d Cir.1999) (stating that a " 'dismissal order’s mere reference to the fact of settlement does not incorporate the settlement agreement in the dismissal order' ” (quoting Miener v. Mo. Dep't of Mental Health, 62 F.3d 1126, 1128 (8th Cir.1995))).
. Although Barr’s appellate brief also alleges that Appellees infringed upon his free exercise of religion, he has waived this claim because he raises it for the first time on appeal. See Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir.2002).
. The District Court also considered whether Barr's witnessing of the two guards' "inappropriate sexual misconduct” could serve as the basis for a retaliation claim. We agree with the Court’s reasons for ultimately rejecting this claim.
. Because these deficiencies could be cured by amendment, Judge Ambro would vacate the portion of the District Court's order dismissing Barr’s equal protection claim and direct the District Court on remand to grant Barr leave to amend his complaint.
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OPINION OF THE COURT
PER CURIAM.
Mahamadu Gumaneh, a native and citizen of Sierra Leone, arrived in the United States without inspection. In 2000, Guma-neh filed an affirmative application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). He claimed that he was persecuted on account of imputed ethnicity; Gumaneh belongs to the Son-inke ethnic group but lived in an area that was inhabited primarily by Mandingo.1 Gumaneh alleged that he witnessed his parents and sister being shot and killed when Revolutionary United Front (“RUF”) rebels attacked his village on June 15, 1999. At the time, Gumaneh was captured and taken to the rebel’s camp, where he was held for five days and assaulted (he was dragged along the floor, his front teeth were knocked out, and he was stabbed in the right wrist). Gumaneh was able to escape when the rebels passed out from drinking alcohol and taking drugs. In May 2004, Gumaneh was charged with removability for entering the United States without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)® [8 U.S.C. § 1182(a)(6)(A)®].
The Immigration Judge (“IJ”) concluded that Gumaneh was credible but denied his applications on the basis that he failed to demonstrate that he was persecuted on account of his imputed ethnicity. The IJ viewed the June 15, 1999, “incident as being exactly what the respondent repeatedly described it to be, an effort to get more people to join the rebel group, coupled with a certain amount of wanton, senseless, crazy violence directed at civilians for no particular reason at all except perhaps that the people who were doing these things were drunk.” The IJ also concluded that Gumaneh did not have a well-founded fear of future persecution because the State Department County Report in the record indicated that the civil conflict in Sierra Leone ended in 2002. Finally, the IJ found that Gumaneh had not established that he was likely to be tortured.
The Board of Immigration Appeals (“BIA”) dismissed Gumaneh’s appeal. It agreed that: *778The Board also concluded that Gumaneh had not meet his burden of proving that he has a well-founded fear of harm, that he was entitled to withholding of removal, or that he was qualified for CAT relief. Gu-maneh filed a timely petition for review Where the BIA issues its own decision on the merits, we review its decision and not that of the IJ. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). To be granted asylum as a refugee, an applicant must establish that he is unable to return to his homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42) [8 U.S.C. § 1101(a)(42) ]. Asylum relief may be available for aliens who were persecuted, or fear persecution, based on imputed grounds (e.g., where one is thought to be of a particular ethnicity or hold particular political opinions). See Singh v. Gonzales, 406 F.3d 191, 196 (3d Cir.2005). In addition, an asylum applicant need not demonstrate that the protected ground was the exclusive motivation behind the alleged persecution. Where an alien asserts more than one possible motive for the alleged persecution, one of which is a protected basis and others not, “an applicant need only show that his or her persecution was caused ‘at least in part’ by membership in a protected group.”2 Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009). We review the BIA’s finding of a lack of connection between Gumaneh’s imputed ethnicity and his mistreatment by the rebels for substantial evidence. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 344-45 (3d Cir.2008).
*777[w]hile the rebels may have been influenced to a small degree by ethnicity, it appears that their major motivation was to recruit new members. In other words, youth such as [Gumaneh] were targeted regardless of their ethnicity. The fact that the respondent happened to live in a town where an ethnic group of interest to the rebels resided does not automatically render him a refugee as defined by the Act.... Moreover, the respondent’s mere inclination that the rebels were motivated by ethnicity is insufficient to support a mixed motive finding.
*778In his asylum application, filed in 2000, Gumaneh indicated that he was seeking asylum based on his political opinion. See Administrative Record (“A.R.”), 185. He stated that the “basis for my claim is principally the life threatening and brutal war going on in my country for the past nine years.” Id. at 184. He further noted that the “rebels are killing innocent people every day whether you support them or not....” Id. at 186. In an affidavit prepared four years later, Gumaneh stated, without explanation, that he is seeking “political asylum.” Id. at 130. In that affidavit, in statements made to an Asylum Officer, and in his testimony before the IJ, Gumaneh claimed that the rebels attacked his village with the intent of recruiting young men to join their cause. Id. at 87-88, 132, 178. When asked on direct examination whether the rebels were targeting any particular ethnic group, Gumaneh responded,
[t]he area that we was living, so the head of the government of Sierra Leone, his ethnic is Mandingo, ... so when they attack our village, in their minds, since we are living with the Mandingo in Peyama, so they thought we are Mandingo ethnics too and particularly they go really after Mandingos....
Id. at 88.
Gumaneh’s experiences certainly rise to the level of persecution. See Camara v. Att’y Gen., 580 F.3d 196, 205 (3d Cir.2009) (noting “the near obviousness of the proposition that a person who has directly witnessed a brutal assault on a family member has experienced so devastating a blow as to rise to the level of persecution”). Nevertheless, we are convinced that the *779evidence does not compel the conclusion that such persecution occurred on account of a protected ground.3 The testimony quoted above is the only suggestion in the record that the rebels were motivated by Gumaneh’s imputed ethnicity. Cf. Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d Cir.2003) (stating that the “mention of religion in the fabric of the story is insufficient to establish a persecution claim.”). All the other evidence points to the conclusion that the rebels were indiscriminately attacking the village and seeking to recruit young men, not targeting any particular ethnic group. Indeed, Gumaneh asserted that the rebels “descended upon our peaceful town with the intent of utter destruction,” that they “went house to house” attacking the villagers, and that “[n]ot a word was uttered to us” by the rebels. See A.R. 131. Of course, “generalized lawlessness and violence between diverse populations” will not support relief. Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001). To the extent the rebels sought to recruit Guma-neh, those efforts alone are insufficient to compel a finding of persecution based on a protected ground. See Velasquez-Valencia v. INS, 244 F.3d 48, 50-51 (1st Cir.2001) (holding that alien was not entitled to asylum based on evidence that Guatemalan guerillas sought to recruit him to their side in a civil war because there was no indication that his political beliefs had anything to do with efforts to recruit him).
Because Gumaneh cannot satisfy the asylum standard, he cannot satisfy the more difficult withholding of removal standard. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). Additionally, while a person seeking protection under the CAT need not prove that he was persecuted due to any protected status, any possibility of torture in this case appears to be negated by the improved country conditions in Sierra Leone. See Kaita, 522 F.3d at 300-01.
For the foregoing reasons, we will deny the petition for review.
. In his asylum application, Gumaneh stated that he was persecuted on account of his political opinion, see Administrative Record ("A.R.") 185, but later clarified that his applications for relief were based on imputed ethnicity. See A.R. 10.
. Because Gumaneh applied for asylum before May 11, 2005, he is not subject to a provision in the REAL ID Act of 2005 that requires an alien applying for asylum in a mixed motive case, to show “that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason” for the alleged persecution. See INA § 208(b)(l)(B)(i) [8 U.S.C. § 1158(b)(l)(B)(i) ].
. In addition, the BIA properly affirmed the IJ’s conclusion that Gumaneh did not have a well-founded fear of future persecution because of changes in Sierra Leone. According to the State Department Country Report for 2005, the civil war ended in 2002, the government asserted control over the entire country, and RUF members were indicted by a war crimes tribunal. See Kaita v. Att’y Gen., 522 F.3d 288, 301 (3d Cir.2008) (noting, in the context of a CAT claim, that the 2006 Country Report "suggests that, although there are still some serious problems in many areas of Sierra Leone, the country conditions have greatly improved.”).
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OPINION
AMBRO, Circuit Judge.
In spring 1999 Wild Waves, LLC rented approximately two-thirds of a 1.7 acre amusement “pier” (really a boardwalk) in Wildwood, New Jersey, from Nickels Midway Pier, LLC for $250,000 per year. The pier had a castle and dungeon on it; Wild Waves wanted to add a waterpark. Wild Waves claims it thought Nickels would sell the pier to it as part of Wild Waves’ plan to build the waterpark. It arranged for a construction loan secured by the pier, but needed Nickels’ permission to encumber the portion of the pier the latter retained under its control. Nickels did not sell the pier, but it consented to the mortgage, apparently in exchange for a September 1999 amendment to the lease agreement that required Wild Waves to put $400,000 in escrow in case it defaulted. Disputes developed between Wild Waves and Nickels, they started litigating the lease and *783non-sale in 2001, the castle and dungeon burned down in January 2002, and Nickels filed Chapter 11 bankruptcy in 2003.1
This appeal arises because Wild Waves refused to pay rent and taxes, and put the $400,000 in escrow. The Bankruptcy Court ordered Wild Waves to pay rent of only $87,500 (rather than the stated $250,000) because it could no longer rely on income from the castle and dungeon, but the Court required it to put up the $400,000 deposit. Both parties appealed to the District Court, which in a thorough opinion affirmed in all respects. We follow suit.
The Bankruptcy Court had jurisdiction under 28 U.S.C. § 157(a); the District Court had jurisdiction under 28 U.S.C. § 158(a); we have jurisdiction under 28 U.S.C. § 158(d). We apply the same standard of review to the Bankruptcy Court’s ruling as the District Court, In re Harvard Industries, 568 F.3d 444, 449-50 (3d Cir.2009), reviewing the Bankruptcy Court’s legal conclusions de novo and its factual conclusions for clear error. In re Schick, 418 F.3d 321, 323 (3d Cir.2005). The Bankruptcy Court, the District Court, and the parties in their briefs to us, all applied New Jersey law, and we agree that this is the right law to apply to this New Jersey contract. See In re Merritt Dredging, 839 F.2d 203, 206 (4th Cir.1988) (a bankruptcy court applies choice-of-law rules of the state in which it sits); State Farm v. Simmons’ Estate, 84 N.J. 28, 417 A.2d 488 (1980) (in general, in New Jersey the law of the situs of the contract applies).
Considering extrinsic evidence of the intent of the parties alongside the language of the lease, the Bankruptcy Court decided that they agreed to abate rent if fire destroyed the castle and dungeon. As noted, it reset rent at $87,500 from the previous amount of $250,000. It did so based on an appraised market rate valuation of the leased area available to Wild Waves after the fire. Nickels, which would have received more if the Bankruptcy Court had reduced rent by the proportion of (1) square footage or (2) total annual income lost to the fire, argues that the Bankruptcy Court should have applied these alternative approaches.
New Jersey lets a judge consider extrinsic evidence of the intent of the parties even if contract language is unambiguous. Conway v. 287 Corporate Center, 187 N.J. 259, 901 A.2d 341, 342-43, 347 (2006). Courts determine intent by asking what a reasonable person would think based on the extrinsic evidence and contract language (ie., objective, not subjective, intent governs). See, e.g., Pagnani-Braga-Kimmel Urologic v. Chappell, 407 N.J.Super. 21, 968 A.2d 1242, 1245-46 (N.J.Super.Ct.2008).
Nickels wrote to Wild Waves that it believed the castle and dungeon’s receipts would cover rent. Further, Wild Waves’ principal testified that Nickels gave him documentation of the castle and dungeon’s profits. The contract said that if there were a fire, Wild Waves had to continue to “pay rent, pro rata, for the usable part,” but did not specify in what manner the rent should be proportional. This evidence and language are not enough to show that the parties had a subjective intent to set rent at an appraised value if the castle and dungeon burned, as it does not appear that the parties ever considered how to abate rent if they lost use of the castle and dungeon.
But subjective intent does not matter here. A reasonable person would con-*784elude that the parties agreed to reduce rent to the market rate if they lost the dungeon and castle. To conclude otherwise would require us to say that Wild Waves agreed to bear the entire risk of loss of the income stream from the castle and dungeon. That is not reasonable.2
Nickels argues that the plain language of the contract permitted a reduction only by the proportion of space destroyed by the fire. We decline to read the contract divorced from the extrinsic evidence described above. For even if a contract appears free of ambiguity, in New Jersey extrinsic evidence “is always admissible in aid of [its] interpretation.” Conway, 901 A.2d at 347. But in this case we need more than the words of the contract; while it says the parties will prorate rent, it does not say how the proration works. Thus, the contract is ambiguous on this point.
Nickels further argues that the only other possible interpretation of the lease is that the parties agreed to reduce rent by the proportion of profits destroyed by the fire. For example, if the fire destroyed an annual income stream of $250,000 and Wild Waves was generating $1 million per year from the entire pier, then the parties would reduce rent by 25%. That interpretation is intuitively appealing because it takes into account both the evidence that the parties considered income in setting rent and the pro rata language in the contract. We reject this argument, however, because the record shows that the castle/dungeon was the only income-producing asset in the leased area when the parties negotiated the lease. A reasonable person would conclude that the parties intended rent to revert to market rate if that facility were destroyed.3
The lease required Wild Waves to pay one third of the taxes on the entire pier. The Bankruptcy Court abated this to 19.2%, which was the post-fire proportion of the pier’s total value represented by the part leased by Wild Waves. Nickels argues that there should be no tax abatement because the lost income on the castle and dungeon did not change taxes on the pier. We reject this argument because there is evidence that the parties allocated taxes based on the relative value of the leased premises to the value of the entire pier, not the amount of taxes on the pier. Given this evidence (the lease itself is silent on this matter), a reasonable person would conclude that the parties agreed that any post-fire tax percentage should reflect the change in the value of the leased property caused by the fire. The *785Bankruptcy Court properly gave effect to this agreement.
Turning to Wild Waves’ appeal, the Bankruptcy Court decided that the amendment to the lease required Wild Waves to place $400,000 in escrow. It objects because the amendment says the escrow only lasts until the mortgage matures “in approximately five years,” or fall 2004. But Wild Waves extended the maturity. We agree with the District Court that the best reading of the amendment is that the escrow continues until the mortgage finally matures. The purpose of the escrow was to give security against default by Wild Waves. A reasonable person would conclude that so long as a danger of default exists (ie., the mortgage continues), the escrow continues.
Wild Waves argues that it intended the escrow to last only until the mortgage’s first maturity (ie., approximately five years) because it thought Nickels was going to sell the pier around that time. But that supports the conclusion that the parties intended to tie the escrow to Nickels’ exposure to default. The escrow would have been released upon a sale because the risk to Nickels would be extinguished — it would no longer own the land. (Wild Waves also argues that because Wild Waves has made all its mortgage payments and the value of the property has declined, it no longer presents a credit risk. That may be the case, but the Bankruptcy Court made no such finding. We therefore will not give it effect.)
Wild Waves’ next contention is that the amendment is void because it agreed to amend under economic duress. Specifically, it argues that it entered into millions of dollars of contracts to build the water-park believing that the lease permitted it to mortgage the entire pier. But, according to Wild Waves, Nickels then refused to encumber the roughly one-third of the pier it retained under its control unless Wild Waves signed the amendment. It asserts that it faced major liabilities to its contractors if it did not sign the amendment.
There may be economic duress if a party assents to an improper demand under circumstances in which it has little choice but to do so (ie., the improper demand “deprives the victim of his unfettered will”). See Continental Bank v. Barclay Riding Academy, 93 N.J. 153, 459 A.2d 1163, 1175 (1983). We agree with the District Court that there was no duress. This was obviously correct, as the Bankruptcy Court found that Wild Waves’ principal, who negotiated the amendment, was a lawyer (Nickels’ representatives were not), both parties were seasoned players in the local real estate market, documentary evidence showed that Wild Waves was not actually bound to its construction contracts, and Wild Waves had advance indication from Nickels that it did not intend to encumber its non-leased portion of the pier.
For these reasons, we affirm the grant to Wild Waves of a rent abatement (and the amount of that abatement) as a consequence of the fire that destroyed the castle and dungeon. We also affirm the decision that the $400,000 escrow required by the loan amendment should remain in effect.
. Issues relating to the non-sale have already reached us. See In re Nickels Midway Pier, LLC, 255 Fed.Appx. 633 (3d Cir.2007).
. Nickels is right to suggest that, because Wild Waves never asked the Bankruptcy Court to set rent at the market rate, there is some evidence that Wild Waves did not intend to pay the market rate if it lost the castle and dungeon. But, as we have said, subjective intent does not matter.
. Nickels also argues that the Bankruptcy Court erroneously thought that the area destroyed by the fire was 7,500 square feet (in fact, it was 15,000 because the castle and dungeon had two floors). But the record reveals no such mistake. The appraiser excluded the entire area of the dungeon and castle from its rent calculation. The Bankruptcy Court properly added back into the calculation the part of the pier on which the dungeon and castle once stood because Wild Waves still had use of that area, once the facility’s first floor.
We also reject Nickels’ contention that the Bankruptcy Court should have used 60,000 square feet in calculating rent because the lease agreement stated the leased space as approximately that area. The appraiser reported that the area was in fact closer to 50,000 square feet. It was appropriate for the Bankruptcy Court to correct this imprecision in the lease agreement based on extrinsic evidence.
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OPINION
PER CURIAM.
Dwi Iriani, her husband (Lucas Benjamin), and their two children (Citra and Vidya Paais) petition for review of the Board of Immigration Appeals’ (“BIA”) final order of removal in their consolidated removal proceeding. For the reasons that follow, we will grant the petition in part and deny it in part, and we will remand for further proceedings.
I.
In July 2004, Petitioners — each of whom is a native and citizen of Indonesia — entered the United States on non-immigrant visas. They stayed beyond the time allowed under their respective visas and were ultimately placed in removal proceedings. In January 2005, Iriani — on the family’s behalf — applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), arguing that they suffered persecution and feared future persecution on account of her religion.1
In November 2006, Iriani testified before the Immigration Judge (“IJ”). She testified that she and Benjamin married in 1985. At the time of the marriage, Iriani practiced Islam and Benjamin practiced Christianity. In 1990, however, Iriani converted to Christianity. A few months after her baptism, her employer demanded that she reconvert to Islam within ten days. Iriani refused to do so and resigned. She found other employment a few days later.
In 1992, Iriani and some of her co-workers at her new place of employment formed a Christian prayer group, which held services during their lunch break. In 1996 they began using a nearby church for their prayer services because their group had grown to include about sixty families. In 2001, the group began to focus on evan-gelization, and Iriani ultimately converted thirteen Muslims to Christianity, including two individuals who were considered leaders in the Muslim community.
In 2002, the vice president of the company that employed Iriani requested to meet with her. When Iriani arrived at the meeting, she noticed that two Muslim leaders were present. One of these leaders *788told Iriani that if she did not discontinue her Christian activities, his followers would make her do so. A few days later, Iriani’s prayer group received an anonymous call threatening to bomb the group if it did not discontinue its services. In light of these events, Iriani resigned from her job a few weeks later.
Iriani later began holding prayer services in her house. This prayer group initially consisted of twelve families and ultimately grew to include forty-five families. In December 2003, three Muslim leaders from Iriani’s neighborhood came to her house and threatened to kill her family if she did not stop holding Christian activities in her home. Iriani reported this incident to the police, but the officer who fielded her complaint told her that he did not want to get involved in religious affairs.
In January 2004, Iriani received phone calls from Muslims threatening to destroy her house and kill her family if she continued to hold services in her home. The following month, someone punctured a tire on her car while she was holding a prayer service. A few weeks later, Muslims destroyed a Catholic building near Iriani’s house. Finally, in April 2004, several Muslims gathered outside her house during a prayer service and threw rocks at the house. Four individuals ultimately entered the house and threatened to kill Iriani’s family if the prayer group did not stop the service. About three months later, Petitioners fled to the United States.
The IJ found Iriani’s testimony credible but nonetheless denied her request for asylum and withholding of removal. In doing so, the IJ relied heavily on the U.S. State Department’s 2006 International Religious Freedom Report for Indonesia. The IJ only briefly discussed the specific incidents testified to by Iriani, concluding that “the threats did not rise to the level of persecution.” The IJ also rejected Iriani’s request for relief under the CAT.
On appeal, Petitioners challenged the IJ’s denial of asylum and withholding of removal only. The BIA concluded that there was “no adequate basis to disturb the Immigration Judge’s conclusion that the lead respondent did not demonstrate that she experienced past persecution,” and that “the record supports the Immigration Judge’s finding that she had not established that she had a well-founded fear of persecution if she returned to Indonesia.” Petitioners now seek this Court’s review of the BIA’s decision.2
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA purports to rely on the IJ’s findings, we review the IJ’s decision. See Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir.2007). We review factual findings, including conclusions regarding evidence of persecution, for substantial evidence. Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir.2008). Under this deferential standard of review, we must affirm “unless the evidence not only supports a contrary conclusion, but compels it.” Id. (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
To establish eligibility for asylum, an alien must show that she is unable or unwilling to return to her home country due to a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 *789U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). A showing of past persecution triggers a re-buttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1). If an alien cannot show past persecution, she can still establish a well-founded fear of future persecution by showing that her fear is both subjectively and objectively reasonable. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 345-46 (3d Cir.2008). If an alien fails to demonstrate eligibility for asylum, she cannot obtain withholding of removal, for the standard for withholding is higher than that for asylum. Id. at 348-49.
Whether an alien suffered past persecution and whether she possesses a subjectively and objectively reasonable fear of future persecution are two separate issues. See id. at 341. In this case, however, it appears that the IJ conducted only one persecution analysis, concluding that the harm suffered by Iriani “did not rise to the level of persecution.” Although the IJ did not explicitly state whether this conclusion related to Iriani’s efforts to establish past or future persecution, the IJ’s use of the past tense — “did not rise” — suggests that the IJ was ruling on the former and not the latter.
On appeal, the BIA did not highlight this flaw in the IJ’s analysis. Rather, the BIA’s decision made it seem as if the IJ did conduct two separate analyses, for the BIA held, without more, that (1) there was “no adequate basis to disturb the Immigration Judge’s conclusion that the lead respondent did not demonstrate that she experienced past persecution”; and (2) “the record supports the Immigration Judge’s finding that she had not established that she had a well-founded fear of future persecution if she returned to Indonesia.”
Because the BIA affirmed a conclusion that the IJ seemingly never made and did not provide any of its own reasoning for that conclusion, we are unable to meaningfully review the issue of whether Iriani’s fear is both subjectively and objectively reasonable. Accordingly, we must vacate the BIA’s decision as to this issue and remand so that the BIA can reconsider this issue. See Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.”). We note, without deciding, that Iriani may be able to demonstrate that her fear is both subjectively and objectively reasonable. In the months leading up to Petitioners’ departure from Indonesia, Muslims from their neighborhood made repeated death threats and otherwise attempted to intimidate Iriani into discontinuing her prayer group’s services. Although Iriani sought police protection after receiving the first death threat, the Indonesian police were unwilling to help her. Indeed, the 2006 International Religious Freedom Report states that the Indonesian government “sometimes tolerated extremist groups that used violence and intimidation against religious groups, and it often failed to punish perpetrators of such violence.” In any event, we leave it to the BIA to determine in the first instance whether Petitioners demonstrated both a subjectively and objectively reasonable fear of future persecution.
Although we are unable to review the issue of future persecution, we are able to consider the finding that Petitioners failed to establish past persecution.3 The *790substantial evidence supports the conclusion that the harm suffered by Iriani does not constitute past persecution. Threats constitute past persecution in “only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’” Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir.2005) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000)). The threats in this case — although undoubtedly frightening and reprehensible — were never acted upon and did not cause Petitioners any physical injury. Additionally, the incidents in which Muslims threw rocks at Petitioners’ home and vandalized their car do not rise to the level of persecution.
In light of the above, we will grant the petition in part and remand to the BIA so that it may consider whether Petitioners have established both a subjectively and objectively reasonable fear of future persecution on account of Iriani’s religion. We will deny the remainder of the petition.
. Petitioners’ brief also argues that they were persecuted on account of their ethnicity. Aside from checking the relevant box in their asylum application and submitting two affidavits that discussed the plight of Chinese persons in Indonesia generally, Petitioners did not indicate during the proceeding before the IJ that they were pursuing an ethnicity claim. In their appeal to the BIA, they argued that the IJ ignored these affidavits and failed to consider their ethnicity claim. The BIA noted, however, that Petitioners never sought to mark the affidavits as exhibits or otherwise enter them into evidence. Moreover, the BIA concluded that the affidavits did not undermine the IJ’s finding that Petitioners did not suffer persecution. The substantial evidence supports the BIA's conclusion.
. In their brief, Petitioners state that they seek review of the denial of their requests for asylum, withholding of removal, and relief under the CAT. Because they did not challenge the denial of their CAT claim in their appeal to the BIA, we lack jurisdiction to review that claim. See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir.2005).
. The Government argues that Petitioners' brief made only a passing reference to the issue of past persecution and thus they have waived any challenge to that issue. Although Petitioners' brief, prepared by counsel, is disorganized and far from a model of clarity, we *790believe that it sufficiently addresses the issue of past persecution — albeit barely — to place that issue before us.
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OPINION
PER CURIAM.
Gisell Torres, a native and citizen of Peru, was admitted to the United States in April 1990, along with her parents and sister, on a B-l/B-2 visa. At the time, Torres was three years-old. In 1998, Torres and her family were charged with overstaying them period of admission. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. The family conceded removability, and Torres’ father applied for asylum and withholding of removal. After the Immigration Judge (“IJ”) denied relief, the Board of Immigration Appeals (“BIA”) affirmed without opinion on June 7, 2002, permitting each family member to voluntarily depart within 30 days.
The family did not depart, however. On May 12, 2008, Torres’ parents were taken into custody and were eventually removed from the United States. On June 19, 2008, Torres married a United States citizen, who later filed a petition for alien relative (Form 1-130) on her behalf.1 Shortly thereafter, Torres filed a motion to reopen, seeking to adjust her status based on her marriage. The BIA denied the motion to reopen, finding that it was untimely and that there were no applicable exceptions to the 90-day limit on filing a motion to reopen. See 8 C.F.R §§ 1003.2(c)(2) and (c)(3). The Board also declined to reopen the proceedings suci sponte, see 8 C.F.R. § 1003.2(a), concluding that neither Torres’ age at the time voluntary departure was granted, nor her marriage to a United States citizen, constituted an exceptional situation. Torres filed a timely petition for review.
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252] 2 We review the BIA’s denial of a motion to reopen for abuse of discretion, and will not disturb the decision unless it was arbitrary, irrational or contrary to law. See Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008).
*798Pursuant to 8 C.F.R. § 1003.2(c)(2), an alien “may file only one motion to reopen,” and the motion must be filed “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” See also INA § 240(c)(7)(C)(I) [8 U.S.C. § 1229a(e)(7)(C)(I) ]. Torres argues that the time limitation on filing motions to reopen should be equitably tolled. The Government contends that we lack jurisdiction over this argument because Torres did not raise it in her motion to reopen. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005) (“To exhaust a claim ... an applicant must first raise the issue before the BIA or IJ.”). Importantly, however, when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on administrative appeal may be excused. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir.2008) (“We agree with the logic of the majority of our fellow courts of appeals on this issue and find that we have jurisdiction to address the IJ’s adverse credibility determination because the BIA considered the issue sua sponte.”). Here, the BIA’s stated that Torres has “not demonstrated that an exception to the statutory and regulatory timely filing requirement applies.” This constitutes a sua sponte denial of equitable tolling over which we may exercise jurisdiction. See Mahmood v. Gonzales, 427 F.3d 248, 251 n. 7 (3d Cir.2005).
Torres plausibly claims that she was unaware of the final removal order that the BIA issued in June 2002, when she was 15 years-old. Torres and her family apparently had no further contact with the Government until May 12, 2008, when Department of Homeland Security (“DHS”) officers took her parents into custody. Torres was instructed to report to the DHS office in Newark, New Jersey. Torres appeared there on June 12, 2008, and was given an Order of Supervision, directing her to report back on July 24, 2008, with an airline ticket to Peru.
On June 26, 2008, Torres filed her motion to reopen to apply for adjustment of status based on her recent marriage to a United States citizen. See id. at 252-53 (holding that a petitioner who seeks equitable tolling must exercise due diligence in pursuing the case). Torres is eligible to apply for adjustment of status on the state of the record. She married a U.S. citizen on June 19, 2008, her husband filed an I-130 petition on August 21, 2008, and the petition was approved on April 2, 2009. Under the circumstances presented in this case, and given Torres’ diligent efforts in pursuing adjustment of status, see Mah-mood, 427 F.3d at 252-53, we conclude that the BIA abused its discretion in not equitably tolling the limitations period for filing a motion to reopen.
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of July 28, 2008, and remand the case with instructions to reopen the proceedings.
. The 1-130 petition was filed on August 21, 2008, and it was approved on April 2, 2009.
. In this proceeding, we cannot review the BIA’s original final order of removal because the petition For review was timely only as to order denying reopening. See INA 242(b)(1) [8 U.S.C. § 1252(b)(1)]; McAllister v. Att’y Gen., 444 F.3d 178, 184-85 (3d Cir.2006).
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OPINION
PER CURIAM.
In February 2003, Appellant Stephen Wortman filed suit under § 1983 against government officials and prison staff at Union County Jail in New Jersey. The District Court dismissed the complaint against all but two of the named defendants (Appellees Crose and West), and dismissed all but two of Wortman’s claims against them: “denial of recreation as against Defendant Crose and ... denial of a wheelchair as against West.” (Dist. Ct. Op. at 2.)
In March 2005, the District Court granted West’s motion to dismiss the complaint because Wortman refused to comply with discovery requests or otherwise respond to pleadings. The District Court denied, however, Crose’s similar motion to dismiss the complaint. This left the sole claim of “denial of recreation as against Crose,” for which Wortman sought only injunctive relief.
At some point during the course of litigation, Wortman was transferred from Union County Jail to the New Jersey State Prison in Trenton. Given that Crose was no longer capable of denying Wort-man his recreational needs as a result of the transfer, the District Court dismissed Wortman’s complaint as moot. Wortman appealed from that decision.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s order dismissing the complaint on mootness grounds is plenary. See Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.1987). Having granted Wortman leave to proceed in forma pau-peris, we must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
We conclude that Wortman’s appeal is legally frivolous for the reasons given by the District Court. See also Burns v. PA. Dep’t of Corr., 544 F.3d 279, 283 (3d Cir.2008). Notably, at no point in the hundreds of pages that Wortman has submitted on appeal does he address the District Court’s decision to dismiss his complaint as moot. In fact, it seems that Wortman is instead attempting to argue claims from a different lawsuit. See CA 07-1463 (procedurally terminated pursuant to LAR 3.3 and LAR Mise. 107.1(a)).
Accordingly, because this appeal presents no arguable legal issue, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). Wortman’s motions for “single judge review,” to “hear appeal on *711full record,” and “in opposition to the admittance of Appellee[’s] counsel,” are denied. Wortman’s motion for appointment of counsel is denied moot. The motion “for leave to file an enlarged brief’ is granted.
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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.
Antonio Pearson appeals pro se from the District Court’s order dismissing his complaint. For the following reasons, we will vacate and remand for further proceedings. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Pearson is a Pennsylvania state prisoner. He filed suit pro se under 42 U.S.C. § 1983 against various correctional and medical personnel and entities, alleging that they have been deliberately indifferent to his serious medical needs in rióla*723tion of the Eighth Amendment. (He also asserts violations of the First and Fourteenth Amendments, but we discern no basis for these claims in his complaint.) We take the following allegations in Pearson’s complaint as true for present purposes.
Pearson has been incarcerated at SCI-Somerset since 2005. He has made numerous complaints since then about pain in his abdominal and pelvic areas. On April 10, 2007, he began experiencing “constant sharp pains” in his abdomen. (ComplV 2.) A nurse (“Jane Doe-1 Nurse”) saw him at approximately 1:00 p.m. and, without referring the matter to a physician or physician’s assistant, told Pearson that she believed he had pulled a muscle and placed him on sick-call for the following day. (Id.) Pearson returned to the medical unit at around 5:00 p.m. and complained that the pain had become “excruciating.” (Id. ¶ 3.) Another nurse (“Jane Doe-2 Nurse”) saw him and told him that she believed his gall bladder was failing, that there was nothing else she could do for him, and that he should wait for sick call the following day. (Id.)
By approximately 11:00 p.m. that night, Pearson told his block officer that he was “in severe pain in his entire abdominal area” and asked him to call the medical unit. (Id. ¶ 4.) The block officer did so and told Pearson that another nurse (“John Doe-1 Nurse”) said that “he was not coming to the unit” because two nurses already had seen him and he was on sick-call for the following day. (Id.) After that, “[t]he pain was so excruciating that [Pearson] screamed until 2:30 a.m. on April 11, 2007,” when a correctional officer called the medical unit again and the same nurse finally came to the unit to see him. (Id.) According to Pearson, the nurse was “mad” at him and “forced [him] to crawl to the wheel chair” from his bed. (Id. ¶ 5.) The nurse “stated that if [Pearson] could not make it to the wheel chair, then he will not be taken to the hospital.” (Id.) Pearson made it to the wheel chair, and the nurse took him to the infirmary and “placed him in an infirmary cell all night in excruciating pain.” (Id.) Finally, and apparently the next morning, two physicians authorized Pearson to be taken to an outside hospital. (Id.) A physician at the hospital performed emergency surgery to remove Pearson’s appendix, which had failed because a “tumor/mass” in plaintiffs stomach had attached itself to it. (Id.)
After Pearson returned to prison, he felt a sharp pain and felt liquid running down his leg, which he later identified as blood flowing from his penis. (Id. ¶ 6.) At his request, his block officer called the medical unit, but “they” refused to allow him to come to the unit and told the officer to have Pearson lie on his back. (Id.) Pearson “continued to be in constant pain and blood continued to run down [his] leg,” so the block sergeant called the medical unit again and they authorized a visit. (Id.) A physician’s assistant (“John Doe P.A.”), alarmed by the amount and brightness of the blood (which indicated that it might be arterial), told Pearson that he might be going to an outside hospital and called defendant Robert McGrath, a Medical Director, at home. (Id.) The assistant then told Pearson that Dr. McGrath was “mad” at him for calling at home and told him to “just place [Pearson] in a room overnight.” (Id.) Dr. McGrath saw Pearson the next day and, without seeing the amount of the blood, told him his condition was “normal” and sent him back to his cell. (Id.)
Once back in his cell, however, Pearson “continued to have blood gush out of his penis, had to use a bag to keep it from messing up his clothes and bedding and was in constant pain[.]” (Id.) Pearson complained to a Sergeant Rittenour, who relayed his complaint to Captain Thomas *724Papuga, who “told him to give [Pearson] a direct order to get rid of the blood,” which “was done to hide [Pearson’s] serious medical need.” (Id.) But “[b]lood started to run down [Pearson’s] leg again,” and Pearson returned to the medical unit. Finally, he was taken back to the outside hospital for additional surgery, and later learned that he had suffered a cut on the inside of his penis during the removal of his appendix. (Id. ¶ 7) Pearson seeks, in relevant part, monetary damages and a declaration that defendants violated his constitutional rights.
Pearson submitted his complaint along with an application for leave to proceed in forma pauperis (“IFP”). On April 22, 2009, a Magistrate Judge issued a Report and Recommendation recommending that the District Court dismiss the complaint for failure to state a federal claim. The Report and Recommendation also granted Pearson’s IFP motion, but “only so that the Clerk may file the complaint.” (R & R at 1.) It further conditioned Pearson’s right to file objections on his return of an authorization to collect payments toward the filing fee from his prison account. Pearson returned the authorization and filed objections. In both his objections and the comjDlaint itself, Pearson alleged that he has been unable to obtain a copy of his medical records and requested leave to amend his complaint. By order entered May 21, 2009, the District Court adopted the Report and Recommendation and dismissed Pearson’s complaint. It did not address his requests for leave to amend. Pearson appeals.1
II.
In order to state an Eighth Amendment claim for deliberate indifference to medical needs, a plaintiff must plead “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Corr. Fac., 318 F.3d 575, 582 (3d Cir.2003). The District Court did not determine whether Pearson alleged a serious medical need, but we think it beyond question that he has. See Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir.2003) (medical need is serious “if it has been diagnosed by a physician as requiring treatment”); Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000) (“[A]n appendix on the verge of rupturing easily meets this standard.”). Instead, the District Court dismissed Pearson’s complaint on the sole basis that he did not “allege any facts that support *725an inference of deliberate indifference as that term is defined by the Supreme Court.” (R & R at 4.) We disagree.
Deliberate indifference requires a showing that “the official ‘knows of and disregards an excessive risk to inmate health or safety.’ ” Natale, 318 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The official must be “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and must also “draw the inference.” Id. We have explained that this standard is “clearly met” in a number of scenarios, including “when a doctor is intentionally inflicting pain on [a] prisoner,” and where the denial of “reasonable requests for medical treatment ... exposes the inmate to undue suf'fering[.]” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (citations and internal quotation marks omitted). We also have found this standard satisfied when “a prison official ... knows of a prisoner’s need for medical treatment but intentionally refuses to provide it” or “delays necessary medical treatment based on a non-medical reason.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999).
In this case, the District Court believed that Pearson alleges “at most” that medical personnel were “discourteous and uncaring.” (R & R at 2.) Pearson, however, has alleged facts raising an inference that defendants were deliberately indifferent to his suffering and delayed medical care for non-medical reasons. He alleges, for example, that he complained of constant and excruciating pain to two nurses but that they provided no examination or treatment and merely put him on the sick-call list for the following day. Then, after he continued to suffer excruciating pain, he was denied a third request to go to the medical unit because he already had been seen and was on the next day’s sick call list. Finally, after Pearson screamed in pain for over three hours in his cell, a nurse — who Pearson describes as “mad” at him — finally visited him, but “forced him to crawl” to a wheelchair, told him he would not be taken to a hospital if he could not make it, then had him taken without further treatment to a holding cell where he was left in excruciating pain for the rest of the night. These allegations state a claim for deliberate indifference.
Pearson also alleges that, after he began bleeding from his penis following the removal of his appendix, Dr. McGrath was “mad” at his concerned assistant for having called him at home about Pearson’s condition and told him to “just place [Pearson] in a room overnight.” He further alleges that, after Dr. McGrath told him his condition was “normal” and sent him back to his cell, correctional personnel ordered him to dispose of the blood he continued “gushing” in order to “hide” his condition. These allegations state a claim for deliberate indifference as well.2
Accordingly, we will vacate the District Court’s judgment and remand for further proceedings. We neither express any opinion on the merits of Pearson’s claims nor rule out the possibility that some or all defendants may be able to raise grounds for dismissal under Rule 12(b)(6) or otherwise. Instead, we hold only that the alle*726gations discussed above state the elements of a deliberate indifference claim and that the District Court erred in concluding otherwise. On remand, the District Court should allow Pearson to amend his complaint before dismissing it on the basis of any future Rule 12(b)(6) motion unless amendment would be inequitable or futile. See Phillips, 515 F.3d at 236.
. The District Court dismissed the complaint "without prejudice" to Pearson's right to file suit in state court, but its order clearly contemplates no further proceedings in federal court. Accordingly, we have jurisdiction under 28 U.S.C. § 1291. The District Court did not specify the statute or rule under which it dismissed Pearson's complaint. The District Court concluded that Pearson’s complaint fails to state a federal claim, so it could have dismissed it under 28 U.S.C. § 1915(e)(2)(B)(ii) or Rule 12(b)(6). Our review is plenary in either case, see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000), but we construe the dismissal as one under § 1915(e)(2)(B)(ii). See Oatess v. Sobolevitch, 914 F.2d 428, 431 (3d Cir.1990) (holding that district courts may not dismiss a complaint under Rule 12(b)(6) sua sponte before service of process). The procedure that the District Court employed was somewhat unorthodox and potentially problematic but, under the circumstances, we need do no more than review its ultimate ruling. In doing so, we " 'accept all allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.' ” Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). Although the " ‘factual allegations must be enough to raise a right to relief above the speculative level,' " id. at 234 (citation omitted), complaints filed pro se must be liberally construed, see Erickson v. Pardas, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
. Pearson raises allegations in addition to those discussed herein. He alleges, for example, that the physician who removed his appendix never called him back for a promised check up to determine whether the “tumor/mass” had damaged his liver, and that Dr. McGrath refused to authorize a check-up to determine whether the “tumor/mass” has grown back. Pearson's existing allegations in this regard do not state a claim for deliberate indifference, but we cannot say that amendment of his complaint would prove futile. Thus, as with the other allegations discussed herein, the District Court should not have dismissed them without leave to amend. See Phillips, 515 F.3d at 236.
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OPINION
PER CURIAM.
Emerson Elder, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey denying a post-judgment motion related to his employment discrimination action. We will affirm.
Elder filed an employment discrimination action against New Jersey Transit Corp. claiming that he was not hired as a result of religious discrimination and in retaliation for his previous legal actions against the company. The District Court granted summary judgment for New Jersey Transit in an order entered March 23, 2004, and we affirmed the District Court’s order.
On October 4, 2005, Elder filed a motion for reconsideration, which the District Court treated as filed pursuant to Federal Rule of Civil Procedure 60(b) and Local Civil Rule 7.1, and denied as untimely and without merit. On March 17, 2008, Elder filed a motion for a new hearing, which the District Court treated as filed pursuant to Rules 59(e) and 60(b), and also denied as untimely and without merit. Elder unsuccessfully sought reconsideration of the denial of his March 17, 2008, motion.
On November 12, 2008, Elder filed yet another post-judgment motion challenging the District Court’s March 23, 2004, order. The District Court treated the motion as filed pursuant to Rules 59(e) or 60(b) and found the motion untimely and without merit. This appeal followed.
The District Court did not abuse its discretion in denying Elder’s post-judgment motion. Elder asserted an alleged conflict of interest between his appointed counsel and New Jersey Transit and its counsel. We agree with the District Court that Elder’s motion was untimely under Rule 59(e) because it was filed more than 10 days after the entry of the order granting summary judgment, see Fed.R.Civ.P. 59(e), and untimely under Rule 60(b) because the motion was not filed within a reasonable time. See Fed.R.Civ.P. 60(c). Moreover, Elder’s motion repeated assertions that he had made in his previous post-judgment motions, which the District Court had denied.1
Accordingly, because this appeal does not present a substantial question, we will summarily affirm the District Court’s order.
. To the extent Elder seeks to appeal the denials of his earlier post-judgment motions, he did not timely appeal the District Court's orders and we lack jurisdiction to review them.
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OPINION
PER CURIAM.
Antonio Vazquez appeals from the District Court’s denial of his motion for issuance of a conditional writ of habeas corpus. For the following reasons, we will summarily affirm.
In July 2000, a jury sitting in the Philadelphia Court of Common Pleas found Vazquez guilty of first-degree murder and a judge sentenced him to life in prison. After filing an unsuccessful direct appeal and a post-conviction petition in state court, Vazquez filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court denied the petition. Vazquez appealed and we reversed, directing the District Court to “order that the state authorities free Vazquez from custody unless he is retried in the state courts with the trial to start within a period of time the District Court fixes.” Vazquez v. Wilson, 550 F.3d 270, 284 (3d Cir.2008).
On remand, in an order entered on January 16, 2009, the District Court granted the Commonwealth sixty days to file a petition for writ of certiorari in the United States Supreme Court. If the Commonwealth chose not to seek certiorari, the order allowed the Commonwealth 120 days to re-try Vazquez from the date of its decision not to do so. On February 27, 2009, the Commonwealth chose not to seek a writ of certiorari. On June 12, 2009, the Commonwealth filed a motion to extend the time for state re-trial. In a June 17 order, the District Court granted the Commonwealth an additional 120 days to re-try Vazquez.1 On the same day, Vazquez filed a motion to convert the conditional grant of habeas corpus into an absolute writ requiring his release. The District Court, citing the June 17 order granting the Commonwealth an extension, entered an order denying his motion. Vazquez filed a timely notice of appeal from that order.
We have jurisdiction over Vazquez’s appeal denying his request to make the conditional writ absolute and to release him pursuant to 28 U.S.C. § 1291. See Gibbs v. Frank, 500 F.3d 202, 205 (3d Cir.2007). “We exercise plenary review over whether the District Court correctly interpreted the instructions of our prior opinion.” Id. at 206.
Our decision in Gibbs v. Frank is squarely on point. In that case, also involving a Pennsylvania habeas corpus petitioner challenging the length of time set for re-trial, we held that the original 120-day period the District Court set for retrial was “eminently reasonable.” Id. at 207 (noting that 120 days comports with Pennsylvania’s Rule of Criminal Procedure 600(D)). In addition, we held that a District Court has broad discretion to alter the time period originally set for retrial. Id. at 207-08. That broad discretion includes “the ability to evaluate whether the Commonwealth has provided a legitimate reason for its delay in retrying a defendant subject to a conditional habeas writ.” Id. at 208. In excusing the untimeliness of Gibbs’ re-trial, we noted that the District Court gave careful consideration to comity by looking to a Pennsylvania state court procedural rule which excludes from the 120-day period any continuances granted at the request of the defendant or defendant’s attorney. Id. at 210.
*735Vazquez has not alleged that any of the delays were attributable to the Commonwealth; he argues only that he wishes to be released in order to better prepare for his new trial. The Commonwealth asserted in its motion that it has located its witnesses and is ready to proceed to trial. Indeed, the Court of Common Pleas Docket shows that Vazquez or his counsel is responsible for the delays in commencing the trial.
On March 30, 2009, the Commonwealth and defense attorney Louis Nicholson appeared before the court and the defense requested a continuance. On April 8, 2009, the court ordered a hearing to determine whether Vazquez needed appointed counsel. On May 14, 2009, Vazquez appeared before the trial court with counsel present. At that hearing, the trial court removed defense counsel Norris Gelman and ordered Daniel Rendine to represent Vazquez.2 On May 21, Vazquez officially filed a motion for appointment of counsel. The court listed the case for a hearing on June 9, 2009, to determine Rendine’s status. On June 9, Rendine indicated that he needed additional time for further preparation.3 At the same hearing, the trial court also appointed another attorney, Judy Rubino, as a mitigation specialist to assist Rendine during the penalty phase of the trial.4 The court scheduled the parties to appear again on July 14.
Given that the delay in starting trial is due to the appointment of new defense counsel, we think that the District Court acted "within its broad habeas authority in extending the time period for re-trial for an additional 120 days. Gibbs, 500 F.3d at 210.5
Accordingly, because this appeal presents us with no substantial question, we will summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.
. Thus, the Commonwealth now had 240 days from February 27, 2009, to re-try Vazquez.
. According to the Commonwealth, Vazquez had been in contact with Gelman, who had been negotiating plea agreements with the Commonwealth. The Commonwealth, however, stated that Vazquez refused to cooperate with Gelman in his representation. Vazquez asserted in his motion that while he had preliminary discussions with Gelman, Gelman would not represent him until the two could meet in person.
. Recently, the Supreme Court, interpreting the Sixth Amendment's guarantee of a speedy trial, held that "[a]ssigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.” Vermont v. Brillon, - U.S. -, 129 S.Ct. 1283, 1287, 173 L.Ed.2d 231 (2009).
. The Commonwealth has indicated that it intends to seek the death penalty.
. We recognize that the District Court's order is, in one respect, broader than the order in Gibbs. Here, the District Court granted the Commonwealth an additional 120 days instead of excusing the delay within the original 120 day period. The practical effect of the District Court's order, however, is similar and is not an impermissible alteration of the original period. Gibbs, 500 F.3d at 207. Indeed, in Gibbs, the Court cited approvingly to a Seventh Circuit case in which the state moved for an extension of the re-trial period which the district court granted. Id. at 208 (citing Gilmore v. Bertrand, 301 F.3d 581, 583 (7th Cir.2002) (per curiam)).
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OPINION
PER CURIAM.
Steven Paul Fleming, proceeding pro se, appeals from the District Court’s dismissal of his complaint. For the reasons that follow, we will summarily affirm the judgment of the District Court.
Fleming filed a complaint in the United States District Court for the Eastern District of Pennsylvania on December 8, 2008 in which he alleged that the Veterans’ Administration (“VA”) misdiagnosed him with paranoid schizophrenia. He alleged that, as a result of this diagnosis, his career as an airline pilot was ruined. He sought damages for personal injury and lost wages. On May 28, 2009, the VA moved to dismiss. At no time did Fleming file a response or any document that could be construed as a response in the District Court. Accordingly, on June 24, 2009, the District Court granted the VA’s motion to dismiss as unopposed pursuant to Local Civil Rule 7.1(c).1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We agree that the District Court acted within its authority to dismiss the complaint as unopposed pursuant to the Local Civil Rules. Additionally, we note that the District Court lacked subject matter jurisdiction over Fleming’s appeal. Through this action, Fleming seeks to challenge the VA’s diagnosis. The Veterans Judicial Review Act sets out a limited procedure for judicial review of decisions made by the Department of Veterans’ Affairs. See 38 U.S.C. § 511(a). First, the veteran must seek review within the agency by filing a notice of disagreement with the Board of Veterans Appeals. See 38 U.S.C. *739§ 7105(a). An appeal from the decision of the Board can only be taken to the Court of Appeals for Veterans Claims, which has exclusive jurisdiction over appeals from decisions of the Board of Veterans’ Appeals. See 38 U.S.C. § 7252(a). Thus, to the extent Fleming sought review of his diagnosis by the VA, the District Court could not have exercised subject matter jurisdiction over his claim. See Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir.1995); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994).
Because this appeal presents no “substantial question,” we will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
. Local Civil Rule 7.1(c) provides, in relevant part: "any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. In the absence of timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed.R.Civ.P. 56(c).”
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Christopher Barfield’s appeal of his conviction and sentence presents two issues for our determination: (1) whether the District Court improperly relied on hearsay evidence to calculate Barfield’s Guidelines range; and (2) whether judicial determination of Barfield’s prior felony convictions, which increased the maximum statutory term of imprisonment, was permissible under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).1 Because we conclude that *744the hearsay evidence relied upon by the District Court possessed the requisite degree of reliability and was thus admissible, and that its determination regarding Barfield’s prior convictions was proper, we will affirm the order of the District Court.
Because we write for the benefit of the parties, we confine our discussion to the facts salient to this appeal. On June 26, 2007, Christopher Barfield robbed Fatema Cheeseborough at gunpoint. After Cheeseborough informed a friend, Matthew James, of the incident, the pair confronted Barfield. During the ensuing exchange, Barfield shot James in the stomach. Cheeseborough promptly reported the shooting to police, providing a complete description of the assailant. Cheeseborough and a second eyewitness, Sharita Wright, subsequently identified Barfield as the shooter in a photo array, and Barfield was arrested shortly thereafter. At the time of Barfield’s arrest, officers recovered a gun on defendant’s person, and a ballistics analysis linked the weapon to shells recovered from the scene of the shooting. A jury convicted Barfield of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). At sentencing, the District Court, relying chiefly on Detective Christopher Casee’s testimony regarding statements made by Cheesebor-ough and Wright to police, determined that Barfield used or possessed a firearm or ammunition “in connection with a crime of violence”2 — specifically, the robbery and shooting of June 26, 2007 — and, accordingly, increased Barfield’s offense level from 33 to 34. See U.S.S.G. § 4B1.4(b)(3)(A). Barfield was sentenced to 300 months’ imprisonment, a term within the applicable Guidelines range of 262 to 327 months.
Barfield’s central contention on appeal is that the District Court’s Guidelines calculation rested on unreliable hearsay evidence, and that augmentation of his offense level under § 4B1.4(b)(3)(A) was thus improper. Factual findings relevant to a Guidelines calculation need only be proven by the government by a preponderance of the evidence. United States v. Grier, 475 F.3d 556, 568 (3d Cir.2007) (en banc) (applying preponderance of the evidence standard to “all facts relevant to the Guidelines”). We review factual findings underlying a Guidelines calculation for clear error, United States v. Jimenez, 513 F.3d 62, 85 (3d Cir.2008); see 18 U.S.C. § 3742(e), but exercise plenary review of questions of law, including the proper construction of the Guidelines, United States v. Helbling, 209 F.3d 226, 243 (3d Cir.2000), and the admissibility of hearsay evidence, United States v. Brothers, 75 F.3d 845, 848 (3d Cir.1996).
Hearsay evidence is admissible in sentencing proceedings, provided it has “sufficient indicia of reliability to support its probable accuracy.” Brothers, 75 F.3d at 848 (quoting United States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.1989)) (noting that use of hearsay in making findings for purposes of Guidelines sentencing violates neither the Sentencing Reform Act of 1984 nor the Due Process Clause, but that to avoid “misinformation of constitutional magnitude,” such testimony must have sufficient indicia of reliability); United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982); see also U.S.S.G. § 6A1.3(a). Fac*745tors bearing on the reliability of hearsay testimony include the declarant’s memory, perception, and credibility, and the presence of corroborating (or conflicting) evidence. See United States v. Miele, 989 F.2d 659, 662, 664-67 (3d Cir.1993); see United States v. Simmons, 964 F.2d 763, 776 (8th Cir.1992); United States v. Duarte, 950 F.2d 1255, 1265-66 (7th Cir.1991); United States v. Cammisano, 917 F.2d 1057, 1062 (8th Cir.1990).
Barfield contends that Cheeseborough and Wright’s statements to police, offered through Detective Casee at the sentencing hearing, lacked the requisite reliability and were thus inadmissible. Casee testified that Cheeseborough promptly filed a police report after the robbery, provided a physical description of the assailant, and identified Barfield during a subsequent photo array. Casee testified, further, that Wright also identified Barfield as the assailant in a photo array shortly after the shooting, and that Cheeseborough and Wright were steadfast in them belief that Barfield had committed the robbery and shooting.
Cheeseborough’s statements to police exhibit sufficient indicia of reliability for admission under U.S.S.G. § 6A1.3(a) and our precedents. Cheeseborough’s clear perception and memory of the incident support the reliability of her identification. Cheeseborough’s close physical proximity to Barfield, who wore no disguise, enabled her clearly to apprehend his physical features. Cheeseborough’s memory was not impaired by the passage of time; rather, Cheeseborough promptly memorialized her observations, filing a detailed police report immediately after the incident and, a few days later, identifying Barfield in a photo array. See United States v. Leekins, 493 F.3d 143, 151 (3d Cir.2007) (concluding that the “detail and internal consistency” of police report, together with the “other corroborating material,” provide sufficient indicia of the reliability); cf. Simmons, 964 F.2d at 776 (deeming unreliable testimony of addict informant with memory impairment).
Cheeseborough’s identification of Bar-field is also corroborated by other evidence. See United States v. Berry, 258 F.3d 971, 976 (9th Cir.2001) (“One factor evidencing the reliability of hearsay statements ... is external consistency.”); see also United States v. Petty, 982 F.2d 1365 (9th Cir.1993). A second eyewitness, Sharita Wright, identified Barfiéld as the assailant in a photo array. See Scianino, 884 F.2d at 97 (finding sufficient indicia of reliability where hearsay evidence was corroborated by statements of other witnesses). Jones’s confrontation with Bar-field, the ensuing shooting, and a ballistics analysis linking the weapon to shells recovered from the crime scene all support Cheeseborough’s identification of Barfield as the perpetrator of the robbery and shooting. Significantly, no contrary evidence was adduced by defendant.
The record also provides no basis to question Cheeseborough’s credibility. See Miele, 989 F.2d at 667 (emphasizing importance of declarant’s credibility to reliability analysis). Cheeseborough’s identification of Barfield was consistent and unwavering. See also Duarte, 950 F.2d at 1265-66 (vacating and remanding drug quantity-based sentence because court relied on one of two contradictory estimates from same witness without addressing the contradiction). Cheeseborough’s subsequent conduct— her communication of the robbery to Jones and immediate report of the shooting to police, which prompted a criminal investigation and the procurement of a warrant for Barfield’s arrest — confirm the veracity of her statements. See United States v. Knife, 9 F.3d 705, 706 (8th Cir.1993) (deeming *746reliable victim statements corroborated by victim’s conduct and documentary evidence). Barfield does not identify — and our independent review of the record does not disclose — a motive for Cheese-borough to fabricate the crimes reported. See also Gray v. Klauser, 282 F.3d 633, 650 (9th Cir.2002) (finding hearsay evidence admissible under Fed.R.Evid. 803(24) where declarant lacked a motive to fabricate).
On this record, we conclude that Cheeseborough’s statements to police were reliable, that their admission at sentencing was proper, and that adequate evidence thus supported the District Court’s determination that Barfield possessed a firearm or ammunition “in connection with a crime of violence,” triggering a one-point increase in defendant’s offense level. See § 4B1.4(b)(3)(A).
Barfield also contends that his sentence of 25 years exceeded the statutory maximum term and was thus unconstitutional. Barfield’s conviction under section 922(g)(1) carried a statutory maximum prison term of ten years. At sentencing, however, the District Court determined that Barfield’s prior felony drug convictions triggered a sentence enhancement under section 924(e), which carries a statutory maximum term of life imprisonment, thus enabling it to impose the higher sentence. Barfield’s chief contention is that Apprendi v. New Jersey requires jury determination of his prior convictions. 530 U.S. at 489-90, 120 S.Ct. 2348. Apprendi held that facts increasing a defendant’s statutory maximum term must be pled and proved to a jury beyond a reasonable doubt. However, Apprendi underscored the principle, set forth in Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that prior convictions triggering a sentence enhancement need only be found by the sentencing judge by a preponderance of the evidence. Apprendi, 530 U.S. at 489, 120 S.Ct. 2348. Accordingly, judicial determination of Barfield’s prior felony convictions was permissible, and his sentence of 25 years’ imprisonment did not violate Apprendi.
For the foregoing reasons, the Judgment and Conviction Order of the District Court will be AFFIRMED.
. The District Court exercised jurisdiction under 18 U.S.C. § 3231, and our jurisdiction is *744proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. "Crime of violence” is defined in pertinent part as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another... .” U.S.S.G. § 4B1.2.(a)(1).
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OPINION OF THE COURT
FISHER, Circuit Judge.
Jean Wargo, as Administratrix of the estate of her grandson, Tristan Wargo (“Estate”), appeals from the District Court’s order granting summary judgment to Appellees Schuylkill County, Schuylkill County Prison Warden Gene Berdanier, Schuylkill County District Attorney Frank Cori, President Judge William Baldwin, and prison employees Michael Kryjakp, Lt. M. Flannery, and Lt. Scott Rizzardi. See Wargo v. Schuylkill County, et. al., No. 3:06cv2156, 2008 WL 4922471 (M.D.Pa. November 14, 2008). On appeal, the Estate argues that there were disputed genuine issues of material fact that made summary judgment inappropriate and that the District Court applied an incorrect legal standard to the Estate’s claim that the prison had deficient suicide related practices or procedures which led to Wargo’s death. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Tristan Wargo was prescribed the pain medication Oxycontin after suffering a back injury in 2003 and subsequently became addicted to the medication. On October 28, 2004, after being taken off the medication by his physicians, Wargo took a shotgun to the pharmacy that had previously filled his prescriptions and stole $6,800 worth of Oxycontin. That same day Wargo was arrested and taken to the Schuylkill County Prison. The Prison’s receiving screening officer noted that War-go exhibited visible signs of Alcohol/Drug withdrawal symptoms. Wargo was then seen by the Prison’s physician. Wargo told the physician of his addiction to Oxycontin and also informed the physician of his allergy to the anti-depressant drug Wellbutrin.
Wargo was placed in a holding cell and officers were instracted to check him on an hourly basis because of his withdrawal symptoms. On October 30, 2004, Wargo informed corrections officers that he ingested ten to twelve Oxycontin pills which *758he had brought into the prison. This report could not be verified because after a conversation with Lt. Flannery, Wargo did not exhibit any behavior consistent with drug use. Nonetheless, Lt. Flannery ordered that Wargo be placed on close observation, be given a suicide proof paper gown to wear in place of his standard prison jumpsuit, and that all items which Wargo could use to harm himself be taken from his cell. Additionally, Wargo was prohibited access to any sharp utensils with his meals. The next day Wargo reported to a corrections officer that he had a problem with his eye. Lt. Flannery attended to Wargo and found a staple hanging above Wargo’s eye.1 Flannery removed the staple and Wargo received no further medical treatment with regard to this incident. Further, Wargo cut open a mattress, prompting prison officials to remove the mattress from his cell.
On November 1, 2004, Michael Kryjak, a prison counselor, determined that Wargo should be kept on close observation. While Kryjak was not a psychologist, he made this decision in his capacity as a prison counselor in accordance with prison procedures and in an abundance of caution. Over the next few days, Wargo’s privileges were gradually restored — he was given back his regular prison uniform, his mattress, and his regular meals. During this time, Wargo spoke on several occasions by telephone with his grandmother and met in person with his father and a family friend. Finally, on November 5, 2004, Kryjak determined that Wargo could be removed from enhanced correctional watch. Due to overcrowding at the prison, Wargo was moved to the E-block. This section of the prison was most often used for inmates on solitary confinement. War-go agreed to the assignment. We note that the last suicide at Schuylkill County Prison occurred nine years earlier on the E-block.
The day after Wargo was moved to E-block he was found dead, hanging by his bed sheet from an air vent located on the ceiling of his cell. In a note left in the cell, Wargo indicated that he had wanted to commit suicide since he arrived in prison and that he finally had the materials he needed to do so.
Wargo’s grandmother, as administratrix of his estate, filed this suit alleging a violation of Wargo’s civil rights pursuant to 42 U.S.C. § 1983 and the Fourth, Eighth and Fourteenth Amendments of the United States Constitution for deliberate indifference to Wargo’s medical needs and for maintaining deficient suicide prevention practices or policies which led to Wargo’s death. The Estate also brought state law claims under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act. The District Court granted summary judgment to the defendants on Wargo’s claims under § 1983 and then dismissed the State law claims for lack of jurisdiction.
II.
The District Court had subject matter jurisdiction over Wargo’s § 1983 claims *759pursuant to 28 U.S.C. § 1331 and exercised supplemental jurisdiction under 28 U.S.C. § 1367 over the related state law claims. We have appellate jurisdiction under 28 U.S.C. § 1291. When reviewing a District Court’s order granting a motion for summary judgment we exercise plenary review, applying the same standard utilized by the District Court to determine whether the moving party has demonstrated that there is no genuine issue of material fact. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1020 (3d Cir.1991) (“Col-burn II ”).
III.
A.
On appeal the Estate argues that the District Court erred in granting the Appel-lees’ motion for summary judgment because there remained disputed issues of material fact and because the District Court applied an incorrect legal standard to the Estate’s deficient policies or practices claim.
B.
This Court established the standard for liability in prison suicide cases in Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir.1988) (“Colburn I ”). In that case we held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” Id. at 669. The plaintiff therefore has the burden to establish three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn II, 946 F.2d at 1023.
We have stated that “a prison custodian is not a guarantor of a prisoner’s safety,” and therefore the fact that a suicide took place is not enough on its own to establish that prison officials were recklessly indifferent in failing to take reasonable precautions to protect prisoners entrusted to their care. Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir.1988).
In order to show a detainee had a particular vulnerability to suicide, the plaintiff must show that there was “a strong likelihood, rather than a mere possibility, that self-inflicted harm [would] occur.” Woloszyn v. County of Lawrence, 396 F.3d 314, 320 (3d Cir.2005) (citations omitted). It is not enough to show that the detainee fits within a category of persons who may be more likely to commit suicide. Instead, in this case, the Estate has the burden of demonstrating that Wargo himself had a particular vulnerability to suicide.
The Estate offers expert testimony to show that Wargo had a number of risk factors for suicide, including his age, the severity of the crime he committed, and his withdrawal symptoms. This evidence does not demonstrate Wargo’s particularized vulnerability to suicide. Many prison inmates are young men, many are in prison for serious offenses, and many suffer symptoms related to past drug abuse. Certainly it cannot be said that all of these individual inmates have a particularized vulnerability to committing suicide. It is the individual factors, not group characteristics, which are important in considering whether the person had a particular vulnerability to suicide.
In addition to evidence that Wargo fell into categories of persons more likely to commit suicide, the Estate offers evidence that Wargo’s behavior in the week leading up to his suicide should have alerted prison officials to his vulnerability to committing suicide. Fh’st, Wargo claimed to have taken ten to twelve Oxycontin pills that he smuggled into the prison. As a result of *760this action, prison officials placed Wargo on watch, but they did not interpret this action as an attempt to commit suicide, considering Wargo’s addiction to the drug. In fact, given Wargo’s lack of a reaction to the drug, prison officials could not confirm that consumption in fact took place. Prison officials also did not consider the fact that Wargo cut open his mattress or the fact that a staple was pulled from his eye to be signs that Wargo was an enhanced risk of suicide.
Even drawing all reasonable inferences from the events surrounding Wargo’s time in prison in the plaintiff’s favor we cannot find that a prisoner consuming drugs he smuggled into a prison, cutting open a mattress, or putting a staple into or near his eye demonstrates his particular vulnerability to suicide. Wargo’s drug consumption would be typical of a drug addict who was able to obtain drugs in prison. Prison officials say that cutting open mattresses is a common way for inmates to stay warm and that putting a staple near one’s eye is a typical way for inmates to keep open a piercing. As the District Coux-t noted, placing a staple in or near one’s eye would be an odd way to attempt suicide. Given that these events are occur from time to time at the prison, it cannot be said that they establish a strong likelihood that the inmate will commit suicide.
Finally, those closest to Wargo did not recognize any change in his behavior that made him appear more likely to commit suicide. While incarcerated, Wargo had multiple telephone conversations with his grandmother and was visited by Joe Kraw-czyk, who was close enough with Wargo to consider himself Wax-go’s uncle. Neither repox-ted to prison officials any concern that Wax-go may tx-y to hax-nx himself. The fact that family members and close fi-iends wex-e unable to recognize that Wargo was at risk of harming himself weighs heavily against a finding that Wax-go was pax*ticu-larly vulnex-able to committing suicide.
We therefore find that the Distx-iet Coux-t did not err in granting summax*y judgment on the Estate’s deliberate indifference claim.
C.
The Estate next claims that the District Coux-t incox-x-ectly interpx-eted the Estate’s claim that the px-ison maintained deficient suicide prevention policies or practices which led to Wax-go’s death as one for failux-e to train employees. According to the Estate, this led the Distx-ict Court to apply an incorrect legal standard to the deficient policies and practices claim.
A local government entity may be held liable under § 1983 only when the plaintiff demonstx-ates that the government entity itself caused the plaintiff’s injuxy thx-ough the implementation of a policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We have said that a policy is an official proclamation or edict of a municipality while a custom is a practice that is so permanent and well settled as to virtually constitute law. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citations omitted). The plaintiff must also show that “there is a dix*eet causal link between [the] municipal policy or custom and the alleged constitutional deprivation.” Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir.2001) (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). It must be the policymaker’s actions that “directly caused constitutional harm.” Gottlieb ex. rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 175 (3d Cir.2001).
The Estate alleges that five deficient policies or practices led to Wax-go’s death: (1) not requix-ing intake staff to ask questions necessary to do a risk assessment; *761(2) permitting an unqualified individual to be solely responsible for assessing and determining inmates mental health needs; (3) permitting an unqualified individual to remove inmates from watch precautions without consulting a psychiatrist; (4) permitting individuals who have just been taken off suicide or enhanced watch to be housed on E-Block with the means and opportunity to commit suicide; and (5) the written suicide policies were incomplete and inadequately written to protect the safety of potentially suicidal inmates.
The District Court’s opinion includes a discussion of the prison’s admissions procedures, medical and health screening policy, and a memorandum establishing prison policy for dealing with suicide threats. See Wargo, 2008 WL 4922471, at NO-12. We need not repeat that lengthy factual discussion.
As the District Court recognized, the Estate’s first two claims that the prison’s policies are deficient center around the idea that the prison should have collected more information from inmates and put that information in the hands of a more highly trained individual, and that the failure to do so led to Wargo’s death. This theory runs counter to our holding in Col-bum I that the detainee must have a “particular vulnerability” to suicide. 838 F.2d at 669. More information of the type the Estate says should have been collected from Wargo may have placed him in a category of persons more likely to commit suicide, but that is not enough to establish an individual risk. The Estate’s first two problems with the prison’s policy, therefore, do not establish that Wargo’s death came as the result of a policy or practice of the prison.
It was not the policy or practice of the prison to allow an inmate placed on suicide watch to be taken off by anyone other than a psychiatrist. The prison’s written policy required that any inmate placed on suicide watch be taken off only by a psychiatrist. In the instant case, Wargo was placed merely on observation status. There is no evidence that Wargo was ever placed on suicide watch, thus there is no evidence that he was improperly taken off suicide watch status by Kryjak. Further, the Estate offered no evidence to show that it was an established practice on the part of the prison to have a non-expert remove an inmate from close observation.
Even if Kryjak did violate prison policies by taking Wargo off of enhanced watch without consulting a psychiatrist, Wargo’s death occurred because of a violation of prison policy not because of a deficient policy or practice. Therefore, the Estate’s third item does not establish that Wargo’s death came as a result of a deficient policy or practice. Further, in addressing the Estate’s fourth argument, nothing in evidence suggests the Prison had a policy or practice of .placing individuals taken off enhanced watch or suicide watch in the E-Block.
Finally, the Estate argues that the written suicide policy itself constitutes deliberate indifference to inmate safety. The prison had a suicide policy in place in October and November 2004 requiring that inmates be screened on intake for suicidal tendencies or a history of past suicide attempts. If such a history is found then a suicide prevention and intervention program is triggered. Prison guards were given training under this policy to recognize risk factors for suicide or other serious mental health issues. Additional training was provided for front line officers, including Lieutenants Rizzardi and Flannery. No suicides took place at the prison for nine years prior to Wargo’s death.
While the Estate and its experts may raise items that could improve the prison’s suicide policies, we have held that deliber*762ate indifference is not established simply because a better policy could have been enacted. See Colburn II, 946 F.2d at 1029-30.
We therefore hold that the Estate has not put forth any evidence of a causal link between Wargo’s death and a policy or practice of the prison.
IV.
For the aforementioned reasons, we will affirm the District Court’s order granting summary judgment to the appellees.
. There is a factual dispute as to whether the staple was actually in Wargo’s eye or whether it was above the eye. The incident report states that the staple was in Wargo's eye, but Lt. Flannery's deposition testimony states that it was actually above the eye. The resolution of this dispute is not necessary to our analysis. The Estate argues on appeal that a jury should resolve this factual dispute and that summary judgment was therefore inappropriate. Summary judgment does not require that there be no disputed facts. Instead, to grant summary judgment there must be no genuine issue of material fact, the resolution of which could allow a reasonable jury to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
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OPINION
WEIS, Circuit Judge.
Plaintiff was injured in a sudden, unexpected, and unprovoked attack by Robert Johnson, a fellow inmate at the Delaware Correction Center on July 10, 2004. About one hour earlier, Johnson had directed an emotional outburst at a correctional officer and was taken to the prison infirmary. After examining him, the nurse referred Johnson to the mental health staff for an appointment two days later and released him.
Johnson then went to the recreation yard and assaulted plaintiff, fracturing his facial bones and injuring his eye, nose and teeth. Plaintiff was treated at the emergency room of a nearby hospital and then returned to the prison infirmary that same day. He received dental care and treatment for his other injuries during his incarceration and was released from prison on January 3, 2007.
While still an inmate, plaintiff filed suit under 42 U.S.C. § 1983, naming various correctional officers, medical personnel and the State of Delaware Department of *768Corrections as defendants. Among other things, plaintiff alleged violations of the First Amendment for retaliation and of the Eighth Amendment for inadequate medical care, failure to protect, and wrongful policies and procedures.
In March 2006, the District Court dismissed several of the plaintiffs claims, including all those against the Department of Corrections and the individual defendants in their official capacities. Only the Eighth and First Amendment claims remained. The March 2006 order was not appealed. After discovery, the District Court granted summary judgment in favor of the remaining defendants, concluding that plaintiff had failed to establish the claimed violations of the First and Eighth Amendments. There is no need to reiterate the court’s comprehensive review.
Plaintiff has appealed the order granting summary judgment and presents multiple arguments for reversal. We will affirm.
Initially, plaintiff contends that genuine issues of material fact existed regarding whether defendants Salas and Harvey, both lieutenants at the DDC, were deliberately indifferent to the dangers posed by inmate Johnson and, thus, responsible for his attack. Our review of the record convinces us that the District Court properly found that plaintiff had failed to raise a reasonable inference that Lt. Salas knew of an excessive risk to the plaintiffs safety, and that Lt. Harvey acted reasonably in sending Johnson to the infirmary for observation after his earlier outburst. We further agree that plaintiff failed to raise a genuine issue of fact as to the unreasonableness of Lt. Harvey’s actions following Johnson’s discharge. As the District Court found, Johnson did not appear dangerous or aggressive upon his release from the infirmary, and he had no history of violence against other inmates generally, or plaintiff in particular, such that Lt. Harvey could or should have predicted the attack. Therefore, the Court correctly concluded that neither defendant could be found liable for deliberate indifference under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 837, 844-45, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison official not liable under Eighth Amendment unless official knew of and disregarded an excessive risk to inmate safety; “prison official ] who act[ed] reasonably cannot be found liable under the Cruel and Unusual Punishments Clause”).
We also reject the plaintiffs second argument that the District Court erred when it granted summary judgment to Lts. Salas and Harvey, as well as “supervisory defendants” Taylor, Howard and Carroll, on the plaintiffs claim of deliberate indifference because of under-staffing and inadequate prison policies and procedures. The Court correctly found that there could be no liability because plaintiff did not challenge any specific policies. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989) (“judgment [cannot] properly be entered against [a defendant] ... based on supervisory liability absent[, among other things,] an identification by [the plaintiff] of a specific supervisory practice or procedure that [the defendant] failed to employ”). Plaintiff also failed to show actual knowledge on the defendants’ part. See Farmer, 511 U.S. at 842-43, 114 S.Ct. 1970.
Plaintiff further contends on appeal that summary judgment was inappropriate because there were genuine issues of material fact concerning the supervisory defendants’ responsibility for his allegedly inadequate medical care. However, plaintiff failed to establish that these defendants had denied any reasonable requests for treatment or had any personal involvement in his medical care. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (ex*769plaining that a plaintiff can satisfy the standard for deliberate indifference by demonstrating, among other things, that “prison authorities den[ied] reasonable requests for medical treatment” (quoting Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987))). The District Court also correctly pointed out that respondeat superior liability does not exist in the § 1983 context. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (in a successful civil rights suit, a defendant “must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior ”).
Finally, plaintiff asserts that after he complained directly to the governor and news media and filed the instant § 1983 action, the supervisory defendants placed him in the infirmary for a period and later, after an altercation with another inmate, in isolation. Despite the plaintiffs argument to the contrary, we believe that the District Court properly rejected this retaliation claim at summary judgment because plaintiff failed to provide evidence that any of the supervisory defendants were involved in either transfer decision. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (prisoner-plaintiff must prove causal link between protected activity and decision to discipline him).
We have, therefore, carefully reviewed the plaintiffs arguments, the record, and the District Court’s disposition of this case and find no reversible error. Accordingly, the order of the District Court granting summary judgment will be affirmed.
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OPINION OF THE COURT
PER CURIAM.
Mahamadu Gumaneh, a native and citizen of Sierra Leone, arrived in the United States without inspection. In 2000, Guma-neh filed an affirmative application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). He claimed that he was persecuted on account of imputed ethnicity; Gumaneh belongs to the Son-inke ethnic group but lived in an area that was inhabited primarily by Mandingo.1 Gumaneh alleged that he witnessed his parents and sister being shot and killed when Revolutionary United Front (“RUF”) rebels attacked his village on June 15, 1999. At the time, Gumaneh was captured and taken to the rebel’s camp, where he was held for five days and assaulted (he was dragged along the floor, his front teeth were knocked out, and he was stabbed in the right wrist). Gumaneh was able to escape when the rebels passed out from drinking alcohol and taking drugs. In May 2004, Gumaneh was charged with removability for entering the United States without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)® [8 U.S.C. § 1182(a)(6)(A)®].
The Immigration Judge (“IJ”) concluded that Gumaneh was credible but denied his applications on the basis that he failed to demonstrate that he was persecuted on account of his imputed ethnicity. The IJ viewed the June 15, 1999, “incident as being exactly what the respondent repeatedly described it to be, an effort to get more people to join the rebel group, coupled with a certain amount of wanton, senseless, crazy violence directed at civilians for no particular reason at all except perhaps that the people who were doing these things were drunk.” The IJ also concluded that Gumaneh did not have a well-founded fear of future persecution because the State Department County Report in the record indicated that the civil conflict in Sierra Leone ended in 2002. Finally, the IJ found that Gumaneh had not established that he was likely to be tortured.
The Board of Immigration Appeals (“BIA”) dismissed Gumaneh’s appeal. It agreed that: *778The Board also concluded that Gumaneh had not meet his burden of proving that he has a well-founded fear of harm, that he was entitled to withholding of removal, or that he was qualified for CAT relief. Gu-maneh filed a timely petition for review Where the BIA issues its own decision on the merits, we review its decision and not that of the IJ. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). To be granted asylum as a refugee, an applicant must establish that he is unable to return to his homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42) [8 U.S.C. § 1101(a)(42) ]. Asylum relief may be available for aliens who were persecuted, or fear persecution, based on imputed grounds (e.g., where one is thought to be of a particular ethnicity or hold particular political opinions). See Singh v. Gonzales, 406 F.3d 191, 196 (3d Cir.2005). In addition, an asylum applicant need not demonstrate that the protected ground was the exclusive motivation behind the alleged persecution. Where an alien asserts more than one possible motive for the alleged persecution, one of which is a protected basis and others not, “an applicant need only show that his or her persecution was caused ‘at least in part’ by membership in a protected group.”2 Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009). We review the BIA’s finding of a lack of connection between Gumaneh’s imputed ethnicity and his mistreatment by the rebels for substantial evidence. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 344-45 (3d Cir.2008).
*777[w]hile the rebels may have been influenced to a small degree by ethnicity, it appears that their major motivation was to recruit new members. In other words, youth such as [Gumaneh] were targeted regardless of their ethnicity. The fact that the respondent happened to live in a town where an ethnic group of interest to the rebels resided does not automatically render him a refugee as defined by the Act.... Moreover, the respondent’s mere inclination that the rebels were motivated by ethnicity is insufficient to support a mixed motive finding.
*778In his asylum application, filed in 2000, Gumaneh indicated that he was seeking asylum based on his political opinion. See Administrative Record (“A.R.”), 185. He stated that the “basis for my claim is principally the life threatening and brutal war going on in my country for the past nine years.” Id. at 184. He further noted that the “rebels are killing innocent people every day whether you support them or not....” Id. at 186. In an affidavit prepared four years later, Gumaneh stated, without explanation, that he is seeking “political asylum.” Id. at 130. In that affidavit, in statements made to an Asylum Officer, and in his testimony before the IJ, Gumaneh claimed that the rebels attacked his village with the intent of recruiting young men to join their cause. Id. at 87-88, 132, 178. When asked on direct examination whether the rebels were targeting any particular ethnic group, Gumaneh responded,
[t]he area that we was living, so the head of the government of Sierra Leone, his ethnic is Mandingo, ... so when they attack our village, in their minds, since we are living with the Mandingo in Peyama, so they thought we are Mandingo ethnics too and particularly they go really after Mandingos....
Id. at 88.
Gumaneh’s experiences certainly rise to the level of persecution. See Camara v. Att’y Gen., 580 F.3d 196, 205 (3d Cir.2009) (noting “the near obviousness of the proposition that a person who has directly witnessed a brutal assault on a family member has experienced so devastating a blow as to rise to the level of persecution”). Nevertheless, we are convinced that the *779evidence does not compel the conclusion that such persecution occurred on account of a protected ground.3 The testimony quoted above is the only suggestion in the record that the rebels were motivated by Gumaneh’s imputed ethnicity. Cf. Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d Cir.2003) (stating that the “mention of religion in the fabric of the story is insufficient to establish a persecution claim.”). All the other evidence points to the conclusion that the rebels were indiscriminately attacking the village and seeking to recruit young men, not targeting any particular ethnic group. Indeed, Gumaneh asserted that the rebels “descended upon our peaceful town with the intent of utter destruction,” that they “went house to house” attacking the villagers, and that “[n]ot a word was uttered to us” by the rebels. See A.R. 131. Of course, “generalized lawlessness and violence between diverse populations” will not support relief. Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001). To the extent the rebels sought to recruit Guma-neh, those efforts alone are insufficient to compel a finding of persecution based on a protected ground. See Velasquez-Valencia v. INS, 244 F.3d 48, 50-51 (1st Cir.2001) (holding that alien was not entitled to asylum based on evidence that Guatemalan guerillas sought to recruit him to their side in a civil war because there was no indication that his political beliefs had anything to do with efforts to recruit him).
Because Gumaneh cannot satisfy the asylum standard, he cannot satisfy the more difficult withholding of removal standard. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). Additionally, while a person seeking protection under the CAT need not prove that he was persecuted due to any protected status, any possibility of torture in this case appears to be negated by the improved country conditions in Sierra Leone. See Kaita, 522 F.3d at 300-01.
For the foregoing reasons, we will deny the petition for review.
. In his asylum application, Gumaneh stated that he was persecuted on account of his political opinion, see Administrative Record ("A.R.") 185, but later clarified that his applications for relief were based on imputed ethnicity. See A.R. 10.
. Because Gumaneh applied for asylum before May 11, 2005, he is not subject to a provision in the REAL ID Act of 2005 that requires an alien applying for asylum in a mixed motive case, to show “that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason” for the alleged persecution. See INA § 208(b)(l)(B)(i) [8 U.S.C. § 1158(b)(l)(B)(i) ].
. In addition, the BIA properly affirmed the IJ’s conclusion that Gumaneh did not have a well-founded fear of future persecution because of changes in Sierra Leone. According to the State Department Country Report for 2005, the civil war ended in 2002, the government asserted control over the entire country, and RUF members were indicted by a war crimes tribunal. See Kaita v. Att’y Gen., 522 F.3d 288, 301 (3d Cir.2008) (noting, in the context of a CAT claim, that the 2006 Country Report "suggests that, although there are still some serious problems in many areas of Sierra Leone, the country conditions have greatly improved.”).
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OPINION
PER CURIAM.
Arnold Reeves has filed a petition for a writ of mandamus directing the District Court to grant him relief. For the reasons that follow, we will deny the petition.
On January 28, 2009, Reeves filed a complaint in which he alleged that prison officials wrongly assigned him a public safety factor of “greatest severity” when calculating his security classification. On May 8, 2009, 2009 WL 1346648, the District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. After Reeves filed a motion for reconsideration, a motion for summary judgment, and a motion for a default judgment, the District Court reopened the matter to address those motions. On August 19th, Reeves filed this mandamus petition.
A writ of mandamus should be issued only in extraordinary circumstances. See Sporck v. Veil, 759 F.2d 312, 314 (3d Cir.1985). Determining whether an extraordinary circumstance exists requires a two-part inquiry. First, it must be established that there is no alternative remedy or other adequate means of relief. Second, a petitioner must demonstrate a clear and indisputable right to the relief sought. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). A writ is not a substitute for an appeal; only if a direct appeal is unavailable will the court determine whether a writ of mandamus will issue. See In Re Ford Motor Co., 110 F.3d 954, 957 (3d Cir.1997).
Because Reeves will have the opportunity to appeal any final order of the District Court, he is not entitled to an order compelling the District Court to grant him relief. While Reeves may use his mandamus petition to challenge delay by the District Court, there has been no delay in this case that would warrant mandamus relief.
Reeves also requests the recusal of the District Court Judge. While mandamus is available to review a District Court’s refusal to recuse pursuant to 28 U.S.C. § 455(a),1 see Alexander v. Primer-*781ica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993), Reeves did not move for recusal in the District Court. Moreover, a litigant’s displeasure with the District Court’s legal rulings is not an adequate basis for recusal. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000).
Reeves also requests that criminal charges be filed against the District Court Clerk. However, there is no federal right to require the government to initiate criminal proceedings. Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); U.S. v. Berrigan, 482 F.2d 171, 173-74 (3d Cir.1973). Moreover, the Clerk had no duty to serve the complaint until the District Court screened it under 28 U.S.C. § 1915A(a).2
For the above reasons, the petition will be denied.
. Section 455(a) provides that a judge “shall disqualify himself in any proceeding in which *781his impartiality might reasonably be questioned.”
. Section 1915A(a) provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”
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OPINION
AMBRO, Circuit Judge.
In spring 1999 Wild Waves, LLC rented approximately two-thirds of a 1.7 acre amusement “pier” (really a boardwalk) in Wildwood, New Jersey, from Nickels Midway Pier, LLC for $250,000 per year. The pier had a castle and dungeon on it; Wild Waves wanted to add a waterpark. Wild Waves claims it thought Nickels would sell the pier to it as part of Wild Waves’ plan to build the waterpark. It arranged for a construction loan secured by the pier, but needed Nickels’ permission to encumber the portion of the pier the latter retained under its control. Nickels did not sell the pier, but it consented to the mortgage, apparently in exchange for a September 1999 amendment to the lease agreement that required Wild Waves to put $400,000 in escrow in case it defaulted. Disputes developed between Wild Waves and Nickels, they started litigating the lease and *783non-sale in 2001, the castle and dungeon burned down in January 2002, and Nickels filed Chapter 11 bankruptcy in 2003.1
This appeal arises because Wild Waves refused to pay rent and taxes, and put the $400,000 in escrow. The Bankruptcy Court ordered Wild Waves to pay rent of only $87,500 (rather than the stated $250,000) because it could no longer rely on income from the castle and dungeon, but the Court required it to put up the $400,000 deposit. Both parties appealed to the District Court, which in a thorough opinion affirmed in all respects. We follow suit.
The Bankruptcy Court had jurisdiction under 28 U.S.C. § 157(a); the District Court had jurisdiction under 28 U.S.C. § 158(a); we have jurisdiction under 28 U.S.C. § 158(d). We apply the same standard of review to the Bankruptcy Court’s ruling as the District Court, In re Harvard Industries, 568 F.3d 444, 449-50 (3d Cir.2009), reviewing the Bankruptcy Court’s legal conclusions de novo and its factual conclusions for clear error. In re Schick, 418 F.3d 321, 323 (3d Cir.2005). The Bankruptcy Court, the District Court, and the parties in their briefs to us, all applied New Jersey law, and we agree that this is the right law to apply to this New Jersey contract. See In re Merritt Dredging, 839 F.2d 203, 206 (4th Cir.1988) (a bankruptcy court applies choice-of-law rules of the state in which it sits); State Farm v. Simmons’ Estate, 84 N.J. 28, 417 A.2d 488 (1980) (in general, in New Jersey the law of the situs of the contract applies).
Considering extrinsic evidence of the intent of the parties alongside the language of the lease, the Bankruptcy Court decided that they agreed to abate rent if fire destroyed the castle and dungeon. As noted, it reset rent at $87,500 from the previous amount of $250,000. It did so based on an appraised market rate valuation of the leased area available to Wild Waves after the fire. Nickels, which would have received more if the Bankruptcy Court had reduced rent by the proportion of (1) square footage or (2) total annual income lost to the fire, argues that the Bankruptcy Court should have applied these alternative approaches.
New Jersey lets a judge consider extrinsic evidence of the intent of the parties even if contract language is unambiguous. Conway v. 287 Corporate Center, 187 N.J. 259, 901 A.2d 341, 342-43, 347 (2006). Courts determine intent by asking what a reasonable person would think based on the extrinsic evidence and contract language (ie., objective, not subjective, intent governs). See, e.g., Pagnani-Braga-Kimmel Urologic v. Chappell, 407 N.J.Super. 21, 968 A.2d 1242, 1245-46 (N.J.Super.Ct.2008).
Nickels wrote to Wild Waves that it believed the castle and dungeon’s receipts would cover rent. Further, Wild Waves’ principal testified that Nickels gave him documentation of the castle and dungeon’s profits. The contract said that if there were a fire, Wild Waves had to continue to “pay rent, pro rata, for the usable part,” but did not specify in what manner the rent should be proportional. This evidence and language are not enough to show that the parties had a subjective intent to set rent at an appraised value if the castle and dungeon burned, as it does not appear that the parties ever considered how to abate rent if they lost use of the castle and dungeon.
But subjective intent does not matter here. A reasonable person would con-*784elude that the parties agreed to reduce rent to the market rate if they lost the dungeon and castle. To conclude otherwise would require us to say that Wild Waves agreed to bear the entire risk of loss of the income stream from the castle and dungeon. That is not reasonable.2
Nickels argues that the plain language of the contract permitted a reduction only by the proportion of space destroyed by the fire. We decline to read the contract divorced from the extrinsic evidence described above. For even if a contract appears free of ambiguity, in New Jersey extrinsic evidence “is always admissible in aid of [its] interpretation.” Conway, 901 A.2d at 347. But in this case we need more than the words of the contract; while it says the parties will prorate rent, it does not say how the proration works. Thus, the contract is ambiguous on this point.
Nickels further argues that the only other possible interpretation of the lease is that the parties agreed to reduce rent by the proportion of profits destroyed by the fire. For example, if the fire destroyed an annual income stream of $250,000 and Wild Waves was generating $1 million per year from the entire pier, then the parties would reduce rent by 25%. That interpretation is intuitively appealing because it takes into account both the evidence that the parties considered income in setting rent and the pro rata language in the contract. We reject this argument, however, because the record shows that the castle/dungeon was the only income-producing asset in the leased area when the parties negotiated the lease. A reasonable person would conclude that the parties intended rent to revert to market rate if that facility were destroyed.3
The lease required Wild Waves to pay one third of the taxes on the entire pier. The Bankruptcy Court abated this to 19.2%, which was the post-fire proportion of the pier’s total value represented by the part leased by Wild Waves. Nickels argues that there should be no tax abatement because the lost income on the castle and dungeon did not change taxes on the pier. We reject this argument because there is evidence that the parties allocated taxes based on the relative value of the leased premises to the value of the entire pier, not the amount of taxes on the pier. Given this evidence (the lease itself is silent on this matter), a reasonable person would conclude that the parties agreed that any post-fire tax percentage should reflect the change in the value of the leased property caused by the fire. The *785Bankruptcy Court properly gave effect to this agreement.
Turning to Wild Waves’ appeal, the Bankruptcy Court decided that the amendment to the lease required Wild Waves to place $400,000 in escrow. It objects because the amendment says the escrow only lasts until the mortgage matures “in approximately five years,” or fall 2004. But Wild Waves extended the maturity. We agree with the District Court that the best reading of the amendment is that the escrow continues until the mortgage finally matures. The purpose of the escrow was to give security against default by Wild Waves. A reasonable person would conclude that so long as a danger of default exists (ie., the mortgage continues), the escrow continues.
Wild Waves argues that it intended the escrow to last only until the mortgage’s first maturity (ie., approximately five years) because it thought Nickels was going to sell the pier around that time. But that supports the conclusion that the parties intended to tie the escrow to Nickels’ exposure to default. The escrow would have been released upon a sale because the risk to Nickels would be extinguished — it would no longer own the land. (Wild Waves also argues that because Wild Waves has made all its mortgage payments and the value of the property has declined, it no longer presents a credit risk. That may be the case, but the Bankruptcy Court made no such finding. We therefore will not give it effect.)
Wild Waves’ next contention is that the amendment is void because it agreed to amend under economic duress. Specifically, it argues that it entered into millions of dollars of contracts to build the water-park believing that the lease permitted it to mortgage the entire pier. But, according to Wild Waves, Nickels then refused to encumber the roughly one-third of the pier it retained under its control unless Wild Waves signed the amendment. It asserts that it faced major liabilities to its contractors if it did not sign the amendment.
There may be economic duress if a party assents to an improper demand under circumstances in which it has little choice but to do so (ie., the improper demand “deprives the victim of his unfettered will”). See Continental Bank v. Barclay Riding Academy, 93 N.J. 153, 459 A.2d 1163, 1175 (1983). We agree with the District Court that there was no duress. This was obviously correct, as the Bankruptcy Court found that Wild Waves’ principal, who negotiated the amendment, was a lawyer (Nickels’ representatives were not), both parties were seasoned players in the local real estate market, documentary evidence showed that Wild Waves was not actually bound to its construction contracts, and Wild Waves had advance indication from Nickels that it did not intend to encumber its non-leased portion of the pier.
For these reasons, we affirm the grant to Wild Waves of a rent abatement (and the amount of that abatement) as a consequence of the fire that destroyed the castle and dungeon. We also affirm the decision that the $400,000 escrow required by the loan amendment should remain in effect.
. Issues relating to the non-sale have already reached us. See In re Nickels Midway Pier, LLC, 255 Fed.Appx. 633 (3d Cir.2007).
. Nickels is right to suggest that, because Wild Waves never asked the Bankruptcy Court to set rent at the market rate, there is some evidence that Wild Waves did not intend to pay the market rate if it lost the castle and dungeon. But, as we have said, subjective intent does not matter.
. Nickels also argues that the Bankruptcy Court erroneously thought that the area destroyed by the fire was 7,500 square feet (in fact, it was 15,000 because the castle and dungeon had two floors). But the record reveals no such mistake. The appraiser excluded the entire area of the dungeon and castle from its rent calculation. The Bankruptcy Court properly added back into the calculation the part of the pier on which the dungeon and castle once stood because Wild Waves still had use of that area, once the facility’s first floor.
We also reject Nickels’ contention that the Bankruptcy Court should have used 60,000 square feet in calculating rent because the lease agreement stated the leased space as approximately that area. The appraiser reported that the area was in fact closer to 50,000 square feet. It was appropriate for the Bankruptcy Court to correct this imprecision in the lease agreement based on extrinsic evidence.
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11-05-2022
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OPINION
PER CURIAM.
Dwi Iriani, her husband (Lucas Benjamin), and their two children (Citra and Vidya Paais) petition for review of the Board of Immigration Appeals’ (“BIA”) final order of removal in their consolidated removal proceeding. For the reasons that follow, we will grant the petition in part and deny it in part, and we will remand for further proceedings.
I.
In July 2004, Petitioners — each of whom is a native and citizen of Indonesia — entered the United States on non-immigrant visas. They stayed beyond the time allowed under their respective visas and were ultimately placed in removal proceedings. In January 2005, Iriani — on the family’s behalf — applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), arguing that they suffered persecution and feared future persecution on account of her religion.1
In November 2006, Iriani testified before the Immigration Judge (“IJ”). She testified that she and Benjamin married in 1985. At the time of the marriage, Iriani practiced Islam and Benjamin practiced Christianity. In 1990, however, Iriani converted to Christianity. A few months after her baptism, her employer demanded that she reconvert to Islam within ten days. Iriani refused to do so and resigned. She found other employment a few days later.
In 1992, Iriani and some of her co-workers at her new place of employment formed a Christian prayer group, which held services during their lunch break. In 1996 they began using a nearby church for their prayer services because their group had grown to include about sixty families. In 2001, the group began to focus on evan-gelization, and Iriani ultimately converted thirteen Muslims to Christianity, including two individuals who were considered leaders in the Muslim community.
In 2002, the vice president of the company that employed Iriani requested to meet with her. When Iriani arrived at the meeting, she noticed that two Muslim leaders were present. One of these leaders *788told Iriani that if she did not discontinue her Christian activities, his followers would make her do so. A few days later, Iriani’s prayer group received an anonymous call threatening to bomb the group if it did not discontinue its services. In light of these events, Iriani resigned from her job a few weeks later.
Iriani later began holding prayer services in her house. This prayer group initially consisted of twelve families and ultimately grew to include forty-five families. In December 2003, three Muslim leaders from Iriani’s neighborhood came to her house and threatened to kill her family if she did not stop holding Christian activities in her home. Iriani reported this incident to the police, but the officer who fielded her complaint told her that he did not want to get involved in religious affairs.
In January 2004, Iriani received phone calls from Muslims threatening to destroy her house and kill her family if she continued to hold services in her home. The following month, someone punctured a tire on her car while she was holding a prayer service. A few weeks later, Muslims destroyed a Catholic building near Iriani’s house. Finally, in April 2004, several Muslims gathered outside her house during a prayer service and threw rocks at the house. Four individuals ultimately entered the house and threatened to kill Iriani’s family if the prayer group did not stop the service. About three months later, Petitioners fled to the United States.
The IJ found Iriani’s testimony credible but nonetheless denied her request for asylum and withholding of removal. In doing so, the IJ relied heavily on the U.S. State Department’s 2006 International Religious Freedom Report for Indonesia. The IJ only briefly discussed the specific incidents testified to by Iriani, concluding that “the threats did not rise to the level of persecution.” The IJ also rejected Iriani’s request for relief under the CAT.
On appeal, Petitioners challenged the IJ’s denial of asylum and withholding of removal only. The BIA concluded that there was “no adequate basis to disturb the Immigration Judge’s conclusion that the lead respondent did not demonstrate that she experienced past persecution,” and that “the record supports the Immigration Judge’s finding that she had not established that she had a well-founded fear of persecution if she returned to Indonesia.” Petitioners now seek this Court’s review of the BIA’s decision.2
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA purports to rely on the IJ’s findings, we review the IJ’s decision. See Chukwu v. Att’y Gen. of the U.S., 484 F.3d 185, 189 (3d Cir.2007). We review factual findings, including conclusions regarding evidence of persecution, for substantial evidence. Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir.2008). Under this deferential standard of review, we must affirm “unless the evidence not only supports a contrary conclusion, but compels it.” Id. (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
To establish eligibility for asylum, an alien must show that she is unable or unwilling to return to her home country due to a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 *789U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). A showing of past persecution triggers a re-buttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1). If an alien cannot show past persecution, she can still establish a well-founded fear of future persecution by showing that her fear is both subjectively and objectively reasonable. Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 345-46 (3d Cir.2008). If an alien fails to demonstrate eligibility for asylum, she cannot obtain withholding of removal, for the standard for withholding is higher than that for asylum. Id. at 348-49.
Whether an alien suffered past persecution and whether she possesses a subjectively and objectively reasonable fear of future persecution are two separate issues. See id. at 341. In this case, however, it appears that the IJ conducted only one persecution analysis, concluding that the harm suffered by Iriani “did not rise to the level of persecution.” Although the IJ did not explicitly state whether this conclusion related to Iriani’s efforts to establish past or future persecution, the IJ’s use of the past tense — “did not rise” — suggests that the IJ was ruling on the former and not the latter.
On appeal, the BIA did not highlight this flaw in the IJ’s analysis. Rather, the BIA’s decision made it seem as if the IJ did conduct two separate analyses, for the BIA held, without more, that (1) there was “no adequate basis to disturb the Immigration Judge’s conclusion that the lead respondent did not demonstrate that she experienced past persecution”; and (2) “the record supports the Immigration Judge’s finding that she had not established that she had a well-founded fear of future persecution if she returned to Indonesia.”
Because the BIA affirmed a conclusion that the IJ seemingly never made and did not provide any of its own reasoning for that conclusion, we are unable to meaningfully review the issue of whether Iriani’s fear is both subjectively and objectively reasonable. Accordingly, we must vacate the BIA’s decision as to this issue and remand so that the BIA can reconsider this issue. See Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.2003) (“When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.”). We note, without deciding, that Iriani may be able to demonstrate that her fear is both subjectively and objectively reasonable. In the months leading up to Petitioners’ departure from Indonesia, Muslims from their neighborhood made repeated death threats and otherwise attempted to intimidate Iriani into discontinuing her prayer group’s services. Although Iriani sought police protection after receiving the first death threat, the Indonesian police were unwilling to help her. Indeed, the 2006 International Religious Freedom Report states that the Indonesian government “sometimes tolerated extremist groups that used violence and intimidation against religious groups, and it often failed to punish perpetrators of such violence.” In any event, we leave it to the BIA to determine in the first instance whether Petitioners demonstrated both a subjectively and objectively reasonable fear of future persecution.
Although we are unable to review the issue of future persecution, we are able to consider the finding that Petitioners failed to establish past persecution.3 The *790substantial evidence supports the conclusion that the harm suffered by Iriani does not constitute past persecution. Threats constitute past persecution in “only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’” Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir.2005) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000)). The threats in this case — although undoubtedly frightening and reprehensible — were never acted upon and did not cause Petitioners any physical injury. Additionally, the incidents in which Muslims threw rocks at Petitioners’ home and vandalized their car do not rise to the level of persecution.
In light of the above, we will grant the petition in part and remand to the BIA so that it may consider whether Petitioners have established both a subjectively and objectively reasonable fear of future persecution on account of Iriani’s religion. We will deny the remainder of the petition.
. Petitioners’ brief also argues that they were persecuted on account of their ethnicity. Aside from checking the relevant box in their asylum application and submitting two affidavits that discussed the plight of Chinese persons in Indonesia generally, Petitioners did not indicate during the proceeding before the IJ that they were pursuing an ethnicity claim. In their appeal to the BIA, they argued that the IJ ignored these affidavits and failed to consider their ethnicity claim. The BIA noted, however, that Petitioners never sought to mark the affidavits as exhibits or otherwise enter them into evidence. Moreover, the BIA concluded that the affidavits did not undermine the IJ’s finding that Petitioners did not suffer persecution. The substantial evidence supports the BIA's conclusion.
. In their brief, Petitioners state that they seek review of the denial of their requests for asylum, withholding of removal, and relief under the CAT. Because they did not challenge the denial of their CAT claim in their appeal to the BIA, we lack jurisdiction to review that claim. See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir.2005).
. The Government argues that Petitioners' brief made only a passing reference to the issue of past persecution and thus they have waived any challenge to that issue. Although Petitioners' brief, prepared by counsel, is disorganized and far from a model of clarity, we *790believe that it sufficiently addresses the issue of past persecution — albeit barely — to place that issue before us.
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OPINION
PER CURIAM.
Mohamed F. El-Hewie, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey granting the defendants’ motions to dismiss his federal claims and declining to adjudicate his state-law claims. We will affirm in part, vacate in part, and remand to the District Court for further proceedings.
I.
This dispute arises out of a decision by the Board of Education of the Bergen County Vocational School District (“the Board”) not to renew El-Hewie’s contract for employment as a provisional teacher for the 2006-2007 school year. El-Hewie filed a petition with the New Jersey Department of Education alleging that the Board discriminated against him and violated various state laws and regulations governing provisional teachers. Following a six-day hearing, an administrative law judge (“ALJ”) dismissed the petition, concluding that El-Hewie’s claims were without merit. In particular, the ALJ held that “the Board [complied] with all of the statutory requirements governing the non-renewal of a teacher,” that the Board’s “decision not to renew the petitioner’s employment is supported by substantial, credible evidence, and cannot be said to be arbitrary or capricious,” and that, under standards applicable to New Jersey’s Law Against Discrimination (“LAD”), the “petitioner has failed to shoulder his burden of proof with regard to any discrimination claim.” On April 10, 2008, the New Jersey Commissioner of Education affirmed the dismissal of El-Hewie’s claims.1 El-Hew-*793ie’s appeal to the state Board of Education apparently remains pending. See N.J.S.A. § 18A:6-27, repealed by L.2008, c. 36, § 7 (eff. July 7, 2008).
Meanwhile, El-Hewie filed a complaint in the United States District Court for the District of New Jersey, raising employment discrimination, civil rights, and state education law claims.2 He named as defendants: the Board, its members, administrators, and staff members (“the Board Defendants”); two private attorneys who represented the Board Defendants in the state administrative proceedings (“the Attorney Defendants”); the New Jersey Office of Administrative Law and the administrative law judge who presided over his case (“the Administrative Law Defendants”); and the New Jersey Department of Law and Public Safety, the New Jersey Department of Education and New Jersey’s Commissioner and Acting Secretary of Education (“the State Defendants.”).3 The District Court held that El-Hewie did not have a protected property interest in renewal of his employment contract, concluded that the state administrative proceedings had a preclusive effect on his federal claims, and declined to hear his state-law claims.4 Consequently, the District Court granted the defendants’ motion to dismiss. This appeal followed.5
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Comb’s grant of the Defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We accept as true all of the allegations contained in the complaint and draw reasonable inferences in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) *794(per curiam). To survive dismissal, 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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court may consider the allegations of the complaint, exhibits attached thereto, and matters of public record, including administrative decisions. See Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.1999); Jean Alexander Cosmetics, Inc. v. L’Oreal USA Inc., 458 F.3d 244, 256 n. 5 (3d Cir.2006) (rejecting argument that district court should have converted motion to dismiss into one for summary judgment where it considered preclusive effect of Trademark Trial and Appeal Board opinion).
III.
To prevail on his § 1983 claim, El-Hewie must demonstrate that the named defendants acted under color of state law and deprived him of rights secured by the Constitution or federal law. See Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.1998). El-Hewie alleged that the defendants “frustratefd] Plaintiffs efforts to enjoy his rights of equal employment and participation in the state-approved teacher preparation program.” It is well-settled that “[t]o have a property interest in a job ... a person must have more than a unilateral expectation of continued employment; rather, she must have a legitimate entitlement to such continued employment.” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir.2005) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). State law determines whether a person has such an entitlement. Id.
Pursuant to New Jersey law, “[a] nontenured officer or employee who is not recommended for renewal by the chief school administrator shall be deemed non-renewed.” N.J.S.A. § 18A:27-4.1.b; see also Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 969 A.2d 1097, 1109 (2009) (recognizing that Board of Education had no obligation to renew one year contract of non-tenured public school teacher). El-Hewie, who alleged that he was hired pursuant to a “teacher preparation program,” see N.J.S.A. § 18A:26-2a, entered into a “10-month, Non-Tenured Teachers Contract.” That contract provided that it “may be terminated by either party giving to the other sixty (60) days notice in writing of intention to terminate the same.” An at-will employee does not have a constitutionally protected property interest in continued employment. See Biliski v. Red Clay Consol. School Dist. Bd. of Educ., 574 F.3d 214, 218-19 (3d Cir.2009). We disagree with El-Hewie’s contention that the “mentoring and training” provided to provisional teachers created a property interest protected by the Due Process Clause. Cf. Versarge v. Twp. of Clinton N.J., 984 F.2d 1359, 1370 (3d Cir.1993) (concluding that training provided to volunteer firefighter did not establish property interest). Therefore, because El-Hewie had no property interest in his non-tenured teaching position, his § 1983 due process claims fail as a matter of law.6
*795IV.
The District Court held that El-Hewie’s employment discrimination claims under 42 U.S.C. § 1981 had been litigated before the ALJ, and were therefore barred by the doctrine of res judicata. Res judi-cata precludes claims that were actually litigated or could have been litigated in a prior action, see Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), and can be applied to administrative agencies acting in a judicial capacity. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). “[W]hen a state agency ‘acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ ... federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.” Univ. of Tenn. v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (quoting Utah Constr. & Mining Co., 384 U.S. at 422, 86 S.Ct. 1545); see also Swineford v. Snyder County, 15 F.3d 1258, 1266 (3d Cir.1994) (noting that “when adjudicating Reconstruction Civil Rights laws, federal courts give the same preclusive effect to state agency findings as would the state courts when the agency, acting in a judicial capacity, resolves disputed issues of fact.”). We have recognized that “applying preclusive effect to legal conclusions made by state agencies ‘is favored as a matter of general policy, [though] its suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.’ ” Crossroads Cogeneration Corp. v. Orange & Rockland Utilities, Inc., 159 F.3d 129, 135 (3d Cir.1998) (quoting Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 109-10, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991)).
Although the District Court concluded that the ALJ acted in a judicial capacity, it failed to address whether New Jersey courts would give preclusive effect to the decision reached in the administrative proceedings. See Caver v. City of Trenton, 420 F.3d 243, 259 (3d Cir.2005) (“look[ing] to [New Jersey’s] preclusion law in determining what effect, if any, the ALJ’s determinations could have on ... state law claims.”). Accordingly, we will vacate the dismissal of El-Hewie’s § 1981 claims on res judicata grounds, and will remand the issue for consideration by the District Court in the first instance. See Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir.1994) (remanding for consideration of res judicata issues). We express no opinion on the issue, but note that the New Jersey Supreme Court has recognized that “thorny questions have arisen in previous cases in respect of whether preclusion of a [Law Against Discrimination] complaint is appropriate when the same LAD claim allegedly was raised in an administrative litigation before an administrative agency having concurrent jurisdiction with the [Division of Civil Rights].” Hennessey v. Winslow Twp., 183 N.J. 593, 875 A.2d 240, 245 (2005).
V.
To state a claim under 42 U.S.C. § 1985, a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons of the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). El-Hewie alleged that a principal, teacher, and supervisor “manipulate[d] the mentoring of provision*796al teachers” so as to “exclude,” “replace,” and “hir[e]” teachers based on race. The District Court concluded that El-Hewie did “not plead any facts to indicate that [the] ‘conspiracy" was motivated by race or class-based discriminatory animus.” We agree that El-Hewie’s “bare assertion[]” about “manipulation]” in the provisional teachers program is a conclusion that, “much like the pleading of a conspiracy in Tioombly, amount[s] to nothing more than a ‘formulaic recitation of the elements’ ” of a civil conspiracy claim.7 Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Accordingly, we will affirm the District Court’s dismissal of El-Hewie’s § 1985 claim.
VI.
For the foregoing reasons we will affirm in part, vacate in part, and remand the matter to the District Court for further proceedings consistent with this opinion. In particular, we will vacate that portion of the District Court’s order that dismissed El-Hewie’s § 1981 claims on res judicata grounds.8
. The New Jersey Supreme Court has noted that the Commissioner of Education and the *793Division of Civil Rights have concurrent jurisdiction in discrimination cases concerning education, but that "Lb'Jecause the discrimination occurs in a public education context, the Commissioner has the predominant interest in the subject matter.” Balsley v. N. Hunterdon Reg’l Sch. Dist. Bd. of Educ., 117 N.J. 434, 568 A.2d 895, 902 (1990).
. In particular, El-Hewie cited 42 U.S.C. §§ 1981, 1983, 1985, 1986; NJ.S.A. § 18A:27-4.1.a (pertaining to a board of education's appointment, transfer, or removal of officers and employees); and N.J.A.C. §§ 6A:9-8.3 ("Requirements for Instructional Certificate”), 6A:9-3.3 ("Professional Standards for Teachers”), and 6A:9-3.4 ("Professional Standards for School Leaders”).
. El-Hewie’s complaint also named Bergen County and the County Executive, Dennis McNerney. Those parties moved in this Court to be excused from filing a brief because El-Hewie makes "no mention of any errors by the District Court that would ... [warrant] overturning] the District Court's Decision as it pertains to the County of Bergen and Dennis McNerney.” We granted that motion, and now hold that El-Hewie has waived his claims against those parties. See In re Surrick, 338 F.3d 224, 237 (3d Cir.2003).
. The District Court also concluded that the Attorney Defendants were immune from suit pursuant to the "litigation privilege,” that the Administrative Law Defendants were entitled to judicial immunity, and that the State Defendants were immune from suit under the Eleventh Amendment. El-Hewie has waived any challenge to these determinations because he failed to meaningfully raise these issues in his opening brief. See Laborers' Int’L Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes a passing reference to an issue will not suffice to bring that issue before this court.” (internal quotation marks omitted)).
. After El-Hewie appealed, he filed a motion for a new trial. We stayed the appeal pending disposition of that motion. The District Court denied the motion for a new trial by order entered February 19, 2009.
. We also conclude that the District Court did not abuse its discretion in declining supplemental jurisdiction over El-Hewie's state law claims, which centered on the defendants' alleged "violation] of the essential framework of N.J.A.C. [§ ] 6A:9-8.3 [("Requirements for Instructional Certificate”) ].” See 28 U.S.C. § 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.1999).
. This conclusion also applies to El-Hewie's claim under § 1986 because such a claim cannot succeed unless predicated on a valid § 1985 claim. See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir.1980).
. El-Hewie's motion to compel the District Court to expedite trial and to recuse the District Court judge is denied. The motion by Appellees William C. Soukas and Bradley M. Wilson for leave to file a sur reply brief is denied.
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OPINION
PER CURIAM.
Gisell Torres, a native and citizen of Peru, was admitted to the United States in April 1990, along with her parents and sister, on a B-l/B-2 visa. At the time, Torres was three years-old. In 1998, Torres and her family were charged with overstaying them period of admission. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. The family conceded removability, and Torres’ father applied for asylum and withholding of removal. After the Immigration Judge (“IJ”) denied relief, the Board of Immigration Appeals (“BIA”) affirmed without opinion on June 7, 2002, permitting each family member to voluntarily depart within 30 days.
The family did not depart, however. On May 12, 2008, Torres’ parents were taken into custody and were eventually removed from the United States. On June 19, 2008, Torres married a United States citizen, who later filed a petition for alien relative (Form 1-130) on her behalf.1 Shortly thereafter, Torres filed a motion to reopen, seeking to adjust her status based on her marriage. The BIA denied the motion to reopen, finding that it was untimely and that there were no applicable exceptions to the 90-day limit on filing a motion to reopen. See 8 C.F.R §§ 1003.2(c)(2) and (c)(3). The Board also declined to reopen the proceedings suci sponte, see 8 C.F.R. § 1003.2(a), concluding that neither Torres’ age at the time voluntary departure was granted, nor her marriage to a United States citizen, constituted an exceptional situation. Torres filed a timely petition for review.
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252] 2 We review the BIA’s denial of a motion to reopen for abuse of discretion, and will not disturb the decision unless it was arbitrary, irrational or contrary to law. See Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008).
*798Pursuant to 8 C.F.R. § 1003.2(c)(2), an alien “may file only one motion to reopen,” and the motion must be filed “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” See also INA § 240(c)(7)(C)(I) [8 U.S.C. § 1229a(e)(7)(C)(I) ]. Torres argues that the time limitation on filing motions to reopen should be equitably tolled. The Government contends that we lack jurisdiction over this argument because Torres did not raise it in her motion to reopen. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005) (“To exhaust a claim ... an applicant must first raise the issue before the BIA or IJ.”). Importantly, however, when the BIA sua sponte addresses an otherwise unexhausted issue, failure to raise the issue on administrative appeal may be excused. See Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir.2008) (“We agree with the logic of the majority of our fellow courts of appeals on this issue and find that we have jurisdiction to address the IJ’s adverse credibility determination because the BIA considered the issue sua sponte.”). Here, the BIA’s stated that Torres has “not demonstrated that an exception to the statutory and regulatory timely filing requirement applies.” This constitutes a sua sponte denial of equitable tolling over which we may exercise jurisdiction. See Mahmood v. Gonzales, 427 F.3d 248, 251 n. 7 (3d Cir.2005).
Torres plausibly claims that she was unaware of the final removal order that the BIA issued in June 2002, when she was 15 years-old. Torres and her family apparently had no further contact with the Government until May 12, 2008, when Department of Homeland Security (“DHS”) officers took her parents into custody. Torres was instructed to report to the DHS office in Newark, New Jersey. Torres appeared there on June 12, 2008, and was given an Order of Supervision, directing her to report back on July 24, 2008, with an airline ticket to Peru.
On June 26, 2008, Torres filed her motion to reopen to apply for adjustment of status based on her recent marriage to a United States citizen. See id. at 252-53 (holding that a petitioner who seeks equitable tolling must exercise due diligence in pursuing the case). Torres is eligible to apply for adjustment of status on the state of the record. She married a U.S. citizen on June 19, 2008, her husband filed an I-130 petition on August 21, 2008, and the petition was approved on April 2, 2009. Under the circumstances presented in this case, and given Torres’ diligent efforts in pursuing adjustment of status, see Mah-mood, 427 F.3d at 252-53, we conclude that the BIA abused its discretion in not equitably tolling the limitations period for filing a motion to reopen.
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of July 28, 2008, and remand the case with instructions to reopen the proceedings.
. The 1-130 petition was filed on August 21, 2008, and it was approved on April 2, 2009.
. In this proceeding, we cannot review the BIA’s original final order of removal because the petition For review was timely only as to order denying reopening. See INA 242(b)(1) [8 U.S.C. § 1252(b)(1)]; McAllister v. Att’y Gen., 444 F.3d 178, 184-85 (3d Cir.2006).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles W. Penland, Sr., appeals the district court’s order denying his requests for preliminary injunctions. On appeal, we confíne our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Penland’s brief alleges no error committed by the district court. We therefore find Penland has forfeited appellate review of that order. Accordingly, we affirm the district court’s order. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473111/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tibel Clark appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Clark, No. 4:01-cr-00056-CWH-2 (D.S.C. filed May 6, 2009; entered May 7, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473113/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lites seeks to appeal the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm the appeal for the reasons stated by the district court. Lites v. Bass, No. 1:09-cv-0453-AJT-JFA (E.D.Va. May 12, 2009). We also deny Lites’ motions to appoint counsel and for default judgment. 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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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8473115/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Gilbert appeals from the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gilbert, No. 3:97-cr-00352-REP-2 (E.D.Va. May 6, 2009). We deny Gilbert’s motion for copies of documents, and 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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https://www.courtlistener.com/api/rest/v3/opinions/8473117/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Arnold appeals the district court’s order denying relief on his motion to amend his presentence report. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Arnold, No. 3:05-cr-00046-RJC-DSC-2 (W.D.N.C. May 13, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473120/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Bernard Miller appeals the district court’s order denying his motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Miller, No. 3:92-cr-00101-GCM (W.D.N.C. Apr. 28, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473108/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles W. Penland, Sr., appeals the district court’s order denying his requests for preliminary injunctions. On appeal, we confíne our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Penland’s brief alleges no error committed by the district court. We therefore find Penland has forfeited appellate review of that order. Accordingly, we affirm the district court’s order. 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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https://www.courtlistener.com/api/rest/v3/opinions/8473110/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Desmond Ward appeals the district court’s order granting his motion for a sentence reduction under 18 U.S.C. *873§ 3582(c)(2) (2006) and lowering his sentence from 235 months to 188 months of imprisonment. We have reviewed the record and find no reversible error. Contrary to Ward’s arguments on appeal, he is not entitled to a further reduction in his sentence. See United States v. Dunphy, 551 F.3d 247, 257 (4th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009). Accordingly, we affirm for the reasons stated by the district court. United States v. Ward, No. 3:96-cr-00029-GCM-2 (W.D.N.C. May 27, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473112/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tibel Clark appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Clark, No. 4:01-cr-00056-CWH-2 (D.S.C. filed May 6, 2009; entered May 7, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473114/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lites seeks to appeal the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm the appeal for the reasons stated by the district court. Lites v. Bass, No. 1:09-cv-0453-AJT-JFA (E.D.Va. May 12, 2009). We also deny Lites’ motions to appoint counsel and for default judgment. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473116/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Gilbert appeals from the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gilbert, No. 3:97-cr-00352-REP-2 (E.D.Va. May 6, 2009). We deny Gilbert’s motion for copies of documents, and 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473118/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Arnold appeals the district court’s order denying relief on his motion to amend his presentence report. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Arnold, No. 3:05-cr-00046-RJC-DSC-2 (W.D.N.C. May 13, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473121/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Horton appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Horton, No. 7:04-cr-00078-FL-1 (E.D.N.C. July 1, 2009). We deny Horton’s motions for appointment of counsel. 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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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473124/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brooks Tyrone Chambers appeals the district court’s orders denying his motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006) and denying his motion for reconsideration. Chambers argues that the district court erred by failing to reduce his sentence based upon U.S. Sentencing Guidelines Manual (“USSG”) App. C. Amend. 706 (2007), which lowered *891the offense level for sentences involving crack cocaine. Chambers’ sentence was determined by the career offender guideline, USSG § 4B1.1, and was not based on a sentencing range lowered by the amendment. See United States v. Hood, 556 F.3d 226, 232 (4th Cir.2009). Accordingly, we affirm the decision of the district court. 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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https://www.courtlistener.com/api/rest/v3/opinions/8473126/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kaimel Glenn appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Glenn v. Baker, No. 1:09-cv-00388-WDQ (D. Md. filed June 4, 2009 & entered June 5, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473128/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Malone Rosenburgh appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). The district court found Rosenburgh was not eligible for a reduction under U.S. Sentencing Guidelines Manual App. C. Amend. 706 (2007), which lowered the base offense levels for drug offenses involving cocaine base. Because Rosenburgh was sentenced on the basis of his status as a career offender, he was not entitled to a reduction pursuant to Amendment 706, so the district court did not abuse its discretion in denying Rosen-burgh’s motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (stating standard of review). Accordingly, we affirm the district court’s order. 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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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473130/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Douglas Leneau appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Leneau v. Aplin, No. 4:09-cv-00932-CMC, 2009 WL 1749430 (D.S.C. June 22, 2009). Further, we deny Leneau’s motion for transcripts and copies at Government expense. 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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https://www.courtlistener.com/api/rest/v3/opinions/8473131/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodricka Jermaine Gambrell appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject *897to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See Gambrell v. United States, No. 6:06-cr-01094-GRA, 2009 WL 1605635 (D.S.C. June 5, 2009). Further, we deny Gambrell’s motion for transcripts at Government expense. 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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https://www.courtlistener.com/api/rest/v3/opinions/8473134/
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PER CURIAM: *
The attorney appointed to represent Larry Taylor has moved for leave to with*985draw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Taylor has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *985the limited circumstances set forth in 5th Cir R. 47.5.4.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473125/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kaimel Glenn appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Glenn v. Baker, No. 1:09-cv-00388-WDQ (D. Md. filed June 4, 2009 & entered June 5, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473129/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Douglas Leneau appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Leneau v. Aplin, No. 4:09-cv-00932-CMC, 2009 WL 1749430 (D.S.C. June 22, 2009). Further, we deny Leneau’s motion for transcripts and copies at Government expense. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473132/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodricka Jermaine Gambrell appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject *897to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See Gambrell v. United States, No. 6:06-cr-01094-GRA, 2009 WL 1605635 (D.S.C. June 5, 2009). Further, we deny Gambrell’s motion for transcripts at Government expense. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473135/
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PER CURIAM: *
The attorney appointed to represent Kevin Dwayne Rodgers has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rodgers has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473137/
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PER CURIAM: *
The attorney appointed to represent Gabriel Marquez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Marquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473139/
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PER CURIAM: *
The Federal Public Defender appointed to represent Felipe Sebastian Chan-Gutierrez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Chan-Gutierrez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473142/
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PER CURIAM: *
The Federal Public Defender appointed to represent Edgar Ernesto Quesada Reales has moved for leave to withdraw *998and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Quesa-da Reales has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. . R. 47.5.4.
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https://www.courtlistener.com/api/rest/v3/opinions/8473143/
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ORDER
Chris Jacobs, a Wisconsin prisoner, brought this civil rights complaint against current and former employees of the Wisconsin Department of Corrections. The district court dismissed the action under Fed.R.Civ.P. 37(b)(2)(A)(v) because Jacobs failed to comply with discovery orders. We affirm.
Jacobs alleged that defendants violated his Eighth Amendment rights by restricting his diet and denying him medical treatment. In developing their defense, defendants sought access to Jacobs’s medical records, which required his written consent. See Wis. Stat. §§ 146.81, 51.30. Defendants mailed Jacobs an authorization form with instructions to sign and return. Although an accompanying letter warned him that noncompliance would lead to the *107filing of a motion to dismiss the action, Jacobs did not respond. Defendants later renewed their request, but Jacobs refused to sign the form unless the defendants agreed to make the “whole medical record/file part of the record in this case and copies to me.” A third request also went unheeded.
Finally, more than a year later, the district court instructed the defendants to send Jacobs an authorization form for the fourth and final time, warning Jacobs that his case would be dismissed if he did not sign and return the form within ten days. Jacobs did not sign and return the form. Instead he filed two motions — one to compel defendants to copy his medical records, and a second to have his medical records inspected in camera. The district court found that Jacobs failed to comply with its explicit directions and dismissed the case under Fed.R.Civ.P. 37(b)(2)(A)(v).
Jacobs’s spartan appeals brief glosses over the court’s Rule 37(b) dismissal, and urges instead that the district court improperly dismissed his case without regard for his indigent status. He claims that the district court acted arbitrarily by requiring him to make his medical records available, but not ensuring that copies of these records would be available to him (he says he cannot afford the copying fees). Jacobs cannot show, however, that the district court’s Rule 37(b) dismissal was an abuse of discretion. On four separate occasions, he refused to comply with clear discovery requests and disregarded court warnings about the consequences of noncompliance. Those consequences were not contingent upon the defendants providing him with a copy of his medical records. Having identified a pattern of discovery abuse, the court acted well within its discretion by dismissing the case to spare defendants further delay. See Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir.1992); Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 910 (7th Cir.2003). Even pro se litigants must abide by procedural rules. Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009).
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
We have consolidated for decision these two appeals because they raise the same issue: whether a defendant sentenced as a career offender is entitled to a limited remand under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). See United States v. Taylor, 520 F.3d 746 (7th Cir.2008). Quadale Coleman pleaded guilty to possession of crack with intent to distribute, and James Frazier was convicted after a jury trial of distribution of crack and possession of crack with intent to distribute. See 21 U.S.C. 841(a)(1). Both defendants were sentenced as career offenders, see U.S.S.G. § 4B1.1(a); Coleman was sentenced to 225 months’ imprisonment, and Frazier was sentenced to 360 months’ imprisonment.
After both men were sentenced, the Supreme Court held in Kimbrough that district courts may conclude, even in a “mine-run case,” that the crack-to-powder ratio underlying the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for the particular defendant. 128 S.Ct. at 575; see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.2008). Defendants who were sentenced under § 2D1.1 before Kimbrough but did not object to the ratio in that guideline may be entitled to a limited remand for the district court to consider whether it would have imposed a lower sentence in light of Kimbrough. See Taylor, 520 F.3d at 747-48.
On appeal both Coleman and Frazier contend that their cases should be remanded in light of Kimbrough and Taylor. But we have conclusively held that a sentence imposed under § 4B1.1(a), the career-offender guideline, raises no Kimbrough problem, and thus a limited remand is not required. See United States v. Welton, 583 F.3d 494, 496-500 (7th Cir.2009); United States v. Hearn, 549 F.3d 680, 684 (7th Cir.2008); United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2380, 173 L.Ed.2d 1300 (2009); United States v. Harris, 536 F.3d 798, 812-13 (7th Cir.2008). To the extent the crack/powder differential carries over into sentencing for career offenders, it is because of the statutory penalties and not, as in Kimbrough, the application of § 2D1.1. See Welton, 583 F.3d at 496-97; United States v. Millbrook, 553 F.3d 1057,1067 (7th Cir.2009); Hearn, 549 F.3d at 684; Clanton, 538 F.3d at 660; Harris, 536 F.3d at 812-13. Thus, Coleman and Frazier’s sole argument on appeal is foreclosed, and we AFFIRM the judgment in both cases.
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PER CURIAM: *
The attorney appointed to represent Kevin Dwayne Rodgers has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rodgers has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Gabriel Marquez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Marquez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Felipe Sebastian Chan-Gutierrez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Chan-Gutierrez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Edgar Ernesto Quesada Reales has moved for leave to withdraw *998and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Quesa-da Reales has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. . R. 47.5.4.
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ORDER
Chris Jacobs, a Wisconsin prisoner, brought this civil rights complaint against current and former employees of the Wisconsin Department of Corrections. The district court dismissed the action under Fed.R.Civ.P. 37(b)(2)(A)(v) because Jacobs failed to comply with discovery orders. We affirm.
Jacobs alleged that defendants violated his Eighth Amendment rights by restricting his diet and denying him medical treatment. In developing their defense, defendants sought access to Jacobs’s medical records, which required his written consent. See Wis. Stat. §§ 146.81, 51.30. Defendants mailed Jacobs an authorization form with instructions to sign and return. Although an accompanying letter warned him that noncompliance would lead to the *107filing of a motion to dismiss the action, Jacobs did not respond. Defendants later renewed their request, but Jacobs refused to sign the form unless the defendants agreed to make the “whole medical record/file part of the record in this case and copies to me.” A third request also went unheeded.
Finally, more than a year later, the district court instructed the defendants to send Jacobs an authorization form for the fourth and final time, warning Jacobs that his case would be dismissed if he did not sign and return the form within ten days. Jacobs did not sign and return the form. Instead he filed two motions — one to compel defendants to copy his medical records, and a second to have his medical records inspected in camera. The district court found that Jacobs failed to comply with its explicit directions and dismissed the case under Fed.R.Civ.P. 37(b)(2)(A)(v).
Jacobs’s spartan appeals brief glosses over the court’s Rule 37(b) dismissal, and urges instead that the district court improperly dismissed his case without regard for his indigent status. He claims that the district court acted arbitrarily by requiring him to make his medical records available, but not ensuring that copies of these records would be available to him (he says he cannot afford the copying fees). Jacobs cannot show, however, that the district court’s Rule 37(b) dismissal was an abuse of discretion. On four separate occasions, he refused to comply with clear discovery requests and disregarded court warnings about the consequences of noncompliance. Those consequences were not contingent upon the defendants providing him with a copy of his medical records. Having identified a pattern of discovery abuse, the court acted well within its discretion by dismissing the case to spare defendants further delay. See Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir.1992); Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903, 910 (7th Cir.2003). Even pro se litigants must abide by procedural rules. Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009).
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
We have consolidated for decision these two appeals because they raise the same issue: whether a defendant sentenced as a career offender is entitled to a limited remand under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). See United States v. Taylor, 520 F.3d 746 (7th Cir.2008). Quadale Coleman pleaded guilty to possession of crack with intent to distribute, and James Frazier was convicted after a jury trial of distribution of crack and possession of crack with intent to distribute. See 21 U.S.C. 841(a)(1). Both defendants were sentenced as career offenders, see U.S.S.G. § 4B1.1(a); Coleman was sentenced to 225 months’ imprisonment, and Frazier was sentenced to 360 months’ imprisonment.
After both men were sentenced, the Supreme Court held in Kimbrough that district courts may conclude, even in a “mine-run case,” that the crack-to-powder ratio underlying the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for the particular defendant. 128 S.Ct. at 575; see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.2008). Defendants who were sentenced under § 2D1.1 before Kimbrough but did not object to the ratio in that guideline may be entitled to a limited remand for the district court to consider whether it would have imposed a lower sentence in light of Kimbrough. See Taylor, 520 F.3d at 747-48.
On appeal both Coleman and Frazier contend that their cases should be remanded in light of Kimbrough and Taylor. But we have conclusively held that a sentence imposed under § 4B1.1(a), the career-offender guideline, raises no Kimbrough problem, and thus a limited remand is not required. See United States v. Welton, 583 F.3d 494, 496-500 (7th Cir.2009); United States v. Hearn, 549 F.3d 680, 684 (7th Cir.2008); United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2380, 173 L.Ed.2d 1300 (2009); United States v. Harris, 536 F.3d 798, 812-13 (7th Cir.2008). To the extent the crack/powder differential carries over into sentencing for career offenders, it is because of the statutory penalties and not, as in Kimbrough, the application of § 2D1.1. See Welton, 583 F.3d at 496-97; United States v. Millbrook, 553 F.3d 1057,1067 (7th Cir.2009); Hearn, 549 F.3d at 684; Clanton, 538 F.3d at 660; Harris, 536 F.3d at 812-13. Thus, Coleman and Frazier’s sole argument on appeal is foreclosed, and we AFFIRM the judgment in both cases.
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PER CURIAM.
The district court1 originally sentenced Dennell R. Malone to the applicable Guidelines range of life imprisonment (with a consecutive 60-month sentence for a firearm count). After Amendment 706 to the Sentencing Guidelines, the court resen-tenced Malone to 360 months imprisonment (with a consecutive 60-month sentence for the firearm count), the bottom of his recalculated Guidelines range. See 18 U.S.C. § 3582(c)(2).
Malone appeals, arguing that the district court should be allowed to resentence him below the Guidelines range. This court has previously rejected this argument. See United States v. Starks, 551 F.3d 839, 841-43 (8th Cir.2009) (resentencing under section 3582(c)(2) is more narrow in scope than original sentencing proceedings; the limitation that resentencing courts “must not reduce the sentence of a defendant who was originally sentenced within the applicable guideline range to a term that is less than the minimum of the amended guideline range” is “constitutional and enforceable”) (internal citations omitted); United States v. Harris, 556 F.3d 887, 888 (8th Cir.2009) (per curiam) (Starks forecloses the argument that the district court has authority to sentence him below the Guidelines range in a section 3582(c)(2) resentencing); United States v. Murphy, *122578 F.3d 719, 720-21 (8th Cir.2009) (same, holding that there is no conflict between Starks and United States v. Mihm, 134 F.3d 1353 (8th Cir.1998)).
The judgment is affirmed.
. The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.
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MEMORANDUM **
California state prisoner James Albert Rankins appeals from the district court’s judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Rankins contends that his Sixth Amendment rights were violated pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), when the state appellate court engaged in fact-finding to impose an upper-term sentence.
Following an independent review of the record, we conclude that the district court did not err in rejecting this claim because the California Supreme Court did not clearly err in applying federal law. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). At sentencing, the state court cited to the fact that Rankins was on parole at the time of the instant offense as an aggravating factor supporting an upper-term sentence. See Butler v. Curry, 528 F.3d 624, 638-39 (9th Cir.), cert. denied - U.S. -, 129 S.Ct. 767, 172 L.Ed.2d 763 (2008) (noting that one factor is sufficient to set the statutory maximum under California law). We have held that the issue of whether a defendant’s probationary status falls within the prior conviction exception of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is not clearly established federal law, as determined by the Supreme Court of the United States. See Kessee v. Mendoza-Powers, 574 F.3d 675, 679 (9th Cir.2009); see also 28 U.S.C. § 2254(d)(1). This silence alone is sufficient to uphold the denial of relief in this case. See Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); see also Smith v. Richards, 569 F.3d 991, 994 (9th Cir.2009).
The State’s contentions that Cunningham does not apply, and that the habeas petition must be dismissed for failure to exhaust are foreclosed. See Butler, 528 F.3d at 638-39.
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 **
The Securities and Exchange Commission (“SEC”) filed a complaint against Thomas Gillespie (“Gillespie”) and Aqua Vie Beverage Corporation (“Aqua Vie”) alleging violations of Sections 10(b) and 13(a) of the Exchange Act, and Sections 5(a) and 17(a) of the Securities Act. The district court granted summary judgement in favor of the SEC on all claims. Gillespie appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
Gillespie first argues that the district court erred in concluding that there were no genuine issues of material fact regarding whether Gillespie violated Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act. To prove a violation of Section 17(a) or Section 10(b), the SEC must establish that there was a(l) misstatement or omission of (2) material fact, (3) made with scienter. Ponce v. SEC, 345 F.3d 722, 729 (9th Cir.2003). Here, the district court properly determined that Aqua Vie made three misstatements of material fact: (1) Aqua Vie’s inflated stock price projection of $5.25; (2) Aqua Vie’s inflated 2003 revenue projection of $6.5 to $7 million; and (3) Aqua Vie’s statement that “patented technology was a barrier to entry” by competitors. Id. These statements were material because they were “so obviously important to an investor, that reasonable minds cannot differ on the question of materiality.” TSC Industries Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976). Gillespie acted with scienter because the projections represented an *131“extreme departure from the standards of ordinary care.” Hollinger v. Titan Capital Corp, 914 F.2d 1564, 1568-69 (9th Cir.1990) (en banc).
II.
Gillespie also argues that district court erred in concluding that there were no genuine issues of material fact regarding whether Aqua Vie violated the reporting provisions of Section 13(a) of the Exchange Act. To prove a violation of Section 13(a), the SEC must establish that the alleged misstatement or omission was material. See United States v. Berger, 473 F.3d 1080, 1098 (9th Cir.2007). Here, taking the facts in the light most favorable to Gillespie, Aqua Vie’s failure to disclose its relationship with Fax.com was material because it directly related to Aqua Vie’s financial condition. See SEC v. Murphy, 626 F.2d 633, 640 (9th Cir.1980) (stating that “the materiality of information relating to financial condition, solvency and profitability is not subject to serious challenge”).
III.
Gillespie next argues that the district court erred in concluding that there were no genuine issues of material fact regarding whether Aqua Vie violated the reporting provisions of Section 5 of the Securities Act by facilitating the sale of unregistered stock through Joseph Wozniak, an Aqua Vie consultant. We have “ ‘reeognize[d] that [a defendant’s] role in the transaction must be a significant one before [Section 5] liability will attach.’” SEC v. Phan, 500 F.3d 895, 906 (9th Cir.2007) (quoting Murphy, 626 F.2d at 648, 652). A significant role is defined as including, “one who is both a ‘necessary participant’ and ‘substantial factor’ in the sales transaction.” Id. Here, Gillespie played a significant role and was a necessary participant in Wozniak’s sale of unregistered stocks. Moreover, Wozniak’s unregistered stock sales were not, as Gillespie argues, exempt from registration under Section 4(1) of the Securities Act or Rule 144(k). See Murphy, 626 F.2d at 648 (explaining that Section 4(1) “is inapplicable in cases involving a distribution of new securities by an issuer,” even if “the defendant is not itself ‘an issuer, underwriter, or dealer’ ”). Accordingly, the district court properly granted summary judgment on the SEC’s Section 5(a) claims.
IV.
Finally, Gillespie argues that the district court erred by ordering disgorgement and by imposing an injunction, an officer and director bar, a penny stock bar, and a civil penalty. The district court’s disgorgement order was proper because Gillespie was the principal owner of Aqua Vie and “he received substantial personal benefit from the infusion of the illegally obtained proceeds.” SEC v. First Pac. Bancorp, 142 F.3d 1186, 1192 (9th Cir.1998). Moreover, the injunction, officer and director bar, penny stock bar, and civil penalty were appropriate remedies because Gillespie acted recklessly. See, e.g., 15 U.S.C. § 78u(d)(3)(B).
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 **
Austin Bryan and the Estate of Glenna Bryan appeal from the district court’s summary judgment in their 42 U.S.C. § 1983 excessive force action against the Las Vegas Metropolitan Police Department (METRO police) and four of its officers. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we do not recount them here except as necessary to explain our decision.
First, the district court did not err by finding that the three defendants who did not fire at Austin Bryan were entitled to summary judgment because Appellants failed to show that the officers participated in any behavior that caused the deprivation of any right. Officers who are merely present at the time of an unlawful search cannot be held liable under § 1983 without evidence of “either integral participation or personal involvement.” Jones v. Williams, 297 F.3d 930, 936 (9th Cir.2002). Appellants do not allege that these three officers fired shots or engaged in any other activities that might be construed as excessive force. See Duran v. City of Maywood, 221 F.3d 1127, 1131 (9th Cir.2000) (concluding *134that uniformed officers did not act unreasonably in walking up a driveway with their guns drawn without announcing their presence when responding to a report that shots had been fired); see also Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.2002) (noting a plaintiff may not “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided”).
Second, the district court did not err in dismissing Appellants’ municipal liability claims after finding that Appellants failed to meet them burden of proving a policy allowing unreasonable use of deadly force. The Appellants do not offer any proof that the METRO police had a policy or practice that showed deliberate disregard for Appellants’ constitutional rights, or any proof that a METRO policy or practice was the moving force behind any constitutional violations. See Gibson v. County of Washoe, 290 F.3d 1175, 1185 (9th Cir.2002). Thus, the district court was correct in determining that the Appellants’ claims against METRO police cannot stand.
Third, the district court did not err in granting summary judgment on Appellants’ state law causes of action. The district court, pursuant to Nev.Rev.Stat. § 41.032, granted summary judgment as to the state law claims on the basis of state law discretionary-act immunity, citing University of Nevada, Reno v. Stacey, 116 Nev. 428, 997 P.2d 812, 816 (2000). Although this is the correct result, the Nevada Supreme Court has modified its state law discretionary-act immunity doctrine since Stacey. See Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). Martinez adopted the general principles of federal jurisprudence as to discretionary-function immunity, id. at 727, holding that the actions of state actors are entitled to discretionary-act immunity if their decision (1) involves an element of individual judgment or choice and (2) is based on considerations of social, economic, or political policy, id. at 729. The Nevada Supreme Court clarified that “decisions at all levels of government, including frequent or routine decisions, may be protected by discretionary-act immunity, if the decisions require analysis of government policy concerns.” Id.
Appellees bring state law claims against the METRO police for negligent training and/or supervision. As noted, Nevada looks to federal decisional law for guidance on what type of conduct discretionary immunity protects. See id. at 727-28. Our court has held that “decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield.” Vickers v. United States, 228 F.3d 944, 950 (9th Cir.2000). Because Nevada looks to federal case law to determine the scope of discretionary immunity, and because federal case law consistently holds that training and supervision are acts entitled to such immunity, METRO police is entitled to discretionary immunity on this claim. The actions of the individual officers are also protected under Nev.Rev.Stat. § 41.032, as their handling of the confrontation with Austin Bryan led to discretionary decisions that “were concerning the scope and manner in which [the agency] conducts an investigation,” based on the policies of the METRO police, and did not “violate a mandatory directive.” Vickers, 228 F.3d at 951 (citations omitted).
Fourth, the district court did not err by finding that defendants could not be liable for punitive damages arising out of the state law claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), bars Appel*135lants for recovering punitive damages in their § 1983 claim against the municipality or the METRO police, and Nev.Rev.Stat. § 41.035(1) bars punitive damages arising out of the state claims for both the individual officers and for the METRO police. Appellants’ punitive damages claim against individual officers in their § 1983 claim fail as well, because the officers’ conduct did not involve reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
However, the district court erred in granting summary judgment to Officer Rubio on qualified immunity grounds because a key fact is disputed. The factual dispute is over whether Rubio identified himself as a police officer prior to ordering Bryan to drop his gun and before shooting him. Had Rubio failed to identify himself as a police officer before telling Bryan to drop his gun — as Bryan and his mother claim — Bryan would have had no duty to drop his gun (or else be shot) at the insistence of an unidentified intruder. The existence of this factual dispute was explicitly recognized by the district court but thought not to preclude summary judgment. However, on summary judgment all justifiable inferences must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
This case is thus similar to Sledd v. Lindsay, 102 F.3d 282, 288 (7th Cir.1996), where the Seventh Circuit held the officers were not entitled to qualified immunity under the plaintiffs version of events. There, the plaintiff alleged that the officers broke into his home without announcing themselves and without wearing any police insignia. Id. at 285-86. The plaintiff, believing the officers to be unlawful intruders, grabbed his gun and was then shot by the police. Id. at 286. The court identified two “crucial” factual questions precluding summary judgment: whether the officers announced their presence and whether they were justified in shooting the plaintiff under the circumstances. Id. at 288. The court’s holding is readily applicable here: “Given the significance of the disputed issues of fact here, qualified immunity from suit is effectively unavailable, even though after a full trial the officers may yet prevail on the merits.” Id.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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M. SMITH, Circuit Judge,
concurring in part and dissenting in part:
I would uphold the district court’s grant of summary judgment as to all defendants, including Officer Rubio. I acknowledge that the district court concluded that “[wjhether the officers actually announced their presence is in dispute.” However, the district court also recognized that there were other important, uncontested facts at issue in this case, and understood that we are to analyze such cases with an eye towards “the totality of the facts and circumstances in the particular case.” Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005). Specifically, the district court noted that it was undisputed that the officers had a firsthand report that Bryan had threatened an individual with a gun, that Bryan answered the door with his gun pointing out the door, and that Bryan failed to immediately drop his gun to the ground when the officers ordered him to do so. Additionally, Bryan lived in a neighborhood that was so dangerous that his mother slept each night with a gun under her pillow for protection.
*136I respectfully disagree with the majority’s view that the decision in Sledd v. Lindsay, 102 F.3d 282 (7th Cir.1996), is similar to this case. In Sledd, officers broke into the plaintiffs home while the plaintiff was upstairs preparing to shower. Id. at 286. The plaintiff was unaware of the officers’ presence until he went downstairs and saw them rushing into his home, armed, and not wearing full uniforms. Id. The plaintiff had just run back to his bedroom to tell his fiancee what was happening when he saw a man with a gun standing at his bedroom door, wearing blue jeans, a blue jacket, and white tennis shoes. Id. Under those facts, the plaintiff understandably feared that the would-be officers were unlawful intruders and thought to grab his gun to protect himself and his fiancee. Id. Moreover, the officers had the opportunity to possibly avoid a conflict by announcing their presence after they entered the home or by not pursuing the plaintiff upstairs.
Officer Rubio did not have the same luxury. The officers rang the doorbell and knocked on Bryan’s door, waited outside Bryan’s apartment while he answered, and were in uniform. Bryan responded immediately by pointing his gun out the door. Therefore, unlike the officers in Sledd, Officer Rubio had a significant reason to question Bryan’s motives in brandishing a gun, and to use force in response, in order to possibly save his life, and the lives of his fellow officers.
To evaluate the reasonableness of the force used, we must view the totality of circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The standard is not one of certainty, but of reasonableness. See Price v. Sery, 513 F.3d 962, 971 (9th Cir.2008) (stating that the “touchstone of the inquiry is reasonableness” (internal quotation marks omitted)). Officer. Rubio was not required to wait until he was absolutely certain that Bryan was going to shoot him, or his fellow officers. Officer Rubio faced a dangerous situation and had to make a split-second decision. Even if the police did not announce their presence, given the totality of circumstances recited above, I believe that Officer Rubio could have reasonably believed that Bryan “pose[d] a significant threat of death or serious physical injury” to himself and his fellow officers, and that deadly force was justified. Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) (internal quotation marks omitted). Accordingly, I am unwilling to second-guess his actions from the comfort of my chambers years after the fact, and I respectfully dissent.
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MEMORANDUM **
Maureen Uche-Uwakwe (“Uche-Uwakwe”) appeals the district court’s denial of her Rule 60(b) motion to vacate and set aside the court’s summary judgment in favor of defendant, the Secretary of Veterans Affairs (“Secretar"). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion and reverse and remand.
The district court abused its discretion in concluding that Uche-Uwakwe’s failure to timely file an opposition to the Secretary’s motion for summary judgment was not excusable neglect, and thus erred in granting summary judgment based solely on the moving papers. Determining whether neglect is excusable requires a court to balance “the danger or prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, ... and whether the movant acted in good faith.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (quoting Pio*138neer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
Each Briones/Pioneer factor favors Uche-Uwakwe. Having already filed his reply to Uche-Uwakwe’s opposition,1 the Secretary will suffer no prejudice beyond the loss of a quick victory. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir.2000) (losing a quick victory is insufficient prejudice to justify denying a Rule 60(b)(1) motion). On the date the district court submitted the Secretary’s summary judgment motion on the moving papers, Uche-Uwakwe’s opposition was only thirteen days late — a minimal delay in light of three years of litigation. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir.2004) (en banc). Additionally, the district court failed to discuss what impact the delay had, or will have, on the judicial proceedings. Briones, 116 F.3d at 381. Uwakwe’s reason for not filing her opposition on time — not having received a transcript from her deposition of one of the defendants2 — is sufficiently legitimate. See Pincay, 389 F.3d at 855 (reversing denial of Rule 60(b) motion where delay was caused by paralegal miscalculating a filing deadline); Bateman, 231 F.3d at 1223 (finding a Rule 60(b) motion should have been granted where delay caused by attorney needing to recover from jet lag and catch up on his mail for two weeks). Finally, while Uche-Uwakwe’s counsel may have “show[n] a lack of regard for his client’s interests and the court’s docket[,] ... there is no evidence that he acted with anything less than good faith.” Bateman, 231 F.3d at 1225.
We recognize that Uche-Uwakwe’s counsel was remiss with respect to several local rules and deadlines. Rule 60(b), however, is “remedial in nature and ... must be liberally applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir.2001). This is particularly true where, as here, refusal to grant the Rule 60(b) motion results in a one-sided adjudication of the merits. The district court arrived at its resolution on the “merits” by merely reviewing the allegations of the complaint against the evidence submitted by the defendants. The court ultimately concluded that Uche-Uwakwe’s “bare allegations” and lack of evidence supporting her claims warranted judgment in favor of the defendants. However, because Uche-Uwakwe’s sole opportunity to provide such evidence was thwarted by her counsel’s excusable neglect, the Rule 60 motion should have been granted.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. While the district court docket reflects that Uche-Uwakwe's opposition to summary judgment was never received by the court, defendants received a copy of her opposition on September 20, 2007. The Secretary filed his reply to Uche-Uwakwe's opposition with the district court on September 26, 2007.
. Uche-Uwakwe did not raise this reason in her Rule 60(b) motion. The district court’s summary judgment order stated that Uche-Uwakwe had failed to file her opposition by the date stipulated by the parties. Uche-Uwakwe, apparently erroneously, interpreted this to mean that the stipulation had been approved. She thus directed her Rule 60(b) motion to explaining why she failed to file the opposition by the stipulated date. Prior to the summary judgment order, the district court had not explicitly approved or denied the stipulation. According to the local rules, stipulations are only effective when approved by the district court. However, in light of the ambiguity in the district court’s order, we conclude that Uche-Uwakwe’s reading of the summary judgment order was reasonable.
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MEMORANDUM **
Lyudmyla, Andriy, Ruvin and Roman Polinkevych petition this court for review of the Board of Immigration Appeals’s decision dismissing their due process challenges to the IJ’s denial of their applications for asylum, withholding of removal, and CAT relief. We review de novo constitutional due process challenges to immigration decisions. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009).
Unlike the petitioner in Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir.1999), the Polinkevyehs were given adequate notice that they may be removed to Ukraine. *140Moreover, when the IJ designated Ukraine as the country of removal, the Polinkev-yehs’ counsel did not object or ask for an opportunity to present additional evidence.
The IJ provided the Polinkevychs with a reasonable opportunity to present their evidence. See Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.2004). To the extent an IJ owes an immigrant represented by counsel a duty to develop the record, the IJ in this case adequately developed the record. The government’s counsel is not responsible for developing the record on an immigrant’s behalf because that duty would create a conflict of interest. See Lacsina Pangilinan v. Holder, 568 F.3d 708, 709-10 (9th Cir.2009). The Polinkev-ychs’ argument that their counsel failed to develop the record is undercut by their express disclaimer of an ineffective assistance claim.
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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*141MEMORANDUM **
Anthony Wayne Jones appeals from the 62-month sentence imposed following his guilty plea to bank fraud, aggravated identity theft and conspiracy, in violation of 18 U.S.C. §§ 1344, 1028A and 371, respectively. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Wayne contends his sentence is unreasonable because the district court did not adequately consider the factors listed in 18 U.S.C. § 3553(a), including Jones’s mitigation argument as to his personal history. We disagree. The sentence is procedurally reasonable in that it was correctly calculated. See United States v. Stoterau, 524 F.3d 988, 998 (9th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 957, 173 L.Ed.2d 153 (2009); United States v. Carty, 520 F.3d 984, 993 (9th Cir.) (en banc), cert. denied sub nom Zavala v. United States, — U.S. —, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008). Moreover, the record reflects the district court considered the § 3553(a) factors and the parties’ arguments. See Stoterau, 524 F.3d at 999 (explaining that district court does not abuse its discretion in listening to a defendant’s arguments, then finding circumstances insufficient to warrant a lower sentence). We conclude the sentence is reasonable. See Carty, 520 F.3d at 993.
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 **
The Securities and Exchange Commission (“SEC”) filed a complaint against Thomas Gillespie (“Gillespie”) and Aqua Vie Beverage Corporation (“Aqua Vie”) alleging violations of Sections 10(b) and 13(a) of the Exchange Act, and Sections 5(a) and 17(a) of the Securities Act. The district court granted summary judgement in favor of the SEC on all claims. Gillespie appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
Gillespie first argues that the district court erred in concluding that there were no genuine issues of material fact regarding whether Gillespie violated Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act. To prove a violation of Section 17(a) or Section 10(b), the SEC must establish that there was a(l) misstatement or omission of (2) material fact, (3) made with scienter. Ponce v. SEC, 345 F.3d 722, 729 (9th Cir.2003). Here, the district court properly determined that Aqua Vie made three misstatements of material fact: (1) Aqua Vie’s inflated stock price projection of $5.25; (2) Aqua Vie’s inflated 2003 revenue projection of $6.5 to $7 million; and (3) Aqua Vie’s statement that “patented technology was a barrier to entry” by competitors. Id. These statements were material because they were “so obviously important to an investor, that reasonable minds cannot differ on the question of materiality.” TSC Industries Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976). Gillespie acted with scienter because the projections represented an *131“extreme departure from the standards of ordinary care.” Hollinger v. Titan Capital Corp, 914 F.2d 1564, 1568-69 (9th Cir.1990) (en banc).
II.
Gillespie also argues that district court erred in concluding that there were no genuine issues of material fact regarding whether Aqua Vie violated the reporting provisions of Section 13(a) of the Exchange Act. To prove a violation of Section 13(a), the SEC must establish that the alleged misstatement or omission was material. See United States v. Berger, 473 F.3d 1080, 1098 (9th Cir.2007). Here, taking the facts in the light most favorable to Gillespie, Aqua Vie’s failure to disclose its relationship with Fax.com was material because it directly related to Aqua Vie’s financial condition. See SEC v. Murphy, 626 F.2d 633, 640 (9th Cir.1980) (stating that “the materiality of information relating to financial condition, solvency and profitability is not subject to serious challenge”).
III.
Gillespie next argues that the district court erred in concluding that there were no genuine issues of material fact regarding whether Aqua Vie violated the reporting provisions of Section 5 of the Securities Act by facilitating the sale of unregistered stock through Joseph Wozniak, an Aqua Vie consultant. We have “ ‘reeognize[d] that [a defendant’s] role in the transaction must be a significant one before [Section 5] liability will attach.’” SEC v. Phan, 500 F.3d 895, 906 (9th Cir.2007) (quoting Murphy, 626 F.2d at 648, 652). A significant role is defined as including, “one who is both a ‘necessary participant’ and ‘substantial factor’ in the sales transaction.” Id. Here, Gillespie played a significant role and was a necessary participant in Wozniak’s sale of unregistered stocks. Moreover, Wozniak’s unregistered stock sales were not, as Gillespie argues, exempt from registration under Section 4(1) of the Securities Act or Rule 144(k). See Murphy, 626 F.2d at 648 (explaining that Section 4(1) “is inapplicable in cases involving a distribution of new securities by an issuer,” even if “the defendant is not itself ‘an issuer, underwriter, or dealer’ ”). Accordingly, the district court properly granted summary judgment on the SEC’s Section 5(a) claims.
IV.
Finally, Gillespie argues that the district court erred by ordering disgorgement and by imposing an injunction, an officer and director bar, a penny stock bar, and a civil penalty. The district court’s disgorgement order was proper because Gillespie was the principal owner of Aqua Vie and “he received substantial personal benefit from the infusion of the illegally obtained proceeds.” SEC v. First Pac. Bancorp, 142 F.3d 1186, 1192 (9th Cir.1998). Moreover, the injunction, officer and director bar, penny stock bar, and civil penalty were appropriate remedies because Gillespie acted recklessly. See, e.g., 15 U.S.C. § 78u(d)(3)(B).
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 **
Austin Bryan and the Estate of Glenna Bryan appeal from the district court’s summary judgment in their 42 U.S.C. § 1983 excessive force action against the Las Vegas Metropolitan Police Department (METRO police) and four of its officers. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we do not recount them here except as necessary to explain our decision.
First, the district court did not err by finding that the three defendants who did not fire at Austin Bryan were entitled to summary judgment because Appellants failed to show that the officers participated in any behavior that caused the deprivation of any right. Officers who are merely present at the time of an unlawful search cannot be held liable under § 1983 without evidence of “either integral participation or personal involvement.” Jones v. Williams, 297 F.3d 930, 936 (9th Cir.2002). Appellants do not allege that these three officers fired shots or engaged in any other activities that might be construed as excessive force. See Duran v. City of Maywood, 221 F.3d 1127, 1131 (9th Cir.2000) (concluding *134that uniformed officers did not act unreasonably in walking up a driveway with their guns drawn without announcing their presence when responding to a report that shots had been fired); see also Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.2002) (noting a plaintiff may not “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided”).
Second, the district court did not err in dismissing Appellants’ municipal liability claims after finding that Appellants failed to meet them burden of proving a policy allowing unreasonable use of deadly force. The Appellants do not offer any proof that the METRO police had a policy or practice that showed deliberate disregard for Appellants’ constitutional rights, or any proof that a METRO policy or practice was the moving force behind any constitutional violations. See Gibson v. County of Washoe, 290 F.3d 1175, 1185 (9th Cir.2002). Thus, the district court was correct in determining that the Appellants’ claims against METRO police cannot stand.
Third, the district court did not err in granting summary judgment on Appellants’ state law causes of action. The district court, pursuant to Nev.Rev.Stat. § 41.032, granted summary judgment as to the state law claims on the basis of state law discretionary-act immunity, citing University of Nevada, Reno v. Stacey, 116 Nev. 428, 997 P.2d 812, 816 (2000). Although this is the correct result, the Nevada Supreme Court has modified its state law discretionary-act immunity doctrine since Stacey. See Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). Martinez adopted the general principles of federal jurisprudence as to discretionary-function immunity, id. at 727, holding that the actions of state actors are entitled to discretionary-act immunity if their decision (1) involves an element of individual judgment or choice and (2) is based on considerations of social, economic, or political policy, id. at 729. The Nevada Supreme Court clarified that “decisions at all levels of government, including frequent or routine decisions, may be protected by discretionary-act immunity, if the decisions require analysis of government policy concerns.” Id.
Appellees bring state law claims against the METRO police for negligent training and/or supervision. As noted, Nevada looks to federal decisional law for guidance on what type of conduct discretionary immunity protects. See id. at 727-28. Our court has held that “decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield.” Vickers v. United States, 228 F.3d 944, 950 (9th Cir.2000). Because Nevada looks to federal case law to determine the scope of discretionary immunity, and because federal case law consistently holds that training and supervision are acts entitled to such immunity, METRO police is entitled to discretionary immunity on this claim. The actions of the individual officers are also protected under Nev.Rev.Stat. § 41.032, as their handling of the confrontation with Austin Bryan led to discretionary decisions that “were concerning the scope and manner in which [the agency] conducts an investigation,” based on the policies of the METRO police, and did not “violate a mandatory directive.” Vickers, 228 F.3d at 951 (citations omitted).
Fourth, the district court did not err by finding that defendants could not be liable for punitive damages arising out of the state law claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), bars Appel*135lants for recovering punitive damages in their § 1983 claim against the municipality or the METRO police, and Nev.Rev.Stat. § 41.035(1) bars punitive damages arising out of the state claims for both the individual officers and for the METRO police. Appellants’ punitive damages claim against individual officers in their § 1983 claim fail as well, because the officers’ conduct did not involve reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
However, the district court erred in granting summary judgment to Officer Rubio on qualified immunity grounds because a key fact is disputed. The factual dispute is over whether Rubio identified himself as a police officer prior to ordering Bryan to drop his gun and before shooting him. Had Rubio failed to identify himself as a police officer before telling Bryan to drop his gun — as Bryan and his mother claim — Bryan would have had no duty to drop his gun (or else be shot) at the insistence of an unidentified intruder. The existence of this factual dispute was explicitly recognized by the district court but thought not to preclude summary judgment. However, on summary judgment all justifiable inferences must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
This case is thus similar to Sledd v. Lindsay, 102 F.3d 282, 288 (7th Cir.1996), where the Seventh Circuit held the officers were not entitled to qualified immunity under the plaintiffs version of events. There, the plaintiff alleged that the officers broke into his home without announcing themselves and without wearing any police insignia. Id. at 285-86. The plaintiff, believing the officers to be unlawful intruders, grabbed his gun and was then shot by the police. Id. at 286. The court identified two “crucial” factual questions precluding summary judgment: whether the officers announced their presence and whether they were justified in shooting the plaintiff under the circumstances. Id. at 288. The court’s holding is readily applicable here: “Given the significance of the disputed issues of fact here, qualified immunity from suit is effectively unavailable, even though after a full trial the officers may yet prevail on the merits.” Id.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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M. SMITH, Circuit Judge,
concurring in part and dissenting in part:
I would uphold the district court’s grant of summary judgment as to all defendants, including Officer Rubio. I acknowledge that the district court concluded that “[wjhether the officers actually announced their presence is in dispute.” However, the district court also recognized that there were other important, uncontested facts at issue in this case, and understood that we are to analyze such cases with an eye towards “the totality of the facts and circumstances in the particular case.” Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005). Specifically, the district court noted that it was undisputed that the officers had a firsthand report that Bryan had threatened an individual with a gun, that Bryan answered the door with his gun pointing out the door, and that Bryan failed to immediately drop his gun to the ground when the officers ordered him to do so. Additionally, Bryan lived in a neighborhood that was so dangerous that his mother slept each night with a gun under her pillow for protection.
*136I respectfully disagree with the majority’s view that the decision in Sledd v. Lindsay, 102 F.3d 282 (7th Cir.1996), is similar to this case. In Sledd, officers broke into the plaintiffs home while the plaintiff was upstairs preparing to shower. Id. at 286. The plaintiff was unaware of the officers’ presence until he went downstairs and saw them rushing into his home, armed, and not wearing full uniforms. Id. The plaintiff had just run back to his bedroom to tell his fiancee what was happening when he saw a man with a gun standing at his bedroom door, wearing blue jeans, a blue jacket, and white tennis shoes. Id. Under those facts, the plaintiff understandably feared that the would-be officers were unlawful intruders and thought to grab his gun to protect himself and his fiancee. Id. Moreover, the officers had the opportunity to possibly avoid a conflict by announcing their presence after they entered the home or by not pursuing the plaintiff upstairs.
Officer Rubio did not have the same luxury. The officers rang the doorbell and knocked on Bryan’s door, waited outside Bryan’s apartment while he answered, and were in uniform. Bryan responded immediately by pointing his gun out the door. Therefore, unlike the officers in Sledd, Officer Rubio had a significant reason to question Bryan’s motives in brandishing a gun, and to use force in response, in order to possibly save his life, and the lives of his fellow officers.
To evaluate the reasonableness of the force used, we must view the totality of circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The standard is not one of certainty, but of reasonableness. See Price v. Sery, 513 F.3d 962, 971 (9th Cir.2008) (stating that the “touchstone of the inquiry is reasonableness” (internal quotation marks omitted)). Officer. Rubio was not required to wait until he was absolutely certain that Bryan was going to shoot him, or his fellow officers. Officer Rubio faced a dangerous situation and had to make a split-second decision. Even if the police did not announce their presence, given the totality of circumstances recited above, I believe that Officer Rubio could have reasonably believed that Bryan “pose[d] a significant threat of death or serious physical injury” to himself and his fellow officers, and that deadly force was justified. Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) (internal quotation marks omitted). Accordingly, I am unwilling to second-guess his actions from the comfort of my chambers years after the fact, and I respectfully dissent.
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MEMORANDUM **
Maureen Uche-Uwakwe (“Uche-Uwakwe”) appeals the district court’s denial of her Rule 60(b) motion to vacate and set aside the court’s summary judgment in favor of defendant, the Secretary of Veterans Affairs (“Secretar"). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion and reverse and remand.
The district court abused its discretion in concluding that Uche-Uwakwe’s failure to timely file an opposition to the Secretary’s motion for summary judgment was not excusable neglect, and thus erred in granting summary judgment based solely on the moving papers. Determining whether neglect is excusable requires a court to balance “the danger or prejudice to the [other party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, ... and whether the movant acted in good faith.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (quoting Pio*138neer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
Each Briones/Pioneer factor favors Uche-Uwakwe. Having already filed his reply to Uche-Uwakwe’s opposition,1 the Secretary will suffer no prejudice beyond the loss of a quick victory. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir.2000) (losing a quick victory is insufficient prejudice to justify denying a Rule 60(b)(1) motion). On the date the district court submitted the Secretary’s summary judgment motion on the moving papers, Uche-Uwakwe’s opposition was only thirteen days late — a minimal delay in light of three years of litigation. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir.2004) (en banc). Additionally, the district court failed to discuss what impact the delay had, or will have, on the judicial proceedings. Briones, 116 F.3d at 381. Uwakwe’s reason for not filing her opposition on time — not having received a transcript from her deposition of one of the defendants2 — is sufficiently legitimate. See Pincay, 389 F.3d at 855 (reversing denial of Rule 60(b) motion where delay was caused by paralegal miscalculating a filing deadline); Bateman, 231 F.3d at 1223 (finding a Rule 60(b) motion should have been granted where delay caused by attorney needing to recover from jet lag and catch up on his mail for two weeks). Finally, while Uche-Uwakwe’s counsel may have “show[n] a lack of regard for his client’s interests and the court’s docket[,] ... there is no evidence that he acted with anything less than good faith.” Bateman, 231 F.3d at 1225.
We recognize that Uche-Uwakwe’s counsel was remiss with respect to several local rules and deadlines. Rule 60(b), however, is “remedial in nature and ... must be liberally applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir.2001). This is particularly true where, as here, refusal to grant the Rule 60(b) motion results in a one-sided adjudication of the merits. The district court arrived at its resolution on the “merits” by merely reviewing the allegations of the complaint against the evidence submitted by the defendants. The court ultimately concluded that Uche-Uwakwe’s “bare allegations” and lack of evidence supporting her claims warranted judgment in favor of the defendants. However, because Uche-Uwakwe’s sole opportunity to provide such evidence was thwarted by her counsel’s excusable neglect, the Rule 60 motion should have been granted.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. While the district court docket reflects that Uche-Uwakwe's opposition to summary judgment was never received by the court, defendants received a copy of her opposition on September 20, 2007. The Secretary filed his reply to Uche-Uwakwe's opposition with the district court on September 26, 2007.
. Uche-Uwakwe did not raise this reason in her Rule 60(b) motion. The district court’s summary judgment order stated that Uche-Uwakwe had failed to file her opposition by the date stipulated by the parties. Uche-Uwakwe, apparently erroneously, interpreted this to mean that the stipulation had been approved. She thus directed her Rule 60(b) motion to explaining why she failed to file the opposition by the stipulated date. Prior to the summary judgment order, the district court had not explicitly approved or denied the stipulation. According to the local rules, stipulations are only effective when approved by the district court. However, in light of the ambiguity in the district court’s order, we conclude that Uche-Uwakwe’s reading of the summary judgment order was reasonable.
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MEMORANDUM **
Lyudmyla, Andriy, Ruvin and Roman Polinkevych petition this court for review of the Board of Immigration Appeals’s decision dismissing their due process challenges to the IJ’s denial of their applications for asylum, withholding of removal, and CAT relief. We review de novo constitutional due process challenges to immigration decisions. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009).
Unlike the petitioner in Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir.1999), the Polinkevyehs were given adequate notice that they may be removed to Ukraine. *140Moreover, when the IJ designated Ukraine as the country of removal, the Polinkev-yehs’ counsel did not object or ask for an opportunity to present additional evidence.
The IJ provided the Polinkevychs with a reasonable opportunity to present their evidence. See Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.2004). To the extent an IJ owes an immigrant represented by counsel a duty to develop the record, the IJ in this case adequately developed the record. The government’s counsel is not responsible for developing the record on an immigrant’s behalf because that duty would create a conflict of interest. See Lacsina Pangilinan v. Holder, 568 F.3d 708, 709-10 (9th Cir.2009). The Polinkev-ychs’ argument that their counsel failed to develop the record is undercut by their express disclaimer of an ineffective assistance claim.
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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*141MEMORANDUM **
Anthony Wayne Jones appeals from the 62-month sentence imposed following his guilty plea to bank fraud, aggravated identity theft and conspiracy, in violation of 18 U.S.C. §§ 1344, 1028A and 371, respectively. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Wayne contends his sentence is unreasonable because the district court did not adequately consider the factors listed in 18 U.S.C. § 3553(a), including Jones’s mitigation argument as to his personal history. We disagree. The sentence is procedurally reasonable in that it was correctly calculated. See United States v. Stoterau, 524 F.3d 988, 998 (9th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 957, 173 L.Ed.2d 153 (2009); United States v. Carty, 520 F.3d 984, 993 (9th Cir.) (en banc), cert. denied sub nom Zavala v. United States, — U.S. —, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008). Moreover, the record reflects the district court considered the § 3553(a) factors and the parties’ arguments. See Stoterau, 524 F.3d at 999 (explaining that district court does not abuse its discretion in listening to a defendant’s arguments, then finding circumstances insufficient to warrant a lower sentence). We conclude the sentence is reasonable. See Carty, 520 F.3d at 993.
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 **
Armando Ramirez appeals from the 235-month sentence imposed following his guilty-plea conviction for conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdic*142tion pursuant to 28 U.S.C. § 1291, and we affirm.
Ramirez contends the district court erred by denying a minor role adjustment under U.S.S.G. § 3B1.2. We conclude the district court did not clearly err in denying the adjustment. See United States v. Cantrell, 433 F.3d 1269, 1282-83 (9th Cir.2006).
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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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Young petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for return of property pursuant to Fed.R.Crim.P. 41(g). He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court has scheduled a hearing on Young’s motion. Accordingly, because the district court has recently acted in Young’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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MEMORANDUM **
Armando Ramirez appeals from the 235-month sentence imposed following his guilty-plea conviction for conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdic*142tion pursuant to 28 U.S.C. § 1291, and we affirm.
Ramirez contends the district court erred by denying a minor role adjustment under U.S.S.G. § 3B1.2. We conclude the district court did not clearly err in denying the adjustment. See United States v. Cantrell, 433 F.3d 1269, 1282-83 (9th Cir.2006).
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 **
Lawrence Duane Taylor appeals from the district court’s denial of his motion for a sentence reduction pursuant 18 U.S.C. § 3582(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*143Taylor contends the district court had authority to lower his sentence pursuant to 18 U.S.C. § 3582(c) because his sentence was based on a range that has since been lowered by Amendment 706 to the United States Sentencing Guidelines. This contention is foreclosed by United States v. Paulk, 569 F.3d 1094 (9th Cir.2009), because Taylor received a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(iii). See also United States v. Bride, 581 F.3d 888, 889-90 (9th Cir.2009) (holding district court lacked authority to reduce sentence that was not based on a sentencing range that has subsequently been lowered by the Sentencing Commission).
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 ***
Gurjit Singh Dhaliwal, a native and citizen of India, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
Background
After holding four hearings on this case, the IJ initially made an adverse credibility determination and denied Dhaliwal’s petitions for relief. Dhaliwal appealed the IJ’s decision to the BIA and noted that a portion of the transcript of one of the hearings before the IJ was missing. The BIA returned the case to the IJ for preparation of a complete transcript. The IJ held a fifth hearing to supplement the record, reiterated his adverse credibility determination, and certified the case to the BIA. The BIA upheld the IJ’s denial of relief on the basis of an adverse credibility determination and dismissed Dhaliwal’s appeal.
Jurisdiction
We have jurisdiction to review only those issues that Dhaliwal raised on appeal to the BIA, thereby exhausting all available administrative remedies. 8 U.S.C. § 1252(d)(1) (2006); see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (noting that this Court does not have subject matter jurisdiction over claims not presented hi administrative proceedings below). Because Dhaliwal did not challenge the IJ’s denial of withholding or protection under the CAT in his appeal to the BIA, we lack subject matter jurisdiction over them. Id.
Nor do we have jurisdiction over Dhaliwal’s challenge to the BIA’s finding *149that the supplementary transcript prepared by the IJ completed the record. Id. Dhaliwal’s passing reference to this issue in his brief to the BIA “did not provide the BIA with notice of the issue[ ] [Dhaliwal] now presents to us” regarding the alleged inadequacy of the transcript and was therefore insufficient to exhaust his administrative remedies. Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004).
We do have jurisdiction, however, over Dhaliwal’s challenge to the IJ’s adverse credibility determination pursuant to 8 U.S.C. § 1252, because that claim has been exhausted in his appeal to the BIA.
Discussion
“ We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.’” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006)). Because a reasonable factfinder could have concluded that Dhaliwal’s testimony was not credible, we deny his petition.
There are two primary inconsistencies in Dhaliwal’s testimony that support the IJ’s adverse credibility determination. First, Dhaliwal testified that he maintained long hair in the Sikh tradition until it was cut for the first time by the police during his arrest and detention in November 2001. This assertion was contradicted by his driver’s license, dated March 1998, which pictures him with short hair. This inconsistency was significant and struck at the heart of Dhaliwal’s claim because it called into question the veracity of his claims about his arrest and treatment by the police. Second, Dhaliwal’s attempts to resolve this inconsistency by presenting numerous contradictory stories about how the license picture had been changed in 2001, further damaged his credibility.
The IJ’s adverse credibility determination was supported by substantial evidence in the record, and we affirm it.
The petition for review is dismissed in part and denied in part.
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 **
Cathy Howard brought claims against her former employer, Milwaukie Convalescent Hospital, Inc. (“MCH”) for 1) wrongful termination under state law, 2) violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) and 3) violation of the Oregon Family Leave Act, Or.Rev.Stat. 659A.150 et seq. (“OFLA”). The district court granted MCH’s motion for summary judgment and Howard appealed. We review de novo a district court’s order granting summary judgment. See, e.g., Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004).
Howard did not adduce sufficient evidence to withstand a motion for summary judgment as to any of the claims on appeal. To prevail on a wrongful discharge claim, the employee must establish a “causal connection” between a protected activity (in this case reporting another nurse to the Oregon Board of Nursing) and the discharge. Estes v. Lewis and Clark Coll., 152 Or.App. 372, 954 P.2d 792, 796-97 (1998), rev. denied, 327 Or. 583, 971 P.2d 411 (1998). To prevail on her FMLA and OFLA claims, Howard must show that she was terminated for engaging in an activity protected by those statutes (in this case for inquiring as to her rights under these acts). We apply the McDonnell-Douglas burden-shifting analysis to such claims. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001). Thus, assuming without deciding that Howard established a prima facie case with respect to each claim, each claim will still fail if Howard did not adduce evidence sufficient to raise a triable issue of fact that MCH’s proffered justification was pretextual.
Howard did not adduce sufficient evidence to do so. Howard admits that she copied and removed confidential records from the hospital, a serious offense. The record indicates that, at both the time of discharge and on appeal, MCH asserted Howard was fired for copying and removing the records. Because Howard did not proffer sufficient evidence to allow a fact finder to conclude that MCH’s justification was pretextual, the district court properly *151granted MCH’s motion for summary judgment.
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 *
The Estate of Mitchell appeals the district court’s grant of summary judgment with respect to its breach of contract and declaratory judgment action against American Reliable Insurance Company (“ARIC”). ARIC cross-appeals the district court’s order extending the time to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1). We affirm the district court’s order extending the time to file an appeal, reverse its grant of summary judgment, and remand for further proceedings.
“We review for abuse of discretion a district court’s decision to grant or deny a motion for an extension of time to file a notice of appeal.” Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir.2004) (en banc). “We review the grant or denial of summary judgment de novo,” viewing evidence in the light most favorable to the nonmoving party. Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004).
I. Extension of Time to File Appeal
Lucas Foust was appellant’s counsel of record, and he had notice that judgment had been entered. Because “notice served upon a party’s attorney of record is adequate,” Guam Econ. Dev. Auth. v. Ulloa, 841 F.2d 990, 993 (9th Cir.1988), the district court erred in concluding that appellants were entitled to reopen the time to file an appeal under Fed.R.App. P. 4(a)(6).
ARIC contends that the panel may not affirm the district court’s order on alternative grounds. However, an “argument!] that supports] the judgment as entered can be made without a cross-appeal.” Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1041 (9th Cir.1992). Here, counsel for the Estate of Mitchell were entitled to reopen the time to file an appeal under Fed.R.App. P. 4(a)(5).
Although this court has declined to delineate a rigid rule for identifying inexcusable neglect, see Pincay, 389 F.3d at 860, in the instant case the record amply supports a finding of excusable neglect. ARIC anticipated an appeal and thus was not prejudiced. The thirteen-day delay had no significant impact on the proceedings. The electronic failure was beyond the parties’ control. Buckley’s reliance on the advice of his electronic service provider was reasonable. The court had Buckley’s information, and Foust could not be expected to anticipate Buckley’s e-mail failure. Further, all of the relevant parties acted in good faith. Buckley diligently filed the motion within three days of discovering that the server failed. Accordingly, Buckley’s failure to request an extension of time to file in a timely manner was excusable neglect pursuant to Fed.R.App. P. 4(a)(5), see Pioneer Inv. Servs. *153Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and the district court did not abuse its discretion when it allowed the appellants to reopen the time to file an appeal. Accordingly, we affirm the district court’s order reopening the time to file an appeal.
II. Duty to Defend
The language of an insurance policy governs if it is clear and explicit, Wellcome v. Home Ins. Co. (1993) 257 Mont. 354, 356, 849 P.2d 190, 192 (citations omitted). Exclusions are construed narrowly and ambiguities are construed against the insurer. Id. The provision excluding injuries “arising out of’ the use of a motor vehicle is “reasonably subject to more than one interpretation.” Pablo v. Moore, 2000 MT 48, ¶ 16, 298 Mont. 393, ¶ 16, 995 P.2d 460, ¶ 16. Thus, whether the ARIC policy covered a claim for negligence independent of the use of a vehicle, such as the Sumidas’ claims for negligent supervision and negligent entrustment, is ambiguous under Montana law and must be construed against ARIC. Therefore, ARIC breached its duty when it refused to defend the insured. See Nielsen v. TIG Ins. Co., 442 F.Supp.2d 972, 976 (D.Mont.2006).
Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this decision.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part 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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IKUTA, Circuit Judge,
dissenting:
Although I agree with the majority that the district court erred in its application of Fed. R.App. P. 4(a)(6), I disagree with the majority’s decision that it can rely on Fed. R.App. P. 4(a)(5) to uphold the district court’s erroneous ruling. In determining whether a party is entitled to relief from a procedural error under Rule 4(a)(5), a district court must apply the factors set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). An en banc panel of this court held that we must “leave the weighing of Pioneer’s equitable factors to the discretion of the district court in every case.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir.2004) (en banc). Instead of following Pincay, the majority accepts as fact the Estate’s allegations that ARIC anticipated an appeal, that the thirteen-day delay had no significant impact on the proceedings, and that the electronic failure was beyond the parties’ control. Maj. Op. at 152. The majority then makes its own finding that all of the relevant parties acted in good faith. Id. Based on these findings, the majority resolves the equities in the Estate’s favor.
As noted in oral argument, however, ARIC had no opportunity to argue the equities or dispute any of these supposed facts, and it is not our role here to engage in factfinding. We stated in Pincay that “the decision whether to grant or deny an extension of time to file a notice of appeal should be entrusted to the discretion of the district court because the district court is in a better position than we are” to determine the facts and evaluate the relevant factors. 389 F.3d at 859. Therefore, I would reverse and remand for the district court to exercise its discretion under Rule 4(a)(5).
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MEMORANDUM **
Lawrence Duane Taylor appeals from the district court’s denial of his motion for a sentence reduction pursuant 18 U.S.C. § 3582(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*143Taylor contends the district court had authority to lower his sentence pursuant to 18 U.S.C. § 3582(c) because his sentence was based on a range that has since been lowered by Amendment 706 to the United States Sentencing Guidelines. This contention is foreclosed by United States v. Paulk, 569 F.3d 1094 (9th Cir.2009), because Taylor received a mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(iii). See also United States v. Bride, 581 F.3d 888, 889-90 (9th Cir.2009) (holding district court lacked authority to reduce sentence that was not based on a sentencing range that has subsequently been lowered by the Sentencing Commission).
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 *
Plaintiff-Appellant, Jeffery Long (“Long”), filed a complaint two days after the expiration of the statute of limitations alleging that his former employer, the Internal Revenue Service, discriminated against him due to his disability. The district court entered summary judgment against Long concluding that he was not entitled to equitable tolling of the 90-day statute of limitations and his complaint was therefore time-barred. Long appeals contending that equitable tolling is warranted because he was hospitalized during the first eight days of the 90-day limitations period. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
At the outset, both parties contend that the district court’s decision not to apply equitable tolling is reviewed for abuse of discretion. That is incorrect. Because the facts here are not disputed, the equitable tolling decision is a legal question which we review de novo. Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir.1986), amended by 815 F.2d 570 (9th Cir.1987).
When the Equal Employment Opportunity Commission dismisses a claim, it must inform the claimant and that he has ninety days to bring a civil action. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 2000e-16(d). The 90-day filing period is a statute of limitations and is subject to the doctrine of equitable tolling. Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir.1992). Equitable tolling, however, is only applied “sparingly” and the court is “much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
The district court did not err in concluding that equitable tolling was not warranted. Long failed to show that his alleged inability to receive notice of his claim due to his hospitalization was anything more than “a garden variety claim of excusable neglect” which does not justify the application of equitable tolling. Id. Long merely provided an invoice from Banner Behavioral Health accompanied by a conclusory statement that he did “not receive the notice of decision nor could [he] have done anything with it until after his release in August 2007.” (Er.4.) Long, *147however, did not allege that he was incapacitated while hospitalized at the Banner facility or that he was prevented from receiving or being apprised of his mail, including the right-to-sue letter that he concedes was received at his residence. “When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993). And while Long purports to rely on his hospitalization at the Banner Behavioral Health facility to show mental incapacity justifying tolling, he does not actually allege, much less offer evidence to show, that he was mentally incapacitated at the time. Cf. Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.1999). Long is not entitled to equitable tolling and his complaint is therefore time-barred.
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 ***
Gurjit Singh Dhaliwal, a native and citizen of India, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
Background
After holding four hearings on this case, the IJ initially made an adverse credibility determination and denied Dhaliwal’s petitions for relief. Dhaliwal appealed the IJ’s decision to the BIA and noted that a portion of the transcript of one of the hearings before the IJ was missing. The BIA returned the case to the IJ for preparation of a complete transcript. The IJ held a fifth hearing to supplement the record, reiterated his adverse credibility determination, and certified the case to the BIA. The BIA upheld the IJ’s denial of relief on the basis of an adverse credibility determination and dismissed Dhaliwal’s appeal.
Jurisdiction
We have jurisdiction to review only those issues that Dhaliwal raised on appeal to the BIA, thereby exhausting all available administrative remedies. 8 U.S.C. § 1252(d)(1) (2006); see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (noting that this Court does not have subject matter jurisdiction over claims not presented hi administrative proceedings below). Because Dhaliwal did not challenge the IJ’s denial of withholding or protection under the CAT in his appeal to the BIA, we lack subject matter jurisdiction over them. Id.
Nor do we have jurisdiction over Dhaliwal’s challenge to the BIA’s finding *149that the supplementary transcript prepared by the IJ completed the record. Id. Dhaliwal’s passing reference to this issue in his brief to the BIA “did not provide the BIA with notice of the issue[ ] [Dhaliwal] now presents to us” regarding the alleged inadequacy of the transcript and was therefore insufficient to exhaust his administrative remedies. Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004).
We do have jurisdiction, however, over Dhaliwal’s challenge to the IJ’s adverse credibility determination pursuant to 8 U.S.C. § 1252, because that claim has been exhausted in his appeal to the BIA.
Discussion
“ We review the BIA’s findings of fact, including credibility findings, for substantial evidence and must uphold the BIA’s finding unless the evidence compels a contrary result.’” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008) (quoting Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006)). Because a reasonable factfinder could have concluded that Dhaliwal’s testimony was not credible, we deny his petition.
There are two primary inconsistencies in Dhaliwal’s testimony that support the IJ’s adverse credibility determination. First, Dhaliwal testified that he maintained long hair in the Sikh tradition until it was cut for the first time by the police during his arrest and detention in November 2001. This assertion was contradicted by his driver’s license, dated March 1998, which pictures him with short hair. This inconsistency was significant and struck at the heart of Dhaliwal’s claim because it called into question the veracity of his claims about his arrest and treatment by the police. Second, Dhaliwal’s attempts to resolve this inconsistency by presenting numerous contradictory stories about how the license picture had been changed in 2001, further damaged his credibility.
The IJ’s adverse credibility determination was supported by substantial evidence in the record, and we affirm it.
The petition for review is dismissed in part and denied in part.
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 **
Cathy Howard brought claims against her former employer, Milwaukie Convalescent Hospital, Inc. (“MCH”) for 1) wrongful termination under state law, 2) violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) and 3) violation of the Oregon Family Leave Act, Or.Rev.Stat. 659A.150 et seq. (“OFLA”). The district court granted MCH’s motion for summary judgment and Howard appealed. We review de novo a district court’s order granting summary judgment. See, e.g., Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004).
Howard did not adduce sufficient evidence to withstand a motion for summary judgment as to any of the claims on appeal. To prevail on a wrongful discharge claim, the employee must establish a “causal connection” between a protected activity (in this case reporting another nurse to the Oregon Board of Nursing) and the discharge. Estes v. Lewis and Clark Coll., 152 Or.App. 372, 954 P.2d 792, 796-97 (1998), rev. denied, 327 Or. 583, 971 P.2d 411 (1998). To prevail on her FMLA and OFLA claims, Howard must show that she was terminated for engaging in an activity protected by those statutes (in this case for inquiring as to her rights under these acts). We apply the McDonnell-Douglas burden-shifting analysis to such claims. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001). Thus, assuming without deciding that Howard established a prima facie case with respect to each claim, each claim will still fail if Howard did not adduce evidence sufficient to raise a triable issue of fact that MCH’s proffered justification was pretextual.
Howard did not adduce sufficient evidence to do so. Howard admits that she copied and removed confidential records from the hospital, a serious offense. The record indicates that, at both the time of discharge and on appeal, MCH asserted Howard was fired for copying and removing the records. Because Howard did not proffer sufficient evidence to allow a fact finder to conclude that MCH’s justification was pretextual, the district court properly *151granted MCH’s motion for summary judgment.
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 *
The Estate of Mitchell appeals the district court’s grant of summary judgment with respect to its breach of contract and declaratory judgment action against American Reliable Insurance Company (“ARIC”). ARIC cross-appeals the district court’s order extending the time to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1). We affirm the district court’s order extending the time to file an appeal, reverse its grant of summary judgment, and remand for further proceedings.
“We review for abuse of discretion a district court’s decision to grant or deny a motion for an extension of time to file a notice of appeal.” Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir.2004) (en banc). “We review the grant or denial of summary judgment de novo,” viewing evidence in the light most favorable to the nonmoving party. Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004).
I. Extension of Time to File Appeal
Lucas Foust was appellant’s counsel of record, and he had notice that judgment had been entered. Because “notice served upon a party’s attorney of record is adequate,” Guam Econ. Dev. Auth. v. Ulloa, 841 F.2d 990, 993 (9th Cir.1988), the district court erred in concluding that appellants were entitled to reopen the time to file an appeal under Fed.R.App. P. 4(a)(6).
ARIC contends that the panel may not affirm the district court’s order on alternative grounds. However, an “argument!] that supports] the judgment as entered can be made without a cross-appeal.” Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1041 (9th Cir.1992). Here, counsel for the Estate of Mitchell were entitled to reopen the time to file an appeal under Fed.R.App. P. 4(a)(5).
Although this court has declined to delineate a rigid rule for identifying inexcusable neglect, see Pincay, 389 F.3d at 860, in the instant case the record amply supports a finding of excusable neglect. ARIC anticipated an appeal and thus was not prejudiced. The thirteen-day delay had no significant impact on the proceedings. The electronic failure was beyond the parties’ control. Buckley’s reliance on the advice of his electronic service provider was reasonable. The court had Buckley’s information, and Foust could not be expected to anticipate Buckley’s e-mail failure. Further, all of the relevant parties acted in good faith. Buckley diligently filed the motion within three days of discovering that the server failed. Accordingly, Buckley’s failure to request an extension of time to file in a timely manner was excusable neglect pursuant to Fed.R.App. P. 4(a)(5), see Pioneer Inv. Servs. *153Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and the district court did not abuse its discretion when it allowed the appellants to reopen the time to file an appeal. Accordingly, we affirm the district court’s order reopening the time to file an appeal.
II. Duty to Defend
The language of an insurance policy governs if it is clear and explicit, Wellcome v. Home Ins. Co. (1993) 257 Mont. 354, 356, 849 P.2d 190, 192 (citations omitted). Exclusions are construed narrowly and ambiguities are construed against the insurer. Id. The provision excluding injuries “arising out of’ the use of a motor vehicle is “reasonably subject to more than one interpretation.” Pablo v. Moore, 2000 MT 48, ¶ 16, 298 Mont. 393, ¶ 16, 995 P.2d 460, ¶ 16. Thus, whether the ARIC policy covered a claim for negligence independent of the use of a vehicle, such as the Sumidas’ claims for negligent supervision and negligent entrustment, is ambiguous under Montana law and must be construed against ARIC. Therefore, ARIC breached its duty when it refused to defend the insured. See Nielsen v. TIG Ins. Co., 442 F.Supp.2d 972, 976 (D.Mont.2006).
Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this decision.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part 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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IKUTA, Circuit Judge,
dissenting:
Although I agree with the majority that the district court erred in its application of Fed. R.App. P. 4(a)(6), I disagree with the majority’s decision that it can rely on Fed. R.App. P. 4(a)(5) to uphold the district court’s erroneous ruling. In determining whether a party is entitled to relief from a procedural error under Rule 4(a)(5), a district court must apply the factors set forth by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). An en banc panel of this court held that we must “leave the weighing of Pioneer’s equitable factors to the discretion of the district court in every case.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir.2004) (en banc). Instead of following Pincay, the majority accepts as fact the Estate’s allegations that ARIC anticipated an appeal, that the thirteen-day delay had no significant impact on the proceedings, and that the electronic failure was beyond the parties’ control. Maj. Op. at 152. The majority then makes its own finding that all of the relevant parties acted in good faith. Id. Based on these findings, the majority resolves the equities in the Estate’s favor.
As noted in oral argument, however, ARIC had no opportunity to argue the equities or dispute any of these supposed facts, and it is not our role here to engage in factfinding. We stated in Pincay that “the decision whether to grant or deny an extension of time to file a notice of appeal should be entrusted to the discretion of the district court because the district court is in a better position than we are” to determine the facts and evaluate the relevant factors. 389 F.3d at 859. Therefore, I would reverse and remand for the district court to exercise its discretion under Rule 4(a)(5).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert C. Lightburn appeals the district court’s order entering judgment in Olin Wooten’s favor on Wooten’s specific performance and unjust enrichment claims against Lightburn. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Wooten v. Lightburn, 579 F.Supp.2d 769 (W.D.Va.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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MEMORANDUM ***
Appellant Dion Paul Dominguez (Dominguez) appeals the sentence imposed following his guilty plea for violation of 18 U.S.C. § 922(g) as a felon in possession of a firearm.
1. We review the constitutionality of a sentence de novo. See United States v. Barajas-Avalos, 377 F.3d 1040, 1060 (9th Cir.2004), as amended. The district court committed no error by applying the enhancement provided for in United States Sentencing Guidelines § 2K2.1(b)(4). Application of the “stolen weapon” enhancement does not require proof of mens rea. See United States v. Goodell, 990 F.2d 497, 498-99 (9th Cir.1993); see also United States v. Gonzalez, 262 F.3d 867, 870 *155(9th Cir.2001) (addressing a similar enhancement for use of a minor in commission of an offense); United States v. Lavender, 224 F.3d 939, 941 (9th Cir.2000) (confirming that no showing of intent to use a dangerous weapon as such is required before applying a “dangerous weapon” enhancement). Contrary to Dominguez’s assertion, nothing in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), lessens the precedential effect of these cases.
2. We review Dominguez’s overall sentence for reasonableness in light of the 18 U.S.C. § 3553(a) factors. United States v. Marcial-Santiago, 447 F.3d 715, 717 (9th Cir.2006). The sentence imposed was reasonable. See United States v. Overton, 573 F.3d 679, 700-01 (9th Cir.2009), as amended (affirming a sentence imposed after the district court’s consideration of defendant’s leniency argument and the § 3553(a) factors.).
3. We review the district court’s denial of a subpoena request pursuant to Federal Rule of Criminal Procedure 17(b) for an abuse of discretion. See United States v. Etimani, 328 F.3d 493, 501 (9th Cir.2003). Any error in denying the subpoena requested by Dominguez was harmless, as it would not have affected the district court’s decision to apply the enhancement. See United States v. Severino, 316 F.3d 939, 948 (9th Cir.2003) (en banc) (applying the harmless error standard).
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 **
In this action to recover benefits allegedly due to an ERISA plan participant, we are called upon to decide whether the district court abused its discretion in ordering the plaintiff to pay attorneys’ fees. The *157district court had jurisdiction under 28 U.S.C. § 1331, 29 U.S.C. § 1132(e)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Under ERISA’s civil enforcement provisions, “a court in its discretion may award fees and costs of an action by a plan participant to either party.” Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir.1980). The district court is to be guided by the Hummell factors. Id. at 453.
In November 2002, Reilly brought an action against Brewer and others (Brewer), alleging essentially claims for recovery of benefits and breach of fiduciary duty (Reilly I). The district court granted Brewer’s motion for summary judgment as to the fiduciary duty claim, and found against Reilly on his claim for recovery of benefits after a bench trial.
In November 2006, Reilly filed this second action against Brewer, again seeking recovery of benefits and alleging breaches of fiduciary duty (Reilly II). Brewer successfully moved to dismiss the Reilly II action as barred by res judicata. Shortly thereafter, Brewer moved for an award of fees pursuant to 29 U.S.C. § 1132(g)(1), requesting $29,704. The district court granted this motion, but awarded Brewer only $14,871.
The district court determined that the first and fourth Hummell factors were either neutral or did not favor an award. The district court found that it had no reason to disbelieve Reilly’s representation that he brought the action in good faith, and that the action was not brought to benefit all participants of an ERISA plan or to resolve a significant legal question.
The district court concluded that the second factor, Reilly’s ability to pay an award of fees, “does not weigh in favor of either party as neither party has presented any convincing evidence about plaintiffs’ current ability or inability to pay an attorney’s fee award.” Reilly argues that the district court abused its discretion because he is “virtually retired.”
But Reilly did not argue that his retirement status made him unable to pay an award of fees before the district court. Reilly presented no evidence supporting his alleged inability to pay. It appears that Brewer’s only evidence on this subject showed that Reilly sold a home in Scottsdale for $1,550,000, and purchased a home in Dallas for $741,000. While Brewer’s evidence is not overwhelming, Reilly presented the district court with no contrary evidence. Under these circumstances, the district court did not abuse its discretion by determining that this factor, Reilly’s ability to pay, did not favor either party.
The district court determined that the factor of deterrence weighed in favor of an award of fees to Brewer. Reilly argues that where, as here, there was no bad faith on the part of the plaintiff, “an assessment of attorney’s fees against an individual plaintiff would have such a chilling effect it would be an abuse of discretion.” We agree with Brewer that Reilly ignores the circumstances of this action: this was a successive action brought shortly after Reilly I was unsuccessful. Like the third amended complaint in Reilly I, the complaint here named the same defendants and stated the same claims for recovery of benefits and breach of fiduciary duty. The circumstances of this action — successive lawsuits brought by a self-represented attorney — also indicate that a “chilling effect” is unlikely to result. The district court did not abuse its discretion in concluding that the goal of deterring repetitive lawsuits weighed in favor of an award of fees here.
The district court concluded that the relative merits factor “favors defendants as they prevailed on their argument *158that plaintiffs claims m this action were precluded by res judicata.” While it appears that a dismissal on the basis of res judicata does not constitute a resolution “on the merits,” neither Hummell, nor the language of 29 U.S.C. § 1132(g), require resolution of the underlying claim on the merits before fees may be awarded. Instead, Hummell asks the district court to assess “the relative merits of the parties’ positions,” Hummell, 634 F.2d at 453, not the merits of the action. Thus, it was not an abuse of discretion to weigh this factor in favor of Brewer.
In sum, the district court did not abuse its discretion in its consideration of the Hummell factors, either individually or in total. However, Reilly argues that our court has “consistently and repeatedly cautioned ... that attorney’s fees should not be charged against ERISA plaintiffs.” While some Ninth Circuit authority may advise caution prior to the award of attorney’s fees against a plaintiff, such cases do not eliminate the possibility of an award of fees to a defendant generally, and certainly do not indicate that the award of fees was inappropriate in this case. We have repeatedly held that in awarding fees pursuant to 29 U.S.C. § 1132(g), “the playing field is level” and the “analysis ... must focus only on the Hummell factors, without favoring one side or the other.” Estate of Shockley v. Alyeska Pipeline Serv. Co., 130 F.3d 403, 408 (9th Cir.1997). Contrary to Reilly’s assertion, the district court did not err.
The district court awarded approximately half the amount of fees requested by Brewer. Reilly asserts, nevertheless, that if an award of fees were appropriate, the district court’s award was excessive. The district court appropriately considered the number of hours expended by counsel and the reasonability of the requested hourly rate. The district court found that the number of hours expended by Vamc was excessive given his experience and “intimate familiarity with the prior lawsuit.” Regarding the requested hourly rate, the court stated that “[w]hile the requested rates of compensation appear to be on the high end of the range of prevailing rates,” the defendants had submitted evidence supporting the requested rates. Reilly offered no evidence to rebut the reasonability of the requested hourly rate. The district court did not abuse its discretion in setting the amount of fees.
In his brief, Brewer requests attorneys’ fees for this appeal. This request must be made by separate motion “supported by a memorandum showing that the party seeking fees is legally entitled to them.” 9th Cir. R. 39-1.6(b).
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 **
Kristine Dali and Donald Crooks, Jr., represent a class (collectively “Appellants”) of unionized grocery store employees who appeal the district court’s denial of their petition for attorney’s fees following remand of the underlying lawsuit to state court. Appellants originally sued Al-bertson’s, Inc. and Ralphs Grocery Company (collectively “Employers”) for terminating their employment without adequate notice during a labor dispute. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On prior appeal in Dall v. Albertson’s Inc., 234 Fed.Appx. 446, 447 (9th Cir.2007), we held that removal was inappropriate and sent the case back to district court for remand to the California state courts. Following remand of a case upon unsuccessful removal, the district court may, in its discretion, award attorney’s fees “incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (citations omitted).
Employers sought removal under the Labor Management Relations Act § 301, codified at 29 U.S.C. § 185, which establishes federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations.” The record supports Employers’ explanation that they reasonably believed Appellants’ “claims [were] ‘substantially dependent on analysis of a collective-bargaining agreement,’ ” in this case the Strike Settlement Agreement, which purported to release all claims by union members arising from the labor dispute. Caterpillar, Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (quoting Int’l Bhd. of Elec. Workers v. Heckler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). The propriety of invoking § 301 jurisdiction is not an easy determination on these facts. Hence, an objectively reasonable basis existed for invoking federal jurisdiction at the time Employers sought removal.
In the alternative, Appellants argue that unusual circumstances warrant an award of fees. As the Supreme Court said in Martin: “When a court exercises its discretion [to grant fees under a finding of unusual circumstances], ... its reasons for departing from the general rule should be ‘faithful to the purposes’ of awarding fees under § 1447(c).” 546 U.S. at 141, 126 S.Ct. 704 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. *1611023, 127 L.Ed.2d 455 (1994)). The criminal conduct of which Appellants complain is external to the WARN Act litigation at issue here and is irrelevant to Employers’ decision to seek removal to federal court. Therefore, Martin’s unusual circumstances exception does not apply.
The district court did not abuse its discretion in denying Appellants’ request for fees.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM ***
Plaintiff-Appellant Harold Williams appeals the dismissal of his personal injury lawsuit against Manson Construction Company (“Manson”). After the parties failed to file pretrial materials in accordance with the Local Rules, the district court, Honorable George P. Schiavelli presiding,1 issued an Order to Show Cause (“OSC”) “why the Court should not impose significant sanctions ..., including dismissal of this action.” Due to a series of mishaps, Williams’s counsel failed to file a timely response to the OSC. The district court dismissed the action for failure to prosecute. Williams then moved for relief under Federal Rule of Civil Procedure (“Rule”) 60(b), claiming excusable neglect.2 That motion was denied.
Williams appeals both the initial dismissal and the denial of relief under Rule 60(b).3 A district court’s order denying relief under Rule 60(b) is reviewed under the abuse of discretion standard. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989). “A district court abuses its discretion if it does not apply the correct law, rests its decision on a clearly erroneous finding of a material fact, or applies the correct legal standard in a manner that results in an abuse of discretion.” Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir.1992) (citing Hunt v. Nat’l Broad. Co., Inc., 872 F.2d 289, 292 (9th Cir.1989)). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
Rule 60(b)(1) provides that a court may relieve a party from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. Excusable neglect includes negligence on the part of counsel. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (relying upon Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
[D]etermination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000) (citing Pioneer Inv. Servs., 507 U.S. at 395, 113 S.Ct. 1489).
The district court cited the four factors and held that the third and fourth factors weighed against a finding of excusable neglect. However, the district court failed to consider the first and second factors, noting only that prejudice might result to parties before the court on other matters. Thus, the district court failed to completely apply the correct legal standard in considering whether excusable neglect had been shown.
*163Examining all of the Pioneer factors, the record weighs in favor of granting the Rule 60(b) motion for relief. First, although we agree that counsel’s excuses for missing the deadlines are weak, we disagree with the district court’s intimation of bad faith on the part of Williams’s counsel. The statement that the court website was not operational on certain dates was based on a lack of technical information concerning the functioning of counsel’s own server, not on bad faith prevarication of counsel. As explained by the declaration of counsel’s computer technician, the problem with the server was not discovered until March 25, 2008, well after the March 12 declaration, containing the preliminary but inaccurate explanation, was provided to the court. Second, the danger of prejudice to Manson was negligible considering the fact that Manson’s counsel had also missed both filing deadlines. Third, the length of the delay was only a few days and Williams indicated on March 24, 2008, that he was fully prepared for trial on the original trial date.
In sum, because it did not fully address all of the Pioneer factors we require courts to consider, the district court abused its discretion in denying Williams’s Rule 60(b) motion for relief.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Judge Schiavelli resigned from the bench effective October 5, 2008.
. The district court properly determined that Rule 54(b), the second stated basis for Williams's motion for relief, was inapplicable.
. Because we hold that the district court abused its discretion by failing to grant relief from the dismissal under Rule 60(b), we need not determine the propriety of the initial dismissal.
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MEMORANDUM ***
In this nine-year-old breach of contract action, Plaintiff-Appellant Ponani Suku-mar (“Sukumar”) appeals a district court order adopting a special master’s post-judgment report and recommendation. Sukumar prevailed in the underlying suit over a contract for purchase of medical grade exercise equipment. In No. 05-55324, his first appeal to this court, Suku-mar claimed the district court erred in divesting itself of jurisdiction over enforcement of its judgment in Sukumar’s favor. We agreed and on remand we recommended the district court appoint a special master to aid in the enforcement of its judgment under Federal Rule of Civil Procedure 53. Sukumar now claims: (1) the special master exceeded his authority to enforce the judgment; and (2) the district court erred when it did not review the special master’s findings de novo. Suku-*165mar’s arguments lack merit and we now affirm.
We review de novo the district court’s legal conclusions as to the scope of the special master’s Rule 53 authority and whether it performed the appropriate review. See United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1161 (9th Cir.2004).
The district court has discretion to appoint a special master and to decide the extent of his duties. See Jaros v. E.I. DuPont (In re Hanford Nuclear Reservation Litig.), 292 F.3d 1124, 1138 (9th Cir.2002). The district court followed our prior recommendation and instructed the special master to determine compliance with the Judgment by defendants. The Special Master shall engage in any necessary fact finding to
determine such compliance, including inspection of the equipment subject to the Judgment, accepting evidence from the parties, conducting hearings if required, and any and all powers under Rule 53(c) that the Special Master deems necessary to exercise in order to issue a fully informed report and recommendation to this Court regarding the state of compliance with the Judgment.
From the record, it is clear that the special master thoroughly investigated each deficiency. He took evidence, consulted experts, and personally inspected each exercise machine. He made thoughtful and extensive recommendations to the district court. We hold the special master did exactly what the district court directed him to do and that his authority was certainly within the bounds of Rule 53.
Sukumar’s argument that the district court did not engage in de novo review of his objections to the special master’s report and recommendations pursuant to Rule 53 is also without merit. Throughout Sukumar’s hearing challenging the special master’s report and recommendations, the district judge reiterated that he was reviewing the report, recommendations, and objections de novo. Judge Burns stated: “I repeatedly said I am not going to give special deference to the Special Master’s findings. I am going to review them de novo;” “I have reviewed the contested findings which include just about every finding he made de novo;” “I agree with your position that I am not to give any deference; that de novo review as to those matters that are objected to means that the court looks at it fresh with no deference or preference in favor of findings of the special master, and I have done that in this case;” “The independent person went out and heard from both sides, and his judgment amounts to facts that I am entitled to take into consideration in my own de novo review;” “As to each of his objections I have looked fresh and anew at this and I have formed my own judgment;” “The court with the exception of the area noted in my recital, adopts the special master’s recommendations and findings as my own. I do that — again, I emphasize— not on the basis of any special deference but rather from my de novo review of the findings.”
The district court properly analyzed the findings and objections de novo. The district court gave each of Sukumar’s claimed discrepancies a fresh look. See United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988) (“Under the de novo standard of review, we do not defer to the ... ruling but freely consider the matter anew, as if no decision had been rendered.”). The district judge independently considered all of the evidence that the special master considered, including over 270 pages of exhibits and 25 pages of objections. We hold the district judge performed the necessary de novo review. *166Nothing more was required. Costs are assessed against Appellant.
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 ***
Marcelino Ramos-Lopez appeals his conviction for conspiracy to manufacture 1000 + marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm Ramos-Lopez’s conviction.1
*168We review for an abuse of discretion the denial of Ramos-Lopez’s motion for a bill of particulars. See United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir.1991). The purposes of a bill of particulars are satisfied where the indictment sufficiently details the charges and the government provides full discovery to the defense. See United States v. Mitchell, 744 F.2d 701, 705 (9th Cir.1984).
Ramos-Lopez does not contest the sufficiency of discovery, and the indictment provided him with sufficient details of the charges. We agree with the district court that a bill of particulars was not necessary.
We review de novo whether the district court’s instructions adequately presented Ramos-Lopez’s theory of the case, to the extent that it was supported by law and founded in the evidence. See United States v. Somsamouth, 352 F.3d 1271, 1274 (9th Cir.2003); United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995). We review for an abuse of discretion the district court’s findings regarding evidentiary foundation. Id.
We agree with the district court that Ramos-Lopez’s theory of multiple conspiracies is unsupported by law. The general test in this circuit for a single conspiracy is whether there was “one overall agreement” to perform various functions to achieve the objectives of the conspiracy; co-conspirators may perform separate acts in furtherance of the single conspiracy. United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir.1980). The evidence is consistent with a single conspiracy implicating Ramos-Lopez. The grow area in which he admittedly participated contained well more than 1,000 plants, the statutory minimum.
We review de novo Ramos-Lopez’s motion for acquittal pursuant to Federal Rule of Criminal Procedure 29, and review for an abuse of discretion the district court’s denial of his motion for a new trial. United States v. Stewart, 420 F.3d 1007, 1014-15 (9th Cir.2005); United States v. Peterson, 140 F.3d 819, 821 (9th Cir.1998). Both motions were based on Ramos-Lopez’s erroneous contention that he was entitled to a jury instruction on multiple conspiracies. We affirm the district court’s denial of both motions.
We review the overall sentence for reasonableness in light of the 18 U.S.C. § 3553(a) factors. United States v. Marcial-Santiago, 447 F.3d 715, 717 (9th Cir.2006).
We first affirm the district court’s two-point reduction for acceptance of responsibility. Ramos-Lopez denied participation in the charged conspiracy, putting the government to its burden of proof. The district court properly denied him a third-level reduction for acceptance of responsibility. See United States v. Espinoza-Cano, 456 F.3d 1126, 1138 (9th Cir.2006).
There is no evidence that the district court’s sentence was based on the desire to penalize Ramos-Lopez for exercising his jury trial right. Cf. United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.1982). Mere imposition of a heavier sentence after a defendant rejects a plea bargain does not invalidate the sentence. United States v. Vasquez-Landaver, 527 F.3d 798, 805-06 (9th Cir.2008).
Accordingly, Ramos-Lopez’s conviction and sentence are AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our decision.
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MEMORANDUM *
Defendant Sheldon Cain appeals both the district court’s order denying his mo*170tion to suppress evidence and the district court’s categorization at sentencing of Cain’s previous conviction for second-degree assault as a crime of violence under the United States Sentencing Guidelines. Because the evidence at issue was seized pursuant to a lawful protective search, and because the prior conviction at issue is categorically a crime of violence, we affirm.
We review de novo both the district court’s denial of a motion to suppress incriminating evidence, United States v. By-num, 362 F.3d 574, 578 (9th Cir.2004), and its interpretation of the Sentencing Guidelines. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).
Although the parties spend considerable time debating whether Todd was actually driving and therefore lawfully arrested for driving on a suspended license, the point is irrelevant. In the wake of Arizona v. Gant, — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of the vehicle in this case cannot be justified as a search incident to arrest, whether or not Todd was lawfully arrested. After the district court ruled in this case, but prior to our review, the Supreme Court held in Gant, that a search of a vehicle incident to arrest is not appropriate where, as here, the arrestee is secured in a patrol car and it is unreasonable to expect to find evidence of the offense of arrest in the arrestee’s vehicle. 129 S.Ct. at 1719.
Gant preserved, however, the police’s authority “to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ and might access the vehicle.’” Id. at 1721 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). The constitutional reasonableness of traffic stops and subsequent searches depends on the objective conditions obtaining during the search, not the subjective intentions of the officer performing the search. United States v. Ibarra, 345 F.3d 711, 714 (9th Cir.2003); Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Here, while Deputy Stockman’s subjective intent was to perform a search incident to arrest, which Gant subsequently forbade, conditions obtaining during the search — including the fact that both Cain and Todd were known convicted felons, the fact that Todd’s arrest was a tense affair that occurred in the early morning and in a remote location, and the likelihood that Cain would return to his vehicle after Deputy Stockman’s business was concluded— objectively justified the performance of a protective search by an officer in Deputy Stockman’s situation. Deputy Stockman’s conduct thus did not run afoul of the Fourth Amendment. We therefore affirm the district court’s denial of Cain’s suppression motion.
Finally, the district court properly categorized Cain’s prior conviction for second-degree assault in violation of Wash. Rev.Code § 9A.36.021(1)(a) as a crime of violence as set forth in the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (2008). In an ordinary case, see James v. United States, 550 U.S. 192, 207-08, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), only an assault accompanied by force will lead to the “reckless[ ] infliction of] substantial bodily harm” required to justify a conviction under subsection (1)(a) of Washington’s second-degree assault statute. Wash. Rev.Code § 9A.36.021(1)(a). Further, only intentional assaults fall under the ambit of subsection (1)(a). Id. A conviction under Wash. Rev.Code § 9A.36.021(1)(a) is thus categorically a crime of violence. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir.2006) (en banc). See also United States v. Carson, 486 F.3d 618, 619 n. 2 *171(9th Cir.2007) (“We have previously held that a conviction under subsection (1)(a) of Washington’s second-degree assault statute, which makes it illegal to “[ijntentionally assault[ ] another and thereby recklessly inflict[] substantial bodily harm,” constitutes a crime of violence.”) (quoting United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.2005)).
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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01-04-2023
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11-05-2022
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